Why are rents being raised? In what cases are rents raised? ○ Landlord evicts for refusing to increase rent

Any type of service or product has its own price, and this also happens with renting an apartment. When talking about rent, the owner tells you the price for the apartment, which you must pay monthly. Could this mean that the amount is already final and cannot be changed? Or may there be nuances where the landlord may demand a larger amount from you?
The first thing that needs to be mentioned is the fixed payment, which is specified in the contract itself. The signed document must contain information about the amount and period during which the owner of this apartment has no right to change the specified amount.
The question arises: why can the owner of the apartment suddenly just demand to pay more? The answer is actually simple. It seems to you that if you wish, you can easily move to live in another apartment with rent, which will suit you. Tenants often grumble, but in order not to look for another apartment and not bother with moving, they make concessions and agree to raise the price. Knowing this, some landlords deliberately lower the price from the very beginning in order to raise it later when the tenant has already agreed to the previous conditions.
Renting an apartment through an acquaintance is a very attractive option, the prices are incredibly low and everything seems to be fine. But this does not mean that if a friend has problems or needs money, he will not increase the price of the apartment. In such a situation, you yourself will feel uncomfortable if it comes to a friend. Often, landlords put you in an awkward position so that you pay more and feel equal.
There is also such a non-legal concept as wear and tear of an apartment. It cannot be that the tenant has lived in the apartment for a long time and the condition remains the same. Everything wears out and requires repair, the wear and tear of things is irreversible.
If we take, for example, the cost of a broken lamp, which you can compensate, and wallpaper, which can peel off, then the amount here is incommensurable. Usually all these details are included in the rental price.
The issue of choosing an apartment must be taken very seriously; you must carefully check all documents, contact only reliable people or find an agency that will help you complete the transaction. Trust only yourself, and don't listen to strangers. When a person has money, everyone strives to profit and interfere in everything, so you cannot trust everyone. It is important to initially pay attention to the cost of rent so that problems do not arise in the future. You also need to be very careful when drawing up the contract; all points must be clearly outlined in it. You cannot allow yourself to be deceived; if you are too gullible, it is better to use the services of agents, since they will do everything for you: they will draw up an agreement and will not allow deception.

The landlord increases the rent unilaterally. How to help a tenant? (Tkachenko G.)

Article posted date: 09/03/2015

Tenants, when signing a lease agreement, do not always pay due attention to the phrase that “the lessor can unilaterally increase the size rent due to an increase in the dollar exchange rate or a change in the market value of the lease." But they do not take into account that as a result, the cost of rent may ultimately increase exactly twice, or even more. About what the tenant can do if the lease agreement has already been signed and a notice of a rent increase has been received from the landlord, which will be discussed in this article.

WHAT SHOULD A TENANT KNOW?

