In article there is a speech about features of the lease contract of a property share, its form, essential conditions, the rights and obligations of the parties, rent termination of the contract.
Svetlana BOGANOVA, head of the legal department of the Dnepropetrovsk agricultural consultative service
Let’s consider features of the lease contract of a property share. Let’s make a reservation at once that the property share in this consultation is meant as the property received in nature as a share.
Treaty parties
It is known that the property as a property share can be transferred:
1) individually;
2) in a joint share property.
At each option the features of the conclusion of the lease contract. Let’s tell about them in more detail.
Option 1. The lessor according to the lease contract will be:
• or the owner of property, that is the person, poluyochivshy the property share in nature indiviyodualno;
• or the person authorized by it who will act under the power of attorney. Let’s notice that depending on a type of property can potrebovatsya the notarial certificate of such power of attorney, for example, if it is a question of a nedviyozhimost.
Option 2. When the property is in a sovmestyony share property, co-owners act under the contract on joint tenancy, using and the order with property.
By this contract is defined authorized, koyotory it is allocated with the rights to conclude contracts and podpisyvat them on behalf of co-owners. Acts upolyonomochenny under the power of attorney issued to it each co-owner.
The lease contract consists according to the solution of meeting of co-owners which trust the representative to sign it from their name (item 6, 10 of Recommendations No. 96 of MINAP of Ukraine from 06.04.2001).
Any legal or the individual, izjyavivyoshy desire to use this property can be the tenant of property in both cases.
Recommendation to the tenant: signing the contract, ubedites that you deal with the owner of an imushcheyostvo or with the person, the authorized owner to conclude the lease contract.
Contract form
The lease contract of a property share should be concluded to a vpismenny form. Rather otyodelny types of property can be made boyoly rigid demands, in particular, the contract arendy structures for the term of more than 3 years is subject to the notariyoalny certificate and state registration (Art. 793 of group of companies). Notarially it is necessary to certify also a dogoyovor of rent of a vehicle if as one of the parties the physical person (Art. 799 of group of companies) acts.
Essential contract provisions
1. Rent subject of the agreement. mozhet to be such subject the thing which has individual priznaki and keeps the original form at neyoodnokratny use (an inconsumable thing).
The contract should contain the most concrete description of property transferred in rent and danyony about its cost.
2. Rent. Recommendations No. 97 of MINAP of Ukraine from 09.04.2001 predusmatrivayut that the tenant of property which is in a joint share property, counts a rent from two parts:
• awards to the owner of property at a rate of not meyony 1 % from its cost which is paid in a monetary, natural form or services in a doyogovorennost of the parties;
• an amortization component at a rate of amoryotizatsionny assignments on the rented imushcheyostvo which is a source of formation of Fund of restoration of the rented fixed assets.
However this document isn’t standard therefore it is not considered obligatory and can ispolzovatsya only as the recommendation. Besides, in it is mute it is not told anything about that case when the imuyoshchestvo was allocated individually.
For the help we will address to Art. 762 of group of companies according to which the size of a rent is established on a soglasheyoniya of the parties in the contract. It can be the fiksiroyovanny sum or percent from imushcheyostvo cost. In the latter case the lessor should understand that the property value, as a rule, decreases over time, so, and the size of a rent will decrease too.
In the same way in the contract are established: form (deyonezhny or natural) and terms of payment of a rent, revision and indexation order.
3. Period of validity of the contract. It is established on a soyoglasheniye of the parties. Any deadlines arendy as in a case with earth, concerning property it is not provided. Minagropolitiki recommends such contract to conclude for the term coinciding with a lease term of the earth (item 5 of Recommendations No. 97).
The tenant who properly vypolnyaet the duties under the contract, after term of its action has the privilege to a lease contract zakyolyucheniye to new term. Thus the tenant should warn the lessor that he intends to use such right in time, ukayozanny in the contract (if this term isn’t specified, in rayozumny term).
Pay attention! The contract not simply prodlevaetsya on the same conditions, and is subject a perezaklyucheyoniya, i.e. the parties should reconsider conditions on which the property is leased. And if the parties can’t reach a consent concerning a rent and other contract provisions, the privilege of the tenant to the conclusion of the contract prekrashhaetsya.
Differently, if the lessor after period of validity of the lease contract considers neobkhodiyomy a rent to lift, and her current tenant doesn’t want to pay, the lessor can overeat property in rent to other tenant (at his existence).
To data: HK carries also to essential usyoloviya of lease contracts an order of use of depreciation charges, renewal of arenyodovanny property, and also a condition its vozvrashcheyoniya or repayment.
Rights and obligations of the parties
By consideration of the matter follows rukovodstvovatsya to hl. 58 groups of companies and paragraph of 5 hl. 30 HK, in koyotory, in particular, are said that the lessor is obliged:
• to transfer to the tenant property in a set and in a condition which answers contract provisions and appointment;
• to warn about those features and shortcomings of property which to it are known and can prichinit harm of life, to health, property arendatora or to lead to damage of the property during its use;
• to carry out capital repair of property if other isn’t defined in the contract;
• to refuse the lease contract if the tenant doesn’t bring a rent during three mesyayoets in a row, etc.
Fundamental obligations of the tenant treat:
• property use to destination;
• carrying out its maintenance;
• rent payment;
• property value payment in case it was destroyed because of the tenant.
Rent termination of the contract
As well as concerning any other contract, odnoyostoronny refusal of the lease contract of a property share isn’t allowed, if only it directly wasn’t defined by the parties in the contract.
The lease contract stops in the following sluchayax (Art. 781 of group of companies, HK Art. 291):
• the expiration on which it was concluded;
• repayment of property which was leased;
• death of the individual – the tenant (if other isn’t specified in the contract), elimination of the legal entity – the tenant or the lessor;
• death (destruction) of property concerning which the lease contract consisted.
The lease contract can be terminated ahead of schedule in a consent of the parties.
If violation of contractual otnosheyoniya takes place, each of the parties has the right to demand dosyorochny cancellation of the contract in judicial to a poyoryadka. The bases on which the contract can be terminated on request of the lessor or an arenyodator, are stated in Art. 783 and 784 groups of companies. The trebovayoniya concerning contract cancellation in it sluchae are necessary for proving, that is to have dostayotochny proofs for upholding of the interesov in court.
In case of termination of the contract the tenant should return immediately to the lessor property in a condition in which it was received, taking into account normal wear, or in a condition which was specified in the contract. In case of delay the arendayotor has the right to receiving a penalty (Art. 785 of group of companies).
(On Balans-Agro newspaper materials).