The type of contract concluded for the rental of residential premises. Residential lease agreement (concept, types, conditions, rights and obligations of the parties). Changing obligations from a social tenancy agreement

Under a commercial lease agreement one party - the owner or a person authorized by him (landlord) undertakes to provide the other party (tenant) with residential premises for a fee for possession and use for living in it during the period stipulated by the contract (clause 1 of article 671 of the Civil Code).

The difference between commercial hiring and social hiring:

commercial lease is an ordinary civil law contract concluded by agreement of the parties, which determines its essential conditions;
a social tenancy agreement formalizes the free distribution of publicly owned scarce housing among needy citizens.

That's why relations of commercial rental of housing are regulated not by housing, but by civil legislation.

To conclude a commercial lease agreement, no administrative and legal prerequisites are required in the form of a decision of an authoritative body, status on housing records, etc. None of the counterparties here is under an obligation to enter into contractual relations (the contract for the commercial rental of residential premises is not included in the number of public contracts).

When renting out commercial housing that is state-owned by some constituent entities of the Russian Federation, a decision of a certain executive authority is required. However, in this case, too, it represents the consent of the owner to conclude a contract for the commercial rental of housing belonging to him, and not an administrative-legal way of distributing it among needy citizens.

The legal nature of the commercial lease agreement:

consensual;
bilateral;
compensated;
urgent.

It must be enclosed in writing(Article 674 of the Civil Code), which, however, is not typical: here it is possible to include in the contract, by agreement of the parties, “random” conditions that are not typical for this contract, for example, a condition on the right of the tenant to use part of the land plot with an indication of its size and boundaries.

Parties to the commercial lease agreement:

1) the landlord;

Landlord- the owner of the dwelling (a person authorized by him, for example, his representative or the company managing this property of his), which may refer to any housing stock:

private
state,
municipal.

By general rule this is a premise that is part of a private housing stock, and the landlord here acts as an entrepreneur pursuing the goal of making a profit.

2) employer.

As employer In a commercial lease agreement, as a rule, one person acts ( individual). But the law also allows for a plurality of persons on the side of the employer (paragraph 1 of article 308 of the Civil Code). Citizens permanently residing with the tenant may conclude an agreement with him that they all bear joint and several liability to the landlord together with the tenant. A condition for concluding such an agreement is also notification of the landlord. In this case, such citizens are recognized as co-tenants, having equal rights and obligations with the tenant for the use of residential premises (paragraph 4 of article 677 of the Civil Code).

When renting for commercial rent housing located in the state or municipal housing stock, Sec. V "Rules for the use of residential premises", approved by Decree of the Government of the Russian Federation of January 21, 2006 No. 25 (clauses 22-25, devoted to the use of residential premises under a rental agreement for residential premises of state and municipal housing funds for commercial use).

Concluding a contract for the rental of residential premises on a commercial basis, the citizen himself determines who will live with him in the premises he rented. Among these persons may not be his relatives at all. Therefore, in relation to these relations, the law does not speak of “members of the employer's family”, but of “citizens permanently residing with him”.

In the commercial lease agreement in accordance with paragraph 1 of Art. 686 of the Civil Code, it is also allowed to replace the tenant at his request or at the request of citizens permanently residing with him (unlike a social contract of employment, in which such a replacement is allowed only at the request of a capable family member of the employer). In any case, the consent of the landlord is required to change the tenant. The refusal of the landlord to replace the tenant with another person in this situation cannot be challenged in court. However, in the event of the death of the tenant or his departure from the dwelling, the obligations of housing rent in accordance with paragraph 2 of Art. 686 of the Civil Code can be preserved if either one of the citizens living together with him (with the consent of the rest of the residents), or all of them become co-tenants (in the absence of such consent), takes the place of the tenant.

Obligatory relations from the contract of commercial employment

Obligatory relations from a commercial lease agreement are also preserved in cases of transfer of ownership of the occupied premises, since the new owner becomes a landlord on the terms of a previously concluded agreement (Article 675 of the Civil Code). Thus, it is possible to replace the landlord here as a result of the presence of a “right to follow” these “encumbrances” characteristic of property relations, including housing rent (lease), for property relations on leased property.

