Renting a residential premises for rent implies the transfer from the owner to the tenant of the right to use the premises, including those that are part of an apartment that is in shared ownership.
However, everything related to shared ownership imposes certain restrictions on the owner of the share due to the fact that the disposal of shares of an entire object always affects the owners of other shares of the same object. We will talk below about how to rent out part of an apartment without harming the interests of the owners.
Consent of co-owners
The object of a residential lease agreement may be an isolated residential premises suitable for permanent residence (apartment, residential building, part of an apartment or residential building) (Clause 1, Article 673 of the Civil Code of the Russian Federation).
Property that is in shared ownership is used by agreement of all owners, and if agreement is not reached, in the manner established by the court (Clause 1 of Article 247 of the Civil Code of the Russian Federation).
That is, part of an apartment that is in shared ownership can be rented out only with the consent of the remaining owners (Clause 1 of Article 246 of the Civil Code of the Russian Federation).
If one of the co-owners rents out part of the apartment, which is shared ownership, in violation of the requirements of the law, then each of the co-owners can file a lawsuit to declare the transaction invalid and evict the tenant from the room (Article 166 of the Civil Code of the Russian Federation).
Therefore, in order for the remaining owners not to challenge the rental agreement for part of the apartment in court, it is necessary to obtain their written consent to rent out part of the apartment.
To be more confident that the remaining owners will not subsequently refuse their consent to rent out part of the apartment, we recommend that it be notarized.
How to properly rent out part of your home: step-by-step instructions
You can rent out a room in an apartment yourself, or you can use the services of a realtor; it’s up to you to decide how best to do it. Apart from the participation of intermediaries, the algorithm is the same. To rent out a room in a shared apartment you need:
- If necessary, obtain the consent of neighbors.
- If the answer is yes, you can start looking for a tenant: take a few good photos of the room and write a rental ad.
- Leaflets can be posted around the city or posted on special websites on the Internet (for example, on Avito.ru), or made a post in thematic public pages on social networks.
When communicating with a client, the following is discussed:
- rental period;
- monthly cost;
- payment for the last month;
- procedure for paying utility bills;
- rules for using the property with other residents;
- additionally discuss all questions about pets, smoking, loud music, etc.
Once all important issues have been resolved, you can draw up a lease agreement.
To officially rent out, the apartment must be privatized.
It is impossible to legally rent out property for social rent.
Is the consent of neighbors required, from whom and how to obtain it?
To rent out part of an apartment, you need to obtain consent from all legal owners of shares in the apartment in writing and have it certified by a notary in order to avoid conflicts in the future. To obtain consent you need:
- Inform in writing the co-owners (if any) about plans to rent out your part of the apartment.
- Request consent from each co-owner in writing to rent out the room.
If neighbors refuse to give written consent, then it makes sense to offer them to rent a room on the same terms as with an outsider. If they refuse in writing or do not respond to your written request within 30 days, then the law does not prohibit you from negotiating a lease with anyone.
Can this be done without the consent of the neighbors?
In paragraph 1 of Art. 246-247 of the Civil Code of the Russian Federation it is assumed that owners of shared ownership must jointly resolve issues of ownership, use and disposal of property. To rent out a room, you will have to obtain the written consent of your neighbor. There is no other way to legally dispose of the free space.
But there are solutions:
- It is possible to allocate a share in an apartment in kind - that is, to isolate a separate room from the rest and then be able to dispose of it as you wish, but this is a long and expensive process, and this is only possible in individual houses and multi-room apartments.
- You can enter into an agreement for the use of residential premises, which determines which room belongs to whom and whether they can be rented out. During negotiations, mention the division of income if you rent out an apartment or a room in it. This may be the deciding factor and the neighbors will agree.
- Or, if all peaceful ways to resolve the conflict have been exhausted, you will have to go to court and then determine the procedure for owning and disposing of the premises.
If the co-owner finds out that the apartment is being rented out without his consent, he can file a claim to have the contract declared void and has every chance of winning the case.
What is needed to rent a share of residential premises?
There are no big differences in the documents from renting a whole apartment or part of it. To conclude an agreement you need to have with you:
- Ownership documents.
- Certificate from the housing office about the persons living in the apartment.
- In cases of transactions with shared ownership, a notarized consent of each co-owner to rent out the room to a third party.
- A written agreement on the distribution of residential space between co-owners, which establishes the procedure for using non-residential space, or a court decision on this.
- Passports of the parties.
Drawing up a standard contract
The lease agreement must be concluded in writing in two copies for each party. When registering an agreement, a third copy is required for Rosreestr. The agreement can be certified by a notary to give it additional legal force in the event of litigation.
The main difference between a lease agreement for a part of an apartment and the whole: the subject of the agreement is a separate living area that does not include common areas. It must be described very clearly, and the rights and obligations of the renter and the tenant in relation to the rest of the apartment must be stated no less clearly.
As a standard, the text must include:
- Passport details of the parties to the agreement.
- The fact and conditions of cohabitation between the tenant, the landlord and other tenants.
- Information about the premises that will be rented (footage and address of the apartment).
