The owner of the rented apartment suddenly suggested that you collect and vacate the apartment as soon as possible, although the agreement on renting the apartment was for a longer period? In what cases the owner cannot expel from rented apartment earlier than the agreed time period?
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It all depends on the presence of a lease (hire) agreement or its absence. If a lease agreement(lease) is and is drawn up correctly, it will become your weapon in a dispute over the terms of renting an apartment.
Employer's rights living quarters:
- live in a rented space;
- file a lawsuit in case of default by the landlord.
Obligations of the owner of the rented apartment (Article 676):
- to transfer to the tenant a free living space in a condition suitable for living;
- provide or ensure the provision to the employer for a fee of the necessary utilities, ensure the repair of common property apartment building and devices for the provision of public services located in a residential building.
No contract
there is residential lease agreement was not signed, and you did not take a receipt for the paid rent from the landlord, alas, you just have to move out. Without hiring, you may be kicked out simply because of changed plans or because you flooded a flower in an apartment you occupy. In this case, it will be difficult to obtain from the court a decision on your residence for the period that was negotiated when moving into the apartment. There is nothing to document the fact of renting housing and its terms, except to provide more witnesses who saw you transfer the rent to the landlord and negotiate the living conditions.
If the owner of the rented apartment threatens with court and other punishments, for example, the police, boldly. The judge will be on your side, unless the landlord can prove that you are the person who violated the lease.
Keep in mind that if the lease is about to expire, the landlord must give you three months notice of refusing to renew it. If neither you nor the landlord have taken care of the extension and its validity period is about to end, a controversial situation arises, because if the landlord did not warn about his intentions, as he should, from a legal point of view, the contract is considered extended (, p. 684) ...
By a court decision, the tenant may be given a period to eliminate the violations that served as the basis for terminating the lease of residential premises. If during this period the tenant does not take all the necessary measures, the landlord's re-appeal court decides to terminate the rental contract.
Conflicts often arise between business owners and owners of premises, as a result of which the owner may demand to vacate the premises. The culprit of this situation can be both the tenant and the landlord himself.
If you find yourself in such a situation, it is important to remember that regardless of who violated the terms of the contract, the entrepreneur is in a better position and can count on at least a delay in "eviction" until a court decision is received.
How to behave in such a situation tells Leonid Titov, legal adviser of the law firm Alta Via.
How can I protect myself from eviction?
Unfortunately, it will not be possible to completely exclude the possibility of eviction. But a well-written lease agreement minimizes the risk of early loss of the right to use the premises. The goal of any treaty should be to develop an adequate system of checks and balances that will restrain both parties from abuse.
It is advisable to clearly indicate the following conditions in the contract:
- the procedure for changing the rent in order to reduce the risk of conflict due to disagreement with the amount of payments;
- the procedure for the exchange of legally significant messages (for example, the approval of redevelopment, sublease, and so on), so that in the future the owner or tenant cannot refer to the fact that any notification was not received in time or was not received at all;
- cases where the owner has the right to unilateral termination lease agreement. It is possible to establish for him an unconditional right to such termination, but at the same time provide for the payment of compensation to the tenant;
- it is possible to establish a ban on the unilateral termination of the contract by the tenant and provide for a penalty for violation of this condition;
- a reasonable time during which the tenant must leave the premises when early termination contract.
How to behave in order to avoid possible conflict?
To do this, it is necessary to strictly follow the contractual relationship, to comply with the requirements of the lessor for the use of the premises. Coordinate with the lessor (and if the agreement is not provided for by the contract - notify of the intention to perform) certain actions with the subject of the lease, for example:
- transfer to sublease;
- redevelopment or installation of inseparable improvements;
- changing the decorative appearance of the entrance group;
- installation of advertising structures on the facade of the building or at the entrance.
In this case, in no case should you always go on about the landlord. If the lessor puts forward requirements that are not provided for by the contract, it is necessary to delicately indicate this in writing to him, referring to the lease agreement.
What if the owner has already announced his intention to terminate the lease?
