The lessor transfers to the lessee. What rights does the tenant have if the landlord fails to fulfill his obligations?

4.1. Redevelopment of the Premises by the Tenant is prohibited.

4.2. Redevelopment means dismantling walls, moving bathrooms, doorways and windows, as well as any intrusion into utility lines.

4.3. In the event of redevelopment, the Tenant undertakes at his own expense, within the period established by the Lessor, to carry out work to bring the premises to its original condition, as well as to compensate for the damage caused by such redevelopment to the Lessor and third parties.

5. RENT

5.1. The rent consists of from constant and variable parts. Under this condition, the lessor will deduct all VAT charged by utilities, and will charge VAT on the entire amount of the rent, including the variable “utility” part. In the invoice, he can make one line with the total amount or two - with a constant and a variable amount. The tenant will accept all VAT charged to him by the landlord as a deduction from Letter of the Federal Tax Service dated 02/04/2010 No. ШС-22-3/86@. And the amount of rent will be taken into account in expenses

5.2. The fixed part of the rent is 295,000 (two hundred ninety-five thousand) rubles, including VAT 45,000 rubles, per month. If the rent amount is not specified, the real estate lease agreement is considered not concluded, which means that the lessor cannot demand payment under it. clause 1 art. 654 Civil Code of the Russian Federation. The price in the contract proves its compensation and justifies the tenant’s expenses. When renting for a period of up to a year, the price cannot change clause 3 art. 614 Civil Code of the Russian Federation The permanent part of the rent includes payment for heating, sewerage and household waste removal.

5.3. The variable part of the rent is determined as the cost of water supply (hot and cold water) and electricity consumed by the Tenant corresponding to the area of ​​the rented Premises. Under no circumstances write in the agreement that “in addition to the rent, the Tenant reimburses Payments to the landlord for utility services." Otherwise, problems with VAT deduction are guaranteed for both the tenant and the landlord Clause 1 Letter of the Federal Tax Service dated 02/04/2010 No. ШС-22-3/86@. By the way, paying rent without any “compensation” is easier to process in accounting. There is no need to use additional settlement accounts or draw up any additional invoices for reimbursement

5.4. The Tenant transfers the permanent part of the rent in advance on a monthly basis to the Lessor's bank account from the 7th to the 15th day of the paid month. The tenant has the right to do this ahead of schedule. If the landlord does not establish the procedure, conditions and terms for paying rent, this may become a reason for a legal dispute with the tenant

5.5. The tenant transfers the variable part of the rent within 5 working days from the date of issue invoices with calculation of the variable part, as well as transferring to him copies of documents from the electricity supplier and water supply organization (extracts from them), confirming the cost of utilities. This condition guarantees the tenant documentary support for the costs of the variable part of the rent.

5.6. Within 10 (ten) banking days after signing this Agreement, the Tenant is obliged to make an advance payment in the amount of one month's rent to the Lessor's bank account, which will be counted towards payment for the last calendar month of rent.

6. RESPONSIBILITY OF THE PARTIES It is better to back up all the terms of the contract that are fundamentally important to you with responsibility for their non-compliance.

6.1. In case of delay in any of the payments under this Agreement (rent, security deposit, payment for additional services agreed upon by the parties, etc.) The Tenant is obliged, at the request of the Lessor, to pay a penalty in the amount of 0.3% of the amount owed for each day of delay. This is a better wording than “payable by the Tenant” or “Lessor shall pay.” This condition will not entail automatic additional accrual by the tax authority of income to the lessor in the form of penalties, which the lessor only had the right to collect (not recognized by the debtor and not collected by the court). By the way, for tax purposes it does not matter what type of penalty will be specified in your agreement: a fine or a penalty

6.2. For late vacancy of the rented space at the end of the lease term, the Lessor has the right to demand from the Tenant a penalty in the amount of 1% of the monthly rent for each day of delay. While the landlord has neither a court decision, nor a document signed by the tenant stating that he must and will pay a certain amount of penalties, nor actual money received to pay off the penalties, he does not have income in Letter of the Federal Tax Service dated January 10, 2014 No. GD-4-3/108@

6.3. For failure to fulfill or improper fulfillment of their obligations under this Agreement, the parties shall compensate each other for the damage caused. Damage is compensated in addition to the penalty (fine, penalty) provided for in this Agreement.

