Terms of payment of rent in the contract. Rent: calculation, procedure for establishing, accrual

The terms of the rent are usually established in a separate section of the lease agreement and should include clauses: on the amount or procedure for its determination, components rent(if any), the procedure for issuing an invoice and processing payment documents and the terms for paying rent, penalties (forfeit) for late payment, the procedure and possible limits for changing the amount of payment and some other conditions agreed by the parties.

An indication of the amount of rent is essential condition contracts. The absence of an indication of the amount of the rent entails the invalidity of the contract, since this contract is one of compensation.

An indication of the possibility of reviewing the amount of rent no more than once a year is established in paragraph 3 of Art. 614 of the Civil Code of the Russian Federation and is not subject to contractual change. This means that the condition of the contract that "the amount of the rent can be adjusted by the landlord once a quarter" is invalid by law. If the lease agreement is signed by both parties with such an invalid condition, then this does not affect the validity of the agreement as a whole - only such a condition is invalid.

An exception to the rule is the norm of the Federal Law of October 29, 1998 N 164-FZ "On financial lease(leasing)" (as amended and supplemented), which allows changing the amount of leasing payments under a leasing agreement by agreement of the parties within the time limits stipulated by this agreement, but not more than once every three months.

The size of the fee may not be set in a fixed amount, but be determined. According to paragraph 11 of the Review of the practice of resolving disputes related to rent, approved. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 N 66 , the parties may determine the rental rate in an amount equivalent to the amount in foreign currency. Such a determination of the amount of a monetary obligation does not mean that the direct performance of a monetary obligation is carried out in foreign currency. It means the establishment of a calculation mechanism rent payments which aims to eliminate the adverse effects of inflation.

Here is an example from practice:

The tenant is obliged to pay rent only for the premises actually transferred to him under the lease agreement (clause 10 of the Review of the practice of resolving disputes related to rent, approved by the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 N 66).

A lease agreement was entered into between the landlord and the tenant non-residential premises. However, part of the leased premises was not released by the lessor from the property, in connection with which the lessee accepted only free areas under the act. Subsequently, the landlord filed a claim with the arbitration court for the recovery of rent under the lease agreement for non-residential premises and penalties for late payment. Objecting to the claim, the lessee pointed out that since the lessor had not fulfilled the obligation to transfer the property, then, accordingly, he had no obligation to pay the rent.

The Arbitration Court of First Instance granted the claim, stating the following.

In accordance with Articles 606, 611, 614 of the Civil Code of the Russian Federation, the obligation of the lessor in relation to the tenant is to provide the latter with property for use, and the obligation of the tenant is to make payments for the use of this property. Thus, under the lease agreement, there is a counter-performance of obligations. According to paragraph 2 of Article 328 of the Civil Code of the Russian Federation, if the obligated party fails to provide performance of the obligation stipulated by the contract or there are circumstances that clearly indicate that such performance will not be made in fixed time, the party on which the counter performance lies has the right to suspend the performance of its obligation or refuse to perform this obligation. In the event that the performance of the obligation is not made in full, the party on which the counter performance lies has the right to suspend the performance of its obligation or refuse to perform in the part corresponding to the performance not provided.

IN this case the lessor presented for collection the rent debt, calculated from the moment the contract was concluded in accordance with the amount of rent established in the contract. At the same time, the amount of rent specified in the contract is determined based on the rental rate for 1 sq. m. m of leased area. Since the transfer of the premises did not take place at the time of the conclusion of the contract by the parties, the lessor has the right to demand from the tenant the rent from the moment of transfer of the premises only for the actually transferred premises.

Extremely important point lease agreement is a condition that determines the procedure for payment of utility bills.

The composition of utility and other payments, which the parties must distribute among themselves, includes:

• - cost of water supply and sanitation services;
• - the cost of telephone services;
• - the cost of consumed electricity;
• - cost of using part land plot on which the leased object is located, and the adjacent territory;
• - cost of heat supply (gas supply);
• - fee for cleaning the premises;
• - fee for garbage collection;
• - payment for negative impact on environment;
• - some other types of payments.

There are three options for accounting for utility payments as part of the rent:

• - establish a fixed rent, which includes the cost of utility bills. Then the tenant pays the landlord a fixed rent every month in the amount of a specified amount (for example, "12,000 rubles, VAT is not charged");
• - set the amount of rent without taking into account the cost utilities, pointing to the right of the tenant to independently conclude contracts with resource-supplying and service organizations. It should be taken into account that the conclusion of contracts with the relevant organizations will take more than one week, and a written agreement on the contractual relationship with the owner or owner of the property will be required. In practice, it is convenient when contracts for the provision of telephone and Internet services are concluded by the tenant on his own behalf, taking into account the fact that after the termination of the lease, the tenant will be able to remain the owner of the received phone numbers. The tenant shall pay the cost of utilities and other services at his own expense to the relevant organizations in accordance with the agreements concluded with them;
• - establishment of a rent differentiated into two components - a fixed and a variable part (this option is perhaps the most convenient for both parties).

