Residential premises for commercial use under a lease agreement

Commercial rental housing is a type of transfer of the right to dispose of an apartment or room belonging to a municipal or federal entity.

It is carried out by drawing up a property transaction agreement, in which one party (the municipality) transfers to the other party (an individual) the right to use it on the terms of compensation for the immediate intended purpose.

The recipient's powers include the same types as housing transferred under a social tenancy agreement or a lease agreement.

Administrative authorities have the right to use a certain percentage of apartments seized from owners due to violations. This number may also include housing:

recognized as ownerless;
from among escheatable property;
voluntarily transferred by the owner.

Vacant apartments that are not planned as objects for transfer to those on the waiting list are placed on the balance sheet of the city administration or locality administration and can participate in commercial activities.
Funds received from the transfer of these premises to citizens are contributed to the city or local (regional, district) budget and distributed for priority purposes for the locality.

Several family members can move into an apartment or room on this basis, who are listed in the contract, defining the status in the relationship and the degree of relationship, if any. In this case, the responsibility between the persons is shared jointly.

Differences between commercial and social hiring

Regarding the object, which are apartments and rooms owned by the locality, this civil law transaction resembles the social rental of premises, with a difference in the conditions and status of the property rights of the occupants.

In terms of subject matter, the transaction is similar, but not identical, to a lease agreement, in which subject relations are limited by strict limits, since only an authorized official from the local government can be the lessor, and only an individual can act as a tenant. There are other significant similarities and differences.

The main similarity between the designated legal relations is their belonging to the category of the Housing Fund (HF) of the Russian Federation.

Only housing from the municipal fund, intended to meet the needs of interested persons on the waiting list, is allowed to participate in the social rental procedure.

While the commercial rental of housing is carried out in relation to premises from the same category of residential housing, it allows the transfer of rights in a wider range, using the initiative of citizens who have not reached the queue for receiving it.

There are no such restrictions for rental relationships; the lessor is allowed to dispose of any real estate under his control. In addition, the tenant can be both individuals and legal entities from among enterprises, organizations and companies.

Commercial rental for those on waiting lists

Citizens on the waiting list for social housing have the right, but are not required, to receive apartments under these conditions.

In relation to other applicants from among interested persons who are not on the waiting list for housing, those on the waiting list have priority, but on the condition that they leave the waiting list and lose the right to purchase premises as persons in need.

Such conditions are not regulated, but are legal. They are established in most regions of the Russian Federation and are sanctioned by local legislation.

At the same time, it is not allowed to force those on the waiting list to choose in favor of the designated conditions. Authorized officials cannot replace one type of civil law relationship with another, since the conditions and types of benefits received in this case are not equivalent.

On the provision of residential premises for commercial use

Resolution of the Council of Ministers of the Republic of Belarus dated December 31, 2014 No. 1297 approved the Regulations on the procedure for providing residential premises for commercial use (Regulations) and a standard lease agreement for residential premises for commercial use of the state housing stock.

It has been established that the Regulations do not apply to the provision of residential premises for commercial use intended for the residence of civil servants in accordance with the list of positions of civil servants giving the right to receive rental housing, approved by Decree of the President of the Republic of Belarus of November 17, 2014 No. 535 “On measures to implement Decree of the President of the Republic of Belarus dated December 16, 2013 No. 563", residential premises for commercial use of the communal housing stock, built at the expense of the republican budget allocated to overcome the consequences of the disaster at the Chernobyl nuclear power plant, as well as residential premises for commercial use under economic management or operational management of organizations subordinate to the Administration of the President of the Republic of Belarus.

In accordance with the Regulations, decisions on the provision of residential premises for commercial use are made by:

regional, district, city, settlement, rural executive committees, local district administrations in cities (local executive and administrative bodies) - for residential premises for commercial use of communal housing stock owned by the corresponding administrative-territorial units;
state bodies and other state organizations in the economic jurisdiction or operational management of which are the residential premises of the republican housing stock, or higher authorities, state bodies or other state organizations that have entered into an agreement for the gratuitous use of residential premises, or persons authorized by them (organizations in whose jurisdiction are residential premises) - for residential premises for commercial use of the republican housing stock.

