What do you need to know when concluding a rental agreement and how to draw up a rental agreement?

What is a life annuity agreement?

Essentially, an annuity involves exchanging property for assistance for a specified period or indefinitely. In the case of a life annuity, only real estate is used. Help can be either financial or in kind.

A rent agreement for an apartment with lifelong maintenance implies an uncertain completion date, since the payer’s obligations end only with the death of the rent recipient.

Termination of the contract unilaterally is carried out only through the court for good reasons. In this case, the apartment is returned to the former owner, but no one reimburses the rent payer for the costs incurred.

How to find someone willing to rent an apartment

In advertisements on AVITO and in newspapers, offers to buy an apartment under a rental agreement are almost never found. To find such a buyer, you need to make some efforts:

• act through friends and relatives;
• contact former colleagues, neighbors who once lived nearby;
• contact relatives and friends living in other cities: often the annuitant wants a caregiver to live with him.

On the contrary, there are usually more than enough people who want to receive an apartment later, after the death of the owner. To avoid making a mistake with your choice, you need to:

• pay attention to the applicant’s criminal record;
• know where the future rent payer works: a permanent place of work for many years reduces the likelihood of fraud;
• be wary if the applicant already has an obligation under another annuity agreement(s).

Types of rental agreements for apartments with lifetime maintenance

A life annuity contract is a type of annuity agreement. In turn, there are 2 types of such agreements:

1. No dependency.
2. Dependently.

Maintenance without dependency means that the payer's responsibilities are limited to regularly transferring money to the annuitant.

In the case of concluding a rental agreement for an apartment with lifelong maintenance with a dependent, the main condition is the care of the recipient - you will need to systematically visit him, solve his everyday issues and organize something like medical patronage. Funeral services will also be included in the list of responsibilities of the payer of such rent. The contract fixes the cost of products, the list and frequency of services that the dependent will receive. Monthly cash payments may or may not be provided (depending on the will of the parties).

Rent agreement: settlement amount

Unfortunately, Russian legislation does not establish an exact answer to the question of how much the annuity recipient can expect when concluding an agreement. It is only clearly stipulated that the monthly payment of maintenance should not be less than two times the subsistence minimum based on that in a particular region at the location of the property. That is, the law establishes only a minimum threshold for rent payment. As a rule, the amount of rent is set based on the needs of the annuity recipient for his normal existence. In addition to providing the annuity recipient with the means to meet his needs for food, clothing and care, the contract may provide for the payment by the annuity payer of expenses associated with funeral services and burial of the annuity recipient. Let us recall that paragraph 2 of Article 602 of the Civil Code of the Russian Federation provides for the indication in the lifelong maintenance agreement of information about the cost of the entire amount of maintenance, which implies that the parties must fix the amount within which maintenance will be carried out for the entire period of validity of the agreement. Moreover, the entire amount of maintenance directly depends on the estimated value of the property transferred by the rent recipient to the payer. It is worth noting that a lifelong maintenance agreement may provide for the payment to the annuity recipient of a one-time down payment in the range of 10-30% of the total value of the property, followed by monthly payments. Also, only monthly distribution is possible without making a down payment to the recipient.

Amount of monthly payment under an annuity agreement with lifetime maintenance

The cost of maintenance consists of the sum of cash and in-kind payments. Payment in kind means the provision of services, the transfer of food, medicine and things.

The amount of maintenance of the annuity recipient is determined by the contract in compliance with the minimum allowable amount established by law. The parties can agree on a higher level of support for a dependent and stipulate this in the contract.

Thus, if an apartment is alienated under a purchase and sale agreement for any amount, even the most insignificant, then the recipient is deprived of legislative protection regarding the minimum amount of maintenance and subsequent adjustment of payments when the economic situation changes. In this case, you need to separately indicate in the contract the procedure for indexing payments.

Inheritance, donation and rent are the three most common ways among the population to dispose of their property. Chapter 33 of the Civil Code of the Russian Federation is devoted to the annuity agreement.

Under a rent agreement, one party (rent recipient) transfers ownership of property to the other party (rent payer), and the rent payer undertakes, in exchange for the received property, to periodically pay rent to the recipient in the form of a certain amount of money or the provision of funds for its maintenance in another form (clause 1, Article 583 of the Civil Code of the Russian Federation).

