Many Russian enterprises strive to sign a property lease agreement with one or another government body - state or municipal. For this, business representatives are happy to participate in various contests and auctions. What is the purpose of entrepreneurs involved in communication with authorities?
Rent as a way to save
Lease of municipal property is a procedure that in the Russian business environment is considered an excellent alternative to the relevant agreement with a commercial organization.
This is because one or another warehouse, office or other premises that the municipality has is usually much cheaper than the facility offered by legal entities. And many entrepreneurs are very happy to receive the right to lease municipal property.
The specifics of municipal property
What is the specificity of real estate owned by local authorities? In accordance with the provisions of Article 215 of the Civil Code of the Russian Federation, property that is owned by cities, rural settlements and other administrative-territorial units at the level of which local self-government is implemented is classified as a municipal type. Often the appropriate type of property is assigned to individual institutions. If this is not so, then it is included as an asset in the municipal treasury.
If an entrepreneur wants to find out if it is possible to rent real estate of a particular type of municipal property, then such information is usually posted on the websites of local authorities. But even if there is no relevant data on the web resources of the municipalities for any reason, the businessman has the right to make a request to the local government. The service to provide relevant information to the entrepreneur should be provided by the municipality free of charge.
Subjects of lease relations
It is worth noting that for entrepreneurs it is possible to purchase property not only of the municipal, but also of the state type. There are few fundamental differences between the procedure in which a municipal property is leased out and similar actions with the participation of state authorities, since all these processes are regulated by the same laws.
Types of Contracts
It can also be noted that leasing is not the only option for the interaction between the authority at one level or another and the enterprise. The specificity of the relevant contracts is that the property is transferred by the lessor for a fee for temporary use.
An option is also possible with the conclusion of a contract for gratuitous use. According to such a contract, the owner of the property is obliged to transfer the property to another party, which, in turn, must return it to the owner in the same condition, taking into account the allowable depreciation or in the form provided for by the contract.
In addition to such types of transactions as leasing of state and municipal property and a contract for gratuitous use, it is also possible to conclude trust management contracts for property. Under such agreements, the municipality or state body transfers the property to the counterparty in the person of the company for an indefinite period.In turn, the other party must manage the property received in the interests of its owner or other beneficiary.
The contract, the subject of which is the lease of municipal property, can also be replaced by a contract providing for the safekeeping of a property and its simultaneous use. A variant is also possible with the execution of a loan agreement, the subject of which is the corresponding type of material assets.
However, the lease of federal and municipal property in practice is carried out mainly in the framework of ordinary leases. Although, of course, at the level of specific municipalities in a particular region, different approaches to the issue of interaction with enterprises are possible. The main thing is that the relevant actions of the authorities do not contradict the legislation regulating the relations of state and municipal institutions with private enterprises.
Features of leases with municipalities
The main legal act defining the procedure for renting municipal property is Federal Law No. 135. In accordance with its provisions, property that is not fixed in the form of economic ownership of an entity at the local government level can be rented out to entrepreneurs only on a competitive basis (or auction). A similar procedure should be carried out if the property belongs to the municipal unitary enterprise. And it doesn’t matter whether it is in economic management or operational. The same rules will apply if the property is owned by an autonomous state institution or municipal body, but subject to operational management.
Competition specifics
So, in some cases, the rental of municipal property is possible only after the tender. The rules according to which these procedures are organized are fixed in one of the Orders of the Federal Antimonopoly Service of the Russian Federation - the agency that is responsible for the correctness of the interaction between government and business in many aspects. The relevant regulatory act issued by the antimonopoly service contains a list of types of property for the lease of which tendering is necessary. In turn, the provisions of the Order of the FAS Russia can supplement regulations issued at the level of individual municipalities. As a rule, these documents are available on the websites of local authorities.
The peculiarity of holding tenders, the subject of which is the conclusion of a municipal property lease agreement, is that information regarding these events should be published on the Internet at torgi.ru, which is owned by the Ministry of Economic Development.
When contests are not held
There are situations when the contests in question are not necessary. In what cases is it possible to rent municipal property without bidding? These moments are regulated by the 17th article of the Federal Law No. 135. Consider them.
The first scenario, assuming that the rental of municipal property is possible without a tender, can be implemented in accordance with the provisions of the 5th chapter of the Federal Law No. 135, which reflects the possibility of establishing certain preferences on the part of municipal authorities.
The second scenario assumes that the competition has already been held, however, according to the rules contained in the provisions of the Federal Law No. 44, that is, under the municipal contract. At the same time, the lease term of the object cannot be longer than the duration of the corresponding type of contract.
The third option, within the framework of which the tender is not obligatory, is the rental of property for a period not exceeding 30 days within six months. At the same time, it is unacceptable to conclude agreements between the municipality and the same counterparty again after the contract has been completed within the specified period.
