Commercial rental agreement for residential premises

Subject of the agreement

The subject of the contract is considered to be premises located in the housing stock. The owner offers it to the tenant for temporary use for a fee. An agreement is concluded specifying the terms of the lease:

place and date of the document;
Full names of the parties;
subject of the agreement;
address, area of premises, number of rooms;
a detailed description of the property provided for use;
validity;
responsibilities of each party;
signatures.

The owner guarantees that the area belongs to him by right of ownership; you can indicate the details of the supporting document. The procedure for transferring the object for use should be described in detail. An important point is the responsibility of both parties. Here it is worth describing in detail the rights and obligations, terms of termination, and dispute resolution.

The landlord's responsibilities include ensuring high-quality furnishings of the property. Transfer of housing for comfortable living, regardless of climatic conditions. The owner has the right to visit the apartment to check its use.

The tenant undertakes to make rent payments on time, carry out routine repairs if the contract provides for this, and ensure the safety of the property. Also vacate the area when the lease expires and compensate for damage that was caused by negligence.

Responsibility of the parties

This section discusses situations in the event of which the Parties bear financial responsibility. By mutual agreement of the Counterparties, many circumstances can be included in this paragraph. We will focus on those that are the main ones:

The parties bear financial responsibility for non-fulfillment or improper fulfillment of their obligations under this agreement. The lessor is responsible for the shortcomings of the property handed over to him that interfere with its normal use. If such shortcomings were specified by the parties when concluding the transaction, the Lessor shall not be liable. The tenant is responsible for causing damage to the property leased to him for use under the rental agreement. In case of delay in fulfilling obligations to pay rent, a penalty in the amount of 15% of the amount owed is charged for each day of delay.

The final provisions of such a document indicate sections on the procedure for termination, extension of the contract, the procedure for resolving disputes and force majeure situations. At the end of the agreement, the signatures of the parties are placed, and the deal is considered concluded.

How to conclude a commercial rental agreement for residential premises,

To formalize contractual relations, the parties must comply with the requirements regulated by civil law. First of all, it is necessary to establish which real estate objects can be transferred for temporary use under commercial lease conditions.

According to Article 673 of the Civil Code of the Russian Federation, an object transferred on a lease basis must meet the following requirements:

Isolation - the living space must be fenced with building structures and have an independent entrance (exit) to the common property of the house or apartment, or direct access to the street;
The premises must be suitable for permanent residence, i.e. comply with the rules and standards provided for by housing legislation;
Not only the whole object, but also its isolated part (for example, an isolated room in an apartment) can be rented out.

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Thus, the premises that will be the subject of commercial rental include: an apartment, a private house, part of an apartment or house.

To conclude an agreement, counterparties must agree on essential and additional terms of the transaction. They will include:

the subject of the transaction is the transfer for temporary use of specifically agreed residential premises;
rental period - the maximum period of the contract cannot exceed five years, this rule is established in Art. 683 of the Civil Code of the Russian Federation (if the period is not specified in the agreement at all, a five-year period will be applied);
the amount of regular payments for the use of residential premises is determined by agreement of the parties (utility fees will be paid separately, depending on the actual consumption of resources or the number of residents);
the list of persons who can be accommodated by a temporary tenant for the entire period of rental (for the placement and registration of minor citizens, this condition does not need to be specifically stipulated; such a rule is provided for by law);
the composition of the property that is located in the residential premises and is transferred for the entire rental period;
other conditions agreed upon by the parties (including the procedure for performing routine repairs, etc.).

To draw up an agreement of this kind, it is necessary to comply with the written form of the document; notarization is not required. It should also be taken into account that as a result of the lease, a restriction (encumbrance) of property rights arises, which is subject to mandatory state registration in the Rosreestr service. The registration rule must be observed only when concluding a contract for more than one year; this condition does not apply to short-term contracts.

To formalize the agreement, the parties will need the following documents: identification documents of both parties (general passports, birth certificates of children, etc.); title documents for residential premises (certificate of title, extract from the Unified State Register, etc.); commercial lease agreement and transfer acceptance certificate. When applying for registration of an encumbrance at the Rosreestr service, you will need to submit a payment document confirming payment of the state duty.

Essential terms of the agreement

Before signing this type of agreement, it is necessary to discuss all essential and additional terms of the agreement.

