A lease agreement implies a transaction in which the owner (lessor) undertakes to transfer property to the user (lessee) for a certain period of time, and the lessee undertakes to pay for using it. As with any other contract, an important condition in this case is its subject. It depends on him the legal consequences, including the term of the lease. For an indefinite period or a certain contract is concluded - this is another essential condition of any contract. It is very important for the parties to determine the period of validity. But, in addition to this, there are legislative norms, according to which the period does not always correspond to their will.
Lease and hire: how to distinguish
Before you begin to study the terms, it is worth understanding the concepts that ordinary people often confuse. It is about renting and hiring. The main difference is that the lease agreement is accepted in relation to an individual, while the lease agreement is accepted in relation to a legal entity. Other significant differences include the following:
- An object. If for rent it can be exclusively residential premises, then when renting it is an office, sites for production and trade, as well as warehouses.
- The parties to the lease are the landlord and tenant, while in a lease it is the landlord and tenant. The relevant terms must be indicated in the contract.
- In case of conflict situations under the employment contract, you can try to resolve them through a real estate agency. If we are talking about a lease, then most often they turn to private lawyers for help.
- The term of the contract. If the lease can be issued for any period, then the lease is only for a period not exceeding five years. Thus, if the term is not specified in the contract of employment, then by default the limit period of its validity is five years.
- Legal relationships under a lease are regulated on the basis of Ch. 34 of the Civil Code of the Russian Federation, and with respect to the contract of employment, Ch. 35 of the Civil Code of the Russian Federation.
- If a debt arises from a legal entity, it is easier to collect it, since the latter, as a rule, have property, as well as cash in the current account. If citizens are limited in solvency, for example, in the absence of work, then it will be more difficult to do.
Understanding the differences in hiring and renting, we proceed directly to the lease, in particular, to the period of action.
Features of the lease term
The validity period is a time period, which is determined by mutual agreement of the parties. In accordance with it, lease legal relations begin and end.
According to this indicator, the tenant has obligations to pay rented property. In turn, the owner must transfer the property to the user in an appropriate period.
The beginning and end of the transaction depends on the term of the lease. An agreement is concluded for an indefinite period or a certain period, its validity begins at the beginning of the day, and ends at the end of the day (at 24:00). Consequently, the termination of the contract (if the tenant sent a notice on the termination of further legal relations) falls at 24:00 that date, which is defined in the document.
Types of lease agreements
Article 610 of the Civil Code of the Russian Federation explains the term of a lease. For an indefinite period, he shall be deemed to be concluded if the content fails to establish the exact date. Such a document is also called perpetual.
However, in a literal sense, such a concept cannot be interpreted. Any lease agreement provides for a certain period, since the thing is transferred for use, and not in the ownership of the other party. In the absence of a specific period, it is more correct to talk about the possibility of the parties at any time to terminate the legal relationship. True, for this it is first necessary to notify the other side.
There are also short-term contracts. They are often enclosed when renting a dwelling. A short-term contract is mainly concluded for 11 months. Due to this, there is no need to register it with Rosreestr. A lease agreement can be concluded for two months, for several weeks, days and even hours.
Short-term contracts are the most profitable for the lessor, as they not only allow you to get more profit, but also restrict the tenant in certain rights, and also make it possible to avoid paying tax.
The law provides for such a concept as the limit period of the contract. It can not only be indicated in the agreement, but is also required by law. The condition is valid, for example, when leasing land plots and plots having minerals, as well as water bodies. The legislation establishes the maximum terms at which this property can be transferred for use.
As a rule, this property belongs to the state, as a citizen or company, being the owner, has more opportunities for expression of will. Therefore, this point must be taken into account when signing the contract.
There are cases when the legislation sets a time limit for a leased object, and the parties did not provide for a lease term. For an indefinite period, although it is believed that a contract has been concluded, it will only be valid until the end of the limit period. However, if one of the parties wishes, it can withdraw from the contract at an earlier time without legal consequences.
Another type of document is called a fixed-term contract. This means that it clearly spells out a specific validity period or is attached to the onset of a specific event. For example, a cottage rental agreement may stipulate the condition: “before the conclusion of the purchase and sale transaction” or “before entering into the inheritance”.
Long-term contracts are mainly concluded for rent:
- Land plot.
- Bowels
- Water body.
The legal relationship under such agreements can be further transformed by the fact that the tenant gets the opportunity to become a full-fledged owner. For example, if a plot of land is registered under the management of a subsidiary farm for a period of 49 years, then when a house is erected on it (in the form of a capital structure), the land can be re-registered as property.
Grounds for concluding an agreement for an indefinite period
The legislation provides for the possibility of concluding an agreement on the lease of property for an indefinite period on the following grounds:
- Not specifying the term in the contract.
- The extension of the existing contract, using the preemptive right.
Renewal
If a person who has rented a particular property has complied with the conditions during the entire period of the contract, then he has the preemptive right to conclude an appropriate lease agreement. Renewed for an indefinite period or for a clearly defined period - it is possible under a number of conditions. These include the following:
- There are no violations during the validity of the original contract.
- The user of the premises is ready to offer the owner favorable terms for renewal in comparison with those offers that other applicants have.
- The pre-notification condition has been met, which expresses a desire to continue the relevant legal relationship.
It is believed that the contract lease extended indefinitely if the tenant has not terminated the right to use the property, and the lessor does not create obstacles for this. In this case, the terms of the agreement remain the same, with the exception of cases in which the parties declare otherwise.
