Instructions: prepare a letter of guarantee for debt payment

There are often cases when, when a lease agreement has been concluded for non-residential premises, the tenant stops paying for it due to various reasons. What should a landlord do? Before filing a claim in court, you must follow the pre-trial procedure for resolving the dispute, if this is specified in the contract or prescribed by law. In our case, this is sending a claim to the debtor company to collect debt under the lease agreement. Let's figure out how to compose it correctly.

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Why write a letter of guarantee?

In business, there are often cases when a debtor (customer, buyer, tenant, etc.) is unable to fulfill obligations within the period established by law or contract. The impossibility of timely fulfillment is learned both before the debt arises and when the delay in fulfilling obligations begins.

A letter of guarantee is an important element of business correspondence between enterprises and provides a guarantee of payment after the preliminary fulfillment of the obligations of one of the parties to the transaction. This paper is the basis for introducing deferment or installment payments into the agreement, as well as restructuring, and represents a way to ensure the fulfillment of financial obligations by a party under the agreement.

Such a document does not always guarantee repayment of the debt: it is written to assure the counterparty of the delivery of goods on time, the provision of premises for rent, etc.

Speaking about certifying the repayment of monetary obligations, it should be clarified that the document serves as a response to the creditor’s claim or an independent request from the debtor for an installment plan on a monetary obligation. In the absence of the necessary documents (signed certificates of work performed or services rendered, invoices, etc.), it confirms the existence of contractual relations and acts as evidence of recognition of the debt by the debtor.

To resolve the payment situation peacefully, an appeal is drawn up to the creditor indicating the repayment schedule. Such a document in the event of failure to fulfill the debtor's obligation is evidence in court.

Procedure

Conventionally, the landlord’s algorithm of actions can be divided into the following points:

• filing a claim;
• termination of an agreement;
• resolving issues related to the tenant's property;
• going to court;
• implementation of a court decision.

The features of each item are discussed in the following sections.

Claim

The claim procedure for collecting rental debt is optional. However, in some cases, a pre-trial claim speeds up debt repayment. It is possible that upon receiving a letter from the owner, the tenant will be convinced of the seriousness of his intentions and, in order to avoid unnecessary problems, will fulfill the obligation.

The claim can be sent by registered mail with notification, by e-mail, or delivered in person against a signature.

The claim must contain a demand for payment of the debt indicating a deadline. Lawyers do not recommend giving the debtor too much time, as this may delay the enforcement procedure. But too short a period is also inappropriate, since the tenant may simply not have time to collect the required amount. The optimal period is 10-15 days

Termination of an agreement

If during this time the tenant does not repay the debt, the owner of the property unilaterally terminates the lease agreement, notifying the opposing party in writing. Such a notice can be included in the pre-trial claim. The Civil Code gives the landlord the opportunity to unilaterally terminate relations with the tenant if the latter is twice late. It is worth saying that the provision on termination of the contract, as in the case of a pre-trial claim, is optional. According to Art. 619 of the Civil Code of the Russian Federation, the requirement to terminate the lease agreement is a right, not an obligation, of the lessor.

What to do with the tenant's property

There are often situations when a party to an agreement leaves the rental property, leaving his property there. Most often this happens when rent for a residential premises is not paid. In this regard, the owner will have to decide the fate of the abandoned property.

Most often, an inventory is drawn up and things are assessed, after which the owner has the right to keep them for safekeeping or transfer them to third parties for the same purpose. If the tenant's residential address is known, the property with an attached inventory can be sent to this address. Costs associated with transportation are included in the lawsuit. Immediately after these events you should go to court.

The landlord has no right to appropriate or throw away the abandoned property, since it is not his property. The law allows for the possibility of withholding it against an unfulfilled obligation, but only after the lease agreement expires.

Going to court

In order to begin enforcement, the landlord must file a claim with the court to recover the rental debt. The claim is drawn up in accordance with the requirements of Art. 131 Code of Civil Procedure of the Russian Federation. Its contents indicate:

• name of the court (for example, the court of the Toguchinsky district of the Novosibirsk region);
• Full name, addresses and passport details of the plaintiff and defendant;
• a brief summary of the circumstances of the case;
• date of conclusion of the lease agreement;
• the amount of rental payments established by the agreement;
• amount of debt;
• number of days or months of delay;
• penalty clause (if there is one in the contract);
• the essence of the violation committed by the defendant;
• a list of attached documents;
• date and signature of the plaintiff.

