How to correctly extend a real estate lease agreement on the same terms for a new term (11 months) without registering with Rosreestr? Extension of the lease agreement.

Having considered the issue, we came to the following conclusion: a real estate lease agreement concluded for a period of less than a year can be extended on the same terms, including by concluding an additional agreement to it. State registration of the agreement is not required.

In accordance with paragraph 1 of Art. 610 of the Civil Code of the Russian Federation, the lease agreement is concluded for the period specified in the agreement. If the lease term is not specified in the agreement, the lease agreement is considered to be concluded for an indefinite period. Clause 2 of Art. 651 of the Civil Code of the Russian Federation provides that a lease agreement for a building or structure concluded for a period of at least one year is subject to state registration and is considered concluded from the moment of such registration.

If the lease agreement for a building (structure) is concluded for a period of less than a year, it does not require state registration and is considered concluded from the moment it is signed by the parties. Similar rules apply to lease agreements for non-residential premises (clause 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.06.2000 No. 53 “On state registration of lease agreements for non-residential premises”).

Upon termination of the contract, the leased property must be returned to the lessor in compliance with the rules provided for in paragraph 1 of Art. 655 of the Civil Code of the Russian Federation. However, depending on the circumstances and terms of the agreement, after the expiration of the period for which it was concluded, the relations of its parties associated with the use (ownership and use) of the leased object may continue. In this case, it is not necessary to return the leased property and enter into a new lease agreement, although the parties are not deprived of the opportunity to formalize the relationship in this way.

1. According to 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. No additional agreements are required to renew the contract for an indefinite period.

Since a lease agreement concluded (renewed) for an indefinite period cannot be considered concluded for a period of at least a year, such an agreement is not subject to state registration (clause 11 of the Review of the practice of resolving disputes related to the application of the Federal Law “On State Registration of Rights to Real Estate and transactions with it" (appendix to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59), hereinafter referred to as Information Letter No. 59).

Let us remind you that each of its parties can refuse to fulfill a real estate lease agreement concluded for an indefinite period at any time, warning the other party three months in advance, unless a different period for warning is established by law or agreement (clause 2 of Article 610 Civil Code of the Russian Federation).

2. In accordance with paragraph 2 of Art. 1 of the Civil Code of the Russian Federation, citizens and legal entities are free to determine any terms of the contract that do not contradict the law. By virtue of clause 4 of Art. 421 of the Civil Code of the Russian Federation, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (Article 422 of the Civil Code of the Russian Federation). The agreement can be amended by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or the agreement itself (clause 1 of Article 450 of the Civil Code of the Russian Federation). In this regard, the mutual agreement of the parties to lease real estate for a new term can be formalized in any way that does not contradict the law: either by concluding a new lease agreement or by signing an additional agreement to an existing agreement.

In particular, the parties have the right, by an additional agreement, to amend the current lease agreement by including a condition according to which, upon expiration of the lease period, in the absence of objections from the parties, the agreement is considered renewed for the same period. In this case, upon expiration of the lease period, the contract will be automatically renewed without signing any additional agreements. As explained by the Supreme Arbitration Court of the Russian Federation, with such a renewal for a new term of a lease agreement concluded for a period of less than a year, the relations of the parties are regulated by a new lease agreement, which is not subject to state registration (clause 10 of Information Letter No. 59). In other words, with the “automatic extension” of the contract, the term of the new lease agreement is not summed up with the already expired one, but is calculated anew.

In the above situation, the term of the contract concluded on October 2, 2013 for 11 months has expired, therefore, by virtue of clause 2 of Art. 621 of the Civil Code of the Russian Federation, it is considered renewed under the same conditions for an indefinite period. The additional agreement mentioned above can be concluded by the parties in this case as well (of course, when formulating the terms of this agreement, it should be taken into account that changes are made to the lease agreement concluded for an indefinite period, and not for 11 months).

