Gratuitous use of real estate: contract, terms, acceptance certificate

Currently, quite often business entities draw up gratuitous agreement use of property. With its help, for example, legal entities draw up relations related to the exploitation of material assets to be acquired in the future as part of a purchase and sale transaction. Let us further consider what constitutes the right to use property without compensation.

General information

Many subjects participating in the relations under consideration raise a question related to the form and type of agreement through which legal registration of actions is carried out. At first glance, the transaction has the same characteristics as the rental of real estate. However, the latter involves payment for the provision of material assets (Article 606 of the Civil Code). Free use of real estate is regulated by Ch. 36 GK. The agreement that the participants draw up is called the loan, and the participants - the lender and the borrower.

The essence of the relationship

One party undertakes to provide the material values ​​of the other for a specific period, and the latter, in turn, undertakes to return the item in the same condition in which it was received, taking into account the normal degree of wear or in the form specified in the agreement. Legal entities or citizens may act as participants in the transaction. For commercial enterprises, a restriction is established on the provision of material assets for free use to managers, founders, members of a control or administrative body. If a gratuitous use of municipal property is made out, the following may act as a lender:

1. Governing bodies.
2. Unitary enterprises.
3. Budget, government, autonomous institutions.

The provision of objects in the last two cases is subject to the written consent of the owner.

Nuance

According to Art. 690 of the Civil Code, the property owner or a person who is authorized by the owner or has the corresponding right by direct instruction of the law can act as a lender. So, under such a regulatory requirement, structures, buildings and enterprises can act as an object of the transaction in question. In this case, the lessor may act as a lender without the consent of the lessor (unless otherwise provided by agreement between them). Along with this, the latter must obtain the consent of the first under Art. 615 h. 2 Civil Code, if he decides to provide someone with an object for a certain period without payment.

Subject of agreement

As it are individually defined, non-consumable things. Many characteristics correspond to these characteristics. In particular, they include premises, structures, plots. Gratuitous use in these cases, however, is carried out according to certain rules. First of all, the agreement should clearly indicate the information by which you can determine the specific object that is the subject of the transaction. In the absence of relevant information in the document, the condition of the thing is considered inconsistent. This, in turn, makes the contract for the gratuitous use of property non-concluded. For example, when providing a part of a building or premises, the document must indicate the room numbers according to the technical passport or draw up an application containing a plan with allocated areas.

Free use agreement: sample

In the Civil Code there are no specific requirements regarding the form of the document. In practice, its preparation is carried out according to the example of a lease for a period of more than a year or for any period if a legal entity acts as one of the parties to the transaction. The Federal Registration Service has approved various instructions regarding the procedure for registering property transferred for free use. Rules related to cultural heritage sites, forest fund, etc.

One of the essential conditions of the agreement is the period during which gratuitous use of real estate will be carried out. This period can be either indefinite or specific. In the first case, the agreement may be terminated unilaterally. In this case, the initiator of the termination of the relationship is obliged to notify the second participant of his intentions in one month. The agreement itself may provide for a different notice period.

Gratuitous use of the land or another object is drawn up with a document in which there are paragraphs about the subject, validity period, parties to the transaction. The agreement establishes the duties and responsibilities of participants. When renting, the document indicates the size and payment procedure. In the loan agreement, this clause is missing. It indicates the gratuitous use of a land plot or other object - a key condition of the transaction.

A responsibility

The lender is liable for defects in the object that he, through gross negligence or intent, did not specify during the execution of the agreement. For shortcomings that the subject did not know about, by which the provision of material assets was carried out, or about which he knew, but he pointed to them during the transaction, or which should be identified by the recipient during the examination or inspection, he is not responsible.

There is another important rule, according to which the use of property is free of charge. Temporarily operated facilities may affect the interests of third parties. The lender is liable for damage caused by a third party when using the thing, if he can not prove that the damage arose as a result of gross negligence or intent of the recipient or the person whose object was with the consent of the latter. Other entities may have rights to property provided for free use. The execution of the relevant agreement does not deprive these entities of their legal capabilities.

Important points

By completing the act of transfer and acceptance of the object, the lender is obliged to notify the recipient of third parties whose interests are affected by this transaction. Otherwise, the other party may demand termination of the agreement and compensation for damage suffered by it. The gratuitous use of real estate does not stop when the object becomes the property of another person. The agreement is also valid in the event of the death of the citizen lender or the liquidation / reorganization of the legal entity from which the object was obtained. In such situations, the obligations and rights of the lender pass to his successors. In the event of the death of the lender, an individual or liquidation of the organization, termination of the agreement is also allowed.

Early dissolution

An agreement on the gratuitous use of real estate may be terminated before the lender expires in cases when the recipient:

1. The facility operates in violation of the terms of the transaction or for other purposes.
2. Does not fulfill obligations to maintain material assets in proper condition or their maintenance.
3. Transferred the property to a third party without the consent of the lender.
4. Significantly worsens the state of material values.