First of all, the tenant must understand the motivation of the landlord. This can be both a reaction to the tenant's unfair actions (delayed rent, uncoordinated redevelopment, etc.), or a commercial interest of the lessor, for example:
- getting more advantageous offer from a third party;
- bluff, with the aim of negotiating to increase the amount of rent;
- inconsistency of the planned rental income of the premises with the real situation;
- a sharp change in the situation in the real estate market and so on.
In some cases, during negotiations it is possible to achieve more favorable conditions, in others it is better to agree on an early termination or increase in rental payments. You can always think over a plan for a retreat, start looking for another premises to rent. The main thing is not to immediately start a conflict with the landlord and not take any rash actions.
What is the correct way to conduct pre-trial negotiations?
Any lease agreement usually contains the wording: "The parties will try to resolve any conflict situation through negotiations ...". This wording actually obliges the owner and tenant to comply with the claim procedure for resolving the conflict before going to court. Usually none of the parties is interested in litigation, as it is very costly and often does not allow achieving the desired result.
When negotiating, you must clearly define your position. At the same time, it is imperative to offer various options to resolve the dispute and obtain the desired result. The purpose of negotiations, in any case, is the ability to avoid legal proceedings and at the same time achieve the intended result.
In what case is it better to leave the rented premises without additional conflict?
There are cases when it is better to leave the room without any questions:
- the tenant himself violated the lease agreement;
- the landlord offers favorable compensation for the termination of the contract;
- the tenant has an alternative premises for further work;
- during the negotiations, a compromise was reached, the landlord agrees to fulfill a number of conditions or "forgive" the tenant for violations.
How to correctly transfer the occupied premises to the owner who refuses to accept it?
Problems often arise when the parties have already agreed on early return premises from the lease, with its direct transfer under the act of transfer and acceptance. When transferring the premises, the tenant must agree with the lessor on the day of transfer and bring the premises to the condition that was agreed upon when concluding the contract.
If the owner refuses to accept the premises for a reason with which the tenant does not agree, it is necessary:
- unilaterally sign the acceptance certificate;
- try to capture the transfer process in a photo or video;
- the keys and the unilaterally signed act should be sent to the lessor by mail to the address specified in the contract.
These actions will make it possible in the future to prove the timely return of the premises, which will become the basis for non-accrual of additional rent.
What if the landlord prevents access to the premises, for example, changed locks?
Such situations occur quite often and, for the most part, have good reasons. If this happens, the court is most likely inevitable, so it is necessary to try to gain access to the premises.
The procedure depends on the reasons, but in any case, it is necessary to prepare a claim containing clear requirements and proposals to the lessor, such as:
- indicate the conditions that must be met by the tenant to return access to the premises;
- indicate the possibility of collecting damages / penalties for non-use of the premises for their intended purpose;
- suggest a way to resolve the conflict.
Most often, the owner blocks access to the premises due to a gross violation by the tenant of his obligations under the contract. And all cases when the landlord has the right to do so must be specified in the contract. If it does not contain such conditions, then the actions of the lessor are illegal and can be challenged.
How to prepare for a lawsuit with the owner?
If during the negotiations it was not possible to come to an understanding, in case of a lawsuit, it is necessary to collect documents proving the tenant's compliance with the terms of the contract.
It usually looks something like this:
- documents confirming the coordination of certain actions with the premises;
- documents confirming timely payment (if at the time of the conflict there was a debt, it is recommended to pay it off);
- documents containing information about pre-trial negotiations (claims, notifications, and so on);
- documents confirming attempts to return the occupied premises to the lessor.
The most important document for challenging the position of the lessor is the pre-trial examination, which confirms or denies the disputed points. These documents confirm the tenant's good faith intentions and allow the court to prove his interest in resolving the conflict.
If, as a result of the actions of the owner, I incur losses, can it be proved and compensated?
Yes, it is possible. To do this, it is necessary to clearly record in the contract in which cases the tenant is entitled to compensation for losses. Alternatively, you can set limit size losses that the lessor is obliged to compensate in certain cases.
If there are no such conditions in the contract, it is rather difficult to prove the amount of losses. But in order to have a chance for a positive outcome, it is necessary to record in detail all the losses incurred, both real and lost profits.
Alexander, It is possible to evict and terminate the contract only through the courts.
Therefore, if the owner comes with the district police officer, then show him the contract, then he will also leave. To evict you by force, no one has the right!
