It is not always possible for the tenant to pay the rent for the use of the premises on time. In such situations, much depends on the owner, who can show understanding or, conversely, demand the return of the debt in any way. In the second case, there is a risk that the landlord will keep the tenant's property and it is very important to know how to behave in such a situation. In this article, we will describe in detail what reasons may serve as the basis for such actions, and what are the features of the retention procedure.
○ Conditions and grounds for legal retention of tenant's property.
The possibility of retaining the property of the tenant is regulated by Art. 359 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).
- “The creditor who has a thing to be transferred to the debtor or to a person indicated by the debtor, has the right, in the event that the debtor fails to fulfill the obligation to pay for this thing or reimburse the creditor for the costs and other losses associated with it, withhold it until the corresponding obligation is executed (clause 1, article 359 of the Civil Code of the Russian Federation).
At the same time, it should be borne in mind that this article is dispositive, giving the parties to the agreement the opportunity to change the conditions by mutual agreement. Thus, a clause imposing a prohibition on withholding, regardless of its grounds, may be included in the contract.
Also, the possibility of retaining property is regulated by the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 (hereinafter referred to as the Letter).
- “The lessor has the right to retain the equipment belonging to the lessee that remains in the leased premises after the termination of the lease agreement, in order to secure the obligation of the lessee to pay the rent for this premises (paragraph 14 of the Letter).”
There are some features in the retention procedure when entrepreneurs act as parties to the transaction.
- “Detention of a thing can also be secured by claims, although not related to payment for a thing or reimbursement of costs for it and other losses, but arising from an obligation, the parties to which act as entrepreneurs (Part 2, Clause 1, Article 359 of the Civil Code of the Russian Federation).”
In accordance with this law, not only things are subject to withholding, but also circumstances for which timely payment was not made. Thus, the landlord can retain the property of the tenant, of which he is the owner. However, it should be borne in mind that the value of the thing must be proportionate to the debt.
○ Proportionality in retention.
Withholding is an incentive tool for the debtor to speed up payment. If he refuses to fulfill his payment obligations, the lessor has the right to sell the retained property. That is why it is extremely important that the value of these things is equal to the amount of debt. Otherwise, the landlord will receive more funds during the sale, which can be classified as fraud.
○ How to properly hold.
To make a withholding, you must first make sure that the lease agreement does not prohibit such an action. In addition, for a procedure to be recognized as legal, it must meet the following conditions:
- Produced only after the expiration of the contract.
- Accompanied by the preparation of an inventory of property or an act of retention.
- Assume notification of the tenant about the procedure.
Detention of things is carried out in the presence of witnesses (at least 2), who sign the drawn up document (inventory or act of retention). This document must be sent to the tenant by registered mail no later than 3 days after the act of retention. After doing necessary action the lessor retains the right to take things to a new place of storage, having previously notified the debtor about this.
○ When you can't apply a hold.
Regardless of the status of the parties to the transaction (legal or individuals) the restrictions to initiating a hold procedure are as follows:
- No contractual relationship between the parties.
- An unexpired contract.
- Deed of retention has not been drawn up.
- The tenant is not notified of the hold procedure.
○ Illegal retention and arbitrariness.
If the landlord holds the property of the counterparty illegally, we are talking about arbitrariness.
- “Arbitrariness, that is, unauthorized, contrary to the procedure established by law or other regulatory legal act, the commission of any actions, the legality of which is disputed by an organization or a citizen, if such actions caused significant harm (clause 1, article 330 of the Criminal Code of the Russian Federation).”
In this case, the law provides for the following types of punishment:
- Fine from 80 thousand rubles. or withholding a source of income for up to six months.
- Mandatory work (maximum 480 hours).
- Correctional labor (up to 2 years).
- Imprisonment (up to six months) (part 2, clause 1, article 330 of the RF Criminal Code).
If arbitrariness was committed with the participation of violent measures or a threat to use them, the types of punishment:
- Forced labor (up to 5 years).
- Arrest (up to six months).
- Imprisonment (up to 5 years).
