Where can I sign a rental agreement for residential premises? Instructions: how to properly rent out an apartment, sample rental agreement, termination, tax. Is it taxable?

Everyone has signed an apartment rental agreement at least once in their life. Nowadays, more and more people live in rented apartments before buying a home. Because of this, a large number of scammers appear, so the parties have become more interested in drawing up a lease agreement.

Parties to the agreement

If you look at the situation strictly, then the apartment rental agreement must be drawn up by everyone who rents or rents it. Even if a party rents out an apartment free of charge to their relatives, friends or acquaintances, it is worth thinking about drawing up a free rental agreement. With the help of such a document, the landlord will be able to control who should pay for utilities and how responsibilities for the apartment are distributed.

If a tenant rents a property and pays rent, then it is even more worth thinking about drawing up a lease deed. The lease deed specifies the cost and terms of the rent. The Civil Code of the Russian Federation states that without a correctly drawn up contract, the party filing the claim will not be able to win the case. And it states that a lease document must be drawn up if a transaction is drawn up between legal entities and individuals and if a transaction is concluded between the parties for an amount exceeding 10,000 rubles.

Between individuals

The apartment owner should check the tenants’ passports and make photocopies of them. The landlord should also be aware that he cannot expel tenants without reason before the end of the term. An unjustified eviction is a reason for a tenant to file a lawsuit. To avoid unpleasant consequences, the apartment needs to be checked by Rosreestr to understand how many people are registered in it and who owns it. Before moving in, it is better for the tenant to check previous receipts for payment of utility bills. When transferring the advance payment to the owner, you must require a receipt.

In general, an apartment rental agreement between individuals is drawn up as indicated above in the article.

The only difference is that the personal data of the parties is indicated:

Full name, place and date of birth;
Full details of your passport or other identification document;
Permanent registration address and actual place of residence.

A housing rental agreement between individuals does not have to be certified by a notary, but for the complete formality of the document it is worth doing so.

Between an individual and a legal entity

If a legal entity rents housing from an individual, then a rental act must be drawn up. Legal entities have the right to use residential premises only for citizens to live in them. If this rule is violated, the Housing Code comes into force, according to which the use of residential premises for purposes other than those intended is prohibited.

The most common question is, is it possible to draw up an apartment lease agreement between an individual and a legal entity so as to open an office there? An office is a premises of an organization, company or entrepreneur in which business activities are carried out. In connection with the Housing Code of the Russian Federation, as stated above, an office can only be located in non-residential premises. Therefore, if a legal entity rents an apartment for an office, then, with the consent of the owner, it is necessary to transfer it to the category of non-residential premises.

With deposit

When a tenant signs a rental agreement, the landlord takes certain risks. It is impossible to guess what the tenants will be like. To prevent damage to property owned by the lessee, a deposit is requested that will cover the costs of restoring the damaged property if the violation was caused by the tenant.

Information about the deposit can be written in the lease document itself, or in an additional agreement attached to the main papers. The amount of the deposit is negotiated between the parties, usually it ranges from 50% to 100% of the monthly rent. If the tenant does not pay the monthly amount, the deposit is automatically paid towards the debt. An apartment rental agreement with a deposit is drawn up in the same way as a regular lease, but it describes the amount of the deposit and what it will be paid for in cases of violation.

With furniture and household appliances

If the apartment that the tenants are going to rent has furniture and household appliances, then in addition to the main lease agreement, an agreement is drawn up. The act of acceptance and transfer of property describes in detail all household appliances, furniture, and plumbing fixtures that are in the apartment.

During the acceptance of housing, the tenant must check all the furniture and equipment in the apartment and compare it with its description in the acceptance certificate. The document must indicate all defects, damage and malfunctions. When signing a rental agreement for an apartment with furniture and household appliances, the tenant assumes financial responsibility for the owner’s property.

With subsequent redemption

According to the Civil Code of the Russian Federation, if a tenant wants to buy an apartment from the owner, this is indicated in the contract. The parties may indicate that the housing, upon expiration of the contract term, becomes the property of the tenant, or the tenant can purchase the apartment for a certain amount before the end of the lease term.

At the same time, it is important to know that the wording of an apartment rental agreement with subsequent purchase should not be interpreted in two ways, but should be as accurate and detailed as possible. It is necessary to describe in detail what will happen to the property located on the premises when the tenant purchases the property. It is also worth considering the purchase price, whether it will combine the rent paid for the time lived or whether it will be a completely different amount. All this is discussed by the parties and included in the lease deed.

Additional documents

After concluding an agreement, it must be registered with the executive committee or the Housing Office. The document must be registered before the housing actually goes into the use of the tenant. But before registration, the deed must be drawn up and concluded.

List of documents required to draw up an apartment rental agreement:

Papers confirming the rights of the apartment owner to the property and his passport;
If available - house book;
Written consent of all citizens and homeowners registered in the apartment;
A written rental agreement.

After drawing up, processing and registering documents, you need to register as a taxpayer.

List of documents for registration:

Owner's passport;
Copies of the lease agreement in triplicate;
Technical passport for housing;
If necessary, the consent of all family members living in the apartment;
An extract from the housing department about all citizens registered in the apartment.

You should make copies of documents and provide the authorities with copies, not originals.

Validity and payment

The terms of payment under a real estate lease agreement are specified in detail in the document itself, including monthly payment, terms of monthly payment, actions in the event of a fine or debt, and payment procedure. If the living conditions in the rented apartment have deteriorated for reasons beyond the control of the tenant, then he has the right to demand from the landlord a reduction in rent.

Lease terms vary from short-term (up to 1 year) to long-term (from 1 to 5 years). A long-term contract is required for state registration.

