How to register an agreement with Rospatent in 2021?

In the article Creating Contractual Work Regulations, we discussed the principles of organizing contractual work in an organization and the risks that arise when working with documents. What stages does a contract go through during preparation, who should coordinate the work and what should you pay attention to when checking counterparties - read in the continuation of the article, prepared on the basis of a practical course by a teacher of the Russian School of Management, lawyer, trainer-consultant in the field of law Yulia Mezhnikova.

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This article is devoted to certain issues of state registration of changes to a lease agreement, in relation to which the approaches of the courts have developed and changed over a fairly long period of time. Consideration of these approaches in their development will allow us to form a more accurate understanding of existing trends in judicial practice.

Approaches of the courts to the issue of mandatory state registration of changes to the lease agreement and the consequences of failure to complete such registration

According to one of the positions, only those agreements that change the content of the rental registration record are subject to state registration, for example, agreements to change the term or change the lease object. At the same time, agreements that do not change the content of the registration record, for example, on changing the procedure for paying compensation for inseparable improvements, do not require state registration (Resolution of the Arbitration Court of the Central District dated 03.11.2016 in case No. A35-7371/2015; Resolution of the Federal Antimonopoly Service of the Volga District dated 28.12 .2011 in case No. A57-22497/2009).

According to the opposite position, if an agreement is subject to state registration, then all changes and additions to it, as part of this agreement, are also subject to state registration (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 27, 2009 No. 11680/08 in case No. A70-2321/10-2007 ; Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02/05/2013 No. 11241/12; Resolution of the Arbitration Court of the Far Eastern District dated 04/24/2017 in case No. A51-17551/2016).

Let's consider the consequences of not registering changes to the lease agreement.

For quite a long period of time, the courts were of the opinion that the failure to register an additional agreement to the lease agreement entails the non-conclusion of such an additional agreement. Applying this approach, the courts came to the conclusion that an additional agreement that has not undergone state registration does not give rise to rights and obligations for the parties to the lease agreement.

This approach created the opportunity for a party to a lease agreement to abuse its rights. So, for example, if the tenant did not want to fulfill the terms of the additional agreement signed by him, but not registered, to increase the rent, he could refuse to fulfill it, declaring that such an agreement had not been concluded (Clause 9 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59; Resolution of the Federal Antimonopoly Service of the East Siberian District dated 09/06/2007 in case No. A19-25747/06).

However, already in 2011, the Supreme Arbitration Court of the Russian Federation indicated in paragraph 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 No. 73 “On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on a lease agreement”, that if the parties reached an agreement in the required form on all essential terms of the lease agreement, the owner transferred the property for use, and another person accepted it without any comments, the agreement on the amount of payment for the use of the property and other conditions of use was reached by the parties and was fulfilled by them, then in this case it should be borne in mind that it bound them to an obligation that cannot be arbitrarily changed by either party regardless of violation of the registration requirement of this agreement.

At the same time, the Supreme Arbitration Court of the Russian Federation noted that the rights granted to a person using property under a lease agreement that has not passed state registration cannot be opposed to third parties. This idea was also confirmed in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 No. 165 “Review of judicial practice on disputes related to the recognition of contracts as unconcluded.”

Thus, according to current judicial practice, unregistered changes to the lease agreement entail the emergence of rights and obligations for the parties to the transaction at the time of conclusion or actual execution of the corresponding additional agreement.

Following the above approach, the courts, for example, reject the parties' arguments that the rent increase carried out by the parties entering into an additional agreement is not subject to application, since the agreement was not registered in the manner prescribed by law.

However, it is necessary to take into account that if the additional agreement states that it comes into force (begins to operate) only from the moment of its state registration, then this agreement will not give rise to legal consequences for its parties until such registration is carried out (see the Resolution of the Arbitration Court of the Western-Russian Federation). Siberian District dated February 28, 2018 in case No. A70-6861/2017).

At the same time, for third parties, unregistered additional agreements are not concluded by virtue of paragraph 3 of Article 433 of the Civil Code of the Russian Federation.

For example, the Arbitration Court of the North-Western District in its Resolution dated December 12, 2017 in case No. A05-3316/2016 recognized that since additional agreements changing the amount of rent were not registered, the conditions provided for in them cannot be opposed to third ones persons, in particular, bankruptcy creditors in a bankruptcy case.

