Request to vacate non-residential premises: sample

Non-residential properties are rented by tenants for shops, warehouses, offices and more. Conditions and terms are discussed in the lease agreement, but they are not always fulfilled in good faith, and there are reasons for eviction of the tenant. You can achieve vacancy of the premises without a trial, with mutual agreement to terminate the transaction, or through the court if the tenant refuses to move out.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

How to create a notification?

There are no specific requirements for filing a request to vacate the premises; you just need to indicate the following data:

Landlord and tenant details.
The exact address of the object's location.
Grounds for eviction.
Deadlines for vacating the premises.
Date of compilation, signature and seal.

You can notify the tenant in several ways:

Personally in the hands of the employer, with the obligatory receipt of a signature upon receipt of the document.
Via mail, proof will be a postal notification.
Through a representative with a receipt for delivery of the document.

Eviction by court

If, after the time specified in the notice, the tenant refuses to vacate the property, the landlord submits an eviction claim to the appropriate authorities.

Where to contact?

An eviction application can be written by:

Owner of the property.
Third parties whose interests are affected.
Law enforcement agencies.

The applicant may apply:

To a court of general jurisdiction, if he is an ordinary citizen.
To the arbitration court, if the landlord and tenant are individual entrepreneurs or legal entities.

Required documents

To resolve the issue, a complete package of documents is collected and submitted to the judicial authority:

A properly completed claim.
Identification documents of the plaintiff.
Notice and/or Complaint.
Lease contract.
Documents for the premises establishing the plaintiff's ownership.
Receipt for payment of state duty.
Documents proving the legality of the tenant's eviction request.
Other additional documents.

The statement of claim is drawn up in accordance with legal standards for document preparation and contains the following information:

Full name of the judicial authority.
Plaintiff's details.
Defendant's details.
Name and address of the rented property.
Details of the lease agreement.
Grounds for eviction.
Requirements for the tenant.
List of documents attached to the case.
List of persons represented by witnesses.
Date and signature (seal of the legal entity).

Time frame for consideration of the case

The time frame depends on the location of the case:

Up to 2 months in a court of general jurisdiction, in accordance with Article 154 of the Code of Civil Procedure of the Russian Federation.
Up to 3 months in an arbitration court, according to Article 152 of the Arbitration Procedure Code of the Russian Federation. If it is difficult to make a decision on a reasoned application from a judge, the period may be extended to 6 months.

The specified time limits include only the time for consideration of the case in the first instance, without taking into account the time required to make a decision on the filed complaints.

Financial expenses

A statement of claim will be accepted in court only after payment of the state fee . Its size is regulated by clause 2, clause 1, art. 333.21 of the Tax Code of the Russian Federation and is approximately 6,000 rubles. There may be additional costs for legal services, additional examinations, etc.

The “magic” of words in arbitration practice – 8

At the end of the conversation about the “property” of claims related to the transfer of property () - another fragment of reasoning expressing a subjective opinion on a narrow issue of current judicial practice.

Property claim (Fragment : Claim for eviction

The situation with claims for eviction from non-residential premises is often called problematic in the literature.

— “The claims brought by owners for eviction from non-residential premises have significant features.”[1]

— “In arbitration and judicial practice, a problem has arisen related to the qualification of such claims of landlords, which in statements of claim are usually referred to as demands for the eviction of a former tenant or for the latter to vacate the premises occupied by him without legal grounds.[2]

- “In the practice of arbitration courts, there is a problem of correctly qualifying the demand for eviction, or more precisely, the requirement to impose on the defendant the obligation to vacate the illegally occupied building (premises) ...”[3]

I share this opinion, especially since a number of aspects of this problem are directly related to the topic under discussion.

As we can see from the above quotes, next to the word “evict” there is another word – “vacate” (non-residential premises), the connection of which in the literature is referred to as “identity”, “single context”.

— “In an eviction claim, the court obliges the defendant to eliminate the violation of the plaintiff’s rights. This duty will be to vacate the premises in dispute.” [4]

“Based on the generic origin and the pursued purpose, the concepts of “eviction” and “vacation of non-residential premises” are essentially identical.” [5]

- “It is advisable to consider the concepts ... “eviction” ... and “liberation” in the same context...”[6]

Exactly, that’s right - in one context, these concepts are used by Article 107 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”:

2. Fulfillment of the requirement to evict or vacate non-residential premises (on the debtor’s obligation to vacate non-residential premises) includes the release of the premises specified in the writ of execution from the debtor, his property, pets and the prohibition of the debtor from using the vacated premises.

So is there a difference between these categories? If not, why was it necessary to enshrine the following two as independent measures in Article 68 of the executive law, among other compulsory enforcement measures?

9) forced eviction of the debtor from the residential premises;

10) forced release of non-residential premises from the presence of the debtor and his property in it.

The literature notes that there is a slight difference.

“The difference in these concepts comes down only to the status of the premises - whether it is residential or non-residential. Both concepts imply “cleaning” the premises of the debtor and his property. In this case, it makes no difference who acts as a debtor - a citizen or an organization.”[7]

To this, I note that, despite the indicated difference, both formulations are still equally present in arbitration decisions on claims, including those arising from the lease of non-residential premises (see examples in Fragment 7). Although, it would seem that in the years that have passed since the appearance of the updated norm in the law, it was already possible to “restructure.”

Let us remember that Article 45 of the previously valid law “On Enforcement Proceedings” dated July 21, 1997 No. 119-FZ did not provide for such a compulsory execution measure as “vacation of non-residential premises.” The phrase “vacation of premises” was used in this law to explain the category of “eviction”:

Article 75. Execution of the writ of execution on the eviction of the debtor

3. Eviction consists of releasing the premises specified in the writ of execution from the evicted person(s), his/her property, pets and prohibiting the evicted person(s) from using the vacated premises.