Before filing a claim, you must pay the state fee. Its exact size can be found in Art. 333.19 of the Tax Code of the Russian Federation. The state duty is paid as a percentage of the amount of the claim. In the case of collection of rental payments, the amount of the claim will be the amount of the debt.

Copies of the following are attached to the application:

• plaintiff's passport;
• lease agreements;
• pre-trial claim (if any);
• receipts for payment of state fees;
• written calculation of debt.

This list is not exhaustive. The plaintiff may present to the court any papers that, in his opinion, may be relevant to the case. The judge to whom this application will be submitted for consideration will decide within 5 days whether to accept it for proceedings. If the claim contains procedural errors or lacks necessary documents, it is returned to the plaintiff to correct them and resubmit.

A correctly drawn up claim will be accepted for consideration. The parties are notified of the hearing date by summons. The plaintiff, defendant and other interested parties are summoned to the process. Representatives by proxy or lawyers may participate on their behalf in court.

The claim is considered within 2 months. If the court considers the plaintiff's arguments and evidence sufficient, the decision will be made in his favor. As a rule, in cases of collection of rent payments, the court takes the side of the plaintiff, especially if the tenant does not appear at the hearing. Failure to appear by default means he admits the claim.

How to write it correctly

There is no single established sample letter of guarantee for debt payment, since the law does not contain a definition of such a document. If it is discovered that it is impossible to fulfill an obligation, or after receiving a claim from a creditor, we recommend that you draw up a written request regarding the timing of payments. Keep in mind: by providing such a document, you automatically confirm the debt.

Follow the following algorithm:

1. Write the recipient's full name and address.
2. Indicate the basis for the obligation (number and date of the agreement).
3. Describe the reason for the delay.
4. Specify the date of payment or payment schedule.
5. Sign the appeal and affix a stamp if available.

The document is not the basis for the creditor to become obligated to provide a deferment (installment plan). It serves as a way of peaceful (out-of-court) resolution of the situation. If the creditor agrees to a deferment or installment plan, we recommend concluding an appropriate additional agreement to the contract or requesting a written response confirming the acceptance of the schedule or the provision of a deferment (installment plan).

general information

In accordance with paragraph 1 of Art. 614 of the Civil Code of the Russian Federation, the tenant is obliged to pay the rent on time in accordance with the conditions stated in the contract. If payment is not received, the lessor has the right to terminate the contract early. But the main condition is that the tenant has not paid rent more than twice in a row (Article 619 of the Civil Code of the Russian Federation). However, you cannot immediately file a claim in court; you must first send a demand to the tenant company to voluntarily pay the debt.

Important! When submitting documents to the court, you must take into account that they must also include a document certifying the implementation of the mandatory pre-trial procedure for resolving disputes (Article 132 of the Code of Civil Procedure of the Russian Federation). Therefore, it is so important to correctly formulate and send the claim to the debtor.

When sending it to the debtor, it is necessary to attach a calculation to the document, which details in detail what the amount of the debt consists of: penalties, rent, utility bills, etc. The amount of debt is calculated as of the day the claim is written.

Samples

Example 1

Example 2

Sample:

about payment of debt

Drawing up and filing a claim under a lease agreement

A correctly drawn up claim will become one of the evidence in a civil case and will help in preparing and filing a claim. Therefore, it must contain references to legal norms and the text of the contract itself. In case of difficulties in the legislation, a lawyer on the site can help you figure it out.

The text of the claim must include:

• date of conclusion of the lease agreement (or actual provision of property for temporary possession and (or) use;
• what obligations were violated;
• requirement to fulfill obligations or terminate the lease agreement early.

The claim must be signed and dated. You can hand it over in person by asking the other party to mark receipt. Or send a claim under the lease agreement by post or registered mail with a list of the contents.