In conclusion, we note that, depending on the wording used by the parties, the additional agreement they concluded may be qualified not as aimed at renewing the lease agreement for a new term, but as a change in the terms of the lease term, which as a result of such a change becomes more than a year. In this case, the above approach, reflected in clause 10 of Information Letter No. 59, cannot be applied, and the lease agreement is formal, by virtue of clause 2 of Art. 651 of the Civil Code of the Russian Federation, requires state registration, without which it cannot be considered a prisoner (see, for example, the determination of the Supreme Arbitration Court of the Russian Federation dated March 11, 2010 No. VAS-18020/09, resolution of the Federal Antimonopoly Service of the Moscow District dated March 18, 2011 No. F05-1743/2011, FAS Ural District dated November 11, 2009 No. Ф09-8709/09-С3).

However, as the Plenum of the Supreme Arbitration Court of the Russian Federation explained in paragraph 14 of Resolution No. 73 dated November 17, 2011 “On certain issues in the practice of applying the rules of the Civil Code of the Russian Federation on a lease agreement,” in such a situation, the conditions of the actually executed lease agreement, even in the absence of its state registration, create mutual obligations for its parties. The latter do not have the right, in relations with each other, to refer to the lack of state registration of the agreement as a basis for failure to fulfill the obligations provided for by it (see also Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 6, 2011 No. 4905/11). In this case, the fact that the lease agreement has not been registered will only matter in relations involving third parties (for example, in the case of the sale of the leased object, the tenant will not be able to refer to clause 1 of Article 617 of the Civil Code of the Russian Federation).

According to established practice, most often in Russia non-residential premises are concluded for 11 months, but after their expiration, they can, of course, be extended. Thus, a bona fide tenant has, in particular, a preferential right to extend this agreement over other applicants for renting this premises, of course, if the landlord plans to continue renting out his premises. How to prolong a lease agreement for non-residential premises, as well as other nuances of this procedure, we will tell you in this article.

How can a tenant renew a lease agreement?

So, the tenant, who is in full good faith, has a pre-emptive right to extend the term of the lease. In this case, it is usually stated in the agreement itself how and within what time frame you need to notify the lessor of your desire (Article 621 of the Civil Code of the Russian Federation). If there are no deadlines, then the notification must be sent before the expiration of the contract.

Please note that notice of lease renewal must be received by the landlord. To do this, you can send it by registered mail with return receipt requested, since in this case the renter will have the opportunity to receive confirmation from the post office that the notification letter was actually received. It is very important to track this point, since it happens that landlords avoid receiving such notices so that the tenant cannot exercise his pre-emptive right to extend or for other reasons.

Moreover, if you have received the notification, then the fact of sending does not need to be recorded. Otherwise, it is the fact of sending that is important, since, ultimately, the notice of renewal of the lease agreement may not be received. Therefore, if a dispute arises in the future, including in court, about the extension of the contract, the tenant must have confirmation that he sent notifications.

It is necessary to send a notice of renewal of the lease agreement to the landlord's address specified in the agreement, but it is possible to send it to several at once, which are known to the tenant, so it is more likely that the letter will reach the addressee. This can be either a legal address, if the organization rents out its premises, or the address at the landlord’s place of residence. In addition to notification by letter, you can also call, send a fax, e-mail, or use other means of communication for reliability.

In addition, when understanding the issue of prolonging the lease agreement, the tenant should remember those clauses in the agreement that are responsible for its termination, so as not to accidentally violate them, which can automatically lead to a situation where renewal of the lease will be impossible.

When the lease agreement is automatically renewed

In addition to those situations where the tenant needs to send a notice of his desire to renew the lease agreement for non-residential premises, other developments are also possible. So, if the lessee continues to use the relevant property in the same way after the expiration of the contract and no one has any objections, then, therefore, the contract is considered automatically extended for an indefinite period.

Is it necessary to register a lease agreement after renewal?

As you know, if a lease agreement is concluded for a period of 12 months or more, then it must be registered with Rosreestr, just like a purchase and sale agreement. At the same time, the question arises whether it will be necessary, which has been prolonged. However, as experts note, registration of an extended lease agreement will not be necessary, since such lease extension agreements do not fall under the original definition when this is necessary.

