Priority right to conclude a lease agreement. Rental with extended period

The tenant, who has properly fulfilled his obligations under the agreement, has a priority right over third parties to conclude a lease agreement for new term(Clause 1, Article 621 of the Civil Code of the Russian Federation), unless otherwise provided by the lease agreement.

This right applies only to the rental of the same object.

The tenant can exercise the pre-emptive right only if the following conditions are simultaneously met:

- if he notified the lessor of his desire to exercise the preemptive right to conclude an agreement for a new term (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 30, 2009 in case No. A79-5631/2008 (Determination of the Supreme Arbitration Court of the Russian Federation dated June 24, 2009 N VAS-1683/09 it was refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the order of supervision));

- if he fulfilled his obligations under the contract in good faith. IN otherwise the tenant loses the pre-emptive right to conclude an agreement for a new term, while the materiality of the violation does not affect the resolution of the issue of his good faith.

Unfair performance of obligations under the contract, in which the tenant is deprived of the pre-emptive right to conclude the contract, is, in particular, violation of the deadline for payment of rent;

- if the contract has not been renewed for an indefinite period. Otherwise, the court may find that the tenant loses the preemptive right to conclude an agreement for a new term. At the same time, there is opposite judicial practice, according to which the tenant is not deprived of the pre-emptive right in the event of renewal of the lease agreement for an indefinite period;

- if there is no agreement between the parties to terminate the contract after the tenant sends an application to the landlord to conclude the contract for a new term.

The presence of a pre-emptive right does not mean that the tenant can demand that the landlord enter into a new agreement on the same terms. IN in this case the lessor is not bound by the terms of the previous agreement. He has the right to offer the tenant and third parties other conditions for leasing the property or refuse to lease the property. Pre-emptive right simply means the right of the tenant to enter into a lease agreement with the landlord in respect of the same property as a priority.

At the same time, the consequences of a violation by the landlord of the tenant’s pre-emptive right can be applied by the court only if an agreement has been concluded between the landlord and a third party. However, in judicial practice there is another position, according to which, when filing a claim for the protection of a preemptive right, it is enough for a tenant to prove the landlord’s intention to enter into a lease agreement for the same property with a third party.

The parties may agree on a condition limiting the tenant's preemptive right. This allows the lessor to easily enter into an agreement with third parties.

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An example of a condition statement:

“The tenant does not have a pre-emptive right to conclude a lease agreement for a new term.”

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It must be taken into account that the lease of a state or municipal property is associated with the peculiarities of the tenant’s exercise of the pre-emptive right to conclude an agreement for a new term.

If the condition for excluding the tenant’s pre-emptive right to conclude an agreement for a new term is not agreed upon

In this case, the tenant will be able to take advantage of the pre-emptive right (clause 1 of Article 621 of the Civil Code of the Russian Federation). If the lessor refuses to enter into an agreement for a new term and enters into an agreement with a third party within a year from the date of expiration of the lease agreement, the lessee, in accordance with clause 1 of Art. 621 of the Civil Code of the Russian Federation, will have the right to demand the transfer of rights and obligations under an agreement concluded with a third party and compensation for losses or only compensation for losses.

Art. 621 Civil Code of the Russian Federation.

1. Unless otherwise provided by law or the lease agreement, a tenant who has properly fulfilled his duties, upon expiration of the agreement, has, other things being equal, a preferential right over other persons to conclude a lease agreement for a new term. The tenant is obliged to notify the lessor in writing of his desire to conclude such an agreement within the period specified in the lease agreement, and if such a period is not specified in the agreement, reasonable time until the end of the contract.

When concluding a lease agreement for a new term, the terms of the agreement may be changed by agreement of the parties.

If the lessor refuses to enter into an agreement with the lessee for a new term, but within a year from the date of expiration of the agreement with him has concluded a lease agreement with another person, the lessee has the right, at his own discretion, 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 only compensation for such losses.

2. If the tenant continues to use the property after the expiration of the contract in the absence of objections from the lessor, the contract is considered renewed on the same terms for an indefinite period (Article 610).

