What does it mean to terminate the lease ahead of schedule?

Lease relations can arise for a certain period, which the parties stipulate in the contract, or on an unlimited basis. There are also cases when, at the legislative level, the so-called maximum lease terms are established for the lease of a certain type of property. Then the lease relationship cannot last longer than these deadlines.

But in any case, until the term for termination of the contract has come, either of the parties may want to terminate the lease relationship. This is called early termination of the contract. Since the lease is a two-way deal, the rights of both parties are protected here. And for the relationship to end early, the consent of both parties is needed.

And now, in case the party to the lease is protected from a sudden and unprofitable termination of the transaction, Part 2 of Art. 450 of the Civil Code of the Russian Federation provides that in unilaterally termination occurs only through the court, and then if the initiator of the process has grounds for putting forward such a demand.

When the landlord gets the right to claim his property ahead of schedule

The aforementioned article 450 of the Civil Code of the Russian Federation prescribes general grounds on which both parties to the transaction can demand through the court its early termination. These include:

• material breach of contract;
• other cases that are directly spelled out in the law or contract.

By material the legislator understands such a violation of one of the negotiators, which entails the infliction of damage, as a result of which the other negotiator suffers significant losses. But there is no specifics here, so the court decides whether the violation was really material.

Other cases include the grounds enshrined in Art. 619 of the Civil Code of the Russian Federation, on the basis of which the lessor may demand to terminate the contract. The lessor may demand the return of the leased item if it determines that the lessee:

• materially violates the terms of the agreement;
• uses property in violation of its purpose, stipulated in the contract, or arising from the nature of the thing itself;
• significantly degrades property;
• does not pay rent twice in a row;
• doesn't overhaulif such an obligation is assigned to him.

The parties themselves can prescribe additional conditions for early termination of the lease in the lease agreement or detail those that are enshrined in the law. By the way, such detailing will greatly simplify the proof in court of the existence of grounds for terminating the contract.

Don't know your rights?

The procedure for early termination of lease relations

It is clear that if both parties agree to terminate the lease ahead of time, then they simply take actions in this direction, such as transferring back the leased item and signing the transfer acceptance certificate. And the agreement itself is closed by an additional agreement drawn up in a similar form.

But if the tenant is against, then the landlord will have to go to court, and then not immediately. According to Part 3 of Art. 619 of the Civil Code of the Russian Federation, the lessor must first send a letter to the tenant, in which they require the tenant to correct the violations. The same position is confirmed in clause 29 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66.

Important! In addition to the requirement to correct the violation, there must be a proposal to terminate the contract early.

In the event that the tenant fulfills the requirements set before him within a specified or reasonable time, the lessor loses the right to go to court. This is confirmed by clause 8 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 05.05.1997 No. 14. So the contract can be terminated ahead of schedule only if the tenant continues to fail to fulfill his obligations.

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 lessee 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 payment lease payments, the lessor has the right to seek debt repayment.

The lessor can initiate an 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 early termination of the lease 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.

In order to correctly understand how the termination of a lease occurs (a sample will be described and presented in the article below), you should consider the rules relating to any document of this nature that are available in the legislation. They are indicated in article 450 of the Civil Code.

General norms

The conclusion of the contract and the fact of its termination in the first place represent certain forms of occurrence and termination of obligations. The main feature in this case is that these forms are fixed on paper. In this regard, there are quite strict norms and procedures in accordance with which the process of breaking relations between the parties is carried out. There are three ways in which you can terminate the lease of the premises. These include:

• Unilateral refusal.
• Lease termination agreement.
• Lawsuit in court.

Let's consider these methods in more detail.

Lease Termination Agreement

This method is considered the most acceptable, simple and convenient in terms of performing legally significant activities. Terminating a lease in this way does not have to be based on negative circumstances. However, when terminating legal relations in paper, it is extremely important to indicate such points as:

Registration procedure

If the agreement has passed state registration, the agreement on its termination should also be subject to this procedure. The registration procedure is fixed in Art. 651, 452 (item 1) of the Civil Code. The moment of termination by agreement of the participants is, in accordance with the general rule, the date of signing the corresponding agreement. However, the legislation allows the establishment of a different number. The date when the corresponding entry will be made in the State Register will be considered the moment at which the official termination of the lease agreement took place.