In order to avoid litigation and reduce the risk of arbitrariness charges to zero, it is extremely important to comply with all conditions that ensure the legality of the retention of things.
✔ The lease agreement is terminated, the deed of transfer is signed.
AT this case it is necessary that the agreement does not contain a condition for the automatic extension of the transaction or, if it exists, there is a refusal of the tenant to prolong it. Participants may also terminate the agreement by mutual agreement. In such cases, the retention of property is legal if the deed of transfer is signed, and the tenant left the premises, leaving his belongings. It is the act of acceptance and transfer that makes it legal to retain property with the possibility of its export to another place of storage.
In this case, the landlord needs to draw up an inventory of the property or an act of retention in the presence of two witnesses and send it by registered mail to the tenant.
✔ The lease agreement has been terminated, the tenant has moved out, the deed of transfer has not been signed.
- “..the basis for the receipt of equipment in the possession of the owner of the premises is the tenant leaving this equipment in this premises after the expiration of the lease, that is, after the loss of the right to the corresponding premises (clause 14 of the Letter).”
Based on such a definition, the retention of property left by the tenant in this situation cannot be considered illegal. In this case, the lessor must also independently draw up an inventory of the property and send it by registered mail to the debtor. If these conditions are met, the retention will be recognized as lawful.
✔ The lease agreement is terminated, the tenant uses the premises.
If the agreement has expired, but the tenant continues to use the premises, there is no need to force the retention of his belongings. Such actions will be recognized as illegal and will entail liability, in accordance with the relevant legislative norms of the Criminal Code of the Russian Federation. In this case, you should make statement of claim with an eviction request.
✔ There is a court decision to terminate the lease agreement.
In the presence of such a document, it is necessary to wait for its entry into force, and then to carry out the deduction of the debtor's things. If you start acting earlier, this can be classified as arbitrariness and entail appropriate punishment. In this case, it is also necessary to send a lawsuit for forced eviction to the judicial authorities.
A mortgage may be established on the property specified in Article 5 of this Federal Law, which belongs to the pledgor by the right of ownership or by the right of economic management.
Mortgage of property withdrawn from circulation, property on which execution cannot be levied in accordance with federal law, as well as property in respect of which mandatory privatization is provided in accordance with the procedure established by federal law, or the privatization of which is prohibited, is not allowed.
If the subject of mortgage is property, the alienation of which requires the consent or permission of another person or body, the same consent or permission is required for the mortgage of this property.
Collateral Decisions real estate owned by the state and not secured by the right of economic management, are accepted by the Government Russian Federation or the government (administration) of a constituent entity of the Russian Federation.
The leasehold right may be subject to mortgage with the consent of the lessor, unless otherwise provided by federal law or the lease agreement. In the cases provided for by paragraph 3 of Article 335 of the Civil Code of the Russian Federation, the consent of the owner of the leased property or the person having the right of economic management is also required.
A pledge of immovable property is not a basis for releasing a person who acted as a pledgor under a mortgage agreement from fulfilling the conditions on which he participated in an investment (commercial) tender, auction or otherwise in the process of privatization of property that is the subject of this pledge.
The mortgage extends to all inseparable improvements to the subject of mortgage, unless otherwise provided by the agreement or this Federal Law.
The pledger may be the owner or a person to whom the subject of pledge belongs on the right of economic management and who has the right to dispose of the said property. The reason for this requirement is quite understandable. A pledge of property implies the possibility of its sale, which means that only a person who has the right to sell the relevant property can establish a pledge. A person who owns property on the right of economic management is not entitled to dispose of real estate without the consent of the owner 295 of the Civil Code of the Russian Federation), thus, a mortgage agreement can only be concluded with the owner of real estate or with his direct consent (clause 3, article 6 of the Mortgage Law). Russian legislation establishes other restrictions on persons who may act as mortgagors. For example, public research centers cannot transfer their assigned state property as a pledge (clause 11 of the Decree of the Council of Ministers of the Russian Federation of December 25, 1993 No. 1347 “On priority measures to ensure the activities of state scientific centers in the Russian Federation”)1.
