The Presidium of the Supreme Arbitration Court of the Russian Federation has considered the Review of the practice of resolving disputes related to rent, and in accordance with Article 16 of the Federal Constitutional Law "On Arbitration Courts in the Russian Federation" informs the arbitration courts of the developed recommendations.

Appendix: review on 67 sheets.

Overview of Lease Dispute Resolution Practices

1. An agreement between the owner of a building and another person, on the basis of which the latter uses a separate structural element of this building for advertising purposes, is not a lease agreement.

The joint-stock company concluded an agreement with the owner of the building, on the basis of which the company received the right to use the roof of this building for advertising.
After the expiration of the established term of this agreement, the owner refused to conclude a contract for a new term with the joint-stock company, concluding a similar agreement with another person.
The joint-stock company, believing that the agreement concluded between it and the owner is a lease agreement for the roof of the building, on the basis of Article 621 of the Civil Code of the Russian Federation * filed a claim with the arbitration court for the transfer of rights and obligations under the second agreement. In the statement of claim, the company indicated that it had installed its billboards on the roof for two years and fulfilled the obligation to make payments in good faith.
The court dismissed the claim, recognizing Article 621 of the Civil Code of the Russian Federation as not applicable.
At the same time, the court decision noted that the legal relations that arose between the parties and related to the use by the plaintiff for advertising purposes of the roof of the building owned by the defendant, are not leased and, therefore, cannot be regulated by the rules of Chapter 34 of the Civil Code of the Russian Federation.
In making its decision, the court proceeded from the fact that, in accordance with paragraph 1 of Article 607 of the Civil Code of the Russian Federation, in addition to those directly listed in this provision, only non-consumable items can be leased objects. In this case, the transfer of a thing for rent always entails a temporary alienation by the owner of the right to use this thing.
Meanwhile, the roof is a structural element of the building and is not an independent piece of real estate that could be transferred for use separately from the building. Therefore, the roof cannot be rented.
The court pointed out that the analysis of the disputed contract indicates that its subject matter was to provide the plaintiff with the opportunity, on a reimbursable basis, to place advertising on the roof of the building owned by the defendant. Such an agreement does not contradict the Civil Code of the Russian Federation, the relations of the parties are governed by general provisions on obligations and agreements, as well as the terms of the agreement itself.

2. Only those rules on a contract of sale that regulate the form of this contract (clause 3 of article 609 and article 624 of the Civil Code of the Russian Federation) apply to a property lease agreement providing for the subsequent transfer of ownership of this property to the lessee.

An open joint-stock company (lessor) filed a lawsuit against a limited liability company with an arbitration court to recover the amount of rent arrears and to oblige the defendant to return the river ship leased to him.
By the decision of the arbitration court, the claim was satisfied, since the materials of the case proved the violation by the defendant (tenant) of the terms of the agreement on the timely transfer of rent. Obliging to return the rented ship, the court referred to the expiration of the lease and the possibility of the lessor claiming his property (Article 622 of the Code).
In the appeal, the defendant asked to cancel the judicial act in part of the satisfaction of the claim for the recovery of the vessel. In support of his position, he referred to the provisions of the lease agreement, which provide for the transfer of ownership of the property to the tenant at the end of the lease term.
The Court of Appeal considered the complaint justified and subject to satisfaction, stating the following.
The parties concluded a lease agreement for a river boat for a period of four years with the right to buy out the leased property.
According to the terms of the agreement, the total cost of the lease was 520 thousand US dollars, lease payments were payable by the tenant annually for four years within the terms established by the agreement in ruble equivalent at the exchange rate of the Central Bank of the Russian Federation on the date of payment. After making the last lease payment, the vessel becomes the property of the lessee.
The lessee's failure to make the next annual payment in the amount of 94.8 thousand US dollars (more than 2.5 million rubles) served as the basis for the lessor to file a claim.
By virtue of Article 609 of the Civil Code of the Russian Federation, a property lease agreement providing for the subsequent transfer of ownership of this property to the lessee (Article 624 of the Code) is concluded in the form provided for a sale and purchase agreement.
On this basis, clause 2 of Article 489 of the Civil Code of the Russian Federation is applicable to the relations of the parties, according to which, if the buyer does not make the next payment for the goods sold by installments and transferred to him within the period established by the contract, the seller has the right, unless otherwise provided by the contract, to refuse to perform of the contract and demand the return of the sold goods, except in cases where the amount of payments received from the buyer exceeds half the price of the goods.
Since for the previous periods the lessee paid more than 355 thousand US dollars, which exceeds half the cost of the vessel (520 thousand US dollars), the court of first instance had no grounds for obliging the defendant to return this property to the plaintiff.
In connection with the above, the court of appeal overturned the decision of the court of first instance in this part, refusing to return the river boat.
Based on the results of consideration of the cassation complaint, the decision of the appellate instance was canceled and the decision of the court of first instance was upheld.
At the same time, the court of cassation drew attention to the need to distinguish between two different institutions - the purchase of leased property (Article 624 of the Civil Code of the Russian Federation) and the sale of goods on credit with the condition of payment in installments (Article 489 of the Code).
Paragraph 3 of Article 609 of the Civil Code of the Russian Federation indicates only the need, when concluding a lease agreement providing for the subsequent transfer of ownership of the leased property to the tenant, to be guided by the rules on the form of the contract for the sale of the relevant property.
Consequently, the legal relations of the parties related to the repurchase of leased property cannot be subject to the rules governing the purchase and sale of goods on credit with the condition of payment by installments.
In the situation under consideration, the expiration of the lease term did not mean the transfer of the vessel to the lessee's ownership, since the lease payments were not paid in full.
Given this circumstance, the court of cassation noted that by the time the plaintiff made the relevant claim, the defendant did not have any rights to the disputed property: the right of ownership had not been acquired, and the right to lease had ceased due to the expiration of its term.
Thus, the court of first instance rightfully satisfied the lessor's claim regarding the recovery of property on the basis of Article 622 of the Civil Code of the Russian Federation.

3. The validity period of the building (structure) lease agreement, determined from the 1st day of any month of the current year to the 30th (31st) day of the previous month of the next year, for the purposes of applying paragraph 2 of Article 651 of the Code, is recognized as equal to one year.

The landlord filed a lawsuit against the tenant in the arbitration court for the recovery of a contractual penalty for late payment of rent.
The defendant, objecting to the claim, referred to the fact that the contractual penalty was not applicable, since the building lease agreement signed with the plaintiff, by virtue of Article 651 of the Civil Code of the Russian Federation, is not concluded due to the lack of its state registration.
The Arbitration Court, having considered the arguments of the parties, dismissed the claim on the following grounds.
According to paragraph 2 of Article 651 of the Code, a lease agreement for a building or structure concluded for a period of at least a year is subject to state registration and is considered concluded from the moment of such registration.
Between the plaintiff and the defendant, a building lease agreement was concluded, in which its validity period is determined from June 1, 2000 to May 31, 2001.
The term of the contract is exactly one year, therefore, this contract, by virtue of paragraph 2 of Article 651 of the Civil Code of the Russian Federation, was subject to state registration and, due to the lack of such, cannot be considered concluded.
In view of the foregoing, the condition of the contract for the penalty could not be applied by the lessor.

4. If the lease agreement states that it is valid until the beginning of the reconstruction of the leased property, such an agreement is considered concluded for an indefinite period and its termination is carried out in accordance with the rules of paragraph two of clause 2 of Article 610 of the Civil Code of the Russian Federation.

The Property Management Committee (landlord) filed a lawsuit against a limited liability company for eviction from non-residential premises on the basis of Article 622 of the Civil Code of the Russian Federation in connection with the expiration of the lease.
The claim was upheld by the decision of the court of first instance.
After examining the case materials, the court noted that the parties concluded a lease agreement for non-residential premises with a period of validity until the reconstruction of the building in which the rented premises are located. In filing a claim to evict the tenant, the landlord cited the expiration of the lease because the planned renovation of the building in question had begun, ie an event had occurred that resulted in the expiration of the lease.
After evaluating the evidence presented, the court concluded that the fact of the beginning of the reconstruction was fully confirmed, in particular: the reconstruction of neighboring houses was completed; on the territory adjacent to the disputed building, work was carried out to switch existing communications; the building itself is disconnected from permanent power supply and telephone networks; all tenants evicted, except for the defendant.
In the cassation complaint, the tenant asked to cancel the decision of the court of first instance, since, in his opinion, the court unlawfully concluded that an event had occurred that caused the expiration of the lease agreement. Thus, the applicant drew attention to the absence of a warrant from the customer-investor for the performance of preparatory, excavation and construction works.
The court of cassation dismissed the tenant's complaint, noting the following.
The study of the issue of the presence or absence of the fact of the beginning of the reconstruction of the building would be important only if, by virtue of a contract concluded for a certain period, this event would be the basis for early termination of the contract at the request of the lessor (part two of Article 619 of the Civil Code of the Russian Federation) or for the latter's refusal to perform the contract (paragraph 3 of Article 450 of the Code).
However, in the situation under consideration, the term of the lease agreement is not defined by the parties. A condition on the validity of the lease agreement until the beginning of the reconstruction of the building in which the leased premises are located cannot be qualified as a term condition.
By virtue of Article 190 of the Civil Code of the Russian Federation, the term can be determined by indicating only such an event that must inevitably occur, that is, it does not depend on the will and actions of the parties.
The disputed contract was concluded for an indefinite period, therefore, the lessor, on the basis of paragraph 2 of Article 610 of the Code, could at any time cancel the contract by warning the tenant three months in advance.
Since the landlord sent the tenant a warning about the termination of the contract, the requirements of paragraph two of clause 2 of Article 610 of the Civil Code of the Russian Federation can be considered complied with. In this case, it does not matter what circumstances predetermined the intention of the lessor to withdraw from the contract.
Taking into account that by the time the landlord applied to the court, the three months specified in paragraph 2 of Article 610 of the Civil Code of the Russian Federation had expired, the court of first instance rightfully satisfied the demand to evict the tenant from the disputed premises.

5. A lease agreement concluded (renewed) for an indefinite period may be terminated on the grounds provided for in Article 619 of the Civil Code of the Russian Federation.

The Property Management Committee (landlord) filed a lawsuit against a limited liability company (tenant) to terminate the lease agreement for non-residential premises and evict the defendant from the said premises.
By a ruling of the court of first instance, the requirements to terminate the lease agreement and evict the defendant were left without consideration due to the plaintiff's failure to comply with the procedure for terminating the lease agreement concluded for an indefinite period (paragraph 2 of Article 610 of the Civil Code of the Russian Federation).
The plaintiff, not agreeing with the said judicial act, in the appeal asked him to cancel and consider the dispute on the merits, referring to his compliance with the requirements of part three of Article 619 and paragraph 2 of Article 452 of the Code regarding the procedure for terminating the lease agreement.
The appellate court, having examined the circumstances of the dispute, found the following.
The lease agreement for non-residential premises was concluded for a period of one year. Since, after the expiration of the contract, the tenant continued to use the non-residential premises in the absence of objections from the landlord, it was renewed for an indefinite period.
The conclusion of the court of first instance that a lease agreement concluded (renewed) for an indefinite period may be terminated only on the grounds provided for in paragraph 2 of Article 610 of the Civil Code of the Russian Federation is untenable, since the mere fact of concluding a lease agreement for an indefinite period does not deprive the lessor of the right to terminate such an agreement in case of a material breach of its terms by the lessee.
As can be seen from the case file, the landlord, on the basis of paragraphs 1 and 3 of part one of Article 619 of the Civil Code of the Russian Federation, filed a lawsuit to terminate the contract and evict the tenant from the premises occupied by him in connection with a significant violation by the latter of the terms of the contract, including a long non-payment of rent . In the statement of claim, the landlord asked the court to confirm the facts of violations committed by the tenant. Prior to applying to the court, the plaintiff complied with the requirements of part three of Article 619 and paragraph 2 of Article 452 of the Code, which regulate mandatory pre-trial procedures for terminating the contract.
In view of the foregoing, the court of appeal noted that the landlord, when determining the moment of applying to the court, was rightfully guided by the thirty-day period established by paragraph 2 of Article 452 of the Civil Code of the Russian Federation, and not by the three-month period provided for by paragraph 2 of Article 610 of the Code.
Since the facts of violations of the terms of the lease agreement by the tenant during the trial in the appellate instance were confirmed, the ruling of the court of first instance was canceled and the claims were satisfied.

6. The agreement of the parties that the terms of the lease agreement apply to their relations that actually developed before its conclusion does not mean that the parties' direct obligation to fulfill the terms of the lease agreement arose before the conclusion of the agreement.

The landlord filed a lawsuit against the tenant in the arbitration court for the recovery of rent arrears, the cost of cleaning the territory adjacent to the leased building, as well as penalties for late payment
Objecting to the stated claim, the defendant referred to the fact that the plaintiff's claims relate to the period before the conclusion of the lease agreement, and therefore are not subject to satisfaction.
In making its decision, the court was guided by paragraph 3 of Article 425 of the Civil Code of the Russian Federation, according to which the parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement.
The plaintiff and the defendant entered into a lease agreement for the building, according to which the tenant undertook to pay monthly rent, as well as reimburse the landlord for cleaning the territory adjacent to the leased building. There is a penalty for late payment.
This building was transferred to the defendant under the acceptance certificate before the conclusion of the lease agreement and was actually used by him during this time.
In the agreement, the parties established that its terms apply to relations that arose from the date they signed the act of acceptance and transfer of the building.
In view of the foregoing, the Court of First Instance recognized the claim as subject to satisfaction in full.
The Court of Appeal reversed the decision regarding the recovery of the contractual penalty, and left it unchanged regarding the recovery of rent and expenses for cleaning the territory for the period of actual use of the building by the defendant. In doing so, the court proceeded from the following.
In accordance with paragraph 1 of Article 425 of the Civil Code of the Russian Federation, the contract enters into force and becomes binding on the parties from the moment it is concluded.
The agreement reached by the parties on the application to their relations established before the conclusion of the contract of the conditions on the obligation of the tenant to pay rent and reimburse the landlord for cleaning expenses adjacent to the leased building only indicates the tenant's consent to pay for the actual use of the building and the costs incurred by the landlord in this period on the terms stipulated by the lease agreement, and does not mean that the defendant had a direct obligation to fulfill them before the conclusion of the agreement itself.
In this regard, the court of first instance had no reason to recognize that the defendant violated contractual obligations during the period when only actual relations took place between the parties, and to satisfy the claim for the recovery of a contractual penalty for the period preceding the conclusion of the contract.

7. A claim for eviction of a tenant in connection with the termination of a lease agreement in accordance with paragraph 2 of Article 610 of the Civil Code of the Russian Federation cannot be dismissed on the grounds that the landlord did not send the tenant a second warning about the termination of the agreement after the initial claim of the landlord was left without consideration in connection with the premature appeal of the latter to the court.

The property management committee (lessor) filed a claim against the joint-stock company (tenant) to vacate the non-residential premises occupied by the latter.
The claim was based on the provisions of clause 2 of article 610 of the Civil Code of the Russian Federation, according to which each of the parties to a lease concluded for an indefinite period has the right to cancel the contract at any time in compliance with the procedure established by this clause.
By the decision of the court of first instance, left unchanged by the decision of the court of appeal, the claim was satisfied.
The defendant (tenant) in the cassation appeal raised the issue of canceling judicial acts, citing the plaintiff's failure to comply with the requirements of paragraph 2 of Article 610 of the Civil Code of the Russian Federation on the procedure for terminating lease agreements concluded for an indefinite period.
In accordance with paragraph 2 of Article 610 of the Code, if the real estate lease agreement is concluded for an indefinite period, each of the parties has the right to cancel the agreement at any time by notifying the other party three months in advance.
As follows from the materials of the case, the municipal property management committee sent a warning to the joint-stock company about the termination of the lease agreement, renewed earlier for an indefinite period. The tenant refused to voluntarily vacate the premises.
Initially, the landlord filed a lawsuit to evict the tenant before the expiration of the three-month period provided for by paragraph 2 of Article 610 of the Code, in connection with which the said claim was left without consideration by the court.
This claim of the landlord, brought against the tenant after a three-month period, was satisfied.
According to the defendant, stated in the cassation complaint, in such a situation, the landlord was obliged to send the tenant a new warning about the termination of the lease.
The court of cassation did not agree with the lessee's arguments, stating that in this case, leaving the claim without consideration does not invalidate the warning sent by the lessor in accordance with paragraph 2 of Article 610 of the Civil Code of the Russian Federation.
Judicial acts of the first and appellate instances were left unchanged.