Their list includes:

duration of hire;
amount of payment;
a list of residents who will have the right to live in this residential area;
the composition of the property that the owner transfers for temporary use along with the apartment;
conditions for maintaining the apartment, including the procedure for carrying out current and major repairs.

In addition, it is advisable to discuss and include in the contract a clause on the conditions for termination of the contract in advance.

Nuances of a commercial lease agreement

The main difference between this type is that the lessor under the contract is a legal entity (organization) or a citizen. This person must have documents confirming his right to rent the premises specified in the document. While the employer can be any person, regardless of his citizenship and the presence of his own property.

The object of rental in a particular case is residential premises, which are private property, but are to be used for commercial purposes.

The rental period when using housing for commercial purposes is not indefinite, as, for example, in social housing, but is limited to five years. When a commercial lease agreement does not specify the period for which it is concluded, the agreement is signed for five years by default.

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If, after five years, the landlord suddenly decides to change the terms of the contract or terminate it altogether, he is obliged to inform the tenant of this news earlier than three months before the end of the contract (clause 1 of Article 687 of the Civil Code of the Russian Federation). And if the employer does not notify the tenant on time, the contract is automatically extended for another number of years.

If the landlord refuses to extend the contract to the tenant due to reluctance to rent out the premises in the future, but at the same time enters into a new rental contract with the new tenant within a year, the tenant has the right to demand compensation for material losses, or insist on extending the contract with him.

The payment amount is established by mutual agreement of the parties when signing the contract. During the period of validity of the contract, the amount of payment may change only on the condition that this point is reflected in the terms of the contract.

As for the form of the contract, a simple written form is applied to a commercial rental agreement, as well as to other rental agreements.

What it is?

The owner of the property and his authorized person can rent out residential premises under such an agreement. The tenant can only be an individual, and the rented property can only be used for residence and not for commercial purposes.

Watch the video: Renting residential premises

5.5. Renting residential premises

Such a transaction is regulated by Article 671 of the Civil Code of the Russian Federation.

What and how is it surrendered?

Basically, private housing is rented under a commercial lease agreement, while state or municipal real estate is rented out under a social lease agreement. But still, in some cases, citizens can receive housing from the state on a commercial basis, for example, under the “Affordable Housing for Young Families” program.

Maximum duration of a commercial lease agreement

The maximum validity period of a commercial rental agreement for residential premises is five years. The option that is used in lease agreements for non-residential premises - the absence of an indication of the duration of the agreement, or the inclusion of a clause on automatic renewal with a commercial lease agreement - will not work. A contract without a specified end date will be considered concluded for five years.

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The extension specified in the contract (for a month, years) will also not be able to go beyond the five-year mark. Upon expiration of the lease agreement (or completion of the five-year period from the date of entry into force of the agreement), the tenant retains the preemptive right to conclude another lease agreement for the same premises for a new term. A very important point is that the landlord has a serious obligation, provided for by law, but little known to tenants - no later than three months before the end of the commercial lease agreement, the landlord must (optional):

offer the employer to enter into a new commercial lease agreement under certain conditions (the same as before or new ones);
warn the tenant about his reluctance to renew the contract, since he will not rent out his residential premises at all in the next year (at least).

If the landlord has ignored this obligation to notify the tenant (and it must not be forgotten that official notifications that subsequently have legal force require compliance with a special procedure for presentation/sending), and the latter has not taken the initiative to refuse to renew the contract, the rental contract will be considered extended for the same conditions and for the same period.

After the contract is terminated due to the landlord’s official refusal to renew it, it may turn out that within a year from the date of expiration of the previous contract (with the tenant who was refused to renew the lease), he nevertheless rented the premises to another person. In this case, the previous employer, who received a previous refusal, has the right to demand that the new commercial lease agreement be declared invalid, as well as compensation for losses incurred as a result of the refusal to renew contractual relations with him.

Quite often, the parties to a commercial rental agreement for residential premises enter into it for a period of less than one year. This is done in order to avoid state registration of the contract in Rosreestr, which entails, firstly, certain expenses for paying the state registration fee, and secondly, it reveals information to the tax inspectorate about the income of the landlord. In such cases of short-term rental of residential premises, the tenant takes a serious risk, since he does not have a pre-emptive right to conclude a rental agreement for a new term (unless the parties have specified another condition in the agreement).