It is convenient when contracts with resource-supplying and service organizations, at least for the main types of utilities, are concluded by the lessor on its own behalf.

The lease payment under the sublease agreement consists of two components:

• - rent in the part of the leased premises in the established amount for the leased area (permanent part);
• - rent in terms of reimbursement of the cost of utilities actually consumed by the tenant (variable part).

The accrual of rent begins from the day the parties sign the act of acceptance and transfer of the premises.

Considering that the landlord is engaged in the provision of public services as part of its statutory activities, the tenant pays him the cost certain types or all utilities as a reimbursement of his expenses under the concluded lease agreement. In particular, Art. 15 of the Federal Law of February 16, 1995 N 15-FZ "On Communications" (as amended and supplemented) states that telephone communications services can only be provided by communications enterprises, as well as communications operators operating on the basis of appropriate licenses.

Payment is made on the basis of invoices issued by the lessor, invoices (if the lessor organization is not on the "simplified" system and works with VAT), as well as acts of services rendered.

The amount of rent in terms of reimbursement for the cost of electricity consumed by the tenant in practice is determined either on the basis of the readings of the electricity meter, separately installed by the tenant (or for the tenant), or on the basis of installed capacity (by taking into account the capacity of all electrical appliances and devices operating in the premises and the approximate duration their work). The meter can also determine the amount of water or gas consumed. The calculation of the cost of heat supply services depends on the total heated area, calculated in cubic meters.

The amount of rent in terms of reimbursement of expenses for telephone communication is issued on the basis of data on the state of the personal account provided by the communication organization.

Tax practice shows that the amount of utility bills allocated by the lessor and paid by the tenant under the lease agreement may not be accepted by the tax authorities as reasonable expenses accepted when calculating income tax. To avoid disagreements with the tax authorities, the cost of utility bills should not be allocated separately, but included in the amount of rent.

Payment for the negative impact on the environment, unless otherwise provided by the lease agreement, must be paid by the tenant engaged in a type of activity that is capable of causing harm to the environment.

It is mandatory to indicate in the lease agreement the distribution of expenses for cleaning and garbage disposal from the leased facility and from the adjacent territory. Routine cleaning and housekeeping (mopping, replacing burnt out light bulbs, repairing faulty sockets, etc.) can be carried out both by the tenant or the lessor, and by a third organization on the basis of a service agreement concluded with one of the parties.

Garbage removal can only be carried out by an organization that has the appropriate license. Most often, such activities are carried out by specialized fleets, the amount of payment for whose services depends on the volume of garbage removed (usually calculated in cubic meters) specified in the customer's application. Bodies of Rostekhnadzor and local administration carry out regular checks organizations for the availability of contracts for the removal of garbage (solid household waste, or MSW). Therefore, the tenant must have clear documentary evidence: either a lease agreement with the condition that the conclusion of agreements for garbage collection is the responsibility of the tenant, or an agreement concluded on its own behalf for the removal of solid waste.

The rent in part of the leased premises (the fixed part of the rent) is usually paid monthly in 100% advance payment no later than the date of the current month for the current month. The variable part of the rent in terms of the cost of utilities may be paid in advance, subject to final settlement after the relevant period. However, it is more convenient when the payment is made by the tenant at the end of the month, after the lessor receives payment documents from the resource supply or service organization.

In paragraph 2 of Art. 614 of the Civil Code of the Russian Federation, it is determined that the rent is established for the leased property as a whole or separately for each of its constituent parts as:

• - payments defined in a fixed amount and made periodically or at a time;
• - the established share of products, fruits or income received as a result of the use of the leased property;
• - certain services provided by the tenant;
• - transfer by the tenant to the lessor of the thing stipulated by the contract in ownership or for rent;
• - laying on the lessee the costs stipulated by the contract for the improvement of the leased property.

Regardless of what type of rent will be chosen by the parties, it must be expressed in monetary terms. For example, a rent clause might be written something like this: "Rent at overall size 400.00 (four hundred) rubles for one sq. m per month, VAT free, paid in the following form:

• - monthly cash payments in terms of rented premises in the amount of 115 rubles. for one sq. m per month, VAT exempt;
• - monthly offset of mutual claims against rent in the amount of 285 rubles. from one sq. m per month, VAT exempt.

The parties may provide in the lease agreement for a combination of these forms of rent or other forms of payment for rent.

The Lessee can transfer money to the Lessor's bank account or pay in cash within the amount established by the Directive of the Central Bank of the Russian Federation. At the moment, the Directive of the Central Bank of the Russian Federation dated June 20, 2007 N 1843-U is in force, which sets a limit of 100 thousand rubles.