Lawsuit

The legislation defines a number of cases in which it is allowed to submit claims to the judicial authority. In particular, these include situations of revealing violations of the terms of the contract by one of the participants and other circumstances provided for in regulatory enactments. Specific cases of violations by both the lessee and the lessor are spelled out in Articles 620 and 619 of the Civil Code.

If they are identified, the corresponding legal consequences arise. The legislation guarantees the right to protect one's interests in case of infringement by their actions or inaction of the second party. The list in Articles 620 and 619 is not intended to be exhaustive. Directly in the contract itself, other conditions may be provided for its termination in court. This provision corresponds to the meaning of Art. 450 p. 2, as well as the principles enshrined in article 421 of the Civil Code.

Possible violations

Termination of the lease by the lessee may be carried out ahead of schedule in cases where:

Grounds for termination of the transaction by the owner

Termination of a lease agreement for non-residential premises or other property by its owner is made in cases where the user repeatedly or significantly violates the terms of the contract. To determine the significance of violations, the owner should use the rules of the Civil Code. So, termination of the lease is possible in the event of damage, as a result of which the owner lost what he could count on by entering into this relationship. It is the responsibility of the user to operate the property in accordance with the terms of the contract. If it is violated, it is allowed to terminate the lease without the user's consent. If there are no clearly defined conditions for the operation of the property in the contract, then it is carried out in accordance with the purpose determined by the parties. If it is not established, then the use is made in accordance with the usual purpose arising from the essence of the object.

Damage to property

The operation of objects should be carried out in such a way that the owner receives them back safe and sound or in a state of normal wear and tear typical for this type of activity and the period of operation. For example, the redevelopment of a room (apartment, office) without the approval of the owner will act as a significant deterioration in property.

Other cases

A fairly common situation is when the user of the property several times (more than two) fails to pay for the use of the property within the specified time. Quite often, it is included directly in the terms of the contract. In this regard, only one non-payment is enough to effect a reasonable termination of the lease. A sample document, in accordance with which the legal relationship of the parties is terminated, must be completed in accordance with the procedure established by law.

Features of judicial review

If the termination of the lease was carried out at the initiative of the user, then the requirements contained in the last paragraph of Art. 619 GK. According to them, an application to the court can be submitted only after the owner is sent a request to eliminate the identified violations within a reasonable time. Due to the fact that the legislation does not define a specific period, this concept is considered evaluative. The "reasonable time" should be determined individually in each case.
As practice shows, the minimum duration of such a period is from 10 calendar days. In addition, before submitting an application to the court, according to Art. 620, the user is not obliged to send requests for elimination of violations to the owner. In this regard, the imperativeness and status of the provision of paragraph 2 of Art. 452 of the Civil Code, according to which this condition is established as mandatory.

Unilateral order

Refusal to fulfill its obligations by one of the participants, in accordance with the general rules, is not allowed. This provision is considered a logical continuation of the one enshrined in Art. 310 of the norm prescribing the inadmissibility of this action. However, if such a possibility is indicated in the terms of the document, then the refusal will be legitimate. Accordingly, the termination of the lease will act as a legal consequence of a unilateral refusal. The letter, a sample of which is presented below, should inform the other party of the activities performed. In this case, the so-called "extrajudicial order" takes place.

Registration rules

A sample agreement for the termination of a lease agreement, regardless of what the basis for this is, provides for the indication of the details of the parties. It should be clear from the document between whom the legal relationship ends and for what reason. If there are unfulfilled obligations, conditions and terms of their fulfillment must be indicated. For example:

"Lease Termination Agreement

1. The parties agreed to terminate the relationship with ____ g.
2. Party 1 undertakes to return the deposit to Party 2 in the amount
   1/3, which is ____ rub. The second part of it - 2/3, namely ____ rubles, passes as compensation to the ownership of Party 1, which compensates for the losses incurred as a result of Party 2's refusal to fulfill its obligations under the contract.
3. This document completely terminates any obligations arising from the original contract. "

"Notice: Lease Termination

____ (day, month, year) object ___ was transferred to your company for use. The corresponding lease agreement ____ № ___ was concluded about this.

