Termination of the lease by the lessor unilaterally. How to terminate an apartment rental agreement early

For any reason, the lessee may wish to terminate the lease early. We will tell in the article what are the grounds, procedure and methods for terminating the lease at the tenant's initiative.

First of all, it should be said that in the concluded document itself, often, reasons are prescribed that may serve as grounds for the termination of the lease relationship by the tenant. However, they are not always indicated, or the tenant has other grounds for terminating the contract.

According to the law, the lessee can terminate the contract in two ways:

By agreeing with the landlord and drawing up an additional termination agreement with him.
Judicially.

In the first case, the reason does not really matter, since the landlord does not resist and does not interfere with the termination. This is not enough to terminate the lease in court. The lessee can file a claim with the requirement to terminate the contract only if there are the following grounds:

After the conclusion of the contract, the owner of the property does not transfer it to the use of the lessee.
The owner in every possible way prevents the use of the property. This will be the basis if the tenant tries to use the subject of the agreement in accordance with its purpose or with the qualities determined by the agreement.
The owner handed over for use the property with significant deficiencies and because of them the tenant cannot use it in accordance with its intended purpose. This reason can become the basis only if the tenant did not know about the shortcomings before the conclusion of the contract.
The landlord does not fulfill his obligations arising at the time of signing the contract (for example, does not overhaul).
Emerged emergency, which could not have been foreseen before the conclusion of the contract, as a result of which the tenant can no longer physically use the leased property.

If the termination will take place in court, it is necessary to substantiate the reason for initiating the termination in documents.

The papers must be properly drawn up, otherwise the court may recognize that both parties are guilty of the reason for the termination. It is better to contact a professional lawyer for advice.

Termination of the lease agreement unilaterally without trial

Termination of the lease is possible without involving the courts. Typically, this requires certain conditions in the lease document itself. For example, the contract may include an explicit indication of the possibility of termination at the initiative of the tenant. Then you will not need to go to court.

The answer to the question of whether the tenant can terminate the lease without a trial depends on how long the lease was concluded for. There are two possibilities.

Contract without expiration date. In this case, termination is possible at any time. It is enough to notify the owner of the property about it. Notification is sent three months in advance if the subject of the contract is real estate (Article 610 of the Civil Code of the Russian Federation).
Agreement with a validity period. Such a document cannot be terminated without a trial and good reason. An exception is the indication of the tenant's right to terminate in the contract itself.

Despite the fact that the Civil Code of the Russian Federation spelled out the need to go to court to terminate the lease agreement, this does not preclude the indication in the agreement of the right to early terminate lease relations.

If the terms of termination are indicated in the contract, the clauses should be clearly formulated, avoiding ambiguity. Otherwise, the court may not interpret the contract in your favor. In the process of discussing and drafting a contract, we recommend using the help of a lawyer.

Dear Readers! We've covered standard methods for solving legal problems, but your case may be special. We will help find a solution to your problem for free - just call our legal advisor by phone:

It is fast and is free! You can also quickly get an answer through the consultant form on the website.

How to terminate the lease early through the court?

If it was not possible to agree with the landlord, you will have to go to the courts to terminate the lease. The statement of claim can only be made after sending a written notice to the landlord.

In this document, it is necessary to indicate:

data of the parties to the lease relationship;
a valid reason for terminating the contract;
terms of termination of rental relations;
the date of the notification;
personal signature.

The notice of the desire to terminate the contract is drawn up in two copies. One remains with the tenant, the second is sent to the owner. It is recommended to send a notification by mail, registered mail with a list of attachments. After receiving the notification by the addressee, he has a month to think and respond.

In case of ignoring the notice or refusal of the lessor, the tenant has the right to apply to the judicial authorities to terminate the contract.

There are two options for terminating the lease through the courts:

The lessor violated the terms of the contract (Article 620 of the Civil Code of the Russian Federation). You will need to prove to the court that the owner intentionally prevents the use of the property, or the subject of the contract has significant flaws, due to which it is impossible to use it for its intended purpose. Other violations of the contract by the lessor may also be taken into account.
The circumstances under which the lease agreement was drawn up have changed significantly (Article 451 of the Civil Code of the Russian Federation). Such circumstances include significant changes, in the presence of which previously, the contract would not have been drawn up or was drawn up on different terms. You will need to prove to the court that the parties did not allow such changes and could not influence them.

It is important to note that the fact that the landlord's property is vacated is not a reason for terminating the payment of rent.

This obligation is removed from the tenant only after the signing of the acceptance certificate and an additional agreement on termination of the contract.

Agreement on termination of a lease agreement for an apartment or other property

An agreement to terminate a lease for an apartment or other real estate is a document that sets out the intentions of the lessee and the lessor to terminate all relations regarding this property. The agreement is a supplement to the lease agreement, therefore it is drawn up by analogy. For example, if a lease has passed the state registration procedure, the termination agreement must also be registered.

There are several rules for drafting a termination agreement:

Names and identification of the parties must be provided. They are drawn up and registered by analogy with the contract.
After the parties have been listed, the intention to terminate the contract must be prescribed, indicating its details and the date of conclusion. It is also recommended to prescribe the procedure for transferring property and information on the settlements made between the tenant and the lessor.
It is recommended to register the number of copies of the agreement.
Personal signatures of the parties must be affixed. If one of the parties is an organization, a seal is affixed.

It is better to document the fact of transfer of property. For real estate, it is recommended to draw up a detailed inventory and an act of acceptance and transfer. These documents will be proof that the host has no claims against the tenant. If you have a question, use the advice of a lawyer.

Procedure early termination a lease agreement consists of three stages:

sending a written warning by the lessor about the need for the lessee to fulfill the obligation within a reasonable time (paragraph 7 of article 619 of the Civil Code of the Russian Federation);

a proposal to terminate the contract due to the lessee's failure to fulfill the requirements set forth in the warning within a reasonable time (clause 2 of article 452 of the Civil Code of the Russian Federation);

the requirement to terminate the contract in court. Its lessor can declare after receiving a refusal to terminate the contract or in case of failure to receive an answer within the time period specified in the proposal to terminate the contract, and if the term is not specified in the proposal, then within thirty days after receiving the said proposal (clause 2 of article 452 of the Civil Code of the Russian Federation ).

There is no requirement in the law for the mandatory sequential passage of all stages of the termination procedure. In other words, the first and second stages can be combined. To do this, it is enough to indicate in the claim both the need to eliminate the violations committed by the tenant and to terminate the contract if this requirement is not met. In this case, it is better to choose a method of filing a claim, the use of which will allow the lessor to prove the direction of a specific claim to them. In particular, this method can be a valuable letter with an inventory of the attachment and a receipt acknowledgment. After that, if the tenant does not respond to the claim or refuses to comply with the lessor's request, you can immediately go to court with a claim to terminate the contract.

However, if the request to terminate the contract was not sent to the tenant either together with a warning about the elimination of the violations committed, or separately, then the statement of claim for termination of the contract will be filed in violation of the pre-trial procedure for resolving the dispute. This means that negative consequences stipulated by the law will occur for the landlord. In particular, the court will not accept the statement of claim for proceedings and return it to the applicant, and leave the wrongly accepted claim without consideration. This conclusion is contained in paragraph 29 of the information letter No. 66. This conclusion is also confirmed by the decision of the FAS of the North Caucasus District of October 25, 2010 in case No. A15-1334 / 2009.

