Regulatory framework for rental of premises
The main document regulating legal relations on the lease of property of legal entities of non-state ownership, is ch. 58 "Hiring (rent)" CCU.
However, according to Art. 1 of the Law of Ukraine from April 10, 1992 No. 2269-XII "On Lease of State and Municipal Property" (hereinafter referred to as the Law on State Property Lease), renting property of other forms of ownership may be governed by the provisions of this law, unless otherwise provided by applicable law and lease agreement . That is, if the terms of the non-state property lease agreement between enterprises of non-state ownership contain a special clause stating that, by agreement of the parties, the parties are guided by the Law on State Property Lease when executing the lease agreement, then the norms of this law are applied.
In addition, if the tenant is a state-owned enterprise, then according to par. 2 p. 4 of Art. 1 of the Law on State Property Leasing when concluding a lease agreement with it (even if the lessor is an enterprise of non-state ownership) it is also necessary to be guided by the norms of this law.
More details of the lease of state property are set out in the topic Rental of Real State Property.
Contract parties and rental object
Parties to a real estate lease agreement of non-state ownership - any legal entity or individual may be a landlord and tenant.
In this case, according to Art. 761 CCU has the right to transfer property for rent (that is, it can be a landlord under a lease agreement) the owner of the property or the person who owns the property rights, as well as the person authorized to enter into the lease agreement.
The object of renting immovable property of a non-state form of ownership may be buildings, structures, premises or their parts - rooms, halls, part of a warehouse, basements, etc., which belong to the lessor on the right of ownership.
Form and essential terms of the contract
In accordance with Art. 793 GKU lease agreements for a building, another capital structure or its separate part must be in writing (see the topic Form of the agreement).
If a lease agreement for real estate (its separate part) is concluded for a period of three years or more, it is subject to notarization and state registration (see also the topics on notarization procedure for lease agreements and state registration of lease agreements).
If a lease agreement is concluded between business entities, then when concluding such an agreement, special attention should be paid to the essential conditions defined by art. 284 HKU, in the absence of which the lease agreement is considered to be not concluded (Art. 180 HKU). More in detail this question is set out in the Subject. Essential terms of the contract
It is also necessary to pay attention to the fact that the terms of the lease contract remain in force for the entire term of the contract, even if after its conclusion the law establishes rules that worsen the tenant’s position.
In the "Subject of the contract" section, you must specify the location of the rental object (its address), as well as what this property is - a separate building or part of it (in this case, you must specify the floor, room (or rooms) number, number buildings, the area of these premises and their purpose). If necessary, a plan of rented premises is attached to the contract.
In accordance with Art. 284 of the Commercial Code in relation to the rental object as one of the essential conditions in the contract, it is necessary to indicate the composition and value of the property, taking into account its indexation.
It is recommended in the contract to indicate the purpose of renting one or another room (for example, to accommodate an office or a warehouse, production premises, etc.).
Since the lease is a temporary use of the property, the indication of the lease term in the contract is obligatory (this issue is discussed in more detail in the subject Term of the lease contract). But it should be noted that according to Art. 763 GKU lease agreement may be concluded for an indefinite period.
However, since in Part 6 of Art. 283 HKU stipulated that the relevant provisions of the civil code apply to the lease relations, taking into account the specifics provided by the HKU, and the term of the lease agreement is an essential condition, such a term must be specified in the lease agreement between business entities.
At the end of the lease term, the property is subject to return to the lessor.
In accordance with Art. 795 GKU transfer to the tenant and return to the lessor of the building, other capital construction or their separate parts is drawn up by the relevant act signed by the parties to the contract (see also the topic Property Lease).
So, for documenting the fact of receipt (transfer) of leased property by the parties, the parties accept the transfer and acceptance certificate in the form No. ОЗ-1. On the basis of such an act, the tenant takes into account the property received in the lease for the balance. A similar act of acceptance and transfer is issued upon return.
In accordance with Art. 284 CCU and art. 764 GKU, if after the expiration of the lease agreement the tenant continues to use the property, then in the absence of objections of the lessor within one month the agreement is considered renewed for the period previously established by the agreement.
Property rental fee
The use of depreciation
According to the Profit Law, depreciation charges are accrued by the lessor and reduce the gross income of the taxpayer (for more details, see the topic Depreciation of fixed assets (funds)).
At the same time, the use of depreciation deductions by subjects of rental relations is governed by art. 23 of the Law on State Property Leasing and extends to the lease of objects of state or municipal property. The content of this section of the contract depends on the type and terms of the lease of such property.
For rental objects of non-state ownership in the contract, it is sufficient to indicate who depreciates this object. Since the tenant does not have the leased object on its balance sheet, he will not be able to reduce his taxable object by the amount of depreciation deductions in tax accounting. Therefore, in the lease agreement, as a rule, it is provided that the lessor will accrue the lessor in the manner prescribed by applicable law.
