What are the rights of tenants without an agreement and what does the landlord risk by renting out housing without drawing up an agreement?

Author Peter Deryabin

11/12/2012 11:41 (Updated: 03/08/2020 11:32)

Real estate

It seems like war has been declared on landlords. The media is full of reports about neighborhood police patrolling apartments, demanding that residents present documents on the basis of which they live here. And about officials who sometimes go as far as committing crimes. What are we obligated to do and what are we not supposed to do? And is it as difficult to conclude an agreement with a tenant and pay taxes as it seems?

As promised by the Moscow authorities, a door-to-door inspection of supposedly rented apartments began in October of this year. Today you often hear this story:

— Yesterday evening the doorbell rang at the apartment I rent. On the threshold, a local police officer and someone from the entrance: “Show the documents on what basis you live. We know that the apartment is for rent.” They said that they would call me one of these days, and the information about the apartment for rent would be at the tax office. That is, they will call me there in the near future and I will pay for all the years of rent at the market price. What should I do? How to prepare for a visit to the tax and police? What should I say?

Is it possible?

The law does not directly prohibit such a transaction. However, there is a requirement to conclude a written lease (lease) agreement (Article 674 of the Civil Code). In addition, there is such a thing as encumbering an apartment, which refers to renting an apartment for a period of more than a year. Encumbrance on an apartment is subject to mandatory state registration. It is clear that it is very difficult to prove the existence of such a transaction.

Now you know whether it is possible to rent out housing without a rental agreement.

Liability for illegal eviction

It is necessary to understand that before evicting a person from an apartment without consent, you need to be absolutely sure that he is living in it illegally. If there is no such certainty, and you kicked out the tenant, then he can go to court and seek compensation, the amount of which will be determined during the trial.

The legislator also provides for criminal liability for arbitrariness in the eviction of a tenant. This is possible in two cases:

• significant harm has been caused;
• violence or the threat of violence was used.

The significance of the damage is established by the court based on the objective circumstances of the case.

That is why it is necessary to act strictly within the legal framework when evicting residents without a lease agreement.

Example. Ivanov V.P. rented out his apartment to the Smirnovs without a lease agreement. However, after 8 months, the Smirnovs stopped paying rent, citing delays in wages. Since Ivanov did not receive money from the tenants for two months, he asked them to move out. The Smirnovs refused, explaining that they would pay off the debt in the near future and would not allow any more delays in payments. The debt was not repaid within the specified period. Then Ivanov V.P. came to the Smirnovs and, in their absence, took a laptop, the market value of which corresponded to the size of the debt. The owner of the apartment informed Smirnov about this by phone. He contacted the police, and Ivanov V.P. was brought to criminal liability under Part 1 of Art. 330 of the Criminal Code of the Russian Federation.

What does the law say?

Reference. According to Article 208 of the Tax Code, the rental of housing is subject to taxation.

What punishments can befall participants in an unofficial transaction under Russian law?

What fine can you face?

The tax service can fine the tenant for non-payment of taxes. As an individual, the owner is required to file a declaration and pay taxes in the amount of 13% of the amount received for rent.

Fines:

• In case of non-payment, a fine of 20-40% of the tax amount is provided.
• Plus, a penalty is imposed for each day of delay in the amount of 1/300 of the tax rate.
• In addition, there is a fine for failure to submit a declaration in the amount of 5% of the tax rate, but less than 1000 rubles.
• Article 198 of the Criminal Code states that if a citizen has not paid more than 600,000 rubles for 3 years, then his fine will range from 100,000 to 300,000 rubles.

Is there any other punishment?

Punishment for tax evasion on a large scale is possible , or imprisonment for up to one year. On an especially large scale, imprisonment from 1.5 to 3 years.

In order to determine the amount of unpaid taxes, it will be necessary to establish the amount of rent and the fact of transfer of money. Which is almost impossible without documents. In addition, the owner can say that he allowed a friend to stay for free.

You can find out more about what liability is expected for illegally renting out an apartment here.

Eviction of tenants without a tenancy agreement

Unscrupulous tenants, unfortunately, are quite common. What should you do if the person renting your property holds noisy parties several times a week, or refuses to pay for several months? Of course, in such a situation the question of early eviction of the tenant arises.

There are several very effective eviction methods. The difference between them is that each method is relevant in a specific situation. More precisely, the relevance of each of them directly depends on the form in which the rental agreement was drawn up.

Let's consider the intricacies of eviction under the following conditions:

— Eviction of tenants renting an apartment without a tenancy agreement; — Eviction of tenants renting an apartment under a rental agreement; — Eviction of tenants who have received registration at the place of residence or at the place of stay in this apartment.

