The Civil Code provides for freedom of contract as one of the foundations of the law. However, despite this, various requirements are presented to the contracts according to the law and customs of business circulation. The latter includes the prevailing rules of conduct in the field of entrepreneurial activity, which must be implemented regardless of whether they are enshrined in a legal document or not. This is stated in Art. 5 Civil Code of the Russian Federation. The article will focus on the essential conditions of a tenancy agreement, that is, those that should be included in it (according to the law or custom of a business turnover).
Subject of the contract
The basic conditions without which the contract is invalid are still debated. But for the owner of the real estate that he intends to rent, the main goal is to arrange the relationship in such a way that all the rules of the law are respected and conflict situations do not arise.
It is these theses that we will focus on when drafting the agreement. In Art. 432 of the Civil Code of the Russian Federation states that a contract is concluded if there is agreement between the parties on all the essential terms of the contract (rental of premises, according to the topic of the article).
The subject matter, the conditions specified in the law, as well as in other legal acts, called necessary, and other conditions under which one of the parties requires agreement, are essential.
Structure and material conditions
The law does not provide for a strict procedure for drawing up an agreement. However, it must comply with the customs of business circulation and have all the essential terms of the social tenancy agreement. According to them, the structure should have the following form:
- Preamble.
- Thing.
- Additional terms.
- Other conditions.
The preamble shall indicate the name of the contract, the date and place of its conclusion, information about persons. The subject includes what the parties agree on.
Next, the price and settlement procedure are indicated, where the size of the fee is prescribed, as well as the transfer procedure. The section on the rights and obligations of the parties describes separately the rights and obligations of the landlord and tenant, including the agreements reached. You should also indicate responsibility for violation of the terms of the agreement, security of obligations (for example, about a deposit), validity periods, grounds for amendment and termination, confidentiality and procedure for resolving conflict situations. All this is an essential condition of a tenancy agreement.
Other conditions include references to the provisions of laws, the number of copies, force majeure, and so on. At the end, details are required, and the parties put their signatures.
Price
The price is stated in Art. 682 of the Civil Code of the Russian Federation. Also an indication of this can be found in Art. 671 of the Civil Code of the Russian Federation. It is established by agreement of the parties. Payment for rent is also provided for in the case of state and municipal housing, about which there are provisions of Art. 156 LCD RF.
The contractual indicator of the fee does not mean that the parties establish it in an arbitrary and unreasonable manner. According to parts 2 and 4 of Art. 156 LCD RF, the amount for the use and maintenance of residential premises of the municipal and state funds depends on the area, amenities, location of the house. The same criteria are followed when setting the price under a commercial lease agreement.
The law may establish the maximum amount of rent for a dwelling.Then, if a higher price is indicated in the contract, the corresponding condition will be declared invalid. This does not invalidate the contract as a whole. However, instead of the price specified in it, the maximum amount will be paid. In this case, the landlord will not be able to make claims against the tenant. True, despite the established norm, no one has yet used it, since the maximum limit for payment under a commercial lease agreement is not provided anywhere.
Term
An essential condition of a tenancy agreement is the term. It can be concluded for a period of less than a year. Then it is considered short-term. If the period exceeds one year, then the contract is long-term. The maximum period for which a tenancy agreement may be made is five years. Therefore, even if the parties enter into a contract for a longer period, it will be valid only for five years.
The provisions on registration of a long-term contract do not apply to employment. Despite this, many real estate experts believe (or pretend) that the agreement will have to be registered with Rosreestr. And they recommend concluding a contract for only 11 months. At the same time, this option is often suitable for tenants, since during this time they will be able to solve the question of how satisfied they are with the apartment and whether they want to stay further or not.
Termination
Among the essential terms of the contract of rental of premises of the Civil Code of the Russian Federation provides for its termination by one of the parties (by the lessor through the court, and by the lessee at any time with a notice of the lessor for 3 months). The parties may also indicate in the contract a shorter period for notifying the landlord about the termination of the agreement. However, this is contrary to the law (Article 687 of the Civil Code). You must understand that without submitting a notice, the landlord may, through a court of law, oblige the tenant to pay a living fee. Therefore, the tenant should not ignore this stage, but it should be prescribed as an essential condition of the contract for the rental of specialized residential premises.
Act of Acceptance: Judicial Practice
Between employers and landlords often disputes arise. They may relate to damage to property, the formation of debt, the occurrence of losses and so on. Their resolution largely depends on the drawn up agreement and the display of the essential terms of the contract for the commercial rental of premises.
In addition to it, an act of acceptance of the property is prepared, which indicates information about the condition and existing defects. This is necessary, since without it the tenant will have to bear responsibility for the shortcomings of the room. If the act states that the premises were transferred in good condition, the court will not take into account the objection of the tenant that the corresponding defects existed initially. If the act is absent, the landlord will not be able to prove that the premises were damaged, since there is no documentary information about its original condition. An example is the determination of the court of appeal of the Ulyanovsk district No. 33-3165 / 2013 of March 3, 2013.
List of attached property
The act of acceptance must also indicate which items are transferred for use and their estimated value. Then it will be easier for the owner to prove the existence of losses if the property is damaged.
The owner must eliminate the defects if they are not caused by the fault of the tenant. If this is done untimely, the tenant has a reason to terminate the contract. And if the shortcomings were not significant, then the employer has no reason to refuse the contract. The relevant decision was made by the Moscow City Court in case No. 33-26040 of August 18, 2011.
Possible losses for the employer
Under the essential terms of the lease agreement in judicial practice, decisions are made both in favor of tenants and in favor of landlords. The tenant runs the risk of incurring losses, for example, due to the need to rent other housing, if the owner has denied access to the rented apartment. In life, it often happens that owners drive out tenants, causing them inconvenience and forcing them to seek new housing. In the absence of appropriate grounds, the lessee has the right to demand compensation from the landlord.
At the same time, expenses should be economical, close to the payment for the premises, or even less. Other housing should be approximately the same as the previous one, since it is in the interests of the tenant to reduce their losses if possible. This is stated in Art. 404 of the Civil Code of the Russian Federation. Losses that must be reimbursed cannot be attributed to expenses that exceed the rental price, for example, when renting a hotel room. This was adopted by the Decision of the Moscow City Court No. 4g / 8-9143 / 2012 of October 23, 2012.
Also, the employer will not be able to claim damages if the reason was his fault, for example, if the debt was not paid. Since along with the obligation to provide housing, on the one hand, there is an obligation to pay it, on the other hand, the landlord has the right to suspend access to the premises until the debt is paid.
Conclusion
Each tenant and landlord decides how they build relationships. But in order to avoid problems in the future, it is worthwhile to carefully study the essential terms of the contract for the rental of housing and make sure that all the interests of the parties are respected. Then, in the event of conflict, you can count on a fair court decision, since for this all necessary documents will be available.