It is stipulated that information on the availability of residential premises for commercial use (location, quantitative and qualitative composition, characteristics, level of improvement, amount of fees for use) and the deadline for applying for their provision is posted in the prescribed manner by local executive and administrative bodies, organizations under the jurisdiction of where these residential premises are located, indicating specific residential premises intended for citizens who have priority rights to the provision of residential premises for commercial use.

If applications from citizens for the provision of residential premises for commercial use are not received within the period established for applying for the provision of such residential premises, then information about residential premises for commercial use is posted again. If several applications are received for the same residential premises (residential premises) for commercial use from a citizen applying for such residential premises, the application submitted first is considered, while other applications are not subject to consideration.

Applications for the provision of residential premises for commercial use are satisfied in the order of priority:

receipts from government bodies, organizations of individual applications for the provision of residential premises for commercial use (individual applications) in the form established by the Regulations, within the limits established by law of the percentage of the number of residential premises intended to be provided to citizens who have priority rights to the provision of residential premises for commercial use, – for citizens who have such a right;
based on the date of registration of citizens in need of improved housing conditions - for citizens who are on such registration;
receipt of applications for the provision of residential premises for commercial use, provided there are no applications from citizens registered as needing improved housing conditions - for citizens not registered as needing improved housing conditions.

The citizen is notified of the provision of residential premises for commercial use by registered mail with return notification or against signature. Within 15 calendar days from the date of receipt of such notice, a citizen (his representative) is obliged to contact the local executive and administrative body, the organization in charge of the residential premises, to conclude a rental agreement for residential premises for commercial use of the state housing stock. Failure of a citizen or his representative to apply within the specified period is considered as a refusal to provide residential premises for commercial use.

In accordance with the Regulations, citizens are provided with residential premises for commercial use of standard consumer qualities.

The Regulations establish the specifics of providing residential premises for commercial use of communal housing stock. Thus, citizens who, in accordance with part one of paragraph 77 of the Regulations on the registration of citizens in need of improved housing conditions, and on the procedure for providing residential premises of the state housing stock, approved by Decree of the President of the Republic of Belarus of December 16, 2013 No. 563 “On some issues legal regulation of housing relations", the priority right to the provision of residential premises for commercial use of the communal housing stock, the provision of residential premises for commercial use is carried out in the following order:

judges and prosecutorial employees - on the basis of separate lists of judges and prosecutorial employees formed by local executive and administrative bodies no later than six months after their appointment to office. Lists of judges and prosecutors are formed on the basis of individual petitions from courts and prosecutors sent to the local executive and administrative body in the locality at the place of service of judges and prosecutors;
young workers (employees), specialists who received education at the expense of the republican and (or) local budgets, who arrived on assignment, sent to work in accordance with an agreement on the targeted training of a specialist (worker, employee), - on the basis of individual requests from state bodies or government organizations to which these specialists are assigned and assigned to work;
military personnel, private and commanding personnel undergoing military service (service) in the Ministry of Defense, the Ministry of Internal Affairs, the Investigative Committee, the State Committee for Forensic Expertise, bodies and units for emergency situations, the State Security Committee, the State Border Committee, the Security Service of the President of the Republic of Belarus , Operational and Analytical Center under the President of the Republic of Belarus, the State Control Committee, as well as in organizations included in their system or subordinate to them, with the exception of military personnel of conscript military service, cadets of educational institutions training personnel in specialties (specialties, specializations) for Armed Forces, other troops and military formations, the Investigative Committee, internal affairs bodies, bodies and units for emergency situations, financial investigation bodies (hereinafter, unless otherwise specified - military personnel), - on the basis of individual petitions of state bodies and organizations in which military service is provided;
employees upon appointment to a position if they move from another locality, provided that there is no equivalent replacement from among the employees in a given locality to fill the vacancy - on the basis of individual petitions from government bodies or government organizations to which these employees are appointed to the position;
scientists, teaching staff of higher education institutions, employees of cultural organizations - on the basis of individual petitions, respectively, from the National Academy of Sciences of Belarus, state institutions of higher education, the Ministry of Culture, main departments, departments (departments) of ideological work, culture and youth affairs of regional executive committees, Minsk City Executive Committee