Unilateral change in rent amount

Conditions on the possibility of unilateral changes in rent are included in lease agreements quite often. This unilateral procedure is common, for example, in lease agreements for state or municipal property. In this case, the agreement, as a rule, stipulates that the lessor informs the tenant about the change in rent by sending a written notice.

According to the current position of the courts, a unilateral change in rent should be interpreted not as a change in the lease agreement, but as the implementation by the tenant of one of the conditions of a previously registered lease agreement. And since the implementation of the condition on the unilateral revision of the rent does not change the lease agreement, then, therefore, the signing of an additional agreement on the change in the rent and its state registration are not required (Determination of the Supreme Court of the Russian Federation dated March 20, 2015 No. 310-ES14-6794 in case No. A62 -8257/2012; Ruling of the Supreme Court of the Russian Federation dated 08/22/2016 No. 308-ES16-9526 in case No. A53-21597/2015; Ruling of the Supreme Court of the Russian Federation dated 01/30/2017 No. 310-ES16-19880 in case No. A62-9551/2015 ).

It is necessary, however, to take into account a number of requirements for setting out the conditions for a unilateral change in the amount of rent, compliance with which is necessary for the court to recognize this procedure as agreed (the implementation of which does not require the conclusion of an additional agreement and state registration of changes to the lease agreement):

• The lease agreement must explicitly state the landlord's right to unilaterally change the amount of rent.

The condition that the parties agree on a change in the amount of rent upon the occurrence of certain events is not recognized by the courts as a condition that gives a party to the contract the right to demand such changes or make them unilaterally.

• The lease agreement must provide for the frequency of unilateral changes in rent; the size by which it can be changed, or the procedure for determining it; as well as the conditions for such unilateral change.

So, for example, if the right to unilaterally change the amount of rent arises in connection with a change in the rental rate established by a regulatory act of the relevant authorized body, then it is necessary to directly indicate this in the lease agreement.

Issues of registration of changes made to a lease agreement during the transfer of rights and obligations under such an agreement in the order of succession as a result of the reorganization of a legal entity

Regarding the registration of changes to an agreement when rights and obligations under this agreement are transferred as a result of the reorganization of a legal entity, two questions can be distinguished:

• Is it required to register an encumbrance with the right to lease in favor of a legal entity that has become a party to the lease agreement as a result of the reorganization of the previous party to the agreement.
• To register changes, is it sufficient to submit documents confirming the reorganization of the former party to the lease agreement and the emergence of its legal successor, or is it necessary to conclude a corresponding additional agreement?

On the first issue, the Supreme Court of the Russian Federation expressed its opinion in Ruling No. 304-ES17-3429 dated July 25, 2017 in case No. A70-5203/2016, canceling acts of lower courts that obliged the tenant, who became the legal successor under the lease agreement as a result of reorganization, to register the encumbrance of a property with the right to lease a given legal entity. The court also reflected in the Determination that the imposition of this obligation on the tenant resulted in losses for him in the amount of over 20,000,000 rubles resulting from the payment of the duty.

It should be noted that on the second issue of the mandatory conclusion and submission for registration of an additional agreement on replacing a party to a lease agreement, there is no consensus of opinion in judicial practice.

For example, the Arbitration Court of the Central District, in its Resolution dated January 18, 2017 in case No. A68-3677/2016, recognized the refusal of Rosreestr to register changes to the land lease agreement related to the replacement of the tenant with his successor, which arose as a result of the reorganization of the previous tenant, as legal . The court indicated that since the applicant had not submitted an additional agreement to make appropriate changes to the lease agreement, Rosreestr had no grounds for registering such changes.

At the same time, there is also opposite judicial practice.

Thus, the Resolution of the Arbitration Court of the Ural District dated April 25, 2017 in case No. A60-34773/2016 states that when reorganizing a legal entity in the form of merger, as well as when changing the corporate name of a legal entity, the conclusion of additional agreements to the lease agreement is not required. At the same time, the court supports its position with a reference to paragraph 12 of the “Review of Judicial Practice of the RF Armed Forces No. 3 (2016)”, approved by the Presidium of the RF Armed Forces on October 19, 2016. In this regard, the court declared illegal Rosreestr’s refusal to register changes in the tenant’s name due to failure to provide an additional agreement to the lease agreement.