Procedure for eviction of tenants without an agreement

Before renting out an apartment, in most cases, an agreement is concluded between the tenant and the tenant, which spells out all the important aspects of the lease.

However, sometimes drafting a contract is neglected. Most often, this happens in situations where the tenant and tenant are relatives or acquaintances. Of course, this approach is fundamentally wrong and is fraught with negative consequences in the form of serious problems.

In essence, the absence of an agreement exempts tenants from any responsibility, which often leads to improper operation of the apartment and consequences such as damaged property of the landlord and damaged relations with neighbors.

If the need arises, you can evict a tenant in the absence of an agreement by changing the locks. However, this is not always possible.

For example, there are situations when the locks are changed by the tenants themselves, as a result of which the owner does not have the opportunity to get into the rental property and assess its condition.

However, there is no need to despair: this situation is by no means hopeless. If you cannot reach an agreement directly with the tenant, just contact the police and provide them with documents proving your right to own the apartment. In some cases, additional legal proceedings may be possible.

It should be understood that a tenant who rents an apartment without first concluding a rental agreement has absolutely no rights. He can only comply with either the conditions that were concluded with the lessor orally, or (in the absence of oral agreements) the instructions contained in the codes of the Russian Federation.

You can evict a tenant without a tenancy agreement on the following grounds:

— Violation of oral agreements; — Violation of the rights of other residents or infringement of their interests; — Using the apartment for other purposes (converting housing into a retail outlet, warehouse, etc.); — Desolation and destruction of the apartment due to poor care (or its complete absence) on the part of the tenant.

In case of voluntary eviction, these grounds are not always present, however, if the vacancy of the rented premises is planned through government authorities, the above conditions will become decisive arguments for the reason that they are enshrined in Russian legislation.

Termination of a lease concluded without execution of an agreement occurs through its cancellation.

The owner can do this at any time at his own request and subject to the following grounds:

— Specific violations that outraged the landlord; — Violation of an oral agreement (on the part of the tenant); — The tenant committed actions that contradict the legislation of the Russian Federation.

If the tenant does not pay the required amount for accommodation for a long time, the landlord has the right to evict the defaulter at any time. The absence of a lease agreement, in this case, will be to the advantage of the owner, since this deprives the tenant of any legal way to prevent the early termination of the lease.

All that remains for him is to try to reach an amicable agreement with the owner of the property and obtain some concessions from him or urgently pay off the debt for accommodation. If this does not happen, the tenant reserves the right to go to court, which will impose an obligation on the tenant to pay the amount in full.

Eviction due to arrears of payment is also a fairly common occurrence in situations where a tenant rents a room in a small-family apartment. In the absence of an agreement, eviction can also occur at any time at the will of the apartment owner.

Another reason for eviction may be a collective statement from the remaining residents of the apartment if the tenant violated their rights or did not maintain public order. A statement of claim is drawn up only if the lessor refuses to resolve this issue independently.

As for the eviction of a tenant from a communal apartment, the legislation of the Russian Federation does not contain any specific instructions regarding this issue. In most cases, the eviction of tenants renting an apartment in a communal apartment without a contract occurs on the basis of an application from other tenants.

This is due to the fact that conflicts between neighbors in a communal apartment occur very often and, as a rule, they try to resolve them on their own, since otherwise this can complicate the lives of absolutely all residents.

The landlord has the right to evict the tenant if he disturbs the neighbors or violates any of the established rules. The absence of an agreement only simplifies the eviction procedure.

Also relevant for many is the question of whether the terms of rent without a contract are relaxed for people living with children. The answer is quite simple and clear: no, the presence of children does not prohibit the landlord from evicting the tenants at any time.

Here you should rely not on the law, but on the integrity and understanding of the landlord. However, we note that if the case goes to trial, there is a possibility that the court will recognize the presence of small children as a mitigating circumstance.

The time of year plays a big role when moving out. Thus, sometimes the court may prohibit the eviction of a tenant if the landlord has filed a corresponding application during the heating season. However, this only applies to situations in which an agreement was concluded between the landlord and the tenant, and the tenant regularly paid for accommodation and complied with all the rules.

As for renting without an agreement, the time of year will have absolutely no impact here for the same reason as many other factors; the absence of an agreement leads to a lack of rights for the tenant.

If you decide to evict your tenants, you should follow the following procedure.

