Is the owner or tenant responsible for fire safety? Who should pay for one property owner or tenant? Who is the landlord?
When renting premises, it is quite natural that the tenant enjoys all the benefits of civilization, including such utilities as electricity, water supply, sewerage, gas supply, heat supply. But in what cases does the tenant have an obligation to pay for such services to the management organization that provides utilities (hereinafter referred to as the Contractor)?! Let's figure it out.
According to the general rule of Article 210 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the owner bears the burden of maintaining the property he owns. Other provisions may be made law or contract.
As established by Article 249 of the Civil Code of the Russian Federation, each participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on common property, as well as in the costs of its maintenance and preservation.
According to Part 1 of Article 39 of the Housing Code of the Russian Federation (hereinafter referred to as the Housing Code of the Russian Federation), owners of premises in an apartment building bear the burden of expenses for maintaining common property in an apartment building.
Thus, it is the owner of non-residential premises located in an apartment building who, by virtue of the direct instructions of the law, is obliged to bear the costs of maintaining the common property.
Clause 2 of Art. 616 of the Civil Code of the Russian Federation provides that the tenant is obliged to bear the costs of maintaining the leased property, unless otherwise provided by law or the lease agreement. However, the legislator does not specify what applies to such expenses for each specific type of property.
Since the provisions of the above article are dispositive, the parties have the right to independently determine who will bear the costs of paying for utilities and other costs of maintaining the property by agreeing on the terms of payment for such services in the lease agreement.
By virtue of paragraph 3 of Article 308 of the Civil Code of the Russian Federation, an obligation can create rights for third parties in relation to one or both of its parties only in cases provided for by law, other regulations or agreement of the parties. At the same time, the current legislation does not contain rules that entail the obligation of the tenant to pay for utility services to the third party providing them (the provider of such services represented by the management company or RSO).
However, in practice, quite often a situation arises when an unscrupulous tenant, for reasons known only to him, does not fulfill the agreed obligation and avoids concluding an agreement with the utility service provider. What should a management company do when in a non-residential premises the tenant actually consumes utilities, and the payment debt only grows in arithmetic progression, and besides, this tenant cannot be found during the day...
In judicial practice, there have been two approaches to resolving this issue.
The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 13112/12 of May 21, 2013, came to the conclusion that since clause. 2, Article 616 of the Civil Code of the Russian Federation regulates exclusively the legal relations between the parties to the lease agreement, and therefore cannot be the basis for the emergence of the tenant’s obligation to pay the costs of maintaining the leased property in favor of third parties. Since the tenant's obligation under this article is established in relation to the landlord, who has the right to demand the performance of the actions specified in it, the corresponding rule may be applicable, in particular, in settlements between the tenant and the landlord in order to reimburse the costs incurred by the latter for paying utility bills.
An additional agreement to the management agreement on payment of utility costs by the tenant participating in its signing, which would confirm the will of all parties to the transaction for the tenant to fulfill this obligation and change the rule established by Article 210 of the Civil Code, was not presented to the court.
Thus, the recovery by the courts of the cost of utilities from the company as a tenant of the premises cannot be recognized as corresponding to the norms of substantive law.
The Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 17462/13 dated March 4, 2014 in case No. A40-128959/12 explained that According to the general rule, Article 210 of the Civil Code of the Russian Federation, the owner bears the burden of maintaining the property he owns. Otherwise may be provided by law or contract. According to the Supreme Arbitration Court of the Russian Federation, the law does not directly impose such a burden on the tenant. The specified obligation of the tenant also cannot flow from the lease agreement, since the agreement regulates the relationship between the owner and the tenant. Based on this, the Supreme Arbitration Court of the Russian Federation came to the conclusion that, by not paying for the utility services provided, the owner unjustly enriched himself at the expense of the resource supply organization (clause 1 of Article 1107 of the Civil Code of the Russian Federation) and is obliged to reimburse the cost of the services actually provided.