Failure to comply with the legal requirements of a claim under the lease agreement will be the basis for going to court to protect violated rights.

Claim under a lease agreement - features

Lease relations are regulated by the Civil Code of the Russian Federation. At the same time, the lease agreement itself may change the procedure for regulating the rights and obligations of the lessor and the lessee in comparison with the Civil Code of the Russian Federation. However, by virtue of the direct instructions of Art. 619 of the Civil Code of the Russian Federation, the lessor can terminate the lease agreement only after sending a claim (warning). It is not necessary for the tenant to send such a warning by law, but such a condition may be in the contract.

Due to the specific nature of lease legal relations, when making a claim under a lease agreement, carefully study the text of the agreement and the norms of the Civil Code of the Russian Federation. If the Civil Code of the Russian Federation does not indicate: unless otherwise established by the agreement, then the norm of the law will apply regardless of its presence in the agreement.

Sources

• https://walaw.ru/pravo/arendator-ne-platit-arendnuyu-platu
• https://assistentus.ru/forma/pretenziya-o-vzyskanii-zadolzhennosti-po-dogovoru-arendy/
• https://tvoepravo.com/blog/vzyskanie-zadolzhennosti-po-dogovoru-arendy-nezhilogo-pomeshcheniya
• https://UrOpora.ru/zashhita-prav-potrebitelej/pretenzionnyj-poryadok/pretenzii-po-tovaru/obrazec-pretenzii-arendatoru-po-neuplate-arendy.html
• https://iskiplus.ru/pretenziya-po-dogovoru-arendy/

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Is it necessary to answer?

Claims work in contractual relations is mandatory. If the parties do not want to bring the proceedings to trial, they initiate a pre-trial settlement process. The injured party sends a letter to the debtor with the amount of debt and a request to repay it. The debtor decides whether or not to respond to this notice.

If you agree with the requirements, simply pay off the debt; you do not have to respond. If not, respond in writing and explain your position. In the response letter they express disagreement, refusal to comply with the requirements, ask to clarify the procedure for calculating the penalty or to delay payment.

If you disagree and ignore the letter, the matter will end in litigation. The injured party has the right to sue the debtor 30 days after notification of the debt (Clause 5, Article 4 of the Arbitration Procedure Code of the Russian Federation).

The procedure for debt collection is prescribed in the contract, and the parties are guided by it. If the pre-trial work is completed, but the debt is still not repaid, the injured party takes the case to court. In this case, the debtor will pay not only the debt, but also a penalty or interest for using someone else’s money and legal costs: state fees, services of a lawyer, expert and notary, postage costs.

In what cases is it required

There are several reasons when a customer will need a letter of guarantee:

1. The organization is experiencing financial difficulties, and the accountant knows that he will not be able to transfer the money on time. To avoid sanctions from the supplier, a guarantee is drawn up. The customer undertakes to pay the entire required amount for the goods, works or services supplied within a certain period of time. If the government contract provides for several stages of payment, then the guarantee draws up a new payment schedule or indicates the period during which the debt will be repaid in full. The document does not change the terms of the contract and is drawn up with only one purpose: to guarantee the supplier the transfer of money and to insure the customer against penalties and interest.
2. The organization has already violated the deadlines for transferring money, and the supplier has filed a claim. An official document guaranteeing payment is the basis for withdrawing the claim and canceling the proceedings. The contractor has the right to demand compensation or not accept the guarantee of debt transfer at all.
3. In legal proceedings, a guarantee is an official recognition of a debt, which serves as the basis for interrupting the statute of limitations (Article 203 of the Civil Code of the Russian Federation, Resolution of the Presidium of the Supreme Arbitration Court No. 14056/07 of 04/22/2008).

If the contractor has accepted warranty obligations from the customer, then the debtor still bears administrative liability for failure to meet deadlines and civil liability for violation of essential terms of the contract.

If the violations occurred not through the fault of the customer, but due to reasons beyond his control (for example, lack of budgetary funds for payment due to a delay in financing), then the judicial authorities have the right to exempt him from liability. The ruling of the Arbitration Court of the East Siberian District No. A33-771/2017 dated 02/07/2018 is considered as a precedent.