Grounds for terminating a lease. Lease agreement and its types. Sanctions for early termination of the contract

Objects of lease relations

The object of lease can be any property (things) that does not lose their natural properties during use: land plots, natural objects, enterprises and other property complexes, buildings, structures, equipment, vehicles, etc. The law may establish types of property, the lease of which is not allowed or limited (clause 1 of article 607 of the Civil Code of the Russian Federation).

It should be noted that the leasing of enterprises can take place in all sectors of material production and in the non-productive sphere, with the exception of some enterprises in the defense industries, communications, transport, the fuel and energy complex, and some enterprises in other sectors of the economy, specificity and nature whose activities predetermine their special significance.

Some restrictions on the leasing of natural objects are established directly by the Federal Law. For example, Art. 11 of the Federal Law "On Subsoil" establishes that subsoil plots can be provided for use on the basis of licenses issued by authorized government bodies. Similar requirements are established by the Water Code of the Russian Federation (Articles 46-53). Forest Fund plots are also leased on the basis of licenses (Article 34 of the Forest Code of the Russian Federation). The object of the lease agreement cannot be a property right, which, by definition, cannot be transferred to anyone in possession. It also excludes the possibility of leasing and Money because the whole point of using them is to use them.

The following should be said about the property, that it must comply with the requirements of paragraph 3 of Art. 607 of the Civil Code of the Russian Federation, i.e. the real estate lease agreement must contain data that allow you to definitely establish the property to be transferred to the tenant as an object of lease.

Change, termination of the lease agreement

The Civil Code of the Russian Federation names specific grounds for early termination of the contract at the request of the lessor and at the request of the tenant. As a rule, these grounds relate to significant violations of the terms of the contract (in relation to lease relations). Thus, the landlord may demand early termination of the contract if the tenant: uses the property with a significant violation of the terms of the contract or the purpose of the property, or with repeated violations; significantly degrades the property; more than twice in a row after the expiration of the payment period established by the agreement does not pay rent (Article 619 of the Civil Code of the Russian Federation).

The tenant has the right to apply to the court with a claim for early termination of the contract in the following cases: the lessor does not provide him with the leased property or obstructs the use of the property in accordance with the contract or the purpose of this property; the leased property has defects preventing its use, for which the lessor is responsible; the lessor does not fulfill the obligation to overhaul the leased property; property, due to circumstances for which the tenant is not responsible, is in a state unsuitable for use (Article 620 of the Civil Code of the Russian Federation).

The lease agreement may provide for other grounds for its early termination at the request of one of the parties.

The Civil Code of the Russian Federation provided for a kind of pre-trial procedure for resolving a conflict between a tenant and a landlord in cases where there are grounds for early termination of the contract at the initiative of the landlord. He is obliged to warn the tenant in advance in writing about the need to fulfill the relevant obligation within a reasonable time. As for the tenant, the absence of a special rule that would oblige him to warn the landlord in advance about the need to fulfill his obligation does not mean at all that he can immediately go to court with a claim to terminate the lease agreement. The pre-trial settlement procedure consists in the fact that the interested party, before applying to the court, must send its proposal to the other party to change or terminate the contract. A claim to the court can be brought only if one of the conditions is met: either after receiving the other party's refusal to propose to change or terminate the contract; or after non-receipt of a response to the relevant proposal within 30 days.

Claims by tenants to change or terminate the lease agreement in the practice of courts and arbitration courts are not a frequent occurrence. In most cases, such claims of landlords are submitted to the court, the arbitration court in connection with the non-performance or improper performance by the tenants of the obligation to pay the contractually stipulated rent.

Some lawyers, based on an analysis of the materials of a number of cases of arbitration courts on disputes on termination of contracts in connection with the improper fulfillment by tenants of the obligation to pay rent, come to the conclusion that arbitration courts are wary of terminating a lease agreement on the basis of a significant violation of the obligation by the tenant on payment of rent, seeking to resolve the dispute on other grounds and to avoid discussion of the question of whether the violation is material. Apparently, this is due to the insufficiency of the accumulated practice of approaches to determining the degree of significance of what the landlord loses as a result of not paying the rent. “In any case, the lease agreement can be terminated ahead of schedule only by the court, at the claim of the interested party to the agreement,” O. Kozyr, Ph.D. in law, makes such a conclusion. ezh - LAWYER No. 8, March 2001 O. Kozyr "Rent of real estate", p. 3

When considering issues related to the termination or amendment of contracts, it is necessary to distinguish between the methods and grounds for terminating contracts, as well as the procedure for terminating and amending contracts.

The grounds and procedure for terminating (changing) the contract depend on the specific, applicable method of terminating the contract. The main way to terminate (change) the contract is to terminate or change the contract by agreement of the parties. However, the law or contract may provide otherwise. When terminating (changing) the contract by agreement of the parties, the grounds for such an agreement have legal significance only for determining the consequences of terminating or changing the contract, but not for assessing the legality of the agreement between the parties.

The second way to terminate the contract is that the contract is terminated or amended by the court at the request of one of the parties.

There are two cases when it is allowed to change or terminate the contract at the request of one of the parties in a judicial proceeding:

When a party violates the terms of the contract and these actions can be qualified as a material breach, i.e., as those that entail such damage for the counterparty that he is largely deprived of what he had the right to count on when concluding the contract. In this case, the basis is a fundamental breach of contract.

The contract may be amended or terminated in court also in other cases provided for by the Civil Code of the Russian Federation, other laws or the contract. This is the case referred to in Art. 619 of the Civil Code, which provides that the lease agreement may establish other grounds for early termination of the agreement at the request of the landlord in accordance with paragraph 2 of Art. 450 of the Civil Code of the Russian Federation (plus those established by Article 619 of the Civil Code of the Russian Federation and the lease agreement).

