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Lecture notes, cheat sheets
Civil law. A special part. Residential tenancy agreement and other housing obligations (most important)
Directory / Lecture notes, cheat sheets Table of contents (expand) Topic 4. LEASE AGREEMENT AND OTHER HOUSING OBLIGATIONS 4.1. Residential lease agreement In accordance with paragraph 1 of Art. 671 of the Civil Code, under a residential 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. The lease agreement for residential premises is consensual, paid, bilateral. The Civil Code highlights a contract for social rental of residential premises, which can be concluded along with the so-called commercial rental agreement for residential premises and a contract for the rental of specialized residential premises. A contract for social rental of residential premises is concluded when renting residential premises in the state and municipal housing stock for social use, an agreement for commercial rental of residential premises - when renting out housing for the purpose of generating income, a contract for renting specialized residential premises - when renting office premises, residential premises in a hostel and other residential premises of specialized housing stock (Article 92 of the LCD). A social tenancy agreement can only be concluded for a dwelling that is part of the social use fund, and if a citizen has the necessary prerequisites for its conclusion, which include: recognition of a citizen in the prescribed manner as a poor person or his belonging to another category of citizens who, in accordance with with the law, residential premises are provided under social tenancy agreements; the need for housing; the state of registration of those in need of residential premises provided under social rental agreements, with the exception of cases established by the LCD; the presence of a decision of the local government on the provision of housing to this citizen and his family in accordance with applicable regulations. A commercial lease agreement is concluded entirely on the basis of the principle of freedom of contract, i.e. its conclusion depends on the discretion of the parties, who themselves determine its most important conditions: the term of the contract, the amount and procedure for paying a fee for renting a dwelling, the distribution of responsibilities for the repair of a leased dwelling, etc. Both commercial and social employment contracts are concluded in writing (Article 674, clause 3 of Article 672 of the Civil Code). Failure to comply with this form of the contract does not entail its invalidity, except for the cases specified in the law or in the agreement of the parties (clauses 1, 2 of article 162 of the Civil Code). The term of the contract is determined differently for commercial and social contracts, and this is one of their main differences. In accordance with paragraph 1 of Art. 683 of the Civil Code, a commercial lease agreement is concluded for a period not exceeding five years. However, the period is not an essential condition of this agreement, since if it is not defined in the agreement, then the agreement is considered concluded for five years. An agreement concluded for a period of up to one year is recognized as short-term, and it is not subject to the provisions of paragraph 2 of Art. 683 of the Civil Code, rules relating to a contract with a term of more than one year. In particular, such an agreement is not subject to the rule on the pre-emptive right of the employer to conclude an agreement for a new term (part 1 of article 684 of the Civil Code). Upon the expiration of the contract for the commercial rental of residential premises, with the exception of the case indicated above, the tenant has the pre-emptive right to conclude a contract for a new term. Not later than three months before the expiration of the contract for the commercial rental of residential premises, the landlord must offer the tenant to conclude an agreement on the same or other conditions or warn the tenant of the refusal to renew the contract in connection with the decision not to rent out the residential premises for at least one year. If the landlord has not fulfilled this obligation, and the tenant has not refused to renew the contract, the contract is considered extended on the same conditions and for the same period (part 2 of article 684 of the Civil Code). In contrast to a commercial tenancy agreement, in relation to a social tenancy agreement, the law does not limit its validity period, as a result of which the social tenancy agreement is open-ended. The parties to a residential lease agreement are the landlord and the tenant. The landlord in both types of lease is the owner of the dwelling or a person authorized by him. Only a citizen, an individual, can be a tenant, since a dwelling, as indicated in paragraph 1 of Art. 671 of the Civil Code, is provided "for living in it." Usually, one citizen (individual) acts as a tenant in a commercial lease agreement. However, a plurality of persons on the side of the employer is also possible. Citizens permanently residing with the tenant may, by notifying the landlord, conclude an agreement with the tenant that they all bear joint and several liability to the landlord together with the tenant. In this case, such citizens are co-tenants (paragraph 4 of article 677 of the Civil Code). When concluding a contract for the commercial rental of residential premises, the citizen himself determines who will live with him in the premises he has rented. Such persons may also be citizens who are not his spouse or