By agreement between the parties commercial lease agreements any terms and conditions are subject to change. unless there is a violation of the mandatory norms of the law. The absence of a detailed regulation of the change in commercial lease relations by law is explained by the fact that here the relations of the parties in accordance with the principle of freedom of contract are determined mainly by their agreement.

After the expiration of the concluded agreement commercial lease, the tenant is recognized as having the pre-emptive right to conclude it for a new term. The implementation of this right involves certain actions of the landlord (Article 684 of the Civil Code). Not later than three months before the expiration of the contract, he is obliged either to offer the tenant to conclude an agreement on the same or other conditions, or to warn the tenant about the refusal to extend the contract in connection with the decision not to rent out the premises for at least one year.

Failure by the landlord to fulfill this obligation (in the absence of the tenant's refusal to renew) entails the following consequence: the contract is considered extended on the same terms and for the same period. Certain consequences are also provided for in case the landlord fails to comply with his decision not to rent out the premises during the year used by him to refuse to renew the contract: the tenant has the right to demand the invalidation of the contract concluded by the landlord with another person, and (or) compensation for damages caused by the refusal to renew with him agreement (part 4 of article 684 of the Civil Code).

Termination of obligations from the contract of commercial rental of residential premises

Contractual obligations of commercial rental of housing are terminated:

after the expiration of the contract;
by unilateral decision of the employer;
at the request of either party (in court).

The contractual obligations of the commercial rental of housing are of an urgent nature and therefore terminate first of all upon expiration the terms of the contract on the basis of which they arose. By agreement of the parties, they, of course, can stop earlier.

In addition, the commercial lease agreement can be terminated at any time. by unilateral decision of the employer. At the same time, it is not required to explain the reasons for such a decision, the employer is not obliged to compensate for the lost profit caused by the unilateral termination of the contract. However, the tenant must notify the landlord in writing three months in advance of terminating the contract. If this condition is not observed, the landlord has the right to present to the tenant, as the party in breach of the contract, a claim for compensation for lost profits in the form of lost income from renting out the premises.

Principles for terminating a commercial lease agreement:

The principle of judicial dissolution(upon termination of the contract of commercial employment at the request of either party, including - and especially - at the request of the landlord, paragraphs 2 and 3 of Art. 687 GK).
The principle of limiting state interference(law) in relation to the parties through imperative rules (especially rules providing grounds for termination of the contract at the request of one of the parties).
The principle of sustainability of the right to use residential premises, characteristic of social tenancy relations (in case of commercial tenancy, early termination of the contract and eviction are also allowed in exceptional cases, which are directly named in Article 687 of the Civil Code. At the same time special meaning given to taking steps to avoid eviction. It can only be applied after exhausting all possibilities provided by law).

At the request of either party A commercial lease agreement may be terminated by a court order:

if the premises cease to be suitable for permanent habitation,
in the event of an emergency condition of the premises (clause 3 of article 687 of the Civil Code).

Housing legislation may provide for other cases of such termination of this agreement, but so far they have not been established, since housing legislation practically does not regulate the obligations of commercial rental of housing.

At the request of the landlord A commercial lease agreement may be terminated by a court in the following cases:

non-payment by the tenant of payment for residential premises for 6 months, unless a longer period is established by the contract, and in case of short-term hiring - in case of non-payment of payment more than two times after the expiration of the payment period established by the agreement;
destruction or damage to the dwelling by the tenant or other citizens for whose actions he is responsible;
use of residential premises by the tenant or other citizens, for whose actions he is responsible, for other purposes;
violations by the tenant or other citizens, for whose actions he is responsible, of the rights and interests of neighbors (clauses 2 and 4 of article 687 of the Civil Code).

In the conditions of termination of the commercial lease agreement in cases of non-payment by the tenant of the payment for housing, the entrepreneurial nature of this type of rental of residential premises is especially clearly reflected. The landlord, who expects to receive income from renting an apartment (often this income is a source of livelihood for him), is interested in breaking off relations with the non-payer and renting the apartment to another tenant.

