Title to the new building has not yet been formalized. How to prevent rental risks

Which house is considered completed?

Check the presence of all communications: heating, electricity, water supply, gas supply, sewerage, ventilation. All of them must meet the requirements specified in SNiP and SanPiN. The building should not be in disrepair or dilapidated.

The main way to achieve transfer to residential premises is the so-called administrative one. There is a one-story residential building containing seven apartments, five of which do not have direct access to common areas, but directly to the land adjacent to the building. But two apartments have direct access to common areas.

Is such a building multi-apartment or residential only? “Drug addicts constantly gather in our yard and in the entrance of our house.

How to register an unfinished house construction

Previously, such registration took place exclusively through the courts.

The new law of the Russian Federation just recently came into force. In accordance with it, local authorities will now be able to allocate land for construction only after signing a permit by the president. And these are not all the surprises that the new law presented to the residents of Russia.

To draw up a document confirming land ownership, you need:

1. technical inventory of the facility;
2. cadastral passport.

In addition, it is impossible to register a residential building that is an unauthorized construction. The law defines this as:

1. construction without permission;
2. construction on land having another purpose;
3. construction in violation of important rules and regulations.

The owner of such a building cannot acquire ownership rights.

Construction can be recognized as legal through the court, or by obtaining the appropriate permission from the executive authorities. For such permission you must have an impressive package of documents. There is another option - to register the unfinished construction of a residential building; alternatively, you can submit documents to the BTI, whose specialists will take care of all the problems with legitimizing the unfinished construction project.

What has changed since March 1, 2020 when registering a house on a summer cottage

1. a mandatory requirement confirming the legality of the construction of houses and other buildings is notification to the local administration;
2. notifications must be submitted at the start of construction work, as well as after actual construction;
3. when submitting a notification upon completion of construction, you must confirm the mandatory technical requirements for the characteristics of the house (maximum number of floors and height, area, other parameters);
4. After submitting notifications and checking compliance with requirements, the local administration itself must send documents to Rosreestr for property registration.

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At this stage, it is difficult to obtain a refusal of a notification, since officials cannot require the presentation of project documentation, an agreement with the contractor and other additional documents. Only the category and intended purpose of the site and the general parameters of the future home will be checked .

What is an unfinished construction project?

kiosks, stalls and other temporary structures do not meet the definition; The construction process of such a building is suspended for various reasons until a specific date (or without specifying a date in case of objective impossibility) due to subjective factors: lack of funds, force majeure, changes in market conditions.

However, the Town Planning Code and other regulations do not directly indicate what can be considered a capital construction project. Therefore, at the theoretical level, difficulties in definition still exist.

The regulatory framework, which contains some grounds for interpreting the concept of an unfinished construction project, is as follows:

Civil Code. Town Planning Code. Instructions on the procedure for preparing reports on capital construction.

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Based on these documents, we can give

Problem No. 1. Delay in completion of construction (commissioning of the house)

Causes of the problem:

1. Misappropriation of funds by the developer - construction of other objects not provided for in the share participation agreement at the expense of shareholders. That is, the developer, receiving funds from shareholders, invests them in the construction of more promising (in his opinion) construction, expecting to return the money with a profit after selling apartments in the new building.
2. Construction participants do not fulfill their contractual obligations - the occurrence of problems with the supply of materials or with the performance of work by subcontractors or contractors leads to the termination of contracts with them and the search for new construction participants, which takes additional time.
3. Insufficient financing of the project - the developer expects to sell all apartments before completion of construction, not having his own funds or not wanting to invest them in this building.
4. The settlement between the contractor and the developers is not direct financial means, but in the form of housing under construction. Thus, for a contractor to carry out work, he often needs to sell these apartments.
5. Incorrect drafting of an equity participation agreement - the planned date for commissioning the object or connecting it to city or other utility networks is indicated, which does not bind the developer to specific dates. Compliance with planned deadlines is not one of the responsibilities of developers if liability for late delivery of the project and the resulting penalties (and their amount) are not specified in the share participation agreements.