Even earlier, in paragraph 193 of the Instructions on the procedure for the execution of court decisions (Approved by order of the Minister of Justice of the USSR dated April 24, 1973 No. 7), the vacation of premises by the debtor himself was interpreted as a voluntary eviction - as opposed to a forced eviction, which was carried out by a bailiff.

In my opinion, the difference between the concepts of “eviction” and “vacation” is not limited to the functional purpose of the premises, since the targeting of the requirements is not the same, which is clearly seen, for example, from the following norms.

a) Civil Code of the RSFSR 1922

Article 171-a.

In the event of termination of the employment contract... the employer has the right to demand the vacancy of the premises.

... the employer may bring a claim for eviction in court of a person who refuses to voluntarily vacate the premises.

b) Housing Code of the Russian Federation. Article 35. Eviction of a citizen whose right to use residential premises has been terminated or who violates the rules for using residential premises

1. If a citizen’s right to use residential premises is terminated... this citizen is obliged to vacate the corresponding residential premises (stop using it).

If this citizen does not vacate the said residential premises within the time period established by the owner of the relevant residential premises, he is subject to eviction at the request of the owner based on a court decision.

Thus, the law distinguishes between an extrajudicial demand for the vacancy of residential premises by a tenant and a claim/decision to evict a person who has not fulfilled the corresponding obligation voluntarily. That is: the debtor himself vacates the premises, the court evicts the debtor. We can say that in the first case, the debtor acts as the subject of the sought actions, and in the second, as the object of the actions of other persons.

In fact, claims are equally filed with the arbitration court for both eviction and vacating the premises, respectively, with the wording: “I ask you to evict the tenant from the premises” and “I ask you to oblige the tenant to vacate the premises.”

Considering the above, I see an abnormality in the “competition” of two, in my opinion, different claims/decisions on the same subject. This allows us to state the manifestation of an already familiar dilemma[8]: “evict” or “oblige to release.” I am convinced that such claims/decisions can “coexist peacefully” only on the condition that the “binding” decision involves exclusively indirect coercion during its execution. And since both in the literature and in practice the opinion has been established that both types of non-property decisions are equally enforced by bailiffs, their “competition” is an obvious misunderstanding.

I will further note that, along with eviction, the characterization of the claim for vacating also raises questions: “In judicial practice, no clear legal position has been expressed on the qualification of the claim for vacating the premises...”.[9]

The following quote gives grounds to consider the categories mentioned in it as one-order.

— “Judicial practice is faced with situations where, in the same situations, the owners of non-residential premises, who have lost possession of the premises, put their claims against the defendant in the form of both a claim for eviction from non-residential premises and a claim for the recovery of property from someone else’s illegal possession. Judicial practice evaluates this kind of formulation as an expression of the same requirement – to vacate the premises.” [10]

And here is an example from practice. [eleven]

“... the premises of the first floor of the building... which are occupied by him are subject to reclaim from the defendant by means of his eviction...

The plaintiff’s demand for the defendant’s obligation to vacate the premises is not considered separately by the court, because is covered by the requirement to recover property and is identical to it...

Guided by Articles 167, 168, 171, 110 of the Arbitration Procedural Code of the Russian Federation, the court

DECIDED:

Request from (the defendant) in favor of (the plaintiff) the premises of the first floor...”

In my opinion, there is a different relationship between eviction and release, on the one hand, and judgment in kind, application of the consequences of the invalidity of the transaction and vindication, on the other, which, firstly, does not allow us to list all the named categories “separated by commas” , and secondly, unambiguously classify “eviction” and “release” as methods of protecting the right.

The Civil Code in Article 12 established that the protection of civil rights is carried out, in addition to the methods named in this article, also “in other ways provided by law.” The Law “On Enforcement Proceedings” calls (with the additional characteristic “forced”) eviction and release of non-residential premises enforcement measures. And this, of course, is not the same thing as a way to protect civil rights.

As for substantive law, the judicial eviction of a citizen is provided for, for example, Article 688 of the Civil Code of the Russian Federation “Consequences of termination of a residential tenancy agreement.” According to M.N. Rakhvalova, eviction, as a special sanction for an offense, is applied only in housing legislation.[12] In particular, this author points out the impossibility of unambiguously determining the legal nature of eviction: “in some cases, eviction can be considered as a measure of protection, in others - as a measure of responsibility. In a number of cases, eviction cannot be classified into any of the above categories.”[13] I note that the claim for vacating non-residential premises does not have such a substantive basis.

Probably, it would not be worth paying so much attention to this circumstance if it were not for the usual manipulations with wording in practice, which make it possible to turn property, in particular, vindication claims into claims and decisions without a price.

Let's try to figure it out.

As shown above, eviction and release refer to a claim by the landlord exercising a known method of protecting the rights of obligations.

On the other hand, the claims “to evict”, “to release” are a variant of designation, for example, of a vindication claim and a decision on it.[14]

Example[15]

“As follows from the case materials, non-residential premises... are used by the defendant in the absence of contractual relations with the owner...

Article 301 of the Civil Code of the Russian Federation provides that the owner has the right to reclaim his property from someone else’s illegal possession...

Guided by Art. Art. 110, 167, paragraph 2, article 176, art. 180, 319 Arbitration Procedural Code of the Russian Federation, court

DECIDED:

Evict... from non-residential premises...

Collect from... 6,000 rubles. state duties..."

Let me give you the following quotes as an example.