Article 675 of the Civil Code of the Russian Federation. Preservation of the lease agreement for residential premises upon transfer of ownership of residential premises
The transfer of ownership of the residential premises occupied under the lease agreement does not entail the termination or amendment of the residential lease agreement. In this case, the new owner becomes the lessor on the terms of the previously concluded lease agreement.
Article 684 of the Civil Code of the Russian Federation. The preferential right of the employer to conclude a contract for a new term
Upon the expiration of the term of the lease of residential premises, the tenant has the preferential right to conclude a lease of residential premises for a new period.
Not later than three months before the expiration of the term of the contract for the lease of residential premises, the landlord must offer the tenant to conclude an agreement on the same or different conditions, or warn the tenant about the refusal to extend the contract in connection with the decision not to rent out the residential premises for at least a year. If the landlord has not fulfilled this obligation, and the tenant has not refused to renew the contract, the contract is considered extended on the same conditions and for the same period.
When agreeing on the terms of the contract, the tenant does not have the right to demand an increase in the number of persons permanently living with him under the contract for the lease of residential premises.
If the landlord refused to renew the contract due to the decision not to lease the premises, but within a year from the date of the expiration of the contract with the tenant entered into a lease agreement with another person, the tenant has the right to demand that such an agreement be declared invalid and (or) compensation for losses caused refusal to renew the contract with him.
1. A tenant of a dwelling has the right, with the consent of other citizens permanently residing with him, at any time to terminate the lease agreement with a written warning of the lessor three months in advance.
2. The lease agreement for residential premises may be terminated at judicial procedure at the request of the lessor in the following cases:
failure of the tenant to pay for the dwelling for six months, if the contract does not establish a longer period, and in case of short-term lease, in case of failure to pay the payment more than two times after the expiration of the payment deadline established by the contract;
destruction or damage to living quarters by the tenant or other citizens for whose actions he is responsible.
By a court decision, the tenant may be given a period of no more than a year to eliminate the violations that served as the basis for terminating the lease of residential premises. If, within a period determined by the court, the tenant does not eliminate the violations committed or does not take all the necessary measures to eliminate them, the court, upon repeated appeal of the landlord, makes a decision to terminate the lease agreement. At the same time, at the request of the employer, the court in the decision to terminate the contract may postpone the execution of the decision for a period of not more than a year.
3. The contract of lease of residential premises may be terminated in court at the request of any of the parties to the contract:
ConsultantPlus: note.
Decree of the Government of the Russian Federation of January 28, 2006 N 47 approved the Regulation on the recognition of premises as residential premises, residential premises unsuitable for living and an apartment building as emergency and subject to demolition or reconstruction.
if the premises are no longer suitable for permanent residence, as well as in case of its emergency state;
in other cases stipulated by housing legislation.
4. If the tenant of the living space or other citizens for whose actions he is responsible, use the living space for other purposes or systematically violate the rights and interests of neighbors, the landlord may warn the tenant about the need to eliminate the violation.
If the tenant or other citizens for whose actions he is responsible, after a warning, continue to use the dwelling for other purposes or violate the rights and interests of neighbors, the lessor has the right to terminate the lease of the dwelling in court. In this case, the rules provided for by the fourth paragraph of clause 2 of this article apply.
Will evict, through the court, defend your interests, the law is on your side.
Finding and renting premises is an eternal headache for entrepreneurs. When the process is successfully completed, it is too early to relax. The worst challenges may lie ahead. Unscrupulous landlords can unexpectedly kick out the door, block access or seal the premises along with the property in it. To prevent this from happening, Secret, together with lawyers, prepared a guide for communicating with the owners of commercial premises.
Theory
1. Review the lease
The specificity of lease relations is that many of their aspects are not directly regulated by law. Many important provisions (the procedure for settlements between the parties, return of premises, repairs, operating costs) have to be settled directly in the lease agreement. Most likely, on many issues, the contract will contain a position that is obviously advantageous for the lessor, which makes the tenant almost powerless.
If the landlord's right to terminate the contract unilaterally is not contained in the contract, termination before the expiration date can only take place in court. It is necessary to focus on article 619 of the Civil Code of the Russian Federation.