Advice: at It makes sense in the contract to prescribe a period during which the tenant will have to eliminate the violations and inform the lessor about it (for example, one month from the date of receipt of the claim). In addition, it is recommended to indicate in the contract the mailing address to which the lessor's claims will have to be sent, especially if the organization does not match the actual and legal addresses.

An example of a clause in the agreement on sending a warning to the tenant

“All claims against the tenant for violations of the terms of this Agreement are sent by mail to the following address: (full mailing address of the tenant), or handed over to an authorized representative of the tenant against receipt at the following address: (full address of the actual location of the tenant). The Lessee within 30 (thirty) calendar days from the date of receipt of the claim from the Lessor is obliged to eliminate the violations of the terms of the agreement and inform the Lessor about it in writing. Otherwise, the Landlord has the right to apply to the court with a demand to terminate this agreement. "

Extrajudicial termination of the lease agreement

Usually, landlords seek to include in the contract a clause stating that in the event of a material violation by the tenant of the terms of the contract, it can be terminated out of court and without prior notice to the tenant about the need to eliminate the violations.

An example of a condition on termination of the contract at the request of the lessor out of court

"The Lessor has the right to unilaterally terminate this Agreement without going to court with prior written notice to the Lessee in 30 (thirty) calendar days in case of a significant violation by the Lessee of the terms of this Agreement."

Clauses of this kind do not contradict the law, but they use another method of terminating the contract - termination due to unilateral refusal to fulfill the contract (Article 310, Clause 1, Article 450.1 of the Civil Code of the Russian Federation). Meaning this mechanism in the fact that in the event of a unilateral refusal to perform, the contract is considered terminated (clause 2 of article 450.1 of the Civil Code of the Russian Federation). At the same time, in order to exercise the right to unilaterally refuse to execute the contract, it is not required to go to court with a claim to terminate the contract. The agreement will be deemed terminated from the moment when the party entitled to unilateral withdrawal from the agreement communicates its decision in the proper form to the counterparty under the agreement, unless otherwise specified in the agreement. For example, the contract may state that it is considered terminated after one month from the date the lessee receives the relevant notice from the lessor.

Termination of a lease agreement by unilateral refusal to fulfill the agreement is much more convenient for the lessor in comparison with termination of the agreement in court. Indeed, in this case, it is not necessary to first send a claim to the tenant and wait for an answer to it, and then also seek a court decision by participating in court proceedings. However, not every tenant agrees to include clauses in the contract that give the lessor the right to withdraw from the contract.

It also happens that the lessee requires the inclusion of conditions in the contract that give the right to unilaterally withdraw from the contract not only by the lessor, but also by the lessee.

An example of a clause of an agreement giving each of the parties the right to withdraw from the agreement out of court

"Either of the parties in accordance with paragraph 1 of Article 450.1 has the right to unilaterally, without going to court, refuse to execute this Agreement with prior notification of the other party in writing 30 (thirty) calendar days in advance."

In this case, the lessor will also bear the risk that his counterparty may withdraw from the contract at any time, and the lessor will urgently have to look for a client for the vacated real estate. Therefore, when agreeing on the text of the agreement, it is necessary to weigh all the risks associated with the possible inclusion of such conditions in the agreement.

The right to unilateral refusal to perform a contract may be provided by law or contract.

The law establishes such a right only for perpetual lease agreements. If the lease agreement is concluded for an indefinite period, then the lessor has the right to cancel the agreement at any time, notifying the other party about this one month in advance, and in the case of real estate lease - three months in advance. The law or the contract may provide for a different period for warning about the termination of a lease concluded for an indefinite period. Such rules are established in paragraph 2 of Article 610 of the Civil Code of the Russian Federation. As the Plenum of the Supreme Arbitration Court of the Russian Federation explained, this rule is formulated imperatively and cannot be changed by agreement of the parties. This means that the parties to the lease cannot completely exclude the right to withdraw from the contract, which is concluded for an indefinite period. The fact is that otherwise the transfer of property into possession and use would actually have lost its temporary character, and this contradicts the essence of the lease agreement. Such clarifications are contained in paragraph 4 of clause 3 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of March 14, 2014 No. 16 "On freedom of contract and its limits."

Question: in what cases is a lease agreement considered concluded for an indefinite period?

A lease agreement is considered to be indefinite (concluded for an indefinite period) in the following cases.

the lease term is not specified in the contract;

in the contract, the lease term is determined by indicating an event that depends on the will of the parties.

Rationale: The term in civil law relations can be determined by indicating only such an event that must inevitably occur and does not depend on the will and actions of the parties (paragraph 2 of article 190 of the Civil Code of the Russian Federation, paragraph 4 of information letter No. 66). In particular, the term of the contract will not be agreed upon if its beginning is associated with the state registration of the lessor's ownership of the premises, or if its termination is associated with capital repairs of the premises or reconstruction of the building.

Practical example : the courts have named a number of situations in which lease agreements are recognized as perpetual

The courts recognize lease contracts as perpetual if they are concluded for the following period:

until the complete connection of the lessor to the lessee (Resolution of the Federal Antimonopoly Service of the Central District of April 20, 2005 No. A48-5198 / 04-7);

until the tenant is liquidated (resolution of the Federal Antimonopoly Service of the North-West District of July 17, 2009 in case No. A13-10727 / 2008);

before the start of the planned development (resolution of the Federal Antimonopoly Service of the West Siberian District of December 21, 2009 in case No. A75-2721 / 2009);

until the privatization of the premises (resolution of the Fourth Arbitration Court of Appeal dated July 1, 2010 in case No. A78-481 / 2010).

r /\u003e

3. The term of the contract has expired, but the tenant continues to use the property (clause 2 of article 621 of the Civil Code of the Russian Federation).

The lessor's right to refuse to fulfill the obligation may be spelled out in the contract itself. The right to unilaterally withdraw from the contract may be:

1) unconditional - that is, the right to withdraw from the contract can be exercised at any time;

An example of a condition securing the unconditional right to withdraw from the contract

"The lessor, in accordance with paragraph 1 of Article 450.1 of the Civil Code of the Russian Federation, has the right to unilaterally, without going to court, refuse to execute this Agreement with a prior written notice to the tenant 30 (thirty) calendar days in advance."

-------------

Practical example : the court of cassation recognized the unilateral refusal of the lessor from the lease agreement as legitimate in the absence of violations of the terms of the agreement by the lessee

The parties entered into a short-term rental agreement for real estate. At the end of the validity period, the parties did not declare its termination. In this regard, the contract was renewed for an indefinite period.

Several years later, the landlord sent the tenant a letter of termination of the contract after three months from the date of receipt of the notification by the addressee.

The tenant considered that he did not violate any terms of the contract, and therefore the refusal of the landlord from the contract is a form of abuse of rights, does not comply with the law and violates his rights. In this regard, the lessee applied to the arbitration court with a claim to recognize the lease agreement as not terminated, to establish the term of the lease agreement and the obligation of the lessor to prepare and transfer three signed copies of the agreement to the lessee within one month from the date the court decision entered into legal force.

The courts of first and appellate instance dismissed the claim, since the plaintiff, in accordance with the law, exercised his right to unilaterally withdraw from the contract, and the defendant received a corresponding notification from the plaintiff.

The cassation court indicated the following.

Each of the parties to the lease agreement has the right to withdraw from the agreement at any time, notifying the other party about it one month in advance, and when renting real estate, three months in advance (paragraph 2, clause 2, article 610 of the Civil Code of the Russian Federation). Thus, the defendant, as a landlord, exercised his right to withdraw from the contract in accordance with the law.