The legislation provides for a certain procedure by which land is provided for lease to individuals and legal entities. The main document of such an agreement is a lease agreement concluded for a certain period. After the expiration of the regulated period, under certain conditions, it is possible to extend the use of the site in one of the possible ways.

Terms

An extension of a land plot lease agreement is allowed under one of the following conditions: conditions:

• there is agreement of both parties for further extension;
• extension of the lease agreement for the use of a land plot is carried out on the basis of legislative norms;
• If there are disagreements and the court goes to court, an appropriate extension order is issued.

It should be taken into account that the current tenant has the pre-emptive right to conclude a new contract or prolong the previous one. This right can be exercised before the contract expires.

Extension methods

Extension of the lease agreement for a new term is carried out as follows: ways:

• a new contract is concluded;
• an additional agreement to the current contract is signed;
• The rental period is automatically extended.

A new agreement is concluded in a situation where it is not possible to draw up an additional agreement or the terms of the lease change significantly. In both situations, the procedure is identical and repeats the procedure by which the original contract was concluded. Moreover, if the contract was originally drawn up on the basis of tenders, the new document indicates the tenant’s pre-emptive right or a court decision.

An additional agreement to extend the lease of a land plot is concluded provided that it is permitted by the main agreement. If the contract does not indicate the legal force of additional acts, a new lease agreement must be concluded.

Automatic extension is allowed in a situation where neither party takes action to terminate the contract - the lessor does not withdraw the land plot, and the tenant continues to make payments in good faith. In this case, the extension is not limited to a certain period, and the terms of the contract remain the same.

How to renew?

To renew a land lease agreement, the following procedure is performed:

• for three months before the expiration of the term, the renter applies to the local administration with the accompanying documents;
• an application is drawn up to extend the lease of the land plot;
• the application with documents is accepted for consideration, a decision is made within months;
• Based on the decision made, a new land lease agreement or an additional agreement on its extension is concluded.

No bidding

Extension of a land lease agreement for a new term without bidding is permitted in accordance with Article 621 of the Civil Code of the Russian Federation. It determines the tenant's pre-emptive right to enter into a new contract or an additional renewal agreement. However, if the registration has not undergone state registration, then the pre-emptive right is not taken into account.

The specified position determines condition for registration - conscientious fulfillment of the tenant’s obligations. To conclude an appropriate agreement before the expiration of the land lease, applications should be submitted to the local administration.

Article 621 also prescribes the possibility challenge the refusal in prolonging the use of land. If, within a year from the end of the contract, an agreement is concluded with another person, the first tenant has the right to file a lawsuit for infringement of his preemptive right.

Under construction

If the contract is drawn up for a land plot for individual housing construction, the tenant also has all rights to extend the validity period. This requirement is due to the presence of his property - a building for which the land is rented. Its transfer to another person is a direct violation of the property rights of the developer.

It is possible to extend the term of the land lease agreement for individual housing construction using a simplified procedure - you just need to submit the relevant documents on the construction and the lease agreement. Extension not allowed in the following situations:

• the contract did not provide for construction and has corresponding prohibitions in the terms;
• the category of land does not allow construction;
• the tenant has not started development.

Statement

An application to the land department of the local administration is submitted in free form, taking into account certain criteria:

• the name of the department or the name of the authorized person to whom the document is submitted is indicated;
• the name of the applicant or the name of the legal entity is written down;
• a brief summary of the situation is provided - on what grounds the land lease agreement was concluded, the category of the land, and the purposes of use are specified;
• the legal grounds on which the extension of the lease of a land plot is allowed are determined;
• the intention to renew the contract is stated;
• a list of related documentation is provided;
• a date and signature are affixed, if the application is submitted by a legal entity - a seal.

The application can be drawn up independently. Some departments provide a form and sample document for completion on site.

Registration of lease agreement renewal

Extension of a land lease agreement is subject to mandatory state registration. A period of one year is taken into account - if the total rental period under the main contract and additional agreement exceeds 12 months, all documents are registered.