2. Check written notice of termination
Before terminating the contract, the lessor is obliged to send a written warning about the need to fulfill the obligations under the contract and about the intention to terminate the contract.
3. Understand why they are kicked out
If the claims are related to violations of the terms of the contract by the tenant himself (for example, violation of the terms of transfer of rent, damage to premises), giving the landlord the right to terminate the contract early in court on the basis of Article 619 Civil Code or refuse it unilaterally out of court on the basis of the provisions of the contract itself, then the tenant must stop the corresponding violations.
4. Talk to the landlord
Zhanna Alexandrova
Legal Counsel "Intercession"
In a crisis, it is not profitable for landlords to lose tenants, since a large number of retail and office space is empty. Therefore, any conflict can be tried to be resolved in a peaceful way. In case of arrears, it is possible to agree on a temporary reduction in the rental rate, or on a deferral, or on payment of the debt through a security deposit.
5. Conclude a new agreement
After elimination of the violation, the results of negotiations with the lessor should be recorded in a written document (agreement, protocol or memorandum). In it, the lessor will confirm the satisfaction of the requirements and the absence of claims against the lessee as grounds for early termination of the lease.
6. Wait for a subpoena and not go anywhere
Andrey Kuzmin
Senior Partner, Titov, Kuzmin & Partners Law Firm
If it was not possible to reach an agreement, you must understand that without a special condition in the contract, the landlord, until the termination of the contract, has no right to restrict your access to the premises and hold your property. In case of such actions, you can contact law enforcement agencies, as well as make a claim to the landlord with a demand to compensate for losses. While the landlord restricts access to the premises, the organization cannot carry out activities, which leads to losses.
Evgeny Krasnopyorov
Lawyer of the company "Yuristat"
The requirement to terminate the contract may be filed by the lessor in court only after the tenant has received the tenant's refusal to offer to terminate the contract or if the response is not received within 30 days.
7. Record the requirements of the landlord
Exchange messages and notifications in writing in the ways prescribed in the agreement and only at the proper addresses specified in the agreement. If such conditions were not agreed in advance, communicate by registered letters with return receipt, by mail or using a courier service, with a mark on the proper delivery of the notice to the landlord's representative (even if the landlord is sitting in the room next to you).
In no case do not sign notices and acts without looking. For example, the landlord brings you an act stating that you have worsened the rented space, which is not true. Reflect in this act that the document was drawn up without your presence, that the parties did not create a commission, that you did not worsen the premises, but accepted it exactly in this form and strongly disagree with the act. After receiving such acts, be sure to send a letter to the landlord, which lists all the facts that do not correspond to reality and that caused your disagreement.
8. Stop paying
On the basis of article 328 of the Civil Code of the Russian Federation, the tenant has the right to suspend paying rent as a counter-default.
9. Take out the property
Timofey Ermak
Senior Partner, Yurlov & Partners Law Firm
In the event of conflicts with the lessor, the tenant is at a disadvantage, since the owner can close access to the premises and block the tenant's property there. In this case, the lessor refers to the provisions of the law "on retention" and justifies his actions by a guarantee of compensation for his losses. There is a high probability that the property will be withheld pending the consideration of your dispute by the court, and maybe even disappear without a trace. Therefore, if the conflict has passed into an open phase, it is better to promptly take out the property and notify the owner about the release of the premises, so as not to "get" to additional rent payments. If your property is unlawfully withheld by the tenant, you can apply to law enforcement agencies with a statement of arbitrariness or file a lawsuit in court for the reclamation of property from someone else's illegal possession.
Mikhail Kolotov
Head of the practice "Land. Real estate. Investments" of the company "ENSO"
Lada Gorelik
Managing Partner of the Moscow Bar Association "Gorelik & Partners"
In case of blocking access to the rented premises (the security does not allow, the locks were changed, etc.) mandatory call the police officers and record this fact in the protocol. In addition, it is necessary to send the lessor a letter of claim, which indicates that the cost of your equipment / furniture / goods is so much that at the moment the lessor will be responsible for the safety of your property, which due to illegal refusal of admission to the rented premises , you incur substantial losses in such and such an amount and that you intend to recover the losses from the lessor in court.
