The explanations of the specialists of the main financial department are quite simple. Officials proceed from the fact that the Tax Code does not prohibit taxpayers from combining the simplified taxation system and the patent taxation system. Therefore, nothing prevents an entrepreneur who carries out the same type of activity in different subjects of the Russian Federation from switching to a simplified taxation system according to this species activities in one subject of the Russian Federation, and on the patent system - in another subject. If the PSN will not be applied, then in the relevant subject of the Russian Federation, the entrepreneur must apply the "simplified".
Article 607. Objects of lease
Issues of judicial practice on the interpretation and application of Art. 607 of the Civil Code of the Russian Federation
1. Leasing the same property to several persons at the same time >>>
2. Transfer of the leased object before the state registration of the contract to a third party under another contract >>>
3. The possibility of concluding a new lease agreement if there is a valid agreement between the parties for the same rental object >>>
4. The possibility of concluding a lease agreement for a land plot on which real estate objects owned by third parties are located >>>
5. Consequences of the discrepancy between the characteristics of the leased object, agreed in the contract, and the characteristics of the object actually leased >>>
6. Consequences of discrepancies in the descriptions of the object in the lease agreement and accounting documents >>>
7. The actual performance of the lease agreement as a factor influencing its fate >>>
8. Documents that may contain a condition on the subject of the lease >>>
9. Consequences of specifying in the contract only the area of the leased premises and the address of the leased object >>>
10. Condition on the area of the leased object >>>
11. Consequences of concluding a lease agreement for a land plot in violation of the established procedure for individualization >>>
12. Impossibility of coercion to conclude a lease agreement for a land plot that has not actually been formed >>>
13. Lease of an object under construction >>>
14. Lease of a capital construction object for which there is no permission for commissioning >>>
15. Lease agreement for a future immovable, concluded in relation to unauthorized construction >>>
16. Newly created (reconstructed) real estate that has not passed state registration as an object of a lease agreement >>>
17. Share in the right to lease or share in property without allocation in kind as objects of lease >>>
18. Part of a thing as an object of rent >>>
19. Lease of an indivisible land plot on which a building owned by several persons is located >>>
20. Lease of structural elements of the property >>>
21. Determination of the subject of the preliminary lease agreement >>>
22. Leasing a stationary trading place >>>
23. Leasing of heating networks >>>
24. Renting temporary facilities >>>
25. Leasing non-residential premises for hotel accommodation >>>
26. Lease of pledged property >>>
27. Lease of overhead power lines >>>
28. Rent of an antenna-mast communication facility >>>
29. Rent of linear cable structures >>>
30. Lease agreement for immovable property under arrest >>>
31. Rental of destroyed buildings >>>
32. Rent land plots for the development of minerals >>>
33. Examples of economic disputes in which art. 607 of the Civil Code of the Russian Federation was applied by the court based on its literal content >>>
1. Lease of the same property to several persons at the same time
In practice, there are cases when, due to various circumstances, property already leased is leased to another person under another agreement. Similar situations arise, for example, when the leased property is part of a previously leased object. In this regard, questions arise: whether the tenant, to whom the property was not transferred, has the right to demand the transfer of this property from the lessor; which of the tenants has the priority right to receive this property; what is the fate of the lease agreement concluded in relation to such property, and who has the right to challenge such an agreement.
1.1. Conclusion from judicial practice: If the object of several lease agreements concluded with several persons is the same property as a whole (with the exception of cases when the tenants use different parts of one thing or the use of the thing is carried out by the tenants alternately at different periods of time), then the relations between the tenants and the lessor are subject to application of the provisions of Art. 398 of the Civil Code of the Russian Federation. The lessee, to whom the property that is the object of the lease agreement has not been transferred, has the right to demand from the lessor compensation for the losses caused and payment of the penalty established by the agreement.
Arbitrage practice:
If the object of several lease agreements concluded with several persons is the same property as a whole, then the provisions of Article 398 of the Civil Code of the Russian Federation shall be applied to the relations between tenants and the lessor. The lessee, to whom the property that is the object of the lease agreement has not been transferred, has the right to demand from the lessor, who has not fulfilled the lease agreement, compensation for the losses caused and payment of the penalty established by the agreement ... "
Art. 607, Guide to jurisprudence. Rent. General provisions(Consultant Plus)
1.2. Conclusion from judicial practice: On the issue of the legal consequences of signing a lease agreement for property that has already been leased to another person, there are two positions of the courts.
Position 1. A lease agreement for property that has already been leased to another person is invalid.