Comment on the article

1. The tenant has the right to conclude a lease agreement for a new term, subject to the following conditions being simultaneously met:

a) the lessor intends to continue to rent out the property. If the lessor wishes to leave the property in his possession and use or transfer the property to a third party not for rent, but on another basis (on one or another property law, under contract free use or trust management, etc.), then the tenant’s right to demand the conclusion of a lease agreement for a new term disappears (see paragraph 35 of the Review of Rental Practices);

b) the tenant properly fulfilled his obligations under the old agreement. Violation by the tenant of his obligations under the old agreement (even a minor one!) deprives him of the right to demand the conclusion of an agreement for a new term. Of course, the fact of a violation must be properly recorded. True, the law does not require that it be confirmed by a court. There is also enough evidence that can be used in court (late payment of rent, demands for termination of the contract, warnings and claims of the landlord, etc.);

c) the tenant notified the landlord of his desire to enter into a lease agreement for a new term. Notification must be made in writing within the period specified in the lease agreement, and if such a period is not specified in the agreement, within a reasonable period before the end of the agreement (Article 314 of the Civil Code). When determining a reasonable period, the rule of paragraph 2 of Art. 610 of the Civil Code, because the period of notice of cancellation of a contract concluded for an indefinite period, under any circumstances, is sufficient to warn about the extension of the contract;

d) the tenant agrees to enter into new agreement lease on the terms proposed by the lessor. The last condition is expressed in paragraph 1 of Art. 621 of the Civil Code not directly, but indirectly. The tenant has “a preferential right over other persons to conclude a lease agreement for a new term,” but “all other things being equal.” At first glance, these formulations contradict each other, but upon closer examination, the contradictions disappear.

The preferential nature of the right under discussion means that if there are several willing to enter into an agreement on the same terms, then the previous tenant has an advantage over them (all other things being equal). But if someone offers the lessor more favorable conditions, and the previous counterparty does not agree to them, then his right to demand the conclusion of a lease agreement for a new term disappears (since there are no “other equal conditions” here). The previous tenant has no right to force the lessor to enter into a new agreement on the same or new terms.

2. The Civil Code does not establish any special procedure for sending an offer and its acceptance when concluding an agreement for a new term. Therefore, the landlord, having received the tenant’s notice of his desire to enter into a lease agreement for a new term, must inform him whether the property will be leased and on what terms. If the previous tenant is not satisfied with these conditions, his pre-emptive right at this moment does not yet disappear. After all, the landlord can soften the terms of the new lease agreement during negotiations with potential tenants. The previous tenant, who may agree to them, should be notified of the mitigation of the conditions. Thus, the pre-emptive right of the previous tenant exists until a lease agreement is concluded with the new tenant on terms that did not suit the previous tenant.

Negotiations with potential tenants can begin before the expiration of the old lease agreement, and the preemptive right, by virtue of the express instructions of the law, arises only after the expiration of this period. However, the landlord cannot enter into an agreement with the new tenant as long as the old agreement lasts. Upon its termination, the former tenant's preemptive right to conclude a new contract arises. Consequently, this right has a non-contractual nature, existing within the framework of a relative legal relationship “by force of law”.

The previous tenant, notifying the lessor of his desire to enter into a lease agreement for a new term, does not automatically agree to conclude the agreement on any terms proposed by the lessor. He agrees to conclude a lease agreement only on the same terms. To change them, a separate agreement must be reached. This is precisely the meaning of the rule in paragraph. 2 p. 1 art. 621 of the Civil Code, according to which, when concluding a lease agreement for a new term, the terms of the agreement can be changed by agreement of the parties. The said rule should not be interpreted to mean that the landlord must obtain the tenant's consent to any change in the terms of the new contract. On the contrary, if the landlord wants to enter into a lease for a new term, he must accept the conditions put forward by the landlord.

