1. Under a property trust management agreement, one party (the management founder) transfers property into trust management for a certain period of time to the other party (the trustee), and the other party undertakes to manage this property in the interests of the management founder or the person specified by him (the beneficiary).
The transfer of property into trust management does not entail the transfer of ownership of it to the trustee.
2. When carrying out trust management of property, the trustee has the right to perform any legal and actual actions in relation to this property in accordance with the trust management agreement in the interests of the beneficiary.
The law or agreement may provide for restrictions on certain actions related to trust management of property.
3. The trustee makes transactions with property transferred into trust management on his own behalf, indicating that he acts as such a manager. This condition is considered to be met if, when performing actions that do not require written documentation, the other party is informed about their performance by the trustee in this capacity, and in written documents after the name of the trustee the note “D.U.” is made.
In the absence of an indication of the trustee's action in this capacity, the trustee is obligated to third parties personally and is liable to them only with the property belonging to him.
4. Features of trust management of mutual investment funds are established by law.
5. The specifics of trust management of public roads of federal significance are established by law.
- Article 1011. Application of rules on agency and commission agreements to agency relations
- Article 1013. Object of trust management
Agreement for control of movable property
Movable property includes securities, money, intellectual rights and other property that cannot be classified as real estate. When drawing up a trust agreement for movable property, you should remember that money cannot be a separate object of the trust agreement. But funds can be transferred for management as part of other property. For example, these could be assets of a government organization or a commercial company. This rule does not apply to banks and other credit institutions. They have the legal right to enter into trust agreements for funds with both individuals and legal entities.
The owners of the apartment are spouses
It is worth noting that an apartment purchased during marriage is joint property. Consequently, both the husband and wife must sign the contract itself and issue a power of attorney. Otherwise, such a transaction will very easily be invalidated.
Of course, there are exceptions to this rule:
- the apartment under the marriage contract is registered only in the name of one of the spouses (still, the point is quite controversial, since this agreement can also be declared invalid);
- property was inherited;
- an apartment was given to a husband or wife;
- the property was purchased before marriage.
These are the most common exceptions, others are much less common. In any case, consent from the second spouse will not be superfluous.
Deed agreement for property encumbered with collateral
The owner has the right to transfer to the trust the property that is encumbered with a pledge. However, there are nuances here. Article 1019 of the Civil Code of the Russian Federation allows the lien holder to foreclose on the encumbered property. In this situation, the trustee must be informed that the property is encumbered with collateral. The manager, who was not notified of the fact of the encumbrance, can, by law, terminate the management agreement through the court. In addition, if the agreement provides for remuneration, the trustee has the right to demand payment of remuneration for 1 year.
Commentary to Art. 1012 Civil Code of the Russian Federation
1. The legal nature of the trust management agreement does not find a clear understanding among legal scholars. In scientific publications, from time to time there are attempts to identify a certain “proprietary legal substratum” in relations of trust management of property and, as a consequence, to qualify trust management as an institution of property law. However, attempts of this kind seem to be the result of ignoring the tradition of systematics and division of property rights into real and obligatory rights that have developed in Russian civil law. It seems that trust management has all the features characteristic of rights of obligation: it is subject to the actions of a person, but not a thing; is an obligation created by a contract; is urgent; connects a limited circle of subjects. The legal obligation nature of trust management of property is not affected by the fact that the legislator has given the trustee the right to resort to proprietary methods of protection (clause 3 of Article 1020 of the Civil Code), since the latter is traditional for domestic legislative technology, which provides proprietary protection ( more precisely, possessory protection) vests both the rights of the tenant, the rights of the user, and other rights arising from the agreement (Article 305 of the Civil Code).