As a sanction for late payment of rent, the tenant may be subject to a penalty in the amount set as a percentage of the unpaid amount for each day of delay; restriction of access to the leased object; restrictions on the receipt of utilities at the leased facility. The law also allows the landlord to retain the property belonging to the tenant located in the leased premises in order to ensure that the tenant fulfills its obligations to make payments after the termination of the lease agreement.

Rental holidays can be called a point of contact between the interests of the tenant and the landlord, allowing both parties to benefit from monetary grounds. For the first one, this is a way to save your own resources by fitting the rented premises to your business. For the second - the opportunity to keep the tenant and get at least some money in the face of serious competition in the rental market for residential and non-residential premises.

What are rental holidays and what are they for?

This term can be understood as a certain period of time during which the tenant does not pay rent, or pays some part of it. There is no such thing as “rental holidays” in the legislation, but at the same time, the norms do not prohibit their establishment.

This practice is equally applicable in terms of hiring both residential and non-residential premises. But with the only caveat that in the first case, the agreement is most often concluded orally, while in the second, the main conditions are reflected in the lease agreement or an additional agreement to it.

During the holiday period, the tenant has the right to use the premises. At the same time, he either does not pay rent, or payment is assigned at a discount, which does not apply to utility bills. Holidays are introduced by mutual agreement mainly in two cases:

1. for holding in a rented room cosmetic repairs, redevelopment, re-equipment;
2. to attract customers in order to rent premises for the longest possible time.

There are also other reasons for establishing rental holidays, and all of them must be agreed by the participants. The vacation period ranges from 1 to 6 months, but by mutual agreement it can be longer. It all depends on the type of work carried out, the area and condition of the premises.

The conclusion of a lease agreement, as well as the determination of its conditions, are regulated by Art. 421 of the Civil Code of the Russian Federation, while lease relations- ch. 34 of the Civil Code.

But, despite the freedom of the contract, there are certain nuances that should be taken into account so as not to arouse the suspicion of tax experts. Otherwise, the controllers will organize a check of the fictitiousness of the transaction and the validity of the introduction of benefits, and will also take measures to search for hidden payments.

Features of the rent

The rent in the real estate lease agreement is a key point, defined in paragraph 1 of Art. 654 of the Civil Code of the Russian Federation. At the same time, the tenant of the premises undertakes to regularly pay the rent bill, and the landlord, in turn, has the right to demand timely payments. Without specifying the rental price, the contract is considered not concluded.

Taking into account Art. 421 of the Civil Code of the Russian Federation, participants can independently determine the main conditions of the document being drawn up: the amount of the monthly fee, discounts, and rental holidays. The condition of the vacation should be written especially clearly and unambiguously. Each of its points should not raise doubts among the regulatory authorities. Document content in without fail should indicate:

• what work will be performed during the repair / redevelopment;
• in whose competence is the repair / redevelopment;
• in which room the repair / redevelopment will be carried out;
• how long it will take to carry out the planned work;
• how the rent exemption or reduction will be granted (exact figures needed).

If there is no mention of rental holidays in the tenancy agreement or an additional agreement to it, the tenant will have to pay the landlord the full amount of the rent, regardless of whether he uses the this moment premises or not (FAS decision Northwestern District No. А56-22433/04 dated February 7, 2005).

How to write in a contract

Option 1: Rent reduction

The easiest option is to reduce the rent for the period of finishing work:

Example 1

Clause 2.2. For the period of work on the capital finishing of the leased premises (from June 01, 2017 to September 30, 2017 inclusive), the rent is 75,000 (seventy-five thousand) rubles per month, including VAT.

At the level of the law, there are no restrictions in terms of lowering the cost of rent (clause 1, article 424 of the Civil Code of the Russian Federation, article 105.3 of the Tax Code of the Russian Federation). And, nevertheless, it is also not reasonable to indicate in the contract a symbolic fee for the use of the leased area, since the tax authorities can accept such a transaction as free of charge with all the ensuing consequences.

ATTENTION! All real estate lease agreements concluded for a period of more than one year must be registered with the Rosreestr, otherwise they are considered not concluded and unsuitable for tax purposes. At the same time, judicial practice often shows the opposite.

Option 2: Even distribution of rent for the first year of lease

Based on the annual rent, taking into account vacations, it is calculated monthly rent in a fixed amount for the entire first year of the lease.

Example 2
Clause 2.1. The monthly rent in the first year of the lease is 125,000 (one hundred and twenty five thousand) rubles, including VAT.
Clause 2.2. The amount of rent for the next year and subsequent periods is established by an additional agreement to this agreement.

After the end of the first year of the lease, participants must renegotiate the agreement and attach to it additional agreement, which will indicate a different, higher, amount of rent.