3. A lease agreement concluded for a new term is a new lease agreement, even if its terms are the same as the old one. Therefore, upon its conclusion, all formalities necessary for concluding a lease agreement must be completed, as if there was no previous agreement. In particular, the transfer of the thing to the tenant must again be formalized, a transfer deed must be drawn up, etc. When concluding a lease agreement for a new term, the parties are not bound by the terms of the old lease agreement (see paragraphs 31 and 32 of the Review of Rental Practices).

If the lessor violated the tenant’s pre-emptive right to conclude a lease agreement for a new term, then the tenant has the right, at his choice, 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 only compensation for such losses. The transfer of rights and obligations should be understood as the forced entry of the former tenant into a new lease agreement, which is carried out by court decision. In fact, the tenant only chooses whether to transfer the rights and obligations of the tenant under the new agreement or not. He has the right to compensation for losses in both cases.

Civil Code rules about priority right the tenant to conclude a lease agreement for a new term is dispositive. They can be changed by law or contract. For example, in relation to a rental agreement, the effect of Art. 621, paragraph 2 of Art. 627 Civil Code. As for a specific lease agreement, it can both expand and narrow said right tenant, or even cancel it altogether.

4. In practice, situations often arise when the lease agreement expires, but the tenant continues to own and (or) use the leased property. If we recognize that during this period the contractual relationship between the parties is terminated, great difficulties arise in determining the conditions under which the former tenant uses the property, including the amount of payment for such use. Therefore, the Civil Code proceeds from the renewal of the lease agreement between the parties on the same terms, but for an indefinite period (Article 610 of the Civil Code).

It should be noted that we are not talking about concluding a new agreement, but about renewing the old agreement, but for an indefinite period. Accordingly, there is no need to complete all the formalities required when concluding an agreement (see commentary to the previous paragraph).

To renew the contract, it is necessary that the tenant continues to actually use the leased property after the expiration of the contract in the absence of objections from the lessor. Such objections may include a notification to the lessor about the reluctance to continue the contractual relationship, a demand for the return of the leased property, a statement about the reluctance to enter into a lease agreement for a new term, etc. The presence of objections from the lessor excludes the renewal of the agreement. The period for notifying the tenant that the landlord has objections to the continuation of the contract must be provided for in the contract. Otherwise, it is established in accordance with Art. 314 Civil Code.

If the lease agreement has been renewed for an indefinite period, in full The rules of Art. 610 of the Civil Code, including the warning period for refusal of such an agreement.

When concluding a lease agreement for a new term, the terms of the agreement may be changed by agreement of the parties.

Commentary to Art. 621 Civil Code of the Russian Federation

1. The rule of paragraph 1 of the commented article on the tenant’s pre-emptive right to conclude a lease agreement for a new term is dispositive in nature: it can be excluded by the lease agreement. In some cases, the law deviates from it (for example, paragraph 2 of Article 627, Articles 632 and 642 of the Civil Code). Hence, this right the lessee is of a limited nature in comparison with, which cannot be eliminated by the contract.

2. The tenant’s preemptive right to conclude an agreement is the right to someone else’s thing, namely the thing former subject an expired lease that the tenant wishes to re-rent. Therefore, if this thing actually and (or) legally ceased to exist (for example, due to the division by the owner of what belonged to him land plot for several new ones, abolition in in the prescribed manner retail spaces in the retail market), then the tenant’s pre-emptive right to conclude a new lease agreement is also terminated.

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Resolutions of the Federal Antimonopoly Service of the North-Western District dated February 22, 2007 in case No. A05-8019/2006-3 and dated April 30, 2008 in case No. A56-5285/2007.

3. In accordance with paragraph 1 of the commented article, for the tenant to have a preemptive right to conclude a lease agreement for a new term, three conditions must be present: 1) expiration of the agreement; 2) proper execution the lessee's obligations under a previously valid agreement; 3) the tenant’s agreement with the terms that the landlord wishes to offer to another person as a tenant.

4. Late payment rental payments and violation by the tenant of other terms of the agreement indicate his bad faith and deprive him of the preemptive right to conclude a lease agreement for a new term. At the same time, the materiality or insignificance of violations of the terms of the contract does not affect the resolution of the issue of its bad faith, which is confirmed by the materials judicial practice.