7. TERMINATION OF THE AGREEMENT Before terminating the contract, the landlord must send the tenant a written warning about the need for him to fulfill his obligation within a reasonable time. Art. 619 Civil Code of the Russian Federation.
In addition, the contract may provide for additional grounds for early termination of the contract. clause 2 art. 450, art. 619 Civil Code of the Russian Federation

7.1. Reorganization of the Lessor, as well as a change in the owner of the leased property are not grounds for changing or terminating the Agreement.

7.2. The Lessor has the right to unilaterally refuse to fulfill the agreement, subject to written notice to the Lessee at least 30 days in advance.
Grounds for the Lessor’s refusal to fulfill the agreement and its termination out of court:
- The Tenant uses the Premises not in accordance with clause 1.2 of this Agreement;
- The Tenant significantly degrades the Premises provided for use;
- The Tenant is performing or has performed work to redevelop the Premises;
- The Tenant maintains the Premises in a condition that threatens an accident, fire and poses a threat to the lives of service personnel and the Lessor’s employees;
- The tenant is late in paying rent.

7.3. The Tenant has the right to terminate this Agreement early unilaterally, subject to prior written notice to the Lessor 1 month in advance.

7.4. Upon expiration of the Agreement and upon fulfillment of all its conditions, the Tenant has a preferential right to conclude a new Agreement for the next term.

7.5. If one month before the end of the rental period established by clause 1.3 of this Agreement, the parties have not expressed their intention to terminate the Agreement, the Agreement is automatically extended for the same period This is convenient for both the tenant and the landlord. Moreover, the agreement, again, does not need to be registered with Rosreestr. clause 10 of the Information Letter of the Presidium of the Supreme Arbitration Court dated February 16, 2001 No. 59.
If the parties do not provide for such a condition, upon expiration of the lease the tenant may be forced out, and the landlord risks being left without a tenant (and rent) on same conditions.

8. OTHER CONDITIONS

8.1. The Agreement is drawn up in 2 (two) copies having equal legal force, one for each party.

9. ADDRESSES AND DETAILS OF THE PARTIES The details of the parties (names of companies, full names of directors) must be checked with the details in the preamble of the agreement (they must match)

9.1 The parties are obliged to notify each other in writing about changes in details (address, tax identification number, checkpoint, bank details).

The Agreement is terminated from the moment the Lessee receives the Lessor's notice of termination of the agreement. The Lessor has the right to terminate the agreement early only after days have passed after sending the Lessee a written warning about the need to fulfill his obligation. 6.3. The tenant may terminate this agreement unilaterally early in cases where: 6.3.1. The Lessor does not provide the property for use by the Tenant or creates obstacles to the use of the property.6.3.2. The property transferred to the Tenant has defects that prevent its use, which were not specified by the Lessor at the conclusion of the agreement, were not known to the Tenant in advance and should not have been discovered by the Tenant during an inspection of the property or checking its condition. 6.3.3.

Real estate lease agreement

Important

contracts by type

If the Tenant uses the Premises (in whole or in part) not in accordance with the Permitted Use or uses the Premises with significant violations of the terms of the Agreement or with repeated violations. 9.1.2. If the Tenant intentionally or through negligence significantly worsens the condition of the Premises and (or) engineering equipment located in the Premises 9.1.3.

If the Tenant does not comply with the essential terms of this Agreement for the use of the premises (misuse, significant deterioration of its condition, failure to carry out routine repairs, etc.) within 15 (fifteen) calendar days from the date of receipt of written notice from the Lessor about the need to fulfill the terms of this Agreement. 9.1.4. If the Tenant more than 2 times in a row after the expiration of the period established by the contract (regardless of subsequent repayment of the debt) does not pay the rent.

Temporary possession and use

Info

The Lessor has the right to present to the Lessee for reimbursement the amount of the fine imposed on the Lessor by state control and supervisory authorities for the Lessee's failure to comply with the current legislation, rules and regulations on health protection and compliance with sanitary standards, safety regulations, and fire safety rules in the Premises and/or adjacent territory. 7.3. The Lessor is not liable to the Tenant for the actions or inactions of third parties, as well as for the consequences of such actions or inactions.

Premises rental agreement

The Lessor undertakes not to interfere with the Tenant’s legitimate business activities in the Premises. 5.2.3. In the event of accidents, fires, floods, explosions and other similar emergency events, immediately take all necessary measures to eliminate the consequences of these events.
6.