1. In paragraph 11 of the information letter of the Presidium of the Supreme Arbitration Court Russian Federation dated January 11, 2002 N 66 “Review of the practice of resolving disputes related to rent”, it is explained that “when applying paragraph 3 of Article 614 of the Civil Code of the Russian Federation, courts must proceed from the fact that during the year the contractual condition providing for a firm the amount of rent or the procedure (mechanism) for calculating it."
If the contract included a condition providing for the possibility of changing the amount of rent more often than once a year, such a condition could be declared void, referring to paragraph 3 of Article 614 of the Civil Code of the Russian Federation. For example, I will quote the Ruling of the Supreme Arbitration Court of the Russian Federation dated February 21, 2011 No. VAS-9525/10 in case No. A75-10558/2009:
"...according to paragraph 3 of Article 614 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the amount of rent, unless otherwise provided by the agreement, may be changed by agreement of the parties within the time period provided for by the agreement, but not more than once a year. The law may other minimum terms for reviewing the amount of rent will be provided for individual species rental, as well as for the rental of certain types of property.
In addition, in accordance with paragraph 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 N 66 “Review of judicial practice in resolving disputes related to rent,” paragraph 3 of Article 614 of the Civil Code of the Russian Federation contains a mandatory rule regarding the frequency of changes in the amount of rent, in connection with which the parties cannot change or establish in the contract a condition different from that provided for by this norm. Therefore, the condition of the contract providing for the possibility of quarterly changes in the amount of rent is void by virtue of Article 168 of the Civil Code of the Russian Federation as not complying with the law..."
However, later the Plenum of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 73 dated November 17, 2011 “On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on lease agreements” indicated in paragraph 21:
"...by virtue of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the amount of rent may be changed by agreement of the parties within the time periods provided for in the contract, but not more than once a year (in this case, other minimum periods may be established by law revision of the amount of rent for certain types of lease, as well as for the lease of certain types of property).
This rule is dispositive and allows for changes by agreement of the parties to the terms of the lease agreement on the amount of rent more than once a year, including in cases where there is no indication of the possibility of such a change in the lease agreement itself.
However, if, in accordance with the law or agreement, the lessor has the right to unilaterally change the amount of rent (Article 310 of the Civil Code of the Russian Federation), then, within the meaning of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, such a change can be made by him no more than once a year..."
Thus, the lessor received the right, by unilateral notification, to change the amount of rent, but once a year. I will dwell on the Resolution of the Arbitration Court of the Moscow District dated January 20, 2015 N F05-15294/2014 in case N A40-54476/14:
"...according to clause 6.1 of the agreement, taking into account the provisions of the lease agreement concluded between the parties on December 28, 1993 N 2720/17, rental rates for premises are not subject to change until December 31, 2011, except for the cases provided for in clauses 6.5, 6.6 of this agreement.
The lessor has the right to change the rental rates specified in this agreement in the event of a centralized change in prices and tariffs for public utilities, basic rates of rent for land, property taxes, turnover taxes, in proportion to the size of their increase, but not more than once a year (clause 6.5 of the agreement).
The courts have established that the plaintiff has repeatedly stated to the defendant about a different increase in the rental rate, attaching a detailed calculation and an additional agreement, to which the latter did not agree, and therefore the plaintiff filed this claim to amend the terms of agreement No. 20/155 dated July 23, 2008 in terms of rental rates.
The court, having examined and assessed the evidence available in the case, including the terms of agreement No. 20/155 dated July 23, 2008, came to the conclusion that there were no grounds for the change in rent rates declared by the plaintiff in accordance with Article 614 of the Civil Code of the Russian Federation, taking into account the circumstances , that from 01/01/2014 the rental rate was increased from 3872.04 rubles. up to 4015 rub. for 1 sq. m per year for office space and from 3002.59 rubles. up to 3113.94 rub. for 1 sq. m per year for warehouse space.
...The judicial panel does not find any contradiction in the court’s conclusions with the indicated legal position, as well as the court’s incorrect interpretation of the rules of substantive law in this case...”
2. I would like to separately note lease agreements concluded for a period of up to a year. Judicial practice has developed a position according to which the rent under an agreement concluded for a period of less than one year (equal to a year) is not subject to change. For example, Determination of the Supreme Arbitration Court of the Russian Federation dated August 27, 2009 No. VAS-10734/09 in case No. A12-15393/08-C28:
“...in satisfying the claim, the courts reasonably proceeded from the provision of Article 614 of the Civil Code of the Russian Federation that the tenant is obliged to promptly pay fees for the use of property (rent).
In accordance with paragraph 3 of Article 614 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the amount of rent may be changed by agreement of the parties within the time limits specified in the contract, but not more than once a year.
Since the lease agreement was concluded for a period of less than a year, the amount of the rent could not be changed.
Based on the terms of the agreement, the appellate court lawfully changed the decision of the first instance court and recovered the amount of debt based on the amount of rent agreed upon by the parties at the time of conclusion of the agreement..."
I will also give as an example the Resolution of the Federal Antimonopoly Service of the Ural District dated July 21, 2010 N F09-5670/10-C6 in case N A71-14477/2009:
"... the company "Glavryba" (tenant) and the company "Aikai" (subtenant) signed a sublease agreement for real estate dated 01.04.2009 N 310/2009, according to which the first floor was transferred to the company "Aikai" for temporary possession and use non-residential premises with an area of ​​381.9 sq. m, located at the address: Udmurt Republic, Votkinsk, st. Ordzhonikidze, 4b, for the period from 04/01/2009 to 12/31/2009 inclusive for organizing trading activities.
In a letter dated 06/08/2009 N 162, the Glavryba company informed the Aikai company about an increase in the rent from 05/01/2009 to 161,565 rubles. 60 kopecks
Since the debt and penalties were not paid in full by the Aikai company, the Glavryba company filed a claim in the arbitration court in the case under consideration.
Having examined and assessed in totality in the manner established by Art. 71 of the Arbitration Procedural Code of the Russian Federation, the evidence available in the case materials, the courts came to a reasonable conclusion that the existence and basis for the debt of the defendant to the plaintiff were confirmed. At the same time, the courts indicated that changing the amount of rent under the disputed agreement after two months from the date of its conclusion contradicts paragraph 3 of Art. 614 of the Civil Code of the Russian Federation, on the basis of which, taking into account the payments made by the Aikai company, the debt of the Aikai company was recalculated..."