An unfinished construction project is

But nowhere is there an exact definition of these concepts.

To understand the definition of these concepts, it is worth referring to Art. 1 of the Town Planning Code of Russia, where you can find a definition of the term “capital construction object”.

Already on the basis of this definition, you can try to define those terms that have many questions. At the end of the 20th century, there was an instruction relating to state supervision of capital construction. This instruction provided a clear definition of the concept, which is now causing controversy and questions.

In particular, it spoke of an unfinished construction site as a site where construction work is ongoing. This definition also applied to objects whose construction is temporarily not underway or frozen and for which acceptance has not yet been carried out in the manner prescribed by law.

Unfortunately, this document is no longer in force since January 2008.

Title to the new building has not yet been formalized. How to prevent rental risks

27.04.2017

Is it possible to rent an object for which ownership has not been formalized? How to collect payment for actual use if the agreement is void? What agreements formalize actual use before renting?

In the commercial real estate market, situations are common when an object is offered for rent, the rights to which have not yet been registered in the Unified State Register or are registered as an object of unfinished construction. We are talking about new shopping and office centers under construction or already put into operation, but so far without registration of ownership.

The actual owner (investor, developer) expects to begin receiving income from the property in which he has invested considerable funds as early as possible. If the property has great commercial appeal for potential tenants, then they are also interested in agreeing on a lease as early as possible. As a result, relations arise regarding the use of the object by the tenant before the registration of ownership of it by the lessor, and sometimes even before the building is put into operation. This article is about which option is more advisable to choose for formalizing such rental relations, taking into account the risks of challenging the contract in the event of a conflict between the parties and the possible consequences of challenging.

ADVICE ON THE TOPIC

When agreeing to rent premises in a building that has not been put into operation, one must take into account the risk of an administrative fine (Part 5 of Article 9.5 of the Code of Administrative Offenses of the Russian Federation)

It is the tenant who is responsible for the operation of such a facility (clause 7 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 02.17.11 No. 11 On some issues of application of the special part of the Code of Administrative Offenses of the Russian Federation, Resolution of the Seventeenth Arbitration Court of Appeal dated 05.27.11 in case No. A50-2038/2011). The lessor in this case does not risk anything (resolution of the Third Arbitration Court of Appeal dated 08.08.11 in case No. A33-4090/2011).

Renting an object without registering ownership

The right to lease property belongs to its owner or a person authorized to do so by law or by the owner (Article 608 of the Civil Code of the Russian Federation). The right of ownership to a real estate object arises only from the moment of state registration (Article 219 of the Civil Code of the Russian Federation). This means that before the registration of the right, the owner of the new property (investor, customer under a contract, etc.) is not formally its owner. If you follow these rules literally, then a lease agreement for a property concluded at a time when the lessor did not have registered ownership is void as contrary to the law (Article 168 of the Civil Code of the Russian Federation). Accordingly, the terms of the agreement are not valid and the parties cannot refer to them (clause 1 of Article 167 of the Civil Code of the Russian Federation).

However, the practical risks of this situation are different for those cases when the registration of the lessor's ownership of the leased object never took place and when the lessor's ownership was registered, but after the conclusion of the lease agreement. Until the landlord has registered ownership, the lease can be challenged as void with almost a 100% chance of success. Consequently, in the event of any conflict situation between the parties, they are not protected by the terms of this agreement, since in court any of them can put forward an argument about its nullity.

Once the lessor registers his ownership, the risk of challenging the contract will decrease, but will not be completely eliminated (this depends on the arbitration practice for relevant disputes in a particular region).

Fee for actual use. If the lease agreement is considered void, then each party is concerned about the issue of payment for the actual use of the object.

According to paragraph 2 of Article 167 of the Civil Code, if the transaction is invalid, each party is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including when what was received is expressed in the use of property), to compensate its value in money.