Differences in the validity period of an apartment rental agreement:

The employer does not have the right to accommodate temporary or permanent citizens under a short-term contract;
The tenant will not be able to sublet the apartment under a short-term contract;
The tenant will not have the benefit of extending the lease term on a short-term lease.

These differences only apply if there are no clauses about them in the rental document.

Registration

If the apartment lease agreement is concluded for a period of more than one year or if one of the parties is a legal entity, then state registration of the act is required.

List of documents required for registration of an apartment rental agreement:

Lease agreement with three copies;
All documents establishing the rights to the property of the apartment owner;
All BTI documents;
Passport of an individual or constituent documents of a legal entity (tenant);
Passport or constituent documents (lessor);
Consent of other apartment owners;
Notarization;
Receipts for payment of state duty.

Documents are registered with the district executive committee or the Housing and Maintenance Service.

Is it taxable?

Renting out an apartment and refusing to pay taxes to the state is considered a violation of the law. Tax evasion when renting out real estate leads to criminal liability under the Criminal Code of the Russian Federation. This means that the owner may be punished with a fine in the amount of 100 to 300 thousand rubles.

To comply with the law, after completing a lease agreement, the landlord must apply for registration as a taxpayer and bring all the necessary documents specified in the article above. Personal income tax is 13% of the monthly amount. If the renter is an individual entrepreneur, then the tax is 6% of the monthly payment amount.

Termination procedure

If the lessor changes or the owner dies, when the property passes to his heir, the lease does not change, only the owner changes. If a tenant wants to terminate the contract early, by law he must notify the landlord 3 months before leaving the apartment.

Grounds for early termination of an apartment rental agreement:

The tenant caused damage to the property or apartment of the owner;
Debt in payment or refusal to pay more than two times in a row;
Violation of the terms of the contract by one of the parties;
If the contract specifies the person who undertakes to make the repairs and the timing of the repairs, if this condition is not met, the contract may be terminated;
The living conditions in the apartment turned out to be different from what was described to the tenant;
The tenant was not given the keys to the property within the specified period.

Other conditions for terminating the apartment lease deed may be used if specified during the preparation and execution of the document.

When renting or renting out an apartment daily or for a long term, it is necessary to conclude an appropriate agreement.

This - at first glance - formality protects the rights of the parties to the transaction, and in the future it may become a decisive document in the event of a conflict situation.

An apartment rental agreement is an agreement under which the owner provides the other party with an apartment for a certain fee for a limited period of possession and use. Usually the document is drawn up in two copies, one of which is kept by the lessor, the other by the tenant. Who needs this?

Some owners who rent out apartments by the day without intermediaries do not enter into contracts. For some reason, they believe that a real rental document can only be drawn up at a real estate agency, always with beautiful seals and logos. In fact, an apartment rental agreement concluded between two individuals is also an official document and has the same legal force as an agreement concluded through the mediation of real estate firms.

An apartment rental agreement between the owner and the tenant is drawn up in simple written form and does not require notarization, but the parties can do this if they wish. If an apartment is rented only on the basis of oral agreements, then problems may soon arise for both parties. The tenant will not have the opportunity to register his place of temporary residence with the internal affairs bodies, there will be no evidence of the legality of his stay in the rented apartment, and the owner may “forget” that he rented the apartment to this particular person and evict him. In turn, the landlord who neglected the formalities also risks losing money. There is a possibility that the tenant will damage (take out) the property from the rented apartment, flood the neighbors, invite numerous “poor relatives” to live, sublet the apartment, etc. So drawing up an apartment rental agreement is necessary for both the landlord and the tenant. employer.

Main points of the contract

So, when drawing up and signing an apartment rental agreement, pay special attention to the following points:

- subject of the agreement;
- address of the apartment/room, its dimensions;
- details of the parties (last names, first names, patronymics, passport details, registration at place of residence);
- a link to a document confirming the right (ownership or lease) of the lessor to the rented living space;
- information about residents who have received the right to reside in the rented premises: about the tenant and members of his family or other persons;
- the amount and procedure for paying rent;
- responsibility of the parties;
- deadline for renting out the apartment and procedure for extending the lease agreement; date of signing the document.

In addition, an integral part of the apartment rental agreement is the apartment acceptance certificate, as well as an inventory of the property located in the apartment. Both parties are interested in compiling the inventory. The owner receives a guarantee that he will be reimbursed for damage to material assets. And the tenant insures himself against unfounded claims. In the document, it is best to indicate the rental rate in currency ($, euro), with the addition of the phrase “at the rate of the Central Bank of Russia on the day of payment.” Otherwise, the payment amount will “float” depending on currency quotes.

Another important point is who will receive the payment. Usually this is the owner of the apartment. If the apartment is owned by several persons, then the contract must indicate to whom the tenant can transfer the money. There are known cases when, after the expiration of the lease agreement, apartment owners received bills for large sums for telephone conversations.

In this case, it is difficult to find former tenants and force them to compensate for losses. Therefore, it is necessary to take a deposit from the tenant in advance for using the phone (and indicate this in the contract!), and then return the money, making sure that there is no debt. The paragraph “Responsibility of the Parties” deserves special attention, where responsibilities that are especially important for both parties are prescribed. The tenant must guarantee the safety of the apartment, timely payment of rent, and upon expiration of the apartment lease, vacate the premises and return the property intact. In addition, without the consent of the owner, the tenant has no right to sublet the housing and carry out redevelopment.

For his part, the owner must promptly provide the apartment to the tenant in a condition suitable for habitation. And for an unplanned early eviction, the landlord will be required to pay a fine to the tenant in the amount of one or two monthly payments.