1. Even if an agreement is signed between the parties to a lease agreement to increase the rent under an agreement concluded for a period of up to a year or to change the rent for the second time in a year, such an agreement may be considered void. For example, Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 19, 2009 in case No. A11-2018/2009:
"...in accordance with Article 614 of the Civil Code of the Russian Federation, the tenant is obliged to promptly pay payment for the use of property (rent). The procedure, conditions and timing of payment of rent are determined by the lease agreement (Part 1 of this article).
Unless otherwise provided by the contract, the amount of rent may be changed by agreement of the parties within the time limits specified in the contract, but not more than once a year (Part 3 of the same article).
Due to the fact that by civil law, changes in rent are allowed no more than once a year, the court rightfully declared protocol No. 7 of the agreement on rent under agreement dated June 11, 2004 No. 8 void (contrary to current legislation), since in accordance with this protocol the rent increased for the second time per year. Therefore, there was no increase in rent from November 15, 2008, and OJSC Saratovstroysteklo did not have the right to demand unilateral termination of the lease agreement. Consequently, the lease agreement, as amended by the additional agreement to it dated 10/12/2008 N 5, continues to be valid until 12/31/2009.
There are no grounds for canceling the appealed judicial acts based on the arguments presented in the cassation appeal..."
2. The tenant may refer to the fact that a unilateral increase in rent by the landlord is an abuse of right.
This statement is confirmed by Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 N 73 (as amended on January 25, 2013) “On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on lease agreements,” paragraph 22:
"...if, in the absence of state regulation of rent, the lease agreement provides for the right of the lessor to unilaterally change its amount, then in cases where it is proven that as a result of such a unilateral change, it has increased disproportionately to the change in the average market rates paid for the lease of similar property in a given area for the relevant period, and significantly exceeded them, which indicates the landlord’s abuse of his right, the court, on the basis of paragraph 2 of Article 10 of the Civil Code of the Russian Federation, refuses to collect rent in excess of the above-mentioned average market rates..."
As a clear example, the Resolution of the Arbitration Court of the East Siberian District dated August 20, 2014 in case No. A10-1405/2013:
“...as follows from the case materials, the plaintiff justified the unilateral increase in rent with data from the report of ARTOX LLC “On the assessment of the market value of the property being assessed” dated 08/20/2010 N 143/42-10/2.
Considering the dispute and assessing the said report according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, the court found the use of unreliable information about the characteristics of the leased premises and the appraiser’s violation of the requirements of the Law on Valuation Activities and federal valuation standards, and therefore did not take into account the market value defined in it the value of the property being assessed is the annual rent per 1 sq. m. m of storage space, equal to 1884 rubles excluding VAT.
Based on report No. 617 on the assessment of the market value of the rental value of real estate, carried out by the appraiser of LLC "Property Fund of the Republic of Buryatia" Sluginova O.L. According to the decision of the Arbitration Court of the Republic of Buryatia, the court of first instance established the actual market value of the right to use the disputed premises under the terms of the lease.
The results of this assessment were not disputed by persons participating in the case, and no inconsistency of this report with the requirements of current legislation was identified.
In accordance with paragraph 22 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 N 73, if in the absence of state regulation of rent, the lease agreement provides for the right of the lessor to unilaterally change its amount, then in cases where it is proven that as a result of such unilateral changes, it increased disproportionately to the change in average market rates paid for renting similar property in a given area for the corresponding period, and significantly exceeded them, which indicates the lessor’s abuse of his right; the court, on the basis of paragraph 2 of Article 10 of the Civil Code of the Russian Federation, refuses to collect rent in part exceeding the above-mentioned average market rates.
Based on the foregoing, having established that as a result of a unilateral change in the annual rent by the plaintiff, the rent increased disproportionately to the change in the average market rates paid for the rental of similar property in a given area for the corresponding period, and significantly exceeded them, the arbitration court correctly resolved the dispute by collecting the debt in in the amount of a certain market value of the lease of the disputed property and refusing to satisfy the claim..."
3. If you are just about to sign a lease agreement and your landlord insists on his right to unilaterally change the rent, then try to stipulate in the agreement the limits of changes in the cost of the payment or the procedure for calculating the rent if it increases. For example, like this: “The amount of rent may be increased by the lessor unilaterally, but by no more than ___% of the amount of rent specified in clause ____ of this agreement.”
Otherwise, the landlord has the right to increase the rent by any amount.
Resolution of the Federal Antimonopoly Service of the North-Western District dated January 28, 2010 in case No. A05-7679/2009:
"...from clause 3.1 of the agreement it follows that the amount of rent may be increased by the lessor unilaterally in the event of an increase in tariffs for use land plot, on which the building is located, is proportional to the area of ​​the rented premises, as well as an increase in tariffs for utilities and other expenses, including water supply, sewerage, heat supply and electricity supply.
The courts have established and it is not disputed by the defendant that tariffs for water supply and sewerage, for thermal energy, and electricity were increased compared to 2008, and therefore the landlord’s expenses for utility and operating services increased accordingly.
The defendant’s argument that the increase in rent does not comply with the terms of the agreement, since it was made in an arbitrary amount and is not proportional to the increased costs, was rightfully rejected by the courts on the basis that, having provided in clause 3.1 of the agreement for the possibility of a unilateral increase in the amount of rent, the parties did not stipulate such an increase was proportional to the plaintiff’s expenses incurred to pay for utilities, and also did not provide for the procedure and did not establish the calculation used in the event of a unilateral increase in rent.
Having established the contract price in a specific monetary amount in clause 3.1 of the agreement, the parties also provided for the right of the tenant to unilaterally increase the amount of rent in the event of an increase in tariffs for the use of the land plot, tariffs for utility costs and other expenses.
Thus, the change in rent as a result of its adjustment taking into account the increase in current tariffs does not contradict the said legal norm and the terms of the contract..."