At the same time, when regulating the termination of a commercial lease agreement, the law, as follows from Art. 687 GK, views the employer as a weak point and provides for a number of benefits and benefits. If the landlord makes a demand to terminate the contract due to destruction or damage to the residential premises by the tenant or other citizens for whose actions he is responsible, the court may, instead of terminating the contract, decide to give the tenant a period (no more than a year) to eliminate these violations. If the violations are not eliminated within the time period set by the court, the court, when reconsidering the landlord's claim, will have to make a decision to terminate the contract. But even in this case, the court may, at the request of the employer, postpone the execution of the decision for a period of not more than a year (paragraph 2, clause 2, article 687 of the Civil Code).

The interests of the tenant are also ensured in the event of termination of the contract and eviction of him and other citizens for whose actions he is responsible, if they use the premises for other purposes or systematically violate the rights and interests of neighbors. In such cases, the landlord first warns the tenant about the need to eliminate violations, and this stage is mandatory for the landlord who decides to terminate the contract (paragraph 4 of article 687 of the Civil Code). At the same time, the benefits discussed above apply to the employer: the provision by a court decision of a period (no more than a year) for the elimination of violations and a delay, by a court decision, of his decision to terminate the contract for a period of not more than a year.

Chapter 35 of the Civil Code of the Russian Federation is devoted to the tenancy agreement. A residential lease agreement is an agreement by virtue of which one party, the owner of a residential premises or a person authorized by him (landlord), undertakes to provide the other party (tenant) with residential premises for a fee for possession and use for living in it (Article 671 of the Civil Code of the Russian Federation) . A residential lease agreement is an independent agreement that was separated by Soviet law from a property lease agreement. The qualifying features of this agreement are its subject - an isolated room, which is real estate and suitable for permanent residence of citizens (clause 1, article 673 of the Civil Code of the Russian Federation, article 15 of the LC RF), and only a citizen can act on the side of the employer (clause 1, article 677 of the Civil Code of the Russian Federation). Residential premises may be provided to legal entities for possession and (or) use on the basis of a lease agreement or other agreement (clause 2, article 671 of the Civil Code of the Russian Federation).

The legislator distinguishes between the actual contract of employment, which in the legal literature is called a contract of commercial employment, and a contract of social employment. A social tenancy agreement is concluded in relation to residential premises of the state and municipal housing stock for social use, a commercial lease agreement, as a rule, in relation to residential premises of a private housing stock. The contract of social employment is of an unlimited nature and provides citizens with a permanent place of residence on a long-term basis. A commercial lease agreement is concluded for a period not exceeding 5 years. Litovkin V.N., Commentary on the Housing Code Russian Federation(item-by-item). M .: TK "Velby", publishing house "Prospect", 2005.

A feature of the contract for renting a dwelling is that the rights arising from it (and under a social contract and obligations) are borne by citizens who did not take part in the conclusion of the contract, but live together with the tenant (with the exception of short-term employment up to one year). Such citizens can live in a residential building from the moment the contract is concluded, while they must be listed in the contract, or they can later be moved into a residential building, as a rule, with the consent of the landlord. Svit Yu.P., Housing Law: Proc. allowance / Resp. ed. V.P. Mozolin. Moscow: Jurist, 2005.

CONCLUSION: Based on the foregoing, we can conclude that the Civil Code and the Residential Complex “provide for ample opportunities to meet the housing needs of Russian citizens, including on the basis of contracts for commercial and social rental of residential premises.”

A residential lease agreement is the main contract by which residential premises are transferred for use, namely, for temporary paid possession and use.

The special importance of meeting this particular need of citizens was emphasized by the Constitution of the Russian Federation in Ch.

2 (“Rights and freedoms of man and citizen”), which proclaims that everyone “has the right to housing” (part 1, article 40). Implementing this constitutional law involves the empowerment of a citizen with the right to own and use residential premises. To do this, a citizen has two options: either to become the owner of a dwelling, or to acquire the appropriate rights on the basis of an agreement with the owner (authorized person). In both cases, there is a need to establish a special legal regime for relations that develop over objects such as residential premises.

The Civil Code of the Russian Federation (Chapter 35) distinguishes two types of contract of employment. In theory, they are called commercial and social.

It should be noted that Chapter 35 of the Civil Code of the Russian Federation is primarily aimed at regulating relations related to commercial hiring.

Under a residential lease agreement, one party - the owner of the residential premises or a person authorized by him (landlord) - undertakes to provide the other party (tenant) with residential premises for a fee for possession and use for living in it.

