RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of November 17, 2011 No. 73

About single questions of practice of application of rules of the Civil code of the Russian Federation about the lease agreement

Due to the questions arising in court practice and for the purpose of ensuring the uniform approaches to the dispute resolution connected using rules of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation) about the lease agreement, the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" decides to give to Arbitration Courts (further - courts) the following explanations.

1. In the cases provided by the law (for example, Items 1 and 3 of article 17.1 of the Federal law "About Protection of the Competition", articles 30-30.2 of the Land code of the Russian Federation (further - ZK Russian Federation), Article 74 of the Forest code of the Russian Federation), the lease agreement concerning the state-owned or municipal property can be concluded only by results of tendering.

With respect thereto the lease agreement of the called property concluded for new term without tendering is insignificant (article 168 Civil Code of the Russian Federation), as well as the agreement on prolongation of such agreement.

At the same time the lease agreement of the state-owned or municipal property can be renewed sine die according to the procedure, stipulated in Item 2 articles 621 Civil Codes of the Russian Federation if this agreement is signed before entry into force of the law requiring obligatory tendering for the conclusion of the lease agreement (article 422 Civil Code of the Russian Federation).

2. According to paragraph one of Item 1 of article 621 Civil Code of the Russian Federation if other is not provided by the law or the lease agreement, the lessee who was properly fulfilling the duties after the term of the agreement has with other things being equal the right, preferential before other persons, to the conclusion of the lease agreement to new term.

Courts should consider that in sense of part three of Item 1 of article 621 Civil Code of the Russian Federation not only the lessee according to the current agreement of lease has the privilege to the conclusion of the lease agreement, but also the lessee under the agreement which was stopped within year to the conclusion of the lease agreement with other person or tenderings for the conclusion of such agreement, on condition of the written notice of the lessor according to the procedure, established by paragraph one of Item 1 of article 621 Civil Code of the Russian Federation, on desire to sign the new lease agreement.

3. As the provisions providing obligation of tendering do not deprive of the lessee of the state-owned or municipal property of the privilege to the conclusion of the lease agreement to new term belonging to it owing to article 621 Civil Code of the Russian Federation, such lessee regardless of whether he was participant of the specified biddings, had the right to demand in court of transfer into himself of the rights and obligations under the agreement signed at the biddings.

The satisfaction of such requirement is not interfered by lack of state registration of the lease agreement with the winning bidder. The court resolution which the claim for transfer of the rights and obligations is satisfied is the basis for entering of the corresponding records into the Unified State Register of Rights on real estate and transactions with it (further - EGRP).

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