8. If the landlord transferred the property to the tenant without documents, the absence of which excludes the operation of the leased object, the rent is not subject to collection.

The landlord filed a lawsuit against the tenant in the arbitration court for the recovery of rent arrears and interest for the use of other people's money.
Prior to the decision on the case, the defendant filed a counterclaim for termination of the lease agreement on the basis of subparagraph 1 of Article 620 of the Civil Code of the Russian Federation, according to which, at the request of the tenant, the lease agreement can be prematurely terminated by the court in the event that the landlord does not provide property for use to the tenant or creates obstacles to the use of property in accordance with the terms of the contract or the purpose of the property.
Article 611 of the Code stipulates that the lessor is obliged to provide the lessee with property in a condition that complies with the terms of the lease agreement and the purpose of the property. In this case, the property is leased together with all its accessories and related documents (technical passport, quality certificate, etc.), unless otherwise provided by the contract.
The Arbitration Court, when considering the case, found that a helicopter lease agreement was concluded between the parties.
The helicopter was handed over to the lessee.
However, in fact, the lessee did not use and could not use the helicopter, since it was handed over by the lessor without a certificate of registration and airworthiness certificates (certificates of airworthiness of aircraft for flights), the availability of which is mandatory provided for by Articles 33, 36 of the Air Code of the Russian Federation. In the absence of these documents, aircraft are not allowed to operate.
The lessee repeatedly applied to the lessor with a request to hand over to him the documents necessary for the operation of the helicopter.
Thus, the landlord did not properly fulfill the obligation, as he transferred the property to the tenant in violation of the requirements established by Article 611 of the Civil Code of the Russian Federation.
In this regard, the court recognized the requirement to terminate the lease agreement on the basis of paragraph 1 of Article 620 of the Code as lawful.
Since the tenant, due to violations of contractual obligations committed by the lessor, could not use the leased property (helicopter) in accordance with its purpose, the claim for the recovery of rent from the tenant was denied.

9. The lessee, to whom the leased property has not been transferred, cannot reclaim it from a third party, in whose use it is actually located.

The tenant filed a claim with the arbitration court to recover the non-residential premises leased to him from the person occupying this premises.
In support of the claim, the plaintiff referred to the fact that he, as a tenant, is the title owner of the said premises and, by virtue of Articles 301, 305 of the Civil Code of the Russian Federation, has the right to claim it from someone else's illegal possession of third parties.
The Court of First Instance agreed with the plaintiff's arguments and granted the claim.
The Court of Appeal overturned the decision and dismissed the claim on the following grounds.
The lease agreement for the disputed non-residential premises was concluded with the plaintiff by the property management committee.
In accordance with Article 606 of the Code, under a lease agreement, the lessor undertakes to provide the lessee with property for a fee for temporary possession and use or for temporary use.
Thus, the transfer of property to the tenant is the responsibility of the landlord.
Having established that the transfer of the premises by the lessor to the lessee did not take place and the latter did not take possession of it, the court concluded that the lessee did not become the legal owner of the disputed property and, therefore, did not have the right to use proprietary remedies against the actions of third parties. His rights could be protected in accordance with paragraph 3 of Article 611 of the Civil Code of the Russian Federation, according to which, if the lessor did not provide the tenant with the leased property within the period specified in the lease agreement, and if such a period is not specified in the agreement, within a reasonable time, the tenant has the right to claim this property from him in accordance with Article 398 of the Code and demand compensation for damages caused by a delay in performance, or demand termination of the contract and compensation for losses caused by its non-performance.
Under such circumstances, the plaintiff's claim, brought directly to a third party occupying the disputed non-residential premises, was not subject to satisfaction.

10. The lessor, who has not fulfilled the obligation to transfer the leased non-residential premises at the time of the conclusion of the contract or another period established by the contract, shall have the right to demand that the tenant pay the rent only after the actual transfer of the non-residential premises to the latter.

The landlord filed a lawsuit against the tenant in 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 defendant referred to the fact that only part of the premises that were the object of lease under the contract was transferred to him. Since the landlord failed to fulfill the obligation to transfer the property, there was no obligation to pay the rent.
The Arbitration Court recognized the claim as subject to satisfaction in part, based on the following.
By virtue of 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.
In accordance with paragraph 2 of Article 328 of the Code, in the event that the obligated party fails to provide performance of an obligation stipulated by the contract or there are circumstances that clearly indicate that such performance will not be made within the prescribed period, the party on which the counter-performance lies has the right to suspend the performance of its obligation or withdraw from this obligation. If the fulfillment of the obligation stipulated by the contract is not performed 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.
The parties entered into a lease agreement for non-residential premises.
By the time the property was transferred to the tenant, part of the premises leased to him was not released by the landlord from the property, and therefore the tenant accepted only free areas under the act.
The plaintiff presented for collection the rent debt, calculated from the date of conclusion of the contract in accordance with the amount of rent established in the contract.
However, according to the calculation, which is an annex to the contract, the amount of rent specified in the contract is determined based on the rate of rent per 1 square meter of leased area.
Considering the foregoing, as well as the fact that the transfer of all premises did not take place at the time the parties concluded the agreement, the court concluded that the landlord has the right to require the tenant to pay rent from the moment the transfer took place only for the premises actually transferred to the latter for use, in connection with which satisfied the claim in part.

11. When applying paragraph 3 of Article 614 of the Civil Code of the Russian Federation, the courts must proceed from the fact that during the year the terms of the contract should remain unchanged, providing for a fixed amount of rent or the procedure (mechanism) for its calculation.

The tenant filed a lawsuit against the landlord in an arbitration court to invalidate the terms of the lease agreement, which provides for a quarterly increase in the amount of rent by the landlord by indexing it to inflation, since this condition contradicts the imperative norm of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, which establishes the possibility of changing the amount of rent no more than once a year.
The court of first instance satisfied the claim, indicating that paragraph 3 of Article 614 of the Civil Code of the Russian Federation contains an imperative rule regarding the frequency of changes in the amount of rent, and therefore the parties cannot change or establish in the contract a condition that differs from that provided for by this rule. Therefore, the condition of the contract, which provides for the possibility of quarterly changes in the amount of rent, is void by virtue of Article 168 of the Code as not in accordance with the law (paragraph 3 of Article 614 of the Civil Code of the Russian Federation).
The court of cassation reversed the decision and dismissed the claim on the following grounds.
The disputed condition of the contract does not establish the rent as a fixed amount, but is determinable, that is, subject to calculation for each payment term.
Thus, the parties agreed on a condition on the amount of the rent, establishing the method of its calculation.
The actual change in the amount of rent as a result of adjustment for the percentage of indexation is not a change in accordance with paragraph 3 of Article 614 of the Code of the terms of the agreement on the amount of rent, but represents the fulfillment of this condition.
Under such circumstances, the claim is not subject to satisfaction.
In another case, the tenant filed a claim with the arbitration court to invalidate the additional agreement to the lease agreement, in which the rental rate was determined by the parties in an amount equivalent to a certain amount in foreign currency.
In support of the stated claim, the plaintiff referred to the fact that such a determination of the amount of rent contradicts Article 140 of the Civil Code of the Russian Federation, according to which the legal tender is the ruble, and paragraph 3 of Article 614 of the Code, since, according to the plaintiff, it entails a more frequent change in the amount of rent .
The arbitration court dismissed the claim.
In making its decision, the court was guided by paragraph 2 of Article 317 of the Civil Code of the Russian Federation, according to which a monetary obligation may provide that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or conventional monetary units.
Since such a determination of the amount of the monetary obligation does not mean that the direct performance of the monetary obligation is carried out in foreign currency, the plaintiff's argument about the violation of Article 140 of the Code is unfounded.
By virtue of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the amount of the rent may be changed by agreement of the parties within the time periods stipulated by the contract, but not more than once a year.
In the case under consideration, the establishment of the rental rate in an amount equivalent to a certain amount in foreign currency means the establishment of a mechanism for its calculation.
This determination of the amount of rent is intended to eliminate the adverse effects of inflation. A change in the foreign exchange rate does not mean a change in the amount of rent in accordance with paragraph 3 of Article 614 of the Civil Code of the Russian Federation.

12. Imposing on the tenant the cost of paying utility bills cannot be considered as a form of rent.

The joint-stock company (lessor) filed a claim with the arbitration court against the limited liability company (tenant) to recognize the building lease agreement as not concluded and to evict the defendant from the occupied building.
By the decision of the court of first instance, left unchanged by the decision of the appellate instance, the claim was satisfied.
In the appeal, the defendant referred to the existence of a lease agreement for the disputed building and asked to recognize this agreement as concluded.
After examining the contract and the circumstances of the dispute, the court of cassation found that disagreements arose over the wording of the terms of the contract on the amount of rent.
By virtue of paragraph 1 of Article 654 of the Civil Code of the Russian Federation, the lease agreement for a building or structure must provide for the amount of rent. In the absence of a condition on the amount of rent agreed upon by the parties in writing, the lease agreement for a building or structure is considered not concluded.
The defendant believed that the parties complied with this requirement of the law, since, in accordance with paragraph 2.4 of the agreement, the tenant is obliged to pay utility and other targeted services as rent within the established time limits.
However, such wording cannot be considered as establishing the form and amount of the rent, since the landlord does not actually receive a consideration for the leased building. Payment by the tenant of utilities does not in itself mean that the lease agreement is paid.
According to paragraph 1 of Article 654 of the Civil Code of the Russian Federation, the rules for determining the price provided for in paragraph 3 of Article 424 of the Code are not applied to the lease agreement for a building or structure.
Considering this provision of the law, the court of cassation indicated that the disputed contract could not be considered concluded and, therefore, the decision of the court of first instance was justified.

13. Early release of the leased premises (before the termination of the lease agreement in accordance with the established procedure) is not a basis for termination of the tenant's obligation to pay rent.

The joint-stock company (lessor) filed a claim with the arbitration court against the limited liability company (lessee) for the recovery of rent.
By the decision of the court of first instance, the claim was dismissed with reference to the fact that the rent claimed by the plaintiff was accrued for the period after the defendant actually vacated the rented premises.
In an appeal against the court's decision, the plaintiff asked to satisfy his claim for the recovery of rent, since it was accrued until the termination of the lease agreement in accordance with the established procedure.
During the consideration of the appeal, it was established that at one time the disputed lease agreement was renewed for an indefinite period in accordance with paragraph 2 of Article 621 of the Civil Code of the Russian Federation.
Such an agreement may be terminated at any time at the initiative of each of the parties with the obligatory warning of the other party three months in advance (paragraph 2 of Article 610 of the Code).
Taking into account the above circumstances, the court of appeal noted that within three months from the date of such a warning, the contract remains valid for both parties. Therefore, the tenant's refusal to pay rent for the specified period is unreasonable even if the premises are vacated ahead of schedule, that is, before the expiration of three months.
The disputed lease agreement and the mutual obligations of the parties could be terminated otherwise than it follows from the rules of paragraph 2 of Article 610 of the Civil Code of the Russian Federation, if the parties had come to an agreement on this. However, there is no such agreement between the parties, and there is no evidence in the case file that the tenant applied to the landlord with a corresponding proposal.
There is also no evidence of the transfer by the tenant of the premises to the landlord until the termination of the contract, determined according to the rules of paragraph 2 of Article 610 of the Civil Code of the Russian Federation. The act of acceptance and transfer of the disputed premises was drawn up by the lessor with the participation of a representative of a disinterested person in connection with the tenant's refusal to sign the act, about which there is a corresponding note in the act.
In view of the above, the court of appeal concluded that the lessor's claim to collect rent before the termination of the contract was lawful, and satisfied the claim.

14. The lessor has the right to retain the equipment belonging to the lessee, which remained in the leased premises after the termination of the lease agreement, in order to secure the obligation of the lessee to pay the rent for this premises.

The limited liability company applied to the arbitration court with a claim against the joint-stock company for the return of property from someone else's illegal possession.
As follows from the case file, the parties concluded a lease agreement, in pursuance of which the defendant (landlord) leased a non-residential premises (ventilation and pneumatic transport workshop) to the plaintiff for a period of five years. In this room, the tenant has placed equipment that belongs to him on the right of ownership.
At the end of the lease term, the plaintiff did not vacate the premises from his equipment, thereby violating the requirement of Article 622 of the Civil Code of the Russian Federation, according to which, upon termination of the lease agreement, the tenant is obliged to return the property to the landlord in the condition in which he received it.
Subsequently, the plaintiff tried to remove his property, but the defendant obstructed and withheld the equipment.
In a letter sent to the plaintiff, the defendant indicated that he was withholding the property belonging to the plaintiff on the basis of paragraph 1 of Article 359 of the Civil Code of the Russian Federation in connection with the latter's failure to fulfill the obligation to pay the rent in full and after repaying the debt by the plaintiff, he would return his property.
By the decision of the court of first instance, satisfaction of the claim was denied with reference to paragraph 1 of Article 359 of the Code, according to which any party under the contract has the right to retain a thing if it has the right to demand payment or other actions related to this thing.
In the appeal, the plaintiff asked for the decision to be canceled and the claim to be satisfied, since he had no obligations to the defendant related to the disputed equipment. In addition, this equipment was not transferred to the lessor, but was used by the tenant himself during the period of renting the premises.
The Court of Appeal left the decision unchanged for the following reasons.
The plaintiff's arguments about the unlawfulness of keeping his equipment due to his lack of any obligations to the defendant regarding this equipment are untenable, since by virtue of the second paragraph of clause 1 of Article 359 of the Civil Code of the Russian Federation, in relations between entrepreneurs, the retention of things can also ensure obligations not related to payment for this thing or reimbursement of the costs of it.
However, the right to retain the debtor's thing arises from the creditor only when the disputed thing is in his possession on a legal basis. The possibility of retention cannot be the result of the seizure of the debtor's thing against his will.
In the case under consideration, the disputed equipment ended up in the possession of the lessor at the will of the lessee himself, in the absence of any illegal acts on the part of the lessor. The basis for the receipt of equipment in the possession of the owner of the premises is the tenant leaving this equipment in this premises after the expiration of the lease, that is, after the loss of the right to the corresponding premises. Since such possession of equipment cannot be recognized as illegal, it allows its retention under the rules of paragraph 1 of Article 359 of the Civil Code of the Russian Federation.
Taking into account the stated requirements of the plaintiff (the owner of the equipment) for the return of property from someone else's illegal possession, they are not subject to satisfaction.

15. If the lessor agreed to the sublease and did not stipulate its deadline, the lessee has the right to renew the sublease agreement within the lease period without obtaining additional permission from the lessor.

