After all, you don’t want to break a lease agreement that recognizes:
- long-term;
- concluded on favorable terms;
- registered according to all rules.
A significant advantage of such an agreement is that time can be saved. There is no need to terminate the old lease agreement and enter into a new one. It is enough to attract a competent lawyer who will draw up, execute and submit a document for registration with the Unified State Register of Real Estate in accordance with all the rules. Otherwise, such a transaction may be challenged by interested parties.
A practicing lawyer in land matters has to face many difficulties when drawing up such an agreement, because legislators have developed only one article in Chapter. 34 of the Civil Code of the Russian Federation, dedicated to this problem.
Therefore, a professional has to resolve various issues related to the specific nuances of such a transaction, guided by:
- certain provisions of Articles 606-670 of the Civil Code of the Russian Federation;
- decisions of arbitration courts of various instances;
- definitions of the Supreme Arbitration Court of the Russian Federation;
- specific judicial precedents.
At the same time, neither the extended judicial practice nor the vague explanations of Rosreestr representatives provide an unambiguous explanation on many issues and do not add certainty.
The transaction agreement may be missing some essential elements, which leads to the recognition of the agreement regarding rehire as invalid (Article 607 of the Civil Code of the Russian Federation).
The consequences of recognizing a contract as not concluded are very difficult for its participants.
1. The new tenant is deprived of all rights, since he will not be considered a party to the agreement.
2. The previous tenant will have to answer for rent debts, although he has not used the premises or land for a long period.
3. The lessor will not receive the money in a timely manner, since judicial consideration of controversial issues will take a lot of time. In addition, a profitable contract concluded earlier will most likely be terminated, and it will take time to conclude a new one.
In business, time is money. Those subjects of law who enter into a lease agreement are convinced of the accuracy of this comparison: lost time is a direct loss. Therefore, it is necessary to provide for all the nuances that may lead to misunderstandings and litigation in the future.
A competent and experienced lawyer will need to correctly formulate the subject of the contract and obtain consent to complete the transaction.
Subject of the agreement
When drafting the text of a lease agreement, you need to pay maximum attention to the issues of transferring responsibilities and rights. This is the fundamental difference between sublease and release, since in the first case the property is transferred to a third party, and for a time. There is no talk of transfer of rights.
But when concluding a standard re-tenancy agreement, the previous tenant completely drops out of the rental relationship, and a new person takes his place.
Participants in an agreement who develop its terms independently often confuse a lease with an assignment agreement. We must not forget that in the second case the company (new party to the agreement) receives only the right to lease, nothing more. At the same time, the right to lease is inevitably accompanied by additional obligations, including:
- compliance with the procedure for using property;
- compliance with the conditions for using someone else's property;
- transfer of rent;
- carrying out repairs, etc.
So the assignment of the lease right in its pure form, that is, not burdened with obligations, is not allowed. This provision is indicated by:
- in Art. 615 Civil Code of the Russian Federation (clause 2);
- in the letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 66 dated January 11, 2002;
- in the determination of the Supreme Arbitration Court of the Russian Federation No. VAS-17574/09 dated February 15, 2010.
Sometimes entrepreneurs want to bypass the assignment agreement and instead enter into a more advantageous agreement that would simultaneously combine:
- transfer of debt obligations;
- assignment of rights.
Such an agreement is precisely the lease agreement. Its goal is to change the tenant on mutually beneficial terms.
1. It is required to pay due attention in the lease agreement to the obligations from which the transferred duties and rights arise.
2. The basis for the emergence of rental rights must be clearly formulated and described in great detail. Indicate the details of the rental agreement.
3. The rental object must be individualized.
4. The volume of transferred property is determined.
5. The conditions and procedure for the transfer of responsibilities and rights are established.
6. The calculation procedure is formulated.
7. The process of transferring the leased object is being developed.
8. At the time of re-tenancy, the original tenant may have incurred a debt. The new tenant should not be responsible for the debts of the previous one.