Also, the Supreme Arbitration Court of the Russian Federation noted that, by virtue of clause 2 of Art. 616 of the Civil Code of the Russian Federation, as a general rule, the costs of maintaining the property, including the costs of utilities, are borne by the tenant. However, the obligation does not create obligations for persons not participating in it as parties (clause 3 of Article 308 of the Civil Code of the Russian Federation).
It seems that in this situation, responsibility for failure to fulfill the obligation to maintain the property arises from the tenant to the lessor - the owner of the property, and not to the resource supplying organization. Thus, if the tenant did not enter into an agreement with this organization on his own behalf, then he is not obliged to pay this organization for the services provided, despite the fact that he was their consumer.
A similar conclusion was subsequently made by the Supreme Court of the Russian Federation in Review of Judicial Practice No. 2 (2015) (approved by the Presidium of the Supreme Court of the Russian Federation on June 26, 2015).
In the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2015), a point of view was expressed regarding the impossibility of imposing the payment of utility costs on the tenant in the absence of an agreement between the utility provider and the tenant:
"… By virtue of the second paragraph of clause 3 of Art. 308 of the Civil Code of the Russian Federation, an obligation can create rights for third parties in relation to one or both of its parties only in cases provided for by law, other legal acts or agreement of the parties. The Civil Code of the Russian Federation and other laws do not contain rules on the emergence, on the basis of a lease agreement of non-residential premises, of an obligation on the part of the tenant to pay for utility services to the third party providing them (provider of utility services, resource supplying organization).
The tenant’s obligation to maintain the property in good condition, carry out routine repairs at his own expense and bear the costs of maintaining the property (Clause 2 of Article 616 of the Civil Code of the Russian Federation) is established in relations with the lessor, and not with the utility service provider or resource supplying organization that is not a party to the agreement rent.
The utility service provider (resource supply organization), in the absence of an agreement concluded with it, does not have the opportunity to exercise control over which person actually uses the non-residential premises, including on the basis of a lease agreement.
Therefore, in the absence of an agreement between the tenant of non-residential premises and the provider of utilities (resource supply organization), concluded in accordance with current legislation and the terms of the lease agreement, the obligation to pay for such services lies with the owner (lessor) of the non-residential premises.”
Thus, having provided in the lease agreement a condition on the tenant’s obligation to independently conclude an agreement with the utility service provider and subject to the conclusion of the specified agreement with the utility service provider, the tenant has the right to pay for consumed utilities directly to the provider.
- Before the publication of the above-mentioned Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation, the courts took a completely opposite position, considering that payment for utilities consumed by a tenant of non-residential premises in an apartment building can be recovered from a tenant who has not concluded agreements with the provider of utility services in violation of the lease agreement, which a condition is provided for the tenant to pay for utilities or the tenant's obligation to enter into contracts with their suppliers. (Resolution of the Federal Antimonopoly Service of the Ural District dated October 10, 2011 No. F09-5983/11 in case No. A50-25363/10, Resolution of the Federal Antimonopoly Service of the Far Eastern District dated August 1, 2011 N F03 -3273/2011 in case No. A51-15108/2010).
Currently, the courts are guided by the fact that the content of the lease agreement stipulating the tenant’s obligation to enter into an agreement with the utility provider for the supply of utility resources does not in itself impose an obligation on the tenant to automatically pay for these services. If, of course, such agreements are concluded by him, this will relieve the owner of non-residential premises from the obligation to bear the costs of paying for utilities.
Considering case No. A03-16138/2015, the Arbitration Court of the West Siberian District, in Resolution No. F04-3452/2016 dated 09/02/2016, refused to satisfy the demands of the RSO to collect payment from the owner for consumed electrical energy due to the fact that the obligation to pay for the resource lies with a public organization that, being a tenant, entered into an independent energy supply agreement with RSO and actually consumed electricity.