Lease and rental agreements for residential premises
AGREEMENT OPTION No. 1

AGREEMENT No._

rental of residential premises

Gr.__________________________________________ hereinafter referred to as LESSOR, on the one hand and

Gr.__________________________________________ hereinafter referred to as the TENANT, on the other hand, have entered into this agreement as follows:

1. THE SUBJECT OF THE AGREEMENT.

The LESSOR transfers to the TENANT for use for a period of ______________ residential premises with a total area of ________sq. m.. consisting of________rooms_________________________________located at:

"19 ______. St. Petersburg.________________________________________________,

house.________building.._____________. sq.________. owned by the LESSOR on the basis of:

and the TENANT agrees to pay the established rent.

2. RIGHTS AND OBLIGATIONS OF THE LESSOR.

2.1. Provide the TENANT for use with the specified residential premises, suitable for living, no later than _________________ days from the date of signing the agreement

2.2. Provide the TENANT for use with his property located in this residential premises in a condition consistent with its purpose and the terms of the agreement.

2.3. Responsible for and at his own expense eliminating deficiencies in the leased property that impede its use, even if he was not aware of these deficiencies at the time of concluding the contract.

2.4. Do not exchange, sell or perform other actions leading to a change in the owner of this residential premises during the validity of the contract.

2.5. Agree on the rental of living space specified in clause 1 of this agreement with the person or persons who have the right to use this premises, ensure their written consent to the lease and present it to the TENANT.

2.6. The LESSOR has the right to periodically inspect this premises (the inspection time is set by prior agreement of the parties), but no more than once a month, and also to be in the premises without the consent of the TENANT to eliminate accidents that occurred in the absence of the TENANT, in order to avoid causing damage to the above premises and premises located nearby.

3. RIGHTS AND OBLIGATIONS OF THE TENANT.

3.1. Use the specified premises, maintaining engineering and other equipment, including furniture, in good condition, ensuring their safety.

3.2. Pay rent for this residential premises within the time limits specified in clause 4.3.

3.3. Pay for long-distance and international telephone calls on time.

3.4. Individual improvements made by the TENANT to the rental property are his property. In the event that the TENANT has made inseparable improvements at his own expense and the prior consent of the LESSOR, without harm to the premises, he has the right to compensation, predetermined by agreement of the parties, for the cost of the improvements made, unless otherwise provided by the contract. The cost of inseparable improvements made by the TENANT without the consent of the LANDLORD is not subject to reimbursement.

3.5. The TENANT is obliged to compensate for material damage caused to property or premises due to his own fault or negligence, or the fault or negligence of persons living with him or guests.

3.6. The TENANT has no right to sublease this premises unless this is stipulated in a special agreement with the LESSOR.

3.7. Upon expiration of the contract, hand over the rented premises to the LESSOR, making full payment and vacate it no later than _______ days from the date of termination of the contract.

4. PAYMENT PROCEDURE.

4.1. The TENANT pays rent in the amount equivalent to ________________ US dollars per month.

4.2. As an advance, the TENANT pays rent for _____________________month in the amount equivalent to ________________________________US dollars. The advance payment is made simultaneously with the signing of the Agreement.

4.3. The rent is paid by the TENANT within the terms specified below.

Paid (from - to)
Sum
Signature
Paid (from - to)
Sum
Signature

4.4. The LESSOR has no right to change the amount of rent during the term of the agreement without the consent of the TENANT.

4.5. All amounts specified in the agreement in US dollars are converted into rubles on the day of payment at the exchange rate of the Central Bank of Russia.

4.6. Payment for utilities is made at the expense of ________________________________________________

5. PROCEDURE FOR VALIDITY, CHANGES AND TERMINATION OF THE AGREEMENT.

5.1. This agreement comes into force from the moment of signing. The contract period is from "__"________" ____ to "____"_______________"________. The agreement is drawn up and signed in 2 original copies, which are in the hands of the parties.

5.2. The TENANT, who has properly fulfilled his obligations under the contract, has a priority right over other persons to renew the term, by agreement of the parties, or in the event of early termination by one of the parties.

5.3. In case of violation by the LESSOR of clause 1. or refusal to rent out the living space after signing this agreement, the LESSOR pays the TENANT the rent he receives in full and a fine in the amount of:______monthly rent..

5.4. In the event of early termination of the contract at the initiative of the LESSOR without violation of the terms of the agreement by the TENANT, the first pays the rent received in full minus the amount for the actual rental of living space and a fine in the amount of____________ monthly payment.

5.5. In case of violation by the LESSOR of clause 2.4. The LANDLORD pays the TENANT the rent he received in full, minus the amount for the actual rental of living space and a fine in the amount of ________monthly rent.

5.6. The TENANT, if the terms of this agreement are not observed on his part or in the event of early termination of the agreement through his fault, pays the LESSOR a fine in the amount of ____________________monthly rent. In this case, the amount received by the LESSOR as rent is returned to the TENANT in full minus the amount calculated for the actual rental of the premises.

5.7. The Agency does not undertake any obligation to resolve disputes between the parties. Disputes under the contract are resolved by the parties through mutual negotiations, and if no agreement is reached, in an arbitration or people's court, where, if necessary, the agency can be invited as a witness.

6. OTHER CONDITIONS.

6.1. There is a telephone No. installed in the rented premises (separate, with a blocker).

6.2. Issues not covered in the contract are resolved in accordance with the current legislation of the Russian Federation.

6.3. The LESSOR, if necessary, appoints ________________________________

responsible for the implementation of this agreement.

6.4 The following persons will live in this premises together with the TENANT:_________________________________

6.5. Special conditions:

7. DETAILS AND SIGNATURES OF THE PARTIES.

LESSOR

Passport series issued __

Passport serial number

registered_

TENANT

Passport series issued __

Passport serial number

registered_

tel. home/sl. ____________________

The parties are familiar with the rules for the use of residential premises, maintenance of a residential building and local area in the Russian Federation. The parties have read the agreement and fully agree with its contents.