In paragraph 13 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 11/17/2011 N 73 (as amended on 01/25/2013) "On certain issues of the practice of applying the rules Civil Code of the Russian Federation on the lease agreement" the following position is stated. The tenant, to whom the property that is the object of the lease agreement was not transferred, has the right to demand from the landlord who has not fulfilled the agreement compensation for the damages caused and payment of the established penalty (see clause 1.1 of the materials to article 607 of the Civil Code of the Russian Federation) .
Arbitrage practice:
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 8, 2006 N 4818/06 in case N A41-K1-3758/05
"... As established by the courts, between the administration and Sheremetyevo Airport, a lease agreement dated September 27, 1996 N 447 was concluded, on the basis of which the latter was granted a land plot with a total area of 966.5 hectares, located at the address: Moscow Region, Khimki district, Sheremetyevo International Airport.
This agreement was registered on September 27, 1996 by the Committee for Land Resources and Land Management of the Khimki District of the Moscow Region, and on December 4, 1998 in the manner prescribed by Federal Law No. 122-FZ of July 21, 1997 "On State Registration of Rights to Real Estate and Transactions with It", registration of the agreement carried out by the Moscow Regional Registration Chamber.
However, on July 31, 2001 between the land committee and the company signed an agreement dated July 31, 2001 N M-09-019055 for the lease of a land plot of 19.74 hectares for a period of 49 years. Moreover, the land plot provided to the company is located on the territory occupied by the airport on the basis of a lease agreement dated September 27, 1996 N 447.
These circumstances served as the basis for the appeal of the Ministry of Property Relations of the Moscow Region to the arbitration court.
As established by the courts, the land leased to the company on the basis of the disputed transaction is located on the territory occupied by Sheremetyevo Airport under lease agreement No. 447 dated September 27, 1996.
By the decision of the Court of Appeal of the Moscow City Arbitration Court dated April 19, 2001 in another case (N 9-416ss), which entered into force, the said agreement was recognized as complying with the current legislation, and the requirements for declaring it invalid were denied.
Under such conditions, the lease agreement for a land plot dated July 31, 2001 N M-09-019055, by virtue of Article 168 of the Civil Code of the Russian Federation, is void, since it was concluded by the company and the land committee during the validity period of another lease agreement for the same real estate ... "
Guide to judicial practice. Rent. General provisions (ConsultantPlus)
Position 2. A lease agreement for property that has already been leased to another person is not concluded.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Moscow District dated September 30, 2009 N KG-A41 / 9694-09 in case N A41-2892 / 09
"... At the time of signing the lease agreement dated March 19, 2008 N 54/39, non-residential premises N 1 (rooms N 1 - 26) with a total area of 505.2 sq. m, located on the first floor in the building at the address: Moscow Region , Istrinsky district, Istra, street of the 9th Guards Division, 54, and non-residential premises N 1 (rooms N 1 - 15) with a total area of 380.9 sq. m, located on the first floor in the building at the address: Moscow region, Istrinsky district, Istra, Sovetskaya st., 39, could not be the subject of lease under the lease agreement dated March 19, 2008 N 54/39, since they were the subject of lease agreements concluded between KORUND + LLC and CJSC "DIXY Yug". non-residential premises, specified as the subject of the lease agreement dated March 19, 2008 N 54/39, were transferred to DIXY Yug CJSC under the acceptance certificate dated March 17, 2008.
Taking into account the above circumstances, since at the time of signing the lease agreement dated March 19, 2008 N 54/39, an agreement on its subject matter was not reached between the parties in the required form, the arbitration court of the appellate instance rightfully pointed out that, by virtue of the provisions of Art. 432 of the Civil Code of the Russian Federation, lease agreement No. 54/39 dated March 19, 2008 is not concluded.
An unconcluded contract does not give rise to any rights and obligations for its parties. In this regard, the legal consequence of recognizing the contract as not concluded is the absence of obligations between the parties under the specified contract.
In this regard, as of March 19, 2008, KORUND+ LLC did not have any obligations from the lease agreement dated March 19, 2008 N 54/39, provided for by clause 8.3 of the lease agreement N 54/39 dated March 19, 2008 G..."
1.3. Conclusion from judicial practice: The decision of the local self-government body to lease property may be recognized by the court as invalid if the disputed property has already been leased to another person.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Urals District of September 16, 2013 N F09-8677/13 in case N A50-24330/2012
"... Entrepreneur Simonov D.V. applied to the Arbitration Court of the Perm Territory to the Department with an application for recognition of the decision of the Department set out in the protocol of 08.15.2012 N 93-z on the possibility of leasing a land plot of 1 950 sq. m, located in the city of Perm north-west of Svoboda street, 21 for parking Sychev A.O. invalid, taking into account the clarification adopted by the protocol ruling of the court dated 04.03.2013 by virtue of Article 49 of the Arbitration Procedure Code Russian Federation.
