It's no secret that for many new entrepreneurs, rent becomes one of the most significant expenses. Be it an office, warehouse, retail or industrial premises. To increase the efficiency of your own business, it makes sense to try to reduce the cost of rent. It is almost impossible to do this without special knowledge, so below are tips that will help you achieve success for sure.

By the way, we have already written articles about that and. Now let's move on to rent reductions.

1. Conclude a mutually beneficial agreement

The subject of the agreement may not necessarily be only a lease. The benefit for the landlord may include intangible benefits. For example, if he is the owner of a large hotel and rents out premises on its territory for a fitness center, then the payment may be to receive guests. In this case, neither the guest nor the hotel owner will owe the tenant anything. Many will ask, how is this beneficial to the landlord? It's simple. He offers his clients additional service without spending virtually any money on it.

1. Pay attention to industrial and idle areas

The point here is to get a good room at a low price. It’s not a fact that the profit there will be high, but the rent is significantly lower. What can you do in this case? Offer the owner of the idle space to bear part of his costs. This refers to funds to pay bills for light, water, and electricity. Additionally, you can carry out repairs at your own expense. Thus, both the landlord will receive additional profit and the tenant will receive undoubted benefit.

1. The alternative is the engine of negotiations

To provoke the landlord to reduce the rental price, you need to act not by persuasion, but by actions. Knowledge about average cost On the market. Another great option would be to have alternative premises. You need to let the landlord know that the potential tenant has other offices in mind. But it is very important to influence the owner of the premises very subtly. Blackmail will not help in such matters. Having an alternative for the tenant will be a great way to find the most profitable premises.

1. Find out about the landlord's wishes

The cost of rent is not the only factor that is important for the owner of the premises. To enter into price negotiations with him, it is worth finding out what is really important to him. There are many options here. Here are the most popular:

• timeliness of payments;
• rental duration;
• the ability to pay rent several months in advance;
• carrying out repairs at the expense of the tenant;
• use of your own furniture and equipment.

Many consider these factors to be insignificant, but in fact it turns out that fulfilling at least a few requirements from the list will significantly reduce the price (sometimes the final cost can be reduced by even 40%).

1. Don't pay for the premises, take care of the premises!

For many, this idea seems absurd. In fact, it may actually work. It may just take a little longer to find a suitable option. There are plenty of examples. Sometimes entrepreneurs leave for some time to another country or city, and retail space remain unused. At the same time, payment for electricity, property tax, alarm system, etc. - all this falls on the shoulders of the owner. For many of them, it is much more profitable in this case to shift their obligations to another person. There is often no time to look for those who would also pay for it. At such moments, enterprising tenants appear and get excellent premises. Sometimes they are also paid extra for this.

1. Working with the right people

If a person knows how to build business relationships correctly, then he can easily agree on the provision of services to him. At the same time, it will be beneficial to both parties at the same time. Does this seem impossible? Here is just one example of such interaction. A large holding needs its own web studio. A room is allocated for her. At the same time, you don’t need to do work inside the company very often. This type of interaction is an excellent alternative for the tenant and the landlord.

1. We show toughness

If no methods or persuasion work, you can move on to more aggressive tactics. In this case, we mean nitpicking regarding the premises and its condition. This strategy is best used in the very first stages. Completely different little things can come into play. Here are some examples:

• lack of internet;
• the windows exit on the wrong side;
• lack of parking or parking nearby;
• poor condition of the premises (need to make repairs).

But here it is very important to take into account the psychological factor. You can't bend it. It is worth monitoring the landlord's reaction. We must not forget that after concluding the contract, you will still need to work with him.

1. Business Features as a Factor in Rental Cost Reduction

When talking with the landlord, you can resort to using additional arguments:

• Low profitability

If the opening store has a low level of markup, then the profit itself will not be large. For a landlord, this can be a weighty argument when making a decision.

• The crisis spares no one

It would not be amiss to mention the crisis situation in the country. It’s worth stocking up on arguments and providing real figures on the fall in the value of the ruble against foreign currencies. Imported goods in Russia have become significantly more expensive. As a result, demand for them has decreased, which reduces the entrepreneur’s ability to make high profits.

• Talking means doing

If an entrepreneur talks about terminating the contract as soon as possible, then he must clearly demonstrate his readiness. The presence of a corresponding letter will be an excellent motivation for the landlord to reconsider his requirements.

Many people treat “nameless” advice with great distrust, considering them only a theoretical part of the issue. That is why below are several opinions of people who are familiar with the practical side of rental relations.

Sergey Abdulmanov, Dmitry Kibkalo and Dmitry Borisov

Founders and directors of the Mosigra company, authors of the book. They have opened many retail outlets and know how to bargain with landlords like no one else. They talked about this in their book and we will write their recommendations below.

Bargaining is always appropriate! This is one of the basic principles of any business. “If you don’t bargain, tear your hands off! Figuratively." They don’t take money for asking. If everyone always pays as much as they ask, then there will be absolutely nothing left for themselves. Almost any offer implies that the person is willing to give in at least a little on price.