The applicant's argument in cassation that the courts did not qualify the defendant's behavior as an abuse of law is untenable.

The law prohibits taking actions to implement civil rights solely with the intention of causing harm to another person, actions bypassing the law with an unlawful purpose, as well as other knowingly unfair exercise of civil rights (clause 1 of article 10 of the Civil Code of the Russian Federation). At the same time, the defendant's refusal from the lease agreement is not an abuse of the right by the plaintiff. The fact is that the exercise of the right to unilaterally withdraw from the contract does not indicate the intention to harm another person or other abuse of the right.

Citizens and legal entities are free to conclude an agreement, and compulsion to conclude an agreement is not allowed, except in cases where such an obligation is provided for by law or a voluntarily accepted obligation (clause 1 of article 421 of the Civil Code of the Russian Federation). By virtue of the law, the defendant has no obligation to extend the lease of real estate, he did not voluntarily accept such obligations.

In addition, the plaintiff, carrying out entrepreneurial (at his own risk) activities and concluding a short-term lease, should and could have assumed possible consequences such a lease term. The plaintiff also had to foresee that the other party to the transaction would have the right to terminate it unilaterally if the lease was renewed for an indefinite period.

Based on the foregoing, the cassation court left the appealed judicial acts unchanged (resolution of the Federal Antimonopoly Service of the Moscow District of June 11, 2014 in case No. A40-64325 / 13-37-360).

2) conditional - that is, the right to withdraw from the contract can be exercised only upon the occurrence of certain circumstances.

An example of a clause securing the right to withdraw from a contract under certain circumstances

"The lessor, with an increase in the staffing of its employees to 100 people or more in accordance with paragraph 1 of Article 450.1 of the Civil Code of the Russian Federation, has the right to refuse to execute this Agreement with prior notification of the lessee in writing 30 (thirty) calendar days in advance."

At the same time, if, if there are grounds for canceling the contract, the party that has the right to such a cancellation confirms the validity of the contract, including accepting performance under the contract from the counterparty, subsequent cancellation on the same grounds is not allowed (clause 5 of Art. 450.1 of the Civil Code of the Russian Federation). In relations between entrepreneurs, this rule is valid when otherwise is not provided for in the law or in the contract (clause 6 of article 450.1 of the Civil Code of the Russian Federation). However, this rule does not apply to cases where similar circumstances, which are grounds for withdrawal from the contract, arise again.

For example, if a lessor, who has the right to withdraw from the contract if the tenant is late in paying the rent for at least one day, does not do this and continues to accept rent payments from the tenant, then it will be considered that the landlord did not use his right to withdraw from the contract. However, with the next delay, the landlord will again have a corresponding right to withdraw from the contract.

It may happen that the condition on the possibility of termination of the contract by the lessor is not clearly formulated in the contract. In this case, it is unclear whether it gives the lessor the right to terminate the contract in court, or the right to refuse to perform the contract out of court. In this case, it is recommended to proceed from the following. If the agreement indicates the possibility of terminating the agreement "unilaterally", or "out of court", or "without going to court", then in this case the lessor is entitled to unilateral refusal to perform the agreement.

An example of insufficiently clear wording about the tenant's right to unilaterally cancel the contract

"The lessor, in the event of a significant violation by the tenant of the terms of the lease agreement, has the right to unilaterally and extrajudicially terminate the agreement with the tenant's prior written warning one month in advance."

In other cases, it should be assumed that the lessor has the right to go to court with a demand to terminate the contract with the need to comply with the mandatory pre-trial procedure for resolving the dispute.

If a party has announced its cancellation of a contract that has been registered, then in this case it is necessary to pay attention to how the contract provides for the right to refuse to execute it: under certain conditions or in any case, regardless of any conditions.

If the contract provides for the right of a party to unmotivatedly refuse to execute it, then the party that has exercised this right may unilaterally apply to Rosreestr with an application to make a record of termination of the contract in the USRR. In this case, such a statement must be accompanied by evidence of the notification of the other party about the refusal to fulfill the contract (receipt on a copy of the statement of withdrawal from the contract, notification of delivery of a registered letter with a list of attachments, etc.).

If a party has the right to unilaterally refuse to execute the contract only in case of any violation of the terms of the contract by its counterparty or in other circumstances that need to be established, then statements from both parties to the contract must be submitted to Rosreestr. If one of the parties refuses to submit such an application, then the party that announced its refusal to perform the contract has the right to apply to the court with a claim to recognize the contract as terminated. The counterparty of the party to the contract will be the defendant in such a claim. A court decision to satisfy such a claim will be the basis for the registration authority to make a corresponding entry in the USRR.

Such clarifications are contained in paragraph 11 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 6, 2014 No. 35 "On the consequences of termination of the contract".

However, in the contract, the parties may agree on the payment of compensation in the event of an unmotivated refusal to execute it. In this case, the landlord will need to pay the specified amount of money. Such terms of the contract are in accordance with the law, and it will not be possible to challenge them.

Practical example : The Judicial Collegium on Economic Disputes of the Supreme Court of the Russian Federation recognized the condition of the agreement on the recovery of a fine for early unmotivated termination of the agreement on the initiative of one of the parties

The parties entered into a lease agreement non-residential premises.

Under the terms of the contract, the tenant undertook to pay the landlord a deposit of two months' rent. This amount guaranteed the tenant's proper fulfillment of obligations and did not count towards rent. Accordingly, if the contract was terminated on the initiative of the lessee before its expiration for any reason other than those specified in the contract, the lessor could withhold the deposit in full as a penalty.

The tenant transferred the deposit and used the leased object.

Subsequently, when the tenant wished to terminate the contract ahead of schedule (by way of unilateral withdrawal from the contract), the lessor withheld the deposit made by the tenant.

The lessee considered that a unilateral refusal to perform the contract as a lawful action cannot serve as a basis for civil liability in the form of a fine. For this reason, the lessee has filed a lawsuit to invalidate the relevant terms of the contract.

The courts of three instances satisfied the claim. They qualified the penalty for early termination of the contract as a penalty. However, a statement about early termination of the contract is a lawful action, and early termination of the contract is not a civil violation. Therefore, the courts concluded that the collection of a fine for exercising the tenant's right to unilaterally withdraw from the contract contradicts the legal nature of the penalty as a measure of responsibility that is applied for violation of civil rights.

The Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation did not agree with this conclusion and gave such arguments.

The controversial clause of the contract provides for the possibility for either of the parties to terminate the contract before its expiration date unilaterally on any grounds other than those expressly specified in the contract. The condition of such termination for the tenant is the retention of the deposit by the landlord, for the landlord - the payment of the deposit in double amount.

Thus, the parties have determined the procedure for terminating the contract, which provides for a special condition for early, unmotivated termination of the contract unilaterally, which does not contradict the law.

The retention of the deposit by the lessor is not connected with the violation by the parties of the terms of the contract. In the presence of certain circumstances, the deposit is a condition for terminating the contract. Therefore, the qualification by the courts of the amount of the deposit as a penalty is erroneous.

In this case, the parties, when concluding the contract, determined the amount of compensation that the party must pay to the counterparty in case of cancellation of the contract.

The fact that such compensation is named in the contract as a fine does not change its essence, which does not consist in bringing to responsibility the party wishing to cancel the contract early. On the contrary, such compensation provides either party with the opportunity to terminate the contract without giving reasons.

The Civil Code of the Russian Federation allows any methods of securing obligations provided for in the law or in the contract. Therefore, there are no grounds to invalidate the controversial provision of the contract.