Between the society "Avtodrug" and the businessman Simonov D.V. On June 20, 2012, an agreement on the assignment of the right to lease a land plot was signed, according to which the tenant's rights under the land lease agreement dated May 3, 2006 N 385-06MR were transferred to the applicant.
08/15/2012 at a meeting of the Board at the Department on the application of Sychev A.O. It was decided to recognize the possibility of granting a land plot of 1950 sq. m, located northwest of the street. Svobody, 21, for parking for rent for 4 years 11 months.
Believing that this decision is contrary to the law, since a parking lot has already been organized and operates on the said land plot on the basis of a lease agreement dated 03.05.2006 N 385-06MR, entrepreneur Simonov D.V. appealed to the Arbitration Court of the Perm Territory with a corresponding statement.
The procedure for providing citizens and legal entities with land plots that are in municipal ownership, and land plots for which state ownership is not delimited, for purposes not related to construction, on the territory of the city of Perm was approved by the decision of the Perm City Duma dated October 23, 2007 N 260.
By virtue of clause 1.6.1 of the said Procedure, the provision of a land plot for purposes not related to construction is impossible if the requested land plot is fully or partially encumbered with the rights of third parties.
According to paragraph 3 of Art. 607 of the Civil Code of the Russian Federation, the lease agreement must contain data that makes it possible to definitely establish the property to be transferred to the tenant as an object of lease. In the absence of these data in the contract, the condition on the object to be leased is considered not agreed by the parties, and the corresponding contract is not considered concluded.
According to the explanations set out in clause 15 of Decree N 73, if the leased thing in the lease agreement is not properly individualized, however, the agreement was actually performed by the parties (for example, the thing was transferred to the tenant and at the same time there was no dispute about the improper fulfillment of the lessor’s obligation to transfer the leased object between the parties ), the parties are not entitled to dispute this agreement on the grounds related to the improper description of the lease object, including referring to its non-conclusion or invalidity.
As follows from the letter of the federal state budgetary institution "Federal Cadastral Chamber of the Federal Service for State Registration, Cadastre and Cartography" dated 02.04.2013 N 01-08 / 0691, the disputed land plot was a previously registered property and was put on cadastral registration with cadastral number 59: 01:4211197:12. Information about this land plot was entered on the basis of the estimated inventory of the cadastral quarter N 59:01:4211197, forms of the Unified State Register of Lands F1.1 and F1.2, resolution of 10/31/2001 N 2904.
From the cadastral extract dated February 18, 2013, it follows that the land plot with cadastral number 59:01:4211197:12 has a permitted use - for the design, construction and operation of a parking lot, its area and boundaries are established in accordance with the requirements of the current legislation.
Having assessed the evidence available in the case (Article 71 of the Arbitration Procedure Code of the Russian Federation), as well as the terms of the land lease agreement dated May 3, 2006 N 385-06MR (Article 431 of the Civil Code of the Russian Federation), the Court of Appeal came to the correct conclusion of its conclusion, since the land plot was transferred by the lessor under the act of acceptance and transfer, there was no dispute between the parties to this agreement on the leased object, the land plot was a previously registered property and was registered with the cadastral number 59:01:4211197:12 05.06. 2006, the contract was executed by the parties, including Simonov D.V.
Consequently, since as of 15.08.2012 the lease agreement for the land plot dated 03.05.2006 N 385-06MR was valid, the Department could not make a decision to lease the disputed land plot to a third party.
In view of the foregoing, the court of appeal rightfully satisfied the stated requirements of Simonov I.A ... "
1.4. Conclusion from judicial practice: There are two positions of the courts on the issue of the part in which the lease agreement with the person to whom the property partially rented by the time the agreement was concluded can be disputed.
Position 1. If the tenant has been transferred property partially leased by another tenant, then the latter may dispute the new lease agreement only in the part of its area transferred to the new tenant.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of December 29, 2008 in case N A43-4621 / 2008-41-190
"... A claim for the application of the consequences of the invalidity of a void transaction may be presented by any interested person (Item 2 of Article 166 of the Civil Code of the Russian Federation).
An interested person should be understood as a person who has a legally significant interest in this case. Such legal interest may be recognized for the participants in the transaction or for persons whose rights and legitimate interests are directly violated by the disputed transaction.
LLC "Eltex" is not a party to the lease agreement dated 13.12.2006 N 14052/06, therefore, its interest in challenging this transaction is limited to protecting violated rights and legitimate interests only in part of a land plot of 60 square meters with cadastral number 52:18:06 01 39:0005, which is in its use on the right of lease and is part of the land plot with an area of 6940 square meters, provided by Spektr-plus LLC under the said agreement.