1. For example, consider a room for 500 rubles. per month. But we understand that more than 250 tr. we can't pay for it. Therefore, we give an answer to the proposal: “Guys, let’s give you 250 tr. and we’ll stop by tomorrow?” And this is a joy for everyone, because it is better to have a tenant who pays at least something right now than to have no one at all. True, they can say: “Agreed! But if we find a tenant who is more expensive, then you move out.” It’s still worth trying, because the room can stand like this for years and no one will rent it.

2. Bargain early! Every year, or even more often, the tenant tries to raise rent at least by 10%. Always like this! We noticed this pattern and a couple of weeks earlier we send a request to reduce the rent. As a result, in the worst case, the price remains the same, in the best, the price is reduced.

Alexey Baranov

The General Director of the Retail Relations company has extensive experience in the retail business, namely in the fashion industry. Here's what he thinks about lowering rents.

In order for communication with the landlord to be effective, it is important to understand how pricing is set in shopping centers. They all set their own rate of return, which helps predict the payback period of the object. It could be 5, 7, or 10 years.

When drawing up their own business plan, stores pay attention to the following factors:

• attractiveness of location;
• the amount of investment and the conditions under which they were attracted to the project;
• favorable infrastructure of the area;
• level of pedestrian traffic.

The more positive factors, the faster the project will pay off due to higher rental rates.

Any developer has a rent price corridor beyond which it will be unprofitable for him to go. When starting negotiations, shopping center owners usually name the most high price. Reducing it is not easy for retailers. And yet, it is possible to do this. You need to follow the following plan:

1. First you need to study the areas of work of existing tenants. It is important that the store fits harmoniously into their list.
2. You need to choose this one shopping mall, in which the tenant will be wanted. Ultimately, this will significantly reduce rental costs. Otherwise, it will be almost impossible to do this.

The question immediately arises: how to become attractive to a landlord? It is necessary to influence it using the following methods:

• It is important to convince the landlord that the entrepreneur provides a quality service or product. For clarity, it is worth making a detailed presentation, providing product samples, talking about your features, your relationship to a specific social segment, and expressing your position.
• Drawing up a business plan. Moreover, it must be made for a specific shopping center. It's not that hard to do. First you need to draw up a general business plan, including income and expenses. And only then adjust the received data in accordance with rental rates. In this case, you can make several business plans at once, taking into account different sizes of rental costs.
• Suggest setting the rental amount as a percentage of the store's turnover. A well-written business plan will help predict income and convince the landlord of the effectiveness of such a solution. In this case, the size is usually set from 18% to 30%. At the same time, the upper indicator is quite large and difficult to work with. This will help avoid indexation of the rental price, because this is the method of increasing the price that is used for a fixed rental amount.
• Prove that the rent is too high. This must be done using facts and figures. This will instill much more confidence in the tenant.

There is one more important point. It refers to a situation where the tenant wants to reduce the rental rate, already having a lease agreement in hand. In such cases, it is necessary to inform the owner of the premises about your intentions and desires in advance. At the same time, it is very important to operate with live figures of your store’s performance. In this case, you can appeal:

• the size of the shopping center traffic;
• average check;
• number of visitors;
• the ratio of rental cost and profitability.

It is very important to prove that at the established rental rate the store cannot make a net profit. This way, you can convince the landlord to change the fixed amount to a percentage of the entire turnover, which will be a more profitable and flexible solution for the entrepreneur.

Olga Shtoda

Director of Development and Marketing at BlackStone Keeping Company. Her expert opinion is on how conscientious landlords can avoid manipulation by tenants.

Tenants are not always honest with landlords. Naturally, there are objective reasons due to which a reduction in rent is quite natural. But there is another side to the coin. Some not very conscientious entrepreneurs are trying to put pressure on pity, thereby wanting to reduce the rental rate. They start saying that everything is bad for them.

To avoid such cases you can:

1. Provide a large waiting list.
2. Increase tenant loyalty. This can be done by establishing not only partnerships, but also trusting friendships. In such cases, working in an informal setting will be a great way to strengthen interaction. It is such long-term measures that provide the maximum effect from cooperation. A person who is loyal to the landlord will not come up with fictitious reasons that should help him reduce the rent. He will not manipulate his partner. A loyal tenant is a reliable partner who will prove more than once that friendship helps strengthen trust and mutually beneficial relationships.

What does the law say about rental relations?

If we talk about the law, we need to discuss several important issues at once. Firstly, on the procedure for changing the amount of rent and the legality of the actions taken. Referring to the law, the following can be stated:

• According to paragraph 1 of article 614 of the Civil Code of the Russian Federation , the conditions, procedure and deadlines for paying rent must be specified in the contract.
• If the agreement does not say anything about making changes to the contract, then the rental rate can be changed based on the consent of both parties no more than once per year. It's set paragraph 3 of article 614 of the Civil Code of the Russian Federation .
• Minimum terms may be slightly different for certain types of leases and properties.
• You can change the rental price more than once a year if both parties agree to it. However, the presence of such a clause in the contract is not necessary. The basis will be Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 73 of November 17, 2011 .
• If the lessor himself can change the rental price on the basis of law or agreement, then he does not have the right to do this more than once a year.