Restoration of leased property
In accordance with Art. 779 GKU tenant is obliged to eliminate the deterioration of property, which occurred through his fault, and if it is impossible to restore the property, the landlord has the right to demand compensation for the losses caused to him. However, the tenant is not responsible for the deterioration of the property if this is due to the normal wear and tear of this property or the omissions of the lessor.
Taking into account the above, it can be concluded that the lease agreement should provide for the procedure and terms for the restoration of the leased property, as well as the grounds and time limits for damages caused to the lessor if it is impossible to recover such property.
Terms of return or repurchase of leased property
The lease agreement must provide for the terms and conditions for the return of the leased property to the lessor or the conditions for its repurchase by the lessee.
According to Art. 785 GKU upon termination of the lease agreement the tenant is obliged to immediately return the property to the lessor in the condition in which it was received, taking into account its normal wear and tear, or in the condition stipulated by the agreement. In this case, the tenant who properly performed his obligations under the lease agreement, after the expiration of the term of the contract, has a preferential right over other persons to enter into a lease agreement for a new term (Article 777 of the Civil Code).
The tenant is also in accordance with Art. 289 HKU has the right to buy out the rental object, if such a right is provided by the contract, but the tenant has the right to refuse to exercise such right at any time.
Other terms of the lease agreement
In addition to the above essential conditions, it is desirable to provide in the lease agreement that the tenant is granted the right to use the land on which the leased real estate is located.
So, according to Art. 796 GKU simultaneously with the right to lease a building or other capital construction, the tenant is granted the right to use the land plot on which they are located, as well as the right to use the land plot adjacent to the building or structure, in the amount necessary to achieve the purpose of the lease. In this case, the parties may determine the size of the land plot in the lease agreement, otherwise the tenant is entitled to use all the land owned by the landlord.
In addition, the lease agreement must specify the rights and obligations of the tenant and the lessor, as well as provide for the liability of the parties for non-performance or improper performance of the terms of the lease agreement.
In accordance with Art. 285 of the HKU and the rules of the GKU tenant must:
- use the rental object for its intended purpose according to the profile of the production activity of the enterprise, whose property has been leased;
- to protect the leased property in accordance with the terms of the contract, preventing its damage or damage;
- pay the rent in full and in time;
- to make current repairs of the property, unless otherwise provided by the contract.
Separately, in the section of the lease agreement regarding the obligations of the parties, it is necessary to indicate which of the parties, the landlord or tenant, ensures the fire safety of the rental object and is responsible for violating the fire safety rules. If, however, the terms of the lease agreement do not allocate responsibilities on this issue, then, as follows from the letter of the State Department of Fire Safety EMERCOM of November 30, 2006 No. 32/1/4941, responsibility for violating fire safety rules will be assigned to the head (owner) landlord.
Responsibilities of the parties under a real estate rental agreement should be defined in relation to:
- late payment of rent. In this section of the contract, as a rule, the procedure for payment by the tenant of the penalty (fine) is provided for. According to Art. 549 and 551 GKU fines is a penalty, calculated as a percentage of the amount of late payment of the obligation for each day of delay in execution. The amount of the penalty is established by an agreement or an act of civil law. According to Part 6 of Art. 231HKU penalties for violation of monetary obligations are set in percent, the amount of which is determined based on the discount rate of the NBU, for all the time of using other people's funds, unless a different amount of interest is provided by law or contract. According to Art. 343 HKU payer of funds for late payment pays a penalty in favor of the recipient of such funds in the amount established by agreement of the parties, but which can not exceed the double discount rate of the NBU, which was in effect during the period for which the penalty is paid;
- violation of the terms of transfer by the lessor of the rental object (the amount of the penalty is established by agreement of the parties);
- violation of the terms of transfer by the lessee of the rental object to the lessor upon termination of the lease agreement. In accordance with Art. 785 GKU the landlord has the right to demand payment of the penalty in the amount of double rent for the time of delay;
- compensation to the lessor of the cost of the leased property in the event of its destruction or damage due to the tenant;
- the risk of accidental death and damage to the rental object. For example, in the event of a fire or flooding (in the absence of the tenant’s fault), it is necessary to indicate at whose expense the repair of the rental object is made. Accordion 772 GKU tenant, delaying the return of property to the lessor, bears the risk of accidental destruction or damage.
Details of the liability of the parties under the contract are set out in the topic Responsibility for violation of obligations under the contract.
In addition to the above conditions, the lease agreement may provide for the grounds for early termination of the lease agreement.
According to Art. 782 CCU failure to pay rent for three consecutive months may be grounds for the landlord’s refusal of the lease agreement and the requirement to return the rental object. Thus, in case of late payment, the landlord should not apply to the court with a claim for early termination of the contract. According to paragraph 2 of Art. 782 GKU in case of refusal of the lessor from the lease agreement on this basis, the agreement is terminated from the date of receipt by the tenant of the relevant notice to the lessor. Such a notice the landlord must issue in writing and hand it to the tenant in the prescribed manner (on receipt or send a registered letter with acknowledgment of receipt and inventory of investments).
