Termination of obligations from a commercial rental agreement for residential premises. Grounds for termination of a commercial tenancy agreement Difference between commercial tenancy and social tenancy

Conclusion of an agreement

The procedure for registration, grounds for termination, rules and obligations of the parties are regulated by Ch. 35 Civil Code.

For the conclusion there is no need to meet any conditions (presence labor agreement with the owner of the property, recognition as low-income), all that is needed is the desire of both parties and their mutual agreement on all points.

Mandatory items are:

1. Indication of participants (full name, passport details, documents confirming ownership, in case legal entity— registration information, name).
2. Subject of the agreement (Article 432 of the Civil Code) (characteristics of the premises, location address).
3. The period for which the DTC is concluded.
4. Amount and method of payment.
5. Rights and obligations of the parties.

Participants

When concluding an agreement, the party providing own housing (landlord) can be any entity civil law or an authorized representative (legal, individual, municipal authority).

The party to whom the premises for temporary residence are transferred (tenant) can only be an individual who is a citizen of the Russian Federation (Article 677, paragraph 1 of the Civil Code).

Legal entities cannot enter into DKN. A legal entity can accept residential premises for temporary possession and use only under a lease agreement, the terms of which are regulated by Ch. 34 Civil Code and have a number of significant differences.

In practice, there are situations when the owner of a residential premises signs a lease agreement with the tenant, trying to take into account all possible violations and thereby insure himself against possible troubles.

At the same time, he indicates himself as the lessor, and the tenant as the tenant. Which is essentially wrong. If any controversial situations, which can only be solved in judicial procedure, the court declares the document invalid. And that means the rights and obligations arising from it.

Item

The object of the DKN is a residential premises, which must be:

• isolated (house, part of a house, apartment, separate room in an apartment) Art. 673 Civil Code of the Russian Federation;
• meet fire and safety standards, meet sanitary and hygienic, technical, construction and other government requirements;
• have all living conditions (electricity, gas, water, heating).

In accordance with the specified requirements, for example, a country house or temporary shelter without electricity and water can be rented out only under a lease agreement.

Deadlines

The maximum period during which a DTC is considered valid is five years. In this case, it is long-term (Article 683 paragraph 1 of the Civil Code of the Russian Federation).

An agreement is short-term if it is concluded for a period of less than one year.

If the validity period is not specified, then the document is considered long-term.

With a short-term DTC, the employer has fewer rights than with a long-term agreement.

For example, with a short-term contract, the tenant does not have the advantage of renewing it for new term, and in the long-term it has (Article 684 of the Civil Code of the Russian Federation).

Payment for housing provision

The amount of remuneration for renting out housing, terms and method of payment are established by agreement of the parties, which is recorded in the document (Article 682 of the Civil Code of the Russian Federation). If the payment time is not specified, the money should be paid monthly (Article 682, paragraph 3 of the Civil Code of the Russian Federation). Change in unilaterally the amount of remuneration is prohibited by law.

The tenant, unless he and the landlord have reached a different agreement, pays independently public utilities, carries out routine repairs.

The person responsible to the landlord for compliance with the requirements is the tenant, with the exception of cases when the citizens living with him are co-tenants of the premises (responsibility will be joint). Moreover, they can make the decision to become co-tenants independently by informing the landlord.

The rules and obligations of the party are established by mutual agreement; violation of them entails termination of the contract and eviction of the violator.

Termination

The law allows the tenant to terminate the DKN at any time if the decision is approved by the persons living with him, and he notifies the landlord about this in writing three months in advance (687 clause 1 of the Civil Code of the Russian Federation).

The lessor cannot independently terminate the contract, even if there is a malicious failure on the part of the lessee to fulfill the terms.

Termination of the agreement is possible only by a court decision, presenting evidence of violations and warnings made by the landlord about the need for correction.

The grounds on which the owner can apply to the court for termination are set out in Art. 687 Civil Code of the Russian Federation:

Vacancy of premises

The landlord has several ways to resolve the situation regarding the eviction of the tenant.

1. File a claim in court. A sample application can be downloaded.

But you need to keep in mind that the landlord will have to;

• pay the state fee;
• incur legal costs;
• collect a package of documents and evidence;
• be prepared for what's to come court decision it may take up to 2 years in its favor. In case of a favorable outcome of the trial, initiation enforcement proceedings and the forced eviction of the tenant will also require some time.

Of course, the landlord can present the resulting debt and court costs for compensation, and most likely, the claim will be satisfied. But how soon and to what extent will they be collected? cash from a financially insolvent person is not known.

2. Try to negotiate with the tenant about an early voluntary eviction.

How to secure commercial hiring or imminent eviction?

To avoid negative consequences from renting out housing, the landlord should adhere to the following rules:

• Enter into an agreement for a period of less than six months. If the employer and the citizens living with him prove themselves to be good, the document can be extended for another six months, but not more than 11 months.
• Before formalizing obligations and handing over the keys to a residential premises, try to find out as much as possible about your potential tenant, degree of solvency, penchant for alcoholic beverages, and lifestyle. Based on the conclusions drawn, decide on the need to conclude an agreement.
• React immediately to the slightest violation of conditions. Find out the reason for their occurrence, strictly impose requirements for compliance with the prescribed points.

The tenant has the right, with the consent of other citizens permanently residing with him, to terminate the contract at any time with a written warning to the landlord three months in advance.

A rental agreement may be terminated in court at the request of the lessor 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 case of short-term rental, in case of failure to pay the payment 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. Mandatory compliance is required here pre-trial procedure dispute resolution - sending the employer an appropriate warning. If the tenant or other citizens for whose actions he is responsible, after warning, continue to use the premises for other purposes or violate the rights and interests of neighbors, the landlord has the right to terminate the rental agreement in court. In this case, the court may assign the employer a period of one year to eliminate the violations.

The rental agreement can be terminated in court at the request of any of the parties to the agreement if the premises are no longer suitable for permanent residence, as well as in the event of its emergency condition.