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Resolutions of the FAS Moscow District dated March 24, 2006 in case No. KG-A40/2224-06, FAS Northwestern District dated November 14, 2007 in case No. A56-8467/2006.

5. The tenant’s preemptive right to conclude a lease agreement for a new term may occur if he agrees with all the conditions proposed by the lessor to another person, including the condition on the amount and procedure for making rental payments, and on guarantees of safety of the leased property. This is precisely what follows from the provision of the norm of paragraph 1 of Art. 621 of the Civil Code of the Russian Federation - “all other things being equal”. As a result, the conclusion of a lease agreement for a new term as a result of the tenant’s exercise of its pre-emptive right is essentially the conclusion of a new agreement. Therefore, the parties are considered not bound by the terms of the previously valid agreement.

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See: paragraph 32 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66.

6. A preliminary prerequisite for the tenant to exercise his pre-emptive right to conclude a lease agreement for a new term is the mandatory written notification of the lessor by the tenant about the desire to conclude a new agreement. The period within which the tenant is obliged to notify the lessor of his desire to enter into a new contract is indicated in the contract, otherwise such notification must be made within a reasonable period before the end of the contract. Rule clause 2 art. 314 of the Civil Code of the Russian Federation on a reasonable time for fulfilling the obligation is not applicable in this case, since sending a notice of the desire to enter into a new lease agreement is a right, not an obligation, of the tenant. Therefore, the duration of the reasonable period referred to in the commented article must be established in each specific case, taking into account the conditions and essence of the obligation, the relations of the parties and the rules of business ethics. But in any case, the tenant must send the specified notice no later than the expiration of the lease term.

If the procedure for sending documents and messages is regulated by the lease agreement, then written notification of the desire to conclude a new agreement must be made in accordance with this procedure. If the agreement does not contain special provisions in this regard, then the interests of the tenant are best served by sending the notice in a valuable letter with a list of the contents and a postal receipt of delivery.

7. If the lessor refuses to renew the lease for a new term to the tenant, but at the same time, within a year from the date of expiration of the contract, enters into a lease agreement with another person, then he is considered a violator of the tenant’s pre-emptive right to conclude a lease for a new term. In this case, the tenant, as a victim, has the right, at his choice, to demand in court: 1) 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; 2) only compensation for such losses.

8. The right of the tenant to demand in court the transfer of rights and obligations under the concluded agreement is not equivalent to the right to force the lessor to enter into an agreement for a new term, since the last measure of protecting the interests of the tenant should be applied in other cases, for example, when the lessor evades concluding a lease agreement on the basis of a preliminary lease agreement (Articles 429, 445 of the Civil Code).

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See, for example: Determination of the Supreme Arbitration Court of the Russian Federation dated November 24, 2009 No. VAS-14788/09 in case No. A57-7779/2008-132; Resolutions of the FAS Far Eastern District dated November 23, 2009 N F03-6336/2009 and FAS Moscow District dated November 27, 2009 N KG-A40/12492-09.

9. The tenant’s preemptive right to conclude a lease agreement for a new term does not arise in the case where there is only the lessor’s intention to lease the property to a third party, but the agreement itself has not yet been concluded between them. The fact is that the transfer of rights and obligations is possible only under an already concluded lease agreement, and the norm of paragraph 1 of the commented article does not provide for other ways to protect the violated preemptive right of the tenant.

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At the same time, judicial practice is replete with cases in which judges discover such a preemptive right even if there is only the intention of the lessor to lease the property to a third party. See, for example: Rulings of the Supreme Arbitration Court of the Russian Federation of August 7, 2009 No. VAS-9974/09 in case No. A73-3713/2008-4 and of December 25, 2009 No. VAS-17393/09 in case No. A40-89440/ 08-89-746, as well as Resolutions of the Federal Antimonopoly Service of the Far Eastern District dated June 23, 2009 N F03-2498/2009, dated June 29, 2009 N F03-2360/2009.

