Free housing contract template. The contract for the use of residential premises - a sample and subtleties of filling. What is a contract for the gratuitous use of real estate

It is important to note that the gratuitous housing agreement, as a rule, is applied when the relevant state services are required to carry out the registration procedure, this also applies to permanent registration. In any case, the parties to the transaction must be aware that the execution of such an agreement is an important condition.

After all, the document serves as a real protection, protecting against certain "pitfalls" that you constantly have to face in practice. Such documents are drawn up for the purpose of using housing, or part of it.

In addition, the contract can be concluded for one or another period, but it can also be indefinite, so it all depends on the wishes of the parties to the transaction. If the need arises, it is always possible to conclude an agreement for the use of the premises, the apartment as a whole, or part of the apartment.

As for the form of the contract, it is written, if necessary, it can be notarized. Please note that both options are legally competent, respectively, will have the same legal force.

The essence of the conclusion of such a transaction is that it is required to draw up a contract. He will testify that the lender will provide housing to the borrower, doing this for free use. The borrower, in turn, returns it in the same condition in which he actually received it.

The contract should include such important items as:

The subject of the contract, its parties;
Rights and obligations;
Responsibility of the parties;
termination conditions;
date and place;
Signatures.

In addition to all that has been said, the rules that are provided for concluding a lease agreement will definitely need to be applied to the document.

This includes:

Rental object. The parties should be aware that it is possible to provide housing for rent that will not lose its natural properties during the period of use. It is important to add that the contract should also include data that will identify the property being rented;

If all this is not taken into account, then the contract cannot be considered concluded. Starting to study the legislation of the Russian Federation, one can come to the conclusion that the housing provided must necessarily be isolated. In addition, it must be suitable for permanent and long-term habitation.

Terms of the conclusion of the contract. Remember, if this item is not taken into account at all, then the contract is automatically concluded for an indefinite period;
The lessor will use the property that is provided to him, while observing all the terms of the contract. In the event that the property is not used in accordance with the conditions specified in the contract, the agreement is terminated altogether;
Often there are situations when the tenant uses the property that was provided for rent even at the moment when the contract was terminated. Of course, if the landlord does not object, then the agreement is considered to be renewed for an indefinite period;
Those improvements that are actually made by the tenant are considered to be his property, if, of course, they are separable.

Important! As for a commercial organization, it is important to know here that it does not have the right to transfer property for free use to the person who is its founder, head, etc.

Benefits of free housing

If you carefully read the civil law, you can understand that it is not required to draw up documents in writing so that an agreement can be concluded between individuals.

You can also draw up an agreement orally, and in order for an agreement to take place, the court will refer to the testimony of witnesses.

In practice, the contract is usually concluded in writing, because this is done in order to protect the parties from various delays in the future.

In this case, the written version has its advantages:

Of course, an agreement that is drawn up in writing will act as a guarantee that payments for utilities will be made by the borrower;
Foreign citizens will not live in the apartment;
The contract includes an act of acceptance and transfer, it contains data on the state of the property, i.e. apartments;
If the owner died, then the heirs will not be able to expel the tenants before the period specified in the contract;
At the moment when unforeseen situations arise, for example, flooding or fire, then the measure of responsibility of all parties is revealed;
The temporary resident will receive registration;
In the event that the owner wishes to sell the apartment or rent it out, then no one will be able to evict the tenants before the end of the term.

Risks of gratuitous housing

If we talk about transactions in general, where the state was cheated, then naturally there may be interest from the tax authorities, which should be known.

It is customary to include such "tidbits" as:

Failure to charge VAT on the part of the lender;
The purpose of the transfer of real estate for use. But it is worthwhile to understand that at any time they can check whether you are really renting out a home for free, so you should be prepared for this.

Please note that if the text of the contract states that you do not take a penny from the tenants at all, then naturally you will have to comply with this, because this is one of the most important conditions. Therefore, all these points must be strictly observed, so it will be possible to avoid unnecessary delays.

Free rental agreement, as a legal document, is used when the relevant state services need to carry out the procedure for registration or permanent registration of a certain citizen of the Russian Federation.

Such an agreement is drawn up with the owner of the dwelling (apartment) for the right to use the dwelling or its part. Also, the owner may be an authorized person representing the legitimate interests of the owner and acting on a notarized power of attorney.

Such an agreement can be concluded for a fixed period, as well as an indefinite period. In addition, it is possible to draw up contracts for the use of the entire premises or apartment, as well as its part or part of the apartment. The form of the contract can be either simple written or notarized - any of these options are legally competent and have the same legal force.

Contract for gratuitous rental of an apartment can be drawn up according to an approved model, or it can be drawn up in an arbitrary format, but indicating all the mandatory conditions that are inherent in such an agreement. So, first of all, the law imposes requirements for an accurate description of the parties who entered into the contract, indicating the surnames, names, patronymics, passport details, dates of birth, addresses of registration. The essence of the contract (subject) is that one party transfers part or all of the premises for use, and the other party accepts this premises. In the case when a part of the premises is transferred under the contract, it is mandatory to indicate which specific share is transferred, to whom it belongs and on the basis of what documents. It is important to indicate the exact location of the transferred premises or part of it, the number, date of issue of the document of ownership, who issued the document. The subject of the contract should be described in the contract as thoroughly and in detail as possible.

In such an agreement, it is necessary to indicate the purpose for which the premises or part of it is transferred - for the purpose of registration or registration. The contract must contain a prohibition to use the received premises or part of it for purposes other than those specified in the contract.

