There are many ways to rent an apartment. Two main principles are enshrined in Russian law - through the conclusion of commercial lease agreements, as well as upon signing a social hiring contract. What is the difference? What legislative sources govern the relevant contracts?
Different types of hires
What is the difference between commercial tenancy and other types of real estate transactions? It can be noted that the specifics of the corresponding type of legal relationship is regulated by the civil and housing legislation of the Russian Federation. According to the provisions of the Civil Code of the Russian Federation, a rental contract implies that one of its parties (the owner or other authorized person) provides another premises for a fee in legal possession, accompanied by the right to reside. Since relations in the framework of this type of transaction involve monetary settlements, this means that commercial premises are being hired.
A variant is possible in which the owner of the premises is a public authority or the municipality. In this case, the discussion will most likely be about social hiring, under which there is no rent as such, that is, a person transfers to the authorities a certain amount in accordance with the established tariff.
However, the relationship between a citizen and the relevant authority often involves some kind of monetary settlement. And therefore, various legal sources entrenched, albeit an unofficial, but still regularly used term that characterizes such relationships - social commercial tenancy.
Social and commercial types of employment
One way or another, from the point of view of the civil legislation of the Russian Federation, social and commercial hiring are completely different legal categories. And this is despite the fact that the agreements that formalize the relevant relations have some common features - such as, for example, consensuality, retribution (although some lawyers consider this term not quite applicable to social recruitment), as well as reciprocity.
Thus, it matters who is the owner of the premises. At the same time, some lawyers note that the state or municipality may still be the owner of real estate under a contract of commercial, not having a social nature, hiring. And therefore, experts believe, it is not so much the status of the owner that matters, but the content of the contract.
Some lawyers believe that it is fundamentally important also who the employer is. Commercial tenancy is only applicable if the individual is renting the property. The subject of the relevant legal relations falling under the regulation of similar articles of civil law, a legal entity, as noted by lawyers, cannot be. However, there are options in which organizations act as intermediaries between the owner and the individual renting the apartment.
One way or another, the civil legislation of the Russian Federation provides for two main types of lease agreements, the subject of which is residential real estate. Firstly, this is the actual contract for the commercial rental of housing, under which the landlord can be a legal entity or an individual, and only a citizen can be a tenant. Secondly, it is a socially oriented contract. The lessor in it is the state or municipality, the lessee is an individual.
One of the fundamental criteria that distinguish between social and commercial tenancy is privatization. It is possible only if housing is provided in the appropriate preferential order by the state. In commercial relations, privatization is possible, if only the tenant will buy housing from the owner.
Consider the specifics of each of the contracts.
Social hiring: contract specifics
The social rental of housing is regulated by the Civil Code of the Russian Federation, as well as by relevant sources of law in the field of housing legislation, to which the Code can refer. The sphere in which such legal relations are carried out, according to the provisions of the Code, is sufficiently narrow - only state or municipal housing stock can be the subject of the relevant agreements. The legal status of tenants of apartments also matters.
A landlord under a social hiring contract is a government body that is the owner of a building located in a housing fund of a certain level - state or municipal.
In turn, only a citizen of Russia can be a tenant - housing is not provided to foreigners in the framework of the relevant agreements, unless otherwise provided in laws.
A person has the right to count on concluding a social hiring contract with the state or municipality if he is recognized as poor in the manner prescribed by law, as well as in need of housing.
Note that there may be several employers - as a rule, these are members of the same family. At the same time, it can be distant relatives - if it is proved that they conduct a common household with the employer. It is possible that a person will be identified as a member of the family of a citizen who rents a house in court.
Everyone who can live in an apartment under a social employment contract have the same rights and obligations. Obligations arising in accordance with the terms of the contract are subject to fulfillment under the condition of joint liability of all who live in an apartment rented from the state or municipality.
It is quite possible, as we have noted above, also commercial rental of housing from the state. However, in practice, even such contracts, albeit not quite officially, are often social. Moreover, as some lawyers note, the term “social” should be considered primarily in the context of providing preferential terms of the contract - in particular, in terms of the amount of rent.