Further reading

1. Barinov N. A., Bevzyuk E. A., Belyaev M. A., Biryukova T. A., Baryshev S. A., Vakhrusheva Yu. N., Dolotina R.R., Elizarova N.V., Zakirov R. Yu., Zakharova N. A., Ivanishin P.Z., Morozov S. Yu., Mikhaleva T. N. Commentary on the Civil Code Russian Federation. Part two of January 26, 1996 No. 14-FZ (item-by-item) // [Electronic resource]. Access from SPS “ConsultantPlus” (date of access: 09/01/2016).

2. Voronetsky P. M.

3. Civil Code of the Russian Federation. Rent. Renting residential premises: Article-by-article commentary on chapters 34 and 35 / E. V. Vavilin, B. M. Gongalo, V. S. Yem and others; edited by P. V. Krasheninnikova. M.: Statute, 2014. 336 p.

4. Civil law: textbook / V. Yu. Borisov, E. S. Getman, O. V. Gutnikov and others; edited by O. N. Sadikova. T. 2. M.: CONTRACT, INFRA-M, 2007. 595 p.

5. Civil law: textbook: in 2 volumes / O. G. Alekseeva, E. R. Aminov, M. V. Bando and others; edited by B. M. Gongalo. T. 2. M.: Statute, 2016.

6. Voronetsky P. M. Commercial rental agreement for residential premises: problems legal regulation// Russian justice. 2015. No. 2. pp. 11–14.

7. Kirichenko O. V. Subject composition of a contract for the commercial lease of residential premises // Modern law. 2012. No. 5. pp. 99–104.

8. Kirichenko O. V. Termination, dissolution of a commercial lease agreement due to circumstances beyond the control of the parties // Modern law. 2013. No. 7. pp. 86–88.

9. Koryakin V. M. Non-commercial rental agreement for residential premises and its differences from social and commercial rental agreements // Law in the Armed Forces. 2012. No. 11. pp. 26–29.

10. Russian civil law: textbook: in 2 volumes / V. V. Vitryansky, V. S. Em, N. V. Kozlova and others; resp. ed. E. A. Sukhanov. 2nd ed., stereotype. T. 2: Law of Obligations. M.: Statute, 2011. 1208 p.

Chapter 6.
Grounds for acquiring residential premises into private ownership of citizens 110

1. Special grounds - unauthorized construction and acquisitive prescription

2. Gratuitous grounds

3. Compensatory grounds

4. Agreement on participation in shared construction

5. Housing cooperatives (housing complexes, housing cooperatives, housing cooperatives)

All reasons for acquiring residential premises into private ownership of citizens can be classified into three main groups.

1. By subject composition: general (purchase and sale, rent, construction) and special (privatization).

2. According to the origin of the right: initial (construction, equity participation) and derivative (purchase and sale, exchange, donation, rent, privatization).

3. By compensation: paid and gratuitous.

Gratuitous grounds include: contracts of donation and privatization of residential premises, as well as inheritance of residential premises.

Compensatory grounds include: purchase and sale agreement, exchange agreement, rent agreement, agreement of participation in shared housing construction, participation of citizens in housing, housing construction and housing savings cooperatives, individual housing construction.

In addition, it is customary to classify into a special group such grounds for acquiring ownership of housing as unauthorized construction and acquisitive prescription.

Special grounds

Unauthorized construction

An unauthorized construction is real estate including a residential building built or created on a land plot, the permitted use of which does not allow the construction of this object on it, or created without obtaining the necessary permits for this or in violation of town planning and building codes and rules.

The person who carried out the unauthorized construction, according to general rule does not acquire ownership rights to it. It does not have the right to dispose of the construction - sell, donate, lease, or make other transactions.

An unauthorized construction is subject to demolition by the person who carried it out or at his expense 111.

The right of ownership of an unauthorized structure may be recognized by a court, and in cases provided for by law, in another manner established by law, for the person in whose ownership, lifelong inheritable possession, permanent (indefinite) use is the land plot on which the structure was created, while simultaneously meeting the following conditions :

If in relation land plot the person who carried out the construction has rights allowing the construction of this object on it;

If, on the day of going to court, the building complies with the parameters established by the territory planning documentation, land use and development rules, or mandatory requirements for building parameters contained in other documents;

If the preservation of the building does not violate the rights and legally protected interests of other persons and does not create a threat to the life and health of citizens.

In this case, the person whose ownership of the building has been recognized shall reimburse the person who carried it out for the costs of construction in the amount determined by the court.

Organs local government has the right to decide on the demolition of an unauthorized building if it is created or erected on a land plot that is not provided in accordance with the established procedure for these purposes, if this land plot is located in a zone with special conditions use of territories (except for the zone of protection of objects cultural heritage(historical and cultural monuments) of the peoples of the Russian Federation) or on public territory or in the right of way of utility networks of federal, regional or local significance.

Within seven days from the date of the decision to demolish the unauthorized structure, the local government body that made such a decision sends to the person who carried out the unauthorized construction a copy of this decision containing the deadline for the demolition of the unauthorized structure, which is established taking into account the nature of the unauthorized construction, but cannot be more than 12 months.

If the person who carried out the unauthorized construction has not been identified, the local government body that made the decision to demolish the unauthorized construction, within seven days from the date of such decision, is obliged to ensure publication and placement on the official website and on an information board within the boundaries of the site of the message about the planned demolition of an unauthorized building.

If the person who carried out the unauthorized construction has not been identified, the demolition of the unauthorized construction can be organized by the body that made the relevant decision no earlier than two months after the date of posting on the official website of the message about the planned demolition of such a structure.

Acquisitive prescription

A person who is not the owner of a residential premises, but who conscientiously, openly and continuously owns it as his own for fifteen years, acquires the right of ownership of this premises.

Thus, long-term possession must meet four criteria: good faith, openness, continuity, ownership of housing as one’s own 112.

A long-term owner may add to the time of his possession the entire time during which the premises were owned by the person whose legal successor he is.

Duration of the term acquisitive prescription in relation to housing located in the person from whose possession they could be claimed in accordance with the rules on a vindication claim, begins no earlier than the expiration of the period limitation period on this claim.