— “Eviction and vacating premises as methods of protecting civil rights are nothing more than reclaiming property from someone else’s illegal possession (Article 301 of the Civil Code of the Russian Federation).”[17]

There are corresponding examples in arbitration practice.[18]

“...The defendant’s obligation to vacate non-residential premises (eviction) is a way of reclaiming real estate from someone else’s illegal possession.”

I understand what was said this way: a vindication claim can be formulated using the verbs “evict” or “release”. What can you object to here, especially since “can” is not “should”? But there is the following remark.

If eviction is a way to protect the non-possessing owner, then where, excuse me, does vindication “disappear”? If we continue to consider vindication as a legal way used by the owner to protect his property, then what is eviction? And what kind of construction is this: “a method of protecting the right”?

And if now another owner who has lost possession formulates a claim using the verb “to release,” will we now have three ways to protect one right? And this is not the limit, if we recall from the materials of judicial practice the number of options for verbal designation of the same requirement.

What happens? Vindication (a) is “eviction/release” (b), which in turn is an award to perform an obligation in kind (c). It remains to look at the situation through the “prism” of mathematics: a=b, b=c, from which it follows that vindication is an award to perform a duty in kind. There is a logical error.

Conclusion: eviction and vacating premises are categories of a different order than the methods of protecting civil rights known to us on the topic under discussion, and it would be wrong to mix them.

According to M.V. Bando, “The concept of “eviction”... lies not in a legal, but in a factual plane... The requirement for eviction does not have a single legal nature and is not some special method of protection. The statement of such a claim can only take place when using a certain method of protection provided for by law or arising from the law...” [19]

Previously I quoted the statement of A.V. Germanov, the essence of which is as follows: the obvious difference in the legal nature of the claims of the non-possessing owner and the creditor in the obligation to return the thing does not interfere with the same wording of the pleading part of these statements of claim and the same nature of the forced execution of decisions to satisfy them.

This circumstance is used, for example, when changing the cause of action.

— “First, the plaintiff demanded to evict the tenant from the premises he occupied, then the plaintiff sued for the eviction of the same person as an illegal owner. In the first claim it is based on a contract, and in the second – on the right of property.”[20]

An example from modern practice is given by N.R. Ivanova: “The company filed a claim for eviction due to the expiration of the lease agreement and referred to Art. 301, 305 Civil Code. The arbitration court invited the plaintiff to clarify his claims, and after he filed a claim for eviction under Article 622 of the Civil Code of the Russian Federation, it considered it on its merits.” [21]

Many people are familiar with the statement of I.A. Pokrovsky: “What means the law will resort to to force performance is not a question of the essence of the obligation, but of practical expediency.”[22]

I will formulate the “reverse” thought in the following way: despite their (beneficial from a practical point of view) identical verbal expression and the nature of compulsory execution, each of the requirements remains unchanged in its material and legal essence. The expression “claim/decision for eviction” seems uninformative (compare: “claim for eviction of a tenant”, “claim for eviction of an illegal owner”).

“An eviction request always requires additional qualifications.”[23]

Therefore, how correct is it to discuss the possibility of a monetary valuation of an eviction claim, abstracting from the content of the claim expressed in this form?

The same can be said about a claim to vacate the premises.

These concepts are closely related. This connection in relation to housing legislation is explained by M.N. Rakhvalov, confirming the above reasoning using the example of the Civil Code of the RSFSR of 1922 and the Housing Code of the Russian Federation: “Although eviction as a consequence of the owner’s refusal to vacate [Emphasis added. – V.G.] the occupied premises are not mentioned in this article of the RF Housing Code, this is obvious.” [24]

Thus, the most acceptable combination is: claim – “release”, claim – “evict”. Accordingly, eviction is the process of forced release of premises from the debtor and his property. Please note: the verb “evict”, unlike “vacate”, does not require the use of “binding” wording of the claim.

In the 4th Fragment of the text[25], discussing a claim for individually defined property, he once again turned to the meaning of the words “take away”, “withdraw”. Here I will name another semantic feature of these verbs.

— “When the object is a place (room or territory), the words “take away”, “take away” mean that the subject drives the previous owner out of there and denies him access there.”[26]

The word “ expel expel which is suitable in meaning , do not need explanation, I believe.

Hence the conclusion follows: eviction and forced release are options for “selection”, “seizure”, verbally “adapted” to such, in particular, real estate objects as premises, buildings.

— “If the subject of the lease is a premises or structure, the tenant may evict the tenant from there through a judicial procedure.”[27]

“Eviction is nothing more than a forced seizure of living space.”[28]

Let's turn again to the Russian language dictionary. The word “evict” means “ to force someone to leave their place of residence.” And the word “force” means “ to force someone to do something, to act in some way.” That is, as in the case of withdrawal, selection, the verb “evict” has an element of coercion, which makes this word suitable for formulating a claim. Therefore, by the way, the legal expression “forced eviction” can be regarded as an example of lexical redundancy in the form of pleonasm.

Next is a disclaimer, and, in my opinion, a significant one.

Article 622 of the Civil Code is of a general nature, and therefore uses the verb “return / return”, denoting the action of the tenant, regardless of the characteristics of the leased property. But special article 655 “Transfer of a building or structure” also does not use the words “eviction”, “vacation”. However, orders “to evict” and “to vacate” are used in the operative part of many decisions (see Fragment 7, examples No. 31, 32, 33, 36).

Now let’s ask ourselves, are the expressions “free” and “return” equivalent? Unfortunately no. “Return / return” means to transfer back, back: we are, of course, talking about a transfer of ownership.