The rules and grounds for gratuitous rent are spelled out in Chapter 36 of the Civil Code of the Russian Federation. It arises when the owner transfers the apartment for free use to another person on the basis of a written agreement. The parties to the transaction are:

lender (one who transfers property);
borrower (a person who accepts property transferred to him for temporary use).

Reference: On the basis of the concluded agreement, the borrower has the right to live in the apartment free of charge.

But, as with the conclusion of a conventional rental agreement, he is obliged to maintain the property of the owner in order and be responsible for its damage if it occurred through his fault.

Only the owner of the apartment has the right to draw up a contract for gratuitous use on the basis of legal documents. The trustee of the property owner also has this right, if a notarized power of attorney is concluded between them.

The transfer of housing for free use is carried out, as a rule, to people whom the owners trust. For example, the transfer of rental housing to the son from the mother. On the one hand, the owner can provide an apartment for living for loved ones without a written agreement.

Nevertheless, the conclusion of the document gives the parties responsibilities, duties and rights, which helps to resolve conflict situations.

Risks of renting out on a non-income basis

Is such an agreement worth it? What risks does the homeowner bear?

The first risk is a tax audit. Despite the fact that when concluding a gratuitous lease agreement, the owner does not receive financial benefits, you still have to pay taxes.

According to Art. 250 of the Tax Code of the Russian Federation, a person using property free of charge must pay tax on non-operating income.

In accordance with , the service of gratuitous transfer of property is subject to value added taxation(VAT). This tax is paid by the owner of the property.

If the tax office finds out about the existing agreement on gratuitous use and evasion of contributions to the state treasury, then violators can be brought under article 198 of the Criminal Code of the Russian Federation “Tax Evasion” and punished with a fine or imprisonment.

Important: The conclusion of a lease agreement on a gratuitous basis with the hidden purpose of obtaining commercial benefits is also fraught with consequences.

Some owners, trying to evade taxes on rental income (13% when concluding a contract for the rental of residential premises between individuals), deliberately enter into an agreement on gratuitous use, believing that in this case it is possible not to pay taxes at all.

As a result, he risks:

not receive money from the employer (since the transaction is free of charge by law);
be prosecuted for concealing income (if it turns out that he actually received money for rent).

What documents need to be issued?

In order for the transaction to be safe for both parties, you need to draw up a number of documents:

a written contract that reflects the rights, duties and responsibilities of a party to the agreement, as well as indicating the conditions of residence;
act of acceptance of the transfer of premises (its purpose is to record the very fact of the transfer of real estate);
inventory of property (needed to avoid the fact of theft and damage to things in the apartment);
additional agreement (concluded when the terms of the agreement are changed bilaterally).

You can download the form and sample contract for the free use of an apartment (at no charge) below.

Requirements for the structure, content

How to correctly draw up a document on the free use of residential premises? In terms of its structure and content, this document is practically no different from a regular contract of employment. The only difference is that the amount of the rent is not prescribed, and one of the obligations of the owner under the agreement is the transfer of housing for free use.

Compilation rules

What should be included in the document:

Title (“Agreement for the gratuitous use of residential premises”).
Date and place of compilation.
Participants of the transaction (name, address, passport details).
The subject of the agreement (the address of the provided apartment, its characteristics and the number of the title document are indicated).
Obligations and rights of the parties.
Transfer of housing.
The validity period of the document.
Responsibility for non-compliance with the conditions.
Grounds for cancellation of the transaction.
Force majeure situations.
Dispute Resolution Terms.

If the contract is accompanied by other documents, for example, an inventory of property and an act of acceptance and transfer, then their list should be indicated at the end of the document in a separate paragraph of the "Appendix".

Creation Form

The agreement can be made in written or printed form. Since the content of the document is quite voluminous, it is recommended to use the printed version. The data on the participants of the transaction can be filled in manually.

What should be taken into account when making a decision?

When drawing up an agreement, the owner must take into account that the obligations of the person living in the apartment will include payment of utility bills. This point must be included in the terms of the contract.

One of the essential conditions of the agreement is the subject of the transaction - the apartment. The document must contain the exact address, area of the premises, as well as data on the grounds on which the lender owns the living space.

The borrower should take into account that, under the terms of the transaction, he is obliged to maintain order in the apartment and transfer it back to the owner in the form in which he accepted it.

Rights and obligations of the parties to the agreement

Under the contract, the tenant is obliged to maintain housing in good condition. According to Art. 695 of the Civil Code, his duties also include carrying out the necessary repairs, unless otherwise provided in the agreement.

Article 695 of the Civil Code of the Russian Federation. Obligations of the borrower regarding the maintenance of the thing

The borrower is obliged to maintain the thing received for gratuitous use in good condition, including the implementation of current and major repairs, and to bear all the costs of its maintenance, unless otherwise provided by the contract for gratuitous use.

If the tenant made any improvements in the apartment, then in the event of leaving the apartment, he has the right to take away all the acquired property, if this does not cause damage to the premises.

Note: For example, he has the right to take away furniture or appliances bought with his own money. If the tenant made repairs, then the owner can compensate him for the costs in case of termination of the contract.

Such nuances must be recorded in the document.

The tenant has the right to use the apartment even after the death of the lender or if the apartment is sold to third parties. Until the contract is terminated, he has the right to use the living space free of charge.

The owner has the right to inspect the property, limit the tenant's right to use part of the living space, and also require the tenant to maintain order and keep the premises safe and sound.

