Bidding for the right to lease. Instructions "MN": How to rent premises from the city. Renting premises of a government agency: documents
Artem Temirov, co-founder of the cooperative "Cherny"
— Now we exist in the format of a coffee corner in the Tsiolkovsky bookstore, and we all have to move out before December 1, since the building is closed for reconstruction. We decided to look for premises for a full-fledged coffee shop with seats. So, after three weeks of searching, we realized that the market great amount premises are subleased from the city. That is, the premises themselves belong to the city, someone rents them for pennies, and then subleases them at the market price.
And without stopping our search through the usual channels (CIAN, real estate agencies), we decided to find out how we could rent a room from the city. It became clear that auctions were common practice. Auctions are held monthly and you can participate in them. But we realized that we don’t have much chance of winning these auctions, because we are too young a project (we are only six months old) plus we don’t have much money to compete for the right to rent good premises with companies that exist on the market a long time ago.
But we also found out that it is possible to rent premises from the city without participating in auctions. However, we have not found an answer to the question of how to do this. We just realized that this is only possible for entrepreneurs whose activities are included in the list of priority activities, and we meet these criteria, since one of the priority activities is youth entrepreneurship.
We called the property department to find out more about this. We were transferred from official to official several times, and ultimately we submitted an official written appeal to the department. We were given a sheet containing the request number, and also indicated that a response would be given within 30 days.
Since we don’t really trust officials and the entire bureaucratic machine, we were afraid that this might take forever or that a reply would come rather than a full answer, and therefore we decided to back up the whole thing with at least some kind of media coverage. Wrote social media post.
There were a lot of shares on Facebook, and the property department left a comment under our post that we would receive a response “no later than the deadline; and absolutely, the number of reposts of your letter does not affect the quality of the department’s work and the regulated response time.”
The officials also asked us to inform them about the result. So now we call the property department once a week and ask about the fate of our appeal. As soon as the answer comes, we will definitely post it on social networks.
Konstantin Pozdnyakov,Deputy General Director of the State Budgetary Institution "Small Business of Moscow"
— Representatives of small and medium-sized businesses in Moscow have the right to preferential purchase of premises with an area of up to 1 thousand square meters. m. They can take advantage of this opportunity if they have rented the site for at least two years and if there are no arrears of rent and penalties on the day of filing the application. It is possible to pay in installments over three years.
For all small businesses that rent premises from the city with an area of up to 300 sq. m (and the lease agreement was concluded without tendering), for 2014 the minimum rate was set at 3,500 rubles. for 1 sq. m per year.
If you are a small business, renting premises over 300 sq. m. m and carry out activities in the areas of healthcare, education, trade in social stores, social nutrition, consumer services, physical education, sports, culture, production and handicrafts, you can receive support. To do this, you need to send to the commission an application for the application of the minimum rate before December 1, 2013 rent for 2014.
This also applies to small businesses that employ disabled people. Condition - the average number of disabled people must be at least 50%, and their share in the wage fund must be at least 25%. In this case, the applicant must be included in the register of small businesses in the prescribed manner, must use the facility for its intended purpose and must not have any debt.
If you have any difficulties, you can consult with specialists from the State Budgetary Institution “Small Business of Moscow”; contact information is available on the website www.mbm.ru
Premises and buildings owned by the city of Moscow are leased based on the results of the auction. An entrepreneur needs:
1. Select a premises from the list of objects put up for auction on the official website of the city property department - www.dgi.mos.ru (the owner of the objects) or on the website of the tender committee - tender.mos.ru (the organizer of the auction).
2. Submit an application to participate in the auction in a timely manner (tender committee).
3. Pay the deposit (the amount is indicated in the auction documentation).
4. Take part in the auction.
5. Entrepreneurs can inspect any premises/building put up for auction. To do this, you must submit an application to the tender committee to inspect the facility.
The need to rent non-residential premises arises mainly from individual entrepreneurs and other legal entities who need these real estate properties to carry out their activities. If I eat privatized non-residential premises does not cause significant difficulties, then renting real estate from the state or municipal authorities of the city differs in a number of nuances that you need to know about in advance.
In accordance with the laws regarding competition protection that are currently in force in Russian Federation, municipal authorities have the right to rent out state-owned real estate for temporary use. Russian legislation also defines a number of exceptional cases when bidding may not be held:
The essence of bargaining
The rental of municipal non-residential premises is subject to a strict registration procedure. The city administration can put up for auction even the real estate that is this moment is in use. This happens if the contract expires or is subject to early termination.
The municipal body is obliged to inform in advance about the holding of open tenders on the official government website. If a person wishing to rent non-residential real estate was unable to timely submit an application for participation in the auction due to a violation of the information procedure, he has the right to file a claim in court. After consideration of the claim, the trade may be declared invalid along with the transactions concluded as a result. At the same time, it is prohibited to conclude a lease agreement earlier than ten days from the date of publication of information about the results of the auction. Violation of this rule is also grounds for filing a lawsuit.
