According to the contract, the lessor provides the other person (tenant) for a fee certain property for temporary use. According to civil law, if real estate is leased for a period of at least one year, then mandatory registration of the lease is carried out. In this case, the transaction will be considered concluded from the moment it is entered in the state registry.
Registration procedure
We emphasize once again that lease agreements concluded for a period of less than a year are not registered. But about contracts drawn up for a longer period, an entry is made in the state registry of rights. To carry out such a procedure, citizens should contact the territorial reception of the Federal Registration Service (FRS).
In addition, the tax authorities will only take into account the amounts transferred for the use of real estate after the state registration of the lease. However, in exceptional cases, tax inspectors may accept the original receipt of acceptance of securities from the Fed to register a lease agreement.
Contract date
It should be noted that there are situations when two parties themselves decide to determine the date of conclusion of the agreement. They agree on the time of transfer of property and money, decide that by this date they can conclude a deal. However, such actions will not be entirely correct. This type of agreement is consensual (that is, it will be regarded as concluded from the moment of reaching agreement between the parties and the proper execution of the transaction). In other words, the date of its conclusion must be indicated on the same day as the registration of the lease.
Meanwhile, the lessor and the lessee can set the term of the agreement independently. That is, the specific date when it ceases to be valid, both parties may indicate their discretion.
Land plot nuances
A special category of real estate is land. This has its own characteristics. At the moment, registration of a land lease agreement is carried out by the Committee on Land Management and Land Resources, as well as its territorial divisions. If the parties to the transaction do not wish to engage in registration, considering this requirement to be completely irrelevant, they can be fined for it.
Types of agreements to be registered
Registration will be required upon conclusion of such types of contracts as:
- mortgage;
- an agreement on the assignment of claims or on the transfer of debt on transactions that must be registered;
- purchase and sale of a residential building (its parts);
- sale of the enterprise;
- annuity contract;
- rental of real estate (structures, buildings, enterprises).
In some cases, other types of real estate transactions may be entered in the state register.
Types of Registration
It should be noted that the state registration of a lease is not the same as the registration of powers for real estate. For example, some transactions regarding real estate do not need to be registered, but the fact of transfer of rights to the object to another person is required. In some cases, transactions with movable property must also be entered in the state register. For example, if the transferred objects have socio-political value, etc.
The consequences of ignoring registration
If the parties decide to skip such a procedure as registering a lease, the agreement will be considered not concluded. In other words, such a transaction is simply null and void. The tenant and the lessor will not have any rights and obligations in relation to each other. It will also be impossible to recover damage based on such a transaction. If one party evades registration of the contract, the bona fide participant in the transaction has the right to apply to the court with a request for the compulsory registration of the agreement and compensation for losses (if any). In a word, delaying the registration procedure is not beneficial to either the lessee or the lessor. There are times when the parties are a little cunning and conclude a lease agreement not for a year, but, for example, for 11 months. After this period, they can renew the contract for the same time and thus avoid the registration procedure. In principle, no one will punish you for such a trick, but if you nevertheless made a deal for a year or more, then take care of its speedy registration.
Documents for registration of a lease
Any of the participants in the transaction may initiate the entry of these agreements into the state register within 2 months. In addition, if subsequently any changes are made to the contract, then again you need to contact the Fed and re-register the lease agreement. If the new conditions are not displayed in the state register, the agreement will act in the same form as it was before the adoption of the relevant changes.
So, in order for the registration of the lease of a land plot or other object to be successful, the lessor will need:
- application for registration;
- a copy of the certificate of state registration of the right to an object that will be leased;
- payment of state duty ;
- original lease agreement (3 copies).
The tenant, in turn, submits such papers as:
- a notarized copy of the passport (for an individual) or a copy of the certificate (for legal entities);
- copy of constituent documents (for enterprises and organizations);
- information letter from statistical authorities (copy).
Additional papers
In addition to the above documents, registration of a lease is impossible without:
- Cadastral passport premises. This technical document contains data such as the address of the building, its number of storeys, footage and other necessary characteristics.
- Copies of the decision of the general meeting of participants or shareholders (if the joint-stock company is a party to the agreement).
- Notarized lease agreement (for registration of sublease agreement).
- Order on the appointment of a director or a copy of a contract concluded with him (for legal entities).
- Copies of the TIN assignment document.
- Extracts from the Unified State Register of Legal Entities (it will be valid for a month).
After the registration of the lease of a non-residential premises or other object is completed, the owner of the property also registers the arisen rights with the tenant. And only after all these operations can we say that the parties complied with all the requirements of civil law.
State duty
The law does not impose a duty to pay a state duty on a particular participant in a transaction. This means that the parties themselves must decide who will be involved in submitting documents for registration, solve other organizational issues and pay the state fee for entering data into the register. Meanwhile, to avoid misunderstandings, lawyers advise to write this point in the lease. The state duty for registering a lease depends on the status of the parties to the transaction. So, individuals will have to pay 1 thousand rubles, but for legal entities - as much as 15 thousand rubles. For amendments to the lease agreement, the same rates are set.
Tax issues
Registration of a lease plays an important role for the entrepreneur. In particular, the amount of state duty should be indicated in the income statement. In addition, if the contract passes the state registration procedure, then it is impossible to pay the rent in installments. Of course, in order to bypass the tax authorities and not to show part of the income, the agreement can indicate a lower cost of payment, and the remaining amount can be obtained by agreement, but this action is quite risky. After all, the lessor will be able to simply refuse the surcharge for the premises. Moreover, somehow it will not work to punish him, because from a legal point of view, he strictly complies with all the requirements of the contract, and the registration of the contract for the rental of the premises was carried out legally. And in this case, you will have to insist on changing the item on payment, and this, again, is an additional cost and difficulty.
conclusions
If the registration of the lease of non-residential premises is carried out by the landlord, the tenant must ensure that he does not delay this procedure. If this person begins to evade registration, the owner of the real estate may apply to the judicial authority for the protection of his interests. The tenant will have the same powers if the registration obligation is assigned to the owner of the property. The state duty for registering a lease must also be paid in a timely manner, since without making it, the procedure will not work. It is also important to check the tenant's credentials, especially if it is a legal entity. Check his constituent documents, the order on the appointment of the director, a certificate from the tax authority, address, etc. The lessor will first need a document on the ownership of the premises, which is transferred for a period of more than one year, his cadastral passport, information about the owner.
If you strictly adhere to the framework of the law, then in principle, you should not feel any problems with the design. Typically, the term for registration of a lease is 10 days. However, if the employees of the territorial registration service reveal any inaccuracies in the papers or inaccurate data, the process can significantly drag on for several months. Therefore, it is very important to double-check each document before submitting a lease for registration, if you find errors, then, if possible, correct them before submitting for registration.