Attention

RIGHTS AND OBLIGATIONS OF THE TENANT. 6.1. Tenant's rights. 6.1.1. The Tenant has the right, during the lease term, to use the premises for the purposes for which they are intended.

The Lessor may terminate this agreement unilaterally early in cases where the Lessee: 6.2.1. Uses the property with a significant violation of the terms of the contract or the purpose of the property or with repeated violations. 6.2.2. Significantly deteriorates the property. 6.2.3. Fails to pay rent more than two times in a row after the expiration of the payment period established in the contract. 6.2.4. The Agreement is terminated from the moment the Tenant receives the Lessor’s notice of termination of the agreement. The Lessor has the right to terminate the contract early only after days have passed after sending the Lessee a written warning about the need to fulfill his obligation. 6.3. The tenant may terminate this agreement unilaterally early in cases where: 6.3.1. The Lessor does not provide the property for use by the Tenant or creates obstacles to the use of the property. 6.3.2.

The lessor provides and the lessee accepts for temporary use

DETAILS OF THE PARTIES Lessor: Full name: Location: INN/KPP OGRN R/s Name of the bank C/s BIC Tenant: Full name: Location: OGRN INN/KPP R/s Bank name: K/s BIC SIGNATURES OF THE PARTIES: LESSOR: TENANT: Appendix to the lease agreement No. From " " 2008 Certificate of acceptance and transfer of non-residential premises in Mytishchi "" 2008
hereinafter referred to as “

The Lessor”, in the person acting on the basis, on the one hand, and hereinafter referred to as the “Tenant” in the person acting on the basis, on the other hand, collectively referred to as the “Parties”, have drawn up this act on the following: 1. According to clause 3.1 . of the above agreement, the Lessor transfers and the Tenant accepts the non-residential premises located. The total area of ​​the Premises is sq. m.

m. 2. The technical condition of the non-residential premises is satisfactory and allows it to be used for the purposes provided for in paragraph.

The lessor rents out and the tenant accepts for temporary use

The Lessor,” represented by, acting on the basis, on the one hand, and, hereinafter referred to as “Tenant,” represented by, acting on the basis, on the other hand, have entered into this agreement as follows. 1. SUBJECT OF THE AGREEMENT 1.1. The Lessor provides, and the Tenant accepts for temporary possession and use (option: for temporary use) real estate located at the address: , with a total area of ​​square meters (hereinafter referred to as the “property”). 1.2.

The property is owned.1.3. The property is located in (for example: in a residential building, in a built-in building, in a separate building). 1.4. At the time of conclusion of the contract, there are no rights of third parties to the property.1.5.

The property transferred to the Tenant has defects that prevent its use, which were not specified by the Lessor at the conclusion of the agreement, were not known to the Tenant in advance and should not have been discovered by the Tenant during an inspection of the property or checking its condition. 6.3.3. Due to circumstances for which the Tenant is not responsible, the property will be in a condition unsuitable for use. 6.3.4. The lessor does not carry out major repairs of the property within the time limits established by this agreement. 6.3.5. The Agreement is terminated from the moment the Lessor receives the Lessee's notice of termination of the agreement. 7. RETURN OF PROPERTY TO THE LESSOR 7.1. Upon termination of this 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. 7.2.

In business, it is not uncommon for a commercial entity to need to rent non-residential premises, be it an office or commercial premises. Often an entrepreneur is faced withvarious problems accompanying rental relations.

Practice makes a difference many “pitfalls” that “pop up” after the conclusion of an agreement that is hidden or directly does not meet the interests of the Tenant- this and the impossibility of the latter to unilaterally refuse to fulfill the contract, and an unreasonable increase in rent, the impossibility of advertising without the consent of the owners, carrying out redevelopment at will, various kinds of restrictions and sanctions. There are also frequent situations when the Tenant is literally thrown out of the rented premises without warning.

This article is devoted to these and other problems.

How to insure yourself as much as possible at the stage of concluding a lease (sublease) agreement?

To avoid such situations?

When renting non-residential premises, the future tenant should pay close attention to both the signed lease agreement and the landlord himself.

Before concluding a lease agreement, it is necessary to carry out a set of actions aimed at verifying the counterparty. This is necessary not only for the security of the transaction, but also to prevent possible adverse tax consequences that may occur if your counterparty is included in the register of unreliable taxpayers.