9. A lease agreement may be considered void, since it has signs of gratuitousness. Interested parties can point out its similarity to a gift agreement, but commercial organizations do not have the right to enter into such an agreement among themselves.
Therefore, it is better to initially indicate a fee (at least symbolic, if a special situation arises) for the transfer of rights and obligations. Should be indicated:
- size of the amount;
- payment procedure.
10. The rehire agreement may already be concluded. One of the interested parties may try to prove its invalidity in court; moreover, in judicial practice, a good lawyer often manages to find a suitable precedent.
However, a lawyer defending the interests of the previous tenant will be able to confirm in court the validity of such an agreement if its participants complied with the essential conditions for some period. Here it is very important to determine what conditions each party considers essential (the requirements outlined in paragraph 2 of Article 385 of the Civil Code of the Russian Federation).
Basic rules for registering rehire
1. Here is a list of required documents. They must be included in the general package for submission to the Unified State Register:
- original lease agreement;
- cadastral passport (technical passport);
- other documents that indicate the obligations and rights of the tenant;
- certificate confirming the state registration of rental rights;
- letters, reconciliation reports, other evidence of the absence of arrears in payments.
By the way, as of January 1, 2017, legislators introduced changes to the rights registration system. Now certificates are not issued, since they are just an immutable paper carrier of changeable information.
According to the new rules, the emergence and transfer of rights during real estate transactions (including the rights indicated in the lease agreement) can be confirmed by an extract from the Unified State Register of Real Estate. An inscription confirming the registration of the agreement will be placed on the prepared document relating to the transaction.
2. So far, legislators have not developed special rules that must be followed when drawing up a rental agreement. That is, there are no strict requirements for the form yet. Therefore, your lawyer will use the requirements for other similar agreements:
- assignment agreement;
- agreement on the transfer of debt obligations.
3. When drawing up agreements for the transfer of debt and assignment, you should adhere to the form that is recorded in the main agreement (Articles 389, 391 of the Civil Code of the Russian Federation). The main agreement is the lease agreement. Such an agreement must:
- be presented in the form of a single document signed by the parties;
- be concluded in writing (clause 1 of article 651 of the Civil Code of the Russian Federation).
It turns out that the rental agreement is drawn up in the form of a single document, which is signed by both parties. If the re-tenancy transaction is concluded in a different, more simplified way, it will be recognized as not concluded and terminated in court.
Pros and cons of this solution
Advantages:
- The previous tenant can transfer the rights to rent to another person with the least risk to himself.
- The owner does not need to waste time and effort searching for a new candidate to conclude an agreement.
- A new tenant can enter into a rental agreement on preferential terms, since all the same rental conditions must be maintained for him as for the previous landlord.
Flaws:
- If the premises are state-owned, then you cannot choose a tenant yourself: first you need to hold an established auction (Article 147 of the Civil Code of the Russian Federation, Law No. 135-F3). Responsibilities for conducting auctions rest entirely with the owner.
- If the rental conditions for the previous tenant were favorable, preferential for some reason, the new one must be offered the same.
New tenants do not always please owners who gave a discount on payment or offered other benefits to the previous tenant based on personal liking or a positive attitude towards his business or brand.
State registration according to new rules
1. If the main lease agreement has been officially registered, then the re-lease agreement should be registered in the same way.
2. The lease agreement is considered an independent transaction. The beginning of its action is marked from the moment when the state is implemented. registration (clause 3 of article 433 of the Civil Code of the Russian Federation; clause 2 of article 389 of the Civil Code of the Russian Federation).
3. The law does not require changes to the main lease agreement.
4. Difficulties may arise in a situation where a long-term lease agreement was registered, and after the expiration of the initially designated period, the same agreement was renewed, but for an indefinite period. At the same time, the rental record was not officially registered in the Unified State Register (Unified State Register of Entrepreneurs (USR) was previously the registration authority).
5. The following question remains open: should it be mandatory to implement the state. registration of a rental agreement? An experienced lawyer explains to clients who want to conclude such an agreement according to all the rules that neither legislators nor Rosreestr employees have yet developed clear rules.