There are a number of situations in which a tenant can initiate a unilateral reduction in the rental rate. It will be legal to perform such actions in the following cases:

1. If the condition of the property has significantly deteriorated through no fault of the tenant and due to factors for which he is not responsible. This is provided paragraph 4 of article 614 of the Civil Code of the Russian Federation . This may include the actions of the property owner himself, third parties, or circumstances beyond the control of others. These are various fires, floods and other situations.
2. If the tenant has identified serious defects in the premises, the owner of the property is responsible for them. This fact is established in paragraph 1 of article 612 of the Civil Code of the Russian Federation .
3. If during the rental period it turns out that there are third parties who can lay claim to the leased property.
4. If the landlord has not fulfilled or seriously violated his obligations regarding major repairs to the premises. This is enshrined in paragraph 1 of article 616 of the Civil Code of the Russian Federation .

Secondly, concept of rental holidays.

Here's how things stand with them:

Speaking from a practical point of view, a rental holiday refers to a period of time when the tenant pays significantly less for rent than in other periods. Sometimes he is exempt from paying completely.

In this case, the landlord receives the premises for use, but cannot actually work on the premises for a certain period. The reasons may be:

• carrying out repair work;
• arrangement of premises;
• direct transfer.

According to the acceptance certificate, the premises are transferred to the lessor, but he does not make payments during this period or does so in a significantly smaller amount.

Often, a rental holiday is a period when the rental rate is reduced by the amount of expenses incurred by the tenant to carry out repairs on the premises. In fact, calling it a rental holiday is not entirely correct. We are talking about making rental payments for part of the period in the form of costs for improving the condition rental premises. It's set subparagraph 5 of paragraph 2 of Article 614 of the Civil Code of the Russian Federation .

The duration of rental holidays in most cases varies from 1 month to six months. In some cases, the duration can be reduced or increased.

Rental holidays are one of the conditions of the lease agreement. The use of property during this period is not a sign free use under the loan agreement, according to Article 689 of the Civil Code of the Russian Federation . In such cases, no other relationship is concluded between the parties, unless a loan agreement is additionally concluded. For the rest of the period of use of the premises, the tenant must pay the amounts established by the lease agreement as long as the property is suitable for use.

We write a letter to the landlord

Facts that can be used when writing a letter to the landlord

When writing a letter about rent reduction, you need to provide arguments in your favor. Here you can operate with the following circumstances:

• There has been a significant decrease in rental rates throughout the region (the reason for this may be changes in legislative acts, a crisis situation, etc.).
• Serious problems have arisen (with the heating system, water or electricity supply, ventilation), to eliminate which additional funds are needed.
• The landlord did not make major repairs to the premises, but this is his responsibility, according to Article 616 of the Civil Code of the Russian Federation.

You can also report the difficulties of the tenant himself (decrease in profits, seasonal fluctuations or any other temporary difficulties). They relate to objective circumstances.

Before writing a letter to the landlord, it is worth assessing the situation at the enterprise, identifying difficulties and documenting them in the letter.

Examples of letters to the landlord about rent reduction

Sample No. 1

Dear Afanasy Petrovich,

Due to the crisis situation in the country, we are faced with financial difficulties. Therefore, we have this moment There is no way to pay the rent in full. We ask you to consider reducing the rental rate for a while.

Sincerely,

Gerasim Alekseevich

Sample No. 2

Dear Afanasy Petrovich,

Over the course of many years of cooperation with you, Slavyanka LLC has always fulfilled its obligations under the Lease Agreement on time. The unstable economic situation in the country has negatively affected the financial condition of our company. We ask you to reduce the rental rate.

We hope that you will come to our position and make concessions. We give an obligation to pay rent on time.

Sincerely,

Gerasim Alekseevich

Sample No. 3

Dear Afanasy Petrovich,

Due to the difficult situation in the country and the sharp decline in purchasing power, we ask you to reduce the rental rate by 8%.

Please note that our organization has never delayed payments and deposited funds on time. If you put yourself in our position and agree to reduce the rent, we guarantee that we will fulfill all obligations in a timely manner, regardless of the severe crisis situation.

Sincerely,

Gerasim Alekseevich

Sample No. 4

Dear Afanasy Petrovich,

We would like to draw your attention to the fact that due to the crisis situation in the country, it is unprofitable for us to implement clause No. 6 of Treaty No. 814. We ask you to change the rent amount.

We hope for your understanding and are waiting for proposals regarding the rental rate.

Sincerely,

Gerasim Alekseevich

Conclusion

These are the ways entrepreneurs offer us to reduce rent. As you can see, you can and even need to bargain. This way you will save money, which will clearly be used in your business. If you have any questions, write them in the comments.