As you know, the content of the property right is defined as a triad of rights (clause 1, article 209 of the Civil Code of the Russian Federation) - the right to own, the right to use and the right to dispose of one's property. The right of possession and use in relation to a thing may also be held by non-owners of the thing, for example, by a lessee or a pledge holder (in case of a pledge). However, only the owner has the right to make in relation to his
property, any actions that do not contradict the law and do not violate the rights of third parties1. With a pledge, the triad of the owner's powers takes on a truncated form. The pledgor may own the property, that is, actually possess and use it, as well as benefit from the property, the benefit for which it is intended. However, regarding the right to dispose, that is, to determine the legal fate of real estate, significant restrictions are introduced for the pledgor. Since the mortgagee in relation to the pledged property is the creditor, it is only possible, for example, to lease the property (commercial lease) or to carry out other administrative actions only by agreement with him.
Consequently, the pledgor is not entitled to dispose of his immovable property in an absolute manner. All the above rights and obligations of the mortgagor must be reflected in the mortgage agreement. It should be noted that in some cases, even the owner is not entitled to dispose of the property alone. Thus, in order for one of the spouses to make a transaction on the disposal of real estate or another transaction requiring notarization and (or) state registration, it is necessary to obtain a notarized consent of the other spouse, even if the property formally belongs to only one of the spouses. Otherwise, the transaction may be declared invalid at the request of the spouse, whose notarized consent was not obtained (clause 3, article 35 of the RF IC).
Happiness in marriage is a fragile thing, which at any moment can end in divorce and the most unprincipled division of property, in which each party often tries to snatch a bigger piece. Lawyers told the site "RIA Real Estate" instructive stories of the division of real estate between former spouses, and also instructed them how not to blunder and not lose their blood meters.
No shenanigans
A cruel joke with spouses during a divorce can be played by all sorts of frauds that they commit when selling or buying real estate. So, Dmitry Chernokaltsev, managing partner of the Corporate Solidarity company, shared an instructive story.
One entrepreneur from St. Petersburg saved up for an apartment in the city center. At the same time, funds from the sale of his wife's personal apartment, acquired by her before marriage, were also invested in her purchase, the expert says.
Wanting to get away from the tax on the sale of an apartment, the wife indicated the amount in the contract at 1 million rubles. Moreover, new housing in the center of the Northern capital was also bought according to the documents for 1 million rubles (the sellers also wanted to save on taxes), although, of course, it cost much more, and the husband paid for the significant difference. However, the new apartment was designed for his wife and daughter.
After some time, the marriage fell apart and the question arose about the division of property. Moreover, the ex-husband saw the court case as simple, since the wife's share in the apartment was acquired during the marriage, which means it is to be divided in half, says Chernokaltsev.
But the miserable spouse did not take into account the fact that the wife had an agreement on the sale of her one-room apartment in the suburbs of St. Petersburg for 1 million rubles and documents on the purchase of a new apartment on the same day for the same amount. It turns out that the new apartment was bought with the wife's funds from the sale of her personal apartment. The former spouse did not have any documents confirming his investments.
Here is exactly the situation when, wanting to save on taxes, they indicated an underestimated cost of the apartment, but at the same time one of the spouses deprived himself of the opportunity to prove that he had invested in it, explains Chernokaltsev. The second mistake was that he initially did not register a share in the ownership of the apartment, signing certain agreements with his wife. The expert urges the spouses not to agree to any fraud and documentedly protect their interests.
We share everything at once
Spouses can lose their share of jointly acquired property by simply “wrongly” divorcing.
During the marriage, the couple purchased two apartments, one of which was registered for the husband, the other for the wife. After the dissolution of the marriage, the spouses decided that everyone gets the apartment that is registered to him, and no legal support for such an agreement followed.
Five years after the dissolution of the marriage, the wife died, and the heirs were already preparing to enter into the inheritance. But then the ex-husband suddenly changed his mind and went to court with a lawsuit on the division of jointly acquired property, hoping to grab half of the apartment of the now deceased wife, to which he seems to be entitled, because there was no official division of property.