The contract, which contains the controversial condition, was signed by the parties without any comments or objections from the tenant. He made a declaration of invalidity of this condition after he sent a notice of early termination of the contract and did not indicate any reasons. The panel of judges regarded this behavior as a failure to fulfill the obligation arisen between the parties.

The Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation overturned the appealed judicial acts and dismissed the claim (ruling of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation of November 3, 2015 No. 305-ES15-6784).

Real estate lease occupies one of the key positions in entrepreneurial activity, since few can afford to purchase commercial real estate in their own right. At the same time, in the process of rental relations, various unforeseen situations are possible and often occur, due to which tenants are forced to leave the rented premises ahead of schedule. Therefore, when concluding a contract, the tenant must consider how to behave in the event of such circumstances and overcome them at the lowest cost. What pitfalls the tenants of commercial premises face and how the courts react to this, we will consider in the material.

When concluding a lease agreement for real estate, the tenant, even assuming mutually beneficial and long-term cooperation with the lessor, should nevertheless take a responsible approach to agreeing the terms of the contract, taking into account the possibility of forced termination of the lease relationship in the absence of the consent and desire of the lessor.

In particular, entrepreneurs, as well as lawyers of companies, when concluding a lease agreement for real estate (premises) should be extremely scrupulous about agreeing the terms of the lease agreement regarding the tenant's ability to unilaterally terminate the agreement ahead of time and the conditions accompanying such termination.

According to the current legislation, if the term of the lease has not expired, then the parties can terminate the arisen legal relationship in the following cases:

by mutual agreement between the lessee and the lessor;

in court at the initiative of the lessee or lessor on the grounds listed in the Civil Code of the Russian Federation;

at the initiative of the lessee or lessor on the grounds provided for in the law and / or the lease itself.

Article 620 of the Civil Code of the Russian Federation contains a list of grounds, if there is at least one of which the contract can be terminated on the initiative of the tenant. In this case, the tenant must send a notice of termination to the lessor.

Briefly, the grounds for termination can be described as follows:

the lessor does not provide the property for use by the lessee or creates obstacles to the use of the property;

the property transferred to the lessee has disadvantages that prevent the use of it, which the lessee did not know about;

the lessor does not perform capital repairs of the property, which is his duty;

the property will be in a state not suitable for use, not through the fault of the tenant.

The parties will be able to amend or terminate the agreement by agreement, even if this circumstance is not provided for in the agreement, by virtue of the law (Article 450 of the Civil Code of the Russian Federation).

When concluding a lease agreement for premises, it is important to convince the lessor to include in the agreement the tenant's right to terminate the agreement unilaterally (in the presence of any circumstances or unmotivated). Otherwise, even if the tenant leaves the premises, he will still have to pay the rent until the expiration of the contract or the signing of an agreement between the parties to terminate the lease (see, for example, Definition of the RF Armed Forces of 23.05.2017 No. 301-ES16-18586 on case No. А39-5782 / 2015).

In practice, there are situations when the tenant misinterprets the term of the lease agreement, which obliges the tenant to notify the lessor about it for a certain amount of time when the premises are vacated ahead of time - the condition formulated in this way does not automatically give the tenant the right to unilaterally terminate the agreement ahead of schedule.

It is important to distinguish between the condition of having the right to unilateral withdrawal and the requirement of termination. The contract must clearly state that the tenant "has the right to withdraw from the contract" or "has the right to terminate the contract unilaterally." If the parties indicate in the contract that the tenant has the right to demand termination, then he can only go to court with a corresponding claim (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 20.10.2011 No. 9615/11 in case No. A65-18291 / 2009).

The procedure for terminating the current lease agreement providing for the lessor's right to refuse

If the contract provides for the tenant's right to unilateral refusal, then for unilateral termination of the contract, it is necessary to perform a number of legally significant actions.

Inform the landlord in writing about your desire to terminate the contract, indicating the date from which the tenant will stop using the premises. It is important to take into account the method of notification that the parties enshrined in the contract itself. This is usually done by sending a valuable letter with an inventory of the investment to the landlord's address, which is specified in the contract. It will not be superfluous to duplicate such a notice to the lessor's address indicated in the Unified State Register of Legal Entities, if they diverge. The notice of early termination of the lease agreement must contain a clear expression of the tenant's will to terminate it. Otherwise, the agreement is considered valid (see, for example, the resolution of the Federal Antimonopoly Service of the Urals District dated March 16, 2010 No. F09-1497 / 10-C3 in case No. A47-4639 / 2009, AS of the Far Eastern District dated July 11, 2017 No. F03-2251 / 2017 in case No. A51-21837 / 2016).

Agree on the date of transferring the premises to the lessor. This can be done in the same notice of termination and transfer the keys to the premises under an act with a detailed indication of the quality characteristics of the premises and the property in it, be sure to prescribe in the act the absence of claims from the lessor. It will not be superfluous to make a photo, video recording of the state of the room at the time of the transfer of the room and attach it to the act of acceptance and transfer, about which make a note in the act.

It will not be superfluous to conclude an agreement on the termination of the contract and record in it the fact of the transfer of the premises and the fact that there are no lease arrears and other obligations arising from the contract. If the lessor refuses to sign the deed of transfer in respect of the premises, the tenant must send to the address of such a lessor a unilateral deed of transfer of the premises by a valuable letter with a list of investments. If the landlord, in this case, refuses to sign the deed, he will be considered to have evaded acceptance of the leased object, and in the future the tenant will be able to defend his rights in court.

Termination of the contract in the absence of a condition on the tenant's right to unilateral termination

If the tenant does not have the right to unilaterally withdraw from the contract, it will be quite problematic for the tenant to terminate the contract ahead of schedule unilaterally. In the absence of the lessor's consent, termination in such cases is made in court and in exceptional cases.

In accordance with Art. 450 of the Civil Code of the Russian Federation, at the request of one of the parties, the contract can be changed or terminated by a court decision only in case of a significant violation of the contract by the other party. The violation of the contract by one of the parties is recognized as significant, which entails for the other party such damage that it is largely deprived of what it had the right to count on when concluding the contract.

In practice, there are few positive court decisions on termination of the contract on the initiative of the tenant. Among them are the following.

In some disputes, the grounds for termination were, for example, a discrepancy temperature regime rented premises to the requirements of state sanitary and epidemiological rules, which prevents their use according to the intended purpose agreed in the lease agreement and is the basis for early termination of the contract at the request of the tenant, if at the time of the conclusion of the contract the tenant did not know and could not have known about this defect (see, for example, the resolution of the CA of the Urals District dated 05.09.2014 No. F09-5267 / 14 in case No. A07-21582 / 2013).

Also, the tenant may terminate the contract ahead of schedule if the rented premises are subject to requirements for the demolition of an unauthorized building (see, for example, Resolution of the AU of the Moscow District of July 14, 2016 No. F05-9593 / 2016 in case No. A40-184922 / 2015).

The most frequently used basis for judicial termination of an agreement is due to a significant change in circumstances (Article 451 of the Civil Code of the Russian Federation). Tenants should take into account in which cases the court will not take their side when trying to terminate the contract on the basis of Art. 451 of the Civil Code of the Russian Federation.

Thus, the economic crisis, lack of credit and a difficult financial situation are not grounds for early termination of the lease agreement due to a significant change in circumstances, even if the tenant has lost the production need to use the premises (see, for example, Resolutions of the FAS of the Urals District dated 22.03.2010 No. F09-1684 / 10-S3 in case No. A47-7415 / 2009, East Siberian District dated December 27, 2011, in case No. A19-10682 / 2011).