However, by law, the tenant must notify the owner in writing of the intention to continue to rent the property within a reasonable time until the end of the document. If the parties wish to make any changes, they must conclude an additional agreement in which it will be displayed. Often parties change the terms of a lease.
In the case of housing, it is more profitable for the tenant to decide in advance on what period the lease agreement for the premises will be concluded. For an indefinite period, very rarely do future residents agree to settle. The period is one of the most important points of the agreement. Therefore, it is recommended that the document prescribe the condition that the period will be unchanged throughout the entire duration of the action.
If the lease agreement as well as the rental of a room or other object is long-term, then it is accompanied by a mandatory state registration procedure.
Actions of the parties upon expiration
In cases where the contract has expired and the tenant has not vacated the premises and the lessor does not object, the right to use the property continues on the same terms. Moreover, the contract is considered prolonged for a similar period. If the tenant does not wish to own the property in the future, he must notify the landlord. Otherwise, undesirable consequences may occur. As a rule, this condition is prescribed in the contract.
If the tenant vacated the premises, but did not inform the owner about it, then they may be required to pay for the period in which the lessor was not aware of these actions. If the tenant refuses to give the property after the expiration of the contract, the owner can get it by going to court. The main condition in this case is compliance with the limitation period.
Termination of an agreement
If the lease is concluded for an indefinite period, then it is possible to terminate it at any time by agreement of the parties or unilaterally. In the latter case, under certain conditions, you will have to go to court. Unilateral refusal is confirmed by judicial practice. For example, about this there is a determination of the Supreme Arbitration Court of the Russian Federation No. VAS-10796/13 in relation to case No. A33-8577 / 2012.
Termination of the lease for an indefinite period is also provided for by the current legislation in the form of the notification mentioned above. Information on this is contained in Art. 610 of the Civil Code of the Russian Federation. To terminate the contract, the lessee must notify the landlord within a specified period. The notification should be sent in the prescribed manner. If this is not done, then when applying to the judicial authority the court will consider this abuse.
Care must be taken to ensure that the notification is documented. To this end, you need to make an inventory of investments.
Protection methods
For the parties to the contract, different protection methods are applied. So, if the lessor sends a notice to the lessee, and the latter does not vacate the premises, then the lessor has the right to present the following requirements to the lessee:
- Make a payment for the entire lease term. Funds may be recovered as unjust enrichment. Since at this point the contract is already considered terminated, the collection in the form of rent will be incorrect.
- Free up space. This requirement must be distinguished from the vindication one, since it is a question of a legal issue. In case of lease relations, protection methods are applied that are based on the provisions of Art. 610 of the Civil Code of the Russian Federation.
This approach is confirmed by Decree of the Supreme Arbitration Court of Ukraine No. 16253/11, adopted in the case No. A40-13860 / 10-40-812.
The tenant’s interest is usually to keep the relationship going even after receiving notice of termination of the lease. His method of protection is chosen depending on who the landlord is and who stands on his side, as well as on his actions.
For example, if a lease agreement is concluded for an indefinite period, but government agencies are on the side of the lessor, then the challenge will be carried out in accordance with Sec. 24 agribusiness of the Russian Federation. This is evidenced by judicial practice, for example, the FAS Resolution in the case No. A57-3636 / 2012. At the same time, judicial practice knows cases in which this method of protection was recognized as incorrect. So, by the Decision of the FAS in case No. A55-25220 / 2012, the requirement to recognize the decision of the state body on unilateral refusal to fulfill the lease of the land was illegal. The court explained this decision by the fact that the applicant chose an inadequate method of protection, since the legal relations of the parties to the contract are civil law and do not follow from the public powers of the state. body.
There were also cases of the requirement to recognize the lease of land for an indefinite period valid. In particular, this is the Resolution of the FAS ZCO in the case No. A45-24711 / 2012, as well as the Resolution of the FAS Central Organ in the case No. A62-7460 / 2012. The courts, considering the relevant requirements, were guided by the following points:
- Whether the contract was really concluded for an indefinite period.
- Whether a notice of termination has been sent.
- Are the conditions met when sending a notification.
- Was it received by a second party.
Contract registration
The lease of housing (or non-residential premises) concluded for a period of up to one year is not subject to registration (as a rule, their validity period is 11 months). State registration of a lease agreement for an indefinite period is also not carried out despite the fact that in fact the validity period of the document may exceed one year. This can be understood by reading the provisions of paragraph 2 of Art. 651 of the Civil Code of the Russian Federation, which indicates that state registration relates to fixed-term contracts, the validity of which is more than one year. This is also confirmed by the arbitration practice, in particular, the Resolution of the FAS of Moscow in the case No. KG-A40 / 6418-00, the Resolution of the FAS SZO in the case No. A26-394 / 2007 and other acts.
Not only is it necessary to register a lease agreement concluded for an indefinite period, but also a renewed document. The basis for this is paragraph 2 of Art. 621 of the Civil Code of the Russian Federation. Other documents that confirm this provision include an information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 59.
In practice, to study the lease for an indefinite period, the sample presented below will help best.
The main feature is the lack of mention of the period of validity. The rest of the document is a regular lease.
Conclusion
Regardless of whether the lease for an indefinite period is subject to registration or not, there are positive and negative points in it. The tenant may be concerned that the landlord has the right to terminate the contract at any time if he notifies the tenant properly. The landlord must have evidence that he actually sent a notice to the tenant.