A citizen who has a priority right to the provision of residential premises for commercial use of the communal housing stock applies for its provision to the local executive and administrative body at the location of the residential premises for commercial use on the basis of information posted in the established manner about the availability of residential premises for commercial use intended for such citizens. The application must indicate information about the existence of an individual petition from a government body or government organization.

When submitting an individual application, a state body or state organization establishes the following facts:

classifying a citizen as having a priority right to the provision of residential premises for commercial use of the communal housing stock;
the presence or absence of a citizen in the ownership of residential premises (shares in the right of common ownership of residential premises) and (or) in the possession and use of residential premises in the locality at the place of work (service);
other circumstances determined by government bodies and government organizations in local regulatory legal acts. At the same time, state bodies and state organizations have the right to determine the circumstances in the presence of which citizens are given a preferential right when submitting an individual application, in their local regulatory legal acts.

To an individual application, state bodies and state organizations request in the prescribed manner and attach the following documents:

a certificate about the residential premises occupied in a given locality and the composition of the family, issued by the organization operating the housing stock and (or) providing housing and communal services, or the organization that provided the residential premises, or district, city (cities of regional subordination), township, rural Council of Deputies (executive committee);
certificates about residential premises owned by a citizen and his family members in the locality at the place of work (service), issued by the territorial organization for state registration of real estate, rights to it and transactions with it;
copies of the education document and the employment agreement (contract) - when providing residential premises for commercial use to young workers (employees), specialists who received education at the expense of the republican and (or) local budgets, who arrived on assignment, sent to work in accordance with the agreement on targeted training of a specialist (worker, employee);
a copy of the employment agreement (contract) and justification of the reasons that led to the appointment of an employee from another locality to the position - when providing residential premises for commercial use to employees upon appointment to a position in the event of their moving from another locality, provided that from among the employees in this locality there is no equivalent replacement for the vacancy.

Copies of documents must be certified by officials of government bodies and government organizations submitting individual petitions.

In addition, the Regulations establish the specifics of providing residential premises for commercial use of the republican housing stock.

In particular, categories of citizens from among the employees of organizations in charge of residential premises that have the primary right to provide residential premises for commercial use of the republican housing stock are determined by local regulatory legal acts (including collective agreements) of these organizations.

When making a decision to provide residential premises for commercial use of the republican housing stock, the organization in charge of this residential premises establishes the following facts:

classifying a citizen as having a priority right to the provision of residential premises for commercial use of the republican housing stock in accordance with the local regulatory legal act of this organization;
whether a citizen owns residential premises (shares in the right of common ownership of residential premises) and (or) owns and uses residential premises in the locality at the place of work (service);
other circumstances at the discretion of the organization in charge of residential premises for commercial use of the republican housing stock.

In the absence of applications for the provision of residential premises for commercial use from employees of the organization in charge of the residential premises, residential premises for commercial use are provided to employees of other government bodies and organizations included in the system (structure, composition) or subordinate to the organization in charge of the residential premises , or included in the system (structure, composition) or subordinate to a state body or state organization, the system (structure, composition) of which also includes (which is also subordinate to) the organization in charge of the residential premises.