The joint-stock company (subtenant) filed a claim against the state property management committee (lessor) on the obligation to conclude a lease agreement for non-residential premises.
In support of the stated claim, the plaintiff referred to the fact that he occupied the indicated premises on the basis of a sublease agreement, which ceased to be valid by virtue of paragraph 1 of Article 618 of the Civil Code of the Russian Federation in connection with the early termination of the lease agreement. As provided for by this provision, in this case, the sublessee has the right to conclude a lease agreement with him for the property that was in his use in accordance with the sublease agreement, within the remaining period of the sublease, on conditions corresponding to the terms of the terminated lease agreement.
The tenant was involved as a third party in the case.
By the decision of the court of first instance, left unchanged by the decision of the appellate instance, the claim was denied.
At the same time, the courts proceeded from the fact that the term of the sublease agreement concluded between the plaintiff (sublessee) and a third party (tenant) with the consent of the defendant (lessor) expired during the period of the lease agreement. The third party entered into the second sublease agreement with the plaintiff without asking the consent of the landlord, and this agreement was concluded for the entire remaining lease term.
In the cassation complaint, the plaintiff, considering the second sublease agreement not contrary to law, requested that the judicial acts of the first and appellate instances be canceled and the claim be satisfied.
The court of cassation, having studied the materials of the case and agreed with the position of the plaintiff, canceled the contested judicial acts and satisfied the claim on the following grounds.
As can be seen from the case file, between the defendant (the landlord) and a third party (the tenant) a lease agreement for non-residential premises was concluded for a period of five years. Subsequently, with the consent of the landlord, the tenant subleased one of the premises to the plaintiff.
There is a letter from the landlord in the file, from which it is seen that, in allowing the tenant to conclude a sublease agreement with the plaintiff, he did not make any reservations regarding the term of the sublease.
Initially, the sublease agreement was concluded for a period of one year. After this period, the parties entered into a second contract for two years, that is, for the entire remaining lease period.
By agreement of the parties, the lease agreement was terminated ahead of schedule - one and a half years before its expiration. The tenant vacated the occupied premises.
Taking into account the above circumstances, the court of cassation indicated that the lessor's consent to the sublease extends to the period from the moment the consent was given until the expiration of the lease period stipulated by the contract. Therefore, the second sublease agreement is valid and the subtenant, in connection with the early termination of the lease agreement, the subtenant had the right to present the corresponding claim to the lessor on the basis of paragraph 1 of Article 618 of the Civil Code of the Russian Federation.
Since, when determining the validity period of the second sublease agreement, the parties did not go beyond the lease period established by the lease agreement, the claimant's (subtenant's) claim to compel the defendant (lessor) to conclude a lease agreement with him for the entire remaining sublease period is legitimate.

16. The transfer of the lease right by the tenant to another person may be carried out only by the methods provided for in paragraph 2 of Article 615 of the Civil Code of the Russian Federation, that is, in the manner of rehiring, making a contribution to the authorized capital of a business company or partnership, making a share contribution to a production cooperative.

The joint-stock company, on the basis of paragraph 3 of Article 20 of the Federal Law "On State Registration of Rights to Real Estate and Transactions with It," filed a lawsuit with the Arbitration Court against the committee for registration of rights to real estate and transactions with it to invalidate the decision to refuse to register the transaction assignment of the right to lease concluded by the plaintiff (assignee) with the former tenant in accordance with Article 382 of the Civil Code of the Russian Federation.
At the same time, the plaintiff drew attention to the fact that before the assignment of the right, the former lessee (assignor) had paid rent for the entire lease period, and the costs of maintaining and current repairs of the leased property were assigned to the lessor by the lease agreement (paragraph 2 of Article 616 of the Civil Code of the Russian Federation). Consequently, as the plaintiff believed, he was transferred, by way of assignment, a “pure” right to lease, not burdened with any obligations.
The defendant in the response to the claim asked the court to refuse to satisfy the plaintiff's claim, believing that in the case under consideration, when transferring the right to lease, the requirements of paragraph 2 of Article 615 of the Civil Code of the Russian Federation were violated, and therefore the refusal to register corresponds to the provisions of paragraph 1 of Article 20 of the said Law.
The decision of the Arbitration Court dismissed the claim on the following grounds.
The right to lease as the right to use the property that is the object of the lease is always accompanied by certain obligations due to the very fact of use. These obligations arise from the law (Articles 615, 616, 622 of the Civil Code of the Russian Federation) or the contract and relate to the procedure and conditions for the use of property, its maintenance, as well as return after the termination of the lease.
In particular, the tenant is obliged to use the leased property in accordance with the terms of the lease agreement, and if such conditions are not specified in the agreement, then in accordance with the purpose of the property. Otherwise, the lessor has the right to demand termination of the contract and compensation for losses (paragraphs 1 and 3 of Article 615 of the Civil Code of the Russian Federation).
In addition, the tenant is obliged to maintain the property in good condition (paragraph 2 of Article 616 of the Code). This obligation is also preserved in the case when, according to the contract, the implementation of current repairs and the cost of maintaining the property is entrusted to the lessor (as in the situation under consideration).
Taking into account the foregoing, the court noted that paragraph 2 of Article 615 of the Civil Code of the Russian Federation establishes special rules for the transfer of the right of lease by the tenant to another person, defining as the forms of such transfer rent, contribution to the authorized capital of a business company or partnership, share contribution to a production cooperative.
Since the right to lease was not transferred to the plaintiff on any of the listed grounds, the defendant's refusal to register this transaction corresponds to paragraph four of paragraph 1 of Article 20 of the Federal Law "On State Registration of Rights to Real Estate and Transactions Therewith".

17. When releasing, the sublease agreement remains in force.

A limited liability company (tenant) filed a lawsuit with an arbitration court against a non-governmental institution (subtenant) for eviction from the occupied premises.
A cooperative was involved in the case as a third party not declaring independent claims.
By the decision of the arbitration court, left unchanged by the decision of the appellate instance, the claim was dismissed.
As follows from the materials of the case, in 1995 the property management committee (the lessor) entered into a contract with the joint-stock company (the former tenant) for the lease of non-residential premises for a period of 25 years.
In 1998, the joint-stock company, with the consent of the lessor, subleased one of the leased premises for a period of five years to an institution (the defendant in this case).
In 1999, the property management committee, the joint-stock company and the limited liability company (the plaintiff) signed a contract, according to which the joint-stock company transferred its rights and obligations under the lease agreement to the limited liability company, and the latter undertook to carry out a major overhaul and reconstruction the entire building at your own expense.
The new tenant (plaintiff) believed that since the conclusion of the said contract, the sublease agreement with a non-state institution was terminated, since the rights and obligations of the tenant were transferred by the former tenant (sublessor) by way of re-lease.
According to the plaintiff, the provisions of paragraph 1 of Article 617 of the Civil Code of the Russian Federation on maintaining the lease agreement in force in the event of the transfer of rights to the leased object to another person are inapplicable to the sublease agreement, since the specified norm refers to the transfer to the new owner of property rights, and in the situation under consideration in the order of lease, the plaintiff transferred the right of obligation that belonged to the previous tenant.
Referring to the absence in the law of a special provision on maintaining the sublease agreement in force in the event of the transfer of the right to lease to another tenant, the plaintiff believed that the defendant's right to sublease had ceased and the disputed property was free from encumbrances, therefore, with the consent of the lessor (committee), he concluded a sublease agreement with the cooperative (a third party in this case) and filed an eviction claim against the institution in order to transfer the premises to a new subtenant in accordance with the requirements of Article 611 of the Civil Code of the Russian Federation.
In dismissing the claim, the court pointed out that, by virtue of paragraph 2 of Article 615 of the Code, the rules on lease agreements apply to sublease agreements, unless otherwise provided by law or other legal acts.
Consequently, the provisions of Article 617 of the Civil Code of the Russian Federation on maintaining the lease agreement in force when the parties change are applied to sublease agreements.
Since the defendant occupies the disputed premises on the basis of a sublease agreement concluded in 1998 with the consent of the landlord for a period of five years, there were no grounds for his eviction.

18. The terms of the lease agreement, which granted the tenant the right to re-lease, do not contradict paragraph 2 of Article 615 of the Civil Code of the Russian Federation.

The joint-stock company, on the basis of paragraph 3 of Article 20 of the Federal Law "On State Registration of Rights to Real Estate and Transactions with It," filed a lawsuit with the Arbitration Court against the committee for registration of rights to real estate and transactions with it to invalidate the decision to refuse to register the transaction lease concluded by the plaintiff (new tenant) with the former tenant in accordance with paragraph 2 of Article 615 of the Civil Code of the Russian Federation.
The respondent in response to the claim asked the court to refuse to satisfy the plaintiff's claim, believing that the lease transaction is void as concluded without the consent of the lessor (property owner) and, therefore, the refusal to register it complies with the provisions of paragraph 1 of Article 20 of the said Law.
The lessor was involved in the case as a third party by the court.
Having examined the circumstances of the dispute, the court of first instance came to the conclusion that the defendant's refusal to register the plaintiff's right to lease was lawful, since the consent of the lessor of the disputed premises was not obtained to conclude a lease transaction in violation of the requirements of paragraph 2 of Article 615 of the Civil Code of the Russian Federation.
At the same time, the court pointed out that the terms of the lease agreement concluded between the owner of the premises (landlord) and the former tenant, according to which the tenant was assigned the right to sublease the leased premises and transfer rights and obligations for leasing without obtaining additional permission from the landlord, does not comply with clause 2 articles 615 of the Civil Code of the Russian Federation.
This norm of the law, which requires the consent of the lessor when making transactions with lease rights, is imperative, and therefore cannot be changed by the contract. According to the court, within the meaning of paragraph 2 of Article 615 of the Code, the consent of the lessor is required in respect of each transaction of sublease, re-lease and other transactions referred to in this paragraph. This rule cannot be changed by agreement of the parties by expressing the lessor's "general" consent in the lease agreement for the lessee to make such transactions.
From the materials of the case, it is seen that the lessor objected to the lease of the rights and obligations of the lessee by the joint-stock company, which is confirmed by the letters submitted by a third party, the receipt of which the plaintiff did not deny.
In view of the foregoing, the court dismissed the claim.
The court of appeal, having checked the legality of the adopted judicial act on the plaintiff's complaint, canceled the decision of the court of first instance and satisfied the claim.
In its ruling, the court of appeal noted that paragraph 2 of Article 615 of the Civil Code of the Russian Federation does not establish the procedure and form for the lessor to give consent to the lessee's sublease, lease and other transactions referred to in this paragraph.
Consequently, at the will of the parties to the lease agreement, the consent of the lessor can be expressed in the agreement itself, which relieves the tenant of the obligation to obtain such consent for each specific transaction.

19. The requirements of civil law on the registration of a lease agreement also apply to a sublease agreement.

The tenant filed a claim with the arbitration court against the subtenant to recover, in accordance with the sublease agreement, a penalty for late payment of the rent.
The court of first instance recognized the sublease agreement signed by the parties as not concluded due to the lack of its state registration, in connection with which it rejected the claim for the recovery of the penalty provided for by this agreement.
Appealing the decision of the court in the appellate instance, the plaintiff referred to the fact that the sublease agreement is a derivative of the lease agreement, does not have independence, is concluded for a period not exceeding the term of the lease agreement, does not additionally burden the real rights of the owner of the property, and therefore is not subject to state registration.
The Court of Appeal considered the applicant's arguments and found them unfounded, pointing out that in accordance with paragraph three of clause 2 of Article 615 of the Civil Code of the Russian Federation, the rules on lease agreements apply to sublease agreements, unless otherwise provided by law or other legal acts.
The Civil Code of the Russian Federation and the Federal Law "On State Registration of Rights to Real Estate and Transactions Therewith" do not contain provisions that exclude the application of the state registration requirement for sublease agreements.
Therefore, the conclusion of the court of first instance that the non-residential premises sublease agreement signed by the parties, by virtue of paragraph 2 of Article 609, paragraph 2 of Article 651 of the Code, was subject to state registration and could be considered concluded from the moment of such registration, is legitimate.
In view of the foregoing, the appellate court upheld the court's decision.

20. The provisions of paragraph 2 of Article 621 of the Civil Code of the Russian Federation concerning the renewal of a lease agreement for an indefinite period shall apply to the sublease agreement subject to the rules of paragraph two of paragraph 2 of Article 615 of the Code, within the meaning of which the term of the sublease agreement is in any case limited to the lease term.

The tenant filed a claim with the arbitration court against the subtenant on the obligation of the subtenant to vacate the non-residential premises due to the expiration of the period specified in the sublease agreement.
The defendant, objecting to the stated requirement, referred to the fact that the sublease agreement is, by virtue of paragraph 2 of Article 621 of the Civil Code of the Russian Federation, renewed for an indefinite period. Since the plaintiff did not warn him in accordance with article 610 of the Code of withdrawal from the contract, the claim is not subject to satisfaction.
The arbitration court, resolving the dispute, proceeded from the following.
Between the plaintiff and the defendant, with the consent of the landlord, a sublease agreement was concluded, the term of which was less than the period established in the lease agreement.
After the expiration of the sublease agreement, the defendant continued to use the rented premises in the absence of objections from the plaintiff.
According to the third paragraph of clause 2 of article 615 of the Civil Code of the Russian Federation, the rules on lease agreements apply to sublease agreements, unless otherwise provided by law or other legal acts.
Unless otherwise established by law, the sublease agreement between the plaintiff and the defendant, by virtue of paragraph 2 of Article 621 of the Code, is renewed for an indefinite period. At the same time, each of the parties has the right to refuse it in the manner prescribed by Article 610 of the Civil Code of the Russian Federation.
However, according to the second paragraph of clause 2 of Article 615 of the Code, a sublease agreement cannot be concluded for a period exceeding the term of the lease agreement.
The contract, under which the plaintiff was given the premises for rent, terminated due to the expiration of its term.
Consequently, the sublease agreement, which is derived from the lease agreement, despite its renewal for an indefinite period, also ceased to be valid.
Under such circumstances, it was not required to send a warning about the refusal of the sublease agreement in accordance with Article 610 of the Code.
Since the defendant has no other legal grounds for occupying the disputed premises, the arbitration court ordered him to vacate this premises.

21. An indication in the acceptance certificate of the leased premises of an emergency state of the central heating system does not in itself mean imposing on the tenant the burden of incurring the costs of eliminating the consequences of the accident and major repairs caused by urgent need.

The Property Management Committee (landlord), on the basis of paragraph 3 of part one of Article 619 of the Civil Code of the Russian Federation, filed a claim with a limited liability company to terminate the lease agreement due to failure to pay rent within the established time limits and to evict the defendant from the occupied non-residential premises.
By a decision of the court of first instance, the claim was dismissed on the grounds that the defendant (tenant) made a major overhaul of the central heating system of the leased premises and, in accordance with paragraph 1 of Article 616 of the Civil Code of the Russian Federation, offset its cost against the rent.
By the decision of the court of appeal, this decision was canceled and the lessor's claim was satisfied with the reference to the fact that in the situation under consideration the lessee did not have the right to offset the cost of capital repairs against the rent.
The Court of Appeal stated the following:
According to the terms of the agreement, the landlord is obliged to carry out a major overhaul of the leased non-residential premises along with a major overhaul of the entire building, but the scheduled overhaul of the disputed structure has not yet come. The tenant undertook the obligation to overhaul the leased object in case of urgent need, because, knowing about the shortcomings of the leased premises, in particular about the emergency state of the central heating system, he accepted this premises according to the act of acceptance and transfer (on the emergency state of the central heating system a note was made in the specified act). Thus, the tenant deprived himself of the right to attribute the cost of major repairs caused by urgent need to the landlord.
The court of cassation, having checked the case materials in connection with the defendant's complaint, found that the defendant, objecting to the stated requirements, referred to the overhaul of the central heating system due to urgent need (accident) and the landlord's refusal to carry out such repairs.
According to Article 611 of the Civil Code of the Russian Federation, the lessor is obliged to provide the tenant with property in a condition that complies with the terms of the lease agreement and the purpose of the property. However, as can be seen from the act of acceptance and transfer of the premises, the central heating system at the time of transfer was in an emergency condition.
Assessing this circumstance, the court of cassation noted that the reference in the act of transfer and acceptance to the emergency state of the central heating system does not in itself mean that the tenant has assumed the obligation to eliminate the consequences of possible accidents and, if necessary, to carry out major repairs at his own expense.
The materials of the case confirm and the plaintiff does not dispute the fact of the accident of the central heating system. Inspection acts, drawn up with the participation of representatives of the heat supply organization and the lessor, confirm the need for its overhaul.
The tenant repeatedly appealed to the landlord with a request to take urgent measures to eliminate the consequences of the accident and to overhaul the central heating system, as evidenced by the statements and telegrams in the case.
Since the landlord did not take appropriate measures, the tenant was forced to carry out major repairs at his own expense, concluding an agreement with the contractor.
Under such circumstances, the court of first instance reasonably concluded that the defendant had the right, in accordance with paragraph 1 of Article 616 of the Civil Code of the Russian Federation, to set off against rent the cost of major repairs of the central heating system caused by urgent need.
Taking into account the foregoing, and also taking into account that the defendant had no other rent arrears, the court of cassation annulled the decision of the appellate instance and upheld the decision of the court of first instance to refuse to satisfy the claim of the plaintiff.