Deal Features

A distinctive feature of this agreement on a conventional contract of employment is that the owner is responsible for the defects of the property, which he deliberately hid from the tenant, giving him the apartment for use.

According to Art. 693 of the Civil Code of the Russian Federation, the tenant has the right to demand that the owner eliminate breakdowns and defects. If he made repairs on his own, he has the right to demand monetary compensation from the owner.

If the property was damaged by the tenant in connection with its misuse or in connection with its transfer to third parties, then he is obliged to compensate the owner for the damage caused (Article 696 of the Civil Code of the Russian Federation).

Article 696 of the Civil Code of the Russian Federation. Risk of accidental loss or accidental damage to things

The borrower bears the risk of accidental loss or accidental damage to the thing received for gratuitous use, if the thing is lost or damaged due to the fact that he used it not in accordance with the contract for gratuitous use or the purpose of the thing, or transferred it to a third party without the consent of the lender.

The borrower also bears the risk of accidental loss or accidental damage to the thing, if, taking into account the actual circumstances, he could have prevented its destruction or damage by sacrificing his thing, but preferred to keep his thing.

Validity

The contract can be concluded for any period. As a rule, owners prefer to conclude such transactions for a period of up to 1 year, so as not to register the fact of an encumbrance in Rosreestr.

Important: If the document does not specify the validity period, then the transaction is considered concluded for an indefinite time.

If the term of the transaction has expired, and the borrower still lives in the apartment with the consent of the owner, then the agreement between them will be considered renewed on the same terms.

Is registration required?

An agreement concluded between individuals or legal entities for a period of more than 12 months is subject to state registration. That is why many enter into an agreement for a period of no more than 11 months. The contract does not require notarization. The document will have legal force without certification by a notary or other authorities.

Termination of the contract

The transaction can be terminated unilaterally by the owner if the tenant:

uses the apartment for other purposes;
does not fulfill the obligations stipulated in the agreement;
causes damage to property without repairing the damage;
transfers real estate for use to other people without the consent of its owner.

The tenant can also revoke the agreement if:

the owner, at the time of transfer of the object for use, hid the fact that he had defects, or did not warn about the rights of third parties to the property;
housing, due to circumstances beyond its control, has become uninhabitable;
the owner transferred only part of the property.

The conclusion of a free lease agreement has many nuances and subtleties. Despite the fact that such transactions are usually made between close people, it is necessary to draw up documents establishing rights and obligations. This will eliminate potential conflicts and disputes.

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In conditions of acute need for housing, its high cost in the field of civil law relations, the institution of gratuitous use of residential premises and related housing real estate objects operates. There are several reasons for the emergence of such a right of citizens and legal entities.

In modern conditions, there is a rather intensive movement of people, which is associated with a change in their place of residence for a long period (work in another region of Russia, abroad, long business trips, moving to another area for family reasons, forced migration from a permanent place of residence, etc.). ).

It is unacceptable to leave a modern apartment unattended for a long time of your absence. Of course, you can rent an apartment, a residential building, a cottage with a land plot under a lease or lease and get some benefit. However, many citizens who leave their native lands for a long time prefer to rent out their homes under a contract for gratuitous temporary use.

The lender, i.e. the owner of the property, is liable for the harm caused to a third person as a result of the use of the thing. According to Art. 697 of the Civil Code of the Russian Federation, he may be released from liability if he proves that the damage was caused as a result of the intent or gross negligence of the borrower or the person who got the thing with the consent of the borrower.

Early termination of the gratuitous use agreement

The lender - the owner of residential real estate - has the right to demand early termination of the contract for gratuitous use in cases where the borrower (Article 698 of the Civil Code of the Russian Federation):

Uses residential premises or other residential real estate not in accordance with the contract or their purpose;

Does not fulfill obligations to maintain property in good condition or its proper maintenance;

Significantly worsens the condition of the property;

Without the consent of the lender, he transferred the property to a third party, that is, he committed an unlawful act of disposing of someone else's property.

In paragraph 2 of Art. 698 of the Civil Code of the Russian Federation lists the grounds that also give the borrower the right to early termination of the contract for gratuitous use. The borrower has the right to demand early termination of the contract:

If defects are discovered that make the normal use of the thing impossible or burdensome, the presence of which he did not know and could not know at the time of the conclusion of the contract;

If, due to circumstances for which he is not responsible, the thing turns out to be in a state unsuitable for use;

If, at the conclusion of the contract, the lender did not warn him about the rights of third parties to the transferred thing;

If the lender fails to fulfill the obligation to transfer the thing in proper condition or its accessories and related documents.

Thus, according to Art. 698 of the Civil Code of the Russian Federation, the contract may be terminated or amended at the request of one of the parties in case of its material violation by the other party.

Determining the possible cases of termination of the contract at the request of one of the parties, the law does not exclude their right to withdraw from the contract for gratuitous use.

According to Art. 699 of the Civil Code of the Russian Federation, each of the parties has the right to cancel the contract for gratuitous use concluded without specifying a period at any time by notifying the other party one month before, unless the contract provides for a different notice period.

As regards the borrower, he has the right at any time to withdraw from an agreement concluded with an indication of a term by notifying the other party one month in advance, unless otherwise provided by the agreement.

The lender has no such right. He may demand unilateral termination of the contract for gratuitous use only on the grounds specified in Art. 698 of the Civil Code of the Russian Federation.

This is in contrast to a real estate lease agreement concluded for an indefinite period, where each party is required to notify in advance of the cancellation of the agreement by notifying the other party three months in advance. But under the contract for the gratuitous use of real estate, the term for warning about the cancellation of the contract, as noted, is set at one month.