The court found that the land plot with an area of 6940 square meters transferred to Spektr-plus LLC under a lease agreement dated December 13, 2006 N 14052/06 included a land plot of 60 square meters previously provided to Eltex LLC under a lease agreement dated December 13, 2006. 06/04/2003 N 09530/06 (there is an imposition of the boundaries of land plots with cadastral numbers 52:18:06 01 39:0005 and 52:18:06 01 39:0006), in connection with which he recognized the lease agreement dated 12/13/2006 N 14052/06 invalid completely. However, the court did not take into account that both land plots were individualized, put on the state cadastral register and, thus, a land plot of 60 square meters was actually separated from the land plot of 6940 square meters as its separate part.
The courts of the first and appellate instances correctly established the factual circumstances of the case, but did not apply Article 180 of the Civil Code of the Russian Federation and Article 27 of the Law on the State Real Estate Cadastre, which were subject to application, which led to an erroneous decision, in connection with which the adopted judicial acts, by virtue of paragraph 2 of part 1 of article 287, part 1 and paragraph 1 of part 2 of article 288 of the Arbitration Procedure Code of the Russian Federation are subject to change by invalidating the land lease agreement dated 12/13/2006 N 14052/06 regarding the lease of a land plot of 60 square meters with cadastral number 52:18 :06 01 39:0005..."
Position 2. If the tenant has been transferred property partially rented by another tenant, the latter may challenge the new lease agreement as a whole.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Ural District dated November 26, 2007 N F09-9695 / 07-C6 in case N A07-13501 / 2006
"... The Limited Liability Company "Business Consultation" (hereinafter referred to as the "Business Consultation" company) filed a lawsuit with the Arbitration Court of the Republic of Bashkortostan against the Committee for Management of Municipal Property of the Administration of the City of Ufa City District (hereinafter referred to as the Committee) and the company " Health-improving complex "Yubileyny" (hereinafter referred to as the company "Health-improving complex "Yubileyny") on the recognition of the contract of 04.04.2006 N 383-06 for the lease of a land plot, cadastral number 02:55:030828:00010 invalid (subject to clarification of claims).
As established by the court and follows from the case file, under the agreement dated May 25, 2004 N 16, concluded between the Ufa forestry of the Ministry of Forestry in the Republic of Bashkortostan and the Business Consultation company on the basis of Art. 31 - 34, 80 of the Forest Code of the Russian Federation, a plot of the forest fund in Chernikovsky forestry in the 29th quarter with a total area of 5.24 hectares, cadastral number 02:55:030828:00010, was transferred to the specified company for temporary use. The contract was registered on 07/01/2005 (vol. 1, case sheet 42).
On April 4, 2006, between the committee and the company "Health-improving complex "Yubileiny" signed a land lease agreement N 383-06 for a period from 29.12.2005 to 24.12.2008, in accordance with the terms of which the company "Health-improving complex "Yubileyny" on the basis of a resolution of the head of the city administration Ufa dated December 29, 2005 N 6131, a land plot from the lands of settlements with cadastral number 02:55:030828:00010 was leased, located at the address: Republic of Bashkortostan, Ufa, Kalininsky district, for use for the purpose of an occupied tourist base, without logging rights, within the boundaries specified in the cadastral map (plan) of the site attached to the contract and being its integral part, with a total area of 16227 sq. m (v. 1, l. d. 14 - 15). The agreement was registered on 05/10/2006, as recorded in the Unified State Register N 02-04-01/130/2006-174.
According to the cadastral plan of the land plot with an area of 5.24 hectares, its boundaries completely include the land plot received by the Yubileiny Health Improvement Complex under contract N 383-06.
When considering the case according to the rules established for the consideration of disputes in the arbitration court of first instance, the court of appeal, satisfying the requirements of the Business Consultation company, rightfully proceeded from the fact that the property leased to one person, within the meaning of the provisions of Art. 606, 607 of the Civil Code of the Russian Federation, paragraph 1 of Art. 41, paragraph 1 of Art. 43 of the Land Code of the Russian Federation, forest legislation governing lease issues, cannot be leased to another person, therefore, the agreement dated 04.04.2006 N 383-06, concluded with the Yubileiny Health Complex Company in respect of property encumbered with unterminated rights lease of another person cannot be considered in accordance with the law. By virtue of Article 168 of the Civil Code of the Russian Federation, a contract that does not comply with the requirements of the law is void ... "
1.5. Conclusion from judicial practice: If a lease agreement is concluded for a part of the leased land plot with another tenant on the basis of a court decision and the area of this part is larger than that specified in the judicial act, then the first tenant has the right to challenge the new agreement in respect of the area exceeding that specified in the court decision.
