Where can I rent a commercial non-residential premises or a warehouse? How to rent a retail space for a store? What is the right way to rent out commercial real estate?

Hello everyone who has looked at the site of the popular Internet magazine "HeatherBober"! The expert is with you - Denis Kuderin.

The topic of today's conversation is the lease of commercial real estate. The article will be useful for businessmen, owners non-residential premises and to all those who are interested in topical financial issues.

At the end of the article, you will find an overview of the most reliable Russian real estate companies that provide intermediary services for the lease of commercial properties.

So let's get started!

1. Why rent a commercial property?

Successful entrepreneurial activity largely depends on a well-chosen premises for doing business. This is especially true for trade and services. A cozy, well-equipped store in a busy part of the city attracts shoppers in itself.

The same can be said for offices. Every self-respecting company should have a good-quality premises for working and receiving visitors. Even if you sell a product through an online store, you need a place for picking and issuing orders, as well as resolving disputes with customers.

Not every businessman, especially a beginner, can afford to buy non-residential premises. In such cases, the lease of commercial real estate comes to the rescue.

We list all the advantages of renting:

• relatively low financial costs;
• simpler in comparison with the purchase procedure for registration of documentation;
• the ability to change the landlord and move to another building at any time;
• a large selection of real estate, especially in metropolitan areas.

The reverse process - renting out premises - also has many advantages. First of all, it is a reliable source of passive income. Acquisition of commercial space (retail, office, industrial and others) is a good investment option.

As long as there is a private business, its representatives will constantly need premises for doing business, which means that property owners will have stable profits without much labor costs.

Finding a suitable premises for a business is a troublesome event. The fastest and most reliable way to find an object is to use the services of professional intermediaries.

There is a detailed article on how modern ones work on our website.

2. How to rent a commercial property - 5 useful tips

When renting commercial properties, you need to be as careful about their choice as possible. The parameters and functional characteristics of the premises determine how soon you can start a business, and whether the object will fully meet the goals of your business.

First, decide how you will look for a suitable premises - on your own or with the help of an agency. The first method assumes the presence of an unlimited supply of free time and is associated with a variety of risks. The second option is safer and more reliable.

For more information on working with intermediaries, see the article "".

Expert advice will help you avoid common tenant mistakes.

Advice 1. Carefully study the hood and ventilation systems

You yourself or your employees will work in the room, therefore the availability of serviceable ventilation systems is the most important point. The lack of powerful and autonomous ventilation in the building is a real obstacle to the normal operation of a cafe, restaurant, grocery store.

Food should be stored in appropriate conditions, and visitors and sellers should not be disturbed by extraneous odors. Moreover, the sanitary services simply will not allow you to use the facility as a catering establishment or a grocery store if it has only general house ventilation.

Tip 2. Focus on the loading and unloading areas

A convenient area for loading and unloading goods is another key point for owners of cafes, restaurants, canteens and shops.

It is important that the area where loading and unloading operations will be carried out does not go out into courtyard residential building or on the roadway. If you interfere with tenants or motorists, you will be tortured with complaints.

The issue of full-fledged power supply is especially relevant for tenants whose business is associated with the use of energy-consuming equipment - refrigerators, electric ovens, machine tools, etc.

Make sure that the electrical cables in the room are large enough to meet the needs of the enterprise in full.

Tip 4. Carefully read the terms of the contract

Before you sign your autograph