Residential buildings, apartments in multi-apartment residential buildings, as well as isolated living rooms in houses or apartments can be objects of a residential lease agreement.

Compared with similar relations in single-apartment houses, the relations of hiring in multi-apartment buildings are more diverse, since the objects of law here are not only residential premises, but also other property located in these houses. For the first time, this circumstance was enshrined in Art. Art. 290 and 673 of the Civil Code of the Russian Federation. Such property of the Civil Code of the Russian Federation includes the supporting structures of the house, mechanical, electrical, sanitary and other equipment outside or inside the apartment, serving more than one apartment.

Based on the nature of this housing stock and the peculiarities of the tenancy relations of the residential relations included in it, the Civil Code of the Russian Federation establishes a general rule according to which a tenancy agreement is concluded on the grounds, on the conditions and in the manner provided for by housing legislation (clause 3 of article 672).

Firstly, for such agreements a written form is provided (Article 674 of the Civil Code of the Russian Federation). It is important to note that non-compliance writing this agreement does not entail its invalidity. According to Art. 162 of the Civil Code of the Russian Federation, this circumstance deprives the parties of the contract of the right to refer to evidence of the transaction and its conditions, but does not deprive them of the right to provide written and other evidence. In addition, unlike the main part of transactions with housing, residential lease agreements are not subject to state registration.

Secondly, the preservation of the lease agreement is guaranteed during the transfer of ownership (Article 675 of the Civil Code of the Russian Federation), economic management or operational management. In the event of alienation by the owner (the owner of the right of economic management or operational management) of the residential premises, the landlord becomes the acquirer before the end of the contract on the same terms as the previous owner.

In case of violation of rights by the new landlord, in accordance with Art. 305 of the Civil Code of the Russian Federation, the tenant has the right to protect his possession.

Thirdly, it establishes the obligation of the tenant to use housing only for its intended purpose for living, to ensure the safety of the residential premises, to maintain it in proper condition, to pay it in a timely manner (clause 1 of article 671, article 678 and clause 1 of article 681 of the Civil Code RF).

Fourthly, the Civil Code of the Russian Federation approaches the formation of the obligations of the landlord in a differentiated way. Thus, along with the general duties,

applicable to any residential premises, the regulation of hiring is separately allocated, where the object is apartments or isolated rooms in apartment buildings. General duties include, firstly, the regulation of the obligation to transfer free residential premises to the tenant and, importantly, in a condition suitable for living, secondly, unless otherwise provided by the contract, the obligation is to overhaul the leased residential premises. The special obligations of landlords of residential premises located in multi-apartment buildings should include the obligation to properly operate the residential building in which the rented residential premises are located, to provide or ensure the provision of the necessary utilities to the tenant for a fee, to ensure the repair of the common property of the multi-apartment building and devices, located in a residential area. It is also not allowed, without the consent of the tenant, to re-equip the residential building in which the rented residential premises are located, if such re-equipment significantly changes the conditions for using the residential premises (Article 676 and clause 2 of Article 681 of the Civil Code of the Russian Federation).

Fifth, in Art. 680 of the Civil Code of the Russian Federation, the right of the tenant and citizens permanently residing with him, with their mutual consent and notification of the landlord, to allow free accommodation for temporary residents (users) is fixed. At the same time, the Civil Code of the Russian Federation limits such a right for up to six months and compliance with the requirements of the legislation on the norm of living space per person. Temporary residents do not independent law use of the premises, the tenant bears all responsibility for their actions to the landlord.

Sixthly, the Civil Code of the Russian Federation regulates the right of the tenant to transfer all or part of the rented premises for use to the subtenant for a fee (Article 685). The sublease agreement is concluded with the consent of the landlord. For the delivery of housing provided under a social contract, the consent of the tenant's family members is required. Under the contract, the subtenant does not acquire an independent right to use the dwelling. The tenant remains liable to the landlord under the lease agreement. The conclusion of a sublease agreement is possible subject to compliance with the requirements of the legislation on the norm of living space per person.

When determining the procedure for the use of common property in residential premises occupied by citizens under a social tenancy agreement, there are two opposite positions. According to the first, the procedure for use cannot be determined, since the Housing Code of the Russian Federation does not contain the relevant rules of law that allow this to be done, in addition, Article 69 of the Housing Code of the Russian Federation contains an imperative rule on the equal rights of the tenant and members of his family to the occupied premises. According to the second point of view, it is possible to determine the procedure for using common property by applying the analogy of the law (Article 247 of the Civil Code of the Russian Federation).