At the same time, money paid for the use of property provided under an invalid contract can be considered to have been received unjustifiably only to the extent that it exceeds the amount of compensation due to the lessor (clause 7 of the information letter of the Presidium of the Supreme Arbitration Court dated January 11, 2000 No. 49 Review of the practice of resolving disputes related applying the rules on unjust enrichment). The amount of compensation is determined according to the rules of paragraph 2 of Article 1105 of the Civil Code, that is, according to the price that existed at the time when the use ended and in the place where it occurred.

Simply put, if the lease agreement is void, the lessor still has the right to demand that the tenant pay for the actual use of the property. If the tenant transferred payment during the period of actual use, then he does not have the right to demand it back, provided that it does not exceed the usual rates paid for the rental of similar premises in the given area (when the tenant can prove such an excess, he has the right to demand from the landlord return the difference).

Different approaches to disputes about payment for use. There is an opinion that the consequences described above apply to cases where the contract is void for any reason other than the lack of ownership rights by the lessor, since this case is special. After all, if the lessor is not the owner, then he has no rights to receive payment for the use of property that does not belong to him. Only the title owner of the property has such a right.

Consequently, the landlord cannot recover from the tenant the arrears of payment for the use of the property, and if the tenant has already paid for the actual use under a void agreement, then he can demand the money back (that is, the court should apply not bilateral, but unilateral restitution). This is exactly how some tenants reason, refusing to pay for actual use or demanding a refund. Sometimes this position is also supported by the courts, noting that the landlord has not proven that he has the right to receive money for the defendant’s use of the disputed property (decision of the Federal Antimonopoly Service of the North-Western District dated March 11, 2009 in case No. A56-12329/2008).

In the above example, the lessor under the void agreement was the company that invested in the construction, but this fact did not convince the court that it had the right to demand payment from the tenant for the use of the premises.

At the same time, there is a different position on this issue. Following the literal instructions of paragraph 2 of Article 167 of the Civil Code, in this case bilateral restitution should be applied. That is, the tenant is obliged to reimburse the cost of using the property specifically to the second party to the invalid transaction, namely the lessor.

The tenant cannot object to this, citing the landlord’s lack of ownership rights, and therefore the right to receive payment for the use of the property. The fact is that this situation does not violate the interests of the tenant: in any case, he must pay for the actual use of the object, otherwise unjust enrichment will also arise on his part due to the principle of paid use of other people's property by business entities.

Receipt by an illegal lessor of payment for the use of property violates only the interests of the owner of the property (of course, if there is one). It is the owner of the property, and not the tenant, who has the right to demand from the illegal lessor the payment he received as unjust enrichment.

Some courts adhere to this point of view and refuse to return tenants the rent paid under a void agreement (see decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 29, 2011 No. 9256/11, FAS Moscow District dated July 7, 2011 in case No. A40-88507/09- 11-719).

Possible reason for different judicial practice. It should be noted that the point of view that there are no grounds for paying for actual use prevails in disputes when landlords try to collect debt from tenants under a void agreement.

When, on the contrary, tenants want to recover the payment they made during actual use, the courts reject the claim. Perhaps the reason for such different approaches by courts to the same issue is as follows.

Typically, a plaintiff landlord bases his claim on the lease agreement. The tenant objects, citing the nullity of this agreement, the court agrees with this argument and rejects the claim, since it was based precisely on the agreement.

In disputes regarding the collection of already transferred rent, the plaintiff-tenants demand the consequences of the invalidity of the agreement to be applied (clause 2 of Article 167 of the Civil Code of the Russian Federation). Then the court, resolving the issue of restitution, comes to the conclusion that not only the lessor must return payments to the tenant, but the tenant is also obliged to pay for the use of the property, otherwise unjust enrichment will arise on his side.

If the lessors had also based their claims for collection of payment for the actual use of property on paragraph 2 of Article 167 of the Civil Code (that is, they demanded payment by way of restitution, and not as a debt under the contract), it is possible that in such disputes the practice of the courts would also have developed would not be in favor of tenants.