Lease relationships, the most common since ancient times, require attention and accuracy when concluding a contract. Difficulties and controversial situations most often arise because the procedure for increasing rent is not carefully negotiated. The right to change the rent belongs to the lessor in accordance with paragraph. In this case, the obligatory conditions are:

• agreement of the parties (most often concerns the timing of changes to the contract),
• conditions for changing the order (the lessor’s unilateral decision to change the rental amount may require written notification),
• terms no more than once a year, unless there are other conditions.

In conditions of the need to increase rent, for example, a sharp jump in inflation, the lessor begins the process of changing contractual requirements. A unilateral order of this change is quite possible. The absence of a clause on mandatory notification of the tenant leads to misunderstandings that can be resolved in accordance with paragraph 1 of Art., which states that the form of the lease agreement and agreement must comply with and go through the registration procedure with local authorities. The rent increase assumes the following:

• written notice to the tenant at least one month before the deadline for changing the lease; sent as registered or handed over personally against signature;
• drawing up an additional agreement, which must indicate the clauses of the agreement that are no longer in force and make detailed changes;
• Even if there are no clauses in the contract providing for changes in rent, in accordance with the law, the lessor can unilaterally increase it.

On the part of the tenant, the justification for increasing the rent can be enshrined in the agreement itself. While indicating that the rent may change in the event of inflation, it is not always possible to increase it. Clarification of the type: subject to change, guaranteed change without fail (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 13, 2010 No. 1074/10).

The basis for changing the fixed amount of rent can only be objective circumstances. The reasons for increasing rent include: a change in the estimated value of the leased property due to changes in legislation, an increase in market value determined by the appraiser, and a change in the inflation index.

In the world of market relations, when the seller wants to sell at a higher price and the buyer wants to buy at a lower price, controversial issues can be avoided only by a well-reasoned, legally and economically precisely drawn up contract. The contract period usually does not exceed 11 months.

Perhaps legal advice from an experienced specialist on changing the standard agreement will save both parties from resolving disputes in court.

In the current civil legislation, the conditions for concluding a lease agreement are sparsely spelled out. In this regard, tenants who are not very savvy from a legal point of view often find themselves hostage to the conditions imposed by landlords. For example, provisions on the possibility of raising rents unilaterally. However, the situation can easily be reversed. To do this, the tenant must carefully read the proposed lease agreement and take the time to agree with the landlord and write down the “necessary” conditions.

Unilateral rent increase

By virtue of the principle of freedom of contract, its terms are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (,). Based on this, only the conditions expressly specified in the contract for increasing the rent are grounds for its legal increase (for example, if it is stated that " The landlord has the right to unilaterally revise the rental rate in the event of changes in the cost of utility bills", "the amount of rent is subject to indexation no more than once a year and no more than 1%"). Of course, it is beneficial for any tenant that, under the terms of the contract, the payment for the leased property is a constant amount and is not subject to indexation (i.e., that the contract specifies a fixed amount of rent and does not stipulate the possibility of increasing it; or it is directly stated that the amount of the rent is not subject to change). However, not every landlord will agree with such wording. The cost of utility bills increases, the market price of real estate changes, communications and other equipment wear out and must be replaced... All this can cause an increase in rent.

Most often, the monthly rent consists of a base and variable amount. The base portion may change if the situation on the real estate market changes. In addition, some agreements provide for annual indexation of the base part of the rent by a specified amount (for example, by 1 thousand rubles; by 2%) or by the value of the consumer price index (inflation rate). The variable value includes utility and operating payments. Most often, the agreement stipulates that the lessor has the right to unilaterally revise the rental rate in the event of changes in the amount of utility and operating payments by supplying and operating organizations.

Deputy general director VTB Arena Park shared a rent setting model that seems to be the most optimal. “We need to move away from constant and variable rent amounts,” says Anastasia. In her opinion, it is much better to stipulate in the contract the amount of rent as a formula and indicate the possibility (or impossibility) and procedure for indexing each of its components. For example, " The monthly rent consists of the base rate, which is 20 thousand rubles. and is unchangeable; the cost of depreciation of property, which is equal to 2 thousand rubles. and can be revised by agreement of the parties; payment of utility bills, which are charged according to the tariff established by resource supply organizations"So, if one of the elements of the rent is a fee for the maintenance and repair of the building and common areas, then the landlord will no longer be able to raise the rent, citing the fact that he needs to repair a broken elevator or garbage chute.

If the landlord nevertheless increases the rent, if the tenant disagrees with this decision, the tenant can appeal it in court. Practice shows that courts often take the side of tenants, but the decisive factor will be the terms and conditions specified in the lease agreement.

If the lease agreement does not provide for the possibility of changing the amount of rent unilaterally in connection with the establishment of the market value of the rent, then the lessor has no right to demand payment in the new amount. This applies even to cases where the rental rates in force at the time of concluding the lease agreement were extremely low and did not reflect the actual situation in the real estate market ().