First you need to notify the tenants that you intend to evict them. This is necessary so that they have the time and opportunity to correct the complaints that caused you to decide to get rid of them. If this does not happen, the tenant should be evicted amicably. A sample eviction notice can be downloaded here.

Eviction in the absence of a written agreement, with rare exceptions, leads to serious proceedings and the intervention of third parties.

If this is your situation, it is recommended that you perform each action in the presence of a local police officer (this will help eliminate the possibility of various disagreements).

In particular, in the case where the tenant independently changed the locks without notifying or obtaining permission from the owner, the latter should open the door only in the presence of law enforcement officials.

If they are not present, the owner risks facing significant problems. It will not be superfluous to have on hand documents confirming the right to own this property.

In addition to confirming the fact of violation of Russian legislation or illegal activity in a rented apartment, police officers or a local police officer can also confirm the fact that tenants live at the address of the rented residential premises.

To receive this confirmation, you must submit a written request. The confirmation received must also be in writing.

Sometimes you come across tenants who, without the knowledge of the tenant, themselves rent out the same housing to third parties.

The owner retains the right to take the following actions:

— Bringing third parties to criminal liability; — Filing a claim against an unscrupulous tenant.

Illegal eviction of tenants: fine

If a written agreement exists, and the tenant complies with all the conditions for payment and accommodation in the rental housing, the landlord will not be able to evict him early at will.

If he tries to get rid of the tenant using a quick method such as changing the locks, his actions will be qualified in accordance with paragraph 1 of Art. 19 “On arbitrariness” of the Code of Administrative Offenses of the Russian Federation.

For such actions, the owner will have to bear responsibility, namely:

— Pay a fine of 3,000 rubles; — If there is damage to the tenant’s property, the offense is interpreted in accordance with the criminal code, and the amount of the fine will increase to 80,000 rubles (according to Article 300 of the Criminal Code of the Russian Federation).

It should also be noted that during the period of court proceedings, the tenant will have the legal right to continue to live in the rental property.

To summarize, it should be noted that the absence of a treaty creates a number of problems for everyone. A properly concluded written agreement will not only clarify all issues regarding the use of rental housing, but will also protect the tenant and the landlord from various lawsuits that entail additional costs of time, money and effort.

Sample statement of claim for eviction of a tenant

In ______________________________ (name of court)

Plaintiff: __________________________ (full name, address)

Defendant: _______________________ (full name, address)

Third party: _____________________ (full name, address)

STATEMENT OF CLAIM for eviction of temporary residents from residential premises

I am the owner of a residential premises located at the address: _________ (indicate the full address, including region, city, district, street, house and apartment number) under a rental agreement _________ (indicate details of the rental agreement).

“___”_________ ____ the residential premises were provided for temporary use by the defendant. The period of residence was agreed upon between us until “___”_________ ____ (or the period of residence was not established).

After the expiration of the established period, the defendant refused to voluntarily vacate the premises. The defendant received a warning about the need to evict “___”_________ ____

In accordance with Article 80 of the Housing Code of the Russian Federation, temporary tenants are required to vacate the premises upon expiration of the period of residence, or no later than seven days from the date of presentation of the demand for eviction. If temporary residents refuse to vacate their premises, they are subject to eviction without the provision of other housing.

Based on the above, guided by Articles 131-132 of the Civil Procedure Code of the Russian Federation,

Ask:

Evict _________ (full name of the defendant) from the residential premises at the address: _________ (indicate the full address of the residential premises) without providing another residential premises.

List of documents attached to the application (copies according to the number of persons participating in the case):

1. Copy of the statement of claim

2. Document confirming payment of state duty

3. Copy of the social tenancy agreement

4. Documents confirming the circumstances on which the plaintiff bases his claims

Date of application “___”_________ ____

Plaintiff's signature: _______

Tenant rights and responsibilities

All rights and responsibilities are stipulated in the lease (hire) agreement and begin to apply from its signing. Oral terms of the transaction can only be based on the tenant’s word of honor and his conscience.

He may damage the property, fail to pay utility bills, or flood the neighbors, and the owner of the apartment will not be able to prove this, as well as the very fact that there is an agreement between them. Everything that happens to the property remains the responsibility of the owner.

Also, tenants have exactly as many rights as the owner has conscience. Without drawing up an agreement, the tenant can be kicked out of the apartment at any time without returning the money paid in advance. And he, too, will not be able to prove that he was deceived.

A tenant may become a victim of scammers who, under the guise of the owner, will take money from him in advance for several months, and soon an owner will appear from whom the scammers have rented housing for a month. It is unknown how the situation will be resolved in this case, because it will be very difficult to prove the fact of fraud.