Ownership is registered after the conclusion of the lease agreement. The situation when the registration of the lessor's property rights took place after the conclusion of the lease agreement is assessed differently by the courts. There is an opinion that subsequent registration does not save the contract (see the rulings of the Supreme Arbitration Court of the Russian Federation dated March 28, 2011 No. VAS-3238/11, No. VAS-3239/11, the resolution of the Federal Antimonopoly Service of the Moscow District dated December 11, 2009 in case No. A40-56345/08- 60-397).

In terms of payment for the actual use of the property, this situation is similar to the one in which the registration of the lessor’s property rights never took place. In other words, if the tenant tries to return the rent already paid for the period of use, then his claim is usually denied. If the landlord tries to collect the payment debt from the tenant, referring to the agreement, then he will be refused (see the resolution of the Federal Antimonopoly Service of the North-Western District dated 05/04/11 in case No. A44-3260/2010).

But in practice there are also opposite examples when the courts believe that violation of the procedure for the sequence of registration and disposal of property does not entail the nullity of the transaction (see the decisions of the Federal Antimonopoly Service of the North Caucasus District dated September 16, 2010 in case No. A32-21729/2009, the Central District dated February 20. 09 in case No. A08-2798/2008-10, decisions of the Supreme Arbitration Court of the Russian Federation dated 01/17/11 No. VAS-18365/10, dated 04/01/09 No. 3614/09).

Thus, there are chances to defend the validity of this agreement, but they completely depend on the position of a particular court.

Preliminary rental agreement

Given the high risk of invalidation of a lease agreement for an object for which ownership has not been registered, preliminary lease agreements have become widespread in relation to such objects. To conclude them, the landlord does not need to have a registered property right (resolutions of the Federal Antimonopoly Service of the North Caucasus District dated 05.13.10 in case No. A53-14147/2009, Far Eastern District dated 04.04.11 in case No. A73-6446/2010, Moscow District dated 19.04 .10 in case No. A40-93370/09-77533).

The subject of the preliminary agreement is the obligation of the parties to conclude a future agreement, and not the obligation regarding real estate (clause 14 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59 Review of the practice of resolving disputes related to the application of the Federal Law on State Registration of Rights to Real Estate property and transactions with it). Three years ago, the Presidium of the Supreme Arbitration Court, in its resolution dated July 14, 2009 No. 402/09, explained this postulate in the light of relations regarding the future rental of real estate.

WE QUOTE THE DOCUMENT.

The use of the legal structure of a preliminary agreement for the transfer of property (in particular, lease) is intended to legally bind the parties even before the counterparty has the right to the thing necessary for execution, in order to, within the period established by him, make up for the lack of a condition necessary for concluding the main agreement.

The fact that a person, due to impossibility or bad faith, may not fulfill his obligation from the preliminary contract to conclude the main contract (within the prescribed period will not become the owner of the thing to be transferred or, having become the owner, will evade concluding the main contract), in principle cannot be considered as a basis to invalidate the preliminary agreement, since such circumstances may occur at the stage of execution, but not at the conclusion of the preliminary agreement.

In turn, the counterparty may in court demand either recovery of losses caused by failure to conclude the main agreement, or its forced conclusion (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 14, 2009 No. 402/09).

However, there are also certain concerns regarding preliminary lease agreements. These concerns are primarily related to the fact that the actual use of the property by the tenant in practice begins from the moment of signing the preliminary agreement, and not the conclusion of the main one, and the preliminary agreement itself is of a mixed nature.

Subject of the mixed agreement. Developers and investors in the construction of large shopping or office centers, as a rule, even at the construction stage, enter into mixed agreements with future tenants (most often called agreements for the use of premises), which contain elements of not only a preliminary lease agreement, but also a service agreement, and sometimes the main lease agreement.