Some parties, on the contrary, provide in contracts for the possibility of unilaterally increasing the rent due to changes in the market situation. At the same time, if the exact amount of the change is not specified, a dispute may arise between the tenant and the landlord. And then even a conclusion about increasing the price will not help. “If the tenant goes to court, he will naturally bring there the assessment report that suits him. And the landlord, for his part, will also bring an assessment report that is “favorable to him.” Most likely, the court will order its own examination, which will then be carried out by someone else. then he will want to argue. What will we come to?" – Anastasia Pomelova is indignant. To avoid such exhausting and pointless disputes, it is much more reasonable to provide in the lease agreement a fixed rate by which the rent can increase (for example, by 5% or the refinancing rate of the Bank of Russia).

If such a dispute does arise, the tenant must prove that the landlord abused his right to unilaterally change the amount of the rent. If the court finds that the payment has increased disproportionately to the change in the average market rates paid for the rental of similar property in a given area for the relevant period, and has significantly exceeded them, then on the basis of this the court must refuse to collect the rent to the extent that exceeds the said average market rates (p 22 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 No. 73 "").

In addition, it makes sense to clearly define the procedure for increasing such fees. For example, provide that if the landlord changes the amount of rent, the latter is obliged to send the tenant a notice signed by an appropriate person. Some parties even indicate the method (registered letter with acknowledgment of receipt, telegram, express) and the deadline for sending it. Until the above conditions are met, the rent amount is considered unchanged. If the parties go to court, it is necessary to establish the fact of sending the specified notice to the tenant, the method and period of its sending. The tenant cannot be charged a penalty (penalty) for the time during which he continued to pay for the leased property at the previous price if he did not receive the notice or received it in an improper form ().

We recommend specifying in the lease agreement the obligation of the parties, in the event of an increase in the amount of rent, to enter into an additional agreement in writing. According to , citizens and legal entities are free to enter into a contract; coercion to conclude a contract is not permitted. This means that if such a condition exists, no one will be able to force you to conclude an additional agreement, and without its conclusion, to pay an increased rent. This position is also shared by the courts, for example, the Presidium of the Supreme Arbitration Court of the Russian Federation.

As for the frequency of changes in the amount of rent, if, in accordance with the law or agreement, the lessor has the right to unilaterally change the amount of rent (), then in essence such a change can be made by him no more than once a year (clause 21 of the Resolution of the Plenum of the Supreme Arbitration Court RF dated November 17, 2011 No. 73 "").

You should not think that the inclusion in the contract of a condition that states that the rent can be changed by agreement of the parties in connection with certain circumstances means a mandatory change in the rent in the future. This condition is subject to the principle of freedom of contract (), which presupposes agreement without any coercion between the parties to the transaction to change obligations (, decision of the Arbitration Court Novosibirsk region dated May 28, 2014 in case No. A45-5936/2014, ).

OPINION

Ekaterina Orlova, director of Real Estate Orlova Consulting & Development:

"The basis for maintaining the original rental agreements unchanged is exact description the subject of the lease and penalties. To do this, I recommend listing in the lease agreement all movable property located in the apartment, as well as specifying at whose expense any defects in this property that arose through no fault of the tenant will be eliminated. Utilities are described similarly (it is possible to indicate details of contracts with resource supply organizations). In addition, indicate that changes to the terms of the contract are possible with written agreement of the parties. In the section “responsibility of the parties,” it is important to pay attention to the responsibility of the lessor in the event of early termination of the contract on his initiative.”

Payment under new conditions

ADVICE

Look approximate form lease agreements are available in the GARANT system. To do this, enter “lease agreement” in the basic search and select “Document forms.”

If, after receiving a notice from the landlord about an increase in the rent, the tenant begins to pay at the new rate, this will mean his consent, and can be challenged in the future new value rent will become almost impossible. The fact is that the notice sent by the landlord will be equated to an offer - an offer addressed to one or several specific persons, which is quite specific and expresses the intention of the person who made it to consider himself to have entered into an agreement with the addressee who will accept the offer (). Agreement with its acceptance is called acceptance (). When, within the period established by the lessor, actions are taken to fulfill the terms of the agreement specified in the offer (including payment of the appropriate rental amount), the lessee accepts (accepts) the offer (). Moreover, if the lease agreement is changed (namely, the rent is increased), the obligations of the parties remain unchanged (). Thus, by making payment taking into account the increased rental amount, the tenant accepts the terms of the agreement proposed by the lessor in terms of increasing the cost of rent (decision of the Arbitration Court Kemerovo region dated June 30, 2014 in case No. A27-4911/2014).

In addition, we do not recommend stopping paying for the rented property altogether, since late payment entails the imposition of a penalty (penalty). According to , the tenant is obliged to promptly pay fees for the use of the property. There are no exceptions to this rule for cases of an unreasonable and, in the tenant’s opinion, illegal increase in the rental amount. Obligations must be fulfilled properly in accordance with the terms of the contract, the requirements of the law and other legal acts (). Unilateral refusal to fulfill obligations is not allowed (). An agreement or law may provide for a sum of money that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of the obligation, in particular, in the event of delay in fulfillment (). Thus, if you stop paying for rent, the court may oblige you to pay a penalty (fines) (decision of the Arbitration Court of the Kemerovo Region dated June 30, 2014 in case No. A27-4911/2014).