The economic inexpediency of the further use of the leased property, according to the courts, does not indicate a condition that is not suitable for use, arising from circumstances for which the lessee is not responsible, and also is not a reason for terminating the contract in accordance with paragraph 4 of Art. 620 of the Civil Code of the Russian Federation (see, for example, the resolution of the CA of the North-Western District of April 29, 2015 No. F07-2114 / 2015 in case No. A56-45069 / 2014).

Acquisition of another premises by the lessee as of February 27, 2009 in case No. A72-5802 / 2007, as well as a sharp deterioration in the financial condition of the lessee (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 27, 2009) are not recognized as grounds for early termination of the agreement on the tenant's initiative. 30.11.2010 No. 9600/10 in case No. A17-1960 / 2009).

It should also be noted that the condition of the lease agreement obliging the lessee to notify the lessor about it for a certain amount of time in the event of early release of the premises is in itself not recognized as a condition that gives the tenant the right to unilaterally terminate the agreement ahead of schedule, since early release of premises may also be a consequence of early termination agreements by mutual consent (see, for example, decisions of the Federal Antimonopoly Service of the North Caucasus District of April 30, 2010 in case No. A53-11498 / 2009, of the West Siberian District of January 17, 2014, in case No. A75-2492 / 2013).

If the lessor does not agree with the tenant's requirements for early termination of the contract, the question arises: can the court refuse the tenant to terminate the contract, despite the existence of the grounds established by Art. 620 of the Civil Code of the Russian Federation?

It all depends on the actual circumstances. For example, there are cases when the lessor, after the tenant went to court due to the presence of defects in the rented premises, promptly eliminated the defects within a reasonable time. As a result, the grounds for early termination of the contract on the initiative of the tenant disappeared (see, for example, the resolution of the Federal Antimonopoly Service of the Moscow District dated 09.23.2009 No. KG-A40 / 9494-09-P in case No. A40-5968 / 08-50-45).

Termination of an indefinite lease

Such a situation may arise in cases where the lease is concluded without specifying the term (Article 610 of the Civil Code of the Russian Federation) or when the term of the fixed-term lease has expired, but the tenant continues the lease without objections from the lessor, then it is considered that the contract was concluded by the parties on the same terms for an indefinite period (part 2 of article 621 of the Civil Code of the Russian Federation).

The absence of a term in the contract makes it possible to terminate the lease at any time. In this case, the party initiating the termination must warn the counterparty about the termination of the lease agreement three months in advance, unless otherwise provided by the agreement. These rules also apply to the sublease agreement, both extended for an indefinite period, and originally concluded with such a condition.

Recovery of damages caused by untimely notice of termination and forfeit

Some landlords provide in the contract to impose on the tenant the obligation to notify the landlord about the termination of the contract within a certain period. What are the consequences for a renter who does not fulfill the contractual condition of advance notice of unilateral termination?

Judicial practice knows cases when a lessee who did not fulfill the condition of the agreement on advance notice to the lessor for a certain period before the date of termination of the agreement was recovered losses in the form of lost profits, as well as a penalty (see the resolution of the FAS of the Volgo-Vyatka District of April 30, 2013 on the case No. A79-6999 / 2012).

The penalty is another trick on the part of the lessor, which may be contained in the lease agreement (see Determination of the Supreme Arbitration Court of the Russian Federation of 15.04.2011 No. VAS-4681/11 in case No. A36-1063 / 2010).

Deposit

In case of termination of the contract on the initiative of the lessee or his unilateral withdrawal from the contract, the lessor has the right to withhold cash, transferred to him as security for the performance of an obligation, if such a condition is provided for by the contract. As a rule, this is the payment of the last month of rent. Since June 2015, in accordance with paragraph 3 of Art. 310 of the Civil Code of the Russian Federation, the right to unilateral refusal to fulfill an obligation associated with the implementation by its parties of entrepreneurial activity, by agreement of the parties, may be conditional on the payment of a certain amount of money to the other party of the obligation. Consequently, from that date, the issue of the legality of withholding funds in the event of unilateral withdrawal from the contract has been regulated by law. On this occasion also spoke Supreme Court RF in the decree of 03.11.2015 No. 305-ES15-6784 in case No. A40-53452 / 2014, explaining that the parties, upon concluding the contract, have the right to determine the amount of compensation that must be paid by one of the parties in case of cancellation of the contract. Such compensation can be named in the contract as a fine, but this does not change its essence, which does not consist in bringing to responsibility the party who decided to cancel the contract early, but, on the contrary, provides an opportunity to terminate the contract without explaining the reasons for either party.

Overheads

In the practice of lease relations, there are agreements, the terms of which provide for the imposition of the obligation on the tenant to compensate the lessor's expenses for the payment of all payments in general related to the maintenance and operation of the property belonging to him: taxes, fees, fines to the budget related to the ownership and use of property, tax for property, utilities and other payments, expenses for the maintenance of the land plot on which the building is located, etc. In a lease such terms are usually covered by the term “overhead”. The possibility of imposing the above expenses on the tenant is established, in the opinion of the lessors, by the provisions of paragraph 2 of Art. 616 of the Civil Code of the Russian Federation, according to which the lessee is obliged to maintain the property in good condition, to produce at his own expense maintenance and bear the cost of maintaining the property, unless otherwise provided by law or the lease agreement.

One of the important issues related to the lease of premises is the issue of the legality of imposing on the tenant the obligation to conclude an agreement with the management company when renting non-residential premises in an apartment building and incurring expenses by the tenant for maintaining the common property of an apartment building. On this issue, a uniform arbitrage practicebased on Art. 161, 162 of the RF Housing Code, by virtue of which imposing on the tenant the obligations to conclude on his own behalf an agreement with the management company for the management of an apartment building and payment of costs incurred by it is unacceptable (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 12.04.2011 No. 16646/10 on case No. A55-11329 / 2009 and dated 17.04.2012 No. 15222/11 in case No. A40-99124 / 10-37-796).

The costs of maintaining common property in an apartment building must be borne by the owner of a non-residential premises located in an apartment building. By the terms of the lease agreement, this rule cannot be changed, since the owner does not have the right to impose on the tenant the obligation to conclude a civil contract, according to which the tenant will bear the burden of maintaining the common property of the apartment building, with a third party.

Therefore, the tenant, upon termination of the lease relationship, should take into account that the civil legislation of the Russian Federation does not provide for the possibility of imposing on him the burden of maintaining property that he does not own and does not use.

The tenant can be advised to carefully check the contract for the validity of the overhead costs incurred by the landlord and, when drawing up the act of transferring the premises, if it records the corresponding debt, record disagreement with the indicated amounts. This circumstance will strengthen his position in court in case of a dispute.

To summarize, we can recommend tenants to treat the terms of concluding a lease with an increased degree of responsibility. The legislator has provided for a fairly democratic mechanism to protect the rights of both the lessor and the tenant. The financial result of both the unilateral termination of the lease agreement by the lessee and its termination by agreement of the parties will depend on the skillful use of the provided tools.

Updated 11.15.

2019-11-11T13: 44: 11 + 03: 00

Termination of the lease. Laws and regulations. Grounds for terminating the contract. Early termination of the contract.

The lease agreement provides its own terms of termination, which must be met by both parties: the tenant and the lessor. Termination of the lease always documented by agreement.

Laws and regulations

The rights and obligations of the parties to the lease agreement are based on the Civil Code of the Russian Federation. The term of the agreement and the right to withdraw from it are specified in Art. 610 of the Civil Code of the Russian Federation.