The right of ownership to the premises arises from the long-standing owner due to acquisitive prescription from the moment of state registration.

Before acquiring the right of ownership to the premises by virtue of acquisitive prescription, a person who owns the property as his own has the right to protect his possession against third parties who are not the owners of the premises, and who do not have the right to own it due to other grounds provided by law or contract.

Gratuitous reasons

Article 687. Termination of a residential lease agreement

1. The tenant of a residential premises has the right, with the consent of other citizens permanently residing with him, to terminate the rental agreement at any time with a written warning to the landlord three months in advance.

2. A residential 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 case of short-term rental, in case of failure to pay the payment 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 no more than a year to eliminate the violations that served as the basis for terminating the rental agreement. If, within the period determined by the court, the tenant does not eliminate the violations or does not take all necessary measures to eliminate them, the court, upon repeated application by the landlord, makes a decision to terminate the rental agreement for residential premises. In this case, 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 no more than a year.

3. A residential lease agreement may be terminated in court at the request of any of the parties to the agreement:

If the premises cease to be suitable for permanent residence, as well as in the event of an emergency;

In other cases provided for by housing legislation.

4. If the tenant of a residential premises or other citizens for whose actions he is responsible use the residential premises for other purposes or systematically violate the rights and interests of neighbors, the landlord may warn the tenant about the need to eliminate the violation.

If the tenant or other citizens for whose actions he is responsible continue to use the residential premises for other purposes after warning or violate the rights and interests of neighbors, the landlord has the right to terminate the rental agreement in court. In this case, the rules provided for in paragraph four of paragraph 2 of this article apply.

Let's summarize briefly:

Reasons:

1.At the initiative of the employer:

A) extrajudicial procedure

B) without motive

B) but subject to the following conditions: 1) the consent of all citizens living with the employer; 2) 3 months prior notice of termination of the rental agreement.

2. At the initiative of the lessor:

A) only judicial procedure

3.At the initiative of any of the parties:

A) in court

Consequences of termination: eviction of the tenant and citizens permanently residing with him (forced vacancy of the premises)

Consequences of eviction: - provision of other premises; - not providing other premises (commercial rental).

37. Provision of residential premises to citizens under a contract social hiring: grounds, order.

The answer to this question is regulated by Chapter 7 of the RF Housing Code.

Under a social tenancy agreement, residential premises are provided (as a general rule) from the municipal housing stock, but sometimes from the Russian Federation fund (for example, judges).

2 basic requirements, which a citizen must answer under a social tenancy agreement:

1) the citizen is recognized as in need of housing;

2) Recognition of a citizen as low-income.

Both of these conditions must be present together.

Scroll those in need contained in Article 51 of the RF Housing Code:

1) citizens who are unable to satisfy their need for housing;

2) citizens who have the opportunity to satisfy the need for housing with an area of ​​less than established norm;

Article 50 of the Housing Code determines the types of residential areas - min. the size per 1 family member allows us to talk about the need for living quarters.

Part 5, Article 50 – the size of the accounting norm is determined by the local self-government organization. Decision of the Vor City Duma dated July 7, 2005 - the accounting norm in the Vor region is 11 square meters. m for 1 person

3) persons suffering from a certain disease that prevents them from living with them.

For the poor An azhdan is a citizen recognized as such by a local self-government body in the manner defined by law RF. (Vor region law of November 30, 2005 No. 72-03; decision of the Vor. City Duma of May 18, 2006 “On vesting powers to make decisions on recognizing citizens as poor...”

A citizen is recognized as low-income on the basis and taking into account:

1) income per family member;

2) property owned by each member of the family subject to taxation;

Article 52 of the Housing Code of the Russian Federation: Registration of citizens in need of residential premises:

Registration is carried out at the place of residence

Carried out on application basis

The accounting procedure is determined by the subject of the Russian Federation; and the accounting itself is carried out by the organization. MSU.

From Article 52:

3. Registration of citizens as those in need of residential premises is carried out by the local self-government body (hereinafter referred to as the body carrying out registration) on the basis of applications from these citizens (hereinafter referred to as applications for registration) submitted by them to the specified body at the place of their residence or through multifunctional center in accordance with the interaction agreement concluded by them in the manner established by the Government of the Russian Federation. In cases and in the manner established by law, citizens may submit applications for registration at a location other than their place of residence. The registration of incapacitated citizens is carried out on the basis of applications for registration submitted by their legal representatives.

4. With applications for registration, documents must be submitted confirming the right of the relevant citizens to be registered as those in need of residential premises, except for documents received upon interdepartmental requests by the body carrying out registration. The citizen who has submitted an application for registration is issued a receipt from the applicant for these documents, indicating their list and the date of their receipt by the body carrying out the registration, as well as indicating the list of documents that will be received upon interdepartmental requests. The body carrying out registration independently requests documents (their copies or information contained in them) necessary for registering a citizen with the authorities state power, local government bodies and subordinate government agencies or local government organizations that have at their disposal these documents (their copies or the information contained therein) in accordance with the regulatory legal acts of the Russian Federation, regulatory legal acts of the constituent entities of the Russian Federation, municipal legal acts, if such documents were not submitted by the applicant according to own initiative. In case of submission of documents through a multifunctional center, a receipt is issued by the specified multifunctional center.

5. The decision on registration or refusal to register must be made based on the results of consideration of the application for registration and other documents submitted or received upon interdepartmental requests in accordance with Part 4 of this article by the body carrying out registration, no later than than thirty working days from the date of submission of documents, the obligation to submit which is assigned to the applicant, to this body. If a citizen submits an application for registration through a multifunctional center, the period for making a decision on registration or refusal to register is calculated from the day the multifunctional center transmits such an application to the body carrying out registration.

6. The body carrying out registration, including through a multifunctional center, no later than three working days from the date of making the decision on registration, issues or sends to the citizen who submitted the corresponding application for registration a document confirming the adoption of such a decision . If a citizen submits an application for registration through a multifunctional center, a document confirming the decision is sent to the multifunctional center, unless another method of receipt is specified by the applicant.