22. The agreement concluded by the lessor and the lessee, which establishes the procedure for the participation of the lessee in the costs of consumed electricity, cannot be qualified as an energy supply agreement.

The joint-stock company (tenant) applied to the arbitration court with a claim to invalidate the agreement, which defines the procedure for participation in the costs of consumed electricity, as not complying with the norms of the Civil Code of the Russian Federation regulating energy supply.
The court of first instance qualified the disputed contract as an energy supply contract, recognized it as an invalid (void) transaction as contrary to Article 545 of the Code, since the permission of the energy supply organization to connect the sub-subscriber was not obtained.
The Court of Appeal overturned the decision and dismissed the claim on the following grounds.
According to article 539 of the Civil Code of the Russian Federation, the parties to the contract for energy supply are the energy supply organization and the subscriber (consumer) who has an energy receiving device connected to the networks of the energy supply organization.
The defendant, as a subscriber, received electricity to supply a building belonging to him on the basis of an agreement with an energy supply organization.
The plaintiff entered into a lease agreement for non-residential premises in a building owned by the defendant. In addition, the parties entered into a separate agreement in which they determined the procedure for the participation of the tenant in the costs of consumed electricity, specifying the amount and cost of the electricity required by the tenant.
The parties called this agreement a contract for the supply (vacation) and consumption of electric energy for a fee, indicating the lease agreement as the basis for its conclusion and calling themselves the lessor and the lessee.
Thus, the plaintiff used the electricity received by the defendant in connection with the lease of premises. In this case, the defendant was not an energy supply organization.
Therefore, the conclusion of the court of first instance that the agreement, called the contract for the supply (vacation) and consumption of electricity for a fee, is a contract for energy supply, is unfounded.
The disputed agreement actually established the procedure for determining the plaintiff's expenses for electricity in the premises he rented and was part of the lease agreement.
There were no grounds for recognizing this agreement as invalid as contrary to the law.

23. When the owner of the leased property is changed, regardless of whether the issue of reissuing the lease agreement was raised, the former owner loses, and the new owner acquires the right to receive income from the lease of property.

The limited liability company (the new owner) filed a claim with the arbitration court against the joint-stock company (the former owner) for the recovery, on the basis of Article 1107 of the Civil Code of the Russian Federation, of the income that the defendant had extracted from the property from the moment the ownership of it was transferred to the plaintiff.
The tenant of the disputed property was involved in the case as a third party not declaring independent claims on the subject of the dispute.
The court of first instance dismissed the claim, referring to the existence of a contractual relationship between the defendant and a third party. In doing so, the court proceeded from the following.
The premises occupied by the tenant on the basis of a lease agreement with the defendant were purchased by the plaintiff.
The tenant was not notified of the change of ownership by either the new or the former owner.
The plaintiff, having become the owner of the disputed property, did not raise the issue of replacing the lessor under the lease agreement for this property.
Considering the foregoing, as well as the fact that the lease agreement between the defendant and the third party was not terminated and not declared invalid in the manner prescribed by law, the court concluded that the tenant lawfully paid the rent to the landlord under the agreement.
The Court of Appeal found the arguments of the Court of First Instance unfounded, reversed the decision, and satisfied the claim on the following grounds.
By virtue of Article 617 of the Civil Code of the Russian Federation, the transfer of ownership of leased property to another person is not a basis for changing or terminating a lease agreement. At the same time, regardless of whether the issue of re-registration of the lease agreement was raised, the former owner loses, and the new one acquires the right to receive income from the lease of property.
Since the plaintiff became the owner of the premises, and the defendant continued to receive the rent, the plaintiff's claims based on Article 1107 of the Code were subject to satisfaction.

24. The transfer of ownership of the leased property to another person does not in itself constitute grounds for introducing judicial amendments to the terms of the lease agreement concluded by the former owner with the tenant (with the exception of changing information about the lessor in the agreement).

The joint-stock company (the new owner of the property) applied to the arbitration court with a claim against the limited liability company (the lessee) to amend the lease agreement in terms of the name of the lessor and the lease term.
In confirmation of the right to bring this claim, the plaintiff referred to the acquisition of ownership of the building in which several non-residential premises are occupied by the defendant on the basis of a lease agreement concluded with the previous owner, and also submitted documents confirming state registration of ownership.
The new owner of the building proposed to the tenant to amend the lease agreement regarding the name of the landlord, as well as the conditions for the lease term. Since the tenant refused to amend the contract, the joint-stock company filed a corresponding claim with the arbitration court.
By virtue of Articles 450, 451 of the Code, at the request of one of the parties, the contract may be amended by a court decision only in case of a material breach of the contract by the other party, in other cases provided for by the Code, other laws or the contract, as well as in connection with a significant change in circumstances, of which parties proceeded at the conclusion of the contract.
The arbitration court dismissed the claim, referring to Article 617 of the Civil Code of the Russian Federation, according to which the transfer of ownership (economic management, operational management) of the leased property to another person is not a basis for changing or terminating the lease agreement.
The Court of Appeal overturned the decision regarding the refusal of the claim to change the name of the lessor in the contract, this requirement was recognized as subject to satisfaction on the following grounds.
By virtue of Article 608 of the Civil Code of the Russian Federation, the lessor under a lease agreement is the owner of the property.
Thus, in connection with the change of ownership of the property leased by the defendant, the former lessor ceased to be a party to the lease agreement with the defendant, therefore, the plaintiff's demand for a replacement in the lessor's contract is legitimate.

25. The grounds for early termination of the lease agreement at the request of the lessor, established in the agreement in accordance with part two of Article 619 of the Civil Code of the Russian Federation, may not be associated with any violations on the part of the tenant.

The branch of the railway (the lessor), on the basis of part two of Article 619 of the Civil Code of the Russian Federation, filed a claim with the arbitration court against the limited liability company for early termination of the lease agreement.
In support of the claim, the lessor referred to the provision of the lease agreement, according to which he has the right to demand early termination of the contract if there is an operational need to operate the leased platform.
The defendant objected to the stated demand, considering the relevant provision of the contract null and void, since, in his opinion, by virtue of part two of Article 619 of the Civil Code of the Russian Federation, other grounds for early termination of the lease agreement at the request of the lessor, in addition to those provided for in part one of this article, should be related to any or breach of contract by the tenant. In other words, such termination is possible only as a result of unlawful actions (inaction) on the part of the tenant. Since the grounds given by the plaintiff do not meet the specified criterion, it is unreasonably included in the contract with reference to the second part of Article 619 of the Code and cannot lead to termination of the contract before the expiration of the lease term.
The tenant believed that this condition could be provided for in the contract only as a basis for the lessor's refusal to perform the contract out of court (paragraph 3 of Article 450 of the Civil Code of the Russian Federation), but the parties did not express such an expression of will when concluding the contract.
The court did not agree with the arguments of the defendant and satisfied the claim, noting the following.
Part one of Article 619 of the Civil Code of the Russian Federation provides for a number of grounds for early termination of a lease agreement at the request of the lessor. All these grounds relate to certain violations of the contract by the tenant.
According to part two of Article 619 of the Code, the lease agreement may also establish other grounds for early termination of the agreement at the request of the lessor in accordance with paragraph 2 of Article 450 of the Civil Code of the Russian Federation.
However, the fact that part one of this article provides for exclusively violations of the terms of the contract by the tenant as grounds for terminating the contract does not mean that other grounds for termination included by the parties in the contract should also be associated with violations of its terms.
It should be taken into account that the second part of Article 619 of the Civil Code of the Russian Federation refers to the entire paragraph 2 of Article 450 of the Code, and not only to subparagraph 1 of this paragraph. Therefore, the parties have the right to stipulate any ground for early termination of the contract in court at the request of the lessor, both related and not related to any violation.
As follows from the evidence presented by the plaintiff, the need for the railway department to use the leased platform is due to an increase in the intensity of electric train traffic due to an increase in passenger traffic in the suburban direction, of which the lessor notified the tenant within the period specified in the contract (three months in advance).
Thus, guided by the relevant terms of the agreement, the plaintiff (landlord) had the right to demand early termination of the lease agreement.

26. The lease agreement may provide for the possibility of early termination of the agreement at the request of the landlord in the event of a single failure by the tenant to pay rent within the period established by the agreement.

The property management committee (landlord), on the basis of part two of Article 619 of the Civil Code of the Russian Federation, filed a lawsuit against the cooperative with a claim against the cooperative to terminate the lease agreement and evict the defendant from the occupied premises.
In support of the claims, the Committee referred to the terms of the agreement, according to which the landlord has the right to demand early termination of the lease agreement in the event of a single violation by the tenant of the term established by the agreement for paying the rent.
The defendant asked the court to dismiss the claim, believing that the mentioned condition of the contract contradicts the provisions of paragraph 3 of the first part of Article 619 of the Civil Code of the Russian Federation.
The court's decision to satisfy the claims was denied on the following grounds.
By virtue of paragraph 3 of part one of Article 619 of the Code, at the request of the lessor, the lease agreement may be prematurely terminated by the court in the event that the lessee fails to pay rent more than twice in a row after the expiration of the payment period established by the agreement.
Since such a ground for terminating the contract as a delay in paying the rent is provided for in part one of Article 619 of the Civil Code of the Russian Federation, the condition of the contract referred to by the plaintiff in support of his claim did not correspond to part two of this article, since it did not establish another ground for terminating the contract.
Taking into account the fact that Article 619 of the Civil Code of the Russian Federation does not allow changing the provisions of its first part by agreement of the parties, the plaintiff's claims were not subject to satisfaction.
The plaintiff in the appeal insisted that the disputed condition was included in the contract in full compliance with the requirements of the second part of Article 619 of the Code. By virtue of paragraph 3 of part one of this article, the grounds for terminating the contract is the non-payment of rent more than two times in a row. A single violation by the tenant of the terms established by the agreement for making the rent is another reason for terminating the lease agreement.
The Court of Appeal supported the plaintiff's position, additionally noting that the grounds provided for in the first part of Article 619 of the Code included not only such an element as "delay in payment", but also two more elements: "more than twice" and "in a row". From this point of view, in the situation under consideration, the parties determined in the contract a different basis for its termination than that provided for by paragraph 3 of the first part of Article 619 of the Civil Code of the Russian Federation.
The decision of the court of first instance was canceled, the claims were satisfied.

27. The lease agreement may provide grounds for the lessor's refusal to perform the contract and its termination out of court, including those related to the tenant's violation of one or another term of the contract (Item 3 of Article 450 of the Civil Code of the Russian Federation).

A limited liability company (lessor) filed a lawsuit against the joint-stock company (tenant) with an arbitration court for eviction from the occupied non-residential premises in connection with the termination of the lease agreement.
The defendant considered the plaintiff's claim unlawful, since the lease agreement, without being terminated in court, continues to operate.
During the trial, it was established that when concluding the lease agreement at the initiative of the lessor, a condition was included in the agreement providing for the grounds for the lessor's refusal to execute the agreement in accordance with paragraph 3 of Article 450 of the Civil Code of the Russian Federation. As such a reason, a single non-payment of rent by the tenant within the period established by the agreement was determined.
According to the respondent, this provision of the contract is void, since, within the meaning of Article 619 and paragraph 2 of Article 450 of the Code, certain violations of the contract by one of the parties can only be grounds for terminating the contract in court at the request of the other party, but not for the latter’s refusal to performance of the contract out of court.
The court did not agree with the position of the tenant, noting that such a conclusion does not follow either from the above norms of the law, or from the provisions of paragraph 3 of Article 450 of the Civil Code of the Russian Federation.
The fact of violation, with which the contract links the right of the lessor to refuse to perform the contract, is proved by the case materials and is not disputed by the defendant. By virtue of paragraph 3 of Article 450 of the Code, in this case, the contract is considered terminated, the corresponding court decision is not required.
Since the tenant did not voluntarily vacate the occupied non-residential premises, the landlord had the right to apply to the court with a claim for his eviction in connection with the termination of the lease.
Considering the foregoing, the court granted the claim.

28. The lease agreement may be terminated in connection with the payment of rent not in full, if the court recognizes this violation as significant.

The landlord filed a claim against the tenant with the arbitration court for the recovery of rent arrears, penalties for late payment and termination of the lease agreement in connection with its material breach by the tenant.
By the decision of the court of first instance, the defendant was charged with rent arrears and a penalty, the claim for termination of the lease agreement was denied on the following grounds.
The court found that the parties had previously disagreed on the amount of the rent to be transferred. The defendant made the rent payments in a timely manner, but in a smaller amount, in connection with which the debt presented for collection was formed.
Part one of Article 619 of the Civil Code of the Russian Federation provides for the grounds for early termination of a lease agreement at the request of the lessor. According to the second part of the named article, other grounds for this, in accordance with paragraph 2 of Article 450 of the Code, may be established by the lease agreement.
Since the parties did not stipulate in the agreement the possibility of its early termination in the event of non-payment of the rent in full, and in part one of Article 619 of the Civil Code of the Russian Federation such a ground for early termination of the agreement is not contained, the arbitration court, having collected the rent arrears and the penalty for late payment, in dismissed the claim for termination of the lease.
The court of appeal overturned the decision of the court of first instance regarding the refusal to terminate the lease agreement, indicating that the existence of Article 619 of the Civil Code of the Russian Federation, which establishes special rules for early termination of the contract, does not exclude the possibility of early termination of the lease agreement on the basis of Article 450 of the Code.
According to paragraph 2 of Article 450 of the Civil Code of the Russian Federation, at the request of one of the parties, the contract may be terminated by a court decision in case of a material breach of the contract by the other party. Violation of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract.
After evaluating the circumstances of the case and coming to the conclusion that the violation committed by the defendant is significant, the court terminated the lease agreement.

29. If the reason for terminating the lease agreement is the tenant’s failure to fulfill the obligations assigned to him, the landlord, before applying to the court with a claim for early termination of the agreement, is obliged to send the tenant a written warning about the need to fulfill his obligation within a reasonable time (part three of Article 619 of the Civil Code of the Russian Federation), as well as a proposal to terminate the contract (paragraph 2 of Article 452 of the Code).

The property management committee (landlord) filed a lawsuit against the joint-stock company with an arbitration court to terminate the lease agreement and evict the defendant from the occupied non-residential premises.
This requirement was stated on the basis of paragraph 3 of the first part of Article 619 of the Civil Code of the Russian Federation in connection with the defendant's failure to fulfill the obligation to pay rent.
By the decision of the arbitration court, the claim was left without consideration with reference to paragraph 5 of Article 87 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation).
At the same time, the court indicated that the plaintiff had not fully complied with the requirements of the law regarding the pre-trial procedure for settling a dispute on the early termination of the lease agreement at the request of the landlord.
By virtue of part three of Article 619 of the Code, the landlord has the right to demand early termination of the contract only after sending a written warning to the tenant about the need to fulfill his obligation within a reasonable time.
As follows from the materials submitted by the plaintiff, the committee sent the company such a warning, which raised the question of the need to pay off the rent arrears.
However, within the meaning of part three of Article 619 of the Civil Code of the Russian Federation, the said warning does not in itself constitute a proposal to amend or terminate the lease agreement. The right to demand the termination of the said contract arises from the lessor only if the lessee does not eliminate the relevant violations within a reasonable time.
Since part three of Article 619 of the Code does not regulate the procedure for terminating a lease agreement, the general rule contained in paragraph 2 of Article 452 of the Civil Code of the Russian Federation applies to lease relations. According to this rule, a demand to change or terminate a contract can be filed by a party to the court only after receiving a refusal from the other party to the proposal to change or terminate the contract or failure to receive a response within the time period specified in the proposal or established by law or the contract, and in its absence - within thirty days. term.
In this regard, the court drew the plaintiff's attention to the fact that the warning sent to the defendant raised the question only of the need to pay off the rent arrears. The proposal to terminate the contract in case of failure to fulfill this obligation within a reasonable time was not contained in this warning.
Since the plaintiff, when sending the warning, did not comply with the provisions of paragraph 2 of Article 452 of the Civil Code of the Russian Federation, the claim was subject to dismissal.

30. A necessary condition for satisfying the lessor's claim for early termination of the lease on the basis of Article 619 of the Civil Code of the Russian Federation is the establishment during the trial of the fact that the lessee received a written warning from the lessor about the need to fulfill the contractual obligation.