10. The norm of paragraph 2 of the commented article is imperative. Therefore, the terms of the lease agreement, according to which a ban is introduced on the renewal of the lease agreement after its expiration in the absence of objections from the lessor when the tenant actually continues to use the leased property, should be considered void.

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Judicial practice on this issue is very contradictory. Compare, on the one hand, Resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 27, 2009 N A79-3187/2008, FAS Ural district dated January 13, 2010 N Ф09-1996/09-С6 and, on the other hand, Resolution of the Federal Antimonopoly Service of the Ural District dated April 3, 2008 N Ф09-1424/08-С6.

11. The effect of the imperative order of paragraph 2 of Art. 622 of the Civil Code of the Russian Federation cannot be extended to cases when the legislator introduces special mandatory norms about rental deadlines individual species property. So, according to paragraph 7 of Art. 22 of the Land Code of the Russian Federation, a land plot can be leased for state and municipal needs or for carrying out survey work for a period of no more than one year. It is obvious that in the actual use of such plots after a year has passed from the date of their transfer to the lease, even in the absence of objections from the lessor, there is no need to talk about the renewal of the lease agreement.

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Modern judicial practice holds similar positions. See, for example: Resolutions of the Federal Antimonopoly Service of the North-Western District dated February 12, 2008 in case No. A56-2308/2007, dated March 11, 2008 in case No. A56-3642/2007.

12. Only the presence or absence of the lessor’s objections to the continued use of the leased property by the tenant after the expiration of the contract are legally significant for deciding the issue of renewal or non-renewal of the contract on the same terms for an indefinite period. Therefore, the landlord sending a notice to the tenant containing a refusal to renew contractual relations on the same terms, and receipt of such notice by the tenant means termination of the contractual relationship. And vice versa, if the tenant notified the lessor of the cancellation of the agreement, and at the same time continues to use the leased property, and the lessor does not object to such use, then this indicates the renewal of the agreement on the same terms for an indefinite period.

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This position also dominates in judicial practice. See, for example: Resolutions of the FAS Moscow District dated August 4, 2006 in case No. KG-A41/7087-06-P, dated December 14, 2009 in case No. KG-A41/13060-09, FAS Northwestern District dated January 15, 2010 in case No. A56-47994/2008″. However, in fairness it should be said that there are also decisions based on the opposite point of view. See, for example, Resolution of the Federal Antimonopoly Service of the Far Eastern District dated December 25, 2009 in case No. F03-7359/2009.

A similar approach can be seen in the materials of judicial practice. See, for example: Resolution of the Federal Antimonopoly Service of the North-Western District dated April 6, 2007 in case No. A56-26630/2006.

In accordance with paragraph 1 of Art. 621 of the Civil Code of the Russian Federation, unless otherwise provided by law or the lease agreement, a tenant who has properly performed his duties, upon expiration of the contract, has, other things being equal, a preferential right over other persons to conclude a lease agreement for a new term. The tenant is obliged to notify the lessor in writing of his desire to conclude such 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 end of the agreement.

When concluding a lease agreement for a new term, the terms of the agreement may be changed by agreement of the parties.

Attention! The tenant under an agreement that was terminated within a year before concluding a lease agreement with another person or holding a tender for concluding such an agreement also has a preemptive right, subject to written notification of the lessor of the desire to enter into a new lease agreement (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 N 73).

For the tenant to exercise the pre-emptive right, it must be established following conditions:

proper performance by the tenant of his obligations under the contract;
availability of written notice to the lessor of the intention to enter into a new lease agreement within a reasonable time before the end of the lease agreement;
the tenant’s consent to conclude a lease agreement for a new term on the terms on which the lessor intended to conclude a lease agreement with another tenant;
Identity of lease conditions (the presence of equal conditions for the lease of property).

A claim for the transfer of rights and obligations under a concluded lease agreement may be satisfied if the existence of conditions that allow the exercise of the pre-emptive right to conclude an agreement is proven; the landlord refused to sign the tenant into a contract for a new term; the lessor entered into a lease agreement with another person within a one-year period after termination of the agreement with the previous tenant.