The right to terminate the contract at the request of the lessor and the legal grounds are established by Art. 619 of the Civil Code of the Russian Federation, at the initiative of the tenant - Art. 620.

Also, the justifications are indicated in Art. 450 of the Civil Code of the Russian Federation, in addition, termination may be based on other laws and by-laws of the Russian Federation.

Housing rental by a private person is considered rent, the rights and obligations of the parties are specified in Ch. 35 of the Civil Code of the Russian Federation. Termination of the lease is described in Art. 687 of the Civil Code of the Russian Federation. The same article indicates the grounds for termination, terms and responsibilities of the parties.

Grounds for terminating the contract

The lease agreement ceases to be valid upon expiration of the period specified in it or upon early termination by the parties (one of the parties).

Since the lease is a two-way deal, early termination may violate the rights of one of the parties. Therefore, the legislator has foreseen when early termination of the agreement is possible, and when not.

If the term of the lease agreement has not expired, the parties may terminate the arisen legal relationship only in three cases:

By mutual agreement between the lessee and the lessor;
In court at the initiative of the lessee or lessor on the grounds listed in the Civil Code of the Russian Federation;
On the initiative of the lessee or lessor on the grounds expressly provided for in the lease agreement itself.

In the first case, if the parties have come to an agreement, the early rupture of legal relations between the tenant or the lessor does not cause any special problems. In this case, the parties simply draw up a special termination agreement, which is the basis for terminating the property lease relationship.

The situation is more complicated when one party does not agree to early terminate the contract.

By the tenant

The tenant has the right to terminate the contract in respect of non-residential premises if there are the following grounds:

The lessor (the owner of the property or the lessee, if a sublease agreement is concluded) has not transferred the non-residential premises for the use of the lessee.
There are drawbacks in the premises that were not specified in the contract - but which hinder the ability to use it for its intended purpose.
Major repairs, if the obligation to make it lies with the lessor, is not made in the required time frame.

Other circumstances, agreed in advance and fixed in the contract, are also possible.

At the initiative of the lessor

In turn, the lessor also has the right to terminate the relationship with the tenant early if any of these conditions exist:

The tenant is using the premises for other purposes. In relation to non-residential real estate, this can mean, for example, using it for citizens' residence.
As a result of the actions of the party renting the premises, its destruction or significant deterioration of properties occurs.
Failure to pay the amounts stipulated by the contract, which happened at least two times in a row.
Major repairs have not been carried out if this obligation lies with the tenant.

As in the previous case, the parties can negotiate other cases when the lessor has the right to terminate the contract.

Early termination of the contract

The contract can be canceled at the initiative of the employer unilaterally, while the justifications can be indicated in the text of the agreement itself, or be based on the legislation of the Russian Federation.

If the counterparty disagrees with the termination, the employer has the right to terminate the agreement through the court.

Judicially

If there are legal grounds and the counterparty refuses to cancel the contract, the employer may terminate the agreement early in court.

Before filing a claim, you must go through the same procedure as when breaking an agreement by mutual agreement:

draw up and send to the counterparty a notice of termination of the contract,
after waiting for the deadline specified in the notification, offer to conclude an agreement on termination.

If the landlord refuses to conclude an agreement or further demands payments, the tenant must apply to the judicial authorities at the place of residence with a claim for compulsory termination of the lease.

By agreement of the parties

With the consent of the parties, they can cancel the agreement at a convenient time for them.

For this, the parties conclude an agreement on termination, which indicates a specific date for the cancellation of the contract.

In the agreement, you can specify the clause that it is an act of acceptance and transfer of the apartment, or such an act is drawn up later before the termination of the contract.

In the absence of claims from the parties to each other and the signing of the agreement and the act of acceptance and transfer, the contract ceases to be valid, and the parties are released from legal responsibility to each other.

With unlimited validity

If the agreement was concluded for an unlimited period, then the tenant can terminate it without the consent of the opposite party.

To do this, he must notify the landlord of his intention 1 month in advance, and in the case of commercial lease - 3 months in advance.

The notification is sent personally with a note of delivery in the second copy or sent by registered mail.

At the end of these terms, the lessee is considered free from contractual obligations.

How exactly a registered transaction is terminated

In the event that the contract was originally concluded for a period of one year or more, it is subject to state registration. In this case, the procedure for its termination will be special.

Where to go

In itself, the procedure for terminating a lease will in this case be the same as for a short-term or renewable agreement.

However, the fact that the lease has stopped must be additionally recorded in the USRN in accordance with the procedure established by the Federal Law "On State Registration of Real Estate". To do this, the lessor must apply to Rosreestr with an application to repay the entry in the USRN about encumbrances in the form of a lease.

For this you need to contact:

directly to the local office of Rosreestr;
in the MFC ("My Documents" or similar);
online through the "Gosuslugi" portal (if there is a confirmed account of the applicant, individual);
with the help of the Russian Post, by sending a notarized application and a package of documents.

What documents are needed

To cancel an entry in the USRN about registration of a lease agreement, you will need:

Statement.
If the termination of the contract took place ahead of schedule by agreement of the parties - copies of the additional agreement on the termination of the lease signed by both parties (at least two pieces), as well as an application for its registration.
The act of acceptance and transfer of the object from the lessee to the lessor.
Landlord's documents:

for an individual - a passport;
for a legal entity - certified copies of registration documents and a power of attorney for the representative or the director's passport, if he submits the documents in person.

Time and cost

If only the termination of the lease is registered, then the state duty by virtue of paragraphs. 8.2 clause 3 of Art. 333.35 of the Tax Code of the Russian Federation is not paid: it will only be about the removal of encumbrances.

Changes to the USRN will be made:

when contacting Rosreestr directly (in person or through an online service) - within 3 working days;
when submitting an application through the MFC - within 5 working days;
when sending documents by mail - 3 working days, but they will be counted from the moment the letter is received.

Termination procedure

If the termination of the transaction occurs in court, then the further procedure will largely depend on who will act as the parties to the contract.

So, if the lease is formalized between ordinary citizens, then the dispute will be considered by the district court at the place of residence of the defendant (lessor).

When the parties to the contract of employment are enterprises or individual entrepreneurs, then the termination case is heard by arbitration.

Moreover, it can be both an arbitration court at the address of the defendant's registration, and the judicial body that the parties indicated in the lease agreement.

If we are talking about arbitration proceedings, then before the claim, the landlord needs to present a claim for termination of the contract. She is reviewed for one month. And if during this time the parties do not come to a compromise, then a claim is filed with the arbitration court.

Regardless of where the statement of claim is addressed, it must contain:

the name of the court;
information about the tenant and landlord;
the essence of the lease and its basic conditions;
the reasons why the tenant wants to end the relationship;
the content of the claims.

Attached to the claim are copies of the lease agreement, as well as all the evidence confirming the need to terminate it. You also need a document on the introduction of the state duty (you should be guided by the rates established by the Tax Code of the Russian Federation for non-property claims). Based on the results of the hearing in the court of first instance, a decision is made to terminate the contract, which can be appealed to the appeal within a month. If it has expired, then the contract is considered terminated after this period of time. When an appeal was filed, the contract is considered terminated from the date of its consideration.

Sample termination of a non-residential lease agreement

The name of the document is "Supplementary agreement on termination of the lease agreement for non-residential premises", indicating the place and date of drawing up the paper, as well as its number.
Personal data of the landlord and tenant. For legal entities - these are their full names plus information on state registration in the appropriate status. For individuals, this is their passport data plus information about the place of residence.
Which contract (indicating its number) is terminated (invalidated) and from what date it occurs.
An indication of the acceptance certificate, by which the premises are transferred.
No claims against each other.
Date signed by the parties.