The landlord filed a claim with the arbitration court for early termination of the lease agreement for non-residential premises, referring to the second part of Article 619 of the Civil Code of the Russian Federation, according to which the lease agreement may establish the grounds for early termination of the agreement at the request of the landlord in accordance with paragraph 2 of Article 450 of the Code.
Clause 5 of the lease agreement provides that the sublease of the leased premises without the written permission of the landlord is the basis for its early termination.
When checking the use of the premises by the tenant, carried out by the landlord, it was established that an outside organization was located in it, which is reflected in the acts submitted to the court.
Objecting to the stated requirement, the defendant, without disputing the fact of subleasing the premises he rented to a third party without the appropriate permission of the landlord, referred to non-compliance with the procedure for pre-trial settlement of the dispute established by Part 3 of Article 619 of the Civil Code of the Russian Federation, pointing out that he had not received a written warning from the landlord about the need to eliminate the breach of contractual obligation within a reasonable time.
According to part three of Article 619 of the Civil Code of the Russian Federation, the lessor has the right to demand early termination of the contract only after sending a written warning to the tenant about the need to fulfill his obligation within a reasonable time.
The court recognized the defendant's argument as justified, pointing out that, within the meaning of Article 619, paragraph three, of the Code, such a written warning must be received by the tenant so that he is able to fulfill the contractual obligation within a reasonable time.
As it was established during the trial, the plaintiff, for its part, did not take appropriate measures that would guarantee the receipt by the defendant (tenant) of the appropriate written warning (delivery against receipt, sending by registered mail or with acknowledgment of receipt).
There was also no other evidence that the defendant had received a warning in the case file.
Considering the above, the court recognized the procedure for pre-trial settlement of the dispute as not observed and, guided by paragraph 5 of Article 87 of the Arbitration Procedure Code of the Russian Federation, left the claim without consideration.

31. A lease agreement concluded in accordance with paragraph 1 of Article 621 of the Civil Code of the Russian Federation for a new term is a new lease agreement.

The joint-stock company and the owner of the building concluded a lease agreement for non-residential premises.
At the conclusion of the lease agreement for a new period, the parties disagreed on the amount of the rent.
The lessor, believing that the dispute arose about changing the contract, referred these disagreements for resolution by the arbitration court.
By the decision of the court of first instance, left unchanged by the decision of the appellate instance, the claim was dismissed on the basis of paragraph two of clause 1 of Article 621 of the Civil Code of the Russian Federation, according to which, when concluding a lease agreement for a new term, the terms of the agreement may be changed by agreement of the parties.
The court of cassation annulled the judicial acts and transferred the case for a new trial to the court of first instance on the following grounds.
According to Article 610 of the Code, a lease agreement is concluded for a period specified in the agreement.
The lessor notified the tenant of the expiration of the lease agreement and of the need, if the defendant intends to use the property in the future, to conclude a lease agreement for a new term, which indicates the termination of the previously valid lease agreement due to the expiration of its term.
Within the meaning of Article 621 of the Civil Code of the Russian Federation, the conclusion of a lease agreement for a new term is the conclusion of a new agreement.
The claim was brought in connection with the defendant's refusal to sign a lease for a new term due to changes made by the landlord in terms of the amount of rent.
Thus, a pre-contractual dispute arose between the parties.
Article 22 of the Arbitration Procedure Code of the Russian Federation establishes that disputes resolved by an arbitration court include disputes about disagreements under an agreement, the conclusion of which is provided for by law or the transfer of disagreements on which the parties agree to resolve an arbitration court.
The correspondence in the case indicates that the parties discussed the issue of the possible transfer of the disagreements that had arisen for resolution by the arbitration court.
In view of the above, the court of cassation transferred the case to the court of first instance, pointing out the need to clarify the issue of the existence of an agreement between the parties on such a transfer.

32. When concluding, in accordance with paragraph 1 of Article 621 of the Civil Code of the Russian Federation, a lease agreement for a new term, the parties are not bound by the terms of the previously valid agreement.

The Property Management Committee (the landlord) filed a lawsuit against the tenant with a claim to the arbitration court for the recovery of rent debt.
Objecting to the stated requirement, the defendant referred to the fact that the amount presented for collection from him was the difference between the amount of the rent established in the previously valid lease agreement and the rent determined at the conclusion of the lease agreement for a new term. According to the defendant, changing the amount of rent when concluding a lease for a new term contradicts paragraph 3 of Article 614 of the Civil Code of the Russian Federation, according to which a change in rent is allowed no more than once a year.
The Arbitration Court recognized the defendant's arguments as unfounded for the following reasons.
In accordance with Article 621 of the Civil Code of the Russian Federation, the conclusion of a lease agreement for a new term is essentially the conclusion of a new agreement. Therefore, the parties are not bound by the terms of the previously existing lease agreement.
The norm of paragraph 3 of Article 614 of the Code regulates the procedure for reviewing the rent during the term of the lease agreement, and therefore is not subject to application when concluding an agreement for a new term.
According to the second paragraph of clause 1 of Article 621 of the Civil Code of the Russian Federation, when concluding a lease agreement for a new period, the terms of the agreement may be changed by agreement of the parties.
The draft lease agreement proposed by the landlord for a new term, providing for an increased amount of rent, was signed by the tenant without any comments.
In view of the above, the court recognized the plaintiff's claim for the recovery of debt, calculated on the basis of the amount of rent specified in the new lease agreement, legitimate.

33. Notifying the tenant before the expiration of the lease agreement on its termination and on the refusal of the landlord to renew the lease relationship does not in itself deprive the tenant of the opportunity to exercise the pre-emptive right to conclude a lease agreement for a new term.

The joint-stock company filed a claim with the arbitration court against the property management committee and the individual entrepreneur for the transfer of rights and obligations under the lease agreement concluded between the defendants.
In support of his claim, the plaintiff referred to the fact that, in accordance with paragraph one of clause 1 of Article 621 of the Civil Code of the Russian Federation, he, as a bona fide tenant, after the expiration of the contract, has, all other things being equal, a priority right over other persons to conclude a lease for a new term.
The court of first instance, resolving the dispute, was guided by paragraph 1 of Article 621 of the Civil Code of the Russian Federation, according to which the tenant is obliged to notify the landlord in writing of the desire to conclude such an agreement within the period specified in the lease agreement, and if such a period is not specified in the agreement, within a reasonable time before the expiration date contracts.
In the lease agreement between the property management committee and the joint-stock company, it was established that the tenant must notify the landlord of the intention to conclude a lease agreement for a new term at least one month before the end of the lease term.
Since evidence of the plaintiff's compliance with the requirements of Article 621 of the Code and the agreement on the written notification of the lessor of the intention to conclude a lease for a new term was not presented, the court concluded that the plaintiff had lost the pre-emptive right to conclude a lease for a new term, in connection with which he recognized the stated requirement for transfer of rights and obligations under the lease concluded by the defendants not subject to satisfaction.
Appealing to the court of appeal the decision taken on the merits of the dispute, the plaintiff referred to the fact that he was deprived of the opportunity to notify the landlord of his intention to conclude a contract for a new term, since the latter had been informed of the refusal to renew the lease agreement before the expiration of the contract.
The Court of Appeal recognized the applicant's argument as unfounded, stating that the notice sent by the landlord only testifies to the intention to terminate the previous lease agreement due to the expiration of the period established in it. This circumstance did not prevent the plaintiff from exercising the right to conclude a lease agreement for a new term in accordance with Article 621 of the Civil Code of the Russian Federation.

34. The pre-emptive right to conclude a lease agreement for a new term belongs only to the tenant under the agreement.

An individual entrepreneur filed a lawsuit with the arbitration court to compel the property management committee to conclude a lease agreement for non-residential premises.
At the same time, the plaintiff referred to the fact that he actually uses the disputed premises, pays utilities and pays rent, and therefore has a pre-emptive right to conclude a lease agreement.
The reason for going to court was the conclusion by the defendant of the contract for the lease of the said premises with the joint-stock company.
According to paragraph 1 of Article 621 of the Civil Code of the Russian Federation, unless otherwise provided by law or the lease agreement, the tenant who duly performed his duties, after the expiration of the term of the agreement, has, all other things being equal, a priority right over other persons to conclude a lease agreement for a new term.
The arbitration court found that the committee intended to conclude a lease agreement with the entrepreneur and prepared a draft agreement and calculation of the rent, but the essential terms of the agreement were not agreed upon by the parties.
Since the entrepreneur was not a party to the lease agreement, the arguments that he has a pre-emptive right to renew the lease agreement are unfounded.
In view of the foregoing, the court dismissed the claim.
This decision was upheld by all courts.

35. The tenant's pre-emptive right to conclude a lease agreement for a new term may be exercised by him only if the lessor transfers the disputed property to a third party for lease.

The tenant filed a claim with the arbitration court against the landlord for the transfer of rights and obligations under the lease agreement for non-residential premises concluded by the latter with another person.
In support of the stated claim, the plaintiff referred to the transfer of the disputed premises for use to a third party, while by virtue of paragraph 1 of Article 621 of the Civil Code of the Russian Federation, he, as a tenant who duly fulfilled his contractual obligations, has a pre-emptive right to conclude a lease agreement for a new term.
In making its decision, the court proceeded from the fact that, in accordance with paragraph 1 of Article 621 of the Code, unless otherwise provided by law or the lease agreement, the tenant who duly performed his duties, after the expiration of the term of the agreement, has, all other things being equal, the right to conclusion of a lease agreement for a new term. If the landlord refused to conclude an agreement for a new term with the tenant, but within a year from the date of expiration of the agreement with him concluded a lease agreement with another person, the tenant has the right, at his choice, to demand in court the transfer of rights and obligations under the concluded agreement and compensation for losses, caused by the refusal to renew the lease agreement with him, or only compensation for such losses.
According to the evidence presented in the case, the disputed non-residential premises are subject to transfer by the defendant to a third party for free use in connection with their joint activities.
Therefore, the court recognized the plaintiff's reference to Article 621 of the Civil Code of the Russian Federation as unfounded, and the claim was not subject to satisfaction.

36. In the event that the lease agreement does not specify the place of fulfillment of the obligation to transfer movable property by the lessee to the lessor after the termination of the lease agreement, the property is subject to transfer in the place where it was received by the lessee.

The lessor filed a claim with the arbitration court against the lessee to recover the rent for the period of delay in returning the rented car in accordance with Article 622 of the Civil Code of the Russian Federation.
The court of first instance, having established that the car rental agreement had been terminated ahead of schedule, satisfied the claim. At the same time, the court proceeded from the fact that, according to Article 622 of the Code, if the tenant did not return the leased property or returned it untimely, the landlord has the right to demand payment of rent for the entire time of delay.
The Court of Appeal reversed this decision and dismissed the claim on the following grounds.
In accordance with paragraph 3 of Article 405 of the Civil Code of the Russian Federation, the debtor is not considered to be in arrears until the obligation can be performed due to the creditor's delay. The creditor is considered to be in arrears if he refused to accept the proper performance proposed by the debtor or did not take actions provided for by law, other legal acts or an agreement or arising from business practices or from the essence of the obligation, before which the debtor could not fulfill his obligation (Article 406 of the Civil Code of the Russian Federation). ).
Since the parties did not stipulate in the lease agreement the place of return of the leased property, the court applied paragraph six of Article 316 of the Civil Code of the Russian Federation, according to which the execution must be carried out at the location of the legal entity that is the debtor.
The case materials confirmed the fact that the rented car was parked by the tenant and remained there until it was handed over to the lessor. In addition, the lessee repeatedly sent notices to the lessor about his readiness to return the car.
The court of cassation annulled the decision of the appellate instance and upheld the decision of the court of first instance, indicating that paragraph six of Article 316 of the Civil Code of the Russian Federation in this case was applied incorrectly by the court. This rule applies to cases where the transfer of property is the main obligation of the debtor under the contract.
In this case, however, the lessee's obligation, which arose after the termination of the lease agreement, consists not in the actual transfer, but in the return of the property to the lessor.
Therefore, guided by the first paragraph of Article 316 of the Code, it should be recognized that from the essence of this obligation it follows that the return must occur at the place where this property was received by the tenant.
In this regard, the lessee was obliged to hand over the car to the lessor at the place where it was received.

37. The lessor is not entitled to demand from the lessee the rent for the period of delay in the return of the property in connection with the termination of the contract if the lessor himself evaded acceptance of the leased property.

The landlord filed a claim with the arbitration court for the recovery of rent from the tenant on the basis of part two of Article 622 of the Civil Code of the Russian Federation for the use of non-residential premises from the moment the lease agreement was terminated until the acceptance certificate was signed.
The court of first instance, having established the fact of delay in the return of the property to the lessor, satisfied the claim.
The Court of Appeal overturned the decision and dismissed the claim on the following grounds.
The disputed non-residential premises were provided for use by the defendant on the basis of a lease agreement, which has expired.
In accordance with Article 622 of the Civil Code of the Russian Federation, if the tenant did not return the leased property or returned it untimely, the landlord has the right to demand payment of rent for the entire time of delay.
In the agreement, the parties stipulated that after the expiration of its validity period, the tenant is obliged to return the non-residential premises according to the transfer act signed by the parties.
According to the evidence presented, the defendant vacated the premises by the end of the contract and repeatedly notified the landlord of his readiness to transfer it with the execution of the act, as provided by the contract. However, the act was not executed in a timely manner.
By virtue of Article 309 of the Code, obligations must be performed properly in accordance with the terms of the obligation and the requirements of the law.
Since the tenant's untimely return of the property to the lessor was caused by the latter's evasion from accepting this property, the court recognized the claim as not subject to satisfaction.

38. The collection of rent for the actual use of the leased property after the expiration of the contract is made in the amount determined by this contract.

The Property Management Committee applied to the Arbitration Court with a claim to recover from the joint-stock company the rent arrears calculated from the moment the contract was terminated until the premises were vacated.
Objecting to the claim, the defendant referred to the fact that, in accordance with paragraph 3 of Article 453 of the Civil Code of the Russian Federation, the obligations of the parties are considered terminated from the moment the contract is terminated, therefore, when determining the amount of rent to be collected, the lessor cannot be guided by its terms.
The said agreement provided for a rent, the amount of which significantly exceeded the rental rate usually applied when renting similar property, which, in particular, was the reason that prompted the joint-stock company to terminate the lease relationship ahead of schedule.
The rent for the disputed period, calculated according to the methodology approved by the city administration, was transferred before the initiation of the case.
The court satisfied the claim, referring to the second part of Article 622 of the Civil Code of the Russian Federation, according to which the tenant who returned the property untimely is obliged to pay rent for the entire time of delay. Thus, by virtue of the law, the termination of the lease agreement does not in itself entail the termination of the obligation to pay rent, it will be terminated by the proper fulfillment by the tenant of the obligation to return the property to the lessor.
Since in this case the joint-stock company failed to fulfill its obligation to return the premises in a timely manner, the rent established by the contract is subject to collection from it for the entire time of delay.

39. The lessor has the right to require the lessee to pay interest for the use of other people's funds in the event of delay in paying the rent and for the period from the moment the lease agreement is terminated until the property is returned to the lessor.

A trading and manufacturing company filed a lawsuit against a limited liability company with an arbitration court for the recovery of rent arrears and interest for the use of other people's funds.
During the trial, it was established that after the termination of the lease agreement, the defendant (tenant) returned the property provided under the agreement to the landlord with a significant delay. The rent claimed by the plaintiff (lessor) was accrued for the period from the moment the lease agreement was terminated until the return of the leased property.
The claim was partially satisfied by the decision of the court of first instance. On the basis of the second part of Article 622 of the Civil Code of the Russian Federation, the rent was collected from the defendant for the entire period of delay in the return of property.
The claim for the collection of interest for the use of other people's funds was denied with the reference to the fact that Article 622 of the Code does not provide for any other type of liability for the untimely return of the leased property, except for compensation for losses caused to the lessor.
By virtue of this provision, in the event that the rent collected for the period of delay in the return of the leased property does not cover the losses caused to the lessor, he may demand their compensation.
In the cassation complaint, the plaintiff asked the court's decision regarding the refusal of the claim for the recovery of interest to be canceled and the claim to be satisfied in full, believing that interest for the use of other people's money can be collected in appropriate cases on any monetary claim, regardless of the reason for its occurrence.
The court of cassation agreed with the arguments of the plaintiff (landlord), drawing attention to the following.
Article 395 of the Civil Code of the Russian Federation establishes a general rule according to which interest on the amount of these funds shall be paid for the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or saving at the expense of another person.
Based on the content of the above norm and other provisions of Article 395 of the Code, this article is subject to application to any monetary obligation, regardless of what type of legal relationship it arose.
The obligation of the tenant to pay rent for the period of delay in the return of the leased property is monetary.
In addition, the court noted that the norm of part two of Article 622 of the Civil Code of the Russian Federation cannot be interpreted in such a way that the lessor in relations with the tenant who does not return the property after the termination of the lease agreement is put in a worse position than in relations with the tenant who uses the property on the basis of a valid contract.
Considering the above, the court of cassation changed the decision of the court of first instance and satisfied the claim of the landlord in full.