It is necessary to pay attention to the following: the preemptive right may be excluded by the lease agreement itself or limited in the lease agreement by the need for the tenant to comply with a number of conditions (for example, the tenant’s obligation to send a statement of intention to exercise his preemptive right for a long period before the end of the contract (4 months), may the obligation of the tenant to pay remuneration for the exercise of the pre-emptive right, etc.) will be provided.

Attention! The preemptive right does not apply to the rental agreement (Civil Code of the Russian Federation), rental agreement vehicle with and without crew (and the Civil Code of the Russian Federation).

For a preemptive right to arise, the lease agreement that provides for it must be valid and concluded. For example, if a long-term lease agreement is not registered (there is no state registration), then the tenant does not have a preemptive right.

As already indicated, in order to exercise the pre-emptive right, it is necessary that the tenant properly fulfills its obligations throughout the entire term of the previous lease agreement, unless otherwise expressly provided for in the lease agreement (that is, it is a bona fide tenant). If the tenant violates his obligations during the term of the lease agreement, he loses the right of priority. In this case, the landlord is obliged to prove in court the violations committed by the tenant (for example, late payment of rental payments, failure to current repairs, which can be confirmed by judicial acts, demands for payment of debt, reconciliation acts, correspondence, etc.).

Note! The tenant has a preemptive right only if the landlord leases the property to a third party, over whom the tenant has priority (after all, the landlord may not want to enter into a new contract after the expiration of the contract, and this is his right).

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On the pre-emptive right in a lease agreement (Druzhinin A.)

Article posted date: 11/11/2015

Conscientious tenants have the right to count on the conclusion of a lease agreement with them for a new term, which allows them priority over other participants civil turnover receive property for rent, the benefits of which they have already appreciated. However, to successfully exercise their preemptive rights, they must take into account a number of important aspects.

All else being equal...

Unless otherwise provided by law or the lease agreement, a tenant who has properly fulfilled his duties, upon expiration of the agreement, has, other things being equal, a preferential right over other persons to conclude a lease agreement for a new term. The tenant is obliged to notify the lessor in writing of his desire to conclude such 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 end of the agreement (paragraph 1, part 1, article 621 of the Civil Code of the Russian Federation).

Not only the tenant under the current lease agreement has a preemptive right, but also the tenant under the agreement that was terminated within a year before concluding a lease agreement with another person or holding a tender for concluding such an agreement, subject to written notification of the lessor of the desire to enter into a new lease agreement ( clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 N 73).

A preemptive right does not arise under an agreement, within the framework of which, although the opportunity to use the property is provided, but at the same time, legal nature differs from a lease agreement (for example, an agreement for the operation of an advertising space, which grants the customer the right to use part of the land plot, but is not a lease agreement (Resolution of the Federal Antimonopoly Service dated May 22, 2013 in case No. A55-24271/2012)).

The preemptive right may be prohibited by law: in particular, it does not apply to a rental agreement (Part 2 of Article 627 of the Civil Code of the Russian Federation), a rental agreement for a vehicle with or without a crew (Articles 631 and 642 of the Civil Code of the Russian Federation).

In addition, the preemptive right may be excluded by the lease agreement itself or another agreement of the parties (Part 2 of Article 434 of the Civil Code of the Russian Federation) or may be evident from the implementation of implied actions by the parties - the tenant sending an application for refusal to exercise the preemptive right and the lessor leasing the property to a third party .

The pre-emptive right may be limited in the lease agreement by the need for the tenant to comply with a number of conditions. In particular, the lease agreement may establish the tenant’s obligation to send a statement of intention to exercise its pre-emptive right for a long period before the end of the agreement (3-6 months), it may stipulate the deadline for the parties to agree on a new lease agreement, as well as the tenant’s obligation to pay a fee for implementation of the preemptive right, which does not contradict the provisions of Art. 421 and part 4 of Art. 454 of the Civil Code of the Russian Federation (Resolution of the Federal Antimonopoly Service of the Moscow Region dated December 11, 2013 in case No. A40-45014/13-127-444).