However, the court denied his claims on the grounds that the spouse did not live in the disputed apartment after the dissolution of the marriage, did not use it, did not pay utility bills, did not attempt to move into the apartment, and more than three years had passed since the dissolution of the marriage, that is, limitation period.
It is legally difficult to determine the beginning of this period when considering disputes over the division of jointly acquired property after a divorce, if more than three years have passed since the official divorce, Tamaz Mstoyan, lawyer at the Leontiev and Partners Law Office, notes.
Therefore, in order to avoid such litigation between former spouses, it is necessary immediately after the divorce to carry out the division of property, either through the court or by signing a "settlement" agreement on the division of jointly acquired property, the lawyer advises.
Loan apartment section
One of the most insidious, but typical stories of the division of property in a divorce is the division of credit housing, says Igor Vyalov, partner at the Shabarin and Partners law firm. The expert cites the following situation as an example.
The property was purchased by the spouses with borrowed funds. In the mortgage agreement, the husband was listed as the borrower, and the wife acted as a co-borrower. When the marriage was dissolved, the question arose - which of the spouses will retain the right to live in the apartment?
You can divide an apartment bought with mortgage funds during a divorce in several ways.
Firstly, spouses can amend the loan agreement by agreeing this step with the bank, replacing joint and several liability for the loan with the obligation of each of them for their part of the debt. Although, Vyalov admits, banks are usually extremely reluctant to take this step.
The second way is when a husband and wife, again after agreement with the bank, can re-register a mortgage loan for one of them. In this case, the second is exempt from loan payments, but loses the right to real estate.
Sometimes, according to the lawyer, there are situations when, for example, relatives allocate funds to one of the spouses for the initial mortgage payment.
But in this case, the actions for the transfer of such money must be correctly executed, either by drawing up a loan agreement indicating the amount and purpose of the funds, or a receipt for the transfer of money. This moment can also be written in the marriage contract, which, by the way, can be drawn up during the marriage. The absence of proper evidence confirming the use of personal money by the spouse in the transaction, entails the recognition of this property as the joint property of the spouses.
Protect the "square" from the wedding
Difficulties in the division of property by spouses also arise if they did not take care of protecting their "squares" at the time of the wedding. Vyalov recalls one of these stories.
The man inherited a country house from his parents. A few years later he married, and the house was completed, appropriate for the needs of a young family, already on jointly acquired funds. However, when the marriage was dissolved in court, the question of "sharing" arose, and the court recognized this house as joint property and made a decision on its division in equal shares between the spouses. This, of course, seemed to her husband an injustice.
However, Vyalov confirms that the personal property of each of the spouses can be recognized as joint property if it is established that investments were made in the house during the marriage, significantly increasing its value. For example, a major overhaul was made, reconstruction, re-equipment or other work was carried out.
Therefore, the lawyer advises the spouses to draw up a marriage contract at the time of marriage and immediately register in it all the real estate that is in the personal property of each of them.
She was married for 2 years, but lived together for 3 years. The husband changed the locks in the house and does not give me my things, and not just the property. It is impossible to agree with him on a voluntary division. What is the best way to divide property? His income was much more than mine, he is a director, and I work as an economist. In marriage, we bought a car, made repairs in the house, bought household appliances.
O.
Answer:
Hello.
If a ex-husband and the wife cannot reach an understanding and share what they have acquired in marriage, one should file a lawsuit in court.
The rules by which it is carried out are established by the Family and Civil Code of the Russian Federation.
Conducting a case in court involves the preparation and filing of a claim, participation in court hearings, presentation of arguments and evidence. After evaluating the arguments of the parties and the evidence presented, the court makes a decision, which indicates what exactly is transferred to the plaintiff and the defendant, and if it is impossible or inappropriate to divide equally, then it indicates the recovery of monetary compensation from one of the parties or establishes shared ownership of the property.
Actual. Division of property upon the death of a husband or wife:
How exactly to divide, that is, what and to whom to transfer, is proposed by the parties themselves. They should explain why it should be done that way and not otherwise. For example, both parties can demand that the car go to the other party, and she must be compensated. Then the court will incline to the arguments of the party that proves that the other party needs the car more, for example, that it was the latter who drove the car in marriage, continues to use it after the divorce, etc.