40. The court, taking into account the term of the lease and the value of the leased property, recognized the lease agreement as a major transaction for the lessor, since as a result of its execution, his production activities were actually terminated.

The joint-stock company (lessor) filed a claim with the arbitration court against the limited liability company (lessee) to invalidate the lease agreement as concluded in violation of the requirements of Article 79 of the Federal Law "On Joint-Stock Companies".
The court found that, under the disputed contract, the production premises with expensive equipment located in them were leased for a period of 15 years. The value of the disputed property at the time of the conclusion of the contract was 80 percent of the value of the fixed assets of the joint-stock company.
Thus, the property necessary for the joint-stock company for the implementation of its main production activities was leased. Only insignificant auxiliary services, not related to the main profile of its activity, remained in the use of the company.
Given that as a result of this transaction, the plaintiff's production activity, which provides his main income, was actually terminated, the court recognized the disputed transaction as a major one for the plaintiff. In this regard, it had to be concluded in the manner prescribed by Article 79 of the Federal Law "On Joint Stock Companies".
The argument of the defendant about the approval of the disputed transaction in connection with the acceptance of the rent by the plaintiff was recognized by the court as unfounded.
Since the transaction essentially deprived the plaintiff of the main source of income for a long time, his acceptance of rent in an amount disproportionately smaller than the income received by the joint-stock company from production activities could not in itself serve as approval for such a transaction.
In connection with the non-compliance with the requirements of Article 79 of the Federal Law "On Joint-Stock Companies" when making the disputed transaction, the court satisfied the claim.

(Erdelevsky A. M.)

(Prepared for the ConsultantPlus system, 2007)

Prepared for the ConsultantPlus system

COMMENTARY ON THE REVIEW OF PERMITTING PRACTICE

DISPUTES RELATED TO RENT

(INFORMATION LETTER OF THE PRESIDIUM OF THE SAC RF

The material was prepared using legal acts

A. M. ERDELEVSKY

INTRODUCTION

As statistics show, disputes related to rent, especially with the lease of real estate, continue to occupy a significant place in the practice of Russian arbitration courts. Very important for ensuring a uniform approach of arbitration courts to the resolution of such disputes is the Review of the practice of resolving disputes related to rent (hereinafter referred to as the Review), brought to the attention of arbitration courts by an information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 N 66. However, the rationale for the in this Review of Findings is often incomplete or lacks clarity, and in some cases the conclusions themselves appear to be controversial or contradictory. Meanwhile, for the correct application with the help of the Review of the law governing lease relations, it is necessary to have an accurate understanding of the internal logic of individual provisions of the Review, their relationship with the provisions of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code) and other regulatory acts used in the Review. The commentary offered to the attention of the reader will help achieve this goal.

Commentary on point 1.

The essence of this dispute was reduced to the qualification of an agreement on the paid use of part of the roof of the building. As follows from paragraph 1 of the Review, the court did not recognize such an agreement as a lease agreement and, as a result, did not consider it possible to apply the rule of paragraph 1 of Art. 621 of the Civil Code that if the landlord refused the tenant to conclude an agreement for a new term, but within a year from the date of expiration of the agreement with him concluded a lease agreement with another person, the tenant has the right, at his choice, to demand in court the transfer of rights and obligations under the concluded agreement and compensation for losses caused by the refusal to renew the lease agreement with him, or only compensation for such losses.

The essence of the court's position is that the structural elements of the building, which include the roof of the building, are not independent real estate objects (that is, they are not separate individually defined non-consumable things) and therefore cannot be leased.

Of course, this position should be taken into account, and if the user wants to acquire an indisputable pre-emptive right to conclude an agreement on the use of a thing or part of it for a new period, such a right of the user should be provided for in the agreement. In this case, the owner of the thing will be obliged to conclude an agreement for a new term not on the basis of paragraph 1 of Art. 621 of the Civil Code, but on the basis of the relevant terms of the contract for the use of the thing and the general provisions on obligations and contracts.

At the same time, it should be noted that at present the position of the court does not seem to be fully consistent with the approach of the Russian legislator to the subject of the lease agreement. Such a conclusion can be drawn as a result of the analysis of some norms of the new Housing Code of the Russian Federation (hereinafter referred to as the LCD). So, according to paragraph 1 of Art. 36 LCD, common property in an apartment building includes premises that are not part of apartments and are intended to serve more than one room in this house, including inter-apartment landings, stairs, elevators, elevator and other shafts, corridors, technical floors, attics, basements in which there are engineering communications, other equipment serving more than one room in this house (technical basements), as well as roofs enclosing load-bearing and non-bearing structures of this house, mechanical, electrical, sanitary and other equipment located in this house outside outside or inside the premises and serving more than one premises, the land plot on which this house is located, with landscaping and landscaping elements and other objects intended for maintenance, operation and improvement of this house located on the specified land plot. Thus, the roof is part of the common property of an apartment building as a separate object.

According to paragraph 4 of Art. 36 ZhK objects of common property in an apartment building can be transferred for use to other persons if this does not violate the rights and legitimate interests of citizens and legal entities. Since this rule does not provide for any exceptions for individual objects of common property, the roof can be the subject of an agreement for both paid and gratuitous use. From subparagraph 12 of paragraph 2 of Art. 145 and subparagraph 3 of paragraph 2 of Art. 152 of the LCD it follows that parts of the common property in an apartment building may be the subject of a lease agreement. It seems that from these norms of the LCD it follows that at present the Russian legislator does not exclude the possibility of indicating the roof of the building as the subject of a lease agreement, if the requirement of paragraph 3 of Art. 607 of the Civil Code on the certainty of the subject of the lease. In relation to the roof, this means that when a part of the roof is transferred for use, its boundaries must be precisely indicated in the contract.

Commentary on point 2.

Before proceeding to the legal analysis of this paragraph of the Review, it is advisable to pay attention to the financial side of the relationship between the parties, as far as it seems possible to understand it from the insufficiently detailed circumstances of the case. So, the lessor and the lessee entered into a lease agreement for a river boat for a period of four years with the right to buy out the leased property. According to the terms of the agreement, the total cost of the lease was 520 thousand US dollars, the lease payments were payable by the lessee annually for four years within the terms established by the agreement, and after the last lease payment was made, the vessel became the property of the lessee. As can be understood from the analyzed paragraph of the Review, by the time the decision was made by the court of first instance, the relationship between the parties was as follows: the four-year lease had expired, the tenant had paid only 355 out of 520 thousand dollars, therefore, the total debt should have been 165 thousand dollars .

What did the plaintiff (landlord) demand? He demanded the recovery from the defendant (tenant) of the amount of the rent arrears and the return of the ship. The court of first instance satisfied the claim in full, recovering the amount of debt from the lessee in favor of the lessor and obliging the lessee to return the ship to the lessor. In terms of debt collection, the court obviously proceeded from the terms of the contract, which provided for the obligation of the tenant to pay the appropriate rent, and in terms of claiming the ship, the court proceeded from the rule of Art. 622 of the Civil Code, according to which, upon termination of the lease agreement, the tenant is obliged to return the leased property to the landlord.

The decision seems to be quite legal - after all, the tenant really did not pay part of the rent payments, which means that he must pay them; in addition, due to incomplete payment of lease payments, he never acquired ownership of the ship, therefore, the lessor, as the owner, has the right to demand the return of his property. And at the same time, the decision, at least at first glance, strikes with its obvious injustice. How is it that, as a result of such a decision, the lessor, who, when concluding the contract, was ready to part with it if the lessee paid 520 thousand dollars, will now receive these 520 thousand and at the same time retain his ownership of the ship?

The Court of Appeal apparently tried to help restore justice by resorting to paragraph 3 of Art. 609, Art. 624 and paragraph 2 of Art. 489 of the Civil Code, using the following logical construction: in accordance with paragraph 3 of Art. 609 of the Civil Code, a property lease agreement providing for the subsequent transfer of ownership of this property to the tenant (Article 624 of the Civil Code) is concluded in the form provided for a sale and purchase agreement, therefore, as the court of appeal considered, clause 2 is applicable to the relations of the parties Art. 489 of the Civil Code, according to which, in the case when, when selling goods on credit with the condition of payment by installments, the buyer does not make the next payment for the goods sold by installments and transferred to him within the period established by the contract, the seller has the right, unless otherwise provided by the contract, to refuse to perform the contract and demand the return of the sold goods, except in cases where the amount of payments received from the buyer exceeds half the price of the goods. Since in this case the lessee paid the lessor $355,000 out of the required $520,000, that is, more than half of the cost of the ship, the court of first instance had no grounds for obliging the defendant to return this property to the plaintiff. Guided by this logic, the court of appeal overturned the decision of the court of first instance in this part, refusing to return the river boat. If the decision of the appellate court remained in force, only the amount of the debt would be recoverable from the tenant, and the ship would remain with him. This seems to be quite fair.

However, the decision of the appellate instance suffered from an obvious defect, in connection with which, based on the results of the consideration of the cassation appeal, the decision of the appellate instance was canceled and the decision of the court of first instance was upheld. The court of cassation correctly pointed out that paragraph 3 of Art. 609 of the Civil Code only indicates the need, when concluding a lease agreement, which provides for the subsequent transfer of ownership of the leased property to the tenant, to be guided by the rules on the form of the contract for the sale of the relevant property, in connection with which the relations of the parties related to the redemption of the leased property are not the rules governing the purchase and sale of goods on credit with the condition of installment payment may be applied. The court of cassation also correctly noted that in this case, the expiration of the lease term did not mean the transfer of the vessel to the ownership of the lessee, since the lease payments had not been paid in full, therefore, by the time the plaintiff presented the relevant demand, the defendant did not have any rights to the disputed property: the right of ownership was not acquired, and the right to lease ceased due to the expiration of its term.

So, the formally legal decision of the court of first instance and the decision of the cassation instance leave a feeling of obvious injustice, and the just decision of the appellate instance raises serious doubts regarding its motivation. Was it possible to make a decision in this case that would be both legal and fair? It seems that such a solution can be proposed.

First of all, it should be noted that the application to the relations of the parties of paragraph 2 of Art. 489 of the Civil Code by way of analogy of the law (clause 1 of article 6 of the Civil Code) in the case under consideration is hardly possible. Firstly, the legislator in paragraph 3 of Art. 609 of the Civil Code directly indicated in which part of the lease agreement with the right to purchase it is possible to apply the rules on the sale of goods on credit with the condition of payment in installments. Secondly, these are different contracts and it cannot be ruled out that the lessor, concluding an agreement on the sale of the ship on credit, and not on a lease with the right to purchase, would not have determined the price of the ship and the installment terms differently.

Let us turn to the few provisions of the Civil Code on a lease agreement with an option to purchase. In paragraph 3 of Art. 609 of the Civil Code, such an agreement is called a property lease agreement, which provides for the subsequent transfer of ownership of this property to the tenant. In paragraph 1 of Art. 624 of the Civil Code provides that the law or the lease agreement (as was the case in the case under consideration) may provide that the leased property becomes the property of the tenant upon the expiration of the lease term or before its expiration, provided that the tenant pays the entire redemption price stipulated by the agreement. Thus, a feature of a lease agreement with the right to purchase, in comparison with a conventional lease agreement, is the presence in it of a condition on the redemption price, which is an essential condition of such an agreement. At the same time, one of the conditions of the lease agreement is the condition on the amount of rent, however, this condition, as a general rule, is not among the essential conditions of the lease agreement.

Paragraph 1 of Art. 614 of the Civil Code defines rent as a payment for the use of property, therefore, payments under a regular lease agreement have the legal status of rent with all the ensuing consequences, in particular in the form of the tenant's obligation to pay rent in a timely manner, provided for in this norm. With regard to a lease with an option to purchase, payments under such an agreement have a dual status - rent and redemption price. The redemption price is paid by the tenant not for the use of the leased property, but for the acquisition of ownership rights to it. Therefore, the establishment in the lease agreement with the right to purchase as the redemption price of the total cost of lease payments means that the parties have agreed only the total amount, which includes payment for the use of property (rent) and payment for the acquisition of property into ownership (redemption price).

Meanwhile, the obligation of the tenant is only to pay the rent. The payment of the redemption price as a payment for the acquisition of property into ownership is not the obligation of the tenant, but his right, the exercise of which is a condition for the emergence of his ownership of the leased property (this is the difference between a lease agreement with the right to purchase and a sale and purchase agreement, where payment of the price is not a right, but an obligation of the buyer). If the tenant for some reason could not or did not want to use this right, then the only consequence of this would be the impossibility of acquiring the right of ownership to the leased property. The risk of the absence in the lease agreement with the right to purchase of a precise distinction and determination of the amount of the actual rent and the redemption price is borne by the party whose claims or objections are related to the need to prove these circumstances. Therefore, in the case referred to in the commented paragraph of the Review, not the entire amount stipulated by the contract was subject to collection, but only rent in the exact sense of the word. Since such a rent was not determined in the contract, it was subject to determination according to the rules of paragraph 3 of Art. 424 of the Civil Code, that is, the rent was subject to collection in the amount that is paid under comparable circumstances at the conclusion of an ordinary lease agreement (that is, a lease agreement without the right to purchase) of similar property for a similar period.

Commentary on point 3.

The commented paragraph of the Review is related to the application of the norms of the Civil Code on the calculation of terms in conjunction with the norms on state registration of a contract for the lease of buildings and structures. Such an agreement, by virtue of paragraph 2 of Art. 651 of the Civil Code, is subject to state registration only if the term of the contract is at least one year. The lessor considered that the agreement concluded for the period from 06/01/2000 to 05/31/2001 is an agreement concluded for a period of less than a year and, therefore, does not require state registration for its conclusion, and the tenant considered the specified agreement concluded for exactly one year and , respectively, requiring state registration.

The conclusion of the court in this case is correct, since the start and end dates of the contract were determined in this case by calendar dates, and not by the expiration of a period of time (Article 190 of the Civil Code). It should be noted that if the contract were concluded, for example, for a period of one year, indicating 06/01/2000 as the start date, then in this case the one-year period would begin to run on the next day after this date, that is, from 06/02/2000 and would expire on the month and day of the last year of the term corresponding to the start date, that is, 06/01/2001 (Article 191, paragraph 1 of Article 192 of the Civil Code). Similarly, the term of a contract concluded for one year, indicating May 31, 2000 as the start date, would begin on June 1, 2000 and expire on May 31, 2001 (Article 191, Clause 1, Article 192 of the Civil Code).

Commentary on point 4.

If at the time of the conclusion of the contract there was no approved plan for the reconstruction of the building (which, obviously, was the case in this case), that is, neither party knew whether the reconstruction would begin or not, then the lease agreement can be considered as a transaction made under a revocable condition (clause 2, article 157 of the Civil Code). In this case, the lease agreement turns out to be concluded for an indefinite period and is terminated both in connection with the occurrence of a resolutive condition, and in connection with the refusal of either party from the agreement in compliance with the rules of paragraph 2 of Art. 610 GK. However, if at the time of conclusion of the contract there already existed an approved reconstruction plan, including the date of its commencement, then in this case the lease agreement should be considered concluded for a certain period, while the expiration date of the lease agreement would be the date of commencement of reconstruction specified in the approved plan.

Commentary on point 5.