In the theory of housing law, some authors identify another type of contract of employment - a contract for the rental of specialized residential premises. In our opinion, this contract should not be classified as an independent type of contract of employment, but as a subspecies of a social contract of employment. this agreement is of a social nature and is regulated by the LC RF; this agreement will be discussed in more detail in clause 1.7.8 of this section.

There are three statutory types of rental contracts:

A social tenancy agreement is an agreement concluded between representatives of the state or municipal housing stock and a citizen of the Russian Federation.
Specialized lease agreement - an agreement in which the object of the lease is a specialized premises.
Commercial lease agreement - an agreement in which the Landlord is presented as an entrepreneur and the premises are rented out for profit.

In all of these types of contracts, there are certain general trends and features. All of them regulate the relationship of hiring housing. For all of them, the parties are: on the one hand, the Landlord, who transfers the residential premises for use and for living, on the other hand, the Tenant, who accepts the premises for use and agrees to the terms of the contract.

From a legal point of view, these are bilateral, compensated contracts, since each party has its own rights and obligations, as well as living and using real estate provides for material compensation in the form of a monthly fee for living. Some exceptions are granted in relation to social tenancy agreements, for which a gratuitous transfer is provided and the Tenant may be exempted from paying for the use of such premises. All of the above contracts are of a consumer nature, since they are designed to satisfy a person's consumer needs for housing. All types of residential lease agreements can be executed in writing.

However, there are differences between these contracts.

Commercial lease agreements are regulated by the Civil Code of the Russian Federation, while specialized and social employment agreements are regulated by the Housing Code. Contracts for specialized and social hiring can only be concluded with a party that has a state or municipal housing fund. At the same time, the other party must have the necessary prerequisites for the possibility, according to the law, to conclude such agreements, namely, the citizen and members of his family must be recognized as poor citizens and in need of improved housing conditions, and must also stand in line for apartment registration.

Commercial lease agreements are civil law agreements in which the parties are free to independently determine the terms and conditions of the agreement.