Option 3: Tenant's Renovation Costs Off Rent

For this option, the contract should indicate the obligation of the landlord to reimburse the costs of the tenant current repair leased premises (clause 2, article 614 of the Civil Code of the Russian Federation). At the same time, the contract establishes the full amount of the rent, which the tenant does not actually pay during the current repair period.

Example 3
Clause 2.1. The monthly rent is 150,000 (one hundred and fifty thousand) rubles, including VAT.
Clause 2.2. The Tenant, at his own expense, shall carry out the necessary repair work in the premises to bring it into a condition suitable for its intended use. The landlord reimburses the tenant's expenses for repairs by offsetting them into the rent for the first four months of this agreement. The offset is drawn up by an act of offset signed by both parties.

When concluding a lease agreement, it is strongly recommended not to indicate free use leased premises for the period of the current repair. Such wording will entail an additional tax burden for both parties.

From example 1: in connection with the implementation repair work in the leased premises, the period from June 01, 2017 to September 30, 2017 is recognized by the Parties as tax holidays, during which the Tenant is exempt from rent for the use of the premises.

In this case, the tenant has non-operating income, from which income tax must be paid (Article 250 of the Tax Code of the Russian Federation). The landlord, in turn, will be forced to charge VAT on the amount of actually unreceived rent, which by default will be equated to the cost of renting such premises. Also, for the period of rental holidays, the landlord will not be able to charge depreciation on the said premises.

REFERENCE. Another dubious option for registering a rental vacation is the discrepancy between the date of transfer of the premises for use to the tenant and the date from which the rental payments begin to be credited to the landlord's account. In this case, the controllers can take the first date as the beginning of the period of real use of the premises.

In other words, in order to avoid unnecessary problems with taxes and unnecessary expenses, it is recommended to carefully consider and prescribe the terms of rental holidays so that they cannot be interpreted as free use of real estate.

The principle of freedom of contract allows you to establish a mechanism for determining the amount of rent, convenient for the tenant and the landlord. This can be a fixed amount paid monthly, and an amount that includes reimbursement for the maintenance of the leased facility. In the latter case, the wording of the treaty provision requires special attention.

The procedure, conditions and terms for paying rent are determined by the lease agreement (clause 1 of article 614 of the Civil Code), and in their absence, the procedure, conditions and terms of payment, usually applied when renting similar property under comparable circumstances, are applied. A similar rule is established in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation for the price of the contract: in the absence of it in the text of the agreement, the performance of the contract must be paid at a price that, under comparable circumstances, is usually charged for similar products, works or services.

But when concluding a real estate lease agreement, this rule is not subject to application, since the rent is its essential condition (Article 432 of the Civil Code of the Russian Federation). In the absence of a condition on the amount of rent agreed upon by the parties in writing, the real estate lease agreement is considered not concluded (Article 654 of the Civil Code of the Russian Federation).

The terms of the rent must be formulated in such a way that it is possible to determine exactly when and in what amount the tenant is obliged to make the relevant payments. The contract may establish a fixed amount of the rent or the procedure (mechanism) for its calculation. In the latter case, the condition of the rent will also be considered agreed.

The amount of the rent may be changed by agreement of the parties within the time limits stipulated by the agreement, but not more than once a year, unless otherwise provided by the agreement (clause 3, article 614 of the Civil Code of the Russian Federation). Changing the amount of rent in accordance with stipulated by the contract the mechanism is not a change in the lease agreement, and, therefore, is not subject to the restrictions mentioned above (clause 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 11.01.2002 No. 66, hereinafter - Information Letter No. 66). For example, the condition on the indexation of rent depending on inflation given restriction does not contradict. Although the size of the rent changes, the procedure for calculating it remains unchanged.

It is better to provide for the consequences of the loss of the status of a VAT payer by the lessor in the contract

It is recommended to specify in the lease agreement whether the amount of the rent includes value added tax (VAT). And if it does, then it will also be necessary to determine what part of the said amount is rent, and what - VAT. For example, indicate the current tax rate in order to avoid disputes in the future when the tax rate changes during the period of the contract. It is also recommended to indicate in the agreement that VAT is not charged on the amount of rent if the landlord is not a payer of this tax.

All this must be done, since otherwise the parties may have disagreements regarding the amounts to be paid as rent. The position of the courts on this issue is ambiguous, and as a result, the lessor may receive a rent in the amount less than expected (decree of the Federal Antimonopoly Service of the West Siberian District dated September 17, 2010 in case No. A70-14225 / 2009), and the tenant may be forced to pay VAT in excess the amount of rent (Determination of the Supreme Arbitration Court of the Russian Federation dated February 10, 2010 No. VAS-1414/10 in case No. A51-7727/2009).