relatives. However, the tenant does not have the right to arbitrarily settle in the living quarters provided to him everyone he wants. In accordance with paragraph 2 of Art. 677 of the Civil Code, in a commercial lease agreement, citizens permanently residing in a residential building together with the tenant must be indicated. In the absence of such indications in the contract, the settlement of these citizens is carried out only with the consent of the landlord. After the conclusion of a contract for the commercial rental of residential premises and the initial determination of the persons who will live with the tenant, the settlement of other citizens as permanent residents with the tenant is possible only with the consent of the landlord, the tenant and citizens permanently residing with him at the moment. When moving in minor children, such consent is not required (Article 679 of the Civil Code). Citizens permanently residing together with the tenant have equal rights with him to use the premises. Relations between the employer and such citizens are determined not by themselves, but by law (paragraph 2, clause 2, article 677 of the Civil Code). At the same time, persons permanently residing with the tenant are not directly in legal relations with the landlord regarding the use of the residential premises. In this regard, for the commission of actions by them that violate the terms of the contract, the employer is responsible to the landlord (paragraph 3 of article 677 of the Civil Code). The exception is cases when these citizens are co-tenants. If the dwelling belongs to the municipal housing stock, then the landlord is a local government body or a municipal housing maintenance organization. In cases of renting out a dwelling that is part of the state housing stock, the landlord is a state enterprise or institution on whose balance sheet this dwelling is located, or a housing maintenance organization created by them. The tenant at the conclusion of the contract of social rental of residential premises is a citizen who was provided with residential premises in accordance with the established procedure. After the conclusion of the contract, it is possible to replace the tenant with another capable family member, for example, in the event of the tenant leaving the given dwelling, his death (Article 82 of the LC). In addition to the tenant, members of his family also have the right to permanent use of residential premises under a social tenancy agreement. All other persons can only live with the tenant as temporary residents. The LC (Part 1, Article 69) defines, firstly, persons who are family members, and, secondly, persons who can be recognized as family members. The family members of the tenant of a dwelling under a social tenancy agreement include his spouse living together with him, as well as the children and parents of this tenant. Other relatives, disabled dependents are recognized as members of the employer's family if they are moved in by the employer as members of his family and run a common household with him (joint expenditure on food, purchase of things, payment for the use of an apartment, etc.). In exceptional cases, other persons may be recognized as family members of the tenant of residential premises under a social tenancy agreement in a judicial proceeding. If a person has ceased to be a member of the family, but continues to live in a residential building occupied under a social tenancy agreement, he retains the same rights as the tenant and members of his family have. The specified citizen is independently responsible for his obligations arising from the relevant social contract of employment (in particular, the former spouse of the employer or the spouse of a family member in the event of divorce). The tenant has the right to move his spouse, his children and parents into the residential premises occupied by him under a social contract of employment, having received the written consent of all adult members of his family, including those temporarily absent. For the tenant to move into such a dwelling of other citizens as members of his family living together with him, the consent in writing of the landlord is also required. The consent of the other members of the tenant's family and the consent of the landlord is not required to move in with the parents of their minor children (part 1 of article 70 of the LC). According to paragraph 2 of Art. 672 of the Civil Code, members of his family living under a social tenancy agreement together with the tenant enjoy all the rights and bear all obligations under the tenancy agreement on an equal basis with the tenant. It follows from this rule that all of them are co-tenants under this agreement, in connection with which it is possible to terminate the contract for renting a dwelling separately with each of them (for example, if one of the members of the tenant's family leaves for another permanent place of residence). In relations with the landlord in social hiring, the tenant acts as a representative of his family members by virtue of the law (clause 1, article 182 of the Civil Code). The subject of commercial and social lease agreements is an isolated residential area. A premise is recognized as residential if it meets the established sanitary, urban planning, technical and fire safety requirements and is intended for citizens to live in all seasons of the year. The house in which the rented premises are located must be registered as residential at the technical inventory bureau or other authorized body. The residential premises to be rented must be isolated, i.e. be a