An annuity contract, like a contract of sale, exchange, or gift, provides for the alienation of property and in this regard is similar to the above-mentioned contracts. In the case where the annuity agreement provides for the transfer of property for a fee, the rules on purchase and sale (Chapter 30 of the Civil Code of the Russian Federation) are applied to the relations of the parties regarding the transfer and payment (Chapter 30 of the Civil Code of the Russian Federation), and in the case when such property is transferred free of charge, the rules on the gift agreement (Chapter 32 of the Civil Code RF) insofar as otherwise is not established by law and does not contradict the essence of the annuity agreement. We can say that it belongs to the group of agreements on the alienation of property, but nevertheless it is an independent type of agreement.

The Civil Code of the Russian Federation identifies three types of rental agreement: 1) permanent annuity; 2) life annuity; 3) lifelong maintenance with dependents. The essential conditions of all three types of annuity are the same. Of course, there are also differences in the form of provision of maintenance, its minimum amount, terms of provision, subject composition of obligations, possibilities of succession and redemption of rent, consequences of the risk of accidental loss of property, etc.

Rent agreements under which real and movable property are transferred for payment of rent differ significantly from each other. The differences between them are based on the methods of registration, the presence or absence of a sign that the rent follows the property upon its alienation, the methods provided for by law to ensure the fulfillment of the obligations of the rent payer, etc. One of the above differences is the form of the contract. Thus, a rent agreement is subject to mandatory notarization, and an agreement providing for the alienation of real estate for the payment of rent is also subject to state registration.

One of the types of annuity agreement subject to state registration is a lifelong maintenance agreement with dependents. Under an agreement of lifelong maintenance with a dependent, the annuity recipient, a citizen, transfers his residential house, apartment, land plot or other real estate into the ownership of the rent payer, who undertakes to provide lifelong maintenance with the dependent of the citizen and (or) a third party specified by him.

The peculiarity of this type of contract also lies in the fact that the term of this type of obligation is determined by the life expectancy of the annuitant, unless otherwise follows from the terms of the contract. The subject of this type of annuity, such as lifelong maintenance with dependents, is real estate in the form of a residential building, apartment, or land plot. The recipient of the annuity can be not only the person who entered into the agreement and transferred the property, but also the person indicated in the agreement for lifelong maintenance with dependents. The annuity payer's obligation to provide dependent maintenance may include providing for the needs of housing, food and clothing, and if the citizen's health requires this, also caring for him. A lifelong maintenance agreement with dependents may also provide for payment by the annuity payer for funeral services. The terms of the agreement can determine the possibility of replacing the provision of dependent maintenance in kind with the payment of periodic payments in money during the life of the citizen.

Since this type of agreement is, in some way, a trust agreement, the legislator, in order to protect the interests of the annuitant, provided for a minimum monthly maintenance amount. The lifelong support agreement must define the cost of the entire amount of dependent support. At the same time, the cost of the total amount of maintenance per month cannot be less than two times the minimum wage established by law. Also, the annuity payer has the right to alienate, pledge or otherwise encumber real estate transferred to him to ensure lifelong maintenance, only with the prior consent of the annuity recipient.

The legislator also imposed on the annuity payer the obligation to take the necessary measures to ensure that during the period of provision of lifelong maintenance with a dependent, the use of the specified property does not lead to a decrease in the value of this property.

The legislation provides for two cases of termination of the obligation of lifelong maintenance with a dependent:

In the first case, the obligations are terminated by the death of the annuitant.

In the second case, obligations are terminated by decision of the parties. If one of the parties, namely, the annuity payer, significantly violated its obligations, the annuity recipient has the right to demand the return of the real estate transferred to ensure lifelong maintenance, or the payment of the redemption price to him. In this case, the rent payer has no right to demand compensation for expenses incurred in connection with the maintenance of the rent recipient.

Expert specialist,

State Registrar Yu.V. Spiridenko

How to draw up an annuity agreement with lifelong maintenance

During legal proceedings, there are cases when the dependent and the payer have different understandings of the terms of the agreements reached.

For example, an elderly woman gives an apartment to a young neighbor in the hope of his help with housework for the rest of her days, and he moves to another city. At the same time, it turns out in court that there are no special conditions in the gift agreement; no rental agreement was concluded. The woman is left with nothing. Meanwhile, the presence of properly executed agreements would allow us to avoid such a situation.

Correct execution of a rental agreement includes 2 mandatory agreements:

1. An annuity agreement with lifelong maintenance must be registered by a notary, otherwise the agreement will be invalid.
2. An agreement for the purchase and sale or gift of real estate comes into force from the date of state registration in Rosreestr. From this date, the apartment becomes the property of the payer, but with a restriction on the right of disposal - an encumbrance in the form of rent obligations.