In addition, the resolution established the base rate of user fees:

residential premises for commercial use in the amount of 0.2 basic value per 1 sq. meter of total living space per month;
rental housing, taking into account the equipment with its property in accordance with the minimum list specified in part one of subclause 1.5 of clause 1 of the Decree of the President of the Republic of Belarus of November 17, 2014 No. 535 “On measures to implement the Decree of the President of the Republic of Belarus of December 16, 2013 No. 563”, in the amount of 0.25 base value per 1 sq. meter of total living space per month.

In accordance with the resolution, local executive and administrative bodies, other state bodies and organizations are instructed to ensure, within a month, that contracts for the lease of residential premises for commercial use of the state housing stock, concluded before the entry into force of this resolution, are brought into compliance with the standard contract for the lease of residential premises for commercial use of the state housing stock , approved by this resolution, as well as taking other measures to implement the resolution.

The resolution comes into force after its official publication.

According to the information of the National Center for Legal Information of the Republic of Belarus When using the material, a link to the National Center for Legal Information of the Republic of Belarus is required!

Buyout and privatization

This type of property relations does not allow the privatization of housing. This has a significant impact on the positions of those on the waiting list, who prefer to have the opportunity to privatize real estate, in accordance with the standards established by law.

The abolition of privatization here is based on a operative basis, which reflects privatization in the legal aspect of the Housing Legislation, on which the Privatization Law is based (see Is it possible to privatize official housing).

Since the legal relations of this precedent are regulated by the Civil Code, the transaction is based on grounds similar to lease relations, which does not provide for the transfer of real estate into ownership.

Civil law provides for the permissibility of redemption. But it must be authorized by the owner of the property, which is the state or municipality. Currently, there are no legal provisions that provide for the requirement of ransom or the prohibition of it.

At the discretion of the legislator, in whose fund the premises are located, the issue of redemption is resolved. On the basis of administrative acts and regulations, repurchase may be permitted or prohibited. These conditions must be included in a separate paragraph (see Peculiarities of the legal procedure “renting an apartment with subsequent purchase”).

Registration for commercial rental housing

According to the legislative regulations of the Migration Service of the Russian Federation, every resident, as well as a foreigner, is required to have registration at the place of permanent residence. Since the rented premises belongs to the government authority, it carries out the regulations regulated by it first of all.

Accordingly, registration is provided for the duration of the contract.

Since the agreement is of a fixed-term nature and is drawn up for a period of 1 to 5 years, registration at the established address does not allow extension without re-executing the agreement (see Temporary registration).

Extension is possible:

when extending the agreement for a specified period;
automatically – in the absence of termination.

The administration should not, terminating the contract, without explaining the reasons to the tenants of the apartment, conclude it with other citizens. This is dictated by the priority right of persons living in the premises if they claim a repeated or subsequent extension of the right to use housing.

Permission for registration must be reflected in the introductory part of the document. It is also permitted in the absence of direct instructions to prohibit it, if the agreement ignores the question of registering those who have moved in.

Housing use

In the process of living under rental conditions, tenants are obliged to comply not only with the terms of the contract, but also with the direct requirements of the law. If there is a significant violation of the procedure for using residential premises, early termination of the contract and forced eviction may follow.

We can formulate the main responsibilities of employers, which are fixed in the Civil Code of the Russian Federation:

use of the property only for its intended purpose, i.e. for residence of citizens;
ensure the proper condition of the leased premises;
timely fulfillment of the obligation to pay fees for the use of residential premises.

In addition, there is a direct ban on carrying out construction work on the redevelopment and reconstruction of housing; this can only be done with the consent of the landlord.

Since the content of the lease agreement necessarily indicates a list of entities acquiring the opportunity to use residential real estate, they have the legal opportunity to move in and register with the local department of the Federal Migration Service. Registration is a mandatory requirement of migration legislation; lack of registration will entail administrative liability. To register, you must present the original rental agreement; registration will be issued for the entire duration of the agreement.

If both parties properly fulfill their obligations, the contract will be terminated only upon completion of its term. At the same time, the legislation provides for the tenant a preferential opportunity to extend the rental agreement for a new term on the same terms, if the landlord does not have a more advantageous offer from third parties.