OPINION

Anastasia Pomelova, Deputy General Director of VTB Arena Park:

“The more detailed the mechanism by which the rent is calculated, as well as other relations with the counterparty, is specified in the lease agreement, the greater the chances of avoiding unilateral decisions on the part of the lessors. This means that there will be no unresolvable disputes. I think this is the only way that enables the tenant to maintain normal partnership relations with the landlord."

It is obvious that it is impossible to force a person to enter into an agreement on certain conditions. However, if the landlord is no less interested in renting out his home than the tenant is in renting it, then discussing the terms of the future contract and, through negotiations and joint concessions, arriving at provisions that will suit both parties is quite possible. And even if the parties lose some amount of money, they will gain peace of mind and confidence that in the event of a conflict they will be able to go to court and defend their rights to the leased property.

The landlord increases the rent unilaterally. How to help a tenant? (Tkachenko G.)

Article posted date: 09/03/2015

Tenants, when signing a lease agreement, do not always pay due attention to the phrase that “the landlord can unilaterally increase the rent due to an increase in the dollar exchange rate or a change in the market value of the lease.” But they do not take into account that as a result, the cost of rent may ultimately increase exactly twice, or even more. What a tenant can do if a lease has already been signed and a notice of a rent increase has been received from the landlord will be discussed in this article.

WHAT SHOULD A TENANT KNOW?

1. In paragraph 11 of the information letter of the Presidium of the Supreme Arbitration Court Russian Federation dated January 11, 2002 N 66 “Review of the practice of resolving disputes related to rent”, it is explained that “when applying paragraph 3 of Article 614 of the Civil Code of the Russian Federation, courts must proceed from the fact that during the year the contractual condition providing for a firm the amount of rent or the procedure (mechanism) for calculating it."
If the contract included a condition providing for the possibility of changing the amount of rent more often than once a year, such a condition could be declared void, referring to paragraph 3 of Article 614 of the Civil Code of the Russian Federation. For example, I will quote the Ruling of the Supreme Arbitration Court of the Russian Federation dated February 21, 2011 No. VAS-9525/10 in case No. A75-10558/2009:
"...according to paragraph 3 of Article 614 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the amount of rent, unless otherwise provided by the agreement, may be changed by agreement of the parties within the time period provided for by the agreement, but not more than once a year. The law may other minimum terms for reviewing the amount of rent will be provided for certain types of lease, as well as for the lease of certain types of property.
In addition, in accordance with paragraph 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 N 66 “Review of judicial practice in resolving disputes related to rent,” paragraph 3 of Article 614 of the Civil Code of the Russian Federation contains a mandatory rule regarding the frequency of changes in the amount of rent, in connection with which the parties cannot change or establish in the contract a condition different from that provided for by this norm. Therefore, the condition of the contract providing for the possibility of quarterly changes in the amount of rent is void by virtue of Article 168 of the Civil Code of the Russian Federation as not complying with the law..."
However, later the Plenum of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 73 of November 17, 2011 “On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on lease agreements” indicated in paragraph 21:
"...by virtue of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the amount of rent may be changed by agreement of the parties within the time periods provided for in the contract, but not more than once a year (in this case, other minimum periods may be established by law revision of the amount of rent for certain types of lease, as well as for the lease of certain types of property).
This rule is dispositive and allows for changes by agreement of the parties to the terms of the lease agreement on the amount of rent more than once a year, including in cases where there is no indication of the possibility of such a change in the lease agreement itself.
However, if, in accordance with the law or agreement, the lessor has the right to unilaterally change the amount of rent (Article 310 of the Civil Code of the Russian Federation), then, within the meaning of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, such a change can be made by him no more than once a year..."