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All rights and obligations of the parties when leasing municipal non-residential premises are specified in the agreement concluded between them. The main points of such obligations can be identified as follows:
| City administration (landlord) | Tenant |
|---|---|
|
|
Payment and restrictions
The amount of payment for renting non-residential premises from the state must be indicated in the transaction agreement. The payment term or other conditions are also indicated there if the tenant pays six months in advance. The city administration has the right to require monthly copies of payment receipts no later than the specified period. Regarding the fee public utilities and communication systems, additional agreements are concluded with other organizations. Payment is made to their bank account. In case of failure to pay on time, the municipality has the right to independently write off the required amount Money from the tenant's account.
In case of late payment of rent, a penalty may be charged under the contract in the amount agreed upon by the parties. The interest amount cannot change more than once a year. In case of malicious violation of payment terms, the tenant must pay a fine, the amount of which is established by a special state commission.
Reasons for early termination
Causes early termination transactions are negotiated by the parties and specified in separate clauses of the agreement. General grounds for terminating the lease of a property are:
Lease extension
The need to extend the lease term of non-residential premises also arises quite often, so it is worth knowing how this can be done. The tenant has the right to extend the period of use of the property without holding repeated auctions, if he has previously properly fulfilled all obligations. To renew the contract, two mandatory rules apply:
- The rental fee will be changed in accordance with the revaluation of property values in the region;
- The period for which the transaction will be extended must be at least three years, unless the tenant submits a corresponding application to reduce this period.
Thus, the parties can renew and extend the contract for the use of real estate as many times as necessary. There are no restrictions by law. The municipality has the right to refuse to extend the period if it has its own plans for the premises or the tenant did not fulfill the terms of the contract in good faith and has debts to municipal institutions.
Notices and Disputes
If it is necessary to make any changes to the conditions of use of premises rented from municipal authorities, this must be reported in writing. If bank details and legal addresses change, you must notify us immediately. When sending written notice, do not forget about the deadlines and dates. The postage stamp will be considered as the date of departure.
The transaction must be registered with government agencies. The tenant will also have to pay a fee. Whenever controversial issues When the parties cannot independently resolve the conflict and come to an agreement, its decision is transferred to the court. Rent changes take effect no earlier than ten days after notification.
Each individual entrepreneur of a small (medium) business has the opportunity to enter into a contractual agreement with a municipal body of the Russian Federation for the rental of premises. Change municipal property, state property for rent has some features. When concluding such a lease agreement, a number of restrictions apply.
An agreement can be concluded in accordance with the Federal Law () in two ways:
- based on the results of bidding for the right to draw up a lease agreement for municipal property assets;
- without organizing auctions.
What types of property, the rental of which is not allowed by a state institution or is limited, the features of the procedure for concluding a lease agreement for municipal property (state property) are explained by FAS notice No. TsA/16309/14.
In this article
Rules, exceptions
The rules for drawing up contractual agreements for the lease of state property are established by Federal Law No. 135 (Article No. 17/1). According to this provision, autonomous municipal organizations and government agencies have the right to lease real estate, which is registered with them as operational management, only based on the results of auctions for the right to sign lease agreements of this type. At the same time, Federal Law No. 135 (Article No. 17/1) provides exceptions that simultaneously apply to AU.
Without auctions, municipal organizations can lease real estate in the following situations:
- the agreement is concluded for a period of less than 30 calendar days over the last 6 calendar months;
- another municipal organization, government agency, non-profit structure (also socially oriented), medical institution, structure engaged in activities in the field of education is applying to sign the lease agreement;
- the transferred real estate subject to taxation is considered to be part of an area of less than 20 m 2, and the rights of 10 percent of the area of this building (premises) belong to the person transferring the relevant real estate;
- a contractual agreement is signed with the individual who has only submitted an application for competitive participation in the auction (if this person meets the established standards), who is the only participant in the auction.
The obligation to sign a lease agreement before an autonomous government organization arises only in the most extreme of the listed cases (an agreement with a single participant in an organized auction or competition).
In other situations, when the rental of property is provided without auctions, the copyright holder is not obliged to sign a contractual agreement, and the applicant does not have the right to put forward demands for such areas.
The organization of an auction for the rental of real estate is permitted in relation to applicants who are beneficiaries. If there is more than one such entity for one immovable state object, then the autonomous state institution has the right to refuse to lease real estate on preferential terms and organizes tenders between them. This, in the opinion of the antimonopoly organization, is not a violation of the interests of applicants in this category. When agreeing to rent out housing of a certain area of the organization, the founder must be guided by the requirements of Federal Law No. 135/2.
Signing contractual agreements for the lease of state property without organizing auctions
The law provides for several exceptions when an autonomous government agency has the right to lease space without auctions.
Tenant - educational, medical institution
What specifically are educational, medical organizations ( budgetary institutions), indicated in the clarifications of the FAS (Chapter 5-6). In this situation, it is necessary to be guided by the provisions of the legislation of industry activities.
According to the Federal Law (Article No. 2/11), medical institutions include legal entities, regardless of the organizational and legal form used, whose business is primarily related to the field of medicine, subject to the appropriate license.