In such an agreement, the parties establish their obligations to enter into a lease agreement for the premises specified in the agreement within a certain period of time, stipulate the conditions for preparing the premises for rent, sometimes its commercial use by the tenant before concluding the lease agreement, coordinate the interaction of the parties in the period before concluding the lease agreement, and also fix the conditions for the future rental agreement.

Under such agreements, the premises are immediately transferred to the future tenant under an act for carrying out work on the arrangement of this premises for the purpose of its further use under the lease agreement (usually we are talking about construction and installation, finishing, electrical work, installation of an air conditioning system, etc.).

The future tenant carries out the relevant work at his own expense. At the same time, he is also obliged to transfer to the lessor a security (deposit) payment, which is not refundable if the lease agreement is not concluded or is subsequently terminated due to the fault of the tenant. Most agreements also oblige tenants to pay a one-time payment for the future landlord's services in officially opening a shopping or office center (this payment is sometimes called compensation for the landlord's expenses for opening a shopping or office center).

Sometimes such agreements do not provide for payment for the use of the premises until the main lease agreement comes into force, sometimes they do (for example, under the terms of the agreement, the tenant is obliged to begin commercial activities on the premises from the date of opening of the shopping center and make payments for use, although the ownership of the landlord on the date of opening may not yet be registered).

The moment of concluding the lease agreement. As a rule, the term of concluding a lease agreement is tied to the event of registration by the lessor of ownership of the building. From the moment of registration of ownership, the parties either undertake to enter into a lease agreement under certain conditions, or the premises are automatically considered transferred to the tenant under the terms of a short-term lease agreement (accordingly, the terms of the lease agreement, which are included directly in the agreement, come into force). In the latter case, within a certain period after registration of the lessor's property rights, the parties undertake to enter into a long-term lease agreement (that is, for a period of at least a year), which is subject to state registration. A short-term lease agreement for real estate is valid until the registration of a long-term lease agreement.

Judicial practice on mixed contracts. As arbitration practice shows, courts are quite loyal to this kind of mixed agreements and to the payments provided for in them. In the event of a dispute between the parties to the agreement, the fate of the payments paid by the tenant is decided in accordance with the provisions of this agreement, that is, depending on whether at the time of going to court the preliminary agreement is valid or has already expired, whether the main lease agreement has been concluded, if no, whose fault it is, and how much of the responsibilities the parties managed to fulfill.

For example, if the period for concluding the main contract has already expired, but it was never concluded (through no fault of the tenant), the court obliges the landlord to return the security payment to the tenant (resolution of the Federal Antimonopoly Service of the Moscow District dated July 14, 2010 in case No. A40 -95514/09-155-673, Central District dated 08.21.09 in case No. A35-5161/08-C13).

If the court comes to the conclusion that the deadline for concluding the main agreement has not yet arrived and the preliminary agreement is still valid, then there are no grounds for returning the security payment (resolution of the Federal Antimonopoly Service of the Moscow District dated 12/06/11 in case No. A40-35821/11-53-309 ).

If the landlord has fulfilled his obligations and the opening of a shopping or office center has taken place, the courts find no grounds for returning the opening fee transferred to the landlord (decision of the Moscow Arbitration Court dated January 23, 2012 in case No. A40-15834/11-105-132, FAS resolution Moscow District dated January 24, 2012 in case No. A41-K-13707/07).

As for payment for the use of the premises before the conclusion of the lease agreement (if it was charged), even in situations where for some reason the court recognizes the preliminary agreement as not concluded, but it is proven that the tenant actually used the premises, the courts do not find grounds for returning the payment to the tenant for this use.

In this case, by virtue of Article 1102 of the Civil Code, the actual tenant is obliged to compensate the lessor in cash for the cost of using the property (determination of the Supreme Arbitration Court of the Russian Federation dated May 17, 2010 No. VAS-5806/10, resolution of the Federal Antimonopoly Service of the West Siberian District dated March 1, 2010 in case No. A46- 11186/2009).