2. The institution of trust management of property allows the owner of the property (the founder of trust management) to realize a wide variety of goals. The property is transferred into trust for management by a specialist - an entrepreneur, who, using his professional and business skills, derives the greatest benefit from its operation. The transfer of property into trust allows the owner to benefit from its use by the trustee, freeing himself from the burden of its maintenance, which is placed on the trustee. By concluding an agreement on trust management of property, the owner may be guided by the desire to provide assistance to a third party through the use of this property, but at the same time freeing himself from the hassle associated with its operation. The design of trust management can be convenient for the accumulation and joint use of property in the interests of several founders. An example would be the conclusion of a trust management agreement by several shareholders, as a result of which they have the opportunity to combine their shares and thereby increase their ability to influence the joint-stock company of which they are members. A trust management agreement can be used for more efficient use of state or municipal property. Since, as practice shows, the state (local governments), acting through its officials, does not always effectively use the property of a public entity, it is more useful to attract commercial organizations to operate this property. In addition, the effective use of state (municipal) property within the framework of a property trust management agreement is a tool for stimulating the transfer of such property to a private owner in the process of privatization. Thus, a person who, based on the results of a competition, has concluded a trust management agreement for shares of an open joint-stock company owned by a public owner, acquires ownership of these shares after the trust management period has expired, if the terms of the trust management agreement have been fulfilled. The institution of trust management is also used in cases where immediate measures are required to protect and manage property, the owner of which is not identified or cannot exercise his rights and bear responsibilities associated with the use of the property belonging to him. In this case, trust management is established on the grounds provided by law. In some cases, the state uses the institution of trust management as a tool to limit civil servants from abusing their capabilities associated with the possession of this or that property. Thus, civil servants who own securities, shares (participatory interests in the authorized capitals of organizations) are obliged to transfer this property to trust management if the ownership of these assets may lead to a conflict of interest.
3. Russian legislation contains legal structures that are similar to the institution of trust management, since with their help relations related to rights to other people’s things are mediated. The range of such relationships is quite wide. Other legal systems have also developed legal structures with the help of which goals related to the trust management of other people's property are realized. Of particular interest is the relationship between trust management of property and the classical institution of case law - trust property. Currently, trust property in the Anglo-Saxon system of law is a structure based on trust (fiduciary) relationships, within which a kind of splitting of property rights occurs. Common law title to a thing passes to the trustee, while equitable title remains with the beneficiary. At the same time, the trustee retains the right to use, dispose and manage the property, and the beneficiary retains the right to receive income and benefits from the use of the property (for more information on trust property, see: McLoughlin P., Rendell C. Law of Trusts. L., 1992; Civil and commercial law of foreign states. T. 1 / Editor-in-chief E. A. Vasiliev, A. S. Komarov. M., 2004. P. 391 - 407).
4. In the first half of the 90s. XX century they tried to root the trust in the Russian legal system. For this purpose, the unsuccessful bill “On Trust Management of Property” was developed. Ultimately, Decree of the President of the Russian Federation of December 24, 1993 N 2296 “On trust property (trust)” was adopted (Collected Acts of the Russian Federation. 1994. N 1. Art. 6). However, for a number of objective reasons, it was not possible to integrate the trust into the system of Russian law. The main reason for this failure is that the trust as a legal institution is alien to the European (including Russian) legal tradition of understanding and legislative registration of property rights. Its implementation would lead to an inevitable conflict between the central and system-forming institutions of the civil law system that has developed in the Russian Federation and this new legal formation. Ultimately, upon adoption in the mid-90s. Civil Code, the legislator abandoned the trust (trust property) as an institution of property law and regulated the trust management of property on the basis of the principles of the law of obligations.
5. Related legal structures for property management include the right of economic management and the right of operational management (limited property rights). The similarity of these legal institutions with trust management lies in the fact that the owner transfers property for management to another person. At the same time, there are a number of significant differences between trust management, on the one hand, and limited real rights, on the other hand.
Thus, the transfer of property to economic management (operational management) is inevitably preceded by the creation of a new subject of law with special legal capacity - a unitary enterprise (institution). A newly created entity has a certain degree of dependence on its founder, who determines the subject of activity of the entity he founded, controls the use of property, and has the right to liquidate it. At the same time, trust management relations develop between two independent and independent subjects of turnover. As a general rule, the owner does not have the right to interfere in the management of property, although he has the right to demand an account from the trustee.