Individual entrepreneurs (IP) whose activities are related to medicine are also considered medical organizations. Short-term rental agreement for real estate, not signed as a result of auctions, on new period
cannot be renewed without organizing a tender. In this case, there is an established rule that limits the period of validity of this agreement for the rental of premises.
Educational (budgetary) institutions are structures whose main activities are related to the field of education, as well as institutions directly involved in education. According to Federal Law No. 273 (), such organizations additionally include individual entrepreneurs engaged in educational activities. Result: an autonomous municipal organization (state institution) has the opportunity to rent the area of a real estate property without participating in auctions legal entities
, individual entrepreneurs whose main activities are related to the field of education or medicine, but with the appropriate licenses.
Short term rental
But according to the Russian State Code (Article No. 610/3), an agreement to lease municipal property (state property) signed for a period exceeding the maximum possible period determined by current legislation is considered to be executed for a deadline.
This means that lease agreements for property assets assigned to a municipality (Russian state) and signed for a short-term period without an auction are not renewed (Federal Law No. 135 (Article No. 17.1/9), Civil Code ()). A similar position is in the FAS Explanations (Chapter 10).
Renting part of the premises
It was previously noted that it is possible to provide lease of part of the area of a building (apartment) without a preliminary auction, but subject to the following requirements:
- the area to be leased should not exceed 20 m2 and 10 percent of the area of the property to which it relates.
- when establishing such a share, it is not necessary to take into account the area of the real estate, the right of use, the ownership of which was transferred before the entry into force of Federal Law No. 135 (Article No. 17.1), on the basis of other exceptions determined by Federal Law No. 135 (Article No. 17.1), based on the results bidding
Tenant - contractor of the institution
It is necessary to separately note this exception to the rules for leasing municipal real estate (state property), which does not apply to autonomous entities (at least to autonomous government agencies that carry out procurement, relying on Federal Law No. 223). In this case, we mean the signing, without holding a tender, of a lease agreement with a person who has entered into a contract with a municipal (state) organization based on the results of an auction (at on a competitive basis), organized in accordance with Federal Law No. 44. At the same time, the rights granted were provided for by documented bidding (competition) in order to fulfill the obligations of this contract (Federal Law No. 135, Article No. 17.1/10/1).
According to the Explanations of the FAS (Chapter 9), civil agreements drawn up within the framework of Federal Law No. 223 are not considered municipal (state) agreements.
In this regard, the provisions of Federal Law No. 135 (Article No. 17.1/1/10) do not apply to such cases. That is, when an autonomous government agency, referring to the norms of Federal Law No. 223, incurred expenses for the purchase of certain works or services, the execution or provision of which requires the mandatory presence of a contractor on the organization’s premises (for example, a theater purchased repair services, sewing stage costumes), provide for rent the corresponding areas are possible exclusively at organized auctions.
Important! In such situations, as described above, the purchase of services and the auction for the right to draw up a lease agreement are two independent processes.
Contract extension
Existing lease agreements for municipal real estate (state property), property assets transferred to a government agency for operational management in accordance with Federal Law No. 135 (Article No. 17.1/9-11) are subject to extension.
- In the event that an individual has fulfilled his own duties according to this agreement properly, a contract is signed for a new period without organizing an auction (unless otherwise provided for in the contractual agreement and the period of validity of such a contract is not limited by the provisions of the current Russian legislation).
- In this situation, two mandatory conditions must be met:
the minimum period for re-registration of the lease agreement must be at least 3 years (a shorter period is possible, but only if the tenant writes a corresponding application);
the amount of payment on the basis of which income for renting premises is recorded is determined based on the results of real estate assessment in accordance with market prices.
If all conditions are met, the landlord, represented by an autonomous government agency, in accordance with Federal Law No. 135 (Article No. 17.1/10) does not have the right to refuse to extend the contractual agreement to the tenant.
- Refusal is possible if an individual has debts at the time of completion of the lease contract or if there is a decision to dispose of the relevant property in other ways. Since it is possible for the tenant not to provide an extension of the lease agreement based on the adoption of a new decision on the procedure for disposing of the property, the landlord must obtain consent from the owner of the relevant property to renew the lease contract.
- Posting the extension of a lease agreement in accordance with Federal Law No. 135 (Article No. 17.1/9) can be carried out an unlimited number of times according to similar grounds. It is important to comply with the requirements with each new renewal of the document.
Sublease
According to Federal Law No. 135 (Article No. 17.1/1/16), it is possible to sublease municipal property (state property) without an auction in the following cases:
- the right to sign a lease agreement is granted to the tenant on the basis of a municipal (state) agreement;
- the government agency entered into a lease contract based on the results of the auction, on the basis of a failed auction.
Subject to these requirements, real estate of any size can be subleased (Federal Law No. 135 does not provide for any restrictions in this regard).
In the opposite situation, the corresponding areas are provided for sublease on the general basis determined by Federal Law No. 135 (Article No. 17.1) with the organization of an auction, without it, but with other exceptions.
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