When applying the second method of terminating or changing a lease agreement, the answer to the question of whether there were grounds for terminating or changing the agreement provided for by law or the agreement is of key importance.

Another way to terminate or amend the contract is that one of the parties exercises its right, provided for by law or the contract, to unilaterally withdraw from the contract (from the performance of the contract), which entails the termination or amendment of the contract.

Unilateral refusal of the contract (from the performance of the contract) is possible in cases where this is allowed by law or by agreement of the parties. For example, after the expiration of the lease agreement, it is considered renewed for an indefinite period (unless either party has stated otherwise) and each party has the right to cancel the agreement at any time by notifying the other party at least three months in advance (Art. 621 of the Civil Code of the Russian Federation).

When terminating (changing) the contract by agreement of the parties, the following should be applied: the procedure for concluding, as well as the requirements for the form of such an agreement, since the essence of the rule on the form of an agreement on changing and terminating a contract is that it must be identical to the one in which it was concluded agreement (Article 452 of the Civil Code of the Russian Federation).

When terminating (changing) the contract at the request of one of the parties, it is mandatory to file a claim in court, subject to the pre-trial procedure for settling the dispute.

In case of termination (change) of the contract due to the unilateral refusal of one of the parties from the contract (from the performance of the contract), the requirement for the procedure for terminating or changing the contract in this case is reduced to a mandatory written notification of the counterparty. The specified requirement is recognized as complied with if it is communicated by means of postal, telegraph, teletype, telephone, electronic communication, which makes it possible to establish that the document comes from the party that has refused the contract or its performance. From the moment such notification is received by the other party, the contract is considered terminated.

Provisions on the methods, grounds and procedure for terminating (changing) the agreement equally apply to the lease agreement; Art. 619 of the Civil Code only somewhat specifies the grounds for terminating the contract at the request of one of the parties (the lessor) in relation to the lease agreement.

The contract can be changed or terminated:

By agreement of the parties (clause 1 of Article 450 of the Civil Code of the Russian Federation)
In court at the request of one of the parties (clause 2, article 450, article 451 of the Civil Code of the Russian Federation)
In a unilateral extrajudicial procedure (clauses 1, 2 of article 310 of the Civil Code of the Russian Federation)

A) Change and termination of the contract by agreement of the parties.

In accordance with paragraph 1 of Article 450 of the Civil Code of the Russian Federation, amendment and termination of the contract are possible by agreement of the parties, unless otherwise provided by this Code, other laws or the contract.

According to paragraph 1 of Article 452 of the Civil Code of the Russian Federation, an agreement to amend or terminate a contract is made in the same form as the contract, unless otherwise follows from other legal acts, the contract or otherwise.

Attention! On the basis of clause 2 of Article 452 of the Civil Code of the Russian Federation, a demand to amend or terminate a contract may be filed by a party to the court only after the other party has received a refusal to propose to amend or terminate the contract, or if a response has not been received within the period specified in the proposal or established by law or by the contract, and if his absence - within thirty days.

In accordance with Article 453 of the Civil Code of the Russian Federation, when the contract is amended, the obligations of the parties remain unchanged (clause 1). Upon termination of the contract, the obligations of the parties terminate, unless otherwise provided by law, the contract or follows from the essence of the obligation (clause 2).

By general rule in the event of a change or termination of the contract, the obligations are considered changed or terminated from the moment the agreement of the parties on the change or termination of the contract is concluded, unless otherwise follows from the agreement or the nature of the change in the contract, and in the event of a change or termination of the contract in a judicial proceeding - from the moment it enters into force court decisions to amend or terminate the contract (paragraph 3 of Article 453 of the Civil Code of the Russian Federation). However, due to the discretion of the Civil Code of the Russian Federation, in the contract or agreement on its termination, the parties may establish that the contract is considered modified or terminated not from the moment the relevant agreement was concluded, but, for example, from the date indicated in it. If the moment of changing and terminating the contract is not agreed, then the obligations are considered changed or terminated from the moment the agreement on changing or terminating the contract is concluded, unless otherwise follows from the agreement or the nature of the change in the contract (the Civil Code of the Russian Federation).

For example, if we are talking about changing a lease agreement, then an agreement to change or terminate this agreement is concluded in the same form as the agreement (Civil Code of the Russian Federation).

In addition to the grounds established by the Civil Code of the Russian Federation, there are also other grounds for early termination of the contract provided for by other laws.

Here's an example: According to paragraph 1 of Article 46 of the Land Code of the Russian Federation, the lease of a land plot is terminated on the grounds and in the manner provided for by civil law. As follows from paragraph 2 of Article 46 of the Land Code of the Russian Federation, along with the grounds specified in this article, the lease of a land plot can be terminated at the initiative of the lessor on the grounds provided for in this Code: :

1) when using a land plot in violation of the requirements of the law Russian Federation, namely when:

the use of a land plot for other than its intended purpose, or if its use leads to a significant decrease in the fertility of agricultural land or damage environment;

land damage;

non-fulfillment of obligations for land reclamation, mandatory measures for land improvement and soil protection;

failure to fulfill obligations to bring land into a condition suitable for use for its intended purpose;

non-use of a land plot intended for agricultural production or housing or other construction for the specified purposes for three years, if more long term not established by federal law. This period does not include the time required for the development of the site, with the exception of cases when the land plot belongs to agricultural land, the turnover of which is regulated by the Federal Law "On the turnover of agricultural land", as well as the time during which the site could not be used on purpose due to natural Disasters or due to other circumstances precluding such use;

2) when a land plot is withdrawn for state or municipal needs in accordance with the conditions provided for by this Code.