TO SUM UP THE ABOVE:

1. After receiving the landlord’s notice of an increase in rent, all communication with him must take place in writing with notes on the receipt of documents (letters, notices, agreements) by an authorized person with the date of delivery or by registered mail with acknowledgment of receipt and a list of attachments. This may be needed as documentary evidence of your words in court.
2. Look at the term of your lease agreement: if the period is less than or equal to a year, then the terms of the rental agreement must remain unchanged during the year. Based on the information provided in this article, send your landlord a reasoned response to the notice of rent increase.
3. Determine whether your situation is one of those described in the article.
3.1. If you signed an agreement that contradicts current civil law, then go to court to have it declared void.
3.2. If you see that the rent has increased clearly disproportionately to market prices, contact an appraiser to establish the actual market value of the right to use the property under the terms of the lease.
After this, tell the landlord your position in writing and include a copy of the appraiser's report.
If the landlord does not cooperate, you can go to court to have the notice of rent increase declared invalid and unenforceable. For example, Resolution of the Federal Antimonopoly Service of the North-Western District dated October 22, 2013 in case No. A05-8698/2012.

Every tenant runs the risk of finding themselves in a situation where the landlord increases the rent. It is not always clear how to act correctly in such a case and how the tenant should behave. In this article we will tell you in detail what a tenant needs to do in this situation and how to avoid eviction.

○ They increase the rent, the apartment is rented without a contract.

If upon check-in rented apartment a written contract has not been drawn up, this gives certain freedom to each party to the transaction. Thus, the landlord has the right not only to increase the rent, but also to change the timing of its payment. If disputes arise in such a situation, it is only possible to reach an agreement through negotiations, because the owner of the apartment can evict if he refuses.

○ They increase the rent, the apartment is rented under a contract.

✔ Unilateral payment increase.

If the possibility of an increase is not specified in the contract, the owner cannot increase it without the consent of the lessor.

  • “Unless otherwise provided by the agreement, the amount of rent may be changed by agreement of the parties within the time limits provided for by the agreement, but not more than once a year. The law may provide for other minimum terms for reviewing the amount of rent for certain types of lease, as well as for the lease of certain types of property (clause 3 of Article 614 of the Civil Code of the Russian Federation).”

However, it should be taken into account that in this case there are also restrictions for the lessor. Thus, if the contract states that payment is made in hard currency, the owner cannot establish the payment procedure based on other conditions.

In this case, the tenant has the right to refuse such an increase and this will not be grounds for termination of the agreement.