It can also be noted that the tender, the subject of which is the leasing of municipal property, may not be held if the extension of existing contracts between entrepreneurs and municipalities is implied.
The tender may not be held if the rights to municipal and other property are granted to firms by virtue of the provisions of international treaties signed by the Russian Federation, intergovernmental agreements, as well as federal laws that establish a special procedure for the use of property and other legal acts: decrees of the President, government decrees or, for example , court decisions that have entered into force.
Tenders are not held if the municipality donates cult buildings, structures and other types of property religious organizations.
Also, the need for tendering may not be necessary if the property is transferred in favor of other authorities at the state or municipal level, as well as off-budget funds or, for example, the Central Bank of Russia.
It can also be noted that the procedure we have examined, under which property of municipalities and state authorities is leased, does not apply to those areas that are regulated by the Land, Water, Forest codes of the Russian Federation, as well as subsoil laws.
Property in use: two options
So, entrepreneurs have several opportunities to get at the disposal of an inexpensive resource in the form of municipal property. First of all, one can note the fact that contracts between enterprises and authorities can be represented in a wide variety: in the form of lease agreements, gratuitous use, trust management, etc. The use of each of the options provided for by the legislation of the Russian Federation is possible under two main schemes :
- upon the conduct of tenders (tenders or auctions), the subject of which is the company's right to conclude an agreement of one type or another with the municipality or state authority;
- conclusion of an agreement without tenders or auctions in accordance with the provisions of the law.
In some cases, the tenders in question are called tenders, in others - auctions. Which term is more correct?
Competition or auction?
Depending on the context and a number of specific features of the procedure, one and the other term may be used on completely legitimate grounds. If it is a competition, it is assumed that the applications of participants will be submitted in a closed form (for example, in envelopes). Competitors will not know the details of the applications.
The auction, in turn, is the determination of the most advantageous option for the municipality based mainly on public bidding. That is, one or another participant in the competition for the right to conclude a municipal property lease in the course of what the competitor is offering, and may try to put forward a proposal that is more beneficial for the owner.
How are tenders
Depending on whether an auction or a tender is taking place, the rules for bidding may vary slightly. As we noted above, if it is a question of holding a competition, only the list of participants remains public. If the event is held in an auction format, all information about the participants and their proposals is open.
The municipality that owns the property creates a special commission. Its main functions are: working with envelopes containing offers from bidders, establishing a circle of people with access to information about the event, researching the competitive advantages and other features of each bid, determining the winning bidders or auction participants.
Leasing of municipal property is possible not only for legal entities, but also for citizens and individual entrepreneurs.That is, the subjects of legal relations in any of these legal statuses can participate in the contests and auctions in question.
Application Review
We study the aspect regarding the consideration of applications of bidders. The main provisions governing the relevant procedure are determined at the level of municipal legislation. However, the following formulations can be considered quite typical.
Municipalities usually review applications received within a month from the moment the relevant document was sent by the contestant.
Applications are studied only if the documents provided for by the rules of the competition have been sent along with them. As a rule, they are the following list:
- a written statement addressed to the head of the authority;
- constituent documents of the participant, legal entity registration certificates, as well as sources confirming the status of the person who will sign the lease if the company passes the tender;
- Bank details bidder;
- documents reflecting the figures of the balance sheet at the enterprise.
At the same time, the authority responsible for holding the tender may request other documents from the participant, if this is provided for by law.
The main criterion for determining the winner of the competition is the best conditions for the execution of the relevant contract. In turn, the organization that has offered the highest contract value to the municipality is recognized as the winner of the auction. Rental of municipal property is possible only in favor of the winners of the auction.
Preferences
Interesting provisions are contained in the 18th article of the Federal Law No. 209. It says that small and medium-sized enterprises have the right to rely on some measures of support from the municipalities in the form of gratuitous or implying preferential conditions for the transfer of property for temporary use. In this case, lists of property that can be leased as part of appropriate support measures should be available to the general public - in the media or on the official websites of authorities. Rental of municipal property in preferential format is possible for a period of at least 5 years. However, it can be reduced if the business entity submits an appropriate application.
Rental of municipal property and VAT
An important aspect is the calculation of VAT when renting municipal property. The subject of the payment of the relevant tax will be the company that leased the property.
The value of the tax base is determined by summing the amount of rent for each property. The tenant must generate an invoice within 5 days from the date of payment. Also, his duty is to submit a VAT return before the 20th day of the month following the tax period.
Where does rental income go?
Where does the municipality send the funds received from leasing the property? As a rule, the proceeds are spent on updating and maintaining the material and technical base of the authority. Funds are transferred to a special budget account, from which they are then transferred to the account of the institution itself within the limits provided by law.