Only public owners can act as founders of limited real rights, while trust management has the right to establish any legal entity that owns property by right of ownership (and in cases established by law, other persons). If the trustee is obliged to exercise powers only in the interests of the founder of the management or the beneficiary, then the subjects of limited property rights are endowed with the rights to own, use and dispose of property both in the interests of the owner and in their own interests. The scope of powers of the subject of the right of economic management (operational management) is determined by law, while the range of powers when transferring property into trust management is determined by agreement and subsidiaryly by law. From the point of view of the legal nature of the compared institutions, the right of economic management and the right of operational management are real rights, and the right of trust management is constructed as an institution of the law of obligations.
6. Trust management should be distinguished from transactions that mediate actions in the interests of others, such as a mandate agreement, a commission agreement, or an agency agreement. Unlike an agency agreement, the content of which involves the attorney performing certain legal actions on behalf of the principal, trust management involves the trustee performing on his own behalf any actual and legal actions to manage property in the interests of the beneficiary.
Trust management differs from a commission agreement, which presupposes that the commission agent carries out on his own behalf one or more transactions in the interests of the principal and at his expense, in that it allows the manager to carry out on his own behalf both transactions and any legal and actual actions.
An agency agreement and trust management are the closest in terms of formal characteristics. In both cases, the manager (agent) has the right to perform any legal and actual actions to manage the transferred property. However, the difference between these institutions is that if the trustee acts on his own behalf (albeit at his expense), then the agent has the right to act both on his own behalf and on behalf of the principal. In addition, if the trustee has the right to exercise the entire range of powers of the property owner (possession, use, disposal), then the powers of the agent, as a rule, are limited only to the disposal of the property transferred to him. As for the rights and obligations under the transaction, in the case of trust management they are included or fulfilled at the expense of the property transferred to management, while the agency agreement allows that the rights and obligations under the transaction can be acquired by both the agent and the principal.
7. There are other legal structures related to trust management that mediate the relationship of transferring the right to manage someone else’s property. These may include: actions of the liquidation commission (liquidator) during the liquidation of a legal entity (Article 62 of the Civil Code), management of an organization as a legal entity (clause 3 of Article 103 of the Civil Code), actions of the temporary administration to manage a credit organization for a period of up to 6 months (clause 5 of article 74 of the Law on the Central Bank of the Russian Federation).
At the same time, in the legal literature there are attempts to identify the legal nature of trust management and other legal institutions adjacent to it, through which relations for the management of other people's property are mediated. Thus, if an insolvency case is initiated and bankruptcy procedures are introduced against an insolvent debtor, the court appoints an arbitration manager who, among other things, is entrusted with managing the property owned by the debtor. In the literature there is a judgment that “the implementation of bankruptcy procedures by an arbitration manager appointed by an arbitration court is, by its nature, nothing more than trust management of the property of an insolvent debtor” (Popondopulo V.F., Slepchenko E.V. Proceedings in cases of bankruptcy in the arbitration court. St. Petersburg, 2004. P. 220; Popondopulo V.F. Commercial (entrepreneurial) law. M., 2006. P. 731 - 732).
It is difficult to agree with this opinion, at least in the context of Russian law. In contrast to trust management, management carried out by an arbitration manager is subject to different principles: its goal is not so much to extract income from the use of property, but to satisfy the claims of bankruptcy creditors at the expense of this property. Otherwise, all the rules governing trust management would have to be applied to the relations arising when property is transferred to the management of an arbitration manager. Meanwhile, relations in this area are regulated by special legislation, in particular the Bankruptcy Law. It should also be noted that in the event of bankruptcy of the founder of the trust management (citizen-entrepreneur), the agreement is terminated (paragraph 7, paragraph 1, article 1024 of the Civil Code), since the bankrupt’s property is transferred to the bankruptcy estate (paragraph 2, article 1018 of the Civil Code) . Otherwise, it would be logical to argue that trust management “flows” into arbitration management, to which new creditors join. Thus, it is possible to qualify the transfer of the property of an insolvent debtor to the management of an arbitration manager as trust management only with a fair amount of conditionality.