✔ How can a landlord increase payment?

Legally and if there is a concluded agreement, the owner can increase the rent in one of the following ways:

  1. Obtain the consent of the tenant and formalize the agreement reached in writing. The peculiarity of this method is the need to obtain consent, without which it is impossible to draw up a document regulating changes in payment.
  2. Provide in the agreement upon its conclusion the possibility of a unilateral increase from a certain date. In this case, the tenant’s consent is not required, but it is necessary to send him a notice of planned changes in payment. In this case, the notice must indicate after what period the payment amount will be considered changed. If you skip this point, the size will be considered changed from the moment the notification is received.
  3. Include in the agreement a clause regarding an automatic increase in fees after one calendar year of rent. There is no need to notify the tenant here, but the condition should be formulated as clearly as possible.

If the tenant does not agree with such an increase, he can challenge it by filing a claim in court. Refusal to increase cannot be grounds for eviction.

○ How to protect yourself from increased pay.

To avoid rent increases, the tenant must carefully read all the clauses of the contract when signing it. It is also important to discuss any controversial issues that may cause conflicts in the future.

But it should be borne in mind that if the contract does not indicate the possibility of changing the amount of rent, the landlord does not have the right to increase it without the consent of the tenant. If the owner still insists, then in this case you can protect your rights by filing a claim to invalidate the changes in payment in the agreement. In this case, it is necessary to attach a challenge to the market value report prepared by the lessor.

However, one should be prepared for the fact that if the reality of changes in market value is recognized, the requirement for an increase in payment will be satisfied.

○ The landlord evicts for refusing to increase the rent.

The owner of the apartment can do this without permission only in the absence of a rental agreement. If there is an agreement, only the employer can terminate it early. The owner must contact the judicial authorities for this. Therefore, refusal to pay a large amount cannot be considered grounds for termination of the contract and eviction from the apartment without an appropriate court decision.

The employer can also go to court on the basis of the owner’s failure to comply with the obligations stipulated by the agreement.

Therefore, utmost care and caution should be exercised when entering into a lease agreement. In this case, it is especially important to take into account the owner’s ability to increase the rent.

Lease relationships, the most common since ancient times, require attention and accuracy when concluding a contract. Difficulties and controversial situations most often arise because the procedure for increasing rent is not carefully negotiated. The right to change the rent belongs to the lessor in accordance with paragraph. In this case, the obligatory conditions are:

  • agreement of the parties (most often concerns the timing of changes to the contract),
  • conditions for changing the order (the lessor’s unilateral decision to change the rental amount may require written notification),
  • terms no more than once a year, unless there are other conditions.

In conditions of the need to increase rent, for example, a sharp jump in inflation, the lessor begins the process of changing contractual requirements. A unilateral procedure for this change is quite possible. The absence of a clause on mandatory notification of the tenant leads to misunderstandings that can be resolved in accordance with paragraph 1 of Art., which states that the form of the lease agreement and agreement must comply with and go through the registration procedure with local authorities. The rent increase assumes the following:

  • written notice to the tenant at least one month before the deadline for changing the lease; sent as registered or handed over personally against signature;
  • drawing up an additional agreement, which must indicate the clauses of the agreement that are no longer in force and make detailed changes;
  • Even if there are no clauses in the contract providing for changes in rent, in accordance with the law, the lessor can unilaterally increase it.

On the part of the tenant, the justification for increasing the rent can be enshrined in the agreement itself. While indicating that the rent may change in the event of inflation, it is not always possible to increase it. Clarification of the type: subject to change, guarantees a mandatory change (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 13, 2010 No. 1074/10).

The basis for changing the fixed amount of rent can only be objective circumstances. The reasons for increasing rent include: a change in the estimated value of the leased property due to changes in legislation, an increase in market value determined by the appraiser, and a change in the inflation index.

In the world of market relations, when the seller wants to sell at a higher price and the buyer wants to buy at a lower price, controversial issues can be avoided only by a well-reasoned, legally and economically precisely drawn up contract. The contract period usually does not exceed 11 months.

Perhaps legal advice from an experienced specialist on changing the standard agreement will save both parties from resolving disputes in court.

In the current civil legislation, the conditions for concluding a lease agreement are sparsely spelled out. In this regard, tenants who are not very savvy from a legal point of view often find themselves hostage to the conditions imposed by landlords. For example, provisions on the possibility of raising rents unilaterally. However, the situation can easily be reversed. To do this, the tenant must carefully read the proposed lease agreement and take the time to agree with the landlord and write down the “necessary” conditions.