If you still have questions regarding the commercial rental of residential premises, or doubt the correctness of the drawn up rental agreement, or a conflict has arisen with another participant (whether it is the tenant or the lessor), our lawyers, who have experience in handling such cases, will provide professional assistance. Leave your questions on our website or call us at the indicated phone numbers.

Main nuances

Who has the right to rent out real estate?

Only the owner of the residential premises has the right to enter into a commercial lease agreement. If he cannot rent out the apartment personally, then he has the opportunity to transfer this right to his authorized person.

Such a power of attorney must be drawn up in writing . It must indicate all the rights that the authorized person receives, for example, to set the price of housing or transfer the possibility of concluding a contract to third parties. Such paper must contain the passport details of the apartment owner and the authorized person. But for this document to have legal force, it must be certified by a notary.

Requirements for objects to be rented out

There are no strict requirements for real estate that can be rented out under a commercial lease agreement in Russian legislation. The only criteria that are imposed on such housing are the following factors:

The living area must have clear boundaries and be isolated . That is, only a room, apartment or house can be rented out for commercial rent, but part of the room cannot be rented out under such an agreement;
housing must be suitable for living , that is, have residential status and not be in disrepair.

Maximum rental period

The terms for concluding this agreement are stipulated in Article 683 of the Civil Code of the Russian Federation. It states that such an agreement on a commercial basis can be concluded for a period not exceeding 5 years.

Payment procedure

Article 682 of the Civil Code of the Russian Federation states that the amount of payment for rental services is established only by agreement of the homeowner and the tenant. Moreover, the landlord unilaterally does not have the right to raise the rent if this is not specified in the agreement, except in cases provided for by law. Payment must be made monthly, no later than the deadlines specified in the contract.

Conventionally, the total cost of rent includes fees for utilities and fees for the use of residential premises. Also, in most cases, the tenant must pay a security deposit , usually equal to a monthly fee. If upon termination of the contract the property of the residential premises is not damaged, the deposit is returned to the tenant in full.

TIP : You can pay for commercial rent in two ways: personally to the owner of the living space and to the bank account specified in the contract. If the tenant hands over the money to the owner personally, then he must take a receipt from him so that in case of disputes he has proof of payment.

Rights and obligations of the parties under the agreement

The lessor is obliged:

hand over to the tenant vacant residential premises in a condition suitable for habitation;
carry out proper operation of the residential building in which the rented residential premises are located;
provide or ensure the provision of necessary utilities to the tenant for a fee;
carry out major repairs of residential premises, if the contract does not assign this obligation to the tenant;
ensure the repair of the common property of an apartment building and devices for the provision of public services located in the residential premises.

The lessor of residential premises under a commercial lease agreement has the right to demand from the tenant the timely payment of payment for the residential premises, as well as the re-equipment of the residential building in which the rented residential premises is located. If such re-equipment significantly changes the conditions of use of the residential premises, then it can only be carried out with the consent of the tenant.

The employer is obliged:

use the residential premises only for living;
ensure the safety of the living space and maintain it in proper condition;
pay rent on time on time. Unless otherwise established by the contract, the tenant is obliged to make utility payments independently;
carry out routine repairs of residential premises, unless otherwise provided by the contract.

The employer has the right:

with the consent of the landlord, tenant and citizens permanently residing with him, move other citizens into the residential premises as permanent residents of the tenant (when moving in minor children, such consent is not required). Move-in is permitted subject to compliance with the requirements of the law on the norm of the total area of living space per person, except in the case of the move-in of minor children;
allow, with the consent of citizens permanently residing with him, and with prior notification to the landlord, temporary residents (users) to stay in residential premises free of charge. The landlord may prohibit temporary residents from staying if they fail to comply with the requirements of the law regarding the standard total area of living space per person. The period of stay of temporary residents cannot exceed six months;
transfer, with the consent of the lessor, under a sublease agreement for a period not exceeding the term of the residential lease agreement, part or all of the premises rented by him for use. A sublease agreement for residential premises can be concluded subject to compliance with the requirements of the law on the norm of the total area of residential premises per person. The tenant remains liable to the landlord under the residential lease agreement;

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with the consent of the landlord, carry out reorganization and reconstruction of the residential premises.