UDC 347.453.3

Magazine pages: 61-66

O.V. Kirichenko,

Candidate of Legal Sciences, Associate Professor of the Department of Civil Law and Process, Ulyanovsk State Pedagogical University named after. I.N. Ulyanova Russia, Ulyanovsk [email protected]

The legal consequences of termination of a commercial rental agreement for residential premises are considered, which are expressed in the eviction of the tenant and citizens living with him without the provision of other housing. The author proposes to legislatively indicate legal basis termination of the contract in question at the request of each of its parties.

Key words: commercial lease agreement for residential premises, tenant, landlord, termination of the contract at the request of one of its parties, eviction from residential premises.

Article 687 of part two Civil Code of the Russian Federation of 1996 (hereinafter referred to as the Civil Code of the Russian Federation) provides for the possibility of terminating a commercial lease agreement at the request of the tenant with the consent of other citizens permanently residing with him at any time, regardless of the expiration of the contract, which requires a written notice of termination sent to the landlord for three months.

At the initiative of the tenant, the contract is terminated unilaterally without going to court, and the list of grounds on which the tenant may demand termination of a commercial rental agreement is not limited by law. In this case, the legislator’s desire to protect the interests of the employer as the weaker party to the contract in question is clearly visible. At the same time, do not forget about the rights and legitimate interests of the landlord.

Thus, a written warning is necessary to protect the interests of the landlord, given the fact that a three-month period will allow him to make a decision on the further use of the residential premises, for example, to find new tenants. This rule is relevant primarily for long-term commercial rental contracts, as well as short-term contracts concluded for a period of more than three months. Accordingly, it does not apply if the term of the commercial lease agreement is less than three months. In this case, in our opinion, the tenant must notify the landlord in writing of his desire to terminate the contract within a reasonable time (Article 314 of Part One of the Civil Code of the Russian Federation of 1994 (hereinafter referred to as the Civil Code of the Russian Federation)).

Thus, a written warning from the lessor excludes the termination of the contract by implied actions of the lessee. However, tenants often violate this requirement, not only by failing to comply with the specified period, but also by leaving the residential premises without (written or oral) warning to the landlord.

In legislation foreign countries provides for the protection of the lessor in the above situation. So, in accordance with Part 1 of Art. 825 of the Civil Code of Ukraine of 2003, if the tenant vacated the residential premises without warning, the landlord has the right to demand payment from him for the use of housing for three months if the landlord proves that he could not conclude a rental agreement on the same terms with another person. A similar rule is contained in the US Residential Landlord-Tenant Act (RCW 59.18), according to which the tenant must notify the landlord in writing 20 days in advance of his desire to terminate the tenancy agreement early. If a tenant vacates the property without giving proper notice to the landlord, the tenant must reimburse the landlord for 30 days' rent from the date the owner-tenant learns that the tenant has left the property.

In our opinion, clause 1 of Art. 687 of the Civil Code of the Russian Federation should also provide for the liability of a tenant who fails to notify the landlord in writing three months in advance of his desire to terminate the commercial lease agreement unilaterally. In connection with the above, we believe it is necessary to supplement this paragraph with the following provision: “If the tenant has not fulfilled this requirement, the landlord has the right to demand that he pay three months’ rent for the residential premises.”

This provision will protect the interests of the landlord by disciplining the behavior of the tenant in the event unilateral termination last contract. It fully corresponds to the commercial nature of the contract in question, since improper behavior of the tenant will lead to the fact that the landlord, unexpectedly faced with the fact of termination of the contract by the tenant, does not have enough time to find new tenants and will incur losses in connection with this.

Termination of a commercial lease agreement at the initiative of the lessor is allowed only in court if the tenant or other citizens (citizens living with the tenant, subtenants, temporary residents) for whose actions he is responsible, misconduct, an exhaustive list of which is given in paragraphs 2 and 4 of Art. 687 Civil Code of the Russian Federation. In particular, paragraph 2 of Art. 687 of the Civil Code of the Russian Federation indicates two such violations:

Failure by the tenant to pay for residential premises in a long-term commercial lease agreement for six months, unless the agreement establishes a longer period, and in the case of a short-term lease - more than twice after the expiration of the payment period established by the agreement;

Destruction or damage to residential premises (by the tenant himself or other citizens for whose actions he is responsible). However, before going to court, the landlord is not obliged to warn the tenant about the need to eliminate these violations.

In the first case, the tenant’s failure to pay the fee is a violation leading to termination of the contract, if such a violation was committed not for individual six months, but continuously for more than six months in a row (clause 38 of the Resolution of the Plenum Supreme Court RF dated 07/02/2009 No. 14 “On some issues that have arisen in judicial practice when applying the Housing Code of the Russian Federation”, hereinafter referred to as Resolution of the Plenum No. 14)).

On this issue, it is necessary to refer to the Review of Judicial Practice of the Judicial Collegium for civil cases of the Supreme Court of the Russian Federation dated July 21, 2000 “On the termination of a social tenancy agreement due to the tenant’s failure to pay for housing and utilities within six months,” as well as to the Resolution of the Plenum No. 14. A study of the practice of considering cases of this category by the courts showed that that the type of housing lease agreement (commercial or social) is a circumstance that is important for resolving the case, since the choice of the rule of law depends on it. For example, the provisions of Art. 688 of the Civil Code of the Russian Federation on the eviction of a tenant without providing other housing.

Courts, when considering cases of termination of both commercial and social tenancy agreements, create conditions for investigating the reasons for the tenant's debt to pay for housing, believing that they relate to circumstances of legal significance in accordance with paragraph 2 of Art. 687 Civil Code of the Russian Federation.