Early termination of the contract at the request of one of the parties (with the objection of the other party) is carried out by a court decision in the manner prescribed by Article 450 of the Civil Code of the Russian Federation. This procedure includes the possibility of changing or terminating such an agreement:

In the event of a material breach of the contract by the other party;

In other cases provided for by the Civil Code of the Russian Federation, other laws or an agreement.

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.

Change of parties in the contract for the gratuitous use of property

The fact that property (residential premises, houses, dachas, etc.) is in gratuitous use on the basis of an agreement cannot deprive the owner of this property (lender) of the right to alienate it, i.e., sell this property or lease it for compensation under a lease agreement (Article 700 of the Civil Code of the Russian Federation). In this case, however, the new owner or tenant is not entitled to demand early termination of the contract for gratuitous use and return of property before the due date.

In the event of the death of the lender, his rights and obligations under the gratuitous use agreement shall be transferred to the heir or to another person to whom the ownership of the thing or other right has passed, on the basis of which the thing was transferred for gratuitous use. Since the rights and obligations under the contract of gratuitous use after the death of the lender pass to his heirs, the property that is the subject of the contract remains encumbered with the rights of the borrower. When concluding a contract for gratuitous use, the borrower has the right to demand the inclusion in it of a provision encumbering hereditary immovable property (apartment, house, cottage, land plot, etc.) with the right to use this property without compensation by the borrower before the expiration of the period established by the contract.

The contract for the gratuitous use of property is terminated in the event of the death of the borrower (Article 701 of the Civil Code of the Russian Federation). This provision of the Civil Code of the Russian Federation excludes the possibility of transferring the right to use property free of charge by way of inheritance, which is allowed under a real estate lease agreement (clause 2, article 617).

As noted, gratuitous use means that a person or his family will use a dwelling without paying rent. But the residential premises transferred under such an agreement, as a rule, are associated with the payment of utilities. If the contract does not contain payment for living in a residential building itself, and the collection of fees is established for the consumption of electricity, gas, water, heat supply and other utilities, then this does not deprive the definition of these relations as based on a contract for gratuitous use.

In essence, there are two options for paying for utilities under a gratuitous use agreement. First: when the owner of the dwelling pays for utilities himself and he does not receive any compensation from the borrower. In this case, the borrower has a so-called non-operating income in the form of a service received free of charge, which is taken into account when determining the tax base of the borrower (clause 8, article 250 of the Tax Code of the Russian Federation; hereinafter - the Tax Code of the Russian Federation).

The assessment of such income is determined on the basis of market prices. At the same time, the lender cannot take into account the costs of paying for utilities when taxing profits (clause 16, article 270 of the Tax Code of the Russian Federation).

In the second option, utilities are also paid by the lender, and the borrower compensates him for the costs incurred. In this case, the compensation received by the lender cannot be considered as income (Article 41 of the Tax Code of the Russian Federation). The borrower, on the other hand, has the right to take into account the costs of paying for utilities in taxation (subparagraph 2, clause 1, article 253 of the Tax Code of the Russian Federation).

The conditions and procedure for the gratuitous use of residential premises and other residential real estate objects are regulated not only by the norms of civil legislation, but in certain cases also by the norms of social security, housing, inheritance and land legislation.

Under a contract for gratuitous use, residential premises in the state and municipal fund can only be provided to a citizen. A legal entity cannot use residential premises on the basis of a gratuitous use agreement. In paragraph 2 of Art. 671 of the Civil Code of the Russian Federation states that residential premises can be provided to legal entities for possession and (or) use on the basis of a lease agreement or other agreement. And as noted, a commercial organization is not entitled to transfer property for free use to a person who is its founder, participant (shareholder), head, member of its management and control bodies.

In the field of housing legal relations, users of residential premises on a gratuitous basis are family members of the owner of the residential premises and temporary residents. In some cases, the former members of the owner's family temporarily retain the right to free use of the owner's residential premises.

The right of family members of the owner to free use of his living quarters

Members of the owner's family living together in the residential premises belonging to him have the right to free use of this premises. To family members of the owner of the dwelling, according to Art. 31 of the Housing Code of the Russian Federation, include his spouse, as well as children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner's family if they are moved in by the owner as members of his family. Citizens who have reached retirement age, who are disabled, as well as persons under the age of 18 are recognized as disabled.

Family members of the owner of a dwelling have the right to use the given premises on an equal basis with the owner himself, unless otherwise established by an agreement between the owner and members of his family. The owner, of course, in general, has more rights than the members of his family, but they are equal in using the premises. By "other", which may be established by agreement, one can understand, for example, a situation where a member of the owner's family does not use the entire apartment or house, but only a separate room or part of the house.

With the termination of family relations with the owner of the residential premises, the right to use this premises is not retained by the former family member of the owner (part 4 of article 31 of the RF LC). Family relations with the owner are terminated very often due to the dissolution of the marriage of the owner of the dwelling with the spouse. In this regard, he quite rightly noted with regard to the housing rights of children of divorced spouses: “... it must be emphasized that the children of the owner of the dwelling cannot become former family members. Family relations between the owner of the dwelling and his children cannot be terminated. that in the event of a dissolution of a marriage, the (former) wife and children must go outside, have no grounds. Children, despite the dissolution of the marriage by their parents, retain the right to use the living quarters owned by one of the parents in which they lived "*( 3).