The difference between commercial hiring and social hiring:

a commercial lease is an ordinary civil contract concluded by agreement of the parties, which determines its essential terms;
The social rental agreement formalizes the free distribution of scarce publicly owned housing among needy citizens.

Therefore, commercial rental housing relations are regulated not by housing, but by civil legislation.

To conclude a commercial lease agreement, no administrative and legal prerequisites are required in the form of a decision of an authority, housing registration status, etc. None of the counterparties here is obligated to enter into a contractual relationship (a commercial rental agreement for residential premises is not a public contract).

When renting out commercial housing that is state-owned by some constituent entities of the Russian Federation, a decision of a certain executive authority is required. However, even in this case, it represents the consent of the owner to conclude a commercial lease agreement for housing he owns, and not an administrative-legal method of distributing it among needy citizens.

Legal nature of a commercial lease agreement:

consensual;
bilateral;
compensated;
urgent.

It must be concluded in writing (Article 674 of the Civil Code), which, however, is not standard: here it is possible to include in the contract, by agreement of the parties, “accidental” conditions that are atypical for a given contract, for example, conditions on the right of the tenant to use part of the land plot indicating its size and boundaries.

Contents and execution of a commercial lease agreement

A commercial lease agreement may be concluded for a period not exceeding five years. If the parties to the agreement have not determined it, the agreement is considered concluded for five years (1 Article 683 of the Civil Code). The rules provided for in paragraph 2 of Article 677, Articles 680, 684 - 686, paragraph four of paragraph 2 of Article 687 of the Civil Code of the Russian Federation do not apply to a rental agreement for residential premises concluded for a period of up to one year (short-term rental), unless otherwise provided by the agreement (including including the rights of family members of the tenant, the possibilities of moving in temporary residents, subletting housing and replacing the tenant, as well as the tenant’s preemptive right to conclude an agreement for a new term).

Obligations of the landlord under a commercial rental agreement for residential premises

The lessor is obliged

hand over to the tenant the residential premises in a condition suitable for habitation,
carry out proper operation of the residential building in which the rented residential premises are located,
ensure the provision to the tenant of the necessary utilities and repairs of the common property of the house for a fee (Article 676 of the Civil Code).

Unless otherwise provided by the contract, the landlord also has the obligation to carry out major repairs of the rented residential premises. However, he does not have the right to re-equip a residential building without the consent of the tenant if such re-equipment significantly changes the conditions of use of the rented housing (clause 3 of Article 681 of the Civil Code). For its part, the landlord has the right to demand that the tenant fulfill the obligations provided for by the contract, law and other legal acts.

Obligations of the tenant under a commercial rental agreement for residential premises

The employer is obliged

use the residential premises only for living,
ensure its safety and maintain it in proper condition, including carrying out routine repairs of housing (unless otherwise provided by the contract),
pay rent and utilities on time.

At the same time, the amount of payment in a commercial rental agreement is established by agreement of the parties (clause 1 of Article 682 of the Civil Code), and therefore, as a rule, is many times higher than the amount of payment for housing provided under social rental agreements and rental of specialized housing.

The tenant does not have the right to carry out reconstruction and reconstruction of residential premises without the consent of the landlord. The responsibilities of employers in commercial hiring relationships are specified in contracts, which is facilitated by the absence of their standard forms.

The rights of the tenant, as well as citizens permanently residing with him in the obligation to commercially rent housing, are also largely determined by a specific agreement. But in any case, they acquire the rights of ownership and use of the residential premises received under the contract, the content of which lies in the possibility of living in this residential premises, as well as in some possibilities of disposing of it. So, according to Art. 685 of the Civil Code, with the consent of the landlord, the tenant has the right to sublease part or all of the residential premises he has rented for a period (within the validity period of the main commercial lease agreement). It is also allowed for the tenant to move other citizens into the residential premises used by him under the contract for permanent residence or as temporary residents, of course, with the consent of the landlord.

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The current law excludes the exchange of residential premises between their tenants under commercial and social tenancy agreements (Article 72 of the Housing Code).