Registration of an additional agreement after the expiration of the lease term and (or) the validity period of the lease agreement

Let us dwell on the issue of the legality of registering an additional agreement to the lease agreement if, at the time of filing the corresponding application, the lease term and (or) the validity period of the agreement have expired.

According to Rosreestr, registration of changes to the lease agreement in this case is unlawful. The courts, however, take the opposite position, according to which the expiration of the period specified in the contract is not in itself an obstacle to the state registration of the submitted additional agreement, since the provisions of Articles 450, 452, 610, 621 of the Civil Code of the Russian Federation do not impossibly change the terms by agreement of the parties a lease agreement renewed after the expiration of the period specified with it (Resolution of the Arbitration Court of the North-Western District dated 06/09/2017 in case No. A56-52192/2016; Resolution of the Arbitration Court of the North-Western District dated 04/21/2017 in case No. A21-5227/2016 ).

Thus, taking into account the issues discussed in this article, we recommend that the parties to the lease agreement take into account the approaches of the courts described above when making a decision regarding registration of changes to the lease agreement.

What contracts are recorded in the journal?

All contracts concluded by employees of the organization can be entered into the journal. However, if the enterprise is large enough, then each of its structural divisions may have its own magazine form, and magazines can also be divided by type of agreement (for example, separate ones - by supply agreements, advertising agreements, legal agreements, etc.). This approach allows you to correctly systematize accounting and avoid confusion.

The journal can be kept for a certain period of time (month, quarter, half-year, year), or for an indefinite period - it all depends on what rule regarding this parameter is enshrined in the company’s accounting policy.

Sample contract log book

If you need to create a log of agreements that you have never done before, look at the sample document and read the explanations to it. With their help, you will be able to create the required form without much effort.

1. First, write the name of the organization, below indicate the person who is responsible for maintaining the journal (his position, surname, first name, patronymic), as well as the date the journal began (after its completion, it would also be useful to make an appropriate note).
2. Next, move on to the main part, which, as mentioned above, should be presented in the form of a table. The number of columns in it can be arbitrary, but there must be columns about the contract number, the date of its conclusion, the type of document (contract or additional agreement to it), the name of the counterparty, his address. The form also needs to include information about who exactly within the organization concluded and maintains the agreement, the number of copies, and the storage location of each such document (it can be centralized or the agreements can be stored in different departments).
3. If you consider it necessary, you can supplement the form with other information that is relevant specifically to your situation. For example, about the summary content, the amount of the contract, the period of its validity, the full number of appendices to the contract, a column for the signature of the responsible employee, notes, etc.

Magazine design, features

There are no special requirements for the design of the contract registration journal, as well as for its content, which means that it can be kept either in handwritten or electronic form. If the form is maintained electronically, it is not necessary to print it, except in cases where it contains a column for the signatures of employees who have concluded a particular transaction.

The journal can be of very different sizes, but usually it has not one, but many pages (in actively operating organizations, the number of concluded contracts can be calculated not only in tens, but even in hundreds). If, for example, a notebook is not used as a journal, but ordinary A4 sheets are taken, then they should be numbered in order and then stitched with a strong thread (you can also use a stapler, but it does not always guarantee reliable fastening), noting the number of pages on the last page and putting the date and signature of the responsible employee.

On registration of foreign exchange agreements by residents on the web portal of the National Bank

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On July 9, 2021, a new version of the Law of the Republic of Belarus dated July 22, 2003 No. 226-Z “On Currency Regulation and Currency Control” will come into force, according to which residents (individuals and legal entities, individual entrepreneurs) are required to on registration of agreements (contracts, agreements) and other documents concluded with non-residents, on the basis of which currency transactions are carried out .

IMPORTANT! To register a foreign exchange agreement, a resident must create a resident’s personal account on the web portal of the National Bank (hereinafter referred to as the web portal).

To create a personal account, legal entities and individual entrepreneurs must obtain an EDS key in advance from the Republican Certification Center of the State Public Key Management System.

Individuals create and log into their personal account using a login and password.