We have already discussed in detail how to check a counterparty earlier (sokolaw.ru/articles/319721).

Let me remind you that to check the counterparty you need request a number of documents confirming its actual activities and real ability to fulfill the terms of the contract. When applying this recommendation to rental legal relations, it is necessary to clarify what documents should be requested from the tenant:

Certified copies of the Certificate of State Registration (since 2017 this certificate is not issued), Tax registration certificates;

Extract from the Unified State Register of Legal Entities (or Unified State Register of Individual Entrepreneurs, if the lessor is an individual entrepreneur);

A copy of the minutes of the general meeting of participants (shareholders) or the decision of the sole participant (shareholder) of the counterparty on the appointment of a director and the order on the appointment of a manager (for legal entities);

A copy of the power of attorney for the signatory, if the agreement is signed by another person;

Certificate from the bank about the bank details of the counterparty;

A copy of the passport (if the lessor is an individual entrepreneur, if an individual - a copy of the passport and SNILS);

If the counterparty does not have a seal, a letter confirming that he is conducting business without a seal;

Documents confirming the right to transfer the premises for rent/sublease (Certificate of ownership, or primary lease agreement with the tenant’s consent to sublease the premises!)

BTI documents (technical or cadastral passport with an explanation or floor plan on which the premises provided for rent are marked).

The first step is to check the landlord's right to own, use or dispose of the premises and find out if there are any restrictions on the premises(for example, property is pledged or under arrest). If the owner and the lessor do not agree under the agreement, it is necessary to find out on what basis the lessor disposes of the property. In this case, the landlord must have written consent to transfer the premises for rent/sublease.

It is also worth checking powers of the signatory directly. If the lessor is a legal entity, the agreement must be signed either by an executive body acting on the basis of the Charter without a power of attorney (director, general director, etc.), or by an authorized representative - a person who has the appropriate powers based on a power of attorney (in the absence of such a power of attorney, the contract may be declared invalid).

Besides, It is recommended to carry out additional verification of the counterparty by sending a request to various government agencies. Thus, it is recommended to independently request an extract from the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs in relation to the lessor. It would not be superfluous to “break through” the landlord on the websites of the Courts of General Jurisdiction, the website Arbitration Court, FSSP of Russia, etc. If the fact of claims against the counterparty or its property from third parties is revealed, a conclusion arises about its dishonesty in carrying out its business activities.

Checking the rental agreement.

Directly when agreeing on a lease agreement, first of all, you should pay attention to such terms of the agreement as the date and place of conclusion of the agreement, the subject of the lease, the term, the price of the agreement, and the details of the parties.If the contract does not define all the essential terms, the contract may be recognized as not concluded. In addition, inconvenient terms of the contract may later result in significant problems for the Tenant. I propose to look in order at the points that you should pay attention to when signing an agreement.

1. Lease object

Particular attention should be paid to the subject of the lease agreement, which is an essential condition of the agreement. The lease agreement must contain data that makes it possible to definitely establish the property to be transferred to the lessee as the leased object. If there is no such data in the agreement, or the subject of the agreement is not sufficiently specified, the lease agreement may be recognized as not concluded (clause 3 of Article 607 of the Civil Code of the Russian Federation).

As a rule, a rental object can be identified by the following characteristics:
— address of the location of the rental object, floor;

— name of the leased property (non-residential premises, part of non-residential premises, etc.);

- inventory number;

— functional purpose (non-residential - production, warehouse, trade, administrative, etc.);

— area of ​​the premises (total and rentable).

In addition, paragraph 3 of Art. 26 of Law N 122-FZ indicates that in the case of leasing a building, structure, premises in them or part of the premises, cadastral passports of the building, structure and premises indicating the size of the leased property are attached to the real estate lease agreement submitted for state registration of rights area. We recommend At a minimum, any lease agreement must be accompanied by a floor plan of the premises or a floor plan of the building with the premises being leased indicated.

Particular attention should be paid to lease agreements for non-stationary objects (pavilions, kiosks, sales tents, etc.); as a rule, the subject of the agreement in such legal relations does not have proper identification - often vague wording such as “pavilion at a bus stop”, “kiosk” at the intersection of streets" and so on. With such wording, there is a risk that the contract will be invalidated.