According to clause ___, our organization has the right to terminate it unilaterally if your organization violates the conditions of clause ___. In accordance with item ___, your business should have done ____. However, your organization did not fulfill its obligations, thus violating clause ___, which is confirmed by __________. In connection with the above, we notify you that the lease agreement ________ dated _______. No. ________ according to clause 3, art. 450 of the Civil Code and clause ___ of the agreement is considered terminated from the date your company receives this notification.

We require ________ to ________ g. _________________________

Signature, number, seal. "

An important point

In order to avoid any kind of misunderstanding, experts recommend prescribing as specific conditions as possible in the contract. This may relate both directly to warnings and the order of delivery of certain papers. In particular, this applies to the terms and conditions for sending notices.

Finally

A lease agreement is considered a fairly common technique that ensures a mutually beneficial relationship between the owner of the property and its potential user. The first receives income from what gives another person the opportunity to use the object for its intended purpose in accordance with the law and the terms of the contract. The second party gets the opportunity to conduct its business with minimal investment in equipment, real estate and other facilities necessary for a successful business. However, in any legal relationship there are obligations that must be fulfilled. In order to avoid early termination of the lease, it is necessary to follow the letter of the law, as well as the terms of the contract, and promptly warn each other about the circumstances that prevent this.

Any contract, upon conclusion, has a period during which it must be executed. This rule also applies to the rental of non-residential premises. However, there may be situations where the agreement between the two parties (in this case, the lessee and the lessor) is terminated early.

The legislation provides for the following grounds for early:

• Agreement of the parties.
• Significant violation of the terms by the tenant of the non-residential premises.
• Major violation by the landlord.

At the same time, even in case of violation of the conditions, the lease of non-residential real estate can be terminated both voluntarily (after the claim of the interested party) and in court (if the counterparty did not respond to the claim and did not wish to terminate the contract in an amicable way).

In addition, the following point should be noted: for real estate, both residential and non-residential, lease renewal is often applied... This means that if, within the time period established by the contract, none of the parties declares their desire to terminate it, then the lease relationship continues on the same terms.

In addition, with regard to the lease of real estate, the rule is that if the tenant properly fulfilled all his duties (kept the premises in order, made payments on time, etc.), then he has priority when concluding a new contract in relation to the same object (Article 621 of the Civil Code of the Russian Federation).

However, it must be remembered that the legislation does not provide for automatic prolongation of the contract. Its parties must themselves indicate in the terms of the contract concluded between them. The result is the following picture:

Important. Although a lease agreement for real estate for a period of one year or more must be registered in the USRN (part 2, article 651 of the Civil Code of the Russian Federation), this does not apply to prolongation. In this case, it is considered that with each renewal, the parties begin the relationship anew, even if under the same conditions.

therefore usually lease non-residential premises are for 11 months, and then, if the tenant and landlord are interested, they are extended by an additional agreement or automatically.

Article 651 of the Civil Code of the Russian Federation. Form and state registration of a lease agreement for a building or structure

1. The lease agreement for a building or structure is concluded in writing by drawing up one document signed by the parties (paragraph 2 of Article 434). Failure to comply with the form of the lease agreement for a building or structure entails its invalidity.
2. A lease agreement for a building or structure, concluded for a period of at least a year, is subject to state registration and is considered concluded from the moment of such registration.

What do you need to know?

The exact order of termination will depend on several factors:

• Who exactly wants to terminate the contract?
• Is the termination voluntary or involuntary?
• Is there a termination or termination?

Termination is a special case of termination. Usually, termination is understood as a compulsory termination initiated by one of the parties or another interested person. When terminating the contract, the parties must take into account a number of legal provisions.

And now we will consider in detail for what reasons each of the parties can terminate the agreement.

By the tenant

How exactly is a registered transaction terminated?

In that case, if 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 contact?

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:

1. 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.
2. object from tenant to lessor.
3. 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 Tax Code of the Russian Federation is not paid: it will only be about the removal of the encumbrance.

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.

Do I need to draw up an acceptance certificate?

Compulsory an element of the contract to be terminated must be an act of acceptance and transfer... He proves that the parties have fulfilled their obligations to each other and either have no claims - or recorded them in an act for further investigation.

The need for an act is directly enshrined in Art. 655 of the Civil Code of the Russian Federation. It is drawn up and signed twice:

1. When the tenant receives the premises.
2. When he returns it to the landlord.

In the absence, the tenant will have no evidence that he transferred the premises back. And in this case, the question may arise that the lease continues - which means that the rent must continue to be paid.