It is likely that initially the lessor was a VAT payer and the amount of the rent was agreed in the contract taking into account the tax, but later the obligation to pay this tax ceased. For example, when the lessor switches to the simplified taxation system (clause 2 of article 346.11 of the Tax Code of the Russian Federation) or in the event of a change in ownership of the leased property, if new owner is not a VAT payer. In this regard, it is in the interests of the lessee to include in the contract a condition that in the event of termination of the lessor's obligation to pay VAT, the rent is reduced by the amount of tax. If such a condition is not agreed upon, the court may refuse to satisfy the claim for the return of overpaid rent in the amount of the tax amount (decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated August 05, 2011 in case No. A43-24309 / 2010). At the same time, there is another position when the payment with the amount of VAT included in it is recognized as unjust enrichment of the lessor (decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 15, 2010 in case No. A29-2100 / 2009).

The rent may include fixed and variable parts

The rent cannot be set in the form of payment by the tenant for utilities (electricity, water, heat), fuel and lubricants and other materials consumed when using the leased object. The fact is that with such a payment, the landlord actually does not receive any remuneration from the tenant for the granted right to use the leased object, and this contradicts the compensatory nature of the agreement (clause 12 of Information Letter No. 66).

In order to reimburse the cost of utility services consumed by the tenant, the parties increasingly indicate in the contract that the rent consists of two parts - fixed and variable. The size of the constant part is determined as a fixed value (or a mechanism for calculating it), and the variable part is determined as the cost of utilities consumed by the tenant.

The condition that determines the procedure for paying utility bills is an important clause of the contract. After all, contracts with resource-supplying organizations are concluded by the landlord and invoices are issued in his name, and the tenant will have an obligation to reimburse such expenses, if this is provided for in the agreement. The composition of utility and other payments includes the cost of water supply and sanitation services, telephone communications, consumed electricity, heat supply (gas supply), as well as fees for cleaning premises, garbage collection, etc.

Accounting for utility payments as part of the rent is possible in several ways. First, you can set a fixed rent, which already includes the cost of such payments. Then the tenant pays a fixed rent every month. Secondly, it is permissible to determine the amount of rent without taking into account the cost of utilities, indicating the right of the tenant to independently conclude agreements with resource-supplying and service organizations. It should be taken into account that the conclusion of such agreements will entail the emergence of additional obligations for the tenant to such organizations. And, thirdly, the parties have the right to establish a rent consisting of a fixed and a variable part.

In the latter case, the rent consists of the payment for the leased premises in the prescribed amount (fixed part) and the rent for reimbursement of the cost of utilities actually consumed by the tenant (variable part).

It is better to fix the size of the variable part of the rent for each month separately

In practice, the amount of rent in terms of reimbursement of the cost of electricity consumed by the tenant is determined either on the basis of the readings of the electricity meter, separately installed for the tenant, or on the basis of installed capacity by taking into account the capacity of all electrical appliances operating in the premises and the approximate duration of their operation. The amount of water or gas consumed can also be determined by the meter. The calculation of the cost of heat supply services depends on the total heated area, calculated in cubic meters. Reimbursement of expenses for telephone communication is made on the basis of data on the state of the personal account provided by the communication organization.

To recognize a fixed part of the rent as an expense, it is enough for the tenant to have only the lease agreement itself, in which it is defined. In order to recognize the variable part in expenses, a separate primary document is required, which will reflect the cost of the utilities consumed by the tenant with a breakdown by type of service and with links to the relevant documents and the amount of the variable part of the rent calculated in accordance with the lease for the month.

What is the original document? At the conclusion of the contract, the parties to the lease agreement agree on this issue independently in relation to a specific situation. This can be a bilateral act, and a reference-calculation of the lessor's accounting department. The main thing is that the document used contains all the required details listed in Art. 9 of the Federal Law of 06.12.2011 No. 402-FZ “On Accounting” (clause 1 of the letter of the Federal Tax Service of Russia of 04.02.2010 No. ШС-22-3 / 86@).

If, in accordance with the agreement, the rent (or part of it) is a variable value, then in order to recognize this amount as an expense, the tenant must receive a primary document from the landlord on a monthly basis, since the amount of rent varies from month to month. And when determining in the lease agreement in a constant (fixed) amount monthly acts, confirming the amount of the fee, are not needed, since the amount of the rent does not change.

It is worth remembering that it may be difficult to compile primary documentation, since the landlord is not a utility service provider to the tenant, but actually acts as the tenant's "agent" for transferring payments for services provided by resource supply organizations. For the landlord, these payments are not income, but serve as compensation for expenses.

When renting property for temporary possession and use, the lessor pursues the main goal in the form of receiving rent. Therefore, the condition of rent is most significant for the landlord.