In the commercial lease agreement in accordance with paragraph 1 of Art. 686 of the Civil Code, it is also possible to replace the tenant at his request or at the request of citizens permanently residing with him (in contrast to a social tenancy agreement, in which such a replacement is allowed only at the request of a capable family member of the tenant). In any case, to replace the tenant, the consent of the landlord is required. The refusal of the landlord to replace the tenant with another person in this situation cannot be challenged in court. However, in the event of the death of the tenant or his departure from the residential premises, the obligatory relationship of housing tenancy in accordance with paragraph 2 of Art. 686 of the Civil Code may be preserved if the employer’s place is replaced by either one of the citizens living together with him (with the consent of the other residents), or all of them become co-tenants (in the absence of such consent).

Obligatory relations from a commercial lease agreement

Obligatory relations from a commercial lease agreement are preserved in cases of transfer of ownership of occupied residential premises, since the new owner becomes a lessor under the terms of a previously concluded agreement (Article 675 of the Civil Code). Thus, it is possible to replace the lessor as a consequence of the presence of the “right to follow” these “encumbrances” on the ownership relationship of the leased property, which is characteristic of property relations, including housing tenancy (rent).

By agreement between the parties to a commercial lease agreement, any of its terms may be changed, unless there is a violation of mandatory norms of law. The absence of a detailed regulation of changes in commercial tenancy relations by law is explained by the fact that here the relations of the parties, in accordance with the principle of freedom of contract, are determined mainly by their agreement.

Upon expiration of the concluded commercial lease agreement, the tenant has a pre-emptive right to conclude it for a new term. The implementation of this right presupposes certain actions of the lessor (Article 684 of the Civil Code). No later than three months before the expiration of the contract, he is obliged to either offer the tenant to conclude a contract on the same or different terms, or warn the tenant about the refusal to renew the contract due to the decision not to rent out the premises for at least one year.

Failure of the landlord to fulfill this obligation (in the absence of the tenant's refusal to renew) entails the following consequence: the contract is considered renewed on the same terms and for the same period. Certain consequences are also provided for in the event that the landlord fails to comply with his decision not to rent out the premises during the year he used to refuse to renew the contract: the tenant has the right to demand invalidation of the contract concluded by the landlord with another person and (or) compensation for losses caused by the refusal to renew with him agreement (part 4 of article 684 of the Civil Code).

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Termination of obligations from a commercial rental agreement for residential premises

Contractual obligations for commercial rental housing are terminated:

upon expiration of the contract;
by unilateral decision of the employer;
at the request of any of the parties (in court).

Contractual obligations for commercial rental housing are of a fixed-term nature and therefore terminate primarily upon the expiration of the contract on the basis of which they arose. By agreement of the parties, they, of course, can be terminated earlier.

In addition, a commercial lease agreement can be terminated at any time by the unilateral decision of the tenant. In this case, there is no need to explain the reasons for such a decision; the employer is not obliged to compensate for lost profits caused by unilateral termination of the contract. However, the tenant is obliged to notify the landlord in writing three months in advance of the termination of the contract. If this condition is not met, the landlord has the right to present to the tenant, as the party who violated the contract, a demand for compensation for lost profits in the form of lost income from renting out the premises.

Principles for terminating a commercial lease agreement:

The principle of judicial termination (when terminating a commercial lease agreement at the request of any of the parties, including - and especially - at the request of the lessor, paragraphs 2 and 3 of Article 687 of the Civil Code).
The principle of limiting the intervention of the state (law) in the relations of the parties through mandatory rules (especially rules providing grounds for termination of the contract at the request of one of the parties).
The principle of stability of the right to use residential premises, characteristic of social tenancy relations (in commercial tenancy, early termination of the contract and eviction are also allowed in exceptional cases, which are directly mentioned in Article 687 of the Civil Code. In this case, special importance is attached to taking measures to avoid eviction. It can only be applied after all possibilities provided by law have been exhausted).

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At the request of either party, a commercial lease agreement may be terminated in court:

if the premises are no longer suitable for permanent residence,
in case of an emergency condition of the premises (clause 3 of Article 687 of the Civil Code).

Housing legislation may provide for other cases of such termination of this agreement, but they have not yet been established, since housing legislation practically does not regulate the obligations of commercial rental housing.