— “The rules that directly govern the relations of the parties [to a lease agreement] always involve the transfer of the item to the lessee, and therefore the receipt of the property into his possession.”[29]

— “As is known, “possession and use of an immovable thing are carried out simultaneously. Separate exercise of these two powers in relation to real estate is simply impossible. This is most clearly manifested in relation to premises.”[30]

And in the case of eviction or release, there is no transfer as such, which is confirmed, among other things, by the analyzed norms of the Law “On Enforcement Proceedings”. In accordance with these provisions of the law, the official form of the eviction act[31] contains information only about the release of the premises from the evicted person, his property and the prohibition of the debtor from using the vacated premises; Neither the article of the law nor the form of the act provides for any transfer or acceptance of the premises.

Thus, as in the previously discussed examples with the verbs “to seize”, “to take away”, eviction and (forced) vacation of the premises in themselves do not provide the result the landlord needs. Indeed, in essence, its “... goal is to restore actual possession, which is achieved by performing a two-part action (withdrawal and transfer).”[32]

An example from judicial practice.[33]

“By virtue of paragraph 2 of Article 655 of the Civil Code of the Russian Federation, the tenant’s obligation to return the building or structure to the lessor can be considered fulfilled only if the parties sign the corresponding transfer document.

This rule is aimed at protecting the interests of the lessor, which consist in receiving, upon termination of the lease agreement, the thing in the same condition in which he handed it over to the lessee.”

By focusing on the actual circumstances, such as eviction and release, we lose sight of the tenant’s obligation itself established by law, and instead of a legally significant transfer, we are discussing, in fact, a technical issue. As a result of the listed actions, the requirement provided for in Article 622 of the Civil Code is only fulfilled: “... in the condition in which he received it...”. But there is no return or transfer itself.

Understanding this, when formulating a claim and a decision, plaintiffs and judges add “return” and “transfer” to “eviction” and “release” (see Fragment 7, examples No. 34, 35, 38).

It is significant that in practice there are many decisions “to oblige to return”, “to oblige to transfer”, when formulating the operative part of which the words “evict” and “release” are conveniently omitted as unimportant (Fragment 7, examples No. 29, 35).

True, incidents also happen if a judge tries to combine incomparable concepts in a decision resolution.

Example[34]

“... guided by Article 171, 174-177 of the Arbitration Procedure Code of the Russian Federation, the court

decided:

... Evict (the defendant) from the non-residential premises ... and oblige him to transfer the said premises in a vacated form (to the plaintiff)..."

Example[35]

“... Based on Art. ... 622 of the Civil Code of the Russian Federation, guided by Art. ... Arbitration Procedure Code of the Russian Federation, court

DECIDED:

Evict (the defendant) from the non-residential premises... and oblige him to transfer this premises in a vacated form (to the plaintiff)..."

In the examples given, each decision contains two court orders: “evict” and “oblige to transfer.” In both cases, the order to “evict” involves direct coercion and is addressed to the bailiff.

As for “oblige to transfer,” in the first example, bearing in mind the presence of the pronoun “him,” the court imposed the obligation to perform a “certain action” on the already evicted tenant, dividing the execution in an original way between the debtor and the bailiff.

In the second example, the formulation of the obligation to transfer the premises vacated from the debtor raises the question: does this kind of regulation of the activities of the bailiff fall within the competence of the court?

The next example[36] is the same case of “competition” of requirements (see above).

“... The court, guided by articles 110, 167-170, 176 of the Arbitration Procedure Code of the Russian Federation

DECIDED:

... Oblige (the defendant) to return (to the plaintiff) non-residential premises with a total area of 108.9 sq.m. according to the transfer and acceptance certificate, ...

Evict (evict) by vacating non-residential premises with a total area of 108.9 sq.m., ..."

As we see, in one decision regarding one object, two independent, and therefore mutually exclusive lines of execution are combined.

————

From a factual point of view (both voluntary and forced), the “cleaning” of the premises precedes the transfer of the property to the landlord. From the standpoint of law, the return (transfer) of property is primary, and its compliance with the condition at the time of receipt of the lease is secondary. Therefore, the usual lawsuits and court decisions “to oblige to vacate” and “to evict” are seen as flawed, as not corresponding to the tenant’s legally regulated obligations at the end of the contract.

As a “compromise” option, we can recommend the formulation found in the decisions of arbitration courts: “to oblige the return of the premises in a vacated form,” which, if I’m not mistaken, was once given a “start in life” by the Supreme Arbitration Court of the Russian Federation.[37]

Next - a few words about the non-property assessment of claims for eviction and vacancy of premises. Let me start with the question: what is this assessment based on?

The reference to “award to perform an obligation in kind” and the norm of paragraph 4 of paragraph 1 of Article 333.21 of the Tax Code of the Russian Federation seems unconvincing, since, as was established above, the named factual categories do not determine the essence of the claim implementing one or another method of defense. I repeat: for example, vindication does not cease to be such when the owner’s claim is designated by the verbs “evict” or “release”.

For the same reason, it is difficult to accept unconditionally the reference to the location of Article 107 “Features of the execution of the requirement contained in the executive document to evict the debtor, to vacate non-residential premises...” in Chapter 13 “Fulfillment of requirements of a non-property nature...” of the current Law “On Enforcement Proceedings”. But it's not only that.

Traditionally, a short excursion into history.

In the instructions of the USSR Ministry of Finance on state duties in 1972, 1976, 1979, 1992, there was a paragraph/clause on duty rates, where, among other statements of a non-property nature[38], a statement was called “on the release of unauthorized occupied premises.” In the textbooks on the arbitration process published at that time and, for example, in the popular brochure by M.S. Falkovich and S.I. Vinokur[39] only reproduced the provisions of the instructions on state duty without qualifying the specified requirement. It is clear that unauthorized occupation (occupation) of premises does not correspond to the contractual (rental) relations under discussion. As for vindication, given the legal reality of those years, it hardly makes sense to draw any parallels today.