Strictly speaking, the issues of establishing and changing the rent under a lease agreement vehicle(hereinafter - TS) with a crew are regulated general provisions on the lease agreement (paragraph 1 of Chapter 34 of the Civil Code of the Russian Federation). However, under a vehicle lease agreement with a crew, the lessor not only transfers the property for temporary use, but also actually provides (through its employees) services for managing this vehicle. In this regard, in practice, three features can be distinguished regarding settlements under such an agreement:

• firstly, the parties often provide in the contract that the amount of rent depends on the mode of use of the vehicle - in particular, the contract may provide for an increased amount of rent for excess operation;

• secondly, when concluding an agreement, it is worth paying Special attention on how the responsibilities for bearing the costs of paying for the services of crew members and the costs of commercial exploitation vehicle;

• thirdly, you need to make sure that the contract specifies Additional services, which the lessor is obliged to provide (for example, delivery or dismantling of special equipment), and the size additional fee for these services.

In addition, since rent is a source of income for the landlord, he is interested in increasing the amount of this income if possible. Therefore, the question is of particular relevance: in what cases the amount of rent established in the contract can be changed (increased).

Ways to determine the amount of rent

The rent under a crewed vehicle rental agreement can be set in two different ways.

1. The amount of the rent is set in a fixed amount of money.

In this case, the exact amount of money to be transferred by the tenant to the landlord is determined within the time limits established by the agreement.

An example of a fixed cash rental agreement clause

“The Tenant monthly, no later than the 5th day of the current (paid) month, transfers the rent in the amount of 10,000 rubles to the settlement account of the Landlord. (ten thousand rubles), including VAT.

2. The amount of rent is determined using the procedure (mechanism) for calculating it fixed in the contract.

In this case, the rent is set using various formulas, coefficients, tariff rates or other data that is a mechanism for determining the amount of rent. In particular, the fee for renting a vehicle can be set depending on changes in the foreign exchange rate, the number of hours of operation of the vehicle, the mode of operation, and even the cost of services that the lessee provides to third parties using this vehicle.

An example of the terms of an agreement on the procedure for calculating rent depending on changes in the exchange rate of foreign currency

“The Lessee monthly, no later than the 5th day of the current (paid) month, transfers to the Lessor’s settlement account a rent in the amount of 1,000 USD (one thousand US dollars) in rubles at the exchange rate of the Central Bank of the Russian Federation on the date of payment, including VAT.”

An example of a contract clause on the procedure for calculating rent depending on the cost of services provided to third parties

“The Lessee monthly, no later than the 5th day of the month following the paid one, transfers to the Lessor’s current account a rent in the amount of 70 percent of the cost of passenger tickets sold in the previous month for travel to motor vehicle, including VAT".

An example of a contract clause on the procedure for calculating the rent by determining the cost of the actual use of the vehicle

“The rent for the use of the vehicle is set at 1000 rubles. for 1 hour of actual use, including VAT.

It makes sense for the lessor to provide in the contract for an increased cost of using the vehicle for cases of operation in excess of the established standards. This is because the lessor's employees providing management and technical operation vehicle cannot provide them continuously. And services in excess of the established standards (which, of course, must also be indicated in the contract) are paid in larger size. This value is also referred to as excess value.

Example of a contract clause for excess rent for the use of a vehicle with a crew

“The rent for the use of the vehicle is set at 1000 rubles. for 1 hour, including VAT. The cost of excess operation of the vehicle is 2000 rubles. at one o'clock".

If the parties have entered into a vehicle rental agreement with a crew, in which the rental fee is set per unit of time, then the amount of the rental fee will be payable for the time of actual use of the vehicle. If it could not be used by the tenant due to the fault of the landlord, then in this case the rent is not subject to recovery.

Example from practice: the court of cassation confirmed the correctness of the calculation of the rent based on the time actually worked by the vehicle

The plaintiff (lessor) filed a claim with the defendant (tenant) for the recovery of rent for the use of the vehicle with the provision of management and operation services, as well as interest for the use of other people's money.

The court of first instance satisfied the claim in part, recovering the rent only for the time of actual use of the vehicle.

The Court of Appeal upheld the decision.

The plaintiff filed a complaint with the court of cassation, in which he asked to cancel the contested judicial acts and adopt a new judicial act to satisfy the claims in full. According to the applicant, the conclusions of the courts that the rent for the use of equipment should be paid by the tenant based on the time actually worked on this equipment, as well as the proof of the fact that the equipment was not ready for work, were unfounded. According to the plaintiff, the defendant is obliged to pay rent for the entire time the equipment is at his disposal, and not only for the time of actual operation of the vehicles.

The Court of Cassation stated as follows.

The courts found that one of the vehicles ( tower crane) was not actually used by the defendant, since it was not provided with a supply cable and a crew, and an electrical cabinet was not installed to connect the cable to it. Therefore, the claim for the recovery of rent in respect of this vehicle is not subject to satisfaction.