Sample acceptance certificate

The number of copies of the agreement must correspond to the number of participants in the lease that is being terminated. When concluding a deal on the lease of non-residential premises for more than a year, its participants must jointly contact the Federal Register for entering information on the termination of the rights to use the premises in the USRN.

How to early terminate a document on the lease of residential premises

Housing rental is one of the most popular types of rental and similar relations with them. In fact, it differs from lease only in that the tenant can be exclusively individual: Organizations gain access to housing (for example, to accommodate their employees) exclusively on a lease basis. Consider the procedure in which the lease and lease agreements will be terminated in relation to housing.

Second party notification

Unlike rent, there is no rule for renting a home that the landlord must notify the tenant in writing that the terms of the contract have been violated and the violations must be corrected. This situation is not obligatory, but possible - especially in cases when the parties have fixed this requirement in the text of the agreement.

Recovery of damages caused by untimely notice of termination and forfeit

Deposit

In case of termination of the contract on the initiative of the lessee or his unilateral withdrawal from the contract, the lessor has the right to withhold the funds transferred to him as security for the fulfillment of the obligation, if such a condition is provided for by the contract. As a rule, this is the payment of the last month of rent. Since June 2015, in accordance with paragraph 3 of Art. 310 of the Civil Code of the Russian Federation, the right to unilateral refusal to fulfill an obligation associated with the implementation by its parties of entrepreneurial activity, by agreement of the parties, may be conditional on the payment of a certain amount of money to the other party of the obligation. Consequently, from that date, the issue of the legality of withholding funds in the event of unilateral withdrawal from the contract has been regulated by law.

On this occasion, the Supreme Court of the Russian Federation also spoke out in its decision of 03.11.2015 No. 305-ES15-6784 in case No. A40-53452 / 2014, explaining that the parties, when concluding an agreement, have the right to determine the amount of compensation that must be paid by one of the parties in case of refusal from the contract. Such compensation can be named in the contract as a fine, but this does not change its essence, which does not consist in bringing to responsibility the party who decided to cancel the contract early, but, on the contrary, provides an opportunity to terminate the contract without explaining the reasons for either party.

Consequences of terminating a lease

After the court makes a positive decision on the case, satisfying the requirement of the lessor, the contractual relationship is terminated. But this does not always mean that the leased item is immediately returned. In some cases, a repeated appeal to the court is required to satisfy the claim for the reclamation of property from someone else's use.

Therefore, many lawyers advise to put two of these requirements at once in the first claim. Then, after the first trial, it will be possible to obtain a writ of execution, on the basis of which the bailiffs will be able to organize the compulsory return of the leased item.

If the tenant decided to immediately execute the court decision, then he returns the leased item on his own initiative, while the parties sign an acceptance certificate, in which the state of the transferred property is recorded.

Upon detection of a significant deterioration in the condition of the leased item, claims for damages may be brought against the tenant. And in the case when the reason for the early termination of the lease was the delay in the payment of lease payments, the lessor has the right to seek the return of the debt.

The lessor can initiate early termination of the lease relationship only in cases where the lessee has committed material violations in the performance of its obligations. And to resolve the dispute on the early termination of the lease is only in the competence of the court. As soon as the court decision comes into force, the lease relationship is terminated, except for the moments of fulfillment of obligations to pay the lease and correction of other violations.

How termination of a lease differs from termination

Termination and termination of a lease agreement - as it seems at first glance, similar concepts and meaning seem to be the same. Therefore, there is often a misunderstanding of these terms. In both situations, the lease terminates. There are differences in these two concepts. Termination of a lease is the termination of a previously designated term. It can occur both unilaterally and with the consent of both parties to the contract - both the tenant and the owner.

Termination of a contract is its termination, which arises spontaneously and is associated, for example, with the expiration of this contract. If the document originally indicated the terms, say, 2 years, then after two years it automatically ceases to be valid. So, it can be summarized that the termination of the lease is committed for a reason, and the termination is spontaneous when the agreement expires. If in the first case it is possible to conclude a new contract, then in the second it must be extended.

What to do if agreement has not been reached

It was not possible to agree peacefully and the negotiations reached an impasse? And in the event of a categorical refusal of the tenant or landlord from a compromise solution, there is only one option left: to terminate the contract through the court.

Which court to apply to

The rules about which court to file a claim with are governed by the procedural legislation of Russia. There is a rule:

If the parties to the contract are two organizations or citizens with the status of individual entrepreneurs, the contract is terminated through an appeal to the arbitration court.
If one of the parties to the contract is an ordinary citizen who does not engage in entrepreneurial activity, one should apply to a court of general jurisdiction.

If the case is in accordance with Art. 27 of the Arbitration Procedure Code of the Russian Federation is subject to the jurisdiction of the arbitration court, the claim is filed with the court in whose territory the defendant is located or lives (Article 35 of the Arbitration Procedure Code). In this case, the place of residence or location is determined:

For individual entrepreneurs - at the place of permanent registration.
For organizations - at the legal address indicated in the registration documents.

A similar rule applies to courts of general jurisdiction: a claim is filed at the place where the defendant is registered (Article 28 of the Code of Civil Procedure of the Russian Federation).

Drafting a claim

The requirements for the design and content of the statement of claim are set out:

For the arbitration process - in Art. 125 agro-industrial complex.
For civil (in a court of general jurisdiction) - in Art. 131 Code of Civil Procedure.

In both cases, the claim must:

Submit in writing.
Contains an indication of the court to which the plaintiff applies, the parties to the process (the plaintiff and the defendant).
Contain an indication of what exactly the rights of the person who filed the claim were violated.
Include the circumstances referred to by the plaintiff.

If the law requires that a notice be sent to the defendant before the trial (as, for example, in the court termination of the lease), the claim must contain information about whether this procedure has been followed.

Attached documents and evidence

The plaintiff must confirm his position in court with evidence. They will be both documents and other sources of information relevant to the consideration of the case.

In relation to the termination of a lease, such evidence may be:

A copy of the contract.
A copy of the notice of termination with a note from the defendant that he received his copy.
A copy of the postal receipt if the notice was sent by mail.
If the reason for termination is the debt under lease payments, a bank statement concerning account transactions may be attached.
If the contract is terminated due to violations in the use of property - a copy of the act with a list of violations found.

The list of documents used as evidence is incomplete here. By law, the parties have the right to use any evidence if it was obtained legally and is relevant to the case.

In addition to documents, other types of evidence can be used (for example, testimony of witnesses, specialists, etc.).

Terms of consideration of the case

The claim must be considered by the court in the following terms:

in an arbitration court - no more than 3 months from the date of receipt of the application by the court (Article 152 of the APC);
in a civil court - no more than 2 months (Art. 154 Code of Civil Procedure).

In the case of particularly complex cases, the arbitration consideration can be extended, but not more than up to six months.

Additional questions

Is it possible to terminate the contract by mutual agreement

Termination of a lease may be required for various reasons:

the tenant / landlord violated the rules of the agreement, but came to a compromise without involving law enforcement;
personal circumstances arose, for example, the landlord urgently needed money and decided to sell the leased object.