According to the current housing legislation, if a former member of the owner's family has not received consent from the owner for further residence, and he does not have other housing and his financial situation does not allow him to purchase another dwelling, he can file a lawsuit and ask to leave him to live in the owner's premises .

The court has the right to retain the right to live in the owner's apartment or house for a certain period of time. During this period, the former member of the owner's family shall use the dwelling on an equal footing with the owner, unless otherwise provided by the agreement.

Giving the court the right to determine the period of residence of the former family member of the owner in his residential premises, the law does not establish any restrictions on this period. The Presidium of the Supreme Court of the Russian Federation, by its decision of 01.01.01, noted that in Art. 31 of the Housing Code of the Russian Federation does not contain a ban on applying to the court for an extension of the period for which a former family member may retain the right to use the premises. Thus, in the presence of circumstances that do not allow the former family member to provide himself with other living quarters, the court may extend the previously indicated period. This means that the court must proceed from the real possibilities of acquiring housing by a former member of the owner's family.

At the same time, the Presidium of the Supreme Court of the Russian Federation indicated that out of Part 5 of Art. 31 of the Housing Code of the Russian Federation it follows that the right to use the former family member of the owner may be terminated after the expiration of the period specified in the court decision, if the circumstances that served as the basis for preserving this right have disappeared.

In the absence of opportunities to purchase housing, not only at the moment, but also in the near future, the former family member has the right to demand from the owner in court to purchase another housing for him. However, according to Part 4 of Art. 31 of the Housing Code of the Russian Federation, such a right belongs only to persons in whose favor the owner fulfills maintenance obligations. The owner may be obligated to alimony in relation to the former spouse, to minors, as well as adult, but disabled children, in relation to parents, brothers and sisters.

A very important rule on the application of the norms included in Part 4 of Art. 31 LC RF, contained in Art. 19 of the Federal Law "On the Enactment of the Housing Code of the Russian Federation". These norms do not apply to former family members of the owner of a privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it, unless otherwise established by law or contract. Under such conditions, the right to use residential premises does not depend on family relations.

Of course, the owner of a dwelling can sell it, donate it or dispose of it in any other way, entailing the termination of his ownership of this dwelling. Under such circumstances, former members of the owner's family are defenseless. Their right to use the premises is terminated.

The right to free use of residential premises provided to citizens by testamentary refusal

A testamentary refusal is the assignment by the testator to one or more heirs by will or by law of the fulfillment of certain obligations of a property nature in favor of one or more persons (legatees) who acquire the right to demand the fulfillment of this obligation (testamentary refusal).

A testamentary renunciation must be set out in the will itself.

In accordance with Art. 1137 of the Civil Code of the Russian Federation, the subject of a testamentary refusal may be the transfer to the legatee of ownership, possession on another property right or the use of a thing that is part of the inheritance, the transfer to the legatee of a property right that is part of the inheritance, the transfer of other property to him, the performance of certain work for him or the provision a certain service to him or the implementation in favor of the legatee of periodic payments, etc.

In particular, the testator may impose on the heir, to whom a residential house, apartment or other residential premises are transferred, the obligation to grant to another person for the period of the life of this person or for another period the right to use this premises or a certain part of it.

In the event of the subsequent transfer of ownership of the dwelling, which was part of the inheritance, to another person, the right to use this dwelling, granted by testamentary refusal, shall remain in force.

However, in understanding and applying the norm of the law on the preservation of the right to use residential premises received from the refusal of the recipient, for a period of life or a certain period with a change in ownership of this property, many difficulties arise.

The fact is that the third part of the Civil Code of the Russian Federation "Inheritance Law" was put into effect on March 1, 2002, and for that period the specified provision of Art. 1137 of the Civil Code of the Russian Federation fully complied with the previous version of Art. 292 of the Civil Code of the Russian Federation, paragraph 2 of which established: "The transfer of ownership of a residential building or apartment to another person is not a basis for terminating the right to use the residential premises by family members of the former owner." The owner of the residential premises was burdened with the right to permanent use of this premises by members of his family. Prior to being accepted into the new Housing Code of the Russian Federation (put into effect on March 1, 2005), the former members of the family of the owner of the dwelling, who terminated family relations with him, also used the same right. As noted earlier, according to the new Housing Code of the Russian Federation (part 4 of article 31), former family members of the owner of the dwelling have lost this right. Article 292 of the Civil Code of the Russian Federation has also undergone a corresponding change. The new version of clause 2 of this article establishes the exact opposite: "The transfer of ownership of a residential building or apartment to another person is the basis for terminating the right to use the residential premises by family members of the former owner" (FZ of 01.01.01 N 213-FZ) .

The legal status of citizens who have received housing on the basis of a testamentary refusal has much in common with the rights of family members of the owner of the dwelling. In both cases, they can use the premises free of charge and on an equal footing with the owner. This gives grounds for saying that the legatees retain the right to use the heir's living quarters as long as he remains its owner. With the transfer of ownership of this premises to another person, the legatees, as well as members of the owner's family, do not retain the right to use this residential premises. Such judgments are deeply erroneous and have no legal basis.

First of all, in accordance with paragraph 2 of Art. 1137 of the Civil Code of the Russian Federation, on the heir to whom the residential house, apartment or other residential premises passes, the testator may impose the obligation to grant to another person for the period of life of this person or for another period the right to use this premises or a certain part of it. And in paragraph 3 of the same article of the Civil Code of the Russian Federation it is directly established: "In the event of the subsequent transfer of ownership of the property that was part of the inheritance to another person, the right to use this property, granted by testament, remains in force."