The rent for the other vehicle was charged based on the number of hours worked by the equipment. The calculation of the rent based on the actual hours worked corresponds to the goals of the vehicle rental agreement with the crew - such a goal is the operation of the equipment.

Based on the foregoing, the court of cassation left the contested judicial acts unchanged, and the cassation appeal - without satisfaction (decree of the Federal Antimonopoly Service of the West Siberian District of December 7, 2010 in case No. A70-3501 / 2010).

Ways to increase and index rent

The parties may at any time change the amount of the rent by entering into an additional agreement to the lease agreement. However, the tenant may not agree to the landlord's proposal to conclude such an agreement.

Therefore, it makes sense to include in the text of the contract conditions in advance, thanks to which the lease will remain beneficial for the landlord. This can be done in several ways.

First, to set the rent not in a fixed amount, but in the form of a formula (depending on the level of inflation, foreign exchange rate, etc.). In this case, the amount received by the landlord will change automatically (for example, indexed to inflation). The advantage is that from a formal point of view, the terms of the agreement on the procedure for calculating the rent will remain unchanged. This means that it will not be subject to restrictions on changing the amount of rent.

Secondly, to provide in the contract that from such and such a date (or under such and such conditions) the landlord may increase the amount of rent in unilaterally without the tenant's consent.

An example of a contract clause on the possibility of unilateral rent increase

“The landlord has the right to unilaterally change the amount of rent no more than once a year without going to court by notifying the tenant in writing no later than 30 (thirty) calendar days in advance.”

In this case, it is necessary to use the most clear and detailed wording, in particular, to prescribe the following in the contract.

1. In what cases is such a change in the rent possible (for example, one year after the conclusion of the contract with an annual inflation rate of 7% or more).

2. The procedure for the lessor to exercise the right to increase the rent (for example, the lessor sends a notice to the tenant, which contains information about the increase in rent and in what amount).

3. The procedure for notifying the tenant about this (for example, by mail by registered mail with acknowledgment of receipt or personally to the tenant's employee against signature at the tenant's office).

4. From what moment the condition of the rent will be considered changed (for example, after a month after the receipt of the notice by the tenant).

If this is not done, the court, in the event of a dispute, may decide that the parties have not provided for the right to change the size unilaterally, but only the opportunity to conclude an agreement on changing this size in the future.

Advice: The tenant may not agree to the inclusion of such a clause in the lease agreement, since it is clearly not in the interests of the tenant. IN similar cases you can recommend the lessor to offer its counterparty more soft version conditions for an increase in the cost of rent. For example, a clause of the agreement on the possibility of unilaterally increasing the rent by the landlord can be supplemented with the condition that the amount of the rent can be changed by no more than a certain amount as a percentage: "...but not more than 5%". In this case, the chances of concluding an agreement with the counterparty will be significantly higher, since the relationship between the parties will become more certain.

Thirdly, prescribe in the contract that from such and such a date the rent increases by so much without any notice from the landlord to the tenant.

Example of an agreement clause for an "automatic" rent increase without any notice from the landlord to the tenant

“During the first year after the conclusion of this Agreement, the rent is set at 50,000 rubles. At the end of the first calendar year of the Agreement, the amount of the rent increases to 70,000 rubles.

Condition on the right to terminate the contract due to late payment of rent

If the tenant does not pay the rent more than twice in a row within the period specified in the contract (the expression "more than two times in a row" actually means at least three times), the landlord has the right to demand early termination of the lease agreement in judicial order(part 3 of article 619 of the Civil Code of the Russian Federation).

The landlord can further protect his interests if he convinces the tenant to include in the lease a condition that the landlord can demand termination of the agreement even if the rent is late on a single payment. The Supreme Arbitration Court of the Russian Federation confirmed that such conditions do not contradict the law (paragraph 26 of the information letter No. 66).

It is recommended that the lease agreement specify the term for making lease payments. If the parties have stipulated not a one-time, but periodic payment of the rent, the period must be agreed for each rental period. There are the following payment terms:

- advance payment - the rent is paid before the start or at the beginning of the term (period) of the lease;

— deferment — the rent is paid at the end or after the end of the term (period) of the lease;

- advance payment and additional payment (final settlement) - part of the rent is paid before the start of the lease term (period), and part after it ends.

The term of payment must be determined according to the rules of Art. Art. 190 - 194 of the Civil Code of the Russian Federation:

- an indication of a specific calendar date or event that must inevitably occur;

- the expiration of a certain period of time, calculated from a calendar date or from the moment of an inevitable event.

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Condition statement examples:

"The rent is paid by the tenant no later than 10.10.2010."

"The tenant undertakes to proceed with the payment of the rent by providing services on the next day after the acceptance of the object."