Unilateral rent increase

Due to the principle of freedom of contract, its terms are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (,). Based on this, only the conditions expressly specified in the contract for increasing the rent are grounds for its legal increase (for example, if it is stated that " The landlord has the right to unilaterally revise the rental rate in the event of changes in the cost of utility bills", "the amount of rent is subject to indexation no more than once a year and no more than 1%"). Of course, it is beneficial for any tenant that, under the terms of the contract, the payment for the leased property is a constant amount and is not subject to indexation (i.e., that the contract specifies a fixed amount of rent and does not stipulate the possibility of increasing it; or it is directly stated that the amount of rent cannot be changed). However, not every landlord will agree with such wording. The cost of utility bills increases, the market price of real estate changes, communications and other equipment wear out and need to be replaced... All this can cause an increase in rent.

Most often, the monthly rent consists of a base and variable amount. The base portion may change if the situation on the real estate market changes. In addition, some agreements provide for annual indexation of the base part of the rent by a specified amount (for example, by 1 thousand rubles; by 2%) or by the value of the consumer price index (inflation rate). The variable value includes utility and operating payments. Most often, the agreement stipulates that the lessor has the right to unilaterally revise the rental rate in the event of changes in the amount of utility and operating payments by supplying and operating organizations.

Deputy general director VTB Arena Park shared a rent setting model that seems to be the most optimal. “We need to move away from constant and variable rent amounts,” Anastasia believes. In her opinion, it is much better to specify in the contract the amount of rent as a formula and indicate the possibility (or impossibility) and procedure for indexing each of its components. For example, " The monthly rent consists of the base rate, which is 20 thousand rubles. and is unchangeable; the cost of depreciation of property, which is equal to 2 thousand rubles. and can be revised by agreement of the parties; payment of utility bills, which are charged according to the tariff established by resource supply organizations"So, if one of the elements of the rent is a fee for the maintenance and repair of the building and common areas, then the landlord will no longer be able to raise the rent, citing the fact that he needs to repair a broken elevator or garbage chute.

If the landlord nevertheless increases the rent, if the tenant disagrees with this decision, the tenant can appeal it in court. Practice shows that courts often take the side of tenants, but the decisive factor will be the terms and conditions specified in the lease agreement.

If the lease agreement does not provide for the possibility of changing the amount of rent unilaterally in connection with the establishment of the market value of the rent, then the lessor has no right to demand payment in the new amount. This applies even to cases where the rental rates in force at the time of concluding the lease agreement were extremely low and did not reflect the actual situation in the real estate market ().

Some parties, on the contrary, provide in contracts for the possibility of unilaterally increasing the rent due to changes in the market situation. At the same time, if the exact amount of the change is not specified, a dispute may arise between the tenant and the landlord. And then even a conclusion about increasing the price will not help. “If the tenant goes to court, he will naturally bring there the assessment report that suits him. And the landlord, for his part, will also bring an assessment report that is “favorable to him.” Most likely, the court will order its own examination, which will then be carried out by someone else. then he wants to argue. What will we come to?” – Anastasia Pomelova is indignant. To avoid such exhausting and pointless disputes, it is much more reasonable to provide in the lease agreement a fixed rate by which the rent can increase (for example, by 5% or the refinancing rate of the Bank of Russia).

If such a dispute does arise, the tenant must prove that the landlord abused his right to unilaterally change the amount of the rent. If the court finds that the payment has increased disproportionately to the change in the average market rates paid for the rental of similar property in a given area for the relevant period, and has significantly exceeded them, then on the basis of this the court must refuse to collect the rent in the part exceeding the said average market rates (p 22 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 No. 73 "").

In addition, it makes sense to clearly define the procedure for increasing such fees. For example, provide that if the landlord changes the amount of rent, the latter is obliged to send the tenant a notice signed by an appropriate person. Some parties even indicate the method (registered letter with acknowledgment of receipt, telegram, special delivery) and the deadline for sending it. Until the above conditions are met, the rent amount is considered unchanged. If the parties go to court, it is necessary to establish the fact of sending the specified notice to the tenant, the method and period of its sending. The tenant cannot be charged a penalty (penalty) for the time during which he continued to pay for the leased property at the previous price if he did not receive the notice or received it in an improper form ().