The parties may determine in the contract own grounds its early termination in court at the request of one of the parties (,, Civil Code of the Russian Federation).

It should be noted that the grounds for early termination of the contract provided for by the contract may be associated with violations of its terms(for example, with the failure of the tenant to fulfill the obligation to carry out current repairs on time, a single non-payment of the rent by the tenant).

At the same time, the parties may establish the grounds for termination of the contract, not related to a breach by the other party of the terms of the contract. In particular, according to the Civil Code of the Russian Federation, the grounds for its early termination at the request of the lessor in accordance with the Civil Code of the Russian Federation can be agreed upon in the contract. This does not limit the possibility of terminating the contract in cases of material breach by the other party. Therefore, the parties have the right to provide for any grounds for early termination of the contract in court at the request of the lessor, both related and not related to any violation.

The same applies to cases of termination of the contract in court at the initiative of the tenant (for example, the tenant’s loss of interest in using the premises due to the closure of the structural unit, the re-equipment of the building planned by the landlord, the landlord’s production need for the operation of the leased property, etc.).

For reference: if the contract does not specify additional grounds for termination of the contract in court, the party will not be able to demand termination of the contract in court on grounds that are not provided for either by law or by the contract. A party will have the right to demand termination of the contract only on the grounds established by the Civil Code of the Russian Federation and other laws (the Civil Code of the Russian Federation), as well as in case of a material breach of the contract by the other party (the Civil Code of the Russian Federation). Whether the violation is material will be judged by the court at its own discretion in each particular case. For example, a partial non-payment of rent may be recognized as a material violation (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 N 66 "Review of the practice of resolving disputes related to rent").

C) Change and termination of the contract unilaterally out of court.

In accordance with paragraph 1 of Article 310 of the Civil Code of the Russian Federation, a unilateral refusal to fulfill an obligation and unilateral change its terms are not allowed, except for the cases provided for by this Code, other laws or other legal acts. Proceeding from paragraph 2 of Article 310 of the Civil Code of the Russian Federation, a unilateral change in the terms of an obligation related to the implementation of entrepreneurial activities by all its parties, or a unilateral refusal to fulfill this obligation is allowed in cases provided for by this Code, other laws, other legal acts or an agreement.

1) If the lease agreement is concluded for an indefinite period:

On the basis of paragraph 1 of Article 610 of the Civil Code of the Russian Federation, a lease agreement is concluded for a period specified in the agreement.

If the lease term is not specified in the contract, the lease contract is considered concluded for an indefinite period (paragraph 2 of this article).

In this case, each of the parties has the right to withdraw from the contract at any time by notifying the other party one month in advance, and in case of renting real estate, three months in advance. or the agreement may establish a different period for warning about the termination of the lease agreement concluded for an indefinite period. That is, in this situation we are talking about an unmotivated refusal, the party to the contract is not required to justify its refusal - the law does not provide for this. Moreover, the parties cannot establish a condition in the lease agreement that completely excludes the right of any of the parties to refuse it without reason. Cancellation of the contract (performance of the contract) is carried out by notifying the other party of the withdrawal from the contract (performance of the contract). The contract is terminated from the moment of receipt of this notice, unless otherwise provided by this Code, other laws, other legal acts or the contract. In the event of a unilateral refusal of the contract (performance of the contract) in whole or in part, if such a refusal is allowed, the contract is considered terminated or amended (Article 450.1 of the Civil Code of the Russian Federation).

Attention! From the content of the notification, the will of the party to unilaterally withdraw from the contract must clearly follow (, Civil Code of the Russian Federation). Otherwise, the landlord, for example, will not be able to demand the eviction of the tenant.

The parties may provide in the contract:

- deadline for notice of withdrawal(the law establishes that the cancellation of the contract must be warned one month in advance, and when renting real estate - three months in advance (Civil Code of the Russian Federation); however, this rule is dispositive, so the parties can determine in the contract another convenient period for them to notify of the refusal);

- method and address for notification(notification can be sent, including by mail, fax, e-mail, through a courier; if the contract establishes that notifications are sent exclusively by the method provided for by it, then using a different method (for example, sending a valuable letter with an inventory of attachments instead of the courier delivery agreed in the contract ) will be considered inappropriate);

- the moment from which the contract is considered terminated(the parties have the right to establish in the contract the moment from which the contract will be considered terminated in case of refusal from it - this is permissible due to the disposability of the Civil Code of the Russian Federation; for example, it can be indicated that the contract will be considered terminated after a certain time after receipt of the notification by the counterparty).

2) If the lease agreement is concluded for a fixed period:

As mentioned earlier in the text, the grounds for repudiation of the contract may or may not be related to the counterparty's violation of the terms of the contract.

Upon agreement given condition it is recommended to use the wording "unilateral denial out of court", from which the right of the party to withdraw from the contract without going to court will directly follow. Otherwise, the court may qualify this condition as the right of the party to terminate the contract only through the court under the Civil Code of the Russian Federation

Additionally: the parties can establish in the above agreement a condition for the party to pay a certain amount of money to the other party in the event of its unilateral refusal from the agreement (which is impossible with an agreement concluded for an indefinite period). The opportunity to agree on the condition of the fee for refusal is provided for in the Civil Code of the Russian Federation. However, it is permissible only in a contract related to the implementation by its parties of entrepreneurial activity.

It should be noted that the refusal of the contract (performance of the contract) can be either complete or partial. However, such a right, within the meaning of the Civil Code of the Russian Federation, as well as the right to a complete refusal to perform, must be provided for in the contract. Moreover, the right to partial refusal can only be established in the case when the parties to the contract carry out entrepreneurial activities. If one of the parties does not carry out such activities, the right to withdraw from the contract can only be granted to it (the Civil Code of the Russian Federation).