With regard to the commented paragraph of the Review, one should, firstly, pay attention to the fact that paragraph 2 of Art. 610 of the Civil Code establishes the rules not for termination, but for the termination of a lease agreement concluded for an indefinite period, while Art. 619 of the Civil Code (together with paragraph 2 of Article 450 of the Civil Code) determines the grounds and procedure for early termination of a lease agreement. Secondly, it should be noted that the rule of paragraph 2 of Art. 452 of the Civil Code, which provides for the obligation of the party wishing to terminate the contract to first apply to the other party with a proposal to terminate the contract, is not applicable to the case when the termination of the contract is related to the grounds specified in Art. 619 GK. In this case, a special rule of Art. 619 of the Civil Code, according to which the landlord has the right to demand early termination of the contract only after sending a written warning to the tenant about the need to fulfill his obligation within a reasonable time.

Some doubts about the correctness of the court's approach to the decision of the considered case are connected with the application of Art. 619 of the Civil Code to a lease agreement concluded for an indefinite period. The fact is that this rule establishes the grounds for early termination of the lease agreement. This wording suggests that we are talking about the termination of a lease agreement, the term of which is determined. If the contract is concluded for an indefinite period, then each of the parties has the right to cancel the contract at any time by notifying the other party one month in advance, and when renting real estate for three months, going to court in this case is not required (clause 2 article 610 of the Civil Code). Therefore, it seems that in order to refer to the rules of Art. 619 of the Civil Code, it is necessary that a lease concluded for an indefinite period turn into a fixed-term lease by complying with the rules of paragraph 2 of Art. 610 of the Civil Code, since after sending the tenant a warning about the withdrawal from the contract, its period becomes certain (one or three months, respectively, from the moment the tenant receives the warning). After that, if the need to terminate the contract in court is still urgent, the tenant may resort to the rules of Art. 619 GK. However, taking into account the statutory deadlines for the consideration of cases by arbitration courts and courts of general jurisdiction (which are not always strictly observed, especially by courts of general jurisdiction), the contract by the time the case is considered by the court will already be terminated on the basis of paragraph 2 of Art. 610 of the Civil Code, in connection with which the proceedings on the case will be subject to termination.

Commentary on point 6.

The ruling of the Court of Appeal is, without a doubt, absolutely correct. Recovery of a penalty is a form of civil liability for improper performance of obligations. To recover a penalty, the party must not properly fulfill its obligations under the contract. Prior to the conclusion of the contract, the tenant did not have an obligation to pay rent and other payments, therefore, the fact of improper performance by the tenant of this non-existent obligation could not arise.

The extension of the terms of the contract to previously arisen relations does not mean the creation of a fiction of facts and relations that did not exist before the conclusion of the contract. In relation to the case under consideration, this means that relations regarding the use of property actually existed before the conclusion of the contract, therefore, the terms of the contract can be extended to them, while there were no relations of responsibility for improper performance of the obligation between the parties (due to the absence of the obligation itself), in connection with which there is no object (relationship) itself, to which the terms of the concluded agreement could be applied retroactively.

Commentary on point 7.

As noted in the comments to the previous paragraphs of the Review, paragraph 2 of Art. 610 of the Civil Code determines the procedure for termination, at the initiative of any of the parties, of a lease agreement concluded for an indefinite period. The contract is terminated from the moment of the expiration of the period provided for in this norm without a court decision on this matter. An eviction action is related to the termination of the lease only in so far as the tenant retains the right to use the leased premises until the termination of the contract and therefore cannot be evicted. Therefore, no procedural actions of the parties or the court can eliminate the civil consequences of warning the party to the lease agreement concluded for an indefinite period of its termination.

It seems wrong only that the court left the claim for eviction without consideration. The grounds for leaving the claim without consideration are defined in Art. 148 APK. Obviously, from the grounds indicated in this norm, the court had in mind the ground established in paragraph 2 of Art. 148 of the APC (the plaintiff did not comply with the claim or other pre-trial procedure for settling a dispute with the defendant, if this is provided for by federal law or an agreement). However, this rule does not apply in this case, since the law does not provide for any pre-trial procedure for filing an eviction claim, and the termination of a lease, as explained above, does not require going to court at all. Therefore, the court should have dismissed the claim due to the lack of the plaintiff's right to demand the defendant's eviction before the termination of the lease agreement, which would not prevent the tenant from going to court again with the same demand in connection with the occurrence of a new circumstance - the expiration of the period established by paragraph 2 of Art. 610 GK.

Commentary on point 8.

This paragraph of the Review does not require comments, since the circumstances of the case are set out in sufficient detail, and the reasoning part of the court's decision and the conclusions drawn by it leave no ambiguities or doubts regarding the considered case and the correctness of the decision.

Commentary on point 9.

This paragraph of the Review, like the previous one, hardly requires detailed comments. The lessee, to whom the subject of the lease was not transferred, did not really acquire the status of the title owner and therefore could not use the proprietary remedies provided for in Art. Art. 301, 304, 305 of the Civil Code. It should only be noted that the tenant did not even have the opportunity to claim the subject of the lease from the lessor, since the latter was no longer the owner of the leased property - it was in the possession of a third party. Therefore, the tenant could resort to only one method of civil law protection - to demand termination of the contract and compensation for losses caused by its non-fulfillment, although it is very difficult to prove the amount of losses and their causal relationship with non-fulfillment of obligations in such cases.

Commentary on point 10.

In dismissing the claim, the court relied on Art. 328 of the Civil Code on the counter performance of obligations. According to paragraph 1 of Art. 328 the fulfillment of an obligation by one of the parties, which, in accordance with the contract, is conditioned by the fulfillment of its obligations by the other party, is recognized as counter. Although the decision made by the court in the operative part is not in doubt, however, its reasoning part does not allow us to fully agree with it in terms of the reference to Art. 328 GK. Article 328 of the Civil Code is subject to application in cases where there are obligations of each of the parties to the contract and this contract (and not the law) the fulfillment of one of the obligations is conditioned by the fulfillment of the other. In the case under consideration, the situation is somewhat different. According to paragraph 1 of Art. 614 of the Civil Code, rent is understood as payment for the use of property. As long as the property is not transferred, it cannot be used, therefore, until the property is transferred to the tenant, the obligation to pay rent simply does not arise (no use - there can be no use fee). Since the obligation to pay the rent during the specified period does not yet exist, there is no need to suspend or waive its performance.

Commentary on point 11.

Both cases referred to in the commented paragraph of the Review are related to the application of paragraph 3 of Art. 614 GK. This rule, due to its vagueness, deserves special attention. It establishes that, unless otherwise provided by the contract, the amount of the rent may be changed by agreement of the parties within the time limits stipulated by the contract, but not more than once a year. The rule is very badly stated. From its text it is not clear what kind of agreement it is talking about - an agreement that is one of the parts of the lease agreement, according to which a change in rent during the term of the agreement can occur no more than once a year, or an agreement on changing the amount of rent payment, concluded as a change to an already existing contract. As can be seen from the commented paragraph of the Review, the arbitral tribunal opted for the first interpretation. It follows that the parties, when entering into a lease agreement that provides for a fixed amount of rent or the procedure for calculating it, are not entitled to foresee a change in such amount or procedure more often than once a year, that is, we are talking about a ban on more frequent changes in the amount of rent. in the contract without changing the contract itself. However, the parties may, by mutual agreement, arbitrarily often change an already concluded agreement, including in terms of the amount of rent.

Another ambiguity in paragraph 3 of Art. 614 of the Civil Code is that from its text it is not entirely clear what the words “unless otherwise provided by the contract” refer to - to the possibility of changing the rent during the term of the contract in principle or to the rule on the possibility of changing the amount of rent no more than once in year. Since the second variant of interpretation would completely weaken the restriction on the frequency of changing the amount of rent established in the analyzed norm, such an interpretation should be rejected and the first variant of interpretation should be settled. However, in the first variant, the noted phrase turns out to be redundant, since if the parties in the lease agreement provided for the amount of rent and did not say anything about changing it during the term of the agreement, then this amount of rent will remain unchanged throughout the entire period without a special indication of it in the contract.

Commentary on point 12.

The case cited in the commented paragraph of the Review is not as clear-cut as it might seem. The same applies to the judgments rendered in this case. The noted ambiguity is due to the fact that it is not clear from the Review what form of payment for utility services was discussed. If the tenant paid only for the utilities he actually consumed, then such payment really cannot be considered a consideration for the rented building. In this situation, the landlord receives nothing in return for the subject of the lease, so the court's conclusion that the lease was not concluded is correct.

But another situation is also possible - some utilities can be paid according to the standard, that is, regardless of whether the actual use of the relevant services takes place. In this situation, the assumption by the tenant of the obligation to pay for such services releases the landlord from the obligation to pay for them (after all, the landlord would bear such expenses even if he did not rent the building and did not use it himself). Therefore, with this option of paying for utilities, the tenant is interested in renting out the premises that he actually does not use, at least in order not to bear the costs of paying utility bills. Thus, the exemption by the lessee of the lessor from payment of expenses that the lessor would have to make regardless of the actual use of the relevant services creates an element of compensation in the lease agreement, therefore such an agreement should be recognized as concluded.

Commentary on paragraph 13.

According to Art. 622 of the Civil Code (this provision is not mentioned in the commented paragraph of the Review), the tenant is obliged to return the leased property to the landlord upon termination of the lease agreement, and the landlord, accordingly, is obliged to accept this property. The essence of the lease agreement implies the inadmissibility of early fulfillment by the tenant of the obligation to return property (Article 315 of the Civil Code), since the assumption of the possibility of early return of property on the basis of the unilateral will of the lessor would mean the possibility of early termination (termination) of the lease agreement without observing the rules on prior warning provided for in paragraph 2 tbsp. 610 of the Civil Code, and beyond the list of grounds for early termination of the contract at the request of the tenant (Article 620 of the Civil Code). After all, after the lawful return of the leased property, the grounds for further collection of rent are lost (since it is a fee for the use of property), so the lease agreement as a whole is terminated.

It follows that the lessor is not obliged to accept the leased property before the termination of the lease agreement, and the lessee is not entitled to require the lessor to accept this property. Thus, lease payments are payable for the entire period of the term of the lease agreement, even if the tenant ceases the actual use of the leased property.

Commentary on paragraph 14.

With regard to this paragraph of the Review, attention should be paid to the following. First, the court's decision would have been exactly the opposite if both parties had not acted as entrepreneurs. Secondly, the court decision would also be exactly the opposite if the tenant tried to remove the equipment in a timely manner, that is, immediately after the expiration of the lease, and the landlord prevented him from doing so.

Commentary on paragraph 15.

With regard to the commented paragraph of the Survey, attention should be paid to the following. The essence of the dispute was whether the tenant's consent to sublease the premises extended only to that sublease agreement (with the corresponding sublease period), before the conclusion of which the tenant asked the landlord for consent, or to the entire duration of the lease agreement.

The fact is that in paragraph 2 of Art. 615 of the Civil Code succinctly states that the tenant has the right, with the consent of the landlord, to sublease the leased property. However, the duration and scope of this consent depends on how it is sought and given.

If the lease agreement itself or in a separate agreement between the lessor and the lessee states that the lessee has the right to sublease the property without obtaining additional consent from the lessor before concluding separate sublease agreements, such a condition has the meaning of the consent given by the lessor to the lessee in advance to conclude sublease agreements with any person on under any conditions (including for any period within the term of the lease agreement) - the so-called "general" consent.

If the lessee asks the lessor for consent to conclude a sublease agreement with a certain person, without notifying the lessor of the validity period and other terms of the agreement, and the lessor gives such consent without making any reservations regarding the term or other terms of the sublease agreement, then such consent gives the tenant the right to sublease the property only to the specified person within the entire term of the lease agreement (obviously, in the commented paragraph of the Review, the court considered that this kind of consent was given).

Finally, if the lessee asks the lessor for consent to conclude a sublease agreement with a certain person, while attaching a draft sublease agreement to the request, then the consent given by the lessor applies only to those conditions (including the sublease period) that were specified in the project.

See also paragraph 18 of the Review.

Commentary on paragraph 16.

The essence of the issue in the case under consideration is that the right to lease can never be transferred in its pure form, since this right is always burdened with certain obligations (refrain from using property contrary to its purpose, maintain property in good condition) and cannot be transferred separately from them. Thus, the assignment of the right to lease is possible only with the simultaneous transfer of debt (duties of the tenant), that is, in the manner of re-lease, which is allowed only with the consent of the landlord (paragraph 2 of article 615 of the Civil Code). Since no such consent was obtained, the court's conclusions are correct.

Commentary on point 17.

The essence of the problem with which the case cited in paragraph 17 of the Review is connected is as follows. In paragraph 2 of Art. 615 establishes that the rules on lease agreements apply to sublease agreements, unless otherwise provided by law or other legal acts. In this case, the question was whether the rule on a lease agreement, established in Art. 617 of the Civil Code, which is called "Saving the lease agreement in force when the parties change." This article establishes that the transfer of ownership (economic management, operational management, lifetime inheritable possession) to the leased property to another person is not a basis for changing or terminating the lease agreement. It is clear that this norm is not literally applicable to a sublease agreement, since the party providing property in the sublease agreement is not the owner or other owner of the property right (as is the case in the lease agreement), but the tenant, about whom Art. 617 of the Civil Code is not mentioned.

The Court correctly applied the logical interpretation of this rule, given its title. When using the rule of paragraph 2 of Art. 615 on the application of the rules on the lease agreement to the sublease agreement, it should be assumed that these rules apply to the sublease agreement in accordance with its legal nature, including the subject composition of the parties inherent in this agreement.

Commentary on paragraph 18.

In this case, the court clearly expressed an opinion on the admissibility of the “general” consent of the lessor to lease, sublet the property, etc. (clause 2 of article 615 of the Civil Code). See also commentary to paragraph 15 of the Review.

Commentary on paragraph 19.

As noted in paragraph 6 of the Review of Dispute Resolution Practices Related to the Application of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It” (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 N 59), registration of real estate generated by a lease agreement encumbrance of property rights of the lessor on real estate by the rights of the tenant is made on the basis of Art. 26 of this Federal Law on State Registration only when registering the real estate lease agreement itself. Thus, by registering a lease agreement, the right to lease is registered as an encumbrance of real estate. The fact that the right to lease is registered as a restriction (encumbrance) of rights to real estate also follows from Art. 1 of the same Federal Law, which states that restrictions (encumbrances) subject to state registration are understood as the presence of conditions established by law or authorized bodies in the manner prescribed by law, prohibitions that constrain the right holder in exercising the right of ownership or other real rights to a specific object of immovable property (servitude , mortgages, trust management, lease, seizure of property and others).

Therefore, the logic of the plaintiff's reasoning in the commented paragraph of the Review is correct in the sense that if the right to sublease did not encumber the right of ownership or other real right to the subleased property, then there would not be sufficient grounds for requiring state registration of the sublease agreement. But the right to sublease still burdens the right of ownership, although not to the same extent as the right to rent, since under certain conditions the subtenant acquires the right to claim directly against the owner. This follows, for example, from Art. 618 of the Civil Code, according to which, in the event of early termination of the lease agreement, the sublessee has the right to conclude a lease agreement with him for the property that was in his use in accordance with the sublease agreement, within the remaining sublease period on conditions corresponding to the terms of the terminated lease agreement. Thus, the decision of the Court of Appeal is correct not only formally, but also in substance.

Commentary on paragraph 20.

This paragraph of the Review does not require detailed comments. Even if the sublease agreement is concluded for an indefinite period, it is valid only as long as the lease agreement is in effect. If the lease agreement is terminated, the sublease agreement is also considered terminated. If the lease agreement is terminated ahead of schedule, the subtenant has the right to demand the conclusion of a lease agreement with him, but not the preservation of the sublease agreement (Article 618 of the Civil Code).

Commentary on paragraph 21.

In this case, the subject of the dispute was the verification of the legality of the tenant to carry out major repairs in connection with the emergency state of the central heating system, offsetting the cost of repairs against the rent (that is, at the expense of the lessor). The decisions of the courts of the first and cassation instances on recognizing this action of the tenant as lawful fully comply with the law.