LESSOR____________________

TENANT____________________

“_____”____________________200 g.

In connection with the latest innovations in the Sakharovo International Medical Center (the need to provide an agreement in order to receive a coupon and apply for a temporary residence permit), it would not be amiss to discuss this very agreement.

If you don’t want to discuss, but want to immediately download the form, go to the end of the article.

As stated on the MMC website:Pre-registration for submitting documents to obtain a temporary residence permit is carried out upon presentation of an identity document and a document confirming the right of a foreign citizen to use residential premises located in the city of Moscow.

A document confirming the right of a foreign citizen to use residential premises, in accordance with Art. 15 of the Federal Law of July 18, 2006 No. 109-FZ “On migration registration of foreign citizens and stateless persons in the Russian Federation”, Part 2 of Art. 30, Art. 76, 77 Housing Code of the Russian Federation, Art. 671, 685 of the Civil Code of the Russian Federation is:

For the owner of the residential premises:

Certificate of state registration of ownership of residential premises (part of the premises, shares).
Extract from the Unified State Register of Real Estate.
A purchase and sale agreement or a gift agreement concluded before March 1, 2013 and registered with Rosreestr.

Everything is clear here. If you have your own apartment, then bring proof of ownership of this apartment. We are more interested in the second part:

For the residential user:

Lease/sublease agreement (lease/sublease) of residential premises.
Agreement for gratuitous use (loan) of residential premises.

Those who do not have their own apartment bring an agreement confirming their right to live in someone else’s apartment. The contract can be “compensated” or “gratuitous”. The difference is that in the “compensation agreement” (officially it is called rental agreement) money appears, the owner of the apartment who rents it out is obliged to pay tax on this money. And in free use agreement money does not appear, it is understood that the owner lets the person live in his apartment for free.

*This agreement is often used to avoid paying taxes (payment is agreed upon orally and is not specified in the agreement). According to the law, this cannot be done.

Tenancy agreement and rental agreement

Popularly, a tenancy agreement is often called a lease agreement. But in fact, if housing is rented to a citizen ( to an individual ), then it is namely the rental agreement living space. In such an agreement, the owner renting out housing is called a landlord, and the citizen renting housing is called a tenant (Clause 1, Article 671 of the Civil Code of the Russian Federation). But if he wants to rent a house entity (organization) is lease contract. The organization will not be able to obtain residential premises for temporary possession and (or) use under a lease agreement. (Clause 2 of Article 671 of the Civil Code of the Russian Federation).

In the lease agreement, the parties are referred to as the lessor and the lessee, respectively (Article 606 of the Civil Code of the Russian Federation). Please note that the tenant organization can only use the housing for citizens. For example, an organization can rent an apartment for a nonresident employee to live in.

Form and state registration of the agreement

Both for a rental agreement for residential premises and for a rental agreement, a written form is required (clause 1 of Article 609, clause 1 of Article 674 of the Civil Code of the Russian Federation).

At the same time, residential rental agreements concluded for a period of one year or more must be registered (clause 2 of Article 609 of the Civil Code of the Russian Federation).

The requirement for state registration of a lease agreement is not established by law, but a restriction (encumbrance) of the right of ownership of residential premises arising on the basis of a lease agreement concluded for a period of at least a year is subject to registration. That is why employment contracts are most often concluded for 11 months.

An application for registration of a restriction (encumbrance) of property rights is submitted to the body carrying out state registration of rights (Rosreestr) no later than a month from the date of conclusion of the agreement (clause 2 of article 674 of the Civil Code of the Russian Federation; article 51 of the Law of July 13, 2015 N 218 -FZ)

For failure to comply with the established procedure for registering a lease agreement, administrative liability is provided in the form of a fine in the amount of 1,500 rubles. up to 2,000 rub.

For failure to comply with the deadline for filing an application for state registration of a restriction (encumbrance) of ownership of residential premises arising on the basis of a residential lease agreement concluded for a period of at least a year, administrative liability is provided in the form of a fine in the amount of 5,000 rubles. (Part 1, 2 of Article 19.21 of the Code of Administrative Offenses of the Russian Federation).

Contract term

The rental agreement for residential premises is concluded for a period not exceeding five years. If the rental agreement does not specify a period, the agreement is considered to be concluded for five years (Article 683 of the Civil Code of the Russian Federation). MMC requires that the contract be concluded for a period of at least three years .

The lease agreement is concluded for the period specified in the agreement. If the lease term is not specified in the agreement, it is considered to be concluded for an indefinite period. In this case, each of the parties has the right to cancel the contract at any time, notifying the other party three months in advance. The term of the residential lease agreement is not limited (Article 610 of the Civil Code of the Russian Federation).

What must be specified in the contract in order for it to be accepted by the IMC

An agreement confirming a foreign citizen’s right to use residential premises must indicate:

parties to the contract,
subject (area and address of the residential premises, allowing to identify the object),
place and date of conclusion of the contract.

Loan agreement (free use agreement)

Agreement for free use of residential premises or free hiring sometimes erroneously called a free rental agreement.

According to Art. 689 of the Civil Code of the Russian Federation, under an agreement for gratuitous use (loan agreement), the lender undertakes to provide the borrower with an item for free temporary use, and the borrower undertakes to return it in the same condition in which he received it.

A contract for the free use of residential premises must contain:

The subject of the agreement is an apartment.
Free housing provided.
Parties to the contract.
Rights and obligations of the parties.
Responsibility of the parties.
Conditions for termination of the contract.
Date and place of conclusion of the contract.
Signatures of the parties.

The contract must be concluded for the duration of the temporary residence permit. In accordance with Art. 6 of the Federal Law of July 25, 2002 No. 115-FZ “On the legal status of foreign citizens in the Russian Federation”, the validity period of a temporary residence permit is three years.