As for the procedure for unilateral cancellation of an agreement concluded for a certain period, it is also regulated by the Civil Code of the Russian Federation. Cancellation can be made by sending a corresponding notice to the counterparty. The contract will be considered terminated from the moment such notification is received by the addressee, unless otherwise provided by law, other legal acts or the contract (the Civil Code of the Russian Federation).

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When concluding a lease agreement, the parties, in addition to the subject matter, duties, liability and other essential conditions, provide for the procedure for terminating it. The inclusion of the relevant paragraph in the text allows you to avoid disagreements and misunderstandings when cooperation is terminated. If the rules are not spelled out in the document, the dispute that has arisen is resolved in court. In this article, we'll take a look at how early dissolution unilateral lease agreement.

General information

The owner of the property can terminate legal relations with the tenant at any time, if the term of the agreement is not established. At the same time, he must first send a warning to the user of the object, and then (in case of non-compliance with the requirements) - a notification about termination of the lease agreement unilaterally (sample notice is given in the article).

If the agreement establishes a period of validity, then the termination of legal relations is allowed only by a court decision. In this case, the grounds for terminating the transaction must be compelling.

Termination of legal relations at the initiative of the user of property

Termination of the lease agreement unilaterally by the tenant carried out if:

The owner does not provide property, creates obstacles for its operation in accordance with the terms of the agreement or the purpose of the object.
Valuables were transferred, but have disadvantages that prevent its use, if they were not specified by the rightful owner when making the agreement, were not known to the tenant in advance and could not be detected during the inspection / verification of the condition of the valuables when signing the document.
The owner does not carry out major repairs, which are his responsibility, within the agreed (or reasonable) time frame.
The object became unusable due to circumstances beyond the tenant's control.

This list is given in Article 620 of the Civil Code. This list is considered open. As stated in Norm 620, an agreement may also be terminated on other grounds provided for in the agreement itself.

Termination of a registered lease agreement unilaterally allowed only by court order. This is, in particular, about the agreement, the object of which is real estate.

Termination of the lease agreement unilaterally by the landlord

The owner of the property has the right to demand the termination of legal relations if the tenant:

Uses the property in a material breach (allowing repeated breach) of the terms of the agreement or not in accordance with the purpose of the facility.
Causes significant damage to property.
Does not pay a user fee more than twice in a row after the end of the agreed period.
Does not carry out overhaul in the prescribed if it is the responsibility of the user on the basis of the contract or law.

The agreement may also provide for other grounds for terminating the lease relationship.

Before termination unilateral lease agreements the landlord is obliged to send a warning to the user about the need to fulfill the terms of the agreement within a reasonable time.

These rules are fixed by Article 619 of the Civil Code.

The procedure for terminating the lease agreement unilaterally

Article 622 of the Civil Code provides that upon termination of legal relations, the property must be returned to the owner. In this case, the parties draw up a deed of transfer. It is advisable to draw up this document, regardless of the object of the transaction. The deed of transfer is equally important when unilateral termination of the lease agreement and the car, and real estate.

This document provides information about the parties to the transaction and property, the return period and the place of transfer of the object.

In order to be as precise as possible termination of the lease agreement unilaterally, must be included in the act as possible more features property.

Additional agreement

It is of particular practical importance.

Often, an additional agreement establishing unilateral termination of a lease agreement attached to the statement of claim in the event that the other party evades its execution. In addition, this document is used if the participants in the main contract have fixed its automatic prolongation (extension) or the validity period is not defined at all.

Nuances

In an additional agreement fixing, it is necessary to provide for a period for sending a notice of termination of legal relations. He must be reasonable.

Don't be in a hurry to complete the document. If you have any doubts about the literacy of the content, it is better to contact a qualified lawyer. The main objective of the supplementary agreement is to minimize the risks for both parties to the transaction.

Sample Notice

Article 452 of the Civil Code fixes the general rules for terminating contracts. The rules of the norm also apply to lease agreements. To comply with the provisions of the article before filing a claim with the court, it is necessary to send a notification. It should indicate:

Details of the agreement to be terminated.
The norm of the Civil Code, on the basis of which legal relations are terminated.
Reason for terminating the contract.
The time period within which the party must respond.

As a general rule, a party to a transaction sending a notification must wait at least 30 days. A shorter period may be provided only in the contract.

It should be said that the termination of the agreement does not relieve the parties from the repayment of overdue obligations.

Significant change in circumstances

In some cases, there are obstacles to the further fulfillment of the terms of the contract. A list of signs that make it possible to determine changes in circumstances as significant.

Evidence must be provided for each barrier. It is worth saying that the case law is very ambiguous on this issue. Quite often, the authorities refuse to satisfy claims in which, as significant changes in the initial circumstances, fluctuations in exchange rates and economic crisis. These factors cannot be foreseen, and, even more so, cannot be reliably confirmed by documents.

In general, the significant changes include:

Deteriorating financial condition.
Lack of funding.

Other conditions for termination of legal relations

Additional grounds for termination of the lease agreement must be clearly and unambiguously stated in it. If the party in court will refer to the wording "other grounds" enshrined in the contract, the court will reject the claim. The possibility to refuse to fulfill the agreement without giving reasons should be given in plain text.

According to the Civil Code, the method of claim (out of court) termination of the agreement is called unilateral refusal. However, despite the presence of direct wording in the law, the parties quite often include in the contract a clause on the possibility of terminating legal relations with a specified number of days (months, etc.) notice. This condition is considered acceptable by most instances. Nevertheless, lawyers recommend formulating it as the right of a party to express an unmotivated refusal in accordance with Art. 450.1 of the Civil Code or as an opportunity to terminate the contract out of court unilaterally without giving reasons.