residential building, apartment, part of a house or part of an apartment with a separate entrance. A part of a room or a room connected to another room by a common entrance (adjacent room) cannot be an independent subject of a lease agreement. Adjacent rooms as a whole can be the object of one lease agreement (adjacent-isolated rooms). The object of a commercial lease may be a residential area, regardless of its size. As for the quality of the residential premises rented out under such an agreement, it must comply with the concept of "premises suitable for permanent residence" (clause 1 of article 673 of the Civil Code). The suitability of a dwelling for living is determined in the manner prescribed by housing legislation (paragraph 2, clause 1, article 673 of the Civil Code). The category unsuitable for habitation currently includes basements and semi-basements, premises without natural light, barracks, emergency houses, etc. Such premises cannot be the object of a lease agreement. Utility rooms cannot be an independent object of a commercial lease agreement. However, when renting an apartment, house, part of the house, they are part of the object of the contract. If part of the apartment is rented out (a room or several rooms), the utility rooms will be in common use by all tenants, i.e. constitute a common object. The landlord, under a residential lease agreement (both commercial and social), is obliged to provide the other party-tenant with a residential space for living in it (paragraph 1 of article 671 of the Civil Code). The obligations of the landlord under a commercial lease agreement are defined in Art. 676 GK. The landlord is obliged to transfer to the tenant a free living space in a condition suitable for habitation. In addition, he is obliged to carry out the proper operation of 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 that the common property of the apartment building and devices for the provision of communal services located in the residential premises are repaired. . The landlord of a dwelling under a social tenancy agreement is obliged to: ▪ transfer to the tenant residential premises free from the rights of other persons; ▪ take part in the proper maintenance and repair of common property in the apartment building in which the rented residential premises are located; ▪ carry out major repairs of the residential premises (the responsibility for carrying out routine repairs of the residential premises rests with the tenant - clause 4, part 3, article 67 of the Housing Code); ▪ ensure that the tenant is provided with the necessary utilities of adequate quality. In addition to those indicated, the landlord bears other obligations provided for by housing legislation and the contract for the social rental of residential premises (Article 65 of the LC). A specific feature of the right to living space, which distinguishes it from other rights in rem, is its target character. Residential premises are provided to the tenant for living in it, i.e. to meet his housing needs. Accordingly, it is not allowed to place trade enterprises, offices of legal entities in residential premises, use them for the production of industrial or other products, for warehouses, etc. The use of residential premises for other purposes may serve (subject to the conditions provided for by law) as a basis for terminating the contract for renting residential premises (paragraph 2, clause 4, article 687 of the Civil Code, clause 4, part 4, article 83 of the LC). However, according to part 1 of Art. 17 of the LCD allows the use of residential premises for the implementation of professional activities or individual entrepreneurial activities by citizens legally residing in it, if this does not violate the rights and legitimate interests of other citizens, as well as the requirements that the residential premises must meet. The tenant is obliged to ensure the safety of the premises and maintain it in proper condition. He is not entitled to reorganize and reconstruct the dwelling without the consent of the landlord. The most important duty of the tenant is the timely payment for the residential premises, and unless otherwise provided by the contract, the independent payment of utility bills (Article 678 of the Civil Code). One of the tenant's rights arising from a residential lease agreement is the right to sublease the rented residential premises. Under a residential sublease agreement, the tenant, with the consent of the landlord, transfers for a period part or all of the premises he has rented for use by the subtenant (clause 1, article 685 of the Civil Code). The tenant has the right to move into the premises not only sub-tenants, but also other persons - temporary residents (users). As the latter, relatives, acquaintances of the tenant and members of his family, etc. can move in. The legal status of temporary residents does not depend on the type of tenancy. To move in a temporary tenant, the permission of the tenant and citizens permanently residing with him, as well as prior notification of the landlord, are required. Temporary residents do not have an independent right to use the premises. The employer is responsible for their actions to the landlord. Temporary residents acquire, in accordance with the concluded agreement, the right to temporary use of the tenant's residential premises. The period of residence of temporary residents cannot exceed six months in a row (part 1 of article 680 of the Civil Code, part 2 of article 80 of the LC). It should, however, be noted that the current Rules for the registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation (clause 10), approved by Decree of the Government of the Russian Federation of July 17.07.1995, 713 No. 02.02.1998, the deadline for registration of citizens at the place of stay in residential premises that are not their place of residence has not been established. In addition, the limitation of the period of residence of temporary residents is contrary to the norms of the Constitution, since, as the Constitutional Court of the Russian Federation pointed out in its Resolution of 4 No. another place of temporary residence must be determined by the citizen himself, and its establishment by the state is unacceptable, since it means limiting the freedom of expression when choosing a place of residence. If the parties have agreed on the period of residence of temporary residents, they are obliged to vacate the premises at the request of the tenant or any citizen permanently residing with him, after this period, and if this period has not been agreed, no later than seven days from the date of presentation of such a requirement ( article 680 of the Civil Code). In the event of termination of the rental contract for residential premises, as well as in case of refusal of temporary residents to vacate the residential premises after the expiration of the period of residence agreed with them or the presentation of the above requirement, temporary residents are subject to eviction from the residential premises in a judicial proceeding without providing another residential premises (part 5 of Art. .80 LCD). The law (Article 82 of the LC) provides for the possibility of changing the contract of social rental of housing at the request of tenants uniting in one family, as well as by replacing the tenant in a previously concluded agreement with a capable member of his family (for example, a father wants to transfer the rights of the tenant to his son). In the latter case, to change the contract, the consent of the landlord and other family members of the person wishing to become a tenant is required. The considered types of changes in the tenancy agreement relate to social hiring. Changes to a commercial lease agreement are less fully regulated. According to Art. 686 of the Civil Code, in particular, it is possible to replace the tenant in a commercial lease agreement at the request of the tenant and other citizens permanently residing with him, and with the consent of the landlord by one of the adult citizens permanently residing with the employer. In cases of failure to reach an agreement between the relevant persons living in the residential premises to replace the tenant, as well as the disagreement of the landlord to such a replacement, it is possible to apply to the court for resolution of the dispute. As stipulated by Part 2 of Art. 678 of the Civil Code, the tenant is not entitled to reorganize and reconstruct the dwelling without the consent of the landlord. This rule also applies to a social contract of employment (paragraph 3 of article 672 of the Civil Code). In accordance with the principle of freedom of contract, by agreement between the parties to the contract for the commercial rental of residential premises, any of its conditions can be changed, with the exception of those that are imperatively established by law. For the obligation to rent a dwelling, the law provides for special grounds for its termination. The grounds for terminating the legal relationship of renting a dwelling include, first of all, the termination of the contract, which is possible at the initiative of both parties, the tenant or the landlord. The social tenancy agreement may be terminated at any time by agreement of the parties. The tenant of a dwelling under a social tenancy agreement has the right, with the consent in writing of the members of his family living together with him, to terminate the social tenancy agreement at any time. In the event that the tenant and members of his family leave for another place of residence, the contract for social rental of residential premises is considered terminated from the date of departure (parts 1 - 3 of article 83 of the LC). Termination of a social tenancy agreement at the request of the landlord is allowed in court in the following cases: ▪ failure by the tenant to pay for housing and (or) utilities for more than six months; ▪ destruction or damage to residential premises by the tenant or other citizens for whose actions he is responsible; ▪ systematic violation of the rights and legitimate interests of neighbors, which makes it impossible to live together in the same residential premises; ▪ use of residential premises for other purposes (part 4 of article 83 of the Housing Code). The consequence of termination of the tenancy agreement is the obligation to vacate the dwelling by the tenant and members of his family. This obligation may be performed voluntarily or by force. As the Constitution proclaims, no one can be arbitrarily deprived of housing (Part 1, Article 40). As a development of this provision, Art. 3 of the LCD provides that no one can be evicted from a dwelling or restricted in the right to use a dwelling, including the right to receive public services, except on the grounds and in the manner provided for by the Housing Code and other federal laws. The eviction of citizens from residential premises provided under social rental agreements is possible in the cases specified in Art. 85, 90, 91 LCD. The contract of social tenancy of premises can be terminated only in court (part 4 of article 83 of the LCD). In other cases (apart from the termination of the contract of social employment), eviction