As a general rule, Art. 616 of the Civil Code, the lessor is obliged to carry out major repairs of the leased property at his own expense. The assignment of this obligation to the tenant is possible only in cases provided for by law, other legal acts or the lease agreement. The act of acceptance and transfer is not part of the lease agreement, but is a document confirming the fulfillment by the tenant of the obligation to transfer the property to the tenant in good condition for use. Therefore, a note in the act on the emergency state of the central heating system could in no way mean the tenant's consent to bear the costs of its elimination at his own expense. From this note, it only followed that the lessor and the lessee jointly certified the fact of the faulty condition of the property leased, that is, the fact of the lessor's improper performance of the obligation to transfer the property in good condition.

Capital repairs must be carried out within the time period established by the contract, and if it is not specified by the contract or is caused by urgent need (in this case, the urgent need for major repairs was due to an accident) - within a reasonable time. Violation by the landlord of the obligation to carry out major repairs gives the tenant the right, at his choice: to carry out major repairs provided for by the contract or caused by urgent need, and to recover the cost of repairs from the lessor or set it off against the rent; demand a corresponding reduction in rent; demand termination of the contract and compensation for damages. In the case cited in the commented paragraph of the Review, the tenant quite rightly chose the first of the listed behavior options.

Commentary on paragraph 22.

The validity of the position of the Court of Appeal is not in doubt. However, in connection with the case cited in this paragraph of the Review, attention should be paid to the following. The court was faced with the question of determining the legal nature of the agreement concluded between the parties on the procedure for participation in the costs of paying for consumed electricity. As practice shows, often the parties to the contract, due to legal ignorance, assign names to the contract being concluded and to themselves that do not correspond to the legal nature of this contract.

In fact, neither the name of the contract nor the names of the parties predetermine its legal nature. They create only the assumption that the contract is exactly the type of contract that follows from its name. However, this assumption is refuted if the content of the contract (its terms) indicates that this contract is a contract of a different type.

The type of contract is determined precisely by its content, and not by its name. This follows, in particular, from the rules for the interpretation of the treaty, which are established in Art. 431 GK. According to this article, when interpreting the terms of the contract, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of the terms of the contract in case of its ambiguity is established by comparison with other terms and the meaning of the contract as a whole. Thus, interpretation, that is, analysis in order to establish the meaning of the contract, is primarily subject to the conditions (that is, the content) of the contract. The name of the contract can only be significant insofar as a condition not directly provided for in the contract can be deduced from it.

For example, a contract named as a contract of sale may consist of only one phrase: "The seller undertakes to transfer to the buyer a certain thing." It will follow from such an agreement that the seller undertakes to transfer this thing to the buyer into ownership (and not for paid or gratuitous use), since it is the transfer of property into ownership that is the legal purpose of the sale and purchase agreement. But if the contract, called the contract of sale, will consist of the phrase "the seller undertakes to transfer to the buyer a certain thing for temporary paid use", such an agreement, despite its name, will turn out to be a lease agreement. However, if the conclusion of such an agreement was caused by a mistake by one of the parties to the agreement regarding its nature, such a party has the right to demand that such an agreement be declared invalid as a transaction made under the influence of a mistake (Article 178 of the Civil Code).

Commentary on paragraph 23.

This paragraph of the Review, despite the obvious correctness of the conclusions of the Court of Appeal, still requires clarification. In this case, the defendant tried to use some ambiguity in paragraph 1 of Art. 617 of the Civil Code, which is called "Saving the lease agreement in force when the parties change."

In paragraph 1 of Art. 617 states that the transfer of ownership (economic management, operational management, lifetime inheritable possession) to the leased property to another person is not a basis for changing or terminating the lease agreement. Based on the text of paragraph 1 of Art. 617, the defendant apparently stated something like this: “Yes, another person has become the owner of the leased property. But, by virtue of paragraph 1 of Art. 617 of the Civil Code, this circumstance is not capable of entailing either a change or termination of the lease agreement. Consequently, the lease agreement is preserved in the form in which it previously existed, that is, with my participation as a lessor under this agreement.

What is wrong with this position of the defendant? The fact is that a change in the parties to the contract is not a change in the contract itself. Under the change of the contract is understood only a change in its terms, that is, a change in the content of the contractual obligation. This conclusion follows from the title of Art. 617 of the Civil Code, from which it follows that the concept of “change of parties” is not covered by the concept of “change of contract”, and, for example, from paragraph 1 of Art. 453 of the Civil Code, from which it follows that a change in a contract means a change in the content of a contractual obligation (contract terms).

The fact that the change of the party to the lease agreement, acting as the lessor, occurs automatically when the owner changes, is indicated by the rules applied in the aggregate, paragraph 1 of Art. 617 of the Civil Code on maintaining the lease agreement in its original form when the parties change and Art. 608 of the Civil Code, according to which the right to lease property belongs to its owner. Thus, since the lease agreement continues to exist, there is also a lessor with inherent rights, and only the new owner of the property can be such.

WITHOUT A DAY, BUT A YEAR

Quite a lot of time has passed since the adoption by the Presidium of the Supreme Arbitration Court of the Russian Federation of Information Letter No. 66 dated January 11, 2002 “Review of the Practice of Resolving Disputes Related to Leases”. This clarification, designed to resolve disagreements in cases where this cannot be done on the basis of a literal reading of the law in reverse, only gave rise to new questions.

Optimal time

As a general rule, a building or structure lease agreement is concluded in writing by drawing up one document signed by the parties (clause 1, article 651 of the Civil Code of the Russian Federation). An exception to it is established by paragraph 2 of this article, according to which, if this agreement is concluded for a period of one year or more, then, among other things, it is subject to state registration and is considered concluded only from the moment of such registration. Because of this, the participants in civil turnover naturally preferred to conclude lease agreements for buildings or structures for a period of less than a year.

To conclude such an agreement for the longest possible, in the absence of the need for state registration, the term in business practice, the wording that establishes the period of its validity from January 1 to December 31 of one year is most widely used.

Similarly, it has become customary to set the duration of the contract from any other date of any month in one year to the day preceding that date in the next year (for example, from February 1, 2000 to January 31, 2001). The term thus determined by the courts as a year, as a rule, was not considered.

The wind of change

The situation changed dramatically with the appearance of the above Letter, paragraph 3 of which clarified that the term of the building (structure) lease agreement, determined from the 1st day of any month of the current year to the 30th (31st) day of the previous month of the next year, in order to apply paragraph 2 of Art. 651 of the Civil Code of the Russian Federation should be recognized as equal to a year.

The adoption by the highest court of this clarification led to the fact that all the lease agreements for buildings and structures previously concluded on the specified conditions were immediately declared not concluded with all the ensuing legal consequences.

Let us also add here the contracts that were concluded without taking into account the specified explanation later, when it was not yet widely known among the participants in civil circulation.

Do not forget about contracts, the parties to which are not experienced in legal subtleties and do not even suspect the existence of this interpretation. The foregoing is enough to realize the seriousness of the situation.

illegal deduction

Let's try to figure out what the Presidium of the VASRF was based on, supporting the conclusion of the lower court.

Unfortunately, the very text of the real estate lease agreement, which caused the disagreement on this dispute, is not available to us. In view of this, it remains only to carefully study the text of the official interpretation once again.

It can be seen from this text that there is a discrepancy between the interpretation itself, which refers to the validity of the contract until the date specified in it, and its justification, which provides the contract concluded up to the date specified in it. This circumstance has already been pointed out in the literature.

So, I.M. Ashikhmin talks about the contradiction of this approach to the rules of the Russian language (Ashihmin I.M. Real estate lease. Analysis of the arbitration practice of resolving disputes (a practical guide to the application of civil and land legislation of the Russian Federation). M., 2006 // SPS "Consultant Plus").

In turn, A.V. Yorsh, based on the lexical meaning of the prepositions “to” and “to”, indicates that “if the preposition “to” is used, the last day of the period is subject to inclusion in the term of the contract, and if the preposition “to” is used, this day is not included in the term of the contract” (Yorsh A.V. Commentary on the Information Letter of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 “Overview of the practice of resolving disputes related to rent” // The practice of considering commercial disputes: analysis and comments on the decisions of the Plenum and reviews of the Presidium of the Supreme Arbitration Court of the Russian Federation. Issue. 1 / edited by A. L. Novoselova, M. A. Rozhkova, M., 2007 // SPS "Consultant Plus").

It is interesting (I.M. Ashikhmin also draws attention to this) that a year later, the Presidium of the VASRF in its Decree of 14.01.2003 No. 9523/02 in case No. A41-K1-8587/02 determined the validity of the contract from September 17, 2000. until September 16, 2001 as valid until September 15, 2001 inclusive, while emphasizing that the preposition "before" was used in it in the sense of "not including the date following this preposition."

However, the courts found a way out of the confusion with the prepositions “by” and “to” more than simple: they resort to using the wording “to (by)”, thereby giving both prepositions the same meaning, the essence of which boils down to that the contract is valid up to and including the date specified therein (see, for example, the resolutions of the FAS VSO dated February 20, 2008 No. A33-7634 / 07-F02-331 / 08 (Determination of the Supreme Arbitration Court of the Russian Federation dated 09.94.2008 No. 4346/08 in the transfer of this case denied to the Presidium of the Supreme Arbitration Court of the Russian Federation for supervisory review) and No. A10-5925/06-F02-5393/07 dated August 20, 2007).

It seems that the use of such a method is unacceptable, since it does not meet paragraph 1 of Art. 431 of the Civil Code of the Russian Federation, i.e., the literal meaning of the prepositions “by” and “before”, which carry a completely different semantic load, which the Presidium of the Supreme Arbitration Court of the Russian Federation rightly drew attention to in its aforementioned Resolution.

Giving an assessment of the interpretation supported by the highest court, one cannot ignore the issue of its compliance with the current legislation. Within the meaning of par. 1 clause 1 of article 192 of the Civil Code of the Russian Federation, a period calculated in years expires in the same month and day of the last year of the period as its beginning is determined, and in the absence of such a date, on the last day of this month (paragraph 3 of clause 3 of Art. 192 of the Civil Code of the Russian Federation). In view of this, one cannot but agree with the opinion of T.V. Bogacheva, who, considering paragraph 3 of the Letter, writes: “The conclusion of the Presidium of the Supreme Arbitration Court of the Russian Federation is not entirely accurate as it does not meet the rules of paragraph 1 of Art. 192 of the Civil Code on the expiration of a period calculated in years ”(Civil Law. Part Two: Textbook / editor-in-chief V.P. Mozolin. M., 2004 // SPS ConsultantPlus).

On the contrary, A.M. Erdelevsky considers the court’s conclusion correct, since “the start and end dates of the contract were determined in this case by calendar dates, and not by the expiration of a period of time (Article 190 of the Civil Code)” (Erdelevsky A.M. Commentary on the review of the practice of resolving disputes related to rent ( Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 11.01.2002 No. 66) // Prepared for the ATP "ConsultantPlus"). This argument seems at least strange, since the determination of the period with the help of calendar dates was aimed precisely at avoiding the establishment of a one-year period by subtracting one day!

Of greatest interest is the wording of paragraph 3 of the Letter, according to which the term of the building (structure) lease agreement, determined from the first day of any month of the current year to the 30th (31st) day of the previous month of the next year, is not in itself equal to a year, namely for the purposes of applying paragraph 2 of Art. 651 of the Civil Code of the Russian Federation should be recognized as such.

Thus, there is an exception to the general rules for calculating terms in civil law of Chapter 11 of the Civil Code of the Russian Federation for the purposes of applying paragraph 2 of Art. 651 of the Civil Code of the Russian Federation, i.e., they should not be applied to this norm! It seems that such exemptions should be recorded not in official clarifications of the current legislation, but at the legislative level, by making appropriate amendments to chapter 11 of the Civil Code of the Russian Federation and (or) paragraph 2 of Art. 651 of the Civil Code of the Russian Federation.

Better play it safe

Be that as it may, but while the clarification under consideration of paragraph 3 of the Letter continues to operate, we have no choice but to conclude by pointing out certain features of its application in practice.

First of all, we note that the courts for some reason consider it possible to apply this exemption for cases of land lease (clause 2, article 26 of the Land Code of the Russian Federation), although in clause 2, art. 651 of the Civil Code of the Russian Federation refers only to the lease of buildings and structures! (see, for example, Decree of the FAS DO dated 08.15.2008 No. F03-A59 / 08-1 / 2680, decisions of the FAS PO dated 12.19.2007 No. A06-2373 / 2007-9 and dated 08.23.2007 No. A57-14055 / 06- one).

The conclusion of a contract for the lease of buildings and structures for an 11-month period, which is very common today, cannot be called anything other than reinsurance. To avoid the need for state registration of such an agreement, it is enough to conclude it for a period that is less than a year for two calendar days (see, for example, Resolution of the FAS SKO dated 05.18.2005 No. Ф08-2044/2005, in which the court reasonably indicated that the land the plot dated April 1, 2003 was concluded not until March 31, 2004, but until March 30, 2004, that is, for a period of less than a year, which is why it is not subject to state registration).

Finally, we emphasize that this explanation is not interpreted by the courts restrictively, but is applied on the basis of its general meaning. Thus, the term of the contract may not fall into two calendar years, being established from January 1 to December 31 of any one year.

Despite the fact that the clarification cites the case when the term of the contract falls immediately for two calendar years, it also applies to the above period, i.e. a lease agreement for a building or structure concluded for such a period is also recognized as concluded for one year and is subject to state registration (see, for example, resolutions of the Federal Antimonopoly Service of the ZSO dated 10.04. 2003 No. F04 / 3996-1167 / A46-2003, resolutions of the FAS SZO dated 09.25.2008 No. A05-11996 / 2007 and dated 04.06.2007 No. A13-5002 / 2006-04).

In a similar way, the courts apply this clarification to the terms of contracts, the beginning of which does not fall on the first day of the month of one year, and the end - on the corresponding day of the next year, which is not the 30th (31st) (Resolution of the FAS DO dated 09/08/2008 No. F03-A51 / 08-1 / 3636, Resolution of the FAS PO of 01.28.2007 No. A12-2294 / 06-C14-5 / 41, Resolution of the FAS SZO of 03.27.2007 No. A21-7304 / 2005). A similar procedure applies if the expiration date of such an agreement falls on the last day of the month, which is the 28th or 29th (see, for example, Decree of the FAS PO dated February 28, 2005 No. A65-10279 / 04-SG2-24 and Decree FAS SZO dated November 1, 2004 No. A05-1245 / 04-30).

Evseev Evsey Fedorovich
lawyer, postgraduate student of the Modern Humanitarian Academy

[email protected]

Civil Code, N 14-FZ | Art. 614 of the Civil Code of the Russian Federation

Article 614 of the Civil Code of the Russian Federation. Rent (current edition)

1. The lessee is obliged to pay the fee for the use of the property (rent) in a timely manner.

The procedure, conditions and terms for paying the rent are determined by the lease agreement. In the event that they are not defined by the agreement, it is considered that the procedure, conditions and terms that are usually applied when renting similar property under comparable circumstances have been established.

2. The lease payment is established for all leased property as a whole or separately for each of its constituent parts in the form of:

1) defined in a fixed amount of payments made periodically or at a time;

2) the established share of products, fruits or income received as a result of the use of the leased property;

3) provision by the tenant of certain services;

4) transfer by the lessee to the lessor of the thing stipulated by the contract in ownership or on lease;

5) imposition on the lessee of the costs stipulated by the contract for the improvement of the leased property.

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

3. Unless otherwise provided by the contract, the amount of the rent may be changed by agreement of the parties within the time period stipulated by the contract, but not more than once a year. The law may provide for other minimum terms for reviewing the amount of rent for certain types of lease, as well as for the lease of certain types of property.

4. Unless otherwise provided by law, the tenant shall have the right to demand a corresponding reduction in the rent if, due to circumstances for which he is not responsible, the conditions of use provided for by the lease agreement, or the condition of the property has deteriorated significantly.

5. Unless otherwise provided by the lease agreement, in the event of a significant violation by the tenant of the terms for paying the rent, the lessor has the right to demand from him early payment of the rent within the period established by the lessor. In this case, the lessor is not entitled to demand early payment of rent for more than two consecutive terms.

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