The parties to the lease agreement may establish that the exercise of the preemptive right does not require the tenant to submit any statements to the landlord in order to simplify the process of its implementation. In this case, the landlord will have to give notice to the tenant to find out whether he intends to exercise his priority right or not. As a rule, such conditions are put forward by companies that rent large areas to house their retail chains, branches and other retail facilities.

Since landlords are interested in them, they agree to many conditions, not only the preemptive right to conclude a new lease agreement, but also the preemptive right in the event of the sale of the leased property, to refuse to place medical and educational organizations, which create obstacles to the activities of tenants if they are associated with the sale alcoholic products, and etc.

For a preemptive right to arise, the lease agreement that provides for it must be valid and concluded. Yes, agreement long term rental in the absence of its registration, it still binds the parties with a rental obligation, but in this case the tenant does not have a preemptive right.

This is due to the fact that since the agreement has not been registered, it does not give rise to those consequences that may have an impact on the rights and interests of third parties who were not aware of the fact of concluding a lease agreement and the content of its terms (clause 3 of the Review of Judicial Practice on disputes related to the recognition of contracts as not concluded, approved. information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 N 165).

The preemptive right to conclude a new lease agreement is terminated if the tenant refuses to implement it, as well as in the event of early refusal of the agreement by one of the parties or his early termination by agreement of the parties. This is due to the fact that upon termination of the contract, all obligations of the parties, including those related to the pre-emptive right, are terminated by virtue of Part 2 of Art. 453 of the Civil Code of the Russian Federation (Resolution of the Federal Antimonopoly Service of the Eastern Military District dated March 13, 2006 in case No. A28-11166/2005-187/20). The law does not provide for the preservation of the preemptive right upon termination of the contract by which it is provided, unless the parties agree otherwise (Resolution of the Federal Antimonopoly Service ZSO dated June 26, 2014 in case No. A75-6230/2013).

It's better to be conscientious

The preemptive right arises only for bona fide tenants who have properly fulfilled their obligations throughout the entire term of the previous lease agreement, unless otherwise expressly provided for in the lease agreement. If the tenant violates his obligations during the term of the lease agreement, he loses the right of priority.

Violations of obligations under the lease agreement by the tenant can be very different: delay in making rent and other payments, failure to fulfill the obligation to carry out routine repairs, deterioration of the condition of the premises, infringement of the rights of other tenants and even failure to carry out commercial activities in the leased premises.

The lessor's interest lies not only in receiving payment for the transferred property: if the leased premises are located in mall, the landlord, as the owner of the entire building, is interested in the functioning of all facilities to increase the attendance of the center, therefore, for the tenant’s refusal to carry out the planned activities, he can deprive him of the pre-emptive right or refuse the agreement, demand payment of a penalty, providing for such consequences in the lease agreement.

The landlord can confirm violations committed by the tenant with various evidence: demands for payment of debt, reconciliation acts, correspondence with the tenant in which he admits the existence of a debt entered into legal force judicial acts(Resolution of the Federal Antimonopoly Service of the Eastern Military District dated January 11, 2010 in case No. A79-156/2009), etc.

Violations committed by the tenant for the purposes of exercising the pre-emptive right are not canceled by the restructuring of his debt to the landlord by forgiving the penalty in full or in part by providing a deferment or installment plan in repaying the principal debt on the basis of the agreement additional agreement. Such an agreement provides the tenant with certain preferences and removes negative property consequences for him, but in itself does not cancel his violations of his obligations. Therefore, if violations on his part took place, the lessor has the right to deprive him of his preemptive right.

The lease agreement can provide for the termination of the pre-emptive right not only as a result of the tenant’s violation of its obligations, but also as a result of a negative assessment of its commercial activities by clients or other tenants, identified through their survey or questionnaire (Resolution of the Arbitration Court of the Moscow Region dated 05/08/2015 in case No. A40 -145830/13).

In addition, the conclusion of a lease agreement for a new term may also be denied to a tenant who abuses his pre-emptive right, for example, refuses to conclude a lease agreement, having become the winner in the auction, and waits for a new auction with a lower rent in order to transfer the rights and obligations under the lease agreement (Resolution of the Supreme Court of the Russian Federation dated November 25, 2014 in case No. A79-904/2014).

