Non-residential premises mean the isolated space of a certain building in which individuals are not registered and do not live. Its purpose is use for educational, commercial, commercial and other purposes. It does not include property owned jointly by all residents. At the same time (although not very widespread) the law provides for the possibility of free use of non-residential premises. The contract, its preparation, terms, samples, termination procedure - all this will be considered in the framework of the article.
The concept
Movable objects cannot act as non-residential premises. A gratuitous use agreement is called such in relation to a loan. The party that transfers the property in question is called the lender, respectively, the second is the borrower. An agreement may be concluded for the gratuitous use of non-residential premises between individual entrepreneurs and individuals, various business entities. This property has its owner. Only he has the right to dispose of him.
Transfer of residential premises to non-residential
The contract for the gratuitous use of non-residential premises provides for some cases of transfer of your real estate from the category of residential to the corresponding category.
This can be done subject to a number of conditions:
- lack of persons registered and living in this room;
- the ownership right belongs to one person, there are no encumbrances on the order or possession of third parties;
- has its own entrance;
- the facility is located on the 1st floor or higher, provided that under it is a non-residential premises.
Transaction Subjects
The parties to the contract for the gratuitous use of non-residential premises are the lender and the borrower. Relations between them arise at the time of transfer of the object in question without paying various payments.
The lender may be the owner of such a premises or his authorized representative authorized to perform such actions, the operational manager of the property. The second party can be any legal or physical person, with the exception of members of the board, managers and co-founders of an economic entity that is the owner of the property in question.
Features
The following features are characteristic of a gratuitous loan agreement:
- the transaction object must have a corresponding description;
- the transferred non-residential premises must comply with the requirements and be suitable for use for the purposes specified in the contract;
- the borrower can transfer the object on the same grounds to third parties, but is responsible for subleasing;
- the document should include a reflection of the rights of others to the transferred premises;
- predominantly state registration of the contract for the gratuitous use of non-residential premises is not performed, except in cases where the object is fully or partially recognized as such in relation to cultural heritage.
Such a loan does not imply only one document between the parties. The owner must transfer to the borrower technical and legal certificates for the space provided, which include:
- the act of assessing the value of the transferred object;
- floor plan;
- his technical passport.
The parties, before concluding an agreement, conduct a joint inspection of the premises, based on the results of which an acceptance certificate is signed. The borrower should approach this issue responsibly, because if at this stage no defects are identified, and when they are transferred back, it will be he who is responsible.
This document should contain the following information:
- date and place of detention;
- number of contract;
- area and address of the object;
- condition of finishes and designs;
- identified deficiencies;
- signatures of the parties;
- their details.
Essential terms of the contract
When compiling such a document, you need to check for the following conditions in its content:
- the heading must indicate the name of the contract, its number, as well as the date and place of conclusion;
- parties to the transaction are indicated with their identifying information: for individuals - full name, for legal entities - their status;
- details of the parties are indicated at the end of the document;
- the subject of the contract must be indicated, that is, the property is indicated and the purpose for which the document is concluded;
- information is provided that the transaction is gratuitous;
- indicate the location, technical parameters, value of the property;
- the rights and obligations of the parties should be given;
- prescribes the validity period and termination procedure in advance;
- responsibility of the parties;
- signatures and stamps (for business entities having the latter).
This type of document refers to simple civil acts and is executed in any form. There is no standard contract form.
Sometimes during the implementation of legal relations a situation may arise related to the change of ownership. In this case, the contract does not lose its force, unless otherwise provided by it. It may also be necessary to carry out room improvements. In this case, it is better to discuss in advance how the cost of inseparable repair cases will be compensated. Separable improvements remain in the ownership of the borrower, if the repair was carried out by his forces.
Rights of the borrower
A sample contract for the gratuitous use of non-residential premises under the section "Rights and Obligations" is presented below. The rights of the borrower include:
- receive technical and statutory documents from the owner;
- use the room for its intended purpose;
- transfer the property for use to third parties with the consent of the owner free of charge;
- indicate in necessary documents the address of the location of this room and place its sign on it;
- insure the object against various risks.
The obligations of the borrower
These include:
- attitude to the transferred non-residential premises must be careful, must carry out non-capital repairs, bear the costs of maintenance for the duration of use;
- Do not sublease;
- after the termination of the contract for the gratuitous use of non-residential premises, it must be returned in the form in which it was transferred for the purpose of use.