Arbitrage practice:
Resolution of the Federal Antimonopoly Service of the East Siberian District dated February 9, 2010 in case N A58-365 / 09
"... Open Joint Stock Company "Yakutsk Plant of Building Materials and Structures" (OJSC "YAKSMK") filed a lawsuit with the Arbitration Court of the Republic of Sakha (Yakutia) against the limited liability company "VTEK" (LLC "VTEK") and the District Administration of the city Yakutsk (administration) on the recognition of the land lease agreement as invalid and the application of the consequences of its invalidity.
The Administration, represented by the Department of Property Relations of the Mayor's Office of the City of Yakutsk (department), concluded an agreement N 4502 for the lease of a land plot with an area of 133,791 sq. m with cadastral number 14:36:103011:0002 from the lands of settlements, located at the address: Yakutsk, st. Dzerzhinsky, 56, quarter 41, to accommodate a production base with a lease term from 12/20/2004 to 11/01/1009. The state registration of the contract in accordance with the established procedure was carried out on 10.03.2005.
By orders of the head of the administration of March 22, 2007 N 1059zr and of September 24, 2007 N 1240, part of the above-mentioned land plot with an area of 2157 sq. m with reference to the decision of the Arbitration Court of the Republic of Sakha (Yakutia) dated July 5, 2007 in case No. A58-9202 / 2005, was leased to VTEK LLC, and the plaintiff's right to lease this site was terminated.
On the basis of these orders, between the department (lessor) and VTEK LLC (tenant) on October 11, 2007, lease agreement No. 5572 was concluded, under the terms of which a land plot of 2157 square meters was transferred to the tenant. m with cadastral number 14:36:103011:0018 for accommodation shopping center for the period from 10/11/2007 to 02/13/2010.
The conclusion of the arbitration courts regarding the rejection of the claim for the invalidation of the lease agreement N 5572 in the part of the land plot with an area of 0.1768 hectares is correct.
Since by the decision of the Arbitration Court of the Republic of Sakha (Yakutia) dated June 5, 2006 in case A58-9202 / 2005, the requirements of VTEK LLC to the administration with the participation of YaKSMK OJSC as a third party that does not declare independent claims regarding the subject of the dispute, on the obligation to conclude the lease agreement for a land plot with an area of 0.1768 hectares with cadastral number 14:36:103011:0012 is satisfied, the conclusion of the courts on the conclusion of the agreement in pursuance of the judicial act is lawful.
At the same time, the conclusion of the courts to dismiss the claim in part of the land plot with an area of 389 sq. m is premature and made for incompletely investigated circumstances that are important for the correct resolution of the case.
Based on the subject and grounds of the claim, the claims and objections of the parties and the substantive law to be applied, the circumstances of the presence (absence) of the plaintiff's real estate objects (the checkpoint and the garage) on a land plot of 389 sq. m, leased to the defendant under the disputed contract.
At the same time, this issue was not included in the subject of investigation by the courts, the plaintiff's argument about the location of these objects on the disputed land plot was not assessed, and therefore, in this part, the contested decision and resolution are subject to cancellation, and the case is sent for a new consideration ... "
1.6. Conclusion from judicial practice: On the issue of the possibility of leasing the same property simultaneously to different persons, if the norms of special legislation establish the right to use this property for several purposes, there are two positions of the courts.
Note: In accordance with Part 2 of Art. 25 of the Forest Code of the Russian Federation, forests can be used for one or more purposes provided for in Part 1 of this article, unless otherwise provided by this Code, other federal laws. In practice, there are discrepancies in the interpretation of this article. Some courts are inclined to believe that Art. 25 of the Forest Code of the Russian Federation provides the right to lease the same property to several persons, but for different purposes of activity. Others believe that this norm determines only the types of use of forest plots, but not the procedure for leasing them, therefore, leasing plots to several persons at the same time is illegal.
Position 1. The same property may be leased simultaneously to different persons, if the norms of special legislation provide for the possibility of using this property for several purposes, including simultaneous multi-purpose use.
Arbitrage practice:
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 27, 2010 N 2111/10 in case N A05-7607/2009
"... As established by the courts and seen from the case file, on September 30, 2008, between the department of the forestry complex and the Bobrovsky Raid Company, as the winner of the forest auction for the sale of the right to conclude a lease agreement for a forest plot dated September 16, 2008 N 6/3, was agreement N 653 for the lease of a forest plot was signed.