The resident registers the foreign exchange agreement independently or using the services of banks when concluding the corresponding agreement, if the bank carries out banking operations or cash settlement services for the resident under the foreign exchange agreement.

A foreign exchange agreement should be registered before the start of fulfillment of obligations under such an agreement (before making payments, before shipment, etc., and if funds are received from a non-resident - no later than seven working days from the date of their receipt).

IMPORTANT! Not all currency agreements are subject to registration , but only those for which the amount of monetary obligations is not determined or reaches a certain threshold value (2000 basic units for individuals, 4000 basic units for legal entities and individual entrepreneurs) and only if the currency transaction being carried out is included in the approved Instruction No. 37 list (clause 3 of Instruction No. 37) .

Please note : in order to determine the need to register a foreign exchange agreement if it is impossible to determine the amount of monetary obligations from its contents, it should be assumed that this amount is calculated taking into account the conditions specified in the appendices to the foreign exchange agreement (additions, specifications, etc.) , which are its integral part, starting from the date of conclusion of such an agreement.

Currency agreements concluded before July 9, 2021 are also subject to registration on the National Bank’s web portal if obligations under them are expected to be fulfilled after the specified date.

IMPORTANT! The web portal of the National Bank will begin operating on July 9, 2021.

From this date, you will be able to log into the web portal, create a personal account and fill out the foreign exchange agreement registration form.

Please note : residents who have registered on the web portal and received access to the resident’s personal accounts during the acceptance test period in April-May of the current year will not need to re-register on the web portal. At the same time, fulfillment of the obligation to register foreign exchange contracts will be available to residents starting from July 9, 2021.

Registration conditions and a list of foreign exchange transactions during which the agreement is subject to registration are defined in the Instructions on registration of foreign exchange agreements by residents, approved by Resolution of the Board of the National Bank dated February 12, 2021 No. 37. The text of these documents can be found on the website of the National Legal Internet Portal Republic of Belarus at: https://pravo.by/document/?guid=12551&p0=B22136360&p1=1.

Until July 9, 2021, it is planned to post on the official website of the National Bank the “Resident” user manual (preliminary version), which determines the procedure for working with the web portal software, including registering users and creating a resident’s personal account on the web portal.

IMPORTANT! Under a REGISTERED currency agreement, the resident is obliged in his personal account on the web portal:

• submit documents and information on the fulfillment of obligations under such currency agreements in the cases specified in paragraph 13 of Instruction No. 37. Submission of information on payments made by a resident from an account (for import), as well as on receipts to an account opened with a bank of the Republic of Belarus (for export ), and about the shipment, receipt of goods, if their customs clearance and (or) statistical declaration was carried out, is not required;
• make appropriate changes to the registration form of the foreign exchange agreement if additional agreements to the agreement were concluded that changed the terms of the foreign exchange agreement;
• indicate the registration number assigned to the currency agreement in the information submitted to the bank when funds are received from a non-resident, or in the payment instructions of a resident when he makes payments under such an agreement;
• enter information about the fulfillment of obligations under a foreign exchange agreement, if they are fulfilled in full.

Please note : if a currency agreement was not executed during a calendar month, the information specified in clause 13 of the Instructions is not provided in the following calendar month (clause 14 of the Instructions). In addition, in accordance with paragraph 15 of the Instructions, in the event of fulfillment of obligations under a foreign exchange agreement in full, the resident provides information on the fulfillment on the web portal no later than fifteen calendar days from the day the resident independently determines the date of fulfillment of obligations under the foreign exchange agreement in full.

What is a magazine for, its importance

Everything related to contracts concluded by company employees is subject to mandatory registration and accounting. The most common and simple way to implement these tasks is to create a special journal. Its role is quite simple: with its help, enterprise employees record the most important, primary information about all ongoing transactions. Thus, it allows you to keep records, systematize document flow, and also provides complete information about the employee who is responsible for the execution of a particular agreement.

The minimum information that is required to be entered into the contract registration log is the number and date of formation of each document, but depending on the needs of the organization, this list can be significantly expanded. In addition, the journal can include information not only about the contracts themselves, but also about all annexes to them, including additional agreements, technical specifications, certificates of completion, etc.

It should be noted that the journal in no way indicates that the terms of each agreement included in it were fulfilled in full.