In addition, a special article has been introduced in the Housing Code of the Russian Federation that establishes the procedure for using residential premises provided to citizens by testamentary refusal (Article 33). This norm of the Housing Code of the Russian Federation and Article 1137 of the Civil Code of the Russian Federation determine their rights and obligations arising from this type of use of housing, namely:

Equal right with the owner to use this residential premises;

A legally capable legatee shall be jointly and severally liable with the owner of such a dwelling for the obligations arising from its use, unless otherwise provided by their agreement;

Upon the expiration of the period of use of the living quarters established by the testamentary refusal, the citizen's right to use it is terminated;

The change of the owner of a dwelling provided under a testamentary refusal does not entail the termination of the right of the legatee to use this premises before the expiration of the period established by the testator;

A citizen has the right to demand by virtue of Part 3 of Art. 33 of the Housing Code of the Russian Federation for state registration of the right to use residential premises arising from a testamentary refusal.

The main difference in the right to use a dwelling received by a citizen from an heir on the basis of a testamentary refusal and members of the family of the owner of the dwelling is that the legatee retains the right to use such a dwelling when its owner changes, and for members of the family of the owner of the dwelling this right is terminated with the transfer of ownership of the premises to another person.

In addition to the fact that during the subsequent transfer of ownership of property (residential premises) to another person, the right to use the legatee of this property remains in force, part 3 of Art. 33 of the Housing Code of the Russian Federation additionally provides a citizen living in a dwelling received by testamentary refusal, the opportunity to demand state registration of the right to use the living quarters arising from a testamentary refusal.

The procedure for state registration is determined by the Federal Law "On State Registration of Rights to Real Estate and Transactions Therewith". Since the right to use the legatee is an encumbrance of the heir's property right, registration must be carried out as part of the state registration of the heir's property right as an encumbrance by reflecting the entry in the appropriate subsection of the Unified State Register of Rights to Real Estate and Transactions Therewith (EGRP).

A document confirming the right to use a dwelling, granted under a testamentary refusal, is a certificate of the right to inheritance. In accordance with the order of the Ministry of Justice of Russia dated 01.01.01 N 99, in the presence of a testamentary refusal encumbering the rights certified by a certificate of the right to inheritance, the fact of the encumbrance is reflected in an additional paragraph of the certificate by the most accurate presentation of the relevant section of the text of the will. There is nothing similar in the law regarding the preservation of the right to use the family members of the owner of the dwelling.

Provision of residential premises for free use to certain categories of socially unprotected citizens

The provision of residential premises on the basis of the right of gratuitous use to citizens of the risk group has become a necessary measure to protect their housing from all kinds of crooks and is carried out at their request. Children and the elderly, who received housing from the social fund for permanent use, most often fell victim to fraudsters who, having achieved its privatization, subsequently illegally took possession of the housing. The contract for the gratuitous use of residential premises deprives fraudsters of such an opportunity, since this type of housing cannot be privatized.

The law of the city of Moscow dated 01.01.01 N 29 "On Ensuring the Right of Residents of the City of Moscow to Residential Premises" establishes that residential premises under a contract for gratuitous use are provided to the following categories of citizens at their request (Article 26):

1) orphans and children left without parental care, persons from among those who have reached the age of 18 after the end of their stay in state and non-state educational institutions for orphans and children left without parental care; in social service institutions; in foster families; in family-type orphanages; when being in patronage education in case of termination of guardianship; upon completion of training in vocational education institutions; upon completion of service in the Armed Forces of the Russian Federation; upon return from institutions for the execution of punishment in the form of deprivation of liberty, if these citizens do not have a dwelling assigned to them;

2) elderly citizens and disabled people living in stationary social service institutions, in case of refusing the services of this institution and vacating the premises in this institution, if they cannot be returned to the residential premises previously occupied by them, which was transferred in accordance with the established procedure to the city;

Specially equipped residential premises are provided to disabled people with impaired musculoskeletal system only under a contract for the gratuitous use of residential premises.

Temporary residents

According to Art. 80 of the Housing Code of the Russian Federation, the tenant of a dwelling under a social tenancy agreement and members of his family living together with him, by mutual agreement and with prior notice to the landlord, may allow free living in this dwelling to other citizens as temporary residents (temporary residents).

Although the landlord’s permission to settle temporary residents is not required (only his notification is necessary), he has the right to object to the moving in of temporary residents if, when they move in, the total area of the relevant housing per person living in a separate apartment is less than the accounting norm (part 4 article 50 of the Housing Code of the Russian Federation), and for communal apartments less than the norm for the provision of housing (part 1 of article 50 of the Housing Code of the Russian Federation). At the same time, in Part 2 of Art. 80 of the LCD states that the period of residence of temporary residents cannot exceed six months in a row.

Temporary residents do not have an independent right to use the premises. The employer is responsible for their actions to the landlord. There are no such restrictions for citizens who have entered into an agreement for the gratuitous use of residential premises.

However, temporary residents use the premises free of charge and without the conclusion of any contract. In this regard, there is a point of view in the legal literature, according to which, by its legal nature, the move-in of temporary residents is the conclusion of an agreement for the gratuitous use of residential premises. The motives for concluding such an agreement, based on the gratuitousness of relations between citizens, have always been the usual feelings for human communication: a special attitude towards relatives, relatives, friends, mercy, etc.

The right to use residential premises is terminated for temporary residents in the following cases:

Termination of the contract of social employment;

Expiration of the period of residence agreed with them;

Requirements of the employer or other family member living with him. If the period of residence has not been agreed, temporary residents are required to vacate the premises no later than seven days from the date of presentation of the relevant request.