« At the same time, rejecting the arguments of the Plaintiff (resource supplying organization) regarding the inconsistency of the appealed judicial acts with the legal position expressed in Review No. 2 (2015), .... is untenable, since the position given in them about the obligation of the owner, and not the tenant, to pay for utilities applies to situations other than in the present case, namely to cases when between the tenant and the owner of the premises there is only a concluded lease agreement with or without the condition of payment by the tenant of resources to energy supply organizations, but at the same time from the resource supply organization (in the direct form of management of an apartment building) or The organization managing the apartment building and the tenant do not have a resource supply agreement (provision of utilities), under which the tenant would assume an obligation to these organizations to pay for the resources received.
The explanations set out in Review No. 2 (2015) are given taking into account the conclusion of the Presidium of the Supreme Court of the Russian Federation that the provider of public services (resource supply organization), in the absence of an agreement concluded between him and the tenant, does not have the opportunity to exercise control over which person actually uses non-residential premises, including on the basis of a lease agreement.
With the conclusion of an independent energy supply agreement No. 3472 with a third party, the plaintiff is aware of the actual user of the non-residential premises, in relation to the energy consumption of which, as a subscriber of the plaintiff, the latter exercises appropriate control.”
Sincerely, Evgenia Semenova.
The division of costs between the owner and the tenant, as well as the rules for concluding a rental agreement for buildings used for residential purposes, are regulated by Law No. 392/78 and the Civil Code.
To better understand which expenses the property owner must pay and which the tenant must pay, let us turn to the current legislation.
Payment for contract registration
The costs of registering a lease agreement are divided equally between both parties. This means that the owner pays his due 50% of the cost of registering the contract, and the tenant pays the remaining 50%.
Condominium expenses and utility bills
The obligation to pay condominium expenses, such as the bill for electricity consumed by lighting fixtures on the stairs of an apartment building or an elevator, lighting in public areas, their heating, etc., is paid entirely by the person who uses them, i.e. tenant.
Of course, bills for the supply of basic services (water, electricity, gas and telephone) are also fully paid by those who rent the property.
If bills arrive at the owner’s place of residence, and not to the tenant, and the owner makes the payment himself, having previously notified the amount to the tenant, the latter has the right to demand the presentation of bills as proof of the amount requested and payment made.
Payment should be made on time, since in case of non-payment, if the outstanding amount exceeds the amount of the deposit paid, the landlord has the right to terminate the contract with the tenant and proceed to evict him.
Sometimes, however, some owners rent out the building for a fee that also includes condominium expenses. This fact is agreed upon with the tenant and is always specified in the lease agreement. Even in this case, however, the law regulates the maximum amount of payments: if the tenant uses the services in excessive quantities, the owner can also terminate the rental contract.
To avoid confusion, in 2014, consumer protection associations compiled a detailed list of condominium expense items found in most rental contracts, specifying which ones should be paid by the tenant and which by the property owner, and when the financial burden affects both parties. The document was registered with the Tax Inspectorate under number 8455/3 dated April 30, 2014.
Property maintenance costs
The Civil Code provides that the costs of maintenance and/or repair of real estate are paid by either the owner or the tenant, depending on the situation.
For example, if the boiler in a house breaks or the roof is damaged, the home owner must replace them. Therefore, it can be said that the owner must take responsibility for all repairs necessary due to wear and tear or accident, in general, unless the damage was caused by the fault of the tenant.
Rent is when, by agreement of both parties and upon payment, someone’s (lessor) property - a building, premises, office, machinery, equipment - temporarily passes into the possession and personal use of another person or group of persons (tenants). The tenant and the landlord are parties to the agreement, which determines all the rights and obligations, how much the rent will be, when it should be paid, and for how long the premises are rented. These are individuals or legal entities. But which one is which and what is the difference?
Who is the landlord
One party to the lease agreement is the lessor. This is a person who provides premises/equipment/land, which he himself owns or manages, for rent to another person. Both government or commercial organizations, and private individuals over 18 years of age can act as lessors.