The tenant has the right to provide evidence of the absence or insignificance of the violations committed contractual obligations, the fact that all the landlord’s comments were promptly eliminated and all requirements were met (Resolution of the Federal Antimonopoly Service VSO dated November 10, 2008 N A19-291/08-58-F02-5437/08).

How can a tenant protect himself?

The tenant does not have the right to raise the question of the invalidity or termination of the lease agreement concluded by the lessor with a third party, since the law provides for a special method of protection.

For the tenant to exercise the pre-emptive right, the following conditions must be established: proper performance by the tenant of its obligations under the contract; availability of written notice to the lessor of the intention to enter into a new lease agreement within a reasonable time before the end of the lease agreement; the tenant’s consent to conclude a lease agreement for a new term on the terms on which the lessor intended to conclude a lease agreement with another tenant; Identity of lease conditions (the presence of equal conditions for the lease of property).

The presence of the tenant's pre-emptive right to conclude a lease agreement for a new term does not indicate the landlord's obligation to conclude it. He exercises this right at his own discretion, and the tenant does not have the right to demand the conclusion of a lease agreement with him (Resolution of the Federal Antimonopoly Service of the North-West District dated 06/07/2012 in case No. A13-8929/2011). The tenant has a preemptive right only if the landlord leases the property to a third party, over whom the tenant has priority (Resolution of the Federal Antimonopoly Service of the Eastern Military District dated September 12, 2007 in case No. A31-6308/2006-18).

The tenant's priority right over other persons to renew the lease agreement is protected in judicial procedure, if the tenant submits documents confirming the landlord’s intention to rent out to another tenant the property that was previously leased under an agreement that has expired, or to transfer this property for rent to another tenant (Resolution of the Federal Antimonopoly Service of the Eastern Military District dated 03/06/2009 in case No. A28-5926/ 2008-172/28).

Thus, the landlord’s obligation to conclude a lease agreement with the tenant for a new term is conditioned by the transfer of the disputed property to a third party. Before the occurrence of this circumstance, the company’s demands to extend the lease period are not valid. mandatory and are not subject to judicial protection(Resolution of the Federal Antimonopoly Service of the Eastern Military District dated 08/05/2014 in case No. A39-5086/2013).

At the same time, the lessor has the right not to rent out the property, but to use it independently; he can transfer it for free use, contribute it as a contribution to authorized capital economic company or dispose of otherwise. In these cases, the tenant does not have the right to demand the transfer of property to him, since there are no grounds for exercising the preemptive right.

The tenant will also not be able to seek the transfer of rights and obligations to himself if the lessor transferred the property under a preliminary agreement, according to which the main lease agreement will be concluded by him only in the future. The subject of the preliminary agreement is the obligation of the parties to conclude a future agreement, and not the obligation to transfer property.

The intention to conclude the main agreement may only imply the performance of preliminary actions for the conclusion of the agreement, but not confirm the very fact of its conclusion, therefore, in this case, the tenant does not have a preemptive right and he does not have the right to demand the transfer of rights and obligations under the preliminary lease agreement to him (FAS Resolution MO dated August 28, 2013 in case No. A41-51425/12).

The parties to the lease agreement, of course, can expand the scope of the tenant’s preemptive right to include other civil contracts(free use agreement, preliminary agreement etc.), however, if it is violated in such cases, the tenant will not have the right to raise the issue of transferring rights and obligations to him, since the law does not provide for such a possibility. The tenant will only have the right to demand compensation for losses caused by violation of the preemptive right, and collection of a penalty if it is provided for in the contract.

In the process of considering a claim for the transfer of rights and obligations under the lease agreement, the lessor has the right to terminate it or change the conditions for the worse for the tenant. In this case, the tenant should increase claim and demand that such changes be declared invalid with reference to Art. 10 of the Civil Code of the Russian Federation, and even better, at the stage of filing a claim, apply for interim measures in the form of a ban on the parties to the lease agreement to make changes to it.