Important. If the agreement was registered in the USRN, then without the act, it will be possible to remove the lease mark only through the court: Rosreestr may refuse to make changes to the database.

How to complete an agreement?

In cases where both parties have agreed to terminate the contract early, they need to draw up an agreement about this. The norms of the Civil Code of the Russian Federation provide that any changes and additions to the agreement are made in the same form as the agreement itself (part 1 of article 452 of the Civil Code of the Russian Federation). This means that the agreement must be formalized:

• In simple written form - with an agreement valid for up to a year, either automatically prolonged, or in which the validity period is not specified.
• In writing with state registration - if the validity period is specified directly and is a year or more.

For the rest legislation does not provide for mandatory requirements for completing an additional agreement... It is sufficient that it indicates the parties, the property and the moment of termination of the lease.

What if there is no consent?

However, with the help of an additional agreement, it is not always possible to resolve the problem. And if one of the parties wants to terminate the contract, and the other does not agree to this, then you have to go to court.

To do this, you must submit a statement of claim, drawn up in accordance with the rules of procedural law:

1. To the arbitration court - if both parties to the organization, or individual entrepreneur.
2. To a civil court of general jurisdiction - if one of the parties is a citizen who does not have the status of an entrepreneur.

The procedure for drafting and filing a claim in the first case will be regulated by the rules of the Arbitration Procedure Code of the Russian Federation, in the second - by the Code of Civil Procedure of the Russian Federation.

Important. When filing a claim, you must pay a state fee in the amount established by the Tax Code of the Russian Federation. There are exceptions, but they apply to rare caseswhen the plaintiff is eligible for benefits.

Thus, early termination of the lease of non-residential premises is a procedure that requires considerable attention. However, it is not something prohibitively difficult, and therefore even ordinary citizens, not to mention organizations, can terminate the contract.

Having considered the issue, we came to the following conclusion:
A lease agreement concluded for a certain period may be terminated unilaterally out of court if it contains a condition on the possibility of unilateral refusal to perform the agreement. This condition does not contradict the law.
In the absence of this condition, the contract can be terminated only by agreement of the parties or on the basis of a court decision.

Rationale for the conclusion:
In accordance with Art. 310 of the Civil Code of the Russian Federation, a unilateral refusal to fulfill an obligation associated with the implementation by its parties of entrepreneurial activity is not allowed, except for cases provided for by law or agreement, unless otherwise follows from the law or the essence of the obligation.
The contract can be terminated at the request of one of the parties in cases of significant violation of the contract by the other party and in other cases provided for by law or the contract. Such termination by general rule possible only in a judicial proceeding (clause 2 of Art. 450, Art. 619, Art. 620 of the Civil Code of the Russian Federation).
However, a law or an agreement may provide for the right to refuse to perform an agreement unilaterally without going to court. If the possibility of withdrawal from the contract is allowed by law or by agreement of the parties, such a refusal automatically entails termination or amendment of the contract (clause 3 of article 450 of the Civil Code of the Russian Federation) and termination of obligations (clause 2 of article 453 of the Civil Code of the Russian Federation).
With regard to lease agreements, the possibility of unilateral cancellation of the agreement is directly provided only for lease agreements concluded for an indefinite period (clause 2 of article 610 of the Civil Code of the Russian Federation). From the execution of the same lease agreement, concluded for a certain period, its party can refuse only if the possibility of such a refusal is expressly provided for by the agreement.
Thus, the lease agreement may include a clause stating that one of the parties may refuse to perform the agreement. This condition does not contradict the law. If a lease agreement concluded for a certain period does not contain provisions that allow unilateral refusal to execute it, it can be terminated only by agreement of the parties or on the basis of a court decision (clauses 1 and 2 of Art. 450 of the Civil Code of the Russian Federation).
The above is confirmed and judicial practice (Clause 27 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 11, 2002 N 66 "Review of the practice of resolving disputes related to rent", Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 16, 2010 N 13057/09, of September 9, 2008 N 5782/08).

Prepared by:
Expert of the Legal Consulting Service GARANT
Bakhtina Anastasia

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Aleksandrov Alexey

The material was prepared on the basis of an individual written consultation provided as part of the service