The landlord's interest lies in the rental income received on time, since the rent that the tenant must pay is one of the sources of income for him. However, he risks that:
- the leased property will pass into the possession of the tenant without the permission of the landlord;
- the leased property will become the property of the tenant;
- the rented land or premises will be deteriorated or damaged during the lease;
- will receive a fine due to the fact that the tenant damaged a neighboring plot of land that belongs to another owner;
- buildings on the leased land will be damaged or destroyed during the lease;
- he will not be able to regain the leased property after the lease expires.
Therefore, before renting out any property, the landlord must study the tenant. Otherwise, he will expose himself to risks.
Lessor's responsibilities:
- provide suitable residential premises for rent;
- take care of the provision of utilities (rent and subscription fees are paid by the landlord, and electricity and long-distance telephone calls are paid by the tenant).
Landlord's rights
The lessor has the right:
- to conclude a lease agreement, renew it (when the established period expires) and refuse to conclude it;
- agree if the tenant asks other people to move in;
- to offer the tenant the amount of rent (it cannot be changed without the consent of the other party);
- to terminate the lease agreement;
- demand that the tenant comply with all the rules for using the residential premises, make payments on time, and vacate the premises when the lease expires;
- check the condition of the premises at any time (must be agreed with the tenant).
Who is a tenant
The other party to the lease agreement is the tenant. This is an individual or legal entity who takes responsibility for the leased property for a specific period (specified in the contract). After signing a lease agreement with the lessor - the owner of the leased property - the tenant receives the right to own and use the land/premises/equipment for the term of the lease. It turns out that, in essence, the tenant is a tenant, and the lease agreement is a property lease.
In case of renting premises, tenants are considered to be legal entities. In the case of renting residential premises by an individual, the concept of “tenant” and not “tenant” is used.
Who can be a tenant? This can be any person who pays rent for the use of the premises/property.
According to the legal formulation of the word “tenant”, this is a party to the lease agreement who has taken the leased property on the condition that he will use it economically and urgently, and at the end of the period the property will be returned to the owner. The following may act as tenants:
- government/cooperative/social organization;
- citizen over 18 years of age;
- group of citizens.
It happens that tenant organizations are formed, acting as legal entities and enjoying their rights. Their creation is voluntary.
What other types of tenants are there?
With all this, the tenant has obligations and rights. They are regulated by the Civil and Housing Codes and must be specified in the lease agreement.
Tenant's responsibilities
When a lease is entered into between a landlord and a tenant, both parties must know their responsibilities. The tenant must:
- Pay the agreed rental amount exactly on time, without delays. Otherwise, you will have to pay a fine for late payment (this is also specified in the lease agreement). If you are late for more than two rental payments, the lease may be terminated by the landlord (he has the right to do so). And if the tenant does not pay all debts, the landlord can sue him.
- Maintain the property received into ownership for the duration of the lease in proper condition. The tenant is responsible for the safety of the premises/equipment, and if, through his fault, during use the object was damaged, beaten (in the case of equipment), or neglected (in the case of premises), the tenant will need to compensate the landlord for the damage caused. If the object was completely destroyed or broken (equipment), the tenant will have to pay the entire market value of the object.
- Upon expiration of the lease term, return the rental property to the lessor-owner. If this does not happen, in the best case, the tenant will simply have to pay a fine, in the worst, the matter will go to court, because the landlord in this case has the right to go there.
Tenant rights
In addition to his responsibilities, the tenant must be aware of what rights he has:
- use the premises/property during the rental period;
- obtain ownership of an object that is suitable for use and fully complies with the characteristics specified in the lease agreement.
- move your spouse and children under 18 years of age into the rented premises (other persons can move in only by agreement with the landlord);
- if the landlord himself terminates the lease agreement (without the consent of the tenant and provided that he did not violate anything), receive full compensation.
Video about the real estate lease agreement
So, the lessor leases the property, and the tenant uses this property for a certain period of time on the terms of compliance with the rules and timely payment.