Lease of land plots from the state and local governments provides for a long period of land use. Therefore, after concluding an extension agreement, they contact the Rosreestr office at the location of the land plot. The list of documents must include:

• identity card or certificate of registration of a legal entity;
• contract with all additional agreements;
• receipt for payment of state duty.

Can they refuse to renew a land lease agreement?

The extension of the land lease agreement may be refused. In this situation, the tenant, after the expiration of the contract period, submits an application on an equal basis with everyone else for the further use of the land.

Grounds for refusal in the extension of a land lease agreement for a new term may be as follows:

• the specified land plot has been withdrawn from circulation or its category has changed, not allowing use in accordance with the current agreement;
• the land became a state reserve;
• there is a ban on the privatization of this territory.

Is it possible to challenge a refusal?

The basis for refusal is specified in the written notice issued to the applicant. If he considers his rights to be violated, with this document he can challenge the refusal in court. In this case, the reason for the corresponding appeal should be taken into account.

If the tenant has completed construction and is denied further lease of the land plot, this is a direct violation of his rights, which can be successfully challenged in court. If the appeal is based only on the pre-emptive right to lease, and the land is out of circulation, the case will not be considered.

Another situation is if the tenant was denied an extension, but during the year the land plot was provided to another person. In this case, documents are also submitted to the court.

To appeal The claim is accompanied by a lease agreement, a copy of the application for renewal and a written refusal from the local government. Documents are submitted to the district court at the location of the land plot.

Renewal of the lease agreement means the extension of its terms for an indefinite period by virtue of clause 2 of Art. 621 Civil Code of the Russian Federation.

Extension of a contract (prolongation) - extension of its validity period for a certain or indefinite period by agreement of the parties.

The term “extension” is not used in the Civil Code of the Russian Federation, but is often used in legal practice when drawing up contracts as a synonym for the term “extension”. Prolongation is an extension of the validity period of an agreement, bill, loan, or credit.

Renewal of a contract by force of law

According to 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 and the lessor does not object to this, the contract is considered renewed on the same terms for an indefinite period.

Thus, in order to renew a lease agreement for an indefinite period, the law requires the simultaneous presence of two conditions:

— use of property after the expiration of the contract;

- absence of objections from the lessor.

Sometimes in practice, after renewing a contract for an indefinite period, the parties nevertheless enter into a new contract with similar conditions. If the new contract is subsequently recognized as not concluded, the question arises: is the renewed contract valid in this case? The answer to this question is important, in particular, when determining the continuous period of ownership and use of leased property by a small and medium-sized business entity for the further exercise by it of the preemptive right to acquire ownership of the property. In addition, resolving this issue is important, for example, if, when a new contract is recognized as not concluded, the lessor files a claim against the tenant for the return of the property due to the lack of grounds for possession and use of it. If the renewed contract is found to be valid, the claim for the return of property must be denied.

In judicial practice, there is an approach according to which if the parties renew an agreement for an indefinite period, and after it a new agreement is concluded, which is later recognized as not concluded, then the original agreement does not terminate. This approach is currently confirmed by the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, reflected in Resolution No. 1283/12 of September 25, 2012. In this regard, there is reason to believe that this approach will be followed by the courts when considering cases with similar circumstances.

However, in judicial practice there is an opposite approach, according to which the original lease agreement, concluded or renewed for an indefinite period, terminates if the new agreement is recognized as not concluded.

The parties may establish a ban on renewing the contract for an indefinite period. Courts generally allow the possibility of agreeing on such a condition in the contract. At the same time, there is a judicial act in which the court pointed out the imperative nature of the norm of Art. 621 of the Civil Code of the Russian Federation and the inability to establish in the contract a condition prohibiting its renewal.

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An example of a condition statement:

“Upon expiration of the contract, this contract cannot be renewed for an indefinite period.”

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It is necessary to take into account that the lease of state or municipal property is associated with the peculiarities of renewing the contract for a new term.

Extension (prolongation) of the lease agreement by agreement of the parties

The validity period of the agreement by virtue of clause 1 of Art. 450 of the Civil Code of the Russian Federation can be extended by the parties by concluding an additional agreement.

