The need to lease non-residential premises arises mainly from individual entrepreneurs and other legal entities who need these real estate objects to carry out their activities. If you rent privatized non-residential premises does not cause significant difficulties, then renting real estate from the state or municipal authorities of the city differs in a number of nuances that you need to know about in advance.
According to the laws on the protection of competition, which are currently in force in Russian Federation, municipal authorities have the right to lease out state real estate objects for temporary use. Russian legislation also defines a number of exceptional cases when it is possible not to conduct auctions:
The essence of bargaining
The rental of municipal non-residential premises is subject to a strict registration procedure. The city administration can put up for auction even the real estate that is this moment is in use. This happens if the contract expires or it is subject to early termination.
The municipal authority is obliged to inform in advance about the holding of open tenders on the official state website. If a person wishing to rent non-residential real estate could not timely submit an application for participation in the auction due to a violated notification procedure, he has the right to file a claim in court. After consideration of the claim, the bargaining may be invalidated together with the transactions concluded as a result of it. At the same time, it is forbidden to conclude a lease agreement earlier than ten days from the date of publication of information on the results of the auction. Violation of this rule is also the basis for filing a claim in court.
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Main obligations of the parties
All rights and obligations of the parties in the lease of municipal non-residential premises are indicated in the agreement concluded between them. The main points of such obligations are the following:
| City administration (lessor) | Tenant |
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Payment and restrictions
The amount of payment for the lease of non-residential premises from the state must be indicated in the agreement of the transaction. The term of payment or other conditions is also indicated there, if the tenant makes payment for six months in advance. The city administration has the right to require monthly submission of copies of receipts for payment no later than the specified period. Regarding the fee for public Utilities and communication systems, additional agreements are concluded with other organizations. Payment is made to their bank account. In case of non-payment in due time, the municipality has the right to write off the required amount on its own. Money from the account of the tenant.
In case of late payment for the lease, the contract may incur a penalty in the amount agreed by the parties. The amount of interest cannot be changed more often than once a year. In case of malicious violation of the terms of payment, the tenant must pay a fine, the amount of which is established by a special state commission.
Reasons for early termination
The reasons for the early termination of the transaction are negotiated by the parties and indicated by separate clauses of the agreement. The general grounds for terminating the lease of a property are:
Renewal of lease
The need to extend the lease term for non-residential premises also arises quite often, so it is worth knowing how this can be done. The tenant has the right to extend the period of use of the property without re-bidding, if he has properly fulfilled all obligations before. There are two mandatory rules for contract renewal:
- The rental fee will be changed in accordance with the revaluation of real estate in the region;
- The period for which the transaction will be extended must be at least three years, unless the lessee submits a corresponding application to reduce this period.
Thus, the parties can renegotiate and renew the property use agreement as many times as necessary. There are no legal restrictions. The municipality has the right to refuse to extend the term if it has its own views on the premises or the tenant has unfairly fulfilled the terms of the contract and has debts to public utilities.
Notices and Disputes
If it is necessary to make any changes to the terms of use of the premises that are rented from the municipal authorities, then this must be reported in writing. In the event of a change in bank details and legal addresses, you must notify about this immediately. When submitting a written notice, do not forget about the deadlines and dates. The date of departure will be the postage stamp.
The transaction must be registered with government agencies. Also, the tenant will have to pay a fee. If any controversial issues arise, when the parties cannot independently resolve the conflict and agree, its decision is transferred to the court. Changes rent take effect no earlier than ten days after notification.
Each individual entrepreneur of small (medium) business has the opportunity to conclude a contractual agreement with the municipal authority of the Russian Federation for the lease of premises. The lease of municipal property, state property has some peculiarities. When concluding such a lease, a number of restrictions apply.
The conclusion of an agreement can be made in accordance with the Federal Law () in two ways:
- based on the results of the auction for the right to execute the lease agreement of municipal property assets;
- without organizing trades.