Disputed term condition. The bulk of disputes regarding preliminary lease agreements are associated with ambiguous interpretation of the term for the conclusion of the main agreement. As noted above, this period is usually tied to the moment of registration of the lessor's ownership.

The fact is that, by virtue of Article 190 of the Civil Code, the period can be determined by indicating only such an event that must inevitably occur, that is, does not depend on the will and actions of the parties (clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 Review rental dispute resolution practices). The fact of state registration of property rights depends on the will and actions of the lessor. Thus, if the term for concluding the main agreement is tied to the event of registration of the lessor's ownership (for example, the agreement must be concluded within 10 days after registration of ownership), this period is not considered definite, and then the main agreement must be signed within a year from the date of concluding a preliminary agreement (clause 4 of article 429 of the Civil Code of the Russian Federation).

Often, tenants believe that if necessary, preliminary agreements with landlords will be easy to get out of and get their money back. It is enough to refer to the fact that the period for concluding the lease agreement has not been agreed upon, therefore a one-year period applies, and if the lease agreement was not concluded during the year, then the terms of the preliminary agreement do not apply. However, the wording usually used in such agreements and current arbitration practice, as a rule, do not justify these hopes.

Landlords usually stipulate in mixed agreements with preliminary elements that they are valid until the date of registration of ownership of the building, but no longer than for a certain period of time (for example, no longer than three years from the date of conclusion of this agreement), and the obligation of the parties Upon conclusion of the lease agreement, it is valid for the entire duration of this agreement.

There are examples of court decisions (see the resolution of the Federal Arbitration Court of the Moscow District dated December 6, 2011 in case No. A40-35821/11-53-309), when the courts believe that in this case the term for concluding the lease agreement has been agreed upon and is the period specified in it time (in the example given, three years).

Agreements providing for the automatic entry into force of the terms of the lease agreement usually indicate that the obligations of the parties under the lease agreement come into force from the moment the lessor's ownership rights are registered. Some courts consider such agreements not to be preliminary agreements, but to be transactions concluded under a suspensive condition (Article 157 of the Civil Code of the Russian Federation), to which the provisions on the period for concluding a preliminary agreement do not apply (see the resolution of the Federal Arbitration Court of the Moscow District dated January 24, 2012 in case No. A41-K-13707/07).

The fate of inseparable improvements. If the preliminary agreement has expired and the main agreement has not been concluded, the failed tenant has a question not only about the return of payments, but also about reimbursement of expenses for finishing the premises.

The courts resolve this issue based on the rules on unjust enrichment. Since the finishing work is carried out during the period before the completion of construction and registration of the landlord’s ownership of the building, the latter acquires ownership of the premises already with the finishing carried out by the tenant.

In such circumstances, we are not talking about compensation by the lessor for the cost of inseparable improvements to the property, but about payment for the result of the relevant work (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 14, 2009 No. 402/09). If it is proven that the work was agreed upon with the landlord (as a rule, this is confirmed by the terms of the preliminary agreement) and the result of this work has consumer value for the landlord (that is, he used the result of the work, for example, by transferring the premises to another tenant), then the courts will recover the cost of the work from the lessor as his unjust enrichment (rulings of the federal arbitration courts of the Moscow District dated January 24, 2012 in case No. A41-K-13707/07, the Northwestern District dated December 26, 2011 in case No. A13-743/2010).

Renting an object that has not been put into operation

Often premises are offered for rent in a building that has not yet been put into operation. If a potential lessor has registered ownership of such an unfinished construction project (this possibility is provided for in paragraph 2 of Article 25 of Law No. 122-FZ dated July 21, 1997), then renting is possible. The existing concerns are related to the fact that administrative liability has been established for the operation of capital construction projects before obtaining permission to put them into operation (Part 5 of Article 9.5 of the Code of Administrative Offenses of the Russian Federation). With reference to this rule, tenants sometimes try to challenge lease agreements concluded in relation to unfinished construction projects as void. But since the Code of Administrative Offenses of the Russian Federation contains only rules on liability, and there is no direct prohibition in the legislation on the rental of such objects, the courts do not share the point of view on the invalidity of such agreements (resolution of the Federal Antimonopoly Service of the Moscow District dated December 22, 2010 in case No. A40-35886/10-60- 192, West Siberian District dated 01.26.11 in case No. A03-17500/2009, Far Eastern District dated 02.11.10 in case No. A51-2198/2009, Central District dated 03.04.10 in case No. A14-5844/2009/25 /19b).