“Rent payment is made in the following terms:

— within 3 (three) days after signing the contract — 40% of the rent;

- within 5 (five) days after signing the contract - 60% of the rent.

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Determining the term for making lease payments by regulatory legal acts

Terms for making lease payments for the use of certain leased objects may be established by a normative act. When agreeing on a lease agreement for such objects, the parties must be guided by the current acts containing the rules civil law. A contract term that is contrary to a normative act may be declared invalid by a court on the basis of Art. 168 of the Civil Code of the Russian Federation. However, this circumstance does not invalidate the entire contract (Article 180 of the Civil Code of the Russian Federation). Therefore, the rules established by legal acts (clause 4, article 421, article 422 of the Civil Code of the Russian Federation) apply to the relations of the parties in terms of the timing of the payment of rent.

Based on paragraph 1 of Art. 168 of the Civil Code of the Russian Federation, the contract in the relevant part will be general rule voidable, if the law has no other consequences not related to its invalidity. The law may establish exceptions to the rule of voidability. In particular, by virtue of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation, the condition is void if it infringes on public interests or the rights and legally protected interests of third parties, and at the same time, the law does not indicate that it is rebuttable or other consequences not related to invalidity should apply.

These rules apply to contracts concluded after September 1, 2013 (Part 6, Article 3 of Federal Law No. 100-FZ of May 7, 2013).

For lease agreements entered into before this date, Art. 168 of the Civil Code of the Russian Federation as amended before the entry into force of the Federal Law of 07.05.2013 N 100-FZ. According to this article, transactions that violate the requirements of a law or other legal act are, as a general rule, void.

It should be borne in mind that acts containing civil law norms do not include, in particular, regulatory legal acts of state authorities of the constituent entities of the Russian Federation and local governments (Article 3 of the Civil Code of the Russian Federation). In this regard, even if the lease agreement or its conditions contradict them, the court does not recognize such an agreement (condition) as invalid on the basis of Art. 168 of the Civil Code of the Russian Federation.

However, in judicial practice there was an opposite position: the contract was qualified by the court as invalid.

Determination of the term for making lease payments, depending on the issuance of an invoice by the lessor

Often in the contract, the term for making the rent is determined depending on the issuance of an invoice by the lessor. This is done in order to ensure that the tenant receives an invoice, since without such a document he will not be able to accept the paid VAT for deduction. For example, the parties stipulate that the payment of rent is made within a certain period after the invoice is issued, or indicate that it is carried out on the basis of the invoice and agree on the date of its issuance.

However, with regard to the term of payment, such a condition may be found to be contrary to Art. 190 of the Civil Code of the Russian Federation (Resolution of the Eighteenth Arbitration Court of Appeal dated September 29, 2011 N 18AP-9425/2011). This conclusion is consistent with the legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in paragraph 4 of the Information Letter dated January 11, 2002 N 66 "Review of the practice of resolving disputes related to rent" in relation to the expiration date of the contract. It lies in the fact that the term can be determined by indicating only such an event that must inevitably occur, i.e. does not depend on the will and actions of the parties. Issuing an invoice by the landlord does not meet these criteria. Therefore, you should not determine the payment period depending on the invoice issued by the lessor. Otherwise, it can be calculated according to the rules of paragraph 2 of Art. 314, para. 2 p. 1 art. 614 of the Civil Code of the Russian Federation.

In addition, when agreeing on the condition under consideration, the tenant must take into account judicial practice, according to which he is not released from liability for late payment of lease payments if the landlord has not issued an invoice, since the obligation to pay rent does not depend on its issuance. Based on the provisions of Art. Art. 606, 614 of the Civil Code of the Russian Federation, this obligation is due to the very fact of using the leased property.

At the same time, there is another position: the tenant is released from liability for late payment of rent if the landlord has not issued an invoice.

Thus, due to the risk of the tenant being late in fulfilling the obligation to pay the rent, which will entail the collection of penalties from him, it is not recommended to agree in the contract the condition for determining the term for making lease payments depending on the issuance of the invoice. It can be ensured by the lessor in other ways, for example, by including a penalty clause in the contract.

If the rent payment date is not agreed

In this case, the payment term usually applied when renting similar property under comparable circumstances is considered to be established (clause 1, article 614 of the Civil Code of the Russian Federation). In the event of a dispute, "terms normally applicable to leases of similar property under comparable circumstances" shall be determined on a case-by-case basis.

However, the court may apply to the relations of the parties the rules of paragraph 2 of Art. 314 of the Civil Code of the Russian Federation on the fulfillment of an obligation within a reasonable time after its occurrence. In this case, the tenant will be obliged not only to pay the rent, but also to pay a penalty for the delay period, calculated taking into account Art. 314 of the Civil Code of the Russian Federation.