It is also interesting to note that in the pre-revolutionary period, practice approached the monetary assessment of eviction claims in a differentiated manner, reflecting a long-standing debate about the legal nature of the landlord’s claim at the end of the contract.

a) “The following claims are recognized as not subject to assessment: f) claims for eviction from apartments and other premises, both after the expiration of the contract, and in all cases when their occupation is not based on a contract that is still in force (decision dated October 19, 1896).” [40]

b) “The following claims are recognized as subject to assessment: b) claims for eviction from apartments and other premises during the validity of the contract (decision No. 179 of 1877).” “The price of a claim for eviction from apartments and other premises during the validity of the contract is recognized as the amount for unexpired time (decision of October 19, 1906).”[41]

Next I will give an interesting judgment from Prof. A.M. Gulyaev, who, analyzing Senate practice, shows the connection between the assessment of an eviction claim and the issue of jurisdiction.

The author comments on the cassation decision for 1879 No. 89: “...Clause 4 of Article 29 cannot be applied to a claim for termination of such use by the defendant of the plaintiff’s estate, which is possible not as a result of unauthorized taking, but due to legal relations between the parties established by agreement or law."[42]

Further in the same place: “So, claims for eviction of a faulty tenant from an apartment are not subject to consideration in accordance with paragraph 4 of Article 29, but must be considered in accordance with paragraph 1 of the same article [ Charter of Civil Proceedings [43] . – V.G.].”

29. The jurisdiction of the magistrate is subject to:

1) claims for personal obligations and contracts and for movable property with a value not exceeding five hundred rubles...

4) claims for restoration of violated possession, when no more than six months have passed since the violation...

Further in the same place, A.M. Gulyaev continues: “And since paragraph 1 of paragraph 29 of the article presupposes an assessment, then, strictly speaking, eviction claims that require quick consideration, subject to assessment, will very often turn out to be beyond the jurisdiction of the magistrate’s court. And so , in order to more quickly resolve such an important practically important issue as the issue of eviction, the Governing Senate recognized eviction claims as not subject to evaluation...” [Emphasis added. – V.G.]

“But at the moment the contract expires, non-contractual relations arise between the (former) counterparties, the defendant’s possession becomes unauthorized, why, in order to terminate such possession, the plaintiff already loses the opportunity to rely on the contract, while maintaining his position as the person whose possession violated by the enemy. ... In recognizing a claim for eviction, after termination of a contract, as a claim for restoration of violated possession, there would be less artificiality than in classifying claims for eviction as claims not subject to assessment... These considerations are a conclusion from the provisions of practice, and not from the dictates of the law, and recognition the claim for eviction, although based on paragraph 1 of Article 29, is not subject to assessment, turns out to be ... arbitrary ... " [44]

The above examples confirm that the noted problem arose, as they say, not yesterday and not out of nowhere. We can only regret that for so many years, domestic science has not been able to put an end to this dispute.

In a not so distant historical perspective, the recognition of an eviction claim as having no value was probably influenced by the nature of property relations and the “belated” recognition of the object of law, with its involvement in circulation, first of residential premises, and then of non-residential ones.

It is also worth mentioning the tendency noted by researchers, not only of general courts, but also of some arbitration courts, to consider eviction claims as negatory.[45]

At this point, the targeted analysis of claims related to the transfer and return of property can be completed and a brief summary can be made. Results.

1. It turned out to be an unsuccessful attempt to find out the list of obligatory claims “to reclaim property”, based on the terminology of the Civil Code and the cases of use of the verb “to reclaim” and its derivatives in the literature and judicial practice.

2. The absence in legislation and in theory of criteria for the property of a claim, the definition of a claim “for the recovery of property”, as well as the categorical nature of the norm of paragraph 4 of paragraph 1 of Article 333.21 of the Tax Code of the Russian Federation forces us to limit ourselves to the statement: any obligatory claims related to the transfer or return of property, in arbitration practice they are usually considered as non-property.

The foregoing allows us to supplement the analysis of court decisions “on the award of property” - now in relation to obligatory claims.

[1] Skvortsov O.Yu. Claims in rem in judicial arbitration practice. M. 1998.

[2] Braginsky M.I., Vitryansky V.V. Contract law. Book two. Agreements on the transfer of property. M. 2000.

[3] Podshivalov T.P. Claim for vacating premises in the practice of arbitration courts / Bulletin of Arbitration Practice. 2013. No. 2 // SPS ConsultantPlus.

[4] Course of Soviet civil procedural law. Volume 1. M. 1981.

[5] How to enforce a court decision? Benefit for the claimant / Hand. auto count I.V. Reshetnikova. M. 2013.

[6] Potyarkin D. Eviction from non-residential premises // Legality. 1999. No. 3.

[7] How to enforce a court decision? Benefit for the claimant / Hand. auto count I.V. Reshetnikova. M. 2013.

[8] See about this: https://zakon.ru/blog/2018/01/09/izyat_i_peredat_ili_obyazat_peredat_-_vot_v_chyom_vopros, https:/ /zakon.ru /blog /2021/01/17/magiya_slov_v_arbitrazhnoj_praktike_-_5.

[9] Podshivalov T.P. Claim for vacating premises in the practice of arbitration courts...

[10] Skvortsov O.Yu. Claims in rem in judicial arbitration practice. M. 1998.

[11] Decision of June 11, 2008 in the case of the AS of the Chita region. No. A78-1187/2008.