It can be assumed that there is no need to register the lease agreement for the reason that the lease agreement has already been extended for an indefinite period (clause 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 59 dated February 16, 2001). This means that participants in the new agreement who are replacing the tenant have the right not to contact Rosreestr.
Legislators confirm this right, but a competent lawyer considers such a decision risky.
For example, a new tenant, to whom the right to use land has been transferred under a lease agreement, may have problems registering real estate built on this land. The previous tenant can claim his rights to own the buildings, since, according to Rosreestr, he is the tenant of the land plot.
Of course, a highly qualified legal practitioner will be able to confirm during the trial the legality of the claims of his client - the tenant under the lease agreement. However, the new tenant will still be deprived of the right to register the immovable property built at his expense and through his own efforts.
This means that a re-tenancy agreement must be submitted to the Unified State Register of Real Estate for registration, although the lease agreement has already been extended for an indefinite period. Responsible employees of Rosreestr believe that such an agreement must certainly be registered if it is to be refused by the state. registration will not find other, more significant grounds.
And yet, sometimes you have to prove to representatives of the Unified State Register of Real Estate, who are not sufficiently competent, the obvious truth: this agreement, so convenient and beneficial for the client and the other participants in the transaction, must be registered in accordance with all the rules.
Due to various delays, no one gives a 100% guarantee that the rental agreement will be registered. If complications arise, the landlord and the original tenant are advised to enter into an additional agreement. As a result of this action, the underlying lease agreement will be renewed; then the extension period of the agreement should not be specified.
Such an addition to the original agreement is registered according to clearly established rules, so no problems will arise regarding its registration with Rosreestr.
After this, the original tenant and the new tenant enter into a re-tenancy agreement and register it. Perhaps this is the most profitable, simple and legally safe way to solve the registration problem.
Why is this necessary?
Re-letting can be an excellent solution in a difficult situation when the previous tenant is not able to rent the premises in the future. In this case, he may propose to the owner of the premises another candidate to whom the rental rights will be transferred.
An assignment can also occur in any other cases where the tenant decides to stop renting the premises or the rental agreement expires and does not plan to renew. For the owner, rehiring is profitable, because he does not have to search for a new candidate .
Most likely, he will have to pay the so-called commission to the previous tenant, but he saves his time and effort.
From whom do you need to obtain confirmation of approval of the rehire transaction?
The parties must come to a mutual agreement, only then is it possible to complete a rehire transaction. That is, the terms agreed upon and documented by the parties directly transferring the property must be known to the lessor. But this party may not give its consent, and then the transfer of property for rent to a specific new legal entity will not take place.
In addition, the lessor could want to terminate the contract, although he had no grounds for legal registration of such an action. Now, when the original tenant no longer needs the landlord’s property and he agrees to transfer it to another person, the landlord has a chance to terminate the agreement without any losses for himself.
After all, the property used by the tenant belongs to the landlord. He disposes of his property as he wishes, and also transfers it under certain conditions (usually, the initially drawn up agreement does not indicate either the right to sublease or the possibility of re-letting).
1. It is necessary to obtain consent to register a re-tenancy from the lessor; this is required by law. Otherwise, the transaction will most likely be recognized as a void document (Article 168 of the Civil Code of the Russian Federation; clause 1 of Article 391 of the Civil Code of the Russian Federation).
2. The rules for re-leasing land owned by the state or municipality have been developed differently:
- if the lease agreement was signed for a period of more than 5 years;
if the tenant is not obliged by the terms of the contract to seek the consent of the landlord.
Here the tenant is only obliged to inform the owner of his decision (clause 15 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 11 of March 24, 2005; clause 9 of Article 22 of the Land Code of the Russian Federation). The lessor gives consent in the form of:
— auxiliary annex to the agreement; - a separate document.
Also, consent to formalize the re-tenancy can be included in the text of the agreement initially, then there is no need to obtain a resolution from the lessor, even in the form of an auxiliary appendix to the main document (clause 18 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 66 dated January 11, 2002).