The property alienation agreement must state that the apartment remains pledged to the rent recipient.

In the annuity agreement with lifetime maintenance, in case of possible litigation, it is advisable to indicate what exactly constitutes a significant violation of the conditions of maintenance.

In addition to mandatory agreements, additional agreements may be concluded depending on the terms of the transaction. For example, a contract of assignment for the performance of the recipient’s duties in government organizations is usually concluded in the case of dependent care.

Requirements for recognition of ownership rights based on an unregistered agreement

This agreement is subject to notarization under penalty of invalidity (Article 584 of the Civil Code of the Russian Federation), and agreements concluded before 03/01/2013 were also subject to the requirement for their state registration in the Federal Registration Service of the Russian Federation.
M.I.E. filed a lawsuit against the administration of the Krasnoselsky district of the city of St. Petersburg (hereinafter referred to as the administration) for recognition of her ownership of a one-room apartment, in support of her claims, indicating that she had entered into a lifelong maintenance agreement with dependents with the owner of the apartment G.I. Ya., who died before the state registration of the contract and the transfer of ownership of the apartment to her.

The plaintiff also indicated that state registration was not carried out due to the health condition of G.I.Ya., who could not move, and subsequently such registration was prevented by the death of the annuity recipient (10/27/2012). However, the plaintiff fully fulfilled the obligations stipulated by the contract, including paying for housing and communal services, repairing the disputed apartment, purchasing food and cooking for G.I.Ya., purchasing furniture and household appliances, organizing and paying for her funeral.

The district court satisfied the claims, and therefore the administration filed an appeal.

The panel of judges considering the administration's complaint came to the conclusion that there were grounds to overturn the district court's decision and refuse to satisfy the claim on the following grounds.

As explained in paragraph 63 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights,” if the transaction , requiring state registration, was completed in the proper form, but one of the parties evades its registration, the court has the right, at the request of the other party, to make a decision to register the transaction (clause 3 of Article 165 of the Civil Code of the Russian Federation). A party to a transaction does not have the right to satisfy a claim for recognition of a right based on this transaction, since the relevant transaction before its registration is not considered concluded or valid in cases established by law.

With regard to the real estate purchase and sale agreement, which, by virtue of the provisions of paragraph 7 of Chapter 30 of the Civil Code of the Russian Federation, does not require state registration, but such registration is subject to the transfer of ownership of real estate, paragraph 62 of the resolution states that on the basis of Articles 58, 1110 and 1112 Civil Code of the Russian Federation, the obligations of the seller under the sales contract are transferred to his universal legal successors. At the same time, the attention of the courts is drawn to the fact that in the absence of heirs of the seller or in the event of liquidation of the seller - a legal entity, the buyer of real estate to whom possession was transferred in pursuance of the purchase and sale agreement has the right to apply for registration of the transfer of ownership.

Paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases” states that the heirs of a buyer under a real estate purchase and sale agreement who died before the state registration of the transfer of ownership of real estate, in the event of a dispute, have the right file a claim against the seller under the specified agreement on state registration of the transfer of ownership to the heirs.

Taking into account the above explanations, when resolving this dispute, the court should have proceeded from the fact that, in accordance with Article 584 of the Civil Code of the Russian Federation, a rent agreement is subject to notarization, and an agreement providing for the alienation of real estate for the payment of rent is also subject to state registration.

This rule is subject to application in relation to a lifelong maintenance agreement with dependents, drawn up between M.I.E. and G.I.Ya. 09.11.2011, that is, until 01.03.2013 - the date of entry into force of the federal law of 30.12.2012 No. 302-FZ “On Amendments to Chapters 1, 2, 3 and 4 of Part 1 of the Civil Code of the Russian Federation”, in paragraph 8 of Article 2 of which the application of the rules on state registration of transactions with real estate, contained in Articles 558, 560, 574, 584 of the Civil Code of the Russian Federation, to contracts concluded after the day this law enters into force is excluded.

According to paragraph 3 of Article 433 of the Civil Code of the Russian Federation, an agreement subject to state registration is considered concluded from the moment of its registration, therefore, in accordance with paragraph 63 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated 04/29/2010 M.I. .E. does not have the right to satisfy a claim for recognition of a right based on an unregistered agreement, since it is not considered concluded before its registration; therefore, arguments about the proper fulfillment of the terms of the agreement, the absence of signs of its invalidity, and the absence of heirs of G.I.Ya. (appeal ruling of the St. Petersburg City Court dated August 23, 2013 No. 33-12497/2013).