The recipient may terminate the agreement ahead of schedule if:

1. Defects of the object were discovered due to which its normal operation is impossible or burdensome, provided that he did not know and could not know about them when the conclusion of the contract for the gratuitous use of property was carried out.
2. The thing due to circumstances for which it is not responsible, was in a condition unsuitable for operation.
3. The lender did not warn about the rights of third parties to the property when drawing up the agreement.
4. The subject from which the thing was taken did not fulfill the obligation to provide it, accessories or documents related to it.

Operational Features

By issuing a transfer-acceptance certificate, the borrower assumes certain responsibilities. In particular, the facility should be operated in accordance with the terms of the agreement. If they are not spelled out in the document, the thing is used according to its purpose. The recipient is required to maintain wealth in good condition. This includes, among other things, capital repairs and all expenses for the maintenance of the thing, unless otherwise provided by the terms of the agreement. Everything inseparable improvements which the recipient has committed, act as his property, unless otherwise provided in the contract. If they were made without the consent of the lender, then the costs of them are not subject to compensation. A different condition may be established by agreement between the parties.

Taxation

In paragraph 8 of Art. 250 Tax Code established that the gratuitously acquired property relates to non-operating expenses. Clarifications on this subject were given by the Presidium of the Supreme Arbitration Court in Information Letter No. 98 dated December 22, 2005. It says that by operating an alien facility, the company receives property rights. Consequently, a benefit arises. Income derived from the use of property acquired under a gratuitous use agreement must be taken into account in calculating income tax. The cost of maintaining the object can be included in the costs when calculating the amount of mandatory payment to the budget. In this case, certain conditions must be met:

1. The activities of the enterprise in the use of material assets should be focused on making a profit.
2. Costs must comply with the characteristics defined in Art. 252 Tax Code.

Assessment Features

Profit is established on the basis of market value (subject to the provisions of Article 40 of the Tax Code) for the rental of similar property. This statement is contained in the Letter of the Ministry of Finance No. 03-03-04 / 1/359 of 04/19/2006. In another explanation, payers were allowed to independently establish the procedure by which the assessment of income relating to the gratuitous acquisition of property rights will be carried out. Moreover, the Ministry of Finance recalls that the scheme for calculating such tax revenues is not established. In addition, the letter indicates that the assessment of income is similar to the procedure for determining the market price for services, products, work acts as a right, not an obligation of the enterprise. Nevertheless, in any case, information about the cost must be confirmed by the borrower using the appropriate documents or through an independent assessment. Proving the identity of objects is quite problematic. To do this, the tax authorities should examine the price that has developed on the market for similar services under comparable economic conditions for rent. In addition, similar characteristics and similar components should be compared, allowing the object to perform the same functions.

Obtaining an object from the founder

According to paragraph 1, sub. 11 of the Tax Code, in the process of determining the tax base income in the form of property received from a participant in a company owning more than 50% of the charter capital is not taken into account. But in this situation we are talking about acquired material values. It does not apply to the gratuitous use of property.In this regard, the profit should be taken into account in the calculations. This is confirmed by the Letter of the Ministry of Finance No. 03-11-04 / 3/88.

Special modes of taxation

Enterprises operating on the simplified tax system, establish income under the provisions of Art. 250 and 249 NK. In accordance with this on the basis of paragraph. 8 Article. When such objects are received for free use, non-operating income appears in such companies with 250 tax codes. The company may apply in the course of UTII. The letter of the Ministry of Finance No. 03-11-04 / 3/83 says that taxation of economic profit is not necessary. This is due to the fact that in accordance with paragraph 8 of Art. 250 NK proceeds from gratuitous use relate to non-operating income. At the same time, companies operating with the use of UTII are not related to income tax expenses.

The procedure for the provision of objects from municipal (state) property

The decision to transfer property is made by the head of the executive branch. An entity interested in receiving an object sends an application to the management body. Within 30 days from the receipt of the appeal and the necessary documents, the head of the executive structure takes one of the decisions:

1. Conclude an agreement on the provision of gratuitous use of property with tendering.
2. Refuse the application.
3. Conclude an appropriate agreement without bidding.

In the first case, the tender (auction) is held in accordance with the procedure defined in the antitrust laws. Without bidding, property may be provided:

1. In accordance with international agreements, the Federal Law determining a different order of disposal of objects, court decisions, acts of the president of the country.
2. To state bodies, structures of territorial authority, extra-budgetary funds, and the Central Bank.
3. Municipal and state institutions, state corporations, state-owned companies.
4. Non-profit associations formed in the form of unions and associations (employers, workers, etc.), public and religious organizations, homeowners associations and others, provided that they carry out activities aimed at solving social problems and developing civil society in the Russian Federation.
5. Chambers of Commerce, Notaries, Lawyers.
6. To an entity having the rights to use / own the engineering communications network, if the property that is transferred is part of it, and in other cases.

The basis for the preparation of the contract is the resolution of the head of the executive body or the final protocol of tenders.

Contract for the gratuitous use of real estate