- Rental periods for premises (short-term – up to a year, and long-term – up to 5 years).
- Amount of rent and utility bills (indicate who is required to pay for what).
- Payment deadline.
- Cash or non-cash payment.
- Rights and obligations of the parties (use of telephone, utilities, personal property, non-residential common areas - toilet, kitchen, bathroom).
- Liability for damage to property.
- Additionally, all residents who will live together in the apartment are indicated.
- Conditions for termination of the contract.
We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:
8 (800) 302-76-94Moscow
Registration
Registration with Rosreestr is not necessary if we are talking about renting residential premises by an individual for up to one year.
If the room will be rented for a period of more than a year, registration of the contract is required.
When registering, we provide one copy of the agreement, the consent of all owners and a document confirming the right to own the property.
Taxation
On income received from renting out an apartment, you must pay personal income tax in the amount of 13% of the income received. The amount of tax is calculated on the basis of the submitted declaration in form 3-NDFL (clause 1 of Article 224, clause 1 of clause 1 of Article 228, clause 1 of Article 229 of the Tax Code of the Russian Federation).
If renting an apartment is your only source of income, other than non-taxable income, you have the right to reduce your taxable income by standard tax deductions provided by tax law.
Source>>>
Does the tenant's right to sublease the leased property mean the subtenant's simultaneous right to provide the property for secondary sublease (sublease) without the consent of the owner of this property?
According to paragraph 2 of Art. 615 of the Civil Code of the Russian Federation, the tenant has the right, with the consent of the lessor, to sublease the leased property (sublease) and transfer his rights and obligations under the lease agreement to another person (release). In these cases, with the exception of re-letting, the tenant remains liable under the agreement to the lessor. A sublease agreement cannot be concluded for a period exceeding the term of the lease agreement. The rules on lease agreements apply to sublease agreements, unless otherwise provided by law or other legal acts. If the lease (sublease) agreement does not provide for the right to sublease the property, then when sublease the property it is necessary to obtain the consent of the owner. Considering the controversial situation about the possibility of subletting leased property without the consent of the owner, the courts came to the conclusion that the owner of the property leased the property with the right to assign the claim to a third party or enter into a sublease agreement. Subsequently, the tenant entered into a sublease agreement, after which this property was leased by the subtenant to a third party (subtenant). In this situation, the courts came to the conclusion that, since the transfer of real estate into secondary sublease was not agreed upon with the owner of the property, the sublease agreement is a void transaction. (Resolution of the Federal Antimonopoly Service of the Moscow District dated July 31, 2006 N KG-A40/6726-06 in case No. A40-76525/05-89-643, Resolution of the Federal Antimonopoly Service of the Central District dated June 30, 2014 in case No. A36-2906/2013). If the agreements provide for the sublease of property (sublease), then when renting out the property for a secondary sublease (sublease), it is not necessary to obtain the consent of the owner. Thus, if the owner has concluded a lease agreement, which provides for the consent of the lessor to sublease the property to third parties for a price and on terms at its discretion, as well as the conclusion of lease agreements, and subsequently the tenant entered into a sublease agreement, which also provided for the corresponding rights for a subtenant to rent out property (sublease), it is not necessary to obtain additional consent from the owner (Resolution of the Federal Antimonopoly Service of the Volga District dated 03/09/2010 in case No. A55-16886/2009). Thus, when leasing property for a secondary sublease (sublease), it is necessary to obtain the consent of the owner, unless the lease agreement provides for the tenant’s right to sublease the premises, and the subsequent sublease agreement does not indicate a similar right.
There are two owners in the apartment, one wants to rent out the room, is the consent of the second owner required?
In this case, the Civil Code of the Russian Federation Article 250. Pre-emptive right of purchase
Positions of the highest courts under Art. 250 Civil Code of the Russian Federation >>>
1. When selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have the pre-emptive right to purchase the share being sold at the price for which it is sold, and on other equal conditions, except in the case of a sale at public auction, as well as cases of sale of a share in the right of common ownership of a land plot by the owner of a part of a building or structure located on such a land plot or by the owner of premises in the specified building or structure.
(as amended by Federal Law dated June 23, 2014 N 171-FZ)
(see text in the previous edition)
Public auctions for the sale of a share in the right of common ownership in the absence of consent of all participants in shared ownership may be held in the cases provided for by part two of Article 255 of this Code, and in other cases provided for by law.
2. The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it.
If the remaining participants in shared ownership do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person. If all other participants in shared ownership refuse in writing to exercise the pre-emptive right to purchase the share being sold, such share may be sold to an outsider earlier than the specified deadlines.
The specifics of notifying participants in shared ownership of the intention of the seller of a share in the right of common ownership to sell his share to an outsider may be established by federal law.
(clause 2 as amended by Federal Law dated July 3, 2016 N 315-FZ)
(see text in the previous edition)
3. When selling a share in violation of the pre-emptive right, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him.
4. Assignment of the pre-emptive right to purchase a share is not permitted.
5. The rules of this article also apply when alienating a share under an exchange agreement.
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