In preliminary agreements, the difficulty lies in the individualization of the rental object when the building is under construction. Usually, the approximate area of ​​the premises is indicated, the address landmarks of the building are given, and the location of the premises in the building is marked on the floor plan. Sometimes courts believe that this data is not enough and the contract has not been concluded. Information that allows one to definitely identify the property is an essential condition of the contract (determination of the Supreme Arbitration Court of the Russian Federation dated May 17, 2010 No. VAS-5806/10). In other cases, the courts believe that the object is defined in as much detail as possible on the date of signing the preliminary agreement (resolution of the Federal Antimonopoly Service of the Ural District dated 09/08/09 in case No. A71-1112/2009-G29). It is better to include in the preliminary contract a condition that the characteristics of the premises are subject to clarification during the adjustment of the design documentation, and to establish the procedure for adjustments. Then the object of the lease agreement to be concluded in the future is determinable (resolution of the Fifteenth Arbitration Court of Appeal dated January 21, 2010 in case No. A5314147/2009).

QUESTIONS ON THE TOPIC

How do landlords prove that the tenant used the premises if the contract is declared void?

With the help of an act of acceptance and transfer of premises. In the absence of such an act or if the description of the premises transferred under it is insufficient, the lessor will not be able to prove actual use and collect payment for it (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated 02.24.10 in case No. A296054/2008).

The leased object turned out to be an unauthorized construction, the contract is void. Can the tenant return the rent with reference to Article 222 of the Civil Code?

No, despite the fact that Article 222 of the Civil Code directly states that a person who has carried out an unauthorized construction does not acquire ownership of it and does not have the right to lease it, the courts do not regard this as a basis for returning rental payments to the tenant for the actual use of the object (resolution of the Federal Antimonopoly Service of the Moscow District dated 07/07/11 in case No. A40-88507/09-11-719).

In what cases can you register ownership of an unfinished construction project?

If this object is no longer the subject of a valid contract. In other words, if the construction work in relation to it is completed (clause 16 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59 Review of the practice of resolving disputes related to the application of the Federal Law on State Registration of Rights to Real Estate and Transactions with It).

How are the security payment provisions usually formulated in preliminary agreements?

It is usually indicated that in the event of a tenant’s refusal or evasion from concluding the main lease agreement, as well as in the event of termination of the lease agreement by the lessor or the lessor’s refusal to execute the lease agreement unilaterally due to non-fulfillment or improper fulfillment of obligations on the part of the tenant, the amount of the security deposit paid by the tenant , is not returned to the latter and remains at the complete disposal of the lessor.

Source: Company Lawyer magazine

News archive

Is the foundation of a residential building considered an unfinished construction project?

In addition, Art. 1 of the Town Planning Code of the Russian Federation classifies both buildings, structures, structures, and objects whose construction is not completed as capital construction projects, with the exception of temporary buildings, kiosks, sheds and other similar structures.

4 years ago To recognize an unfinished construction project as real estate, the following conditions must be present simultaneously: 1.

It must be inextricably linked to the land, and its removal without disproportionate damage to its intended purpose cannot be carried out. 2. It must not be the subject of a valid construction contract. An unfinished construction project, which is the subject of a valid construction contract, cannot be the object of real rights, but only the object of an obligation arising from a construction contract, and replacement of the parties to this obligation is possible only according to the rules of assignment of the right of claim and transfer of debt under obligations.