Termination of a lease is not always based on negative factors. Regardless of the reason for such a decision, the agreement must indicate:

causes;
the stage at which the contract is being executed. Here you need to reflect whether the object was transferred for use, or the owner did not have time to do it;
obligatory item - mutual settlement of the lessee / lessor. The landlord / tenant should not have any financial claims. Funds for the unused period can be returned (we recommend that these conditions be indicated in the rental document);
the term is stipulated during which the property will return to the owner's ownership.

The tenant can return the property at the time of the additional agreement. For the purpose of insurance, it is advisable to draw up an act of acceptance / transfer, in the document the tenant / landlord put their signatures, confirming that they have no claims to each other. The act describes in detail the rented object, its condition, the presence of defects. If the defects appeared due to the fault of the temporary owner, then a provision on compensation for the loss is included in the document.

Please note that if the lease agreement was drawn up with a state registrar, then its cancellation is registered in the same way.

In what case is it possible to go to court from the landlord

This issue is dealt with in detail in Art. 619. The owner may demand termination of the lease if:

during exploitation, the temporary owner damages the property, his condition worsens. The deterioration does not include the standard wear, which does not go beyond the normal limits during the operation of the facility. If this argument is chosen as the basis, then the owner will have to convince the court that the actions of the tenant led to the fact that the useful properties of his property decreased significantly and caused losses. This also includes the redevelopment of the apartment, if this item was not mentioned in the rental document or if there was no agreement on the work with the owner;
violates the operating conditions stipulated in the contract. Example - in the contract the owner of the apartment forbade the tenants to have pets, the tenant violated this rule. Multiple violations of the terms of the agreement may result in early termination of the lease agreement;
ignoring the need for overhaul. Affects only those cases when it is the temporary owner who must hold it (this can be indicated in the lease document);
in case of violation of the terms of payment. In the document, this item is usually specified separately, a penalty for delay is established, and additional sanctions are possible. But if this is a one-time incident, the tenant has paid off the debt, it does not recur, then the owner of the property cannot use it in the future. The court will consider this an abuse of the landlord's rights;

As in the previous case, the termination of the lease occurs in 2 stages:

first, a written appeal to the tenant. It indicates the reasons for such a decision by the owner;
if there is no answer, the temporary owner goes to court.

This procedure (dissolution) allows you to resolve the conflict yourself. Going to court is a last resort.

In what other cases may an early termination of the lease agreement be required

The main reasons and a typical algorithm for terminating a lease are listed above. But you need to take into account the individual characteristics of the situation. Let's analyze a few examples:

we have stated above that failure to meet the payment deadline is grounds for the landlord to terminate the agreement. If the funds were transferred before receiving a message from the owner of the property, then the owner still has the right to cancel the contract. But if a sufficient amount of time has passed since the payment of the debt, there have been no new delays, then this incident can no longer be considered the basis for canceling the lease agreement. There are no clarifications about the "sufficiency" of the term, this issue is established in each specific case;
in a situation if land plot is rented, but real estate is located on it (which is the property of the lessee), then termination of the lease is possible. The algorithm is the same, the law explains this by the fact that breaking the lease agreement does not remove the property from the tenant's property;
the death of the lessee / lessor does not mean termination of the lease. All rights are transferred to the heirs, this is evidenced by Art. 617. GK. the exception is those cases when an agreement with the deceased was concluded taking into account his personal qualities;
termination of the lease is not possible on the grounds that the lessee / lessor is in a less advantageous position. For example, an owner can, and a temporary owner cannot, early revoke a lease. This argument cannot be used by the temporary owner. It would be logical in this situation to file a claim, through the court it is possible to include the necessary points in the agreement and correct the situation.

We have given these examples in order to show that each situation needs to be considered individually.

Termination of the lease due to expiration

The default expiration of the lease does not require any further action from the parties to end the relationship. After the end of the lease term, the property, on the basis of Art. 622 of the Civil Code, is subject to return, about which an appropriate act is drawn up. This document, in fact, serves as confirmation of the termination of the transaction.

However, in practice, there are cases when the text of the transaction provides for the possibility of its prolongation if none of the parties declares their intention to terminate the relationship.

Moreover, paragraph 1 of Art. 621 of the Civil Code provides for the tenant's preemptive right to conclude a lease agreement for a new term. And if the tenant notifies the landlord in advance about the desire to extend the contract, then it is extended for a new period. The term for notification is determined in the contract. If it is not defined, then it should be reasonable. The reasonableness of the term assumes that the landlord is notified in advance of the tenant's desire to renew the lease.

Termination of the lease due to non-payment of rent

The obligation to pay rent by the tenant is fixed in clause 1 of Art. 614 Civil Code. This obligation is one of the most significant, and therefore its repeated failure to perform serves as the basis for terminating the contract on the basis of sub. 3 p. 1 of Art. 619 GK.

In this case, the tenant cannot spend unilateral termination of a contract, but has the opportunity to go to court with statement of claim on early termination of the lease agreement. The lease relationship is terminated on the basis of a court decision and additional actions are not required from the parties.

In this case, not in any case of late payment for the use of the leased property, the tenant has the right to demand termination of the transaction. The specified norm, as the conditions for the occurrence of such a right, speaks of the number of acts of delay - at least two. In this case, delays in a row are calculated, that is, for example, if the tenant paid the rent for January and March, but was late with the performance of this obligation for February and April, then the lessor has no reason to go to court.

Numerous court practice on this issue unambiguously takes the side of the tenant, if he did not allow payment delays more than two times in a row. As an example, we can cite the ruling of the Arbitration Court of the Moscow District dated October 16, 2018 No. F05-16200 / 2018 in case No. A41-96852 / 2017.

Thus, the lease agreement can be terminated by the parties on various grounds - both by mutual agreement and unilaterally. The possibility of terminating the transaction through the court is not excluded, however, only on the grounds provided for by law.

Is it possible to terminate the lease in connection with the death of the tenant

If the tenant's death occurs, the rights to lease the premises and obligations to the property that he rented during his lifetime are transferred to his heir for the entire remaining term of the contract, which the owner cannot refuse. That is, the death of the tenant cannot be a condition for the lease to be terminated. If the document provides for the possibility of unilateral termination, the owner has the right to use it. Or solve this issue in court.

Conclusion

Termination of the lease before the term specified in the document is possible. This can be done in several ways - by resolving the issue peacefully or using the corresponding clause in the lease agreement. In an extreme case, the issue will be decided by the court, so there will definitely not be a hopeless situation.

Subscribe to the latest news

You will also be interested in:

How to change the oil in a Nissan Tiida variator with your own hands?

To change the oil in the variator, you need a little: First of all, you need the oil itself, for my ...

Where is the Skoda Yeti assembled Where is the Yeti assembled

The Skoda automobile concern is one of the oldest in the world. We remind you that in 2000 ...

Vehicle registration certificate - where what data is written

Through the site service, you can find out data from the STS. These include: sts number, brand, model, ...

How to check the oil level of the car Audi A5

Audi Q5 2.0 TFSI quattro / Audi Ku5, 5dv off-road vehicle, 211 hp, 7 automatic transmission, 2008 - 2012 -...

Niva permanent four-wheel drive

Test drive What is permanent four-wheel drive? And then why on the field the lever "lock ...

Search form

Popular

How much oil is in the manual transmission (gearbox) Chevrolet Lacetti Oil in the gearbox Chevrolet Lacetti 1

Should you buy a car?

Engine ga4 oil consumption reduction additive

Motors, transmissions and their capabilities

Crossover "Lifan X50": specifications, equipment, reviews

Where is the Volvo XC90 assembled

How Volvo's brand changed in five years after being sold to the Chinese