Rights and obligations of the lender
He has one right - he can conduct periodic inspections of the transferred object.
His duties:
- transfer to the borrower in a timely manner the necessary documentation for non-residential premises and keys to it;
- conclude and execute agreements with utilities, bear the burden of overhauling.
Time of action
The term of the contract for the gratuitous use of non-residential premises may be:
- specific;
- before a specific event;
- the contract may be unlimited.
In the latter case, either party may terminate the relationship at any time with prior notification of the other party one month before the breakdown of legal relations, unless otherwise provided by the contract. The validity period can be indicated in the form of a certain date, the expiration of a time interval, or the occurrence of an expected event. As soon as one of them, indicated in the contract form, occurs, it is considered that the document has finished its action.
Termination of an agreement
Only the borrower with prior notification of the lender can refuse the transaction on a legal basis in case of the urgent nature of the concluded document. The latter, in case of failure, will suffer material losses. However, there are some circumstances that allow terminating the contract and the owner in case of urgent nature.
These include:
- misuse of the premises;
- the lack of maintaining the object in the required condition, due to which it worsens;
- transferring it for use to third parties in case of non-receipt of consent from the owner;
- subletting.
Initially, the owner should try to resolve the issue with the borrower in the pretrial order and only after such a failed attempt to file a claim with the judicial authorities. Before that, he makes a written proposal to the user to terminate the previously concluded contract, forwarding it to the latter by mail. The described event may not take place if the borrower continues the intended use of the premises upon expiration, and the lender does not object to this. Upon reaching such a consensus, the contract is automatically prolonged and becomes unlimited. Termination in this case is carried out under paragraph 1 699 of Art. Civil Code of the Russian Federation.
Taxation
The lender does not generate income when the object in question is transferred for free use. Also, expenses presented by the value of non-residential premises donated to the borrower and such transfer are not subject to accounting. Non-operating income of the borrower includes income received in the form of gratuitous property rights. It is calculated on the basis of market prices for identical objects that are leased without VAT.
In addition to income, the borrower for tax purposes under the contract for the gratuitous use of non-residential premises takes into account expenses associated with the maintenance and use of these objects. At the same time, he should not create a reserve for upcoming repairs, since real estate objects are not depreciated for him. The expenses may include those that the borrower reimburses to the lender in accordance with the terms of the contract. Depreciation is not charged to either party. After the transfer of objects to the owner, it begins to accrue from the beginning of the month following the termination of the contract.
The payer of property tax is the lender, on the balance sheet of which it is taken into account. The lender, when transferring a non-residential object for free fixed-term use, acquires the object of VAT taxation as the cost of the services rendered free of charge. The tax base is calculated at market prices for homogeneous ones provided in comparable economic conditions. There are no exceptions for special modes.
Other clauses of the contract
The risk of accidental death or damage to the facility may be included in the contract for the gratuitous use of non-residential premises. A sample will be discussed below.
This section may contain two points. The first of them stipulates that the lender bears the main risk of accidental damage to non-residential premises transferred for free use or its death, except for the cases specified in the second paragraph.
The latter includes the risks of the borrower upon the occurrence of such events. It may be indicated here that the latter is liable in the event that an accidental damage or destruction of an object occurred during improper use of the premises, transferring it to other persons without obtaining the consent of the owner or the possibility of preventing these negative consequences when donating any of his belongings.
Also, force majeure circumstances may be reflected in the contract. The document may contain information that in case of force majeure circumstances the parties are not liable to each other. They must be listed. As a rule, they include actual or declared war, civil unrest, natural disasters, prohibitive actions of authorities and acts of state bodies. It is also stipulated here that it will serve as sufficient confirmation of such an event. It is indicated that one of the parties that cannot fulfill its obligations due to the occurrence of the circumstances in question should immediately notify the other and describe how this may affect the fulfillment of the requirements of the contract.
Finally
In accordance with the Civil Code of the Russian Federation, a contract for the gratuitous use of non-residential premises implies the transfer of one of the parties, called the lender, to the other side, called the lender, for temporary use of the property in the form of non-residential premises. Despite the fact that the nature of the transfer does not provide benefits, in this case it will not be possible to evade taxation. Sometimes these contracts are compared with those in relation to the lease. But in this case, the parties have different names, and this does not imply ownership of the transferred property.