Important point

The procedure for terminating a lease agreement at the initiative of one of its participants is regulated exclusively by law or by the agreement itself (additional agreement to it). Administrative acts of power structures cannot determine the rules for terminating contracts. The claim for termination of the agreement will be denied, for example, in the event of cancellation of the decision to provide a plot of land for rent.

Conclusion

The main problems in terminating a lease agreement arise in cases of evasion or improper fulfillment of its conditions by one of the parties. At the same time, the situation is often complicated by the fact that the interested subject cannot immediately go to court. By law, he must attempt an out-of-court settlement of the dispute.

Undoubtedly, the possibility of unilateral refusal to fulfill the terms of the transaction should be written in the text of the main contract. Often, the presence of this clause in the agreement allows the parties to save time, effort and money on litigation, since all problems are resolved without trial in accordance with the rule of law. In difficult cases, of course, it is better to contact a lawyer for help.

Lease agreement and its types

graduate work

2. 7 Termination (change) of the lease agreement

The Civil Code names specific grounds for early termination of the contract at the request of the landlord and the tenant. As a rule, these grounds for terminating the contract are in the nature of deciphering the concept of "material breach of contract" in relation to lease relations. Thus, the landlord may demand early termination of the contract if the tenant: uses the property with a significant violation of the terms of the contract or the purpose of the property, or with repeated violations; significantly degrades the property; more than twice in a row after the expiration of the payment period established by the agreement does not pay the rent.

The tenant has the right to apply to the court with a claim for early termination of the contract in the following cases: the lessor does not provide him with the leased property or obstructs the use of the property in accordance with the contract or the purpose of this property; the leased property has defects preventing its use, for which the lessor is responsible; the lessor does not fulfill the obligation to overhaul the leased property; the property, due to circumstances for which the tenant is not responsible, is in a state unsuitable for use.

The lease agreement may provide for other grounds for its early termination at the request of one of the parties.

The Civil Code provided for a kind of pre-trial procedure for resolving the conflict between the tenant and the landlord in cases where there are grounds for early termination of the contract at the initiative of the landlord. He is obliged to give the tenant a prior written warning about the need to fulfill the relevant obligation within a reasonable time. As for the tenant, the absence of a special rule that would oblige him to warn the landlord in advance about the need to fulfill his obligation does not mean at all that he can immediately go to court with a claim to terminate the lease agreement. The pre-trial settlement procedure consists in the fact that the interested party, before applying to the court, must send its proposal to the other party to change or terminate the contract. A claim to the court can be brought only if one of the conditions is met: either after receiving the other party's refusal to propose to change or terminate the contract; or after non-receipt of a response to the relevant proposal within 30 days.

Claims by tenants to change or terminate the lease agreement in the practice of courts and arbitration courts are not a frequent occurrence. In most cases, such claims of landlords are submitted to the court, the arbitration court in connection with the non-fulfillment or improper fulfillment by the tenants of the obligation to pay the rent stipulated by the contract.

T. L. Levshina, based on an analysis of the materials of a number of cases of arbitration courts on disputes on termination of contracts in connection with the improper fulfillment by tenants of the obligation to pay rent, comes to the conclusion that “arbitration courts are wary of terminating a lease agreement on the basis of a significant violation by the tenant of the obligation to pay rent, seeking to resolve the dispute on other grounds and avoid discussing the question of whether the violation is material. Apparently, this is due to the insufficiency of the accumulated practice of approaches to determining the degree of significance of what the landlord loses as a result of non-payment of rent. A. A. Ivanov makes an even more categorical conclusion: “In any case, the lease agreement can be terminated ahead of schedule only by the court at the claim of the interested party to the agreement.”

The grounds and procedure for terminating (changing) the contract depend on the specific method of terminating the contract used. The main way to terminate (change) the contract is to terminate or change the contract by agreement of the parties. However, the law or contract may provide otherwise. When terminating (changing) the contract by agreement of the parties, the grounds for such an agreement have legal significance only for determining the consequences of terminating or changing the contract, but not for assessing the legality of the agreement between the parties.

The second way to terminate the contract is that the contract is terminated or amended by the court at the request of one of the parties.

There are two cases when it is allowed to change or terminate the contract at the request of one of the parties in a judicial proceeding.

Firstly, when a party violates the terms of the contract and these actions can be qualified as a material breach, i.e. those that entail such damage for the counterparty that he is largely deprived of what he had the right to count on when concluding the contract. In this case, the basis is a fundamental breach of contract.

Secondly, the contract may be amended or terminated in court also in other cases provided for by the Civil Code, other laws or the contract. This is the case referred to in Art. 619 of the Civil Code, which provides that the lease agreement may establish other grounds for early termination of the agreement at the request of the landlord in accordance with paragraph 2 of Art. 450 of the Civil Code (in addition to those established by Article 619 of the Civil Code itself. As well as significant violations of the lease agreement).

The third way to terminate or amend the contract is that one of the parties exercises its right, provided for by law or the contract, to unilaterally withdraw from the contract (from the performance of the contract), which entails the termination or amendment of the contract.

Unilateral refusal of the contract (from the performance of the contract) is possible only in cases where this is allowed by law or by agreement of the parties. For example, after the expiration of the lease agreement, it is considered to be renewed for an indefinite period. Each party has the right to withdraw from the contract at any time. having warned the other party about this at least three months in advance (Article 621 of the Civil Code).

When terminating (changing) the contract by agreement of the parties, the procedure for concluding, as well as the requirements for the form of such an agreement, should be applied, since the essence of the rule on the form of the agreement on changing and terminating the contract is that it must be identical to the one in which the contract was concluded (Article 452 of the Civil Code).