Courts recognize long delays in payment as valid reasons for non-payment of payments for housing and utilities. wages, pensions, unemployment, difficult financial situation of the employer and fully capable members of his family due to their loss of work and inability to find employment, despite the measures taken by them, illness of the employer and (or) members of his family, the presence of disabled people, minor children and etc. Having established that the tenant has been in debt continuously for more than six months in a row for a good reason, the courts often refuse to satisfy the claim for termination of the tenancy agreement, while the demands for repayment of the debt are satisfied. At the same time, the courts do not discuss the issue of the reasons for the formation of debt in cases where the defendant-tenants long time do not live in residential premises and do not pay for housing and utilities; duly notified of the time and place court session at the last known place of residence, but do not appear at the court hearing, are not notified of the reason for failure to appear in court, and do not provide written explanations or evidence.

This practice of the courts seems correct, since proving the validity of the reasons for the formation of debt by virtue of Articles 55, 56 of the Civil Procedure Code of the Russian Federation of 2002 (hereinafter referred to as the Code of Civil Procedure of the Russian Federation) lies with the defendant-employer. In accordance with Part 4 of Art. 167 of the Code of Civil Procedure of the Russian Federation, the court has the right to consider the case in the absence of the defendant, who has been notified of the time and place of the court hearing, if he has not informed the court of good reasons for his failure to appear and has not asked to consider the case in his absence.

According to paragraph 2 of Art. 687 of the Civil Code of the Russian Federation, if within the period determined by the court the tenant does not eliminate the violations or does not take all the necessary measures to eliminate them, the court, upon repeated application by the landlord, makes a decision to terminate the contract for the commercial rental of residential premises. Judicial practice shows that cases of a landlord repeatedly applying for termination of a residential tenancy agreement due to the tenant’s failure to make the necessary payments within the period established by the court when the landlord first applied with a similar request are extremely rare.

At the same time, in the absence of valid reasons (reasons such as alcohol or drug abuse, forgetfulness, lack of work for an able-bodied citizen are not considered valid) the employer’s failure to pay rent and utility bills for a continuous period of more than six months in a row, the courts, taking into account the specific circumstances cases satisfy eviction claims.

Thus, guided by the above, it is advisable, by analogy with Art. 90 of the Housing Code of the Russian Federation of 2004 (hereinafter referred to as the Housing Code of the Russian Federation) grants the landlord the right to demand in court the termination of a commercial lease agreement if the tenant fails to pay for the residential premises without good reason.

Accordingly, the court in each specific situation will determine whether the reasons why the tenant does not pay rent for the premises are valid. In addition, taking into account paragraph 38 of the Resolution of the Plenum No. 14 in relation to long-term commercial rental, it is necessary to take into account the failure of the tenant to pay for residential premises without good reason for more than six months in a row. We propose to consolidate these provisions in clause 2 of Art. 687 Civil Code of the Russian Federation.

In the second case, specified in paragraph 2 of Art. 687 of the Civil Code of the Russian Federation, illegal actions of the tenant or other citizens for whose actions he is responsible, entailing destruction or damage to residential premises, must be confirmed by the relevant act, in particular, of the state housing inspection body, or a resolution on the application of administrative liability measures.

Thus, in one of the villages near Moscow in the Voskresensky district, a mother, 56-year-old P., and her 36-year-old daughter were evicted from a one-room apartment. The court found that the living space had become a breeding ground for unsanitary conditions and a hotbed of fires. In the inspection reports of the residential premises, examined by the court, it was recorded that the apartment had not been repaired for a long time, the plumbing equipment had become unusable, the toilet was clogged with feces, and the residents relieved their natural needs on the floor. The apartment had an unbearably strong smell of ammonia, there was a cluster of cockroaches, flies, the floor and balcony were littered with household garbage and human waste. All the landlord's demands to bring the apartment into proper condition were ignored. The defendants did not work anywhere, abused alcohol, and hosted people with antisocial behavior.

Eviction of the tenant and the citizens living with him on this basis is an extreme measure of influence on tenants who maliciously violate their duties. However, housing legislation does not provide for the mandatory eviction of all persons living in a residential area. If it is possible to identify specific culprits, then these particular persons can be evicted in court. Accordingly, the remaining residents can be left as tenants of the premises. Therefore, when considering the above case, the court verified the guilt of both persons - mother and daughter.

In addition, eviction on the basis under consideration is possible only if it is established that there is a systematic pattern of illegal and guilty actions on the part of the tenant and the citizens living with him, who, despite the landlord’s warning about the need to eliminate the violations, do not eliminate these violations.

Clause 4 of Art. 687 of the Civil Code of the Russian Federation additionally indicates unlawful actions of the tenant and (or) other citizens for whose actions he is responsible, which also constitute grounds for termination of a commercial lease agreement at the request of the landlord:

Use of residential premises for other purposes;

Systematic violation of the rights and interests of neighbors.

In accordance with paragraph 39 of Plenum Resolution No. 14, the use of residential premises for other purposes is understood as the use of residential premises not for the residence of citizens, but for other purposes, for example, using it for offices, warehouses, placement of industrial production, keeping and breeding animals, etc. .e. the actual transformation of residential premises into non-residential ones.

The obligation to use residential premises taking into account the rights and legitimate interests of neighbors is based on Art. 17 of the 1993 Constitution of the Russian Federation and Art. 10 of the Civil Code of the Russian Federation, prohibiting the exercise of subjective rights to the detriment of the rights and freedoms of other persons.

Systematic violation of the rights and legitimate interests of neighbors should include repeated, repeated actions of the tenant and citizens who live with him in the residential premises and for whom he is responsible, to use the residential premises without respecting the rights and legitimate interests of those living in this residential premises or house citizens, without complying with the requirements fire safety, sanitary-hygienic, environmental and other legal requirements, rules for the use of residential premises (for example, listening to music, using TV, playing musical instruments at night with excess volume, carrying out repairs, construction work or other actions that disturb the peace of citizens and silence at night, violation of the rules for keeping pets, committing hooligan acts against neighbors, etc.) (Resolution of the Plenum No. 14; Part 1 of Article 2 of the Moscow Law of July 12, 2002 No. 42 “On maintaining the peace of citizens and silence at night in the city of Moscow").