According to paragraph 1.3 of the said agreement, a forest plot with a total area of 5,630 hectares is transferred to the tenant for the use of the forest for the purpose of logging. The agreement defines the location of this site. The parties signed the act of acceptance and transfer of the forest area for rent dated 30.09.2008.
On March 25, 2009, the Company "Firm "Bobrovsky raid" applied to the registration service with a request for state registration agreement on the lease of a forest plot dated September 30, 2008 N 653. Initially, state registration was suspended, and then, by a message from the registration service dated May 22, 2009 N 01/028/2009-108, the company was denied state registration of the specified agreement on the grounds that there were contradictions between declared and already registered rights (subparagraph 11, paragraph 1, article 20 of the Federal Law of July 21, 1997 N 122-FZ "On State Registration of Rights to Real Estate and Transactions with It").
Indeed, on 28.04.2008 between the department of the forest complex and the SAPSAN-M company, a lease agreement for forest plots N 300 was signed. Forest plots with a total area of 67,500 hectares were transferred for hunting. The agreement establishes restrictions on the use of plots, in particular, plots No. 2, 4 have encumbrances on the type of forest use - logging by the Bobrovsky Raid Company. The state registration of this agreement was carried out on 13.10.2008.
The Bobrovsky Raid Company, having disagreed with the refusal to state registration of the forest plot lease agreement dated September 30, 2008 N 653, filed a lawsuit demanding that this refusal be declared invalid.
Article 1 of the Forest Code of the Russian Federation of 2006 establishes that forest legislation and other normative legal acts regulating forest relations are based on the principles of ensuring the multi-purpose, rational, continuous, sustainable use of forests to meet the society's need for forests and forest resources.
Paragraph 1 of Article 25 of the Code lists the types of use of forests, including logging, activities in the field of hunting (hunting and hunting).
In accordance with paragraph 2 of the same article, forests may be used for one or more of the purposes provided for by part 1 of this article, unless otherwise provided by the Code, other federal laws.
Conducting forest auctions for the use of the same forest plots for different types use, the conclusion of contracts by tenants, taking into account the established restrictions, allow us to conclude that multi-purpose forest management is possible both by the Bobrovsky Raid Firm and SAPSAN-M.
The Forest Code of the Russian Federation does not contain a ban on granting forest plots to different forest users for different types of activities.
A systemic interpretation of the said norms of legislation shows that a restriction both in terms of the type of forest use and the number of forest users arises only when simultaneous multi-purpose forest use by one land plot impossible.
Thus, the refusal of the registration service to state registration of the forest plot lease agreement dated September 30, 2008 N 653 is unlawful.
Guide to Judicial Practice. Rent. General provisions (ConsultantPlus)
Position 2. One and the same property cannot be leased simultaneously to different persons, even if the norms of special legislation establish the right to use this property for several purposes.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Central District of 04/05/2010 in case N A09-9389 / 2009
"... In accordance with the Decree of the Administration of the Bryansk Region of December 21, 2006 N 801, the Committee for Nature Management and Protection environment, licensing certain types activities of the Bryansk region and LLC "Russian Hunting Club Umyslichi" on December 26, 2006 concluded an agreement N 1130 OI-KP on providing the Company with long-term use (for a period of 30 years) of the territory for the use of wildlife.
The Forest Department of the Bryansk region published in the newspaper "Bryansk crossroads" N 29 dated 07/29/2009 a notice about an auction for the sale of the right to conclude lease agreements for forest plots for timber harvesting.
Considering the actions of the Forestry Department of the Bryansk Region in organizing the auction as not complying with the law and violating the rights and legitimate interests of LLC "Russian Hunting Club Umyslichi" in the field entrepreneurial activity The Company applied to the Arbitration Court with this application.
Satisfying the stated requirements, the court of first instance proceeded from the fact that Russian Hunting Club Umyslichi LLC uses wildlife objects on the territory provided to it on legal grounds, and therefore actions related to the leasing of forest plots located on the same territory for timber harvesting do not comply with the requirements of the current legislation and violate the rights and legitimate interests of the applicant.
Canceling the said judicial act and refusing to satisfy the stated requirements, the Court of Appeal proceeded from the fact that the actions of the Forestry Department of the Bryansk Region comply with the requirements of Article 25 of the Forest Code of the Russian Federation, since forests can be used for various purposes, and therefore one forest plot can be provided for use by several persons.
The Judicial Board considers these conclusions to be erroneous.
In accordance with Articles 606 - 607 of the Civil Code of the Russian Federation, a forest plot, as an object of lease, cannot be the subject of several transactions at the same time.