What types of property, the leasing of which is not allowed by a state institution or is limited, the specifics of the procedure for concluding a lease contractual agreement of municipal property (state property) are explained by the FAS notice No.TSA / 16309/14.
In this article
Rules, exceptions
The rules for drawing up contractual agreements for the lease of state property are established by Federal Law No. 135 (Article No. 17/1). According to this provision, autonomous municipal organizations, state institutions have the right to lease real estate, which is listed as operational management, only following the results of auctions for the right to sign lease agreements of this type. At the same time, Federal Law No. 135 (Article No. 17/1) provides for exceptions that simultaneously apply to AU.
Without auctions, municipal organizations can lease real estate in the following situations:
- the agreement is concluded for a period of less than 30 days of the calendar during the 6 extreme months of the calendar;
- another municipal organization, a government agency, a non-profit structure (also socially oriented), a medical institution, a structure engaged in activities in the field of education apply for the signing of a lease agreement;
- the transferred real estate subject to taxation is considered to be a part of the area of less than 20 m 2, and the person transferring the respective real estate assets has the rights to 10 percent of the area of this building (premises);
- the contractual agreement is signed with a special one, who alone submitted an application for competitive participation, for the auction (in this case, if this person meets the established standards), which is the only participant in the auction.
The obligation to sign a lease agreement before an autonomous state organization arises only in the last of the listed cases (an agreement with a single participant in an organized auction, tender). In other situations, when the lease of property is provided without auctions, the rightholder is not obliged to sign a contractual agreement, the applicant does not have the right to put forward claims for such areas.
The organization of an auction for the lease of real estate is allowed in relation to preferential applicants. If there are more than one such subjects for one immovable state object, then the autonomous state institution has the right to refuse to rent real estate on preferential terms and organizes tenders between them. This, in the opinion of the antimonopoly organization, does not constitute a violation of the interests of applicants in this category.
But caution when deciding to organize auctions for the lease of AU property values, assigned to them as operational management, must be shown as the owners of this property. By agreeing to rent out housing, a certain area of the organization, the founder must be guided by the requirements of Federal Law No. 135/2.
Signing contractual agreements for the lease of state property without organizing auctions
The law provides for several exceptions, when an autonomous state institution has the right to lease premises without auctions.
Lessee - educational, medical institution
What educational, medical organizations (budgetary institutions) are specifically meant is indicated in the explanations of the FAS (Chapter 5-6). In this situation, it is necessary to be guided by the provisions of the legislation of industry activities.
According to the Federal Law (Article No. 2/11), medical institutions include legal entities, regardless of the organizational and legal form used, whose business is primarily associated with the field of medicine, provided that there is an appropriate license. Also, medical organizations are individual entrepreneurs (IE) whose activities are related to medicine.
A short-term lease agreement for real estate that was not signed as a result of auctions cannot be extended for a new period without organizing an auction. In this case, the established rule applies, which limits the period of validity of this agreement for the lease of premises.
Educational (budgetary) institutions are structures whose main activities are related to the field of education, as well as institutions directly involved in training. Such organizations, according to Federal Law No. 273 (), additionally include individual entrepreneurs engaged in educational activities.
Result: legal entities, individual entrepreneurs, whose main activity is related to the field of education or medicine, but with the appropriate licenses, have the opportunity to rent the area of an immovable object of an autonomous municipal organization (state institution) without participating in auctions.
Short term rent
According to Federal Law No. 135 (Article No. 17.1 / 11/1), municipal organizations and state institutions are allowed to lease real estate for a short period without organizing tenders or auctions. At the same time, it is prohibited to provide such a service to one person for more than 30 days of the calendar, for 6 months, running in a row without organizing tenders or contests.
But according to the Russian State Code (article No. 610/3), an agreement for the lease of municipal property (state property), signed for a period exceeding the maximum possible period determined by the current legislation, is considered to be completed for a deadline.