When terminating (changing) the contract at the request of one of the parties, it is mandatory to file a claim in court, subject to the pre-trial procedure for settling the dispute.

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Supply contract: concept, content, subject

One of the consequences of non-fulfillment or improper fulfillment of the supply contract under certain conditions may be the realization by the supplier or buyer, respectively, of the rights to unilaterally refuse to fulfill the contract...

Energy supply contract

With the exception of some special rules governing the actions of the energy supply organization and the subscriber to terminate or change contractual relations ...

Change and termination of the contract

The new Civil Code of the Russian Federation, as well as the Civil Code of the RSFSR of 1964, the Fundamentals of Civil Legislation of 1991, proceed from the principle of strict fulfillment by the parties of the obligations assumed under the contract ...

individualization of citizens. Treaty free use

The grounds for changing and terminating the contract are established by Art. 450 of the Civil Code of the Russian Federation: by mutual agreement of the parties; unilaterally, if permitted by law or contract...

Institute of Real Estate Purchase and Sale Agreement in the Russian Federation

The contract is considered concluded if the parties, in the form required in the relevant cases, reach an agreement on all the essential terms of the contract (Article 432 of the Civil Code of the Russian Federation). The form of the contract is regulated by Article 434 of the Civil Code of the Russian Federation. It says...

General provisions on the contract

Legal regulation of the supply contract in the Russian Federation

supply contract fee termination The procedure for amending and terminating a supply contract is largely regulated by law (in particular, the provisions of Chapter 29, Article 523 of the Civil Code of the Russian Federation) ...

Transactions in the real estate market of the Republic of Kazakhstan

According to Article 401, amendment and termination of the contract are possible by agreement of the parties, unless otherwise provided by this Code, other legislative acts and agreement...