Article 25 of the Forest Code of the Russian Federation, which establishes the types of use of forests, and which provides for the use of forests for several purposes, does not conflict with Articles 606 - 607 of the Civil Code of the Russian Federation, since this rule determines only the types of use of forest plots, but not the procedure for transferring them for rent.
By virtue of the foregoing, the actions of the Forest Department of the Bryansk Region, aimed at leasing the disputed forest area to third parties, do not meet the requirements of the above-mentioned norms of the law, violate the legal rights of Russian Hunting Club Umyslichi LLC to own and use this site.
The decision of the Twentieth Arbitration Court of Appeal dated January 28, 2010 in case N A09-9389 / 2009 is canceled, leaving the court decision in the same case in force ... "
1.7. Conclusion from judicial practice: The lessee cannot force the lessor to conclude a lease agreement on the basis of a preliminary agreement if the leased object has been leased by the lessor to a third party.
Arbitrage practice:
Determination of the Supreme Arbitration Court of the Russian Federation of September 20, 2010 N VAS-12532/10 in case N A40-101596 / 09-113-789
"...04/09/2007 between LLC "Route-Razvitie" (lessor) and LLC "SKMO" (tenant) concluded preliminary agreement lease of non-residential premises in the Consumer Services Center under construction (hereinafter referred to as the Center), according to which the parties undertook to conclude a long-term lease agreement for these premises in the future upon receipt by the lessor of a certificate of state registration of ownership of the specified object.
Subsequently, between the landlord, the tenant and JSC Seventh Continent (the new tenant) an agreement was concluded dated July 22, 2008 on the assignment of the rights and obligations under the preliminary agreement to the new tenant, including in terms of concluding a long-term lease agreement for the premises in the future.
After the landlord registered the ownership of the building of the Center, Seventh Continent OJSC sent a telegram to him with a request to conclude the main lease agreement on the terms stipulated by the preliminary agreement.
Since the lessor did not conclude a lease agreement, JSC Seventh Continent applied to the arbitration court with the specified claim for compulsion to conclude the agreement.
In refusing to satisfy this requirement, the courts rightly referred to the provisions of Articles 606-609, 611 and paragraph 6 of Article 429 of the Civil Code of the Russian Federation.
Based on the specific factual circumstances of the case examined and the evidence presented, the courts of first instance and the court of appeal concluded that there were no legal grounds for forcing the defendant to conclude a lease agreement with JSC Seventh Continent, since the premises that are the subject of the preliminary agreement are currently being used CJSC Trade Network Ostrov on the basis of a lease agreement dated 08/01/2009, concluded by him with LLC Route-Razvitie.
The applicant's arguments are aimed at reassessing the established and investigated factual circumstances, which is not within the competence of the supervisory authority ... "
1.8. Conclusion from judicial practice: The presence in the USRR of an entry on the lease of an immovable does not prevent the entry in the register of an entry on another lease of the same thing.
Arbitrage practice:
Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 17, 2011 N 73 (as amended on January 25, 2013) "On Certain Issues in the Practice of Applying the Rules of the Civil Code of the Russian Federation on a Lease Agreement"
"... 13. When resolving disputes from lease agreements that were concluded regarding the same property (with the exception of cases where the tenants use different parts of one thing or the use of the thing is carried out by the tenants alternately at different periods of time), the courts must proceed from the next.
If the object of several lease agreements concluded with several persons is the same property as a whole, then the provisions of Article 398 of the Civil Code of the Russian Federation shall be applied to the relations between tenants and the lessor. The lessee, to whom the property that is the object of the lease agreement has not been transferred, has the right to demand from the lessor, who has not fulfilled the lease agreement, compensation for the losses caused and payment of the penalty established by the agreement.
The courts also need to take into account that the presence in the USRR of an entry on the lease of an immovable thing does not prevent the entry in the register of an entry on another lease of the same thing ... "
On the territory of the district, as well as in other regions of the country, cases of dishonest actions of citizens selling the same real estate to several persons are not ruled out. Deceived buyers, for the protection of their rights, apply, including to the prosecutor's office. However, in similar situations to defend their violated rights is possible only in judicial order. The prosecutor may apply to the court to protect the interests of citizens who, due to their age, health, incapacity and other valid reasons, cannot apply to the court on their own.
In this clarification, the District Attorney's Office answers the question of what way to protect the violated right is provided in such situations. Deceived buyers (who signed sales contracts before other buyers) in such cases bring claims against sellers and other buyers to invalidate the contracts and reclaim property (apartments, land plots) from someone else's illegal possession. The claims are supplemented with a reference to Art. 10 of the Civil Code of the Russian Federation, which does not allow abuse of citizens (in this case sellers) with their rights. In some cases, such claims are satisfied by the courts.