1. Definition. A residential lease agreement is an agreement by virtue of which one party (landlord) undertakes to provide the other party (tenant) with residential premises for a fee for possession and use for living in it (Article 671 of the Civil Code of the Russian Federation).
2. Essence and meaning. Historically, renting a dwelling is a type of renting. As with renting, renting out a dwelling is the realization by the owner of the premises of his right to dispose of his property, and the rights of the tenant are an encumbrance of the dwelling when the owner changes. However further development led to such a separation of the tenancy agreement that the legislator does not even provide for the subsidiary application of the norms on the lease agreement to it.
The need for a separate legal regulation relations associated with the rental of housing is caused by their special social significance, which explains, for example, the preferential position of the tenant upon termination of the contract. At the same time, civil law, based on the principle of equality of arms, mainly regulates the commercial rental of residential premises. Only certain civil law provisions apply to a social tenancy agreement (in the state and municipal housing fund for social use), and in general, such an agreement is governed by the norms of housing law.
In turn, from housing law, for example, the requirements for the norm of the total area of \u200b\u200bliving premises per person were transferred to a residential lease agreement.
The independent nature of the relationship for renting housing is also due to the intended purpose of the dwelling. Therefore, legal entities cannot be tenants under a residential lease agreement - they are provided with residential premises under other agreements (lease), and use the premises entity should only be for the residence of citizens.
The tenancy agreement is:
- consensual;
- reimbursable;
- bilateral.
3. Subjects. The landlord may be the owner of the dwelling or a person authorized by him. Only a citizen acts as an employer.
Citizens permanently residing with the tenant (not necessarily family members!) Have equal rights with the tenant to use the premises. These citizens are called co-users.
4. Form. The lease agreement for residential premises is concluded in a simple written form.
5. Essential conditions and content. The subject of the lease is a residential property, which must be:
- isolated (an apartment in an apartment building, a residential building, part of an apartment or a residential building with a separate entrance);
- recognized as suitable for all-season residence in the manner prescribed by housing legislation.
The contract is concluded for a certain period. The maximum term of the contract should not exceed 5 years, in the absence of a condition on the term, the contract is considered concluded for 5 years. There are short-term (up to one year) and long-term (from one year to five years) employment. After the expiration of the term of the long-term contract, the tenant has the priority right to conclude a contract for a new term. In case of violation of its pre-emptive right, the tenant has the right to demand the recognition of the contract with the new tenant as invalid and (or) compensation for losses.
The payment for housing is established by agreement of the parties, but not higher than the maximum amount, if such is established in accordance with the law. Unilateral change in the size of the fee is not allowed as a general rule. Payment for housing is paid within the terms established by the contract, and if the terms are not established - monthly. Utility payments, unless otherwise provided by the contract, are not included in the payment for housing and are paid by the tenant independently.
The landlord is obliged to transfer to the tenant the possession and use of free (legally and actually) residential premises in a condition suitable for living.
The tenant is obliged to pay the rent for the premises in a timely manner and to vacate the premises upon termination of the contract.
Terms of use of the premises. The tenant is obliged to ensure the safety of the premises and maintain it in proper condition. As a general rule, the current repair of a dwelling is the responsibility of the tenant, and the overhaul is the responsibility of the landlord. Reorganization and reconstruction of residential premises without the consent of the landlord is not allowed. If the premises are located in a residential (including multi-apartment) building, then the landlord is obliged to carry out the proper operation of the house and ensure the provision of public services, ensure the repair of the common property of the apartment owners. Re-equipment of a residential building, if such re-equipment significantly changes the conditions for the use of residential premises, without the consent of the tenant is not allowed.
We rent. In case of long-term lease, the tenant, with the consent of the landlord, transfers, for a period not exceeding the term of the lease agreement, part or all of the premises rented by him for use by the subtenant, subject to the norms of living space per person. There are no requirements regarding the isolation of the sublease premises. The tenant remains responsible to the landlord under the tenancy agreement. The subtenant does not enjoy the pre-emptive right to conclude a contract for a new term. The contract of sublease of residential premises is real, paid, bilateral.
Relationships between co-users. Co-users must be specified in the long-term lease agreement. Co-users are not liable to the landlord: the tenant is responsible for their actions that violate the terms of the contract. Moving into a dwelling of other citizens for permanent residence is carried out with the consent of the landlord, tenant and all co-users. The consent of these persons is not required if the tenant or one of the co-users moves in minor children.
In case of long-term tenancy, with the consent of the landlord, the tenant may at any time be replaced by one of the adult co-users. In the event of the death or retirement of the tenant, his place is taken by one of the co-users with the consent of all other co-users.
Co-users may, by notifying the landlord, conclude an agreement with the tenant that all co-users are jointly and severally liable to the tenant under the agreement. In this case, co-users become co-tenants. In long-term employment, co-users will become co-tenants by virtue of law if, after the death (retirement) of the former employer, they cannot agree on which of them will become the new tenant.
Temporary tenants who live free of charge in residential premises for up to six months, settled by agreement of the tenant and all co-users with prior notice to the landlord, will not be co-users.
6. Termination. Termination of the contract, in addition to cases of expiration, is possible when it is terminated for the following reasons:
- at the request of the tenant with the consent of the co-users - at any time with a written warning of the landlord for three months;
- in a judicial proceeding at the request of any of the parties - if the premises cease to be suitable for permanent residence or are in disrepair;
- in court at the request of the landlord - if the tenant admits a delay in paying the rent for the premises (6 months for long-term and 2 months for short-term employment); in case of destruction or damage to the premises, when the tenant is responsible for this; with a prior warning to the tenant, if the premises are not used for their intended purpose or the rights and interests of neighbors are systematically violated, when the tenant is responsible for this.
When terminating a long-term lease agreement, the court may grant the tenant a period of not more than one year to eliminate the violations that served as the basis for terminating the agreement. If the tenant does not take the necessary measures within the allotted time, the contract is terminated by the court at the repeated request of the landlord. But even in this case, the court, at the request of the employer, may postpone the execution of its decision to terminate the contract for a period of not more than a year. The eviction of citizens who live in the premises at the time of termination of the contract (tenant, co-users, sub-tenants, temporary residents) is carried out only by a court decision on their eviction.