[12] Rakhvalova M.N. Legal nature of eviction // Family and housing law. 2010. No. 1.

[13] Rakhvalova M.N. The legal nature of eviction...

[14] In fairness, I note that the number of vindication decisions “on eviction” is gradually decreasing.

[15] Decision of July 28, 2020 in the case of the Arbitration Court of the Yaroslavl Region. No. A82-3273/2020 “on eviction.”

[16] Skvortsov O.Yu. Claims in rem in judicial arbitration practice. M. 1998.

[17] How to enforce a court decision? Benefit for the claimant / Hand. auto count I.V. Reshetnikova. M. 2013.

[18] Resolution dated April 30, 2004 by the Federal Antimonopoly Service of the Moscow District in the case of the Moscow Arbitration Court No. A40-2843/2004.

[19] Bando M.V. On the legal qualification of requirements for eviction from residential premises // Family and housing law. 2021. No. 5.

[20] Yablochkov T.M. Textbook of Russian civil proceedings. Yarosl. 1912.

[21] Ivanova N.R. Protection of property rights in arbitration court. M.1999.

[22] Pokrovsky I.A. Main problems of civil law. M. 2001.

[23] Bando M.V. On the legal qualification of demands for eviction from residential premises...

[24] Rakhvalova M.N. The legal nature of eviction...

[25] See

[26] New explanatory dictionary of synonyms of the Russian language / Ed. Yu.D. Apresyan. M. 2000.

[27] Lipetsker M. Property lease agreement // Arbitration. 1938. No. 13-14.

[28] Ioffe O.S. Law of obligations. M. 1975.

[29] Latyev A.N. The scope of the concept of ownership in modern civil law. SPS ConsultantPlus.

[30] Petrushkin V.A. Current problems of the legal model of the real estate turnover system: monograph / Scientific. ed. V.V. Vitryansky. M. 2014.

[31] Appendix No. 6 to the order of the Federal Bailiff Service of the Russian Federation dated January 31, 2011 No. 28 “On approval of sample forms of procedural documents used by officials of the Federal Bailiff Service in the process of forced execution of a writ of execution.”

[32] Novoselova A.A., Podshivalov T.P. Vindication claim: problems of elemental composition // Bulletin of the South Ural University. Series "Law". 2008. No. 8 (108). Vol. 14.

[33] Decision of January 19, 2021 in the case of the AS of the Tver region. No. A66-11281/20.

[34] Resolution of September 30, 1999 of the Federal Antimonopoly Service of the Moscow District in the case of the Moscow Arbitration Court No. A40/3148-99.

[35] Decision dated December 23, 2020 in the case of the Moscow City Court No. A40-136296/2020.

[36] Decision of July 30, 2020 in the case of the AS of the Krasnodar Territory No. A32-19709/2020.

[37] Paragraph 17 of the Review of the practice of resolving disputes related to the protection of property rights and other property rights. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 28, 1997 No. 13 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. No. 7.

[38] In the Instructions dated December 28, 1979 No. 217, dated March 13, 1992 No. 5 it was specified: ... not subject to valuation.

[39] Falkovich M.S., Vinokur S.I. State duty in state arbitration bodies. M. 1973.

[40] Code of cassation provisions on issues of Russian civil procedural law for 1866-1907 Compiled by V.L. Isaychenko. St. Petersburg 1908. Decisions of the civil department of the Governing Senate. No. 8893.

[41] Code of cassation provisions on issues of Russian civil procedural law for 1866-1907 Compiled by V.L. Isaychenko. St. Petersburg 1908. Decisions of the civil department of the Governing Senate. No. 8895, No. 8912.

[42] Gulyaev A.M. Claims for the restoration of violated possession in the practice of the civil cassation department of the Government Senate. St. Petersburg 1914.

[43] Charter of civil proceedings. Book one. Procedure for proceedings in global court rulings. Chapter first. About jurisdiction.

[44] Gulyaev A.M. Claims for restoration of violated possession in the practice of the Civil Cassation Department...

[45] See, for example: Podshivalov T.P. Claim for vacating premises in the practice of arbitration courts...

Nuances of the procedure

When going to court, you should consider some points to successfully complete the process:

The statement of claim must be drawn up correctly, otherwise the plaintiff may lose the process and will lose the opportunity to re-apply in this case.
If the owner of the property has not received advance payment for the next month on time, he can demand eviction from the first day of the new month.
If the prepayment is made by the tenant on time, eviction is possible only from the first day of the unpaid month.
If the tenant refuses to accept the notice or claim, the owner has the right to file a lawsuit in court.
A decision may also be made if the defendant refuses to appear in court.
If the case is decided in favor of the plaintiff, he has the right to demand reimbursement of legal costs from the defendant.

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Vacation of non-residential premises is possible both by mutual agreement of the parties and in court. The procedure depends on:

compliance with the terms of the lease agreement;
external factors;
relations between the parties;
actions taken.

If the evidence base is correctly collected, the judicial authorities usually take the side of the landlord.

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Arbitrage practice

In modern judicial practice, most often in a dispute over the eviction of a tenant from a non-residential premises, justice is on the side of the landlord. However, it is worth remembering that if the claim is not drawn up correctly, then you will not have a second chance to turn to the court for help in restoring your rights on the same issue.

Example. Individual entrepreneur Volkov N.L. owns non-residential premises, which he rented out under a lease agreement to L.S. Proklov. for use as a warehouse. However, the tenant systematically delayed the payment stipulated by the contract, and therefore Volkov asked him to vacate the premises. Proklov L.S. After receiving the notice, he refused to move out, and the property owner was forced to go to court to evict him. As evidence, he provided, among other things, a personal account statement. The court took into account the arguments of both parties and satisfied the demands of N.L. Volkov. in full.