It should be noted that according to Art. 291 HKU unilateral refusal of the lease agreement is not allowed, and the lease agreement may terminate in the following cases:
- the expiration of the term for which he was imprisoned;
- repurchase (privatization) of the rental object;
- liquidation of a business entity - a tenant;
- death (destruction) of the rental object.
The lease agreement may also be terminated by agreement of the parties. Thus, at the request of one of the parties, the lease agreement may be terminated early on the grounds provided for in Art. 783 and 784 GKU, but in the order established by Art. 188 HKU. That is, the party wishing to terminate the lease must send a proposal to the other party to the contract, which must notify the results of its consideration within twenty days after receipt of the said proposal.
If the parties have not reached agreement on the termination of the lease or failure to receive a response within the prescribed period (taking into account the time of postal circulation), the interested party has the right to submit the dispute to the court.
In the real estate lease agreement, one of the conditions is to stipulate the procedure for payments for utilities (electricity, water supply, sewerage, heating, etc.). The terms of the contract may stipulate that the tenant is obliged to conclude relevant agreements with public utilities, and that he is responsible for late payment of due utility bills (see also letter of NERC dated December 30, 2004 No. 05-39-11 / 5641).
If the tenant does not have the opportunity to conclude a contract for the provision of public utilities with each specialized organization, then, in addition to the rent for the property provided for temporary use, the tenant will reimburse the lessor for all expenses incurred by the lessor for its maintenance.
At the same time, for tax purposes, it is preferable to include such expenses in the amount of rent, rather than specifying separately in the terms of the agreement (this issue is described in detail in the topic Rental of real estate).
Also, when renting a telephone room to a tenant, to include communication services in gross expenses for the period of the lease agreement, it is necessary to re-register the contract for receiving communication services with the organization that provides them.
Features of taxation
The transfer of the object of fixed assets for rent does not lead to a change in the carrying value of groups of fixed assets from the lessee and the lessor. The rent for the rental object is included in the gross income of the lessor and the gross expenses of the tenant. Such a taxation procedure is established in p. 7.9.6 p. 7.9 of Art. 7The Law on Profit and is described in more detail in the operating (operating) lease of fixed assets (funds). Certain issues related to the taxation of these operations are also considered in the letters of the State Tax Administration of 12.11.2004 No. 22060/7 / 15-1117 and of 12.12.2004 No. 625/4 / 15-1110.
Unlike leasing state property, when a landlord must set the amount of rent in accordance with applicable law without including the cost of maintaining leased property, when renting real estate from non-state legal entities, there are no such restrictions. But at the same time, there are a number of other features that the parties to the participants in rental operations should pay attention to.
By concluding a lease agreement, the parties stipulate the order in which the tenant will settle with the landlord. In this case, the following two options are possible:
- the cost of maintaining the leased property (utilities, land tax, maintenance of elevators, etc.) and the cost of services that the landlord undertakes to provide to the lessee (security services, cleaning of premises, etc.) are included in the rent amount, that is, the tenant pays a single amount to the landlord within the time period specified in the contract;
- the amount of rent is set at the rate of one square meter, and the cost of other services is determined separately upon their provision. Thus, the cost of electricity is calculated according to meter readings or in proportion to the rented area, heating - in the heating season in proportion to the rented area, security - upon the provision of such services, etc., with the execution of the relevant documents.
In this case, in these cases, the amount paid by the lessor to the lessor for different accounting periods, depending on the expenses actually incurred by the lessor, may change either downwards or upwards.
Based on the requirements of the Law on Profit to documenting business transactions, and taking into account the opinion of the tax authorities on this issue (see the topic of Renting real estate), execute documents on the first of the above options preferred for both parties and first of all for the tenant. At the same time, the possibility of adjusting the amount of utility or other expenses in the total amount of income received by the lessor in cases when such a need arises is stipulated in the concluded contract or in the supplementary agreement thereto.
If the amount of the rent is paid by the tenant on the basis of the contract separately, and the remaining expenses are reimbursed according to additionally made calculations, then the question arises of their documentary confirmation. Since, in this case, the tenant, aside from bills received for payment, usually has no other supporting documents, this is less preferable for him (the grounds for such a conclusion are also given in the topic Rental of State Real Estate).
When the tenant uses telephone numbers belonging to the lessor, for documenting such use, the most optimal is the conclusion by the tenant of a direct contract with the company providing communication services.
The tenant should pay attention to the following - if, according to the terms of the contract, it is charged with insurance of the leased property, then such expenses cannot be included in its gross expenses. This is due to the limitation set by p. 5.4.6 clause 5.4 of art. 5 of the Law on profit, according to which the gross expenses include the costs of insuring only own property.