Conclusion

Rental agreement = you live in someone else’s apartment for money

Free use agreement = you live in someone else’s apartment for free

There is no need to contact a notary. Fill out the form, print it in duplicate and sign it together with the owner of the apartment (you can even sign it in the kitchen over a cup of tea). Give him one copy, keep the second for yourself.

Alexey Leiba, legal consultant at Uralvodokanal LLC

[email protected]

Paragraph 2 of Article 671 of the Civil Code of the Russian Federation provides that residential premises are provided for the possession and (or) use of legal entities only on the basis of a lease or other agreement and only for the residence of citizens.

Thus, to the rental agreement for residential premises, in contrast to the rental agreement for residential premises, which is an independent type of agreement (Chapter 35 of the Civil Code of the Russian Federation), the general provisions on the rental agreement established in § 1 of Chapter 34 of the Civil Code of the Russian Federation apply.

Legal entities and rental housing

The appearance of paragraph 2 of Article 671 in Chapter 35 of the Civil Code of the Russian Federation means that it is impossible to use residential premises for purposes other than their intended purpose (i.e., not for the residence of citizens). As follows from this norm, a residential lease agreement is precisely a type of lease, and not a lease of residential premises.

From a legal point of view, between the provision of residential premises to a tenant - a legal entity and the subsequent provision of residential premises to a citizen (for example, his employee), there must be another agreement under which the rented residential premises are transferred to the citizen for residence (most often this is a rental agreement or provisions of an employment contract or additional agreement to it), but in any case this is not a sublease agreement.

As M. Braginsky notes, “the true meaning of paragraph 2 of Art. 671 of the Civil Code is that a legal entity cannot rent residential premises “for itself”: use it as premises for an office, workshop, store, etc., thereby not for the residence of citizens. The corresponding norm does not provide for any other restrictions.”

In our opinion, we should agree with this statement, but only with some reservations.

Thus, when registering a legal entity with the tax inspectorate, its location can be defined as the place of residence of its founder (participant) or its future director, especially since paragraph 1 of Article 17 of the Housing Code of the Russian Federation, paragraph 2 of Article 288 and paragraph 2 of Article 671 of the Civil Code of the Russian Federation do not interfere with such an indication: the above rules regulate only questions about the purpose of residential premises and the right of a legal entity to use these premises only for the residence of citizens and do not apply to relations regarding state registration of legal entities (resolution of the Federal Antimonopoly Service of the Far Eastern District dated September 14, 2009 No. F03-4602/ 2009 in case No. A51-894/2009, FAS of the West Siberian District dated 01/12/2010 No. F04-7665/2009 in case No. A70-4607/2009, FAS Moscow District dated 05/21/2012 No. F05-2949/2012 in case No. A40-73285/11-92-615).

Most legal entities use rented residential premises to accommodate their employees sent on business trips to a particular locality. Very often, the employment contract with the director of the enterprise also contains a clause that the employer undertakes to provide him with living quarters for himself and his family members, as well as pay rent and pay for housing and communal services.

There is also the conclusion of tripartite rental agreements for residential premises, in which the parties are the owner of the property (lessor), a legal entity (tenant) and its employee who intends to live there.

The point of view of the highest courts of the Russian Federation on rental housing. Subjective composition of a residential lease agreement

In paragraph 38 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/01/1996 No. 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation” it is stated that transactions related to rent (hire of property), gratuitous use , as well as other, not related to the residence of citizens, use by organizations of residential premises that were not converted into non-residential premises in the manner established by housing legislation, committed after the entry into force of the Civil Code of the Russian Federation, are void on the grounds provided for in Article 168 of the Civil Code of the Russian Federation.

Later, this position was continued by the Supreme Arbitration Court of the Russian Federation in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 15, 2005 No. 2780/05 in case No. A04-1929/04-4/92.

It should be borne in mind that the charters of some HOAs (for the purpose of control over the leasing (hiring) of residential premises or for other reasons) provide for subsequent notification of the HOA about the conclusion of lease agreements, which does not in any way affect the validity of the lease agreement.

So, in one of the casesThe HOA appealed to the arbitration court to IP K.V.S. and OJSC "TSOTENERGO" with a claim for recognition as void agreement rental apartments, referring to Articles 168, 170 Civil Code of the Russian Federation.

By the decision of the Arbitration Court of the Voronezh Region, the claim was rejected, and therefore the HOA filed an appeal with the court, believing that the court decision was made in violation of substantive law, since the transaction was invalid as void (imaginary), Alease contractwas not actually implemented.

The plaintiff, referring to judicial acts of courts of general jurisdiction, the certificate of admission to operation of an electrical installation, resolutions of the administration of Voronezh No. 497, No. 498 of March 28, 2002, No. 660 of April 14, 2002, considered that the premises transferred to IP K.V. .WITH. V rent,are non-residential, therefore, could not be used for the residence of citizens, and therefore filed a lawsuit with the court.

In addition, the plaintiff refers to a violation of IP K.V.S. of the HOA charter, since according to clause 4.7 of the charter Living spaces may be rented out by members of the partnership to other persons (citizens) for residence on the basis agreement rental with notification of this to the HOA board in order to correctly and reasonably charge payments for utilities.

As the panel of judges noted, the absence of such notification does not entail the nullity of the concluded transaction, since the charter of the HOA is not a law or legal act, and transactions made in violation of the provisions of the charter cannot be declared invalid on the basis of Article 168 Civil Code of the Russian Federation. In addition, registration of rights property for the specified premises as non-residential was carried out on 04/10/2007, i.e. after the conclusion of the contested lease agreement.

According to agreement rental residential premises dated June 30, 2006, residential premises are used by the tenant exclusively for the residence of his employees, as provided for in paragraph 2Article 671 Civil Code RF.