When renting non-stationary objects, it is recommended to indicate the most detailed address possible, indicating location landmarks; The contract must be accompanied by a plan of the land plot with a mark on the location of the object and a photo reference. In addition, it is also necessary to request all available title documents for a non-stationary object, be it a purchase and sale agreement, a gift, or a primary lease; require confirmation of permission from municipal (city) authorities for the installation, commissioning of a non-stationary facility, and its inclusion in the relevant registers.

If the rental property is an unauthorized construction and installed without any permits, there is a risk of its demolition or dismantling. Therefore, it is recommended that the contract establish the extent of the landlord’s liability in this case.

In addition, in lease legal relations, where ownership of the leased object cannot be accurately determined, there is always a potential risk of fraud on the part of the counterparty.

2. Rent

Another essential condition of the lease agreement is the amount of rent (clause 1 of Article 654 of the Civil Code of the Russian Federation). In the absence of a written agreement between the parties regarding the amount of rent, the lease agreement should be considered not concluded.

Rent can be determined as a lump sum paid periodically or as a lump sum, or as a non-monetary form of rent (for example, consideration for services).

You should also determine whether utilities are included in the rent or not. If there is no specific provision in the agreement, then the Lessor has the right to present a utility bill in excess of the agreed rent. In addition, another unexpected increase in rent may be the accrual of VAT (if the Lessor is a VAT payer), if the agreement does not directly indicate that VAT is included in the rent.

Also, additional responsibilities are assigned to the Tenant if the lessor is an individual who is not registered as an individual entrepreneur. In this case, the Tenant bears the responsibility of a tax agent in accordance with Art. 226 of the Tax Code of the Russian Federation when paying rent. The tenant is obliged to calculate, withhold from the taxpayer-lessor and pay the amount of personal income tax.

According to paragraph 3 of Art. 614 of the Civil Code of the Russian Federation, the amount of rent may be changed by agreement of the parties within the time limits provided for in the contract, but not more than once a year. When interpreting this norm, judicial practice proceeds from the fact that during the year the contract condition providing for a fixed amount of rent should remain unchanged (clause 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 66, Determination of the Supreme Arbitration Court of the Russian Federation dated March 31, 2008 N 399/08 , Resolution of the FAS Volga District dated March 6, 2008 in case No. A49-3309/2007, Resolution of the FAS Volga-Vyatka District dated October 10, 2005 in case No. A79-10625/2004-SK2-9987, Resolution of the FAS Moscow District dated November 11, 2004 in case No. KG-A40/10324-04). Thus, The lessor has no right to change the amount of rent more than once a year. It should be noted that any such conditions in the contract are unacceptable. However, for the tenant, it is of course beneficial to achieve a condition that the rent remains unchanged throughout the entire lease term.

3. Rental period

You can often come across the erroneous opinion that an essential condition of a lease agreement for non-residential premises is also the term of the lease agreement. In reality this is not the case. The term of the lease agreement for non-residential premises is one of the additional conditions and may not be determined by the parties. However, agreeing on the deadline is also important for counterparties, since the form of the contract will depend on this. If the contract is concluded for a period of more than a year, it requires mandatory state registration. Accordingly, in the absence of such registration, the contract is considered not concluded.

The procedure for state registration of lease agreements is regulated by Federal Law No. 122-FZ of July 21, 1997 "On state registration of rights to real estate and transactions with it", Rules for maintaining the Unified State Register of Rights to Real Estate and transactions with it, approved by the Decree of the Government of the Russian Federation Federation dated February 18, 1998 N 219 and other documents.

For a tenant, there are advantages to concluding a contract for a period of more than a year. The positive aspects are that the very fact of approval of this transaction by a government agency eliminates many potential risks associated with concluding an agreement (for example, concluding an agreement with an unauthorized person); also, a long lease period provides some guarantee of the stability of these legal relations. An inconvenience may be the fact that the obligation to register the agreement, as well as all costs associated with such registration, is usually assigned to the Tenant; Also, all additions and changes to the agreement must undergo state registration.

If the lease term is not specified in the agreement, the agreement is considered concluded for an indefinite period (Clause 2 of Article 610 of the Civil Code of the Russian Federation). However, state registration of such an agreement is not required. However, the disadvantage of an indefinite lease agreement is that each party has the right to cancel the agreement at any time by notifying the other party three months in advance. For a Tenant aiming for a long-term lease, these are serious risks.