When paying compensation, the court must be guided by the current market price of the property.
Who and in what amount received income in marriage, legal value does not have.
Businessmen whose main activity is related to the rental of real estate often face a situation where the tenant has financial difficulties and is unable to pay the rent. Let's talk about how it is better for a merchant to behave in this case, and we will try to give some tips to reduce the risks for the lessor from the use of the property left by the tenant in his favor.
Almost every landlord is familiar with the situation when tenants are unable to pay rent. During a crisis, there are even more such situations, and many of them are associated with the termination of the tenant's activities. Let's consider this situation from a practical point of view and try to give some advice to reduce the risks for the landlord from the use of the property left by the tenant in his favor.
The legal relationship arising from the property left by the tenant can be considered from several positions. In the event that the tenant has unfulfilled obligations, we can talk about the possibility of retaining property (§ 4, Chapter 23 of the Civil Code of the Russian Federation). The tenant's belongings left in the rented premises may be considered as abandoned (Article 226 of the Civil Code of the Russian Federation). In addition, the lessor's actions with the lessee's property can also be qualified from the point of view of acting in someone else's interest without an order (Chapter 50 of the Civil Code of the Russian Federation). Let's analyze each of these bases in detail.
Tenant stopped paying rent
Let's analyze a typical situation for our days when the tenant stops paying rent. At the first stage, the parties will try to resolve this issue during negotiations, perhaps the tenant will be granted a deferment or installment plan for payment, a temporary discount will be made. If the situation does not improve, the landlord will seek to terminate this agreement. As a rule, for such a case, lessors provide for the possibility of unilateral refusal of their obligations arising from the lease agreement, in case of prolonged or repeated violations of the term for paying rent.
If such an opportunity is not provided for by the landlord, he finds himself in a rather difficult situation, since any of his actions in relation to the premises in this case will violate the law that protects the interests of the tenant even against the owner who leased the property to him. In fact, the landlord in this situation has only two ways - to go to court with a request to terminate the lease agreement or wait for the end of its term. Moreover, with regard to short-term contracts, given the time required for litigation, waiting may be a more preferable option. At the very least, it will be possible to save on legal costs.
In accordance with applicable law, the return of the leased property is provided in the same condition, with the exception of normal wear and tear, in which it was received. In relation to real estate, this usually means returning the premises free from the tenant's property. In case of early termination of contracts, situations when tenants return the premises improperly are quite common. That is, the tenant refuses to sign the acceptance certificate and does not vacate the premises from his property in a timely manner. In this case, he is already the violator of the contractual conditions. Since, from a legal point of view, the right of possession and use has already returned to the lessor, he has the right to actually take possession of his own property. In most cases, the landlord has a second set of keys. That is, from a technical point of view, access to the premises does not cause difficulties. From the point of view of proper recording of our actions, we recommend that the commission open the premises with the obligatory drawing up of the relevant act. In the act, among other things, the fact of the absence or presence of the property of the former tenant in the premises is recorded. After the discovery of this property, it is necessary to create an inventory commission, which will determine how much and what was left. All this is necessary to decide what to do with this property next. As we noted above, depending on the actual circumstances, the lessor determines whether he has the right to retain the tenant’s property until the moment he fulfills his obligations, whether he should regard the property as abandoned, or in the interests of the tenant, he can sell the property to pay off obligations under the lease agreement or transfer the property for storage third parties.
We hold property
In accordance with Art. 359 of the Civil Code of the Russian Federation, if the debtor fails to fulfill the demand for payment on time, the lessor has the right to retain things until the corresponding obligation is fulfilled. Thus, the right to withholding can be divided into general civil and special (entrepreneurial) ones. General civil - the right to keep an unpaid thing. For example, a dry-cleaner has the right not to return a coat belonging to him to the client until payment for the services specified in the contract. The special (entrepreneurial) right of retention is broader. So, if between the lessee and the lessor, in addition to the lease agreement, a supply agreement is also concluded, the lessor has the right to retain the goods to be transferred to the lessee until the lease is paid.