Termination of the lease agreement without its early termination. Termination of the lease agreement may occur both on the general grounds provided for in Sec. 26, 29 of the Civil Code, and on special grounds specified in Ch. 34 of the Civil Code and special laws.
First of all, as a result of the normal course of events, the lease agreement is terminated at the expiration of its term without any warning from the landlord or tenant. However, in practice it often happens that after the expiration of the contract, the tenant continues to use the leased property without concluding a new contract, and the lessor does not object to this. In this case, the contract is considered to be renewed on the same terms, with the exception of the term condition: the latter becomes indefinite (clause 2 of article 610, clause 2 of article 621 of the Civil Code). The renewal takes place without a special (positive) agreement of the parties, i.e. the so-called silent continuation of hiring. The basis for the renewal of the contract is the presumption that meets the interests of both parties that the parties, without expressing their will to terminate the contract, thereby tacitly agree to continue the contract on the same terms. Renewal of the contract for an indefinite period does not mean giving it the property of indefiniteness: each of the parties has the right to withdraw from the contract at any time by notifying the other party about it one month in advance, and when renting real estate - three months in advance. These warning periods (with a difference only in their duration) are traditional for all eras. legal regulation lease agreements, as they are caused by the understandable "precaution" of the legislator in order to equalize the interests of the parties under the agreement * (224). Art. 621 of the Civil Code on the renewal of a lease agreement for an indefinite period do not apply to certain agreements for which exceptions are established by law: for example, to a rental agreement (Article 627 of the Civil Code), lease vehicle(Article 632, 642 of the Civil Code).
Quite often the lessee, who is interested in using the thing even after the expiration of the lease, would like to have more certainty in this matter than the mechanism of tacit renewal of the contract for an indefinite period described above can give. In these cases, the law provides him with the opportunity to directly express his desire to use the thing further by concluding a new lease agreement. Upon the expiration of the term of the contract, the tenant, who duly performed his duties, has, other things being equal, a priority right over other persons to conclude a lease contract for a new term, unless otherwise provided by law * (225) or the lease contract. Moreover, notification of the tenant before the expiration of the lease agreement on its termination and the refusal of the landlord to renew lease relations does not in itself deprive the tenant of the opportunity to exercise the pre-emptive right to conclude a lease agreement for a new term (paragraph 33 of the Lease Review). Article 621 of the Civil Code establishes a number of special requirements for the tenant who intends to exercise the pre-emptive right. He must, firstly, properly fulfill his obligations under the contract; secondly, to be ready to conclude a new lease agreement, all other things being equal, i.e. on conditions that in any case are not worse for the lessor than those that third parties are ready to offer the latter; thirdly, to notify the landlord in writing of the desire to conclude an agreement within the period specified in the lease agreement, and if such a period is not specified in the agreement, within a reasonable time before the expiration of the agreement. The pre-emptive right does not mean that the contract must necessarily be concluded on the same terms. Legally, a new agreement is concluded, the content of which may differ significantly from the previous agreement and the parties to which are not bound by the terms of the previous agreement (clauses 31-32 of the Lease Review). A more general conclusion is also correct: the pre-emptive right of the tenant does not oblige the lessor at all to lease the property again. If the landlord refused the tenant to conclude an agreement for a new term, but in violation of Art. 621 of the Civil Code, within a year from the date of expiration of the previous lease agreement, entered into a new lease agreement with a third party, then the tenant has the right to demand in court the transfer of rights and obligations under the concluded agreement and compensation for losses caused by the refusal to renew the lease agreement with him, or demand only damages. The transfer of rights and obligations is the forced entry of the former tenant * (226) into a new lease agreement as a tenant, carried out by a court decision.
An opinion has been expressed in the literature that, by analogy with the procedure for exercising the pre-emptive right to purchase (Article 250 of the Civil Code), the landlord is obliged to notify the tenant of the conditions under which he is ready to conclude an agreement with a third party, and invite him to exercise his pre-emptive right * (227) . The expediency of this rule is obvious, however, due to the lack of its normative fixing, it is not necessary to speak about the specified obligation of the lessor, even by analogy. The burden of proof, sometimes impossible without "detective" surveillance of the lessor's behavior (and did he conclude a new contract?), within a year after the termination of the previous contract lies entirely with the former tenant.
Article 618 of the Civil Code contains to some extent similar to Art. 621 GK rule. In accordance with it, the early termination of the lease agreement gives the subtenant the right to require the lessor to conclude a lease agreement for the property that was in his use in accordance with the sublease agreement with the former tenant. In this case, the agreement is concluded on the terms of the terminated lease agreement and is limited to its unexpired period. This rule applies if other consequences of early termination of the lease agreement are not agreed by the parties to the lease agreement. The justification for such a restriction on the lessor's right to freely choose a counterparty should, apparently, be considered the fact that the lessor had previously expressed its will in relation to the sublessee, agreeing to conclude a sublease agreement. Despite certain similarities, this right of the subtenant should not be considered as a priority right over other persons to conclude a lease agreement for a new term. Firstly, the lease agreement will not be concluded for a new term, but for the remaining term of the original lease agreement. Secondly, in this case, the content of this new lease agreement must coincide with the content of the previous, early terminated agreement, which is not at all guaranteed when using the pre-emptive right. Thirdly, the law does not define special consequences in the event that the lessor, after the early termination of the previously existing lease agreement, but before the subtenant requested the conclusion of a lease agreement with him, has already concluded a new lease agreement with a third party. In any case, no transfer of rights and obligations to the subtenant in the same way as it is enshrined in Art. 621 of the Civil Code, in Art. 618 of the Civil Code is not provided, and it is impossible in cases where the terms of the new contract differ from the terms of the previous one. Upon closer examination, one has to come to the conclusion that in such a situation, under the current legislation, the interests of the subtenant remain generally unprotected. After all, the law does not impose on the landlord the obligation to notify the subtenant of his right under paragraph 1 of Art. 618 of the Civil Code, or to find out whether he intends to exercise this right. In addition, there are no grounds for recognizing a new lease agreement with a third party as invalid, as well as for recovering losses from the landlord in connection with the failure to conclude a lease agreement with a subtenant, either, since there was no evasion from concluding an agreement in the actions of the landlord, which were legal in essence. V without fail(Clause 4, Article 445 of the Civil Code).
Early termination of the lease. The lease obligation may also be terminated ahead of schedule. The basis for this, as a general rule, is the agreement of the parties (paragraph 1 of article 450 of the Civil Code). The issue of early termination of the lease agreement in the event of termination of its party is somewhat more difficult to resolve. Upon liquidation legal entity(of both the landlord and the tenant) the lease agreement is unconditionally terminated (Article 419 of the Civil Code). In the event of the death of the landlord, the lease agreement, on the contrary, does not terminate: the rights and obligations of the landlord pass to his heirs. The death of the tenant also does not terminate the lease agreement: the rights and obligations of the tenant pass to the heirs (Article 418 of the Civil Code). The lessor is not entitled to refuse such heirs to enter into the contract for the remaining period of its validity, except in the case when the conclusion of the contract was due to the personal qualities of the tenant. The only possibility to change this rule by agreement or law is provided for the lease of real estate: in this case, the landlord can completely exclude cases of maintaining the agreement after the death of the tenant (paragraph 2 of article 617 of the Civil Code). Finally, we note that the change of the owner of the leased property, not related to the death (liquidation) of the landlord, does not entail the termination of the lease agreement, even if its conclusion was due to the personal qualities of the tenant (paragraph 1 of article 617 of the Civil Code).
The lease agreement may be terminated early and unilaterally at the request of any of its parties to terminate it against the will of the other party. The grounds for this were discussed above in the characterization of the elements and content of the treaty; here we can draw some conclusions.