Taking into account these circumstances, the court of first instance rightfully and reasonably came to the conclusion that there were no violations of the plaintiff’s right to be protected.

By also making reference to paragraph 38Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/01/1996 No. 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation”,The panel of judges upheld the decision of the court of first instance(resolution of the nineteenth arbitration court of appeal dated November 10, 2009 in case No. A14-5385-2009).

As for the subject composition of the rental agreement (first of all, we are interested in the tenant’s side), we should also agree with M. Braginsky that “p. 2 tbsp. 671 of the Civil Code of the Russian Federation does not establish any restrictions on the subject composition of a residential lease agreement. Accordingly, both legal entities and citizens can act on the side of both the tenant and the landlord. And this fully applies to agreements concluded after the entry into force of Part 2 of the Civil Code of the Russian Federation”3.

Very often, citizens registered as individual entrepreneurs act on the landlord’s side, as can be seen from the legal dispute I cited above.

The need to register a residential rental agreement concluded for one year or more

According to paragraph 1 of Article 164 of the Civil Code of the Russian Federation, transactions with real estate, which include all residential premises without exception, are subject to state registration in cases and in the manner provided for in Article 131 of the Civil Code of the Russian Federation and Federal Law dated July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it.”

When concluding a lease agreement for residential premises with a legal entity, you must remember that it is necessary to register such an agreement with the Federal Registration Service only if it is concluded for a period of one year or more (clause 2 of Article 651 of the Civil Code of the Russian Federation), in contrast to a commercial lease agreement housing.

If one of the parties evades its state registration, the other party, on the basis of paragraph 3 of Article 165 of the Civil Code of the Russian Federation, has the right to go to court with a demand for the obligation to register the lease agreement (cassation ruling of the Rostov Regional Court dated February 16, 2012 in case No. 33-1972) .

The Presidium of the Supreme Arbitration Court of the Russian Federation in information letter dated June 1, 2000 No. 53 “On state registration of lease agreements for non-residential premises” explained that paragraph 2 of Article 651 of the Civil Code of the Russian Federation also applies to lease agreements for non-residential premises, since they represent an object inextricably linked with the building or building, which can easily be extended to rental agreements for residential premises, since residential premises are also a piece of real estate that is inextricably linked with the building.

Consequently, an apartment lease agreement concluded for one year or more is subject to state registration and is considered concluded from the moment of such registration (clause 7 of the Generalization of judicial practice on the consideration of disputes related to challenging actions (inaction) of the Federal Registration Service, approved by the Presidium of the Arbitration Court of the Sverdlovsk Region 09/05/2008).

However, it should be remembered that when extending a rental agreement for a new period (also not exceeding one year), it is not necessary to register such an agreement (additional agreement to it). This circumstance was drawn to the attention of the Supreme Arbitration Court of the Russian Federation in paragraph 10 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59 “Review of the practice of resolving disputes related to the application of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It.”

If a lease agreement concluded for a period of one year or more is not registered in the prescribed manner, it will not be recognized as concluded (Article 433 of the Civil Code of the Russian Federation), as a result of which negative consequences may arise not only for the tenant (since he will have no a concluded agreement as the basis for the use of residential premises), but also for the lessor. In particular, it will be impossible, on the basis of such an agreement, to collect rent and other payments stipulated by the lease agreement from the tenant in court in the event of their voluntary non-payment (unjust enrichment will have to be proven according to the rules of Chapter 60 of the Civil Code of the Russian Federation).

Early termination of a rental agreement

Due to the constant change in the economic situation in the country (non-payments, bankruptcy of organizations, increased interest rates of banks, foreclosure of collateral, etc.), the issues of early termination of a lease agreement are relevant.

The contract can be terminated early either at the initiative of the lessor or at the initiative of the tenant.

Article 619 of the Civil Code of the Russian Federation lists the grounds on which an agreement can be terminated by a court at the request of the lessor (for example, if the tenant uses the property in violation of the terms of the agreement or fails to pay rent more than twice in a row).

It should be remembered that the landlord has the right to demand early termination of the contract only after sending the tenant written warning about the need to eliminate the violation and fulfill the obligation within a reasonable time. Let me give you one example.

Citizen B. filed a lawsuit against citizen A., LLC (...) for termination of the lease agreementapartments andreclaiming it from someone else's possession. As an owner apartments No. (...) in house No. (...) on the street (...), based on agreement rental dated 09/07/2005, the plaintiff transferred it to temporary possession and use of LLC (...) for a period until 12/31/2005. Due to the fact that the defendant did not properly pay utility bills, a debt arose and the need arose fortermination of the contract.To legal demands to release apartmentNeither the tenant of the LLC (...) nor the subtenant, citizen A., react.

Subsequently, the plaintiff clarified her claims and asked the court terminate lease contractand oblige defendants LLC (...) and A. to transfer according to the acceptance certificateapartmentand the keys to it immediately after the decision enters into legal force.

The court of first instance satisfied the claim in full.

In his cassation appeal, A. asked to cancel it due to the violations of substantive and procedural law committed by the court of first instance.

Having checked the case materials within the limits of the arguments of the cassation appeal of citizen A., the judicial panel of the regional court did not find any grounds for canceling the court decision, made in accordance with the law and factual circumstances, and indicated the following.

In accordance with Article 619 Civil Code of the Russian Federationat the request of the lessoragreement rental may be terminated early by the court in cases where the tenant more than two times in a row after the established agreement does not meet the payment deadline rentalpayment, after sending the tenant a written warning about the need to fulfill his obligation within a reasonable time.

Improper fulfillment by the defendant of the obligation to pay rental payment equal to the amount of payment for housing and utilities (clause 3 lease agreement), and accordingly violation of LLC (...) essential conditionsagreementserved as a reason for the landlord to go to court with a claim for early termination of the contract.