Thus, a violation of the rights and legitimate interests of neighbors is failure to comply with the rules for keeping animals in residential premises. Numerous regulatory legal acts adopted at the regional level, for example, Decision of the Meeting of Deputies of the Urban District “City of Volzhsk” dated May 21, 2009 No. 525 “On approval of the Rules for keeping pets on the territory of the urban district “City of Volzhsk””, Resolution of the head of the urban district of Otradny Samara region dated October 19, 2005 No. 1048 “On the adoption of a procedure for keeping pets in the territory of the urban district of Otradny, Samara Region”, Decision of the Duma of Kostroma dated July 15, 1999 No. 109 “On the rules for keeping dogs and cats in the city of Kostroma” establishes the requirements to the maintenance of pets, which must be observed, including by employers and citizens living with them. Pet owners must ensure the safety of citizens from physical impact pets, peace and quiet at night, comply with fire safety requirements, sanitary, hygienic and veterinary rules for keeping animals, prevent animals from polluting residential premises and common areas in houses. It is not allowed to keep animals in common areas: corridors, staircases, attics, basements, as well as on balconies and loggias. It is allowed to keep animals in residential premises only if the neighbors do not have medical contraindications (allergies). In our opinion, in a commercial lease agreement, the parties need to stipulate a condition regarding the possibility of keeping animals in residential premises.

In accordance with paragraph 4 of Art. 687 of the Civil Code of the Russian Federation, in contrast to paragraph 2 of this article, the landlord has the right to terminate the contract in court only on the condition that unlawful actions continue, despite the warning about the need to eliminate violations made by the landlord to the tenant. But in this case, the rules provided for in paragraphs apply. 4 p. 2 tbsp. 687 Civil Code of the Russian Federation.

In our opinion, the analysis of paragraphs. 4 clause 2 and clause 4 art. 687 of the Civil Code of the Russian Federation allows us to conclude that termination of a commercial lease agreement and eviction from the residential premises of the tenant and citizens living with him, who systematically violate the rights and legitimate interests of neighbors, is possible only as a last resort. In this case, the court must decide what is better: to provide the injured neighbor with a normal life in a residential building and leave the offenders without a roof over their head, or to still preserve housing for the offenders, but force the neighbor to endure inconvenience? Practice shows that in this case the court takes the side of the employer and the citizens living with him.

Thus, the list of grounds for termination of a contract at the initiative of the landlord in cases of unlawful actions committed by the tenant or other citizens (permanently residing with the tenant; subtenants; temporary residents), for whose actions he is responsible, specified in Art. 687 of the Civil Code of the Russian Federation is exhaustive.

However, as already indicated, even if there are those specified in paragraphs 2, 4 of Art. 687 of the Civil Code of the Russian Federation for violations, the court may refuse to satisfy the landlord’s claim, giving the tenant a period (no more than a year) to eliminate the violations, and satisfy the landlord’s demand only if he re-applies to the court if the tenant fails to eliminate (or fails to take measures to eliminate) the violations. In this case, 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 no more than a year.

Within the meaning of the above norm, this deferment is given to the tenant for the purpose of finding other housing. This rule, in our opinion, indicates increased guarantees of the rights of the employer and allows the court to take into account the specific circumstances of the case (for example, the degree of guilt of the employer, his state of health, financial situation, the presence of disabled people in the family, elderly citizens in need of constant care, minor children etc.). The possibility of deferring the execution of a court decision to terminate a commercial lease agreement is a manifestation of the humanism of the legislator. A deferment is necessary, for example, if the contract is terminated in the winter, and the employer has small children, as well as in other difficult life situations.

At the same time, according to some authors, in particular D.V. Karpukhin, the imperfection of this norm lies in the fact that in case of obvious negative actions (inaction) of the employer and the persons for whose actions he is responsible, the landlord becomes dependent on the position court, which can delay the procedure for terminating a commercial rental agreement for up to two years. This regulation infringes on the position of the landlord, as it allows the tenant to retain the right to reside in the owner’s residential premises for a long period. In addition, in accordance with Art. 12 of the Civil Code of the Russian Federation, the right to terminate or amend a contract serves as one of the ways to protect violated civil rights, while the provisions of paragraph 2 of Art. 687 of the Civil Code of the Russian Federation violate the right to defense granted to the landlord.

By virtue of clause 2 of Art. 683 of the Civil Code of the Russian Federation to the short-term commercial lease agreement, the provision of paragraphs. 4 p. 2 tbsp. 687 of the Civil Code of the Russian Federation does not apply unless otherwise provided by the agreement.

In conclusion, we note that the legality of termination of a specific residential lease agreement in order to prevent possible offenses is verified by the courts general jurisdiction. The courts determine, in particular, the absence of valid reasons in the event of a tenant’s failure to pay for living quarters and utilities, the degree of guilt of the tenant and citizens living with him in the destruction or damage of living quarters, violation of the rights and legitimate interests of neighbors, etc. Without establishing and examining these and other necessary factual circumstances, the courts do not make decisions confirming the termination of a residential lease agreement. The court's decision means that the rental agreement is terminated within the framework of the principle of freedom of contract and in the absence of arbitrariness on the part of the lessor. Thus, the court decision is one of the terminating legal facts when terminating a commercial lease of residential premises in court.

Termination of a commercial lease agreement in court at the request of one of its parties in most cases constitutes a sanction for violation of the agreement. This provision applies to the termination of a commercial rental agreement at the request of the lessor, since the lessee may terminate such an agreement at any time, including for reasons not related to violation of the terms of the agreement by the lessor. As a measure of the tenant's liability for violation of the contract for the commercial rental of residential premises, termination of the contract can be carried out on the grounds provided for in paragraphs 2, 4 of Art. 687 Civil Code of the Russian Federation.

To the grounds listed in this article, in our opinion, it is necessary to add the reorganization, redevelopment and reconstruction of residential premises by the tenant without the consent of the landlord (Article 678 of the Civil Code of the Russian Federation) and his refusal to bring such premises to their previous condition in deadline(Clause 2, Part 5, Article 29 of the RF Housing Code).