Thus, the lessor received the right, by unilateral notification, to change the amount of rent, but once a year. I will dwell on the Resolution of the Arbitration Court of the Moscow District dated January 20, 2015 N F05-15294/2014 in case N A40-54476/14:
"...according to clause 6.1 of the agreement, taking into account the provisions of the lease agreement concluded between the parties on December 28, 1993 N 2720/17, rental rates for premises are not subject to change until December 31, 2011, except for the cases provided for in clauses 6.5, 6.6 of this agreement.
The lessor has the right to change the rental rates specified in this agreement in the event of a centralized change in prices and tariffs for utilities, basic land rent rates, property taxes, turnover taxes, in proportion to the size of their increase, but not more than once a year ( clause 6.5 of the agreement).
The courts have established that the plaintiff has repeatedly stated to the defendant about a different increase in the rental rate, attaching a detailed calculation and an additional agreement, to which the latter did not agree, and therefore the plaintiff filed this claim to amend the terms of agreement No. 20/155 dated July 23, 2008 in terms of rental rates.
The court, having examined and assessed the evidence available in the case, including the terms of agreement No. 20/155 dated July 23, 2008, came to the conclusion that there were no grounds for the change in rent rates declared by the plaintiff in accordance with Article 614 of the Civil Code of the Russian Federation, taking into account the circumstances , that from 01/01/2014 the rental rate was increased from 3872.04 rubles. up to 4015 rub. for 1 sq. m per year for office rooms and from 3002.59 rub. up to 3113.94 rub. for 1 sq. m per year for warehouse space.
...The judicial panel does not find any contradiction between the court’s conclusions and the indicated legal position, as well as the court’s incorrect interpretation of the rules of substantive law in this case...”
2. I would like to separately note lease agreements concluded for a period of up to a year. Judicial practice has developed a position according to which the rent under an agreement concluded for a period of less than one year (equal to a year) is not subject to change. For example, Determination of the Supreme Arbitration Court of the Russian Federation dated August 27, 2009 No. VAS-10734/09 in case No. A12-15393/08-C28:
"... while satisfying the claim, the courts reasonably proceeded from the provision of Article 614 of the Civil Code of the Russian Federation that the tenant is obliged to promptly pay fees for the use of property (rent).
In accordance with paragraph 3 of Article 614 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the amount of rent may be changed by agreement of the parties within the time limits specified in the contract, but not more than once a year.
Since the lease agreement was concluded for a period of less than a year, the amount of the rent could not be changed.
Based on the terms of the agreement, the appellate court lawfully changed the decision of the first instance court and recovered the amount of debt based on the amount of rent agreed upon by the parties at the time of conclusion of the agreement..."
I will also give as an example the FAS Resolution Ural district dated July 21, 2010 N F09-5670/10-C6 in case N A71-14477/2009:
"... the company "Glavryba" (tenant) and the company "Aikai" (subtenant) signed a sublease agreement for real estate dated 01.04.2009 N 310/2009, according to which the first floor was transferred to the company "Aikai" for temporary possession and use non-residential premises with an area of ​​381.9 sq. m, located at the address: Udmurt Republic, Votkinsk, st. Ordzhonikidze, 4b, for the period from 04/01/2009 to 12/31/2009 inclusive for organizing trading activities.
In a letter dated 06/08/2009 N 162, the Glavryba company informed the Aikai company about an increase in the rent from 05/01/2009 to 161,565 rubles. 60 kopecks
Since the debt and penalties were not paid in full by the Aikai company, the Glavryba company filed a claim in the arbitration court in the case under consideration.
Having examined and assessed in totality in the manner established by Art. 71 of the Arbitration Procedural Code of the Russian Federation, the evidence available in the case materials, the courts came to a reasonable conclusion that the existence and basis for the debt of the defendant to the plaintiff were confirmed. At the same time, the courts indicated that changing the amount of rent under the disputed agreement after two months from the date of its conclusion contradicts paragraph 3 of Art. 614 of the Civil Code of the Russian Federation, on the basis of which, taking into account the payments made by the Aikai company, the debt of the Aikai company was recalculated..."