In the cassation appeal, citizen A. indicated that, as a subtenant, he paid utility bills on time and in full; the debt arose due to the fault of a third party who does not live and did not live in apartment, and therefore there is no reason to believe that they or LLC (...) violated the essential conditions agreement rent.

As the panel of judges of the regional court indicated, this argument does not entail the cancellation of the judicial act taken in the case, since the circumstances under which the utility debt arose and, accordingly, rental payments are not legally significant. The fundamental point for termination agreement rentalis the tenant’s failure to pay utility bills, while the plaintiff complied with the pre-trial dispute resolution procedure provided for in paragraph 8 agreement rental.

The judicial panel also did not take into account the argument of citizen A. that at the time the plaintiff sent notice of termination agreementdebt for utilities and rental payments have been repaid(cassation ruling of the Volgograd Regional Court dated 07/07/2011 in case No. 33-9170).

According to Article 620 of the Civil Code of the Russian Federation, at the request of the tenant, the lease agreement can be terminated early by the court, for example, if the property, due to circumstances for which the tenant is not responsible, turns out to be in a condition unsuitable for use (for example, if the house is urgently declared unsafe , but there will be nowhere for its residents to be resettled).

It should be noted that in paragraph 25 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 “Review of the practice of resolving disputes related to rent”, it was explained that additional (author's note) the grounds for early termination of the lease agreement at the request of the lessor, established in the agreement in accordance with paragraph 2 of Article 619 of the Civil Code of the Russian Federation, may not be associated with any violations on the part of the tenant.

Conclusion

To summarize the above, the following should be noted.

Firstly, in the case of concluding a residential rental agreement between an individual and a legal entity, there is always a simple written form of a residential rental agreement (clause 1 of Article 161, clause 1 of Article 609 of the Civil Code of the Russian Federation).

Secondly, any lease agreement presupposes the equality of the parties - the tenant and the lessor - as subjects of civil transactions (this is a very important point), and there is no additional protection from the state, primarily for the citizen-lessor.

Thirdly, any legal entity, having a staff of lawyers and based on the principle of freedom of contract (Article 421 of the Civil Code of the Russian Federation), tries to offer the future lessor its own form (edition) of the contract, the terms of which are suitable specifically for it (in my practice there were such cases) .

Fourthly, when renting out housing to a legal entity, the latter acts as a tax agent in relation to the lessor (an individual who is not an individual entrepreneur), and, thus, by virtue of tax legislation, is obliged to withhold from him and transfer to the budget personal income tax in the amount of 13 % of the amount of income received by him (clause 1 of Article 224, clause 1 of Article 226 of the Tax Code of the Russian Federation).

In simple words, if the rent in the contract is 15 thousand rubles per month, then the owner of the property will only be entitled to an amount of 13,050 rubles (15,000 minus 13%).

If the homeowner has no desire to get involved with the lease, much less register such an agreement (more precisely, rent as an encumbrance), then it is worth resorting to renting out housing to individuals through the conclusion of a commercial rental agreement, to which neither the general provisions on rent, nor nor the rules on leasing certain types of property, in particular buildings and structures, although there are plenty of difficulties there too. Thus, according to paragraph 1 of Article 161 of the Civil Code of the Russian Federation (as amended by Federal Law No. 100-FZ dated 05/07/2013 “On amendments to subsections 4 and 5 of Section I of Part One and Article 1153 of Part Three of the Civil Code of the Russian Federation”), transactions of citizens between themselves for an amount exceeding 10 thousand rubles must also be made in simple written form (the transaction amount means the entire amount of payments under the agreement).

In addition, the Moscow authorities have recently been concerned about replenishing the city budget through taxes from income from the rental of residential premises and are trying in various ways to convince such citizens to pay taxes.

Braginsky M.I.., Vitryansky V.V. Contract law. Book two. Agreements on the transfer of property. M., 2002. P.658.

For more details, see: Matyukova Yu. Renting an apartment for an employee // EZh-Lawyer. 2011. No. 40.

Braginsky M.I.., Vitryansky V.V. Op. op. P. 658.

When the landlord and the tenant were able to agree among themselves on the living conditions, payment and responsibility of each party, then they must reflect all these issues in a written agreement.T Only a written contract can be challenged, if any claims of the parties arise against each other regarding payment or integrity of the rented residential premises. But you need to know the differences between hiring and leasing, although the essence of these relationships is very similar.

Typically, rent refers to long-term residence in residential premises, while rental can only be concluded with municipal authorities; it is also called social rental of residential premises.

The agreement concluded between the interested people is a lease agreement, according to which the owner provides his existing housing to another person for a certain period and payment. On the other hand, the tenant also undertakes certain obligations: to pay on time the money specified in the contract for accommodation, for the use of utilities, electricity and telephone. All this must be documented in the lease agreement.

This agreement is of a paid nature, that is, one rents out housing and receives a sum of money for it, and the other rents it and pays the agreed amount to the owner.

The legislative framework

All rental relations are regulated by the norms of the Federal Legislation: Housing Code, Civil Code, Tax Code of the Russian Federation.

All issues of residence are resolved by the Housing Code. Here are the points for determining the rights and obligations of both parties to the lease agreement: Chapter 5 of the housing code, conditions of residence and payment for housing. Article 3 defines the procedure for inspection of residential premises by local authorities; certain points are regulated in detail by Art. 12-13.

Civil Legislation precisely defines the concept of lease and rental relations between the owner and individuals or legal entities: the legal settlement between individuals is described in Chapter 35, and between the owner and legal entities - in Chapter 34. The Civil Code determines the procedure for registering rental relations, persons contracting their rights and responsibilities. Article 680 of the Civil Code of the Russian Federation regulates the sanitary standard of living, but it is redirected to the Housing Legislation, which sets out the standards for the ability to rent out housing.