How to evict a tenant without going to court?

There are two ways to expel a tenant from the premises he previously occupied under the contract:

Pre-trial – on the basis of a requirement to vacate the premises.
In court - by filing a claim, winning the case and, if necessary, resorting to the help of bailiffs.

However, the first step is always to file a claim. It is served in the following cases:

when the contract has expired, but there has been no extension for a new period;
when the parties have entered into an agreement to terminate the contract, but the tenant is in no hurry to vacate the premises;
when there are such significant violations of the contract on the part of the tenant that, in accordance with the norms of the Civil Code of the Russian Federation, he loses the right to use the premises, and the contract must be terminated.

The transfer of the premises must be formalized by a deed . Until this is done, the party to the lease agreement is not considered to have fulfilled its obligations. Consequently, even if the tenant has cleared the premises, but avoids signing the act, he can be considered to be occupying the property. This is especially true for long-term leases that are subject to state registration in the Unified State Register of Real Estate, where without an act it is often not possible to clear the entry in the register that the property is rented.

Reasons

The legislator determines cases when the owner of the premises may demand the eviction of the tenant from the premises transferred to him under the lease agreement. Such grounds include:

use of the premises for other purposes;
late payment of rent;
expiration of the contract;
debt on utility bills;
violation of public order due to the fault of the tenant;
improper routine maintenance of the premises, as well as intentional damage to it;
sublease of premises without the consent of the owner;
the premises are not used for the purpose specified in the contract;

the property does not meet safety standards and is in disrepair;
change of owner of the premises
other conditions that were fixed by the parties when signing the lease agreement are not observed.

As you can see, the list of reasons is quite extensive. However, in order to assert your rights and evict an unscrupulous tenant, you must act strictly in accordance with the law. Next, let's look at what ways there are to kick a tenant out of the premises.

Grounds for eviction

The tenant's obligation to return the received property (in this case, non-residential premises) comes from Art. 622 of the Civil Code of the Russian Federation. According to its norms, the leased item is returned in the event that the contract has been terminated.

Article 622 of the Civil Code of the Russian Federation. Return of leased property to the lessor

Upon termination of the lease agreement, the tenant is obliged to return the property to the lessor in the condition in which he received it, taking into account normal wear and tear or in the condition stipulated by the agreement.

If the tenant does not return the leased property or returns it untimely, the lessor has the right to demand payment of rent for the entire period of delay. In the event that the specified fee does not cover the losses caused to the lessor, he may demand compensation for them.

In the event that the contract provides for a penalty for untimely return of leased property, losses may be recovered in full in excess of the penalty, unless otherwise provided by the contract.

Termination is possible in the following situations:

Expiration, if the period is specified in the contract.
The will of the lessor in an open-ended contract (Article 610 of the Civil Code of the Russian Federation). If the validity period is not expressly specified, the contract is considered unlimited - but can be terminated at any time at the request of one of the parties. The only restriction established by law in this case is a warning period of 3 months for non-residential real estate.
A previously concluded and entered into force agreement to terminate the contract (Part 1 of Article 450 of the Civil Code of the Russian Federation).
A significant change in the conditions under which further fulfillment of obligations under contracts is impossible or extremely unprofitable for them (Article 451 of the Civil Code of the Russian Federation). It is important that in this case the change in circumstances could not be foreseen in advance, the circumstances themselves would be insurmountable, and further fulfillment of obligations under the agreement would deprive the party of benefits to such an extent that, if it could have been foreseen in advance, it would not have entered into such an agreement at all.
Significant violation of the terms of the contract. They are listed in Art. 619 of the Civil Code of the Russian Federation. In particular, such violations include failure to pay fees more than two times in a row, damage to non-residential premises, etc.

Who has the right to initiate termination?

The possibilities for unilateral termination of a lease agreement are provided for by the Civil Code of the Russian Federation and depend on the terms of the contract.

The grounds for termination are:

agreement of the parties (clause 1 of article 450 of the Civil Code of the Russian Federation). On this basis, the tenant and the lessor have the right to terminate the business relationship at any time agreed upon by them, regardless of the period for which they were concluded;
notice of termination of the lease agreement at the initiative of the lessor or the tenant unilaterally (Article 450.1, 610 of the Civil Code of the Russian Federation). If the contract is concluded for an indefinite period, either party has the right to send this notice to the counterparty at any time. If the validity period of the transaction is determined, the party has the right to take advantage of the possibility of unilateral refusal if there is such a condition in the agreement. In addition to the above, in the terms of the contract, the lessor and the lessee have the right to provide for various grounds for unilateral refusal of the transaction at the initiative of one of the parties without going to court;
court decision (Article 619, 620, paragraph 2 of Article 450 of the Civil Code of the Russian Federation). The grounds for applying to court for the purpose of early termination of obligations are provided for by the Civil Code and are associated with violations of one of the parties’ obligations. By law, counterparties have the right to include in the terms of the transaction additional grounds for judicial termination. Before going to court with an application to terminate the lease agreement, we must send a claim to the other party in order to comply with the pre-trial procedure for resolving the conflict (clause 2 of Article 452 of the Civil Code of the Russian Federation, clause 60 of the resolution of the plenum of the Supreme Arbitration Court of the Russian Federation No. 6, plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 01.07. 1996, Article 619 of the Civil Code of the Russian Federation).

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How to notify the tenant of termination of the contract?

If the tenant does not voluntarily vacate the premises he occupies, he must be notified about this. But how to do that?