1. Even if an agreement is signed between the parties to a lease agreement to increase the rent under an agreement concluded for a period of up to a year or to change the rent for the second time in a year, such an agreement may be considered void. For example, Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 19, 2009 in case No. A11-2018/2009:
"...in accordance with Article 614 of the Civil Code of the Russian Federation, the tenant is obliged to promptly pay payment for the use of property (rent). The procedure, conditions and timing of payment of rent are determined by the lease agreement (Part 1 of this article).
Unless otherwise provided by the contract, the amount of rent may be changed by agreement of the parties within the time limits specified in the contract, but not more than once a year (Part 3 of the same article).
Due to the fact that by civil law, changes in rent are allowed no more than once a year, the court rightfully declared protocol No. 7 of the agreement on rent under agreement dated June 11, 2004 No. 8 void (contrary to current legislation), since in accordance with this protocol the rent increased for the second time per year. Therefore, there was no increase in rent from November 15, 2008, and OJSC Saratovstroysteklo did not have the right to demand unilateral termination of the lease agreement. Consequently, the lease agreement, as amended by the additional agreement to it dated 10/12/2008 N 5, continues to be valid until 12/31/2009.
There are no grounds for canceling the appealed judicial acts based on the arguments presented in the cassation appeal..."
2. The tenant may refer to the fact that a unilateral increase in rent by the landlord is an abuse of right.
This statement is confirmed by Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 N 73 (as amended on January 25, 2013) “On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on lease agreements,” paragraph 22:
"...if, in the absence of state regulation of rent, the lease agreement provides for the right of the lessor to unilaterally change its amount, then in cases where it is proven that as a result of such a unilateral change, it has increased disproportionately to the change in the average market rates paid for the lease of similar property in a given area for the relevant period, and significantly exceeded them, which indicates the landlord’s abuse of his right, the court, on the basis of paragraph 2 of Article 10 of the Civil Code of the Russian Federation, refuses to collect rent in excess of the above-mentioned average market rates..."
As a clear example, the Resolution of the Arbitration Court of the East Siberian District dated August 20, 2014 in case No. A10-1405/2013:
“...as follows from the case materials, the plaintiff justified the unilateral increase in rent with data from the report of ARTOX LLC “On the assessment of the market value of the property being assessed” dated 08/20/2010 N 143/42-10/2.
Considering the dispute and assessing the said report according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, the court found the use of unreliable information about the characteristics of the leased premises and the appraiser’s violation of the requirements of the Law on Valuation Activities and federal valuation standards, and therefore did not take into account the market value defined in it the value of the property being assessed is the annual rent per 1 sq. m. m of storage space, equal to 1884 rubles excluding VAT.
Based on report No. 617 on the assessment of the market value of the rental value of real estate, carried out by the appraiser of LLC "Property Fund of the Republic of Buryatia" Sluginova O.L. According to the decision of the Arbitration Court of the Republic of Buryatia, the court of first instance established the actual market value of the right to use the disputed premises under the terms of the lease.
The results of this assessment were not disputed by persons participating in the case, and no inconsistency of this report with the requirements of current legislation was identified.
In accordance with paragraph 22 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 N 73, if in the absence of state regulation of rent, the lease agreement provides for the right of the lessor to unilaterally change its amount, then in cases where it is proven that as a result of such unilateral changes, it increased disproportionately to the change in average market rates paid for renting similar property in a given area for the corresponding period, and significantly exceeded them, which indicates the lessor’s abuse of his right; the court, on the basis of paragraph 2 of Article 10 of the Civil Code of the Russian Federation, refuses to collect rent in part exceeding the above-mentioned average market rates.
Based on the foregoing, having established that as a result of a unilateral change in the annual rent by the plaintiff, the rent increased disproportionately to the change in the average market rates paid for the rental of similar property in a given area for the corresponding period, and significantly exceeded them, the arbitration court correctly resolved the dispute by collecting the debt in in the amount of a certain market value of the lease of the disputed property and refusing to satisfy the claim..."
3. If you are just about to sign a lease agreement and your landlord insists on his right to unilaterally change the rent, then try to stipulate in the agreement the limits of changes in the cost of the payment or the procedure for calculating the rent if it increases. For example, like this: “The amount of rent may be increased by the lessor unilaterally, but by no more than ___% of the amount of rent specified in clause ____ of this agreement.”
Otherwise, the landlord has the right to increase the rent by any amount.
FAS Resolution Northwestern district dated January 28, 2010 in case No. A05-7679/2009:
"...from clause 3.1 of the agreement it follows that the amount of rent may be increased by the lessor unilaterally in the event of an increase in tariffs for use land plot on which the building is located, in proportion to the area of ​​the rented premises, as well as an increase in tariffs for utility and operating and other expenses, including water supply, sewerage, heat supply and electricity supply.
The courts have established and it is not disputed by the defendant that tariffs for water supply and sewerage, for thermal energy, and electricity were increased compared to 2008, and therefore the landlord’s expenses for utility and operating services increased accordingly.
The defendant’s argument that the increase in rent does not comply with the terms of the agreement, since it was made in an arbitrary amount and is not proportional to the increased costs, was rightfully rejected by the courts on the basis that, having provided in clause 3.1 of the agreement for the possibility of a unilateral increase in the amount of rent, the parties did not stipulate such an increase was proportional to the plaintiff’s expenses incurred to pay for utilities, and also did not provide for the procedure and did not establish the calculation used in the event of a unilateral increase in rent.
Having established the contract price in a specific monetary amount in clause 3.1 of the agreement, the parties also provided for the right of the tenant to unilaterally increase the amount of rent in the event of an increase in tariffs for the use of the land plot, tariffs for utility costs and other expenses.
Thus, the change in rent as a result of its adjustment taking into account the increase in current tariffs does not contradict the said legal norm and the terms of the contract..."

TO SUM UP THE ABOVE:

1. After receiving the landlord’s notice of an increase in rent, all communication with him must take place in writing with notes indicating receipt of documents (letters, notices, agreements) by an authorized person with the date of delivery or by registered mail with notification of delivery and a list of investments. This may be needed as documentary evidence of your words in court.
2. Look at the term of your lease agreement: if the period is less than or equal to a year, then the terms of the rental agreement must remain unchanged during the year. Based on the information provided in this article, send your landlord a reasoned response to the notice of rent increase.
3. Determine whether your situation is one of those described in the article.
3.1. If you signed an agreement that contradicts current civil law, then go to court to have it declared void.
3.2. If you see that the rent has increased clearly disproportionately to market prices, contact an appraiser to establish the actual market value of the right to use the property under the terms of the lease.
After this, tell the landlord your position in writing and include a copy of the appraiser's report.
If the landlord does not cooperate, you can go to court to have the notice of rent increase declared invalid and unenforceable. For example, Resolution of the Federal Antimonopoly Service of the North-Western District dated October 22, 2013 in case No. A05-8698/2012.