In the event of a dispute, eviction is carried out in a judicial proceeding without the provision of other accommodation.

Temporary tenants do not pay any remuneration, do not pay a fee for housing, however, they (or the tenant) must pay for utility services (part 12 of article 155 of the RF LC).

Free fixed-term use of land plots

Gratuitous fixed-term use is a type of land use and, like permanent (perpetual) use of land, is free.

This type of land plots is provided from lands in state and municipal ownership by the executive bodies of state power and local governments to legal entities for a period of not more than one year. The category of these legal entities is indicated in paragraph 1 of Art. 20 ZK RF. These include: state and municipal institutions, federal state-owned enterprises, as well as state authorities and local governments.

Of the lands of citizens and legal entities, land plots for fixed-term use are provided to citizens and legal entities on the basis of a contract for gratuitous temporary use.

Of the lands that are in state or municipal ownership, state authorities or local governments provide plots to persons with whom a state or municipal contract has been concluded for the construction of a real estate object at the expense of the federal (subject of the Russian Federation, local) budget, on the basis of an order for goods, implementation works, provision of services for state or municipal needs for the period of construction of the property.

As noted above, a commercial organization, in accordance with paragraph 2 of Art. 690 of the Civil Code of the Russian Federation, is not entitled to transfer property (including a land plot) to a person who is its founder, participant (shareholder), head, member of its management or control bodies.

Service land plots (Part 2, Article 24 of the Land Code of the Russian Federation) are provided for free fixed-term use to employees of certain sectors of the economy, including organizations of transport, forestry, the forest industry, hunting farms, state nature reserves and national parks.

The procedure for providing organizations with office plots for free use by their employees existed for many years practically unchanged in Soviet, then in Russian legislation and is now reproduced in the new Land Code.

Service land plots are provided to employees of these organizations for the period of establishment of labor relations by decision of the relevant organizations from among the land plots belonging to them.

The rights and obligations of persons who have received land office plots are determined in accordance with Art. 41 and 42 of the Land Code of the Russian Federation, which, in particular, grant them the right to use in the prescribed manner for their own needs the common minerals available on the land plot, fresh groundwater, as well as closed reservoirs. The user of the allotment has the right to erect residential, industrial, cultural and community and other buildings, structures, structures, to carry out irrigation, drainage and other reclamation works in accordance with the intended purpose of the service land allotment and its permitted use.

Summing up, we can state that the legal institution of the gratuitous use of property covers a wide range of relations in the field of housing real estate, and above all in civil contractual relations for the gratuitous temporary use of residential premises and structures and devices functionally related to it. An important place is occupied by the right of gratuitous use in relations between the owner of a dwelling and permanent or temporary residents, as well as the preservation of their right to use this dwelling with the change of its owner.

Of particular importance is the right to free use of housing for orphans who have reached the age of majority, people from educational institutions of social services, orphanages and other institutions indicated above, as well as for lonely elderly citizens and disabled people. The procedure for providing these persons with housing on a gratuitous basis is regulated by the norms of the legislation on social security.

The right of gratuitous temporary (term) use also covers the sphere of land relations, when citizens and legal entities for a short period (up to a year) can be allocated free of charge land plots for household needs (preparation of fodder, grazing, etc.), seasonal recreation of people (tent cities, places for mobile houses, tourist halts, parking lots, etc.). The official allocation of land plots for such a designated purpose will allow citizens to legally use recreational areas, often long developed.

The Constitutional Court of the Russian Federation, by its decision of 01.01.01 N 7-P, recognized the second paragraph of Art. 1 of the Federal Law "On Horticultural, Gardening and Dacha Non-Commercial Associations of Citizens" insofar as the right of citizens to register at the place of residence in a habitable residential building located on a garden plot, which belongs to the lands of settlements, is limited. This resolution enables the owners of such houses to rent them out or for free use to other persons with registration of the right of temporary or permanent residence.

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*(1) Residential premises, according to the Housing Code of the Russian Federation (hereinafter referred to as the HC RF), include: a residential building, part of a residential building; flat; room.

*(2) Real estate in the housing sector includes land plots and residential buildings with residential and non-residential premises firmly associated with them, household outbuildings; perennial green spaces, apartments in residential buildings and other buildings suitable for permanent or temporary residence, and other similar real estate.

*(3) Gongalo code of the Russian Federation: article-by-article commentary. M., 2006. S. 177.

*(4) See: Federal Law of 01.01.01 N 159-FZ "On additional guarantees for the social protection of orphans and children left without parental care" (as amended of 01.01.01 N 122- FZ).

A dwelling is a building or part of a building that is used for human habitation. The owner can provide a dwelling for temporary use without charging a fee. Such a service, together with the rental and rental of residential premises, according to the Law, belongs to such a group of services that are aimed at operating the premises and extracting benefits from this type of action.

In order for this type of use of an apartment or house to be formalized in accordance with the Law, it is necessary to draw up an agreement for the gratuitous use of residential premises.

When should you sign a rental agreement?

Such an agreement must be drawn up if relatives or acquaintances move into an apartment, house or cottage. The contract is concluded if it is necessary, according to the law, to officially register them and register them on the living space for a while.

According to the gratuitous rental agreement, no money should be charged for accommodation. If you still need to take money for accommodation, then you should draw up another type of contract - or. The conclusion of an agreement for the gratuitous use of an apartment or house is necessary so that there are no problems with the unauthorized delivery of residential premises.