This case, in our opinion, must be classified as a significant violation of the technical condition of the residential premises, that is, its damage (clause 2, part 5, article 29 of the Housing Code of the Russian Federation). In accordance with this basis, a commercial lease agreement is subject to termination at the request of the landlord-owner of the residential premises, who is entrusted with the responsibility to bring such residential premises to their previous condition.

A court decision to preserve the residential premises in a rebuilt (redesigned) state during unauthorized reconstruction (redevelopment) can be made if two conditions are present in combination: the rights and legitimate interests of citizens are not violated, a threat to their life and health is not created (Part 4 of Article 29 Housing Complex of the Russian Federation).

In all of the above cases, termination of a residential rental agreement is possible if there are conditions under which civil liability arises: illegality of actions (inaction), harm, a cause-and-effect relationship between unlawful behavior and the resulting harm, the guilt of the offender. If the rights and interests of neighbors are violated, harm is caused not to the other party to the contract, but to third parties, therefore they should also be given the right to demand termination of the commercial rental agreement.

Within the meaning of paragraph 39 of Plenum Resolution No. 14, in cases of use of residential premises for other purposes, systematic violation of the rights and legitimate interests of neighbors or mismanagement of residential premises leading to its destruction, citizens who directly commit such actions (perpetrators). Previously, this provision was contained in Art. 98 of the Housing Code of the RSFSR of 1983.

A commercial rental agreement for residential premises can also be terminated at the request of the landlord out of court upon expiration of the contract term and upon expression of will to refuse to renew the contract in connection with the decision not to rent out residential premises for at least one year (Article 684 of the Civil Code of the Russian Federation).

References

1. Apollonov A.O., Strauning E.L. On the rules for using residential premises // Housing Law. 2006. No. 5. P. 2-39.

2. Karpukhin D.V., Zabelova L.B. Commercial rental of residential premises: features of termination of the contract // Housing Law. 2010. No. 7. P. 45-51.

3. Kuznetsova O.V. Practice litigation about eviction // Housing law. 2009. No. 9. P. 55-94.

Magazine pages: 86-88

O.V. KIRICHENKO,

Candidate of Legal Sciences, Associate Professor of the Department of Civil Law and Process, Faculty of Law, Ulyanovsk State Pedagogical University. I.N. Ulyanova [email protected]

A commercial rental agreement for residential premises may be terminated or terminated due to circumstances beyond the control of the parties. Termination or dissolution of this agreement entails serious legal consequences for the parties, in connection with which the Civil Code of the Russian Federation must delineate the grounds for termination or dissolution of a commercial lease agreement, and the circumstances of termination or dissolution of the agreement must be presented in the form indicative list.

Key words: commercial lease agreement, termination of the agreement, termination of the agreement, circumstances beyond the control of the parties to the agreement.

Termination, Termination of the Contract of Employment of Commercial by Circumstances Beyond the Control of the Parties

Kirichenko O.

Contract of commercial tenancy may be terminated, canceled due to circumstances beyond the control of the parties. Termination of this agreement entails serious legal consequences for the parties, so the Civil Code of the Russian Federation should be separated grounds for termination, termination of the contract of employment of commercial and circumstances of termination, the termination of the contract must be in the form of an inventory.

Keywords: commercial contract of employment, termination of contract, termination of the contract, do not depend on the will of the parties to the contract conditions.

Termination of a housing legal relationship arising from a contract for the commercial rental of residential premises may occur upon termination of the contract (by the agreed will of the parties, at the request of any of the parties to the contract, by a party unilaterally), as well as due to circumstances that do not at all depend on the will of the parties, for example, in the event of the death of a tenant who lived alone or the destruction of living quarters. Therefore, the concept of “termination of a tenancy agreement,” in contrast to the concept of “termination of a tenancy agreement,” is narrower, including the termination of housing legal relations as a result of the actions of their subjects, and not events and actions, as in the case of termination of a contract, i.e. not all the grounds for termination of the contract entail its termination. Termination of a tenancy agreement is a type of its termination, while the latter can take place without termination of the contract.

The general grounds for terminating a commercial rental agreement for residential premises are set out in Chapter. 26 “Termination of obligations” of the Civil Code of the Russian Federation of 1994 (hereinafter - the Civil Code of the Russian Federation), we will highlight some of them: termination of an obligation by its proper fulfillment (Article 408 of the Civil Code of the Russian Federation); termination of an obligation by the coincidence of the debtor and the creditor in one person, for example, the tenant as an heir becomes the owner of the residential premises he rents (Article 413 of the Civil Code of the Russian Federation); termination of an obligation by impossibility of fulfillment, if it is caused by a circumstance for which neither party is responsible, for example, loss (destruction) of residential premises (Article 416 of the Civil Code of the Russian Federation); termination of the obligation by the death of a citizen (in this case, only the tenant living alone by virtue of paragraph 2 of Article 686, Article 675 of the Civil Code of the Russian Federation) (Article 418 of the Civil Code of the Russian Federation); termination of an obligation by liquidation of a legal entity (in this case, a legal entity - the lessor) (Article 419 of the Civil Code of the Russian Federation).

A commercial lease agreement, as a general rule, is terminated by the expiration of its validity period (taking into account the rules of Articles 683, 684 of the Civil Code of the Russian Federation), which distinguishes it from an open-ended contract for the social rental of residential premises (Part 2 of Article 60 of the Housing Code of the Russian Federation of 2004; hereinafter - Housing Complex of the Russian Federation).

To terminate a commercial lease agreement, special conditions are not required, as provided, for example, for lease agreements for specialized residential premises, which are terminated due to the disappearance of the grounds established by law for the provision of such premises (Part 3 of Article 104, Part 2 of Article 105, Part . 2-3, Article 106, Article 107-109.1 of the Housing Code of the Russian Federation), and contracts for the rental of office and residential premises in dormitories - with the transfer of ownership, economic management and operational management of such residential premises, provided that employment contract between a citizen-tenant and a new landlord (Part 2 of Article 102 of the Housing Code of the Russian Federation).

