Every commercial property owner is afraid of an unscrupulous tenant. Such a tenant may not pay or damage the property: break windows, damage internal communications, break switches, or even remove parquet.
At the end of the lease, the property must be returned in the same condition as received by the tenant, but taking into account normal wear and tear, follows from the Civil Code (Civil Code) of Russia. Normal or typical wear and tear occurs during normal use of the property. But sometimes the premises are returned with obvious and serious damage, when there is no question of normal wear and tear.
Many owners, when accepting premises, make the mistake of signing the transfer and acceptance certificate of the object without carefully inspecting it. Some people even rely on the honesty of the tenants and sign documents by exchanging documents by mail. This leads to the fact that after a physical inspection of the premises and identification of damage, it is no longer possible to make a claim.
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How to insure against damage
Landlords can hedge their bets by using financial instruments, such as a security deposit. This is a form of security for obligations provided for by law. Its size usually varies from one to two monthly rent payments.
The main thing is that the contract clearly states that at his expense the owner can compensate for losses caused by damage to the rented property. Even if the damage could not be prevented, the security payment received at the conclusion of the contract will be used to repair the premises and minimize the risks associated with the downtime of the facility.
Properly recording damage to property when returning it can also resolve many issues. The landlord has the right to insist on his form of acceptance certificate, where in one document, together with the tenant’s representative, all damage that clearly goes beyond normal wear and tear will be recorded. Failure to comply with this rule may lead to a dispute with the tenant, for example, about the extent of damage and the reasons for its occurrence.
If the tenant does not agree with the cost of repairing the damage, then an independent assessment can be carried out. It can be ordered from any appraisal company. True, when calling an appraiser to the site, it is better to notify the counterparty about this in all possible ways, including by registered mail to the legal address. In the future, this will make it possible to prove the fact of notification, avoid disputes in court about the presence and extent of damage, and also will not allow the tenant to challenge the fact that the appraiser came for an inspection.
A case in point is when the tenant failed to file a claim. The client leased an office to a supplier of imported furniture. The landlord signed the acceptance certificate for the premises “without complaints” the day before its actual inspection. After opening the office, he saw a sad picture: the tenant took out all the laminate flooring, installed by agreement with the owner by reducing rental payments.
How to protect yourself?
What to do if you were deceived and how to protect yourself from fraud? The chances of proving fraud when renting out residential premises bypassing the law, without drawing up an agreement, are very small, because there are no documents confirming the transaction.
But you should definitely write a statement to the police, because if several people suffer from the fraudulent actions of the same person, the chances of bringing him to justice increase.
You can protect yourself from the fate of a victim of an apartment scam if you don’t forget about the following things:
- The agreement is our everything. Its presence provides guarantees not only to those who will rent the property, but also to those who rent it out, so keep in mind that without documentary confirmation of the transaction you are at great risk.
- Don't be tempted by suspiciously low rental prices. Especially if the owner emphasizes that there are many more applicants besides you. After the inspection, it is advisable to ask for at least a day to think about it - during this time you can find out from the neighbors whether the apartment is really for rent.
- Don't agree to pay rent several months in advance or ask for a receipt for the money.
- When showing housing, ask the landlord to show the house register to make sure that a “gypsy camp” is not registered .
- Do not transfer either originals or copies of title documents for housing to third parties (applies to landlords).
You can learn about the rights and responsibilities of the landlord and tenants, as well as what the tenant must pay for, from our articles.
What needs to be done to avoid being deceived when concluding a rental agreement? Tips in this video:
If the tenant doesn't want to move out
If the tenant does not move out of the premises, then even at the end of the lease period he is obliged to pay its actual cost. At the same time, the owner should always carefully prepare the lease agreement. There may be a clause stating that upon expiration of the lease term, if the parties do not declare to vacate the premises for some time, the contract is considered renewed for the same period and on the same conditions. This condition applies if the tenant continues to use the premises at the end of the lease period.
With this formulation, the counterparty may verbally communicate a desire to move out, but in reality delay the departure. As a result, the owner will not send him a notice to vacate the premises at the required time, and the acceptance certificate will not be signed before the expiration of the lease. If the owner wants to kick out the tenant or raise the rent, this will not be possible, since the contract will automatically be renewed in the same form. Therefore, if you decide to separate, you should send appropriate notice in any case.
If the owner has not demanded the release of the property and the above clause is not in the contract, then the contract will be renewed, but for an indefinite period and the lessor can terminate it at any time.
It happens that a tenant stubbornly refuses to leave the office after the lease expires. In this case, the law gives owners a lot of tools for protection: collection of rent for the use of property, collection of penalties, compensation for losses. As a last resort, you can forcibly vacate the premises and remove the property of the counterparty, but it cannot be appropriated - the rights of the tenant should not be violated.
First, the owner must send a written notice to the counterparty (and ensure that he receives it) about terminating the contract and vacating the premises. Such notice must indicate that upon expiration of the proposed period, the property will be described and removed from the site. Perhaps the tenant will come to his senses.