The legislation provides only one condition: if the contract is terminated due to the fact that the terms were significantly violated, the lessor must first file a claim and demand that the violations be corrected. In this case, the claim must be submitted in writing .

By analogy, we can conclude that the requirement that the tenant voluntarily vacate the premises under a terminated lease agreement must also be expressed in writing. However, the legislation does not contain any additional requirements.

You can send a notification in the following ways:

by mail (usually by registered mail with notification);
by message sent via courier service;
by electronic communication.

When to notify the other party about the termination of the rental relationship

If the contract does not stipulate special conditions, then, according to the norms of the Civil Code of the Russian Federation, at any time without giving reasons, a party has the right to refuse only an open-ended lease relationship by sending a notice of termination of the lease agreement:

3 months - when using real estate;
for 1 month - in other cases.

The tenant and the lessor have the right to provide a different period for preliminary notification of the counterparty, for example, in relation to real estate they often agree on 1 month notice.

How can I use a notification to force the premises to be vacated?

You can make a demand in any form , both using company letterhead (if they were developed and approved by the lessor company) and without them. The main thing is that the notification contains the following information:

Name or title of the addressee (tenant).
An indication of the premises illegally occupied by him (address and, if possible, cadastral number of the property).
The grounds for which he must vacate this non-residential premises.
The period within which the release must be made. The legislation does not contain instructions on how much time should be given to an unscrupulous tenant, and therefore one should be guided by the rule about the reasonableness of the period. In business practice, it is customary to give at least 180 days to fulfill the requirement - but this is not a mandatory condition.

The demand is sent to the counterparty under the contract , after which the lessor can only wait. If the other party voluntarily vacates the premises and signs the acceptance certificate, the matter is over, and they are no longer connected by any relationship. If not, the time has come to go to court.

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What to do if the requirement is not met?

So, the tenant did not agree to voluntarily clear the premises after the contract, according to the law, should have terminated. What should the landlord do in this case?

Where to contact?

If the tenant does not voluntarily vacate the premises received under the lease agreement, he should go to court. However, there are two options for which court you need to submit your application to:

If the landlord is an ordinary citizen who does not have the status of an individual entrepreneur, then the claim must be filed in a court of general jurisdiction at the location of the non-residential premises. The procedure for filing a claim and the necessary requirements in this case are determined by the Code of Civil Procedure of the Russian Federation.
If the plaintiff is an individual entrepreneur himself, or an organization, and the tenant is also an individual entrepreneur or a legal entity, then the claim must be filed with the arbitration court in the manner prescribed by the Arbitration Procedure Code of the Russian Federation.

Required documents

Regardless of where the claim is filed, the following package of documentation is submitted to the court:

The claim itself.
Receipt for payment of the state duty (if the plaintiff-landlord is not exempt from paying it by force of law).
A copy of the lease agreement.
Documents confirming the grounds for termination of the contract.
Claims or demands that the plaintiff sent to the defendant, demanding to voluntarily fulfill his obligations under the contract.
Additional petitions (for example, to request evidence, to summon witnesses to court - depending on what exactly is required in the case). This is not a mandatory point - the content of the petitions can also be stated in the statement of claim.

Time frame for consideration of the case

If the case is heard in a court of general jurisdiction in the manner of civil proceedings, the time frame for consideration of the case is regulated by Art. 154 Code of Civil Procedure of the Russian Federation. She indicates that the time limit for making a decision on the case should not exceed 2 months from the moment the claim was received by the court.

In the event that the case falls within the competence of the arbitration court, the terms of consideration are established by the Arbitration Procedure Code of the Russian Federation. Art. 152 of this code establishes that the period should not exceed 3 months from the moment the case was received by the court and accepted for consideration. At the same time, upon a reasoned statement from the judge, the period can be extended if the case is of significant complexity. In this case, the period is increased to 6 months.

Financial expenses

Costs associated with the expulsion of a tenant from illegally occupied non-residential premises include:

Expenses for additional expenses . These include payment for legal services, examinations, etc.

The exact amount of costs depends on the nature of the case and its specific circumstances.

Statement of claim for eviction from non-residential premises (sample)

The most important point in the forced eviction of tenants from non-residential premises is the correct preparation of the statement of claim. It is drawn up in accordance with the general rules enshrined in the Code of Civil Procedure of the Russian Federation, but must necessarily contain the following information:

full and correct name of the judicial authority;
full details of the plaintiff (name of organization, address, etc.)
representative details (if available);
defendant's details;
full name and address of the location of the disputed property;
indication of the right documents establishing ownership;
details of the lease agreement (date of conclusion, responsibility and liability of the parties, validity period, etc.);
reason for the dispute;
demands made against the defendant;
justification of requirements with references to regulations and supporting documents;
a list of documents attached to the claim, as well as a list of persons whom you wish to summon to court;
date of compilation, signature of the plaintiff and seal of the legal entity.

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The claim is sent with a complete package of documents to the arbitration court. Within 5 days, the judge must decide whether the case will be accepted for proceedings or left without consideration.

Nuances and pitfalls of the procedure

Regarding the eviction of a tenant from non-residential premises, you need to keep the following in mind:

If the contract has expired and the last month has not been paid, this is a reason to go to court.
The claim can be filed either by the owner (lessor), or by the prosecutor's office and other interested government bodies.
Even if the tenant refuses to appear in court, a judgment may still be entered.
The plaintiff is obliged to comply with the pre-trial procedure - in particular, first file a claim (demand), and only then file a claim. Without this, the court will leave the claim without consideration.

Vacancy of non-residential premises after the lease agreement has expired is possible both voluntarily and in court. The specific details of the procedure will depend on the exact relationship between the parties and what actions they have already taken.

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