The creditor may retain the thing in his possession, despite the fact that, after this thing came into his possession, the rights to it were acquired by a third party. That is, the sale of all the property remaining in the office in this case cannot help the tenant to rescue the property belonging to him.
For legal retention, three conditions must be met:
- the property must be with the creditor (in our case, this is the landlord) legally;
- the debtor (in our case, this is the tenant) must have overdue contractual obligations before the creditor
- the property must be owned by the tenant at the time the lien begins.
The tenant, having not exercised his right to export his belongings within the term of the contract, expressed his will by inaction. Therefore, we can say that the transfer of things from one person to another in this case occurs without violating the current legislation. However, two conditions must be met for this to happen. Firstly, the lease agreement must have already been terminated (at the end of the term or terminated), and secondly, the landlord should not have obstructed the removal of property during the term of the agreement. Otherwise, the actions of the landlord will be recognized as unlawful. The illegality of the retention automatically entails the need for damages. This confirms and arbitrage practice(for example, the decision of the FAS of the East Siberian District of October 08, 2012 in case No. A74-3263 / 2011).
Note that an unscrupulous tenant may in this situation abuse, for example, by retrospectively concluding a lease or safekeeping agreement for the property left in the rented premises.
By its nature, retention is a protective measure resorted to by the lessor in order to reduce the risks of default on the part of the debtor and protect itself from possible losses associated with improper performance of obligations. The terms during which the lessor may retain the debtor's property are not defined by law. However, the lessor merchant must understand that retention is a rather peculiar and far from ideal way to obtain proper performance of obligations from the lessee. First of all, the problem is that it makes sense to keep only what is of interest to the tenant. If the value of the property is obviously lower than the amount of the debt, or if the property, although comparable in value to the amount of the debt, has low liquidity and is not vital for further activities, the tenant has no economic interest in buying it out. And consequently, the landlord runs the risk of getting into his hands property that requires expenses for its maintenance, and a lawsuit against the tenant with an unclear result in relation to the final recovery.
Transferring to third parties
Retained property, as a rule, is kept by the lessor, although the current legislation does not prohibit transferring it to third parties for safekeeping. Moreover, in practice, the fact of storage does not exclude the possibility of using the property for its intended purpose. Together with the lack of time limits on retention, this can lead to the fact that the property will be in actual possession indefinitely. long term. Moreover, even if the tenant remembers this property later, he is unlikely to be able to recover any losses. Judges also adhere to this position (for example, the decision of the Federal Antimonopoly Service of the Far Eastern District of June 10, 2013 No. F03-2102/2013 in case No. A73-11952/2012).
Sell
More precisely, we are trying to sell. Because in this case we are faced with the basic problem of retention. This problem, in our opinion, lies in the cumbersome, complex and rather expensive method of recovering losses from retained property. In accordance with Art. 360 of the Civil Code of the Russian Federation, the claims of a creditor holding a thing are satisfied from its value in the amount and in the manner provided for satisfying claims secured by a pledge. Foreclosure on mortgaged property is a rather laborious process. It is possible in court and out of court. However, the satisfaction of the pledgee's claims at the expense of the pledged property without going to court (out of court) is allowed only on the basis of an agreement between the pledgor and the pledgee. Such an agreement may be concluded separately or included in the pledge agreement. The conclusion of an agreement implies the definition of the subject of the agreement, that is, the list of property subject to extrajudicial recovery. Therefore, the possibility of including an agreement on out-of-court foreclosure on the retained property in the lease agreement is controversial. In essence, this means that in practice, without the consent of the tenant, the landlord holding the property does not have the operational opportunity to either turn it in his favor or sell it to third parties. This requires compliance with a rather cumbersome procedure consisting of two stages. Firstly, going to court, and secondly, organizing the sale at public auction. All this takes time and additional financial costs. In addition, if the tenant begins to actively resist, that is, to participate in court hearings, challenge the assessment and use other rights granted to him by the current legislation, the process may be significantly delayed. However, even if this does not happen, and the owner does not show any interest in the fate of the retained property, in the most common cases (when office furniture or remnants of illiquid goods remain in the premises) this procedure fundamentally unprofitable. As a result, procedural costs will be greater than the amount that can be obtained from the sale of the tenant's property.