At the same time, the Supreme Court of the Russian Federation, considering one of the civil cases, indicated that the claims formulated in this way could not be satisfied.
In the event of the above situation, citizens must be guided by Art. 398 of the Civil Code of the Russian Federation, which regulates the consequences of failure to fulfill the obligation to transfer an individually defined thing.
According to the mentioned norm of the law, in case of non-fulfillment of the obligation to transfer an individually defined thing into ownership, the creditor has the right to demand that this thing be taken away from the debtor and transferred to the creditor on the conditions stipulated by the obligation. This right lapses if the thing has already been transferred to a third party with the right of ownership, economic management or operational management. If the thing has not yet been transferred, the creditor in whose favor the obligation arose earlier, and if this cannot be established, the one who filed the claim earlier, has priority.
What should citizens do in cases where the buyer has already registered the ownership in Rosreestr?
The answer to this question is contained in paragraph 61 of the resolution of the Plenum Supreme Court RF dated April 29, 2010 No. 10/22 “On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other rights in rem.” If the seller has concluded several contracts of sale in respect of the same real estate and state registration of the transfer of ownership of one of the buyers has been made, the other buyer has the right to demand compensation from the seller for losses caused by the non-fulfillment of the contract of sale.
As we can see, the legislator did not adequately protect the deceived buyers from the unfair actions of false sellers. Therefore, when buying real estate, we urge citizens to be more prudent and not delay the state registration of their acquisitions.
The Ministry of Finance of Russia clarified that in relation to the same type of business activity carried out in the territory of one municipal district or in the territory of several districts of one urban district, the federal cities of Moscow, St. can not ().
Recall that the taxation system in the form of UTII for certain types of activities can be applied by decisions of the representative bodies of municipal districts, urban districts, legislative (representative) bodies of state power of federal cities of Moscow, St. Petersburg and Sevastopol in relation to certain types of entrepreneurial activity ().
Whether it is necessary, when combining UTII and STS, to keep accounting and prepare reports on all types of activities carried out in the whole organization, find out from the material " Accounting for income when combining UTII and USN
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At the same time, organizations and individual entrepreneurs that have expressed a desire to switch to paying UTII are required to register as taxpayers with the tax authority at the place of business, and in some cases - at the location of the organization ().
At the same time, the simplified tax system applies to all activities of an organization or an individual entrepreneur as a whole, regardless of the types of activities carried out and the number of objects that characterize a certain type of entrepreneurial activity, and not in relation to individual types of entrepreneurial activity. The simplified tax system can be applied along with other taxation regimes ().
At the same time, organizations and individual entrepreneurs that have switched to paying UTII for certain types of activities for one or more types of business activities are entitled to apply the simplified tax system in relation to other types of business activities they carry out ().
In preschool educational institution in 2018, from 23 to 27 people worked in different months, in 2019 - 27 people (one of them is on maternity leave). In what order should the institution submit to the FSS the information necessary for the appointment and payment of benefits for temporary disability, pregnancy and childbirth, childbirth and other benefits related to motherhood: electronic form or on paper (the institution is located in the constituent entity of the Russian Federation participating in the pilot project)? The buyer - VAT payer has the right to take advantage of the deduction of the tax presented to him on goods, works, services, property rights if the provisions prescribed in Art. 171 and 172 of the Tax Code of the Russian Federation conditions: the purchase is intended for a VAT-taxable operation and is registered, the buyer has an invoice drawn up accordingly. True, if this document is received late, the taxpayer may have additional questions. For what period to declare a deduction? How can it be transferred to subsequent tax periods and not miscalculate the deadline set by the legislator for this event? Is it possible to defer only part of the deduction? Four court instances, including the Supreme Court of the Russian Federation, denied citizen Zh. the right to register a new D LLC. The formal basis for this refusal was the applicant’s failure to submit the documents required for state registration, determined by Federal Law No. executive body of a legal entity within its location, and there are signs of the absence of the founders - legal entities LLC "P", LLC "B" and their leaders the ability to manage in the newly created legal entity.
Changing the VAT rate in itself, it seems, should not cause difficulties for accounting workers. Indeed, you accrue large amounts to be paid to the budget and that's all ... However, difficulties may arise during the period of transition from a lower rate to a higher one. In this article, we will present an overview of the latest clarifications of officials on this topic related to the performance of work and the provision of services. In April 2019, an error was identified: no depreciation was charged for library fund objects that were accepted for accounting and put into operation in August 2018. What corrective entries need to be made in budget accounting?