This means that lease agreements for property values assigned to the municipality (the Russian state) and signed for a short-term period without holding an auction are not renewed (Federal Law No. 135 (Article No. 17.1 / 9), Civil Code ()). A similar position is in the Explanations of the Federal Antimonopoly Service (Chapter 10).
Rent of part of the area of the premises
It has already been noted that it is possible to lease part of the area of a building (apartment) without a preliminary auction, but subject to the following requirements:
- the leased area should not be more than 20 m 2 and 10 percent of the area of the property to which it belongs.
- when establishing such a share, it is not necessary to take into account the area of an immovable object, the right of use, the ownership of which was transferred before the entry into force of Federal Law No. 135 (Article No. 17.1), on the basis of other exceptions determined by Federal Law No. 135 (Article No. 17.1), based on the results bidding.
Tenant - contractor of the institution
It is necessary to separately note such an exception from the rules for leasing municipal real estate (state property), which does not apply to AU (at least to autonomous state institutions that carry out purchases, relying on Federal Law No. 223). In this case, we mean the signing, without bidding, of a lease agreement with a person who entered into a contract with a municipal (state) organization based on the results of an auction (on a competitive basis) organized in accordance with Federal Law No. 44. At the same time, the granted rights were provided for by a documented tender (competition) in order to fulfill the obligations of this contract (Federal Law No. 135, article No. 17.1 / 10/1).
According to the FAS Clarifications (Chapter 9), civil agreements executed within the Federal Law No. 223 are not considered municipal (state) agreements. In this regard, the provisions of the Federal Law No. 135 (Article No. 17.1 / 1/10) do not apply to such cases. That is, when an autonomous state institution, referring to the provisions of Federal Law No. 223, incurred expenses for the purchase of certain works or services, the performance or provision of which requires the presence of a contractor on the premises (for example, a theater purchased repair services, sewing stage costumes), lease the corresponding areas are possible exclusively at organized auctions.
Important! In such situations, as described above, the purchase of services, the auction for the right to draw up a lease agreement are two independent processes.
Prolongation of the contract
Current lease agreements for municipal property(state property), property values transferred to the state agency for operational management in accordance with Federal Law No. 135 (Article No. 17.1 / 9-11) are subject to renewal. In the event that an individual has fulfilled his own obligations under this agreement properly, a contract is signed for a new period without organizing an auction (unless the contractual agreement provides otherwise and the period of validity of such a contract is not limited by the provisions of the current Russian legislation).
In this situation, two prerequisites must be met:
- the minimum period for renewal of the lease agreement must be from 3 years (a shorter period is possible, but only when the tenant writes a corresponding application);
- the amount of the fee, on the basis of which the income for renting premises is recorded, is determined based on the results of real estate appraisal in accordance with market prices.
If all the conditions are met, the lessor, represented by an autonomous state institution, according to Federal Law No. 135 (Article No. 17.1 / 10), has no right to refuse to prolong the contractual agreement to the tenant.
Refusal is possible if the individual has debts at the time of completion of the lease contract or if there is a decision to dispose of the relevant real estate in a different manner.
Based on this, the antimonopoly organization made the following conclusions:
- T Since there is an opportunity for the tenant not to provide the renewal of the lease agreement on the basis of a new decision on the procedure for disposing of the real estate, the landlord needs to obtain consent from the owner of the respective real estate to renew the lease contract.
- Posting the renewal of the lease agreement in accordance with Federal Law No. 135 (Article No. 17.1 / 9) can be performed an unlimited number of times according to similar grounds. At the same time, it is important to comply with the requirements for each new prolongation of the document.
Sublease
According to Federal Law No. 135 (Article No. 17.1 / 1/16), it is possible to sublet municipal property (state property) without an auction in such cases:
- the right to sign a lease agreement was granted to the lessee on the basis of a municipal (state) agreement;
- the government agency entered into a lease contract following the results of the auction, based on the failed auction.