is also carried out in court. Upon termination of the contract of social rental of residential premises, the eviction of the tenant and members of his family from the residential premises occupied by them is allowed, as a rule, provided that the evicted persons are provided with another residential premises. The requirements for this room are defined by Art. 89, 90 LCD. As a general rule, a citizen and his family, when evicted from a premises occupied under a social tenancy agreement, must be provided with another comfortable living quarters. At the same time, the provided residential premises must be well-maintained in relation to the conditions of the corresponding settlement, equivalent in terms of total area to the previously occupied residential premises, meet the established requirements and be located within the boundaries of this settlement. If the tenant and members of his family living together with him occupied an apartment or at least two rooms before the eviction, the tenant accordingly has the right to receive an apartment or to receive a dwelling consisting of the same number of rooms in a communal apartment (parts 1,2 article 89 LCD). The eviction of citizens from residential premises with the provision of other comfortable residential premises under social rental agreements is allowed in the following cases: ▪ if the house in which the residential premises are located is subject to demolition; ▪ if the residential premises are to be transferred to non-residential premises; ▪ if the residential premises are declared unfit for habitation; ▪ if, as a result of major repairs or reconstruction of a house, the residential premises cannot be preserved or its total area decreases, as a result of which the tenant and his family members living in it may be recognized as needing residential premises, or increases, as a result of which the total area of the occupied premises residential premises per family member will significantly exceed the provision norm (Article 85 of the Housing Code). In accordance with Art. 90 of the LCD if the tenant and members of his family living with him for more than six months without good reason do not pay for housing and utilities, they can be evicted in court with the provision of another housing under a social tenancy agreement, the amount of which corresponds the size of the living quarters established for the settlement of citizens in the hostel. Eviction from a dwelling occupied under a social tenancy agreement without providing another dwelling is an exceptional eviction procedure, the use of which is allowed only in certain cases provided for by law (Article 91 of the LC). The basis for such eviction is a gross violation by the tenant or members of his family of legal norms. Such violations include: ▪ use of residential premises for purposes other than their intended purpose (for example, as a warehouse, brothel, etc.); ▪ systematic violation of the rights and legitimate interests of neighbors; ▪ mismanagement of residential premises, leading to its destruction. Since eviction is applied here as a sanction for the unlawful behavior of the tenant or members of his family, it is possible only if warning measures were taken against the violator, but they turned out to be ineffective (part 1 of article 91 of the LC). Citizens deprived of parental rights can also be evicted without providing other housing, if their cohabitation with children in respect of whom they are deprived of parental rights is recognized by the court as impossible (part 2 of article 91 of the LC). In case of commercial hiring, termination of the contract and eviction are allowed in exceptional cases, which are expressly specified in Art. 687 GK. Termination of a commercial lease agreement, as well as a social lease agreement, at the request of the landlord is possible only in court. According to paragraph 1 of Art. 687 of the Civil Code, the tenant has the right, with the consent of other citizens permanently residing with him, at any time to terminate the contract for the commercial rental of residential premises. However, in order to prevent the incurrence of losses for the person renting the premises, the law provides that the tenant is obliged to warn the landlord in writing three months in advance about the termination of the contract. If this condition is not observed, the landlord has the right to present the tenant with a claim for compensation for lost profits in the form of lost income from renting out the premises. A commercial lease agreement may be terminated in court at the request of the landlord in the following cases: ▪ failure by the tenant to pay for the residential premises for six months, unless a longer period is established by the contract, and in the case of short-term rentals - if the payment is not paid more than twice after the expiration of the payment period established by the contract; ▪ destruction or damage to residential premises by the tenant or other citizens for whose actions he is responsible. By a court decision, the tenant may be given a period of not more than a year to eliminate the violations that served as the basis for terminating the contract for the commercial rental of residential premises. If, within the period determined by the court, the tenant does not eliminate the violations committed or does not take all the necessary measures to eliminate them, the court, upon repeated appeal of the landlord, makes a decision to terminate the contract for renting a dwelling. At the same time, at the request of the employer, the court in the decision to terminate the contract may postpone