If the rental of residential premises exceeds a year, then the agreement is subject to mandatory registration, the norms are prescribed in the Federal Law of the Russian Federation dated July 21, 1997 No. 122 “Law on Registration...”

When renting out a residential property, its owner receives income, but all income of citizens must be subject to taxation.

How to conclude an apartment rental agreement correctly

Before you draw up an agreement on paper, you first need to agree on everything with the owner of the property. What does this mean? First you need to check whether the owner is really its owner: ask to see the original certificate of ownership, the original, since a copy can be easily forged. If the property is registered to several people at once, then their agreement would be useful: if someone does not approve of the rental of the apartment, then he can easily challenge the contract and evict you from the premises. And then the money paid in advance may be lost forever, which, of course, will not suit you.

And then, if you intend to rent the entire apartment for your family, then the sudden arrival of the owner at an unnecessary moment can ruin all your plans, and to prevent this from happening, this should be separately stipulated in the contract.

Or this common situation may arise: you have paid for accommodation for 6 months, and suddenly the owner comes and asks you to move out of the apartment, allegedly he had unforeseen circumstances and the housing became necessary for him. And again, in order not to be left on the street, all living conditions and the end of contractual relations must be prescribed.

Composition of the agreement

Rent or rent only a separate room with an entrance is possible, and the contract must contain a detailed description of the housing provided for rent.
Need to determine all the rights of the parties: who should and should not do what, here everything needs to be set out in detail, for example, not to cause damage to the property and to provide the tenant with housing at full disposal.
An important point is payment, you need to describe in detail the terms and rental rates, provide payment terms and what the tenant faces in case of refusal to pay. Indicate the exact amount of the rental itself or the utilities included in it, the possibility of revising the rental rate every year. After all, the cost of rent can either increase or decrease, as, for example, now, when during a crisis people try not to rent housing.
Discuss the possibility temporary registration for the rental period, who may have such a right, for example, family members;
Sometimes they find housing for clients real estate agencies, and if he will conclude the agreement, then a power of attorney is needed, which will spell out this possibility of a representative.
Discuss conditions for concluding a security deposit with the employer, Sometimes this measure can compensate for significant risks or damage from the tenant’s activities.

Basically, for a citizen renting out housing, it is beneficial to enter into an agreement for several reasons.

There is a written description of both the apartment and the property located, its condition. And you can always recover damages from the tenant.

Instructions

After choosing a home and making a preliminary agreement with its owner, check the credentials. It may also happen that you become a participant in subletting, when the previous tenant rents out housing on inflated terms. Or, instead of the owner himself, this is done by a family member who does not have sole rights to dispose of the apartment; such actions are considered illegal by law. Ask to see proof of ownership. Everything is listed there in detail. But you can also request a certificate from the register of real estate rights: the information is public and available to everyone.
Ask to make a detailed inventory of all property: where are any scratches and defects, is the wallpaper peeled off, is the floor scratched. This will help in the future to avoid unfounded claims from the apartment owner. List all the property in a list, and next to it put your comments, for example, a washing machine - a chip in the casing in such and such a place.
Discuss the cost of payment, the end date for transferring money, and the possibility of deferring payment.
The opportunity to live with your family also needs to be discussed; ask the owner to make everyone temporarily registered for the duration of their stay in the apartment. This may come in handy if you need medical help or a job.

It is impossible to describe all the nuances, you need to follow based on the current situation, but it is important: when and who can visit the apartment in your absence must be clarified immediately.

Where to conclude an apartment rental agreement

Many owners do not rely on themselves and turn to real estate offices, and this is understandable, because this is their profile, they know all the pitfalls and features of renting housing. On the one hand, this is correct, but you have to pay a commission for the services, sometimes this amount can be significant. But they can draw up an agreement according to all legal canons, and then it will be almost impossible to challenge any points in it.

But if you need to save money, then you can draw up the contract yourself, in the apartment you are going to rent out.

But here is an important condition: the agreement must have legal significance, which means it must be drawn up and concluded in accordance with all the rules.

Preparation of contract

The fact of delivery of residential premises can only be confirmed by an agreement, which is written by hand or filled out in a ready-made form and signed by all parties. It is for these reasons that you need to be careful when drafting it. The parties to the agreement will be the tenant and the lessor.

What should be reflected:

Who rents out the apartment: his passport details, place of permanent registration, date, date and place of birth.
The same information should be available about the tenant.
Postal code and full address of the apartment.
Indicate the document of title to the apartment: deed of transfer, contract of sale, exchange, donation, identification number of the issued certificate of ownership.
Specify the due date: one year, three years or five years. Please note, landlords: a contract for a period of more than 1 year is subject to mandatory registration, and you will have to pay 13% of the income received. Advice: do not try to evade paying tax, there is a large fine for this - up to 5 thousand rubles.
Rental rate for each month: it is stated in numbers and in words. If you leave a deposit to the owner, then this amount must be fixed in the contract. This way you can prove that you are right if conflicts arise.
Describe in detail the method of payment and the date of transfer, provide for interest on late payments;
The next point is very important for both parties: the frequency of visits by the owner of the apartment: when and how many times he will have the opportunity to check the condition of the apartment, payment of utility and telephone bills.
A detailed description of the condition of the apartment, furniture, household appliances and plumbing equipment. The owner's claims against you regarding a damaged washing machine or refrigerator will depend on this.
Indicate the conditions for extending the lease agreement, if such an opportunity is necessary.
Put the date of conclusion and your signature.

There may be other clauses in the contract, but they can be added by agreement of both parties.

Contractual obligations will come into force upon completion of registration actions, but the tenant can already live in this apartment.