In addition to the standard situation with the expiration of the contract, it can be terminated early by the parties on the grounds specified in the Civil Code of the Russian Federation.

Commercial rental agreement

In case of provision of rented housing, a bilateral agreement is drawn up, defining the parties:

A government agency or local administration that owns the property and acts as a landlord.
An individual, family or other group of persons acting as an employer.

The following are the characteristics of the premises, which are rented to temporary owners. They contain information corresponding to cadastral registration data and certificates from the BTI. Discrepancies and disagreements in the listed sources are not allowed.

Here, in the introductory part, the type of ownership is indicated on the basis of which the premises are transferred to a temporary resident. And also – established essential terms of the contract, such as:

time and place of compilation;
permission to register;
admissibility of sublease;
right of redemption.

This is followed by provisions made up of clauses and subclauses, which sanction in detail the legal relations of the counterparties. Among them:

Conditions for the transfer of rights, defining the time, place and organizational requirements, to the parties.
Rights and obligations of counterparties.
Duration of the contract.
Establishment of a fixed fee and the conditions for its provision by persons using the apartment.
Responsibility for failure to fulfill the provisions and clauses of the contract, the admissibility of introducing fines and penalties for late payment.
The possibility of terminating the contract by mutual agreement of the parties or in court.
Procedure for counterparties in situations of force majeure or force majeure.

Finally, the details and signatures (seal) of the parties are placed, and the drawn up agreement is registered in Rosreestr.

The transfer of rights should be ensured by an act of acceptance of the transfer, the conditions of which must be fixed in a separate paragraph in the appropriate provision.

Commercial tenancy laws

This type of ownership and transfer of use rights is regulated by Article 671 (clause 1) of the Civil Code of the Russian Federation. The following legislation applies to it:

mandatory preparation in writing (Article 674 of the Civil Code);
obligations of the landlord (Article 676 of the Civil Code of the Russian Federation);
the admissibility of several participants represented by the employer (Article 308 of the Civil Code);
admissibility of sharing (clause 4 of Article 677 of the Civil Code);
equality of rights of persons living in the same rented apartment (clause 2 of Article 677 of the Civil Code);
registration of children (clause 2 of Article 679 of the Civil Code);
regulations on the quality of housing suitable for occupation (clause 1 of Article 673 of the Civil Code) (see Residential premises and the limits of its use);
contract term (part 1 of article 683 of the Civil Code);
carrying out repair work (Article 681 of the Civil Code);
amount of payment (clause 1 of Article 681 of the Civil Code);
retirement of the tenant by assignment (clause 1 of Article 686 of the Civil Code), in the event of death (clause 2 of Article 686 of the Civil Code);
pre-emptive right to register for a new term (684 Civil Code).

It is legally incorrect to apply the provisions of the Housing Code in regulating relations between the parties, since the basic legal grounds allow this type of property relationship to be considered exclusively as a civil law one.

Subject of the agreement

Download the Commercial Tenancy Agreement for residential premises. Sample (76.0 KiB, 336 hits)

The object of the contractual relationship can be in the form of an apartment or its share, or a house. The size of the provided real estate is not regulated, so it is agreed upon in advance. Also, the legislation does not establish requirements for the quality of residential premises; this is again decided by the participants in legal relations; they independently decide what meets the standards for living and what does not. The legislative norms are enshrined in clause 1 of Art. 673 Civil Code of the Russian Federation. But, even based on this article, anything can become the object of hiring, the main thing is that it complies with health regulations and does not pose a threat to human life and health.

It is worth noting that the specific subject of contractual relations cannot be any utility premises. They can be used on a general basis by all residents, but if a share of the living space or house has been rented out. Also, common objects are not only utility rooms, but also property located directly in the apartment or outside it (territory of an apartment building). Such property is sanitary, technical, electrical and other equipment necessary for permanent residence.