At the request of the lessor, a commercial lease agreement may be terminated in court in the following cases:

failure by the tenant to pay for the residential premises for 6 months, unless the contract establishes a longer period, and in case of short-term rental - in case of failure to pay the payment more than twice after the expiration of the payment period established by the contract;
destruction or damage to residential premises by the tenant or other citizens for whose actions he is responsible;
use of residential premises by the tenant or other citizens for whose actions he is responsible for other purposes;
violation by the employer or other citizens for whose actions he is responsible of the rights and interests of neighbors (clauses 2 and 4 of Article 687 of the Civil Code).

In the conditions of termination of a commercial rental agreement in cases of failure by the tenant to pay for housing, the entrepreneurial nature of this type of rental of residential premises is especially clearly reflected. The landlord, who expects to receive income from renting out an apartment (often this income is his source of livelihood), is interested in breaking off relations with the defaulter and renting out the apartment to another tenant.

At the same time, when regulating the termination of a commercial lease agreement, the law, as follows from Art. 687 of the Civil Code, considers the employer as a weak party and provides for him a number of benefits and advantages. If the landlord makes a demand to terminate the contract due to destruction or damage to the residential premises by the tenant or other citizens for whose actions he is responsible, the court may, instead of terminating the contract, decide to give the tenant a period (no more than a year) to eliminate these violations. If the violations are not eliminated within the period set by the court, the court, when reconsidering the landlord’s claim, will have to decide to terminate the contract. But even in this case, the court may, at the request of the employer, postpone the execution of the decision for a period of no more than a year (paragraph 2, paragraph 2, article 687 of the Civil Code).

The interests of the tenant are also ensured in the event of termination of the contract and eviction of him and other citizens for whose actions he is responsible if they use the residential premises for other purposes or systematically violate the rights and interests of neighbors. In such cases, the landlord first warns the tenant about the need to eliminate violations, and this stage is mandatory for the landlord who has decided to terminate the contract (clause 4 of Article 687 of the Civil Code). At the same time, the employer is subject to the benefits discussed above: provision by a court decision of a period (no more than a year) to eliminate violations and deferment by a court decision of its decision to terminate the contract for a period of no more than a year.

In the event of termination of a commercial rental agreement for residential premises, the tenant and other citizens living in the residential premises at the time of termination of the agreement are subject to eviction from the residential premises based on a court decision. Eviction as a compulsory measure is applied if these citizens refuse to voluntarily vacate the premises. The landlord-owner is not obliged to provide the tenant, who is subject to eviction in accordance with the law, with other residential premises. Such a decision would mean an unreasonable restriction of property rights, an intrusion into the sphere of powers and interests of the owner.

Responsibilities and rights of the parties

Such an agreement is bilateral, which means that both the tenant and the lessor have both certain rights and certain obligations in this transaction. Their general responsibilities are to comply with all clauses of the contract and legislation relating to commercial hiring.

Also, each party has individual rights and obligations, which should be listed separately.

The rights of the lessor include:

requiring the tenant to comply with all requirements of the agreement;
receiving timely rental payments.

The landlord's responsibilities include:

monitor compliance with the rules of operation of the building;
carry out or organize capital repair work;
bear responsibility for housing defects if they interfere with the normal living of residents;
eliminate the consequences of accidents if they occurred through no fault of the employer.

The tenant under a commercial lease agreement has the right:

Temporarily move your loved ones into rented housing with the prior consent of the landlord.
Carry out reconstruction of the apartment with the approval of the owner.
Move in minor tenants without the consent of the owner.

The tenant also has some responsibilities, namely:

use rented housing only for living;
maintain existing property in good condition;
pay rent and utilities on time;
carry out routine repair work.

Sources:

https://o-nedvizhke.ru/dokumenty/dogovory/dogovor-kommercheskogo-najma-zhilya-obrazec-skachat.html
https://terrafaq.ru/nedvizhimost/arenda/kommercheskij-najm-dogovor.html
https://law03.ru/finance/article/kommercheskij-najm-zhilya
https://uristhome.ru/document/12/dogovor-kommercheskogo-naima-zhilogo-pomeshcheniya-obrazets-blank
https://pravoved.ru/themes/commercial-hiring/#3
https://www.grandars.ru/college/pravovedenie/dogovor-kommercheskogo-nayma.html
https://blanker.ru/doc/dogovor-rent-flat
https://jurkom74.ru/ucheba/dogovor-kommercheskogo-nayma-zhilogo-pomescheniya

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