We recommend specifying in the lease agreement the obligation of the parties, in the event of an increase in the amount of rent, to enter into an additional agreement in writing. According to , citizens and legal entities are free to enter into an agreement; coercion to conclude a contract is not permitted. This means that if such a condition exists, no one will be able to force you to conclude an additional agreement, and without its conclusion, to pay an increased rent. This position is also shared by the courts, for example, the Presidium of the Supreme Arbitration Court of the Russian Federation.

As for the frequency of changes in the amount of rent, if, in accordance with the law or agreement, the lessor has the right to unilaterally change the amount of rent (), then in essence such a change can be made by him no more than once a year (clause 21 of the Resolution of the Plenum of the Supreme Arbitration Court RF dated November 17, 2011 No. 73 "").

You should not think that the inclusion in the contract of a condition that states that the rent can be changed by agreement of the parties in connection with certain circumstances means a mandatory change in the rent in the future. This condition is subject to the principle of freedom of contract (), which presupposes agreement without any coercion between the parties to the transaction on changing obligations (, decision of the Arbitration Court Novosibirsk region dated May 28, 2014 in case No. A45-5936/2014, ).

OPINION

Ekaterina Orlova, director of Real Estate Orlova Consulting & Development:

"The basis for maintaining the original rental agreements is exact description the subject of the lease and penalties. To do this, I recommend listing in the lease agreement all movable property located in the apartment, as well as specifying at whose expense any defects in this property that arose through no fault of the tenant will be eliminated. Utilities are described similarly (it is possible to indicate details of contracts with resource supply organizations). In addition, indicate that changes to the terms of the contract are possible with written agreement of the parties. In the section "responsibility of the parties" it is important to pay attention to the responsibility of the lessor in the event early termination agreement on his initiative."

Payment under new conditions

ADVICE

You can view a sample form of a lease agreement in the GARANT system. To do this, enter “lease agreement” in the basic search and select “Document forms.”

If, after receiving a notice from the landlord about an increase in the rent, the tenant begins to pay at the new rate, this will mean his consent, and can be challenged in the future new value rent will become almost impossible. The fact is that the notice sent by the landlord will be equated to an offer - an offer addressed to one or several specific persons, which is quite specific and expresses the intention of the person who made it to consider himself to have entered into an agreement with the addressee who will accept the offer (). Agreement with its acceptance is called acceptance (). When taking actions within the period established by the lessor to fulfill the terms of the agreement specified in the offer (including payment of the appropriate rental amount), the lessee accepts (accepts) the offer (). Moreover, if the lease agreement is changed (namely, the rent is increased), the obligations of the parties remain unchanged (). Thus, by making payment taking into account the increased rental amount, the tenant accepts the terms of the agreement proposed by the lessor in terms of increasing the cost of rent (decision of the Arbitration Court of the Kemerovo Region dated June 30, 2014 in case No. A27-4911/2014).

In addition, we do not recommend stopping paying for the rented property altogether, since late payment entails the imposition of a penalty (penalty). According to , the tenant is obliged to promptly pay fees for the use of the property. There are no exceptions to this rule for cases of an unreasonable and, in the tenant’s opinion, illegal increase in the rental amount. Obligations must be fulfilled properly in accordance with the terms of the contract, the requirements of the law and other legal acts (). Unilateral refusal to fulfill obligations is not allowed (). The contract or law may provide sum of money, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of the obligation, in particular, in case of delay in fulfillment (). Thus, if you stop paying for rent, the court may oblige you to pay a penalty (fines) (decision of the Arbitration Court of the Kemerovo Region dated June 30, 2014 in case No. A27-4911/2014).

OPINION

Anastasia Pomelova, Deputy General Director of VTB Arena Park:

“The more detailed the mechanism by which the rent is calculated, as well as other relations with the counterparty, is specified in the lease agreement, the greater the chances of avoiding unilateral decisions on the part of the lessors. This means that there will be no unresolvable disputes. I think this is the only way that enables the tenant to maintain normal partnership relations with the landlord."

It is obvious that it is impossible to force a person to enter into an agreement on certain conditions. However, if the landlord is no less interested in renting out his home than the tenant is in renting it, then discussing the terms of the future contract and, through negotiations and joint concessions, arriving at provisions that will suit both parties is quite possible. And even if the parties lose some amount of money, they will gain peace of mind and confidence that in the event of a conflict they will be able to go to court and defend their rights to the leased property.

 

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