Peculiarities of transactions under apartment rental agreements with lifetime maintenance

When preparing an agreement, it is important to remember the complexities of annuity relations:

1. Uncertainty of the duration of emerging obligations.
2. The likelihood of changes in the life plans and financial situation of the payer.
3. The possibility of changing the annuity recipient's attitude to the terms of the original agreement.
4. Possible conflict with interested parties - usually the heirs of a dependent.
5. The likelihood of fraud by any party to the contract both at the stage of conclusion and at the stage of execution of the agreement.

All this can lead to attempts to challenge the deal in court and serious financial losses, so it is extremely important:

• collect all possible information about the future recipient and payer of the rent;
• check the legal purity of real estate ;
• assess the long-term financial capabilities of the payer;
• correctly prepare and register documents.

Termination of contract, risks

Typically, an annuity or life maintenance agreement is terminated either by agreement of the parties or in court.

• In the first case, we are often talking about newly established contractual relations, when it became clear to both parties or one of them that there is a high probability of non-fulfillment of their obligations.
• In court, contracts are terminated due to claims by one of the parties, and discontent may arise several years later.

In any case, when applying to the court to terminate the contract, recover damages for rent, etc., you must be prepared to provide appropriate evidence of the existence of all grounds for termination.

Turning to judicial practice, we note that in most cases agreements are terminated due to the fact that the elderly are left without attention. However, sometimes there are imaginary claims from older people.

Another concern for the annuity lender is the health and life expectancy of the payer. In fact, there is nothing to be afraid of here, since the obligation to pay rent/maintenance is inherited (along with the encumbered apartment of the rent debtor). Therefore, if the annuity recipient survives the payer, the terms of the agreement will be fulfilled by the heirs.

If the inheritance is not accepted, then it will be washed away and will go to the benefit of the municipality/state, which will carry out the specified functions of the payer.

The procedure for registration and registration of rent

The transaction must be certified by a notary, and the transfer of ownership of the apartment must be recorded in Rosreestr. To draw up a contract, the personal presence of both parties is required.

An annuity contract is one of the most precise types of contracts. It describes in detail each of the conditions under which the housing is transferred for rent, as well as the characteristics of the transferred housing. The document must indicate:

• full name of the rent recipient and rent payer;
• data from documents that confirm the identities of each party;
• address of the alienated living space;
• area, number of rooms, floor location of the apartment;
• the number under which the apartment is registered in the cadastral register;
• conditions for the transfer of real estate: free of charge or for a certain amount;
• the amount and procedure of payments made;
• conditions for termination of the transaction.

According to the Civil Code of the Russian Federation, the amount of rent cannot be set below the subsistence level provided for the city in which the subject of the agreement (apartment) is located. If a minimum has not been established for this city, then when indicating the amount of rental payments, they are guided by the average minimum for the country.

Rent and heirs

The most common question asked to lawyers in connection with the preparation of an annuity agreement is whether the heirs of the annuitant can challenge it. It is almost impossible to do this. To challenge a document, it must contain violations. The grounds for the invalidity of the annuity are:

• incapacity of the annuitant at the time of drawing up the document;
• the rentee being in an intoxicated state;
• concluding a transaction under threat to life or health;
• violation of the rights of minors by the transaction.

To exclude all these facts, the transaction is carried out under the supervision of a notary, which means it is almost impossible to challenge the document.

Not one person, but several can be identified as rent recipients. The agreement sets each recipient a certain amount to be paid monthly. After the death of one of the annuitants, his right to annuity is transferred in equal shares to the other recipients. The life annuity in this case will have to continue to exist until no one of the recipients remains alive.

Taxation on rent

According to the tax legislation of the Russian Federation, the funds received by the annuitant are equal to his monthly income. This means that these funds will be subject to personal income tax in the amount of 13% of the monthly accruals.

As for the rent payer, if he receives an apartment under a gratuitous rental agreement, he must pay a tax of 13% of the market value of the apartment to the state. However, close relatives are exempt from paying this tax, which may include:

• children (natural and adopted) and parents;
• Grandmothers and grandfathers;
• grandchildren and granddaughters;
• brothers and sisters.

When purchasing rent with payment of part of the price of the apartment, the rent payer is not subject to tax, and the recipient is obliged to pay 13% of the amount received to the state.