If you have renewed admission to the rented premises, do not enter it without the owner's representatives. It is necessary to create a commission and take an inventory of the property. If the landlord or his representatives refuse to participate in the work of the commission or sign the act on the inventory of the property, you need to make notes about this with the participation of disinterested witnesses of what is happening (not from among the employees of your company) or invite a notary to fix what is happening. It is also advisable to take video and audio recording of what is happening.
10. Go to court yourself
Alexander Batalov
CMS Real Estate and Construction Practice Advisor
The tenant has the right to go to court with a claim against the lessor to eliminate violations of the tenant's rights and obstacles to the use of premises on the basis of Articles 304 and 305 of the Civil Code of the Russian Federation and to compensate for losses caused by these violations. Written and other evidence collected by the tenant must be submitted to the court to substantiate the claim.
The second option is to go to court with a claim for early termination of the contract on the basis of paragraph 1 of Article 620 of the Civil Code. If the tenant decides to completely vacate the premises, then the current state should be previously recorded (preferably with the attachment of photographs) in the form of an act and try to ensure that the act is signed by the representatives of the lessor. At the same time, the tenant should look for new premises. The costs of storing property and searching for and renting new premises may be claimed as losses to be reimbursed by the lessor at the same time as the termination of the lease agreement.
Practice
Alexey Gordeychik
Manager of the group of companies "Gordeychik and Partners"
Over the past few years, the approach of the courts and the legislator to the possibility of deviating from the direct requirements of the law, that is, to the so-called "freedom of contract", has changed significantly. Now everything is allowed that is not directly prohibited under threat of invalidity and / or is not related to abuse of law, does not violate the rights of others, as well as public interests. At the same time, the practice in this regard is not stable. For one precedent in your favor, you can almost always find another, the opposite in content.
There is only one defining component. In such disputes, the one who is able to provide physical control (possession) of the disputed object has the advantage. If the landlord can make it difficult for your employees and visitors to enter the premises, it is better to look for a peaceful way out, to part with the least losses. One should resort to methods of confrontation, including legal ones, only in extreme cases.
If the power is on the side of the tenant, then you can begin to calculate the options with the retention of the premises and the simultaneous judicial protection from the actions of the owner. In this case, in no case should you forget to carefully pay the rent in the part you recognize.
Olga Kosets
President of the International Public Organization for Support and Protection of Small and Medium Business "Business People"
I have four rules by which I am guided when concluding any contracts. The first is to read the lease agreement provided by the other party. The second is to provide your own version of the contract or amendments to the presented version. The third is to coordinate even the smallest details, especially in terms of partings. Fourth, never sign a contract without first consulting lawyers.
The biggest problem in the landlord-tenant relationship is in the gray schemes of payment of rent payments and in the contracts “in words”. If you are asked to partially pay in an envelope, believe me, it will be impossible to prove your case in court later. Most conflict situations arise precisely with this relationship algorithm. I have several examples of difficult breakups with tenants. In all cases, I, referring to the clauses of the concluded agreement, acted according to what was written. The tenant violated the terms of the monthly payment for six months. Delay penalties were specified in the contract, but never applied. We sent a letter of claim and notified that, according to the contract, the company will be obliged to pay the interest. In case of continued violation of the payment schedule, we intend to terminate the agreement. There was no reaction to our letter. Moreover, after a while the tenant stopped communicating and answering phone calls. Payments have stopped altogether.
In the warehouse space, which I personally owned on the basis of property rights, there was a large amount of cabinet furniture belonging to the tenant. Two weeks later, in the presence of three of my employees, we were forced to open the premises. We compiled an inventory of the tenant's property and an autopsy report, sent copies to legal address company by registered mail. As it turned out later, the company had serious financial difficulties... They were already in a state of litigation with the landlord. retail space in a nearby shopping center. I analyzed the situation in terms of his solvency and realized that the most cheap way for me it is to part with a would-be entrepreneur as soon as possible. I gave permission to take out the furniture.
My loyalty is not due to a broad soul, but financial calculation. Sometimes resistance is more expensive. I prefer pre-trial resolution of the conflict with incomplete satisfaction of both sides. In the case I described, the tenant lost a deposit in the amount of the monthly rate according to the contract, and my premises stood empty for several months while we were looking for a new client.