What should the contract for the rental of housing from the state or municipality look like? Consider its structure.
Social hiring contract structure
First of all, the parties are indicated in the relevant type of contract. One is a citizen or his family, the other is a state or municipality.
The next component of the agreement is the object. It can be a dwelling, which is part of the fund at the appropriate level - state or municipal.
The next item is the payment terms. As a rule, it consists of three parts - the rent itself (it can be noted that under a social hiring contract it is more often referred to as the rent for the premises), compensation for utilities, as well as contributions for the repair and maintenance of housing. If, nevertheless, the state takes a fee for social hiring - most often this happens, then it is calculated, as a rule, on the basis of the area of the apartment at the rates established in relevant legal acts.
The rental of social housing also implies certain rights and obligations of the parties in accordance with an agreement of the corresponding type. As for the landlord, which is the state or the municipality, its obligations are usually related to the need to provide the tenant with a room that is free from any burdens, performing timely repairs, ensuring stable supplies of public utilities, etc.
In turn, the lessor on social hiring also has rights. They are also prescribed in the contract, and, as a rule, reflect the right to demand rental payments and utilities on time, as well as apply to the court in case of any violations.
The obligations of the tenant according to the contract are as follows: to use the apartment for its intended purpose, to ensure its safety, to make repairs if necessary, to pay rent and utilities on time.
The rights of the employer, fixed in the social rental agreements, are as follows: to instill other persons into the apartment, if this does not contradict the provisions of relevant laws and does not involve discomfort for neighbors. The citizen also has the right to demand timely overhaul from the owner.
Termination of social employment contract
The contract for the commercial lease of premises includes a clause on the termination of the relevant contract. The situation is similar with a social type agreement. Termination of the contract is possible at any time by mutual agreement of the parties. For this, it is sufficient for the employer to notify the landlord in writing.
The state or municipality - the subjects of real estate ownership - have the right to terminate the social contract of employment exclusively in court, and only if there are legal grounds.
Having considered how the contract is drawn up in which the lessor is the state, we study the specifics of the agreements that do not belong to the category of social. What exactly is commercial hiring?
The specifics of private contracts
According to Article 671 of the Civil Code of the Russian Federation, agreements on the transfer of residential premises for rent can be concluded between citizens, as well as individuals and legal entities, if the latter are owners of real estate. A commercial lease agreement does not require any administrative approvals and is not subject to mandatory registration with government agencies.
The object of the relevant agreement may be housing that meets the criteria defined at the level of construction, fire, sanitary and other standards significant from the point of view of operating the premises. It is important that the apartment has the official status of the premises, recorded in documents from the BTI.
A contract of commercial employment not classified as social is urgent. The Civil Code of the Russian Federation provides for two types of agreements depending on the terms - up to 1 year and up to 5 years. If the parties did not indicate the term in the terms of the contract, then it is considered to be signed for 5 years.
Unlike a social hiring agreement, in which only the tenant and his family members can live in an apartment rented from a state or municipality, commercial hiring, as a rule, does not imply restrictions on the residence of any people. In turn, all responsibility for the use of housing lies with the tenant.
At the same time, a variant is possible in which the commercial rental of a dwelling is made out with the participation of several tenants. And in this case, obligations under the contract apply to everyone who will be the subject of legal relations. Their responsibility becomes joint, including in the aspect of payment for housing. Its value, unlike a social type contract, is determined privately, and not based on norms that depend, for example, on the area of the apartment.
Moreover, as soon as the amount of the rent is fixed in the contract, it cannot be changed during the term of the agreement. Regarding the frequency of payment - it is determined privately. But if the parties did not fix this clause in the contract, then, according to Article 682 of the Civil Code of the Russian Federation, payments should be made monthly.
If a contract is signed for the commercial rental of housing from the state, then in general this document will meet the criteria discussed above.
Let us now examine the structure of such contracts.