4. Extension or re-conclusion of the contract?

According to paragraph 1 of Art. 621 of the Civil Code of the Russian Federation, the Tenant, upon expiration of the lease agreement, has a preferential right to conclude a lease agreement for a new term (all other things being equal). However, this regulatory provision is of a dispositive nature, and according to the agreement, such a right of the Tenant may be excluded.

In this case, it is necessary to distinguish between concepts. Renegotiation implies the termination of the old contract and the conclusion of a new one. In this case, the Lessor has the right to demand a revision of the terms of the new agreement. At the same time, the legislator provided another tool - contract extension, in which the previous contract remains in force, but its validity period is extended.

The automatic renewal clause is beneficial to the Tenant on the grounds that when renewing the lease agreement for a new term, the Tenant does not have the right to impose the terms of the original lease agreement on the Lessor(as explained in clauses 31, 32 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 66, a lease agreement concluded in accordance with clause 1 of Article 621 of the Civil Code of the Russian Federation for a new term is a new lease agreement; when concluding a lease agreement for a new term the parties are not bound by the terms of the previously valid agreement). At the same time, prolongation only implies an extension of a previously concluded contract without any change in its terms. It should be said that such an extension is provided by default. In accordance with paragraph 2 of Art. 621 of the Civil Code of the Russian Federation, if the tenant continues to use the property after the expiration of the contract in the absence of objections from the lessor, the contract is considered renewed on the same terms for an indefinite period. Therefore, if there are no special clauses in the contract, the general rules of Art. 621 Civil Code of the Russian Federation. However, extending the contract for an indefinite period, as we have already discussed above, is not beneficial to the Tenant.

That's why, It is in the interests of the Tenant to enter into a lease agreement for a period of 11 months (to avoid state registration) with a subsequent automatic extension of the agreement on the same terms and for the same period.

The most optimal would be the following clause in the contract:

“If none of the parties to this Agreement declares its intention to terminate it 30 (thirty) calendar days before the expiration of this Agreement, this Agreement is automatically extended for the same period (11 months) and on the same conditions.”

When extending a lease agreement concluded for a period of less than a year for the same period, the agreement is also not subject to state registration.

5. Reception of the premises.

No less important when concluding a lease agreement is the procedure for acceptance and transfer of premises. Often the parties do not attach due importance to this, which in turn brings serious problems for the Tenant in the future. So, When drawing up an act of acceptance and transfer of non-residential premises, the parties often limit themselves to simply indicating in the act the fact of the transfer of the object by the lessor and its acceptance by the tenant, which is a gross mistake.

The act must indicate the following information:

Characteristics of the object and its area;

The functional purpose of the object and the possibility of its use in business activities (for a certain type of business activity suitable for the Tenant);

Condition of the facility, the need for current or major repairs of the facility;

Possibility to place a sign or outdoor advertising (if the tenant has such a need);

Condition of utilities (heating, hot and cold water supply, gas supply, electrical equipment, etc.);

Meter readings;

The fact of transfer of accessories of the rental object (keys, passes, etc.);

Often, the Transfer and Acceptance Certificate contains a clause stating that the transferred non-residential premises fully comply with the terms of the lease agreement, and the tenant does not have any claims against the landlord. Naturally, such a clause meets the interests of the Lessor, but not the Tenant.We advise the Tenant to exclude such a clause, and if the Landlord insists on it, we advise adding the following“No visible defects found”. This will allow you to file a claim against the Lessor if hidden defects are discovered later.

Upon termination of a lease agreement for non-residential premises, the leased object must be returned to the lessor under a transfer deed in compliance with the same rules.

It should be remembered that the Tenant’s early release of the leased object (before the lease agreement is terminated) without transferring it under the transfer deed to the Lessor is not grounds for termination of the Tenant’s obligation to pay rent (see clause 13 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 66).

6. Termination of the contract, termination or unilateral refusal of the contract.

We have already said that if the Tenant continues to use the property after the expiration of the contract, and the Lessor has no objections, the contract is considered renewed. Within the meaning of paragraph 2 of Art. 621 of the Civil Code of the Russian Federation, a party to a lease agreement intending to terminate the lease agreement upon expiration of the established lease period (or intending to renew it on other terms) must send a corresponding notice to the other party. Otherwise, the lease agreement will be considered extended (unless the agreement directly states that such a prolongation is inadmissible). But in practice, more questions arise specifically regarding the early termination of the contract.