Important! Before the law, participants in an oral agreement have no rights and do not bear any responsibility.

Now you know about the rights of a tenant without a tenancy agreement.

Collection of evidence

It seems that the hysteria around rental apartments that has recently developed in the media has only one goal - to scare Moscow landlords and force them to come to the state tax office and confess.

If this does not happen, then it is extremely difficult to prove the fact of receiving money from renting out an apartment. To do this, documents must be presented in court that irrefutably prove not only the fact of renting out the apartment - in this case, this is a rental or lease agreement, but also your receipts confirming that you not only rented out the apartment, but also received money for it.

Of course, the possibility of presenting witness evidence cannot be ruled out : for example, they will bring in your former tenants who will confirm that they rented an apartment from you and paid money for it. But they also must prove that they were your tenants, that is, again, present the lease agreement and the receipts that you wrote when receiving money from them. Without this, this evidence will not be valid.

Risks

Let's consider what risks the owner will face when renting out a home:

1. Scammers. These are the conditions that are necessary for them; without drawing up an agreement, they can commit fraud without leaving any traces. For example, they may rent out your apartment to someone else. For a long term and with prepayment.
2. If tenants live without a signed contract, they can:
   bring an unacceptable number of residents with you;
3. place animals in the apartment that will damage the property;
4. do not allow the owner into the apartment;
5. damage the property in the apartment, including the results of repairs;
6. remove some valuable items from the apartment, citing the fact that they were not there.
7. The tenant did not take responsibility for paying utility bills. And if he does not pay voluntarily, then the debt will be accrued in the name of the owner.
8. If, due to the fault of the tenant, damage to common property or the property of neighbors occurs, according to the law, only the owner will be liable.
9. It will be impossible to even prove the fact of non-payment of rent, since for the state even the lease agreement itself does not exist.
10. It is the offended tenant who is able to convey information about non-payment of taxes to the relevant authorities, attaching his testimony to this denunciation.

Conditions and grounds

In order to evict those living there without a lease agreement from an apartment, the desire of the apartment owner is first necessary. After all, if tenants do not violate the rights of third parties (neighbors), then they are not obliged to vacate the living space. All the neighbors can do is contact the apartment owner and notify them that the tenants are disturbing them.

The grounds for eviction of tenants are:

• systematically do not pay rent;
• use the residential premises for other purposes (shop, office, warehouse, etc.);
• keep the apartment in unsanitary conditions;
• change of owner of residential premises;
• violate the norms of generally accepted behavior (drinking alcohol, rowdy behavior, etc.);
• cause damage to the home itself or the property located in it;
• other reasons.

Since tenants who have not entered into an agreement with the owner of the apartment are usually not registered in it, they can be evicted quite easily. Most often, it is enough to send them a demand for eviction within the established time frame.

However, there are situations when residents do not want to move out voluntarily. The reasons can be very different. For example, the lack of other housing or the landlord's unwillingness to return the rental deposit. In this case, the only correct solution would be to go to court. After all, if you use force or threats against tenants, you yourself may be subject to administrative or even criminal liability.

Example. Sokolova A.R. allowed a distant relative N.K. Pankratova, who came to receive higher education, to live in the second room of her apartment. The women did not draw up a lease agreement; they limited themselves to a verbal agreement. After six months of living, Pankratova began to cohabit with V.N. Kiselev and installed a lock on the door of the rented room. Sokolova repeatedly asked Pankratova and Kiselev to move out of her apartment, but they did not agree. The owner of the apartment repeatedly appealed to the district police officer, but he explained that residents could only be evicted from her apartment by a court decision. Then Sokolova went to court at her place of residence with a claim to recognize Pankratova as having lost the right to use the apartment. The court, having considered all the materials of the case, having heard both sides, came to the conclusion that the plaintiff’s demands are legal and must be satisfied in full. Pankratova and Kiselev were forced to leave their living space.

In what cases is it not necessary to draw up an agreement?

According to the law, it is necessary to pay tax, for this you need a written agreement for renting out the apartment. Therefore, the provision of housing for use without a contract is possible only free of charge.

The following information on the topic of renting an apartment may also be useful:

• What to do if you need to rent out an apartment to foreigners?
• Everything about how to rent out an apartment by the day: where to start, how to find tenants and conclude a model agreement?
• How to rent out an apartment correctly - on your own or through a real estate agency?
• How to rent out an apartment yourself?
• Is it possible to rent out an apartment taken on a mortgage and under what conditions?
• Renting out an apartment.