Employment contract structure
This type of document should reflect:
- subject of the contract;
- type of real estate, its address;
- rights and obligations of the lessor and tenant;
- term of agreement;
- ways the employer fulfills his obligations;
- information on documents confirming ownership of housing;
- passport data of the lessor and tenant or other identification information;
- amount of rental payment, regularity of payment;
- list of property located inside the apartment;
- payment terms for utilities.
In some cases, other elements are included in the contract. For example, there is a commercial lease of housing with the right to buy. True, in Russian practice, such legal relations are rare. However, quite often they are practiced in Western countries. The corresponding term is not expressly enshrined in law, lawyers say.
According to experts, the existing legal acts contain provisions that can be used in the context of the regulation of legal relations, implying the rental of an apartment with the right to redeem it.
Experts recommend that citizens registering a commercial tenancy also sign with the landlord an act of acceptance and transfer of housing, which accompanies the main lease agreement. It should reflect the condition of walls, floors, windows, plumbing and other elements of the premises that are significant in terms of appearance and purpose.
Sublease
The main source of law that governs the category of commercial tenancy - the Civil Code of the Russian Federation - includes provisions on sublease, that is, on the possibility of a tenant who, by virtue of an agreement with the owner of the apartment, has the right to dispose of the property and enter into additional lease agreements with other persons.
The legal nature of sublease agreements is sufficiently similar to the specifics of the agreements between the tenant of the apartment and the homeowner. However, the respective contracts have some limitations. For example, such contracts cannot be signed for a period that exceeds the one fixed in the contract between the owner and the first tenant. If the first contract is terminated ahead of schedule, then the sublease is terminated.
The specificity of the sublease agreement is that the second tenant, as some lawyers note, does not receive a full right to use housing, in particular, he cannot dispose of it. In addition, the main tenant is responsible for the actions of his "counterparty" to the owner of the apartment.
In order for the main tenant to be able to sublease the apartment, then, according to the provisions of Article 685 of the Civil Code of the Russian Federation, the apartment must have a sufficient area: 12 sq. M. m. per person. This norm, in turn, contains another major law governing the commercial tenancy of a dwelling, the RF LC. That is, if the norm is less than the one specified in the Housing Code during the proposed introduction of the second tenant, then the sublease agreement cannot be concluded.
Preemptive right to renew the contract
Studying what is the commercial rental of housing, it is useful to pay attention to such an aspect as the preemptive right to extend the lease. According to Article 684 of the Civil Code of the Russian Federation, the owner of an apartment three months before the deadline for the expiration of the contract must offer the tenant new terms of the contract or confirm the current ones. If the landlord no longer wants to rent the apartment after the contract, then he is obliged to notify the tenant about it. If he does not, then the contract is extended for the same period for which it was originally concluded.
Even more interesting are the provisions of Article 684 of the Civil Code of the Russian Federation regarding the subsequent disposal by the lessor of his property when the previous contract has been completed and not renewed. So, in the Civil Code, in particular, it is said that the owner of the property is not entitled to conclude an agreement with someone to rent an apartment during the year, if he informed the previous tenant that he is not going to rent out housing.
Such is the specificity of the laws governing the commercial rental of residential premises. Judicial practice related to the exercise by citizens of their respective rights, as some experts note, is ambiguous. The fact is that far from always the employer manages to prove in practice that he did not receive the appropriate warning.
Termination of a Commercial Contract
We examined the main aspects of such a legal category as commercial tenancy. What is it, now you know. It will also be useful to consider the nuance reflecting the termination of the relevant type of contract. According to Article 687 of the Civil Code of the Russian Federation, both the landlord and the tenant can terminate legal relations under a commercial lease agreement.
True, the second in this sense has much more possibilities. In order to terminate the lease, the tenant may notify of his desire to terminate the legal relationship three months before the expiration of the current contract without explanation. The law gives the landlord the right to terminate the contract in court.
In this case, the lessor must have good reason for termination of the contract. For example, systematic delays in making tenant payments or neglect by the tenant of the obligation to maintain the apartment in good condition.