the execution of the decision for a period of not more than a year (paragraph 4, clause 2, article 687 of the Civil Code). The contract for the commercial rental of residential premises can be terminated in court at the request of any of the parties to the contract if the premises cease to be suitable for permanent residence, as well as in the event of its emergency condition (paragraph 2, clause 3, article 687 of the Civil Code). If the tenant of the dwelling or other citizens for whose actions he is responsible use the dwelling for other purposes or systematically violate the rights and interests of neighbors, the landlord may warn the tenant of the need to eliminate the violation. If these violations continue after warning the landlord, the latter has the right to terminate the tenancy agreement in a judicial proceeding. In this case, in accordance with paragraph 4 of Art. 687 of the Civil Code, the above rules provided for in par. 4 p. 2 of the same article. Upon termination of the commercial lease agreement and the refusal of the tenant and other citizens permanently residing with him to voluntarily vacate the residential premises, these persons are subject to eviction from the residential premises on the basis of a court decision (Article 688 of the Civil Code). Features of relations arising from the hiring of residential premises of a specialized housing stock are defined in sec. IV LCD. 4.2. Residential exchange agreement A residential exchange agreement is an agreement under which one person who has the right to a residential premises undertakes to transfer the residential premises owned or occupied by him to another person, who in turn undertakes to transfer a certain residential premises in return. The exchange of residential premises between their owners (citizens or legal entities) is carried out not under an agreement for the exchange of residential premises, but under an exchange agreement, although taking into account the specifics of the subject of exchange. The rules governing the exchange of residential premises occupied under a social tenancy agreement are contained in Art. 72 - 75 LCD. Only the tenant acts as a party to the agreement for the exchange of such residential premises. The housing rights of members of his family living together with him, including those temporarily absent, are taken into account by the legislator, which provides for the obligatory giving of these persons consent to the exchange in writing. Members of his family living together with the tenant have the right to demand from the tenant the exchange of the residential premises occupied by them under a social tenancy agreement for residential premises provided under social tenancy agreements to other tenants and located in different houses or apartments. Several tenants can be participants in the residential premises exchange agreement, i.e. An exchange agreement can be both bilateral and multilateral. Exchanged residential premises can be located both in one and in different settlements on the territory of the Russian Federation. If an agreement on the exchange is not reached between the tenant of the residential premises under a social tenancy agreement and the members of his family living together with him, any of them has the right to demand the implementation of a forced exchange of the occupied residential premises in a judicial proceeding. At the same time, noteworthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account (Article 72 of the LC). In accordance with Art. 74 of the LCD, an agreement on the exchange of residential premises is concluded in writing by drawing up one document signed by the relevant tenants. The specified agreement is submitted by the tenants who have concluded it to each of the landlords with whom they have concluded social rental agreements for the exchanged residential premises in order to obtain consent to the exchange. The refusal of the landlord to give consent to the exchange may be challenged in court. The agreement on the exchange of residential premises and the consent of each landlord of the exchanged residential premises for the exchange are the basis for the termination of previously concluded and the simultaneous conclusion of new social tenancy agreements. Article 73 of the LC provides for cases in which the exchange of residential premises between tenants of these premises under social tenancy agreements is not allowed. The current legislation does not provide for the exchange of residential premises between tenants and owners of residential premises, between tenants of residential premises under social and commercial rental agreements, between tenants of residential premises under commercial rental agreements, and it is also expressly prohibited to exchange residential premises occupied under a contract for the rental of specialized residential premises ( part 4, article 100 of the LC), which implies that all of the listed types of exchange cannot be carried out. In addition, the exchange of residential premises occupied under commercial lease agreements would be contrary to the nature of the relationship that develops at the conclusion of such agreements between the tenant and the landlord. Author: Ivakin V.N. << Back: Rental, leasing, loan agreements (Lease agreement. Financial lease agreement (Leasing). Free use agreement (Loans)) >> Forward: Contract (Contract agreement. Household contract. Construction contract. Contract agreement for design and survey work. State or municipal contract for contract work for state or municipal needs)
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