However, if the parties want to immediately determine their relationship for a future period, a condition for extending the contract for a new period can be included in the text of the contract when concluding it.

Moreover, if the parties stipulate that the agreement will be extended for a certain period, and do not indicate the number of times for which the extension is possible, the extension of the agreement will be considered a one-time extension, after which it will cease to be valid or will be renewed for an indefinite period in accordance with paragraph 2 of Art. 621 Civil Code of the Russian Federation.

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An example of a condition statement:

“Upon expiration of the contract, if neither party declares its termination, the contract is considered extended for six months.”

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In addition, due to the rules on freedom of contract (Article 421 of the Civil Code of the Russian Federation), the parties can agree that the contract is extended for a certain period each time after its expiration. Such a condition will mean that the contract is extended many times. In this case, you can indicate that an unlimited number of extensions is possible or that the contract can be extended, for example, no more than five times.

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Examples of condition wording:

“At the end of the validity period, the contract is extended each time for a similar period under the same conditions. Extension is possible an unlimited number of times.”

“Upon expiration, the contract is automatically renewed each time for one year, unless either party notifies the other party in writing of its termination no later than one month before its expiration. Automatic renewal of the contract is possible no more than _________ times.”

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It should be taken into account that the condition according to which the contract is extended for the same period and on the same conditions does not mean that after the extension it is considered concluded for an indefinite period. Under this condition, neither party will be able to withdraw from the contract on the basis of paragraph. 2 p. 2 art. 610 Civil Code of the Russian Federation.

The contract should establish that the condition for its extension is the absence of objections from both parties regarding the further continuation of the contractual relationship. If there is no possibility in the contract to raise such objections, the extension condition will oblige the lessor to constantly renew the contract and actually define the essence of the legal relationship under the contract as the transfer of property for indefinite use, which is contrary to Chapter. 34 Civil Code of the Russian Federation. By virtue of Art. 168 of the Civil Code of the Russian Federation, the condition on the mandatory extension of the contract upon expiration of its validity period may be declared invalid by the court as violating the requirements of the law.

Based on paragraph 1 of the said article, this condition is, as a general rule, voidable. The law may provide for other consequences not related to the invalidity of a transaction, as well as exceptions to the general rule of contestability. Such an exception, in particular, is the provision of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation, according to which a transaction that does not comply with the requirements of the law and at the same time encroaches on public interests or the rights and legally protected interests of third parties is void unless it follows from the law that such a transaction is contestable or other consequences of the violation not related to invalidity.

This rule applies to contracts concluded after September 1, 2013 (Part 6, Article 3 of Federal Law No. 100-FZ of May 7, 2013).

For lease agreements concluded before this date, Art. 168 of the Civil Code of the Russian Federation as amended before the entry into force of Federal Law dated 05/07/2013 N 100-FZ. According to this article, transactions (conditions) that violate the requirements of the law or other legal act are, as a general rule, void.

In addition, the court may qualify the condition for the mandatory extension of the contract upon expiration of its validity period as void by virtue of Art. 168 Civil Code of the Russian Federation.

A period before the expiration of the contract during which such objections can be raised should also be agreed upon.

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An example of a condition statement:

“This agreement comes into force on 02/01/2011 and is valid until 12/31/2011. If a month before the expiration of the contract the parties have not submitted any objections, it is considered extended for the next calendar year under the same conditions.”

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When including a condition for its extension in the contract, it should be taken into account that if the wording is used according to which, upon expiration of the validity period, the contract is considered renewed on the same terms for the same period, this condition may be considered inconsistent with paragraph 2 of Art. 621 of the Civil Code of the Russian Federation, which provides for the possibility of renewing the contract only for an indefinite period. At the same time, there is a position of the courts, according to which agreement on the terms of the renewal of the contract for a certain period is allowed.

It should be taken into account that when leasing state or municipal property, there are features of extending the contract.

If the condition for the extension (prolongation) of the contract is not agreed upon

In this case, the tenant will not be able to use the property after the expiration of the contract if the lessor objects to the extension of the lease relationship (Article 621 of the Civil Code of the Russian Federation).