Article 687 of the Civil Code of the Russian Federation contains special rules on the grounds and procedure for terminating a commercial lease agreement. The peculiarity of this article is that it allows for the subsidiary application of housing legislation (clause 3 of Article 687 of the Civil Code of the Russian Federation).

In relation to social tenancy agreements and the rental of specialized residential premises, the law (Part 5 of Article 83, Part 1 of Article 102 of the Housing Code of the Russian Federation) provides for their termination regardless of the will of the parties in connection with the loss (destruction) of residential premises, with the death of a tenant living alone .

Article 687 of the Civil Code of the Russian Federation does not contain such a provision, but only establishes in paragraph 3 the possibility of terminating a commercial lease agreement in court at the request of either party if the residential premises cease to be suitable for permanent residence, as well as in the event of its emergency condition, in others cases provided for by housing legislation.

Unfortunately, this paragraph not only does not differentiate between the grounds for termination and termination of a commercial lease agreement, but also in relation to the termination of this agreement in court at the request of any of the parties, the agreement contains only a general reference to housing legislation, which cannot be considered correct.

Termination or dissolution of a commercial rental agreement for residential premises entails serious consequences for its parties, therefore, in paragraph 3 of Art. 687 of the Civil Code of the Russian Federation, it would be necessary to clarify the grounds for termination of such an agreement, as was done in Part 5 of Art. 83 of the Housing Code of the Russian Federation, and in relation to termination of this agreement in court, at the request of any of its parties, indicate an approximate list of grounds for such termination, and not be limited to reference to housing legislation.

For the employer, the right to terminate the contract established by clause 3 of Art. 687 of the Civil Code of the Russian Federation, is not so relevant, since in accordance with paragraph 1 of Art. 687 of the Civil Code of the Russian Federation already has the right to unilaterally terminate the contract at any time without giving reasons out of court. Thus, this right is mainly for the lessor.

Clause 3 of Art. 687 of the Civil Code of the Russian Federation, in contrast to paragraphs 2 and 4 of this article, does not mean offenses, but situations when a residential premises loses its ability to satisfy the housing needs of citizens due to objective circumstances independent of the will of the parties: it has become unsuitable for permanent residence or has fallen into disrepair condition due to physical wear and tear, natural disaster, fire, etc. Other cases provided for by housing legislation, which may be grounds for termination of a commercial lease agreement, in our opinion, may include the demolition of a residential building and the transfer of residential premises to non-residential premises, recognition of housing unsuitable for living, as well as the case when, as a result of overhaul or reconstruction of a house, living quarters cannot be preserved (Article 85 of the Housing Code of the Russian Federation). Demolition and transfer of residential premises to non-residential premises, regardless of the consent or desire of the owner, can be carried out only on the grounds specified in the law, for example, due to the seizure of a land plot for state or municipal needs (Articles 279-282 of the Civil Code of the Russian Federation, Article 32 of the Housing Code of the Russian Federation).

Thus, the following conclusions can be drawn. Firstly, a commercial rental agreement for residential premises is terminated (out of court) due to the loss (destruction) of residential premises, with the death of the tenant living alone.

Secondly, a commercial rental agreement for residential premises can be terminated in court at the request of any of the parties to the agreement (due to circumstances beyond their control) in the following cases:

If the residential premises cease to be suitable for permanent residence, as well as in the event of its emergency condition;

Transfer of residential premises to non-residential premises (Part 2 of Article 85 of the Housing Code of the Russian Federation);

The impossibility of preserving residential premises as a result of major repairs or reconstruction of the house in which it is located (Part 4 of Article 85 of the Housing Code of the Russian Federation);

Adoption of an act of a state or municipal body on the seizure of residential premises in connection with the seizure of a land plot for state or municipal needs; on declaring residential premises unsuitable for habitation (clause 3 of Article 687 of the Civil Code of the Russian Federation,

Part 3 Art. 85 Housing Code of the Russian Federation); on recognizing an apartment building as unsafe and subject to demolition (Clause 3, Article 687 of the Civil Code of the Russian Federation, Part 1, Article 85 of the Housing Code of the Russian Federation).

These cases must be included in clause 3 of Art. 687 of the Civil Code of the Russian Federation as an approximate list of grounds for termination of a commercial rental agreement for residential premises in court at the request of any of its parties.

Based on the above, we propose the following wording of clause 3 of Art. 687 of the Civil Code of the Russian Federation: “A commercial rental agreement for residential premises is terminated due to the loss (destruction) of residential premises, with the death of the tenant who lived alone.

A commercial rental agreement for residential premises may be terminated in court at the request of any of the parties to the agreement in the following cases:

if the residential premises cease to be suitable for permanent residence, as well as in the event of its emergency condition;

recognition of an apartment building as unsafe and subject to demolition;

the impossibility of preserving the residential premises as a result of major repairs or reconstruction of the house in which it is located;

if the residential premises are subject to transfer to non-residential premises;

adoption of an act of a state or municipal body on the seizure of residential premises in connection with the seizure of a land plot for state or municipal needs;

in other cases provided for by housing legislation.”

In the title of the article. 687 of the Civil Code of the Russian Federation, it is also necessary to include the word “termination” (by analogy with Article 83 of the Civil Code of the Russian Federation).

Bibliography

1 See about this: Ruzanova V.D. Termination of a residential lease agreement // Housing Law. 2005. No. 3. P. 14-15; Sheshko G.F. Housing tenancy agreement: the emergence and termination of relations for the use of residential premises // Housing Law. 2007. No. 7. P. 29.

2 See for more details: Shipunova E.A. Changing the legal regime of residential premises in dormitories // Housing Law. 2008. No. 2. P. 57-60.

3 When transferring residential premises to non-residential premises, there is special case termination of social and commercial rental contracts for residential premises at the initiative of both the landlord and the tenant. See for more details: Makeev P.V. Legal consequences of changes in the legal regime of residential and non-residential premises// Modern law. 2009. No. 6. P. 69; Bykov V. Eviction as a consequence of termination of a social tenancy agreement // Housing Law. 2007. No. 11. P. 63-64.