The tenant needs to decide what is more profitable for him: a guarantee of a long-term rental relationship, or the opportunity to move out of the office at any time and terminate the contract. The legislator proceeds from the fact that the lease agreement cannot be terminated early at the request of one of the parties. As a general rule, a lease agreement is terminated by agreement of the parties, or if such an agreement is not reached in court. However, there is a tool that allows the Tenant to achieve unilateral termination of the contract - this is a unilateral refusal to perform the contract in accordance with the procedure.

This is where a common mistake in many rental agreements lies.

It is necessary to distinguish between the right to unilaterally withdraw from a contract and the right to demand termination of a contract. If in the first case the contract is terminated out of court, at the will of one party to the obligation, then in the second case the contract will be considered terminated only if the court makes a decision on its termination and after such a decision enters into force (

Often, wanting to provide for the right to unilateral refusal to perform a contract, the parties call such a right “the right to early termination of the contract” or “the right to unilateral termination of the contract” and so on. This is caused, firstly, by mistrust of the wording “refusal to fulfill the contract”, and at the same time, by the desire to directly indicate the extrajudicial nature of the early termination of the contract. As a result, this leads to the fact that in the event of a dispute, such an agreement will only be terminated in court - this is directly indicated by the judicial practice of the Supreme Court of the Russian Federation (definition of the IC on economic disputes of the Supreme Court of the Russian Federation dated August 21, 2015 N 310-ES15- 4004, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 20, 2011 N 9615/11). We recommend that when agreeing on the terms of the right to refuse to fulfill the contract, use the following wording - “the right to refuse the contract”, “the right to refuse to fulfill the obligation”, etc.

It should be said that, just like a unilateral refusal of a contract, so also the termination of a contract by a court at the request of one of the parties, cannot be without motive, that is, the initiator of termination of the contract will need to prove the existence of grounds provided for by law or agreed upon in the contract.

It is also recommended to agree and procedure for compensation of improvements made to the premises in case of termination of the contract. As a general rule, the cost of such improvements should be reimbursed to the tenant, but in practice the Landlord often stipulates the opposite in the contract.

7. Sublease and what is its danger...

The same rules apply to a sublease agreement as to a lease agreement, but with some special features. The parties to such an agreement will be the tenant and the subtenant.

When concluding a sublease agreement, it is necessary to take into account that the tenant has the right to sublease the property leased to him only with the consent of the lessor. Such consent can be given directly in the text of the lease agreement, or in the form of a separate document. The scope of rights transferred by the tenant to the subtenant under a sublease agreement cannot exceed the scope of rights transferred to the tenant by the lessor under the primary lease agreement.

Thus, if the landlord allowed the tenant to carry out only a specific type of activity in the leased premises, the tenant will not allow the subtenant to carry out any other activity; if the lease agreement prohibits the tenant from carrying out redevelopment, he does not have the right to allow the subtenant to carry it out, and so on. Hence, First of all, the subtenant should ask the tenant to study the primary lease agreement carefully.

In addition, the subtenant is recommended to carry out checking not only your direct counterparty under the sublease agreement, but also all participants in the chain of sublease legal relations ( often the premises can be subleased several times).

It should be remembered that the sublease agreement is concluded on the basis of a lease agreement. If the lease agreement is terminated, the sublease is also considered terminated.

The term of the sublease agreement cannot be longer than the term of the lease agreement in accordance with paragraph 2 of Art. 615 Civil Code of the Russian Federation. The tenant may demand to vacate the occupied premises (Resolution of the Federal Antimonopoly Service of the Central District dated February 16, 2011 in case No. A23-2280/10)

That is why you should pay attention to the term of the initial lease agreement. By the same principle, the extension of a sublease agreement will be invalid if the primary lease agreement is not renewed. Thus, if the primary lease agreement does not provide for automatic renewal, and upon expiration of its validity period the parties must re-conclude (re-conclusion implies the termination of the previous contract and the conclusion of a new one) the contract for a new term, then the sublease agreement in this case cannot be extended. It also terminates and requires re-conclusion on new grounds.

Early termination of the lease agreement also entails termination of the sublease agreement (Article 618 of the Civil Code of the Russian Federation). In this regard, such risks should be provided for at the stage of agreeing to a sublease agreement (for example, include in the agreement a condition under which the tenant is obliged to warn the subtenant in advance about the termination of the primary lease agreement).