8. In paragraph 1 comment. Art. a definition of a property trust management agreement has been formulated, from which a number of its legal characteristics follow.
The trust management agreement is real in nature, since it is considered concluded from the moment the property is transferred to the trustee.
As a general rule, a trust management agreement is compensated. The amount and form of remuneration to the trustee are essential terms of the agreement if the payment of remuneration is provided for by the agreement (see commentary to paragraph 1 of Article 1016 of the Civil Code). If this rule is not observed, then the contract is considered not concluded. At the same time, there are no obstacles to the parties entering into a gratuitous agreement on trust management of property. But this must be specifically stipulated in the contract.
9. Among the features of a property trust management agreement is the fact that it is concluded by two parties (the management founder and the trustee), while the legal relations generated by it may concern a larger number of persons (beneficiaries).
10. When carrying out trust management, the trustee is given the right to perform any actual and legal actions in relation to the entrusted property. The restrictions on this right are threefold. Firstly, the powers of the trustee are limited by the interests of the beneficiary, secondly, by the framework established by the trust management agreement, and thirdly, by the rules of the law.
11. Paragraph 3 of the comment. Art. a procedure has been established for transactions with property transferred to trust management. The main requirement of the law is to notify the counterparty to the transaction that it is being carried out by a person with the legal status of a trustee. For written transactions, the notification of the counterparty is formalized: the trustee is obliged to make a note in the document: “D.U.” However, failure to comply with these requirements does not entail the invalidity of the transaction. Another legal consequence occurs, namely that the trustee becomes obligated under the transaction and is liable to creditors with the property belonging to him.
12. Point 4 comment. Art. introduced by Federal Law of June 6, 2007. It provides that the features of trust management of mutual investment funds must be established by law. Even before the adoption of this norm, the Law on Investment Funds was adopted, which formulated a mandatory rule according to which funds are obliged to transfer the corresponding funds to the management company solely on the basis of a trust management agreement. In development of this Law, Resolutions of the Government of the Russian Federation were adopted: dated September 18, 2002 N 684, which approved the Standard Rules for the Trust Management of an Interval Mutual Investment Fund (SZ RF. 2002. N 39. Art. 3788); dated August 27, 2002 N 633, which approved the Standard Rules for the Trust Management of an Open-End Unit Investment Fund (SZ RF. 2002. N 35. Art. 3385); dated July 25, 2002 N 564, which approved the Standard Rules for Trust Management of a Closed-End Mutual Investment Fund (SZ RF. 2002. N 31. Art. 3113).
Agent remuneration and taxation issue
The standard remuneration for an agent who rents out an apartment ranges from approximately 25% of the rent to 50%. The specifics, as you might guess, depend on the agreements.
However, it is worth noting that the owner of the apartment will have to pay taxes on the entire amount of the rent. The legislation does not provide for the possibility of making a deduction for the manager’s remuneration. The same goes for paying utility bills. This must be taken into account so as not to later regret the concluded agreement. And, of course, this must be taken into account when paying taxes.
Property Management Assessment
A comprehensive analysis helps to understand whether it is advisable to transfer your real estate to trust management. This takes into account factors that can affect the achievement of real estate management goals.
Factors of the internal environment include the location of the object, its purpose, the presence or absence of land ownership, and the price of real estate.
External environmental factors - legislative acts, economic and political trends, environmental situation, market conditions, social facilities.
Expertise
An agreement on trust management of a real estate property must undergo state registration in the State Register. At the same time, as stipulated in paragraph 2 of Article 1017 of the Civil Code of the Russian Federation, a restriction of the right of ownership of real estate transferred to trust management under an agreement is registered. This means that the owner’s rights become encumbered with the rights of a third party – the trustee.
Without such registration of the fact of transfer of the object, the agreement is considered invalid.