The form of the contract includes the following important sections:

Subject of the contract. This section indicates the area of the apartment, the number of rooms, the address of the dwelling and the landlord's document of ownership (number and when issued).

Rights and obligations of the parties. This section sets out the rights of the landlord and the obligations of the tenants.

Responsibility of the parties. It indicates what the landlord is responsible for and what risks the tenants may bear.

Cancellation and early termination. This section details in which cases the owner can demand the annulment of this agreement and what else he has the right to do as the owner of the apartment.

Other conditions. The terms of this agreement are prescribed and other legal aspects are indicated.

Details of the parties and their signatures.

Conditions for the provision of housing for use free of charge

The general provisions on lease may apply to this type of contract, if they do not contradict the legislation on the free use of apartments and houses, and do not run counter to the subject of these legal relations. Therefore, the conditions for providing housing for use on a gratuitous basis should include:

the obligation of one party to transfer the residential premises to the other party, and the obligation of the latter that it must return the premises in the condition in which it received;

an apartment, house or cottage should be provided only on a gratuitous basis - without charging for living in a residential building;

the employer undertakes to pay monthly for the services used by the resources (electricity, gas, water) and utilities;

The parties to the agreement are the lender and the borrower. The lender must be the owner of the dwelling or the authorized owner of the building by virtue of the express provision of the law. For example, a dwelling may be transferred for free use by tenants;

regarding the duration of the agreement, the general lease provisions must be taken into account. If the term is not specified in the document, then it is considered that the contract is concluded for an indefinite period;

it is necessary to determine the subject matter of the contract. This includes the individualization of the dwelling (address, location, floor).

All these terms of the contract for the gratuitous use of an apartment are important when drawing up, but the subject of the contract will be the most significant. From a legal point of view, the subject of this agreement is not only the object itself (an apartment or a house), as mentioned above, but also the actions of the lender to provide free housing to the tenant.

Citizens who have the right to conclude a transaction

On the part of the landlord, persons who are owners or owners of housing have the right to conclude a transaction. Tenants can also transfer the apartment for free use on the basis of an agreement. Persons authorized to perform this legal action also have the right to transfer residential property.

On the part of the tenant, relatives, acquaintances or friends of the landlord can conclude a deal. In general, any citizen who wishes can use such a service on the basis of an agreement.

However, if a person is registered in the Unified State Register of Legal Entities (unified state register) as a legal entity and is engaged in business, then he does not have the right to provide free premises to his managers, founders and other employees of the company to conduct labor activities. It is possible to conclude a document for the gratuitous use of housing, if these persons need it for living.

Rights and obligations of the parties

All points relating to the contract must be taken into account and discussed between the parties. The contract spells out all the rights and obligations of the parties, which must be carefully studied before signing this agreement. The section "Rights and obligations of the parties" states the following:

1. Housing is provided by the landlord. It must be in the condition indicated and spelled out in this document. The purpose of the premises is also specified in the contract.

2. Obligations of the employer.

They include things like:

the apartment or house must be used only for living;
the apartment or house must be kept in good condition;
the costs of maintaining housing must be paid by the tenant, including payment of utility bills;
the tenant does not have the right to transfer the apartment to other persons, if there is no consent of the landlord;
repairs must be carried out by the tenant at his own expense.

3. The tenant must fulfill all obligations that relate to the use of the residential building. Without the consent of the lender, he has the right to carry out work to improve the living quarters.

If the tenants make significant changes to the premises, then after the expiration of the agreement, the lender has the right not to pay any monetary compensation. For the poor condition of the dwelling, the lender has the right to demand that the tenant eliminate the shortcomings and problems.

Transfer of real estate for use

Before going to the notary's office to draw up an agreement for the gratuitous use of residential premises, it is necessary to prepare other documents. The landlord must provide the notary with the following papers:

Photocopy.

A photocopy of the certificate of registration of the right to real estate. (The original must be shown to the notary, and a photocopy must be provided).

Written list of property to be transferred. It usually indicates what is in the apartment or house (gas stove, heating boiler, gas water heater, furniture, and so on).

The following documents must be attached to the contract:

Document on acceptance and transfer of an apartment or house;
A document on the acceptance and transfer of property that is available in the premises;
Additional agreement, if necessary;
Protocol of disagreements and possible ways to agree on these disagreements in writing.

In addition, both parties must submit identification documents and paid state fees.

Validity of the contract for free use

The agreement can be concluded for a specific or indefinite period.. The end date of the contract or its validity period is indicated in the document. At the end of the term of such an agreement, the owner of the dwelling may offer the tenant to extend this period for a certain or indefinite period, and he also has the right to offer the former borrower to conclude a lease agreement with the collection of payment for accommodation.

Termination of a tenancy agreement

The contract can be terminated unilaterally, but on the part of the borrower or tenant.

If the landlord enters into an open-ended contract, then it is worth indicating in the document a condition on the possibility of unilateral termination on his part. In this case, you will only need to inform the employer about it a month before the termination.

If the agreement did not specify the conditions for termination by the landlord, and the borrowers do not maintain the premises in the proper form or do not produce, then the lender has the right to file a claim for early termination of the agreement.

Summing up

Each owner of a dwelling, if he is its owner, can provide his apartment, house or cottage for temporary use without charging a fee.

The contract is concluded when relatives or acquaintances must move into the premises, and they must be officially registered.

There are several conditions for the provision of residential premises for free use.

The owners of the premises, tenants, relatives and friends of the landlord, as well as other citizens who need temporary housing, have the right to conclude a deal.