If there are no counter movements, then you can forcibly remove the property at your own expense, having first drawn up an inventory. It is better to do this in the presence of security or a management company. Next, you need to officially notify the tenant about the storage location of the property. The costs of storing and removing property are losses of the lessor, which can be recovered from the other party in court.
But if the tenant’s property is damaged or misappropriated, then the tenant has the right to file a lawsuit against the owner for compensation for his losses. The measures described above are best used as a last resort.
Another option is to go to court with a claim to oblige the counterparty to vacate the premises. But the consideration of the case can take up to six months, and enforcement of the court decision can lead to the same problem: the tenant refuses to move out.
Once, the owner, after early termination of the lease agreement, demanded to vacate the office. The tenant ignored him and stopped paying rent. The owner changed the locks, removed furniture and belongings of the employer's employees. He never applied for his property, although he was notified of the location of its storage.
With things on the way out.
Quite often you can observe a situation: two people - the owner of the apartment and the future tenant - agree to rent out the apartment, shaking hands, as they say. Concluding a written contract seems like a hassle: execution requires money and time, so it is often not discussed at all. When concluding an oral agreement, the tenant is primarily at risk: he should remember, from the point of view of legislation, he is occupying the apartment illegally and is obliged to vacate the property at the first request of the owner.
But what should the apartment owner do if eviction does not occur according to either the first or second request? You can simply call the police. Show them a certificate of ownership of the apartment or an extract from the Unified State Register, and demand that they evict the illegal tenants, says Anastasia Kuznetsova, director of the legal department of the luxury real estate bureau Must Have.
Unexpected sublease
The tenant has the right to sublease the rented premises only with the consent of the owner, unless otherwise provided by the agreement. This is stated in Article 615 of the Civil Code. Alas, in practice this article is not always observed.
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The owner can rent out an object for a long period of time without any control and without checking who really sits there. The tenant can use this approach to his advantage by renting out the premises to third parties. He will receive payment from his subtenants on time, but it is not a fact that he will promptly pay the landlord. Debts in such abuses are not uncommon. The owner can only demand money for rent from the tenant.
In practice, there was a case when the owner of the premises, after a long pause, came to visit the tenant due to a many-month delay in rent payment. The owner was surprised when other companies showed him sublease agreements and explained that they paid their payments monthly. The contract with the tenant was promptly terminated, but by this time it had begun its liquidation. It was not possible to collect his debt in full.
Responsibility
Currently, neither the administrative nor the criminal code provides for preventive measures specifically for fraud in the rental and rental of apartments.
So, in essence, the actions of realtors or fraudulent landlords can be brought under only one article of the criminal code - “Fraud” (Article 159), namely under paragraph 4: (fraudulent actions of an organized group of persons, resulting in the deprivation of the victim’s right to use residential room).
Punishment for deception involves a fine in the amount of the salary or other income of the culprit for a period of up to 3 years with restriction of freedom for up to 2 years.
But, as practice shows, it is very difficult to prove the existence of a crime in such cases. First of all, the problem becomes proof of the fact of participation in the scam by an organized group of people, because legally the relationship between realtor-fraudsters and fictitious owners is not formalized in any way.
Secondly, a significant part of rental scams comes down to drawing up an agreement for the provision of information services , which are not regulated in any way by law, and its existence cannot be the basis for initiating a lawsuit.
And thirdly, many citizens who have suffered from the actions of scammers themselves make mistakes , avoiding which could prevent them from losing their money: they agree to give a deposit without a receipt, do not check the availability of housing documents from the landlord, etc.
Analyzing the general statistics on cases of rental fraud, we can say with confidence that most scams are condoned by the gullibility and negligence of tenants .
Read our article about how to rent a house without intermediaries, and not get scammed.
Tips for owners
To protect themselves legally, owners should prepare their lease agreement responsibly. Many risks can be mitigated already at this stage. For example, provide for additional sanctions for the tenant, a penalty for violating his obligations, provide for a security deposit, detail the extension of the contract and methods for its termination.
You should not accept the premises from rent without inspection. Compensation for any damage must be agreed upon with the counterparty in advance.
Don’t forget about control: owners should meet with tenants, visit and, if possible, inspect properties, monitor the financial condition of tenants, track significant changes in the Unified State Register of Legal Entities, legal disputes, and creditor claims. It is better to identify problems in time and try to terminate the contract than to later unsuccessfully try to collect the rental debt.
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Housing scams against the backdrop of real estate rentals
All transactions with apartments and other real estate are a fairly profitable “business”. Therefore, scammers and swindlers take advantage of this, living at the expense of landlords for free, or even making money.
It is impossible to list all the fraudulent schemes available in the arsenal of unscrupulous citizens, so we will focus on the most common options:
- Subletting of housing without the consent of the owner . It is possible that your tenant will want to make money on real estate and will rent out the apartment to third parties at a higher cost. And who these third parties will be is another question. In any case, the owner of the apartment is at a disadvantage. In this case, it is possible that property damage may be caused to him.
- Disposal of someone else's property using forged documents . Here everything is more complicated, but more sophisticated. Fraudsters can sell the apartment if they forge documents. The option is rare, but also happens in modern judicial practice.