At the request of the lessor, the lease agreement may be prematurely terminated by the court in cases where the lessee: 1) uses the property with a material violation of the terms of the agreement or the purpose of the property, or with repeated violations; 2) significantly deteriorates the property; 3) fails to pay the rent more than twice in a row after the expiration of the payment term specified in the agreement; 4) does not carry out major repairs of property within the terms established by the lease agreement, and in the absence of them in the contract within a reasonable time in cases where, in accordance with the law, other legal acts or the contract, capital repairs are the responsibility of the tenant (Article 619 of the Civil Code) * (228).
At the request of the lessee, the lease agreement may be prematurely terminated by the court in cases where: 1) the lessor does not provide the property for use to the lessee or creates obstacles to the use of property in accordance with the terms of the agreement or the purpose of the property; 2) the property transferred to the lessee has defects preventing its use, which were not specified by the lessor at the conclusion of the contract, were not known to the lessee in advance and should not have been discovered by the lessee during the inspection of the property or checking its serviceability at the conclusion of the contract; 3) the lessor fails to carry out capital repairs of the property, which are his/her obligations, within the terms established by the lease agreement, and in the absence of such terms in the agreement, within a reasonable time; 4) property, due to circumstances for which the tenant is not responsible, will be in a state unsuitable for use (Article 620 of the Civil Code) * (229).
Do they cover Art. 619-620 GK action general provisions Art. 450 of the Civil Code on termination of the contract? It appears not. Analysis of Art. 619-620 of the Civil Code shows that they contain specific grounds for terminating the contract, which the legislator a priori considered significant violations of the lease agreement, freeing the parties from the need to prove that these violations caused them such damage that they are largely deprived of what they were entitled to expect at the conclusion of the contract (i.e. their essential nature). At the same time, neither Art. 619, neither Art. 620 of the Civil Code do not exclude the possibility of filing a demand for termination of the contract in connection with other violations of its terms, not provided for either by the specified articles or by the contract. However, the person who made the specified requirement will have to prove the significant nature of the violation of the lease agreement by the counterparty, as required by paragraph 2 of Art. 450 GK. Thus, in one of the cases, it was recognized that the lease agreement could be terminated due to the payment of rent not in full, if the court considers this violation to be significant (paragraph 28 of the Lease Review).
The lease agreement may also establish other grounds for early termination of the agreement in court at the request of the landlord or tenant in accordance with paragraph 2 of Art. 450 GK. These grounds may be related to other violations of the contract, in addition to those specified in Art. 619-620 of the Civil Code, for example, a single non-payment of rent by the tenant (paragraph 26 of the Lease Review), and are generally not associated with any violations, for example, the need for the landlord to self use leased property (paragraph 25 of the Lease Review).
The literature sometimes expresses the opinion that the parties to the lease agreement can expressly exclude any of the grounds for its early termination at the request of one of the parties. This conclusion is made on the basis of autonomy of will in determining the terms of the contract, as well as the fact that early termination of the contract is the right of the parties, and not an obligation * (230). It is difficult to agree with this opinion. Articles 619-620 of the Civil Code make it possible only to add a list of grounds for early termination of a lease agreement, but not to narrow it down. If the contract expressly stipulates the exclusion of any of the grounds listed in Art. 619-620 of the Civil Code, then this condition should be recognized as void as contrary to Art. 422, 619, 620 GK. As for the autonomy of the will of the parties and their rights, and not the obligation to terminate the contract, these principles are fully observed, since each of the parties is free to decide whether to go to court with a request to terminate the contract on one or another basis or "forgive" the counterparty.
Procedure for terminating a lease. The procedure for terminating a lease agreement is subject to certain rules. Upon termination of the contract by agreement of the parties, the rules for concluding the relevant contract, including the requirements regarding its form, should be applied, since the form of the agreement on changing and terminating the contract must match the one in which the contract was concluded (Article 452 of the Civil Code). At the same time, obligations under the lease agreement are considered terminated from the moment the agreement of the parties on termination of the agreement is concluded, unless otherwise follows from the agreement (clause 3 of article 453 of the Civil Code).
The landlord has the right to demand early termination of the contract only after sending the tenant a written warning about the need to fulfill his obligations within a reasonable time (part 3 of article 619 of the Civil Code), as well as a proposal to terminate the contract in accordance with clause 2 of article 452 of the Civil Code (clause 29 of the Lease Review) * (231). The function of the warning, obviously, is to provide the tenant with a last opportunity to correct the violation he has committed: if he eliminates the violation before the expiration of the established period, then the lease cannot be terminated * (232). In order to avoid red tape, it is advisable to immediately include in the text of a warning about the need to fulfill the obligation a proposal to terminate the contract if the obligation is not fulfilled within the period specified in the warning. The lessor’s statement of claim for termination of the lease agreement must be accompanied by both the warning itself about the need to fulfill the obligation with a proposal to terminate the agreement, and evidence of their sending to the tenant (paragraph 30 of the Lease Review); otherwise, the claim will be left without consideration (Article 148 of the APC). The contract is terminated on the basis of judgment(Clause 2, Article 450 of the Civil Code), from the moment of entry into force of which the obligation is terminated.
It is noteworthy that in relation to the tenant, Art. 620 of the Civil Code, in contrast to Art. 619 of the Civil Code, does not contain a rule on the prior warning of the lessor about the need to fulfill his obligations. However, this does not mean that the tenant can immediately file a lawsuit to terminate the lease. The tenant must comply general order termination of contracts, provided for in paragraph 2 of Art. 452 of the Civil Code, i.e. send the landlord a proposal to terminate the contract. This proposal usually specifies a time limit for a response (if not specified, it will be 30 days, unless otherwise provided by law). Only after receiving a response from the landlord (or not receiving it within the prescribed period), the tenant has the right to go to court. As can be seen, the procedure for terminating the contract at the request of the tenant has not received much simplification compared to that at the request of the lessor.
A special way to terminate the lease agreement in the procedural plan is the refusal to perform it (paragraph 27 of the Lease Review). In the event of a unilateral refusal to execute the contract in whole or in part, when such a refusal is allowed by law * (233) or by agreement of the parties, the contract is considered terminated or amended accordingly, without litigation and prior sending of a requirement to eliminate violations (clause 3 of article 450 of the Civil Code) . The law does not contain an exhaustive list of grounds for unilateral refusal, therefore, the parties themselves can establish these grounds in their agreement. In this case, the following nuances must be taken into account.
First, within the meaning of Art. 310 of the Civil Code, such an establishment is possible only in cases where the obligation under the contract is associated with the implementation of entrepreneurial activities by the parties. It is impossible to refuse the execution of a lease agreement that is not related to entrepreneurial activity, even if this right is provided for by the agreement itself.
Secondly, some violations of the contract or life circumstances should be established as grounds, although they are not violations, but objectively expressed outside, not solely dependent on the discretion of one of the counterparties. For example, the establishment of a simple, unmotivated, i.e. without specifying the reason, the statement of the party as a basis for unilateral withdrawal from the contract casts doubt on the urgent nature of the lease: in this case, the period established in the contract loses any independent significance.
Thirdly, the refusal to perform must clearly comply with the grounds that are enshrined in the agreement of the parties and the law, i.e. be lawful * (234).
Further, the subject of consideration will be certain types of lease agreements and lease agreements for certain types of property. At the same time, agreements on the transfer of land plots, subsoil plots, forest fund plots, isolated water bodies for temporary paid possession and use, due to their obvious specifics, as well as the limited volume of this textbook, are subject to consideration in the relevant courses of land and natural resource law.