With regard to retention, we can draw the main conclusion: the retention of the tenant's thing by law enforcement practice comes down only to stimulating the debtor, inducing him to buy out his thing from the creditor. For this, there must be economic interest the debtor in possession of this very thing, otherwise the retention loses its meaning.
abandoned things
Withholding things, which we discussed above, from the position of the landlord is not the best course of action. This method is effective if the tenant is actively making contact and is interested both in the fulfillment of his obligations and in the fate of the retained property. And if this is not the case? Perhaps then a more effective policy would be to recognize things left on the premises as abandoned? At first glance, it is. On the one hand, in most cases, the value of the property left in the premises is not so great, that is, it is not required to go to court. At the same time, its usefulness for the landlord is highly doubtful. In addition, "abandonment" implies a complete refusal of the tenant from the left things. This may be expressed in the lack of response to repeated requests and letters, or it may be directly written in the tenant's response. In all cases, if the tenant shows his interest, there can be only one result - the property will have to be returned. In particular, this position is also reflected in the decision of the Eighth Arbitration Court of Appeal dated September 7, 2010 in case No. A46-1314 / 2010. Thus, the conversion of the property left by the tenant into the ownership of the lessor as abandoned has certain difficulties. First of all, in determining the status of things.
“6.17. The Landlord has the right to consider the Tenant's property left in the premises after the expiration of the lease term as abandoned, if the Tenant fails to notify in a timely manner of his interest in this property.
Actions in someone else's interest
This legal justification for the lessor's actions with the lessee's property located in the leased premises has certain gaps in terms of legal logic. The landlord is not a representative, does not fulfill the order, has not concluded either a commission agreement or an agency agreement with the tenant. The actions of the lessor with the abandoned property of the tenant, under certain circumstances, can be attributed to actions in the interest of others without an order. However, in this case there are a number of features, some of which are absent in the legal structure we are considering. So, in this case, it is assumed that the person in whose favor the actions are performed has legitimate interests. However, the landlord operates under conditions of uncertainty. With a “missing” tenant, the landlord cannot unequivocally determine either his intentions, or whether he has any interest in the property left in the premises, or his actual or probable intentions. One can only assume that the tenant, as the owner, has an interest in the -preservation of his -property.
The parties can partially remove this uncertainty by including an appropriate agreed term in the lease agreement.
“5.2.9. With regard to any goods or other property of the Lessee and / or any separable improvements that are not removed by the Lessee after the expiration of the Lease Term and in violation of clause 5.2.8 of this Agreement, the Lessor has the right to remove them from the premises and store them independently or transfer them to third parties.
All expenses incurred by the Lessor in the course of such removal and storage shall be reimbursed by the Lessee.
The main problem in this case, as with retention, is the assumption that the tenant has an interest in the property left by him. If there is no such interest, then the result will be the same as with the retention of property - additional expenses of the lessor without clear prospects for their reimbursement.
To minimize the risks in this case, it is possible to provide in the contract for the option of selling the abandoned property. In this case, if the tenant has a debt, the lessor withholds funds to pay off obligations from the funds received. - The rest is transferred to the tenant.
What's the best way to do it?
Many lessor merchants have a question: “What is the best thing to do if the tenant has disappeared and abandoned his property?”. This question is heard quite often. So, based on the established practice, we can recommend the landlord to include in the contracts provisions that define the property left by the tenant as abandoned. In particular, by providing for the provision in the lease agreement, which is given in Example 3.
“6.17. The tenant is obliged, within the time limits specified in this agreement, to take out the property belonging to him. All property left by the Lessee in the premises, after the expiration of the period for its removal, is considered abandoned by the Lessee, if he did not inform the Lessor in advance about the presence of his own interest in this property. The Lessor has the right, guided by the norms of the current legislation, to determine the fate of the property abandoned by the Lessee.
In cases of missing tenants, it is this provision that will help to avoid most of the issues that arise in such situations.