Mortgage for an unfinished private house

An unfinished building is usually called a room where the foundation has been poured and the walls are standing. The presence of a roof depends on the situation. It is assumed that the new owner will carry out all finishing work independently.

In an unfinished house, all communications will not be provided.

But, despite this, the advantages of buying such a house are obvious, because much less money will be spent on building materials than when building a house from scratch. Buying an unfinished house should be done with a clear head and prudence. If when buying an ordinary house it is necessary to carefully check its condition, the serviceability of all systems and communications, then an unfinished house should be checked “inside and out” in terms of documents, because there can be many pitfalls here.

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In order to know how to buy an unfinished house, you need to understand that there are two ways to do this, one of which is based on general rules.

Legal regime of unfinished construction projects

These objects cannot be moved in space without disrupting their intended purpose.

Based on this, we can draw the following conclusion: in this legal act, the legislator definitely considers unfinished construction objects to be things that belong to real estate. Further, if you read the Town Planning Code of the Russian Federation, namely its first article, then from its meaning you can understand that an object of unfinished construction is, according to the legislator, all kinds of permanent structures, for example, structures or buildings, and not any temporary structures such as sheds or kiosks.

In other words, according to the Town Planning Code, the concept of ONS includes only objects that can be called capital.

But is such a definition correct and correct? It seems that if we consider the provisions of the Town Planning Code through the prism of functionality, then no.

Problem No. 6. Purchasing housing from someone other than the developer

A common risk is purchasing rights to real estate not from the direct developer, but through a contractor. If a developer pays with a contractor for apartments under construction on the condition that they fulfill all contractual obligations, then in this case there is a risk of termination of the contract between them for reasons beyond the control of the shareholder. Therefore, at the stage of signing the share participation agreement, the buyer must make sure that the rights to the apartment already belong to the contractor and that he has fulfilled all obligations to the developer. Otherwise, the developer, severing the contractual relationship with the contractor, may revoke his right to the previously transferred apartments.

What are unfinished houses called?

You need to familiarize yourself with the Civil and Land Code, study cases when a private house is not subject to registration and is illegal.

It is also important to evaluate the quality of the masonry of the unfinished object, the foundation and all other parts of the structure.

If you have the budget to pay for the services of a specialist, you can hire a professional appraiser.

Most likely, you will need two specialists:

• an appraiser in the more traditional sense.
• a professional who inspects a building for construction and legal errors;

Info It describes all identified shortcomings and inconsistencies. In this case, the commission sets a deadline for eliminating errors.

Then the check is carried out again.

This document confirms the current state of the property. A document confirming the right of ownership of a land plot. In a simplified procedure, you can register both a newly built object and a long-existing self-constructed house.

Everything about the privatization of a country house: is it necessary if the land is owned?

If you need to privatize houses on already privatized lands, it is important to remember that it is carried out in exactly the same way as on non-privatized lands (that is, owned by gardening associations). In this case, the passport with the cadastral number is replaced by a certificate of land ownership.

Interesting read: Detained by bailiffs

Is it necessary to privatize a country house on privatized land, even if it is unfinished? No, this is an optional procedure. The decision in such a situation is made by the owner himself. However, if he decides to sell the summer cottage along with the house, then it will be necessary to check all the documents. It is quite possible that along with the privatization of the site, somewhere in the documents a house located on its territory was also stipulated. It all depends on the specific situation.

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An unfinished house can also be called a “box” or foundation, which requires costs not only for repairs, but also for the completion of general construction work. In the first and second cases, you can buy and gradually develop the living space, gradually doing renovation work.

But when the building fully corresponds to the name “unfinished house”, you will have to work hard. It is possible that you will have to demolish the old masonry and build everything again.

Houses without interior decoration are often sold, for example, in the same cottage towns and holiday villages. A “Khatynka” with a fine finish costs from $1 thousand per 1 m2, depending on the “eliteness” of the cottage community and the quality of the building materials used.

Among suburban real estate, unfinished boxes account for no more than 1.5-2% of the total number of houses put up for sale.