Subject to these requirements, real estate of any area can be subleased (Federal Law No. 135 in this plan does not provide for any restrictions). In the opposite situation, the corresponding areas are provided for sublease on a general basis, determined by Federal Law No. 135 (Article No. 17.1) with the organization of an auction, without it, but with other exceptions.
Artem Temirov, co-founder of the cooperative "Black"
- Now we exist in the format of a coffee corner in the Tsiolkovsky bookstore, and we all have to move out by December 1, as the building is being closed for reconstruction. We decided to look for a room for a full-fledged coffee shop with seats... So, after three weeks of searching, we realized that on the market a huge number of premises are subleased from the city. That is, the premises themselves belong to the city, someone rents them for a penny, and then subleases them at the market price.
And without stopping our searches through the usual channels (CIAN, real estate agencies), we decided to find out how to rent a room from the city. It became clear that auctions are common practice. Auctions are held monthly, you can participate in them. But we realized that we do not have many chances to win in these auctions, because we are too young a project (we are only six months old), plus we do not have much money to compete for the right to rent good premises with companies that have been on the market for a long time.
But we also found out that it is possible to rent premises from the city without participating in the auction. However, we have not found an answer to the question of how to do this. We just realized that this is possible only for entrepreneurs whose activities are included in the list of priority activities, and we fit these criteria, since one of the priority activities is youth entrepreneurship.
We called the Property Department to inquire more about this. We were transferred from one official to another several times, and eventually we submitted an official written request to the department. We were given a sheet where the appeal number is indicated, and it is also indicated that the answer will be given within 30 days.
Since we do not really trust the officials and the entire bureaucratic machine, we were afraid that this could take forever or that an answer would come, and not a full-fledged answer, and therefore decided to back up the whole matter with at least some media coverage. Wrote post on social networks.
There were a lot of shares on Facebook, and the property department left a comment under our post that we will receive an answer “no later than the deadline; and it is absolutely certain that the number of reposts of your letter does not affect the quality of the department's work and the regulated response time. "
Also, the officials asked us to inform them about the result. So now we call the property department once a week and ask about the fate of our appeal. As soon as the answer comes, we will definitely post it on social networks.
Konstantin Pozdnyakov,Deputy Director General of the State Budgetary Institution "Small Business of Moscow"
- Representatives of small and medium-sized businesses in Moscow have the right to preferential purchase of premises with an area of up to 1 thousand square meters. m. They can take advantage of this opportunity if they have rented the site for at least two years and if there are no arrears in rent and penalties on the day of application. At the same time, it is possible to pay in installments over three years.
For all small businesses that rent premises near the city with an area of up to 300 sq. m (and the lease agreement was concluded without bidding), for 2014 a minimum rate of 3500 rubles was set. for 1 sq. m per year.
If you are a small business, you rent premises over 300 sq. m and carry out activities in the fields of health care, education, trade in social stores, social catering, consumer services, physical education, sports, culture, production and handicrafts, you can get support. To do this, you need to send an application to the commission before December 1, 2013 on the application of the minimum rental rate for 2014.
This also applies to small businesses that employ disabled people. The condition is that the average number of people with disabilities must be at least 50%, and their share in the wages fund must be at least 25%. In this case, the applicant, in the prescribed manner, must be included in the register of small businesses, must use the facility for its intended purpose and must not have any debts.
If you have any difficulties, you can consult with the specialists of the State Budgetary Institution "Small Business of Moscow", the contacts are on the website www.mbm.ru
Premises and buildings owned by the city of Moscow are leased out based on the results of the auction. An entrepreneur needs:
1. Select a premise from the list of objects put up for auction on the official website of the city property department - www.dgi.mos.ru (the owner of the objects) or on the website of the tender committee - tender.mos.ru (the organizer of the auction).
2. Timely submit an application for participation in the auction (tender committee).
3. Pay the deposit (the amount is indicated in the auction documentation).
4. Take part in the auction.
5. Entrepreneurs can inspect any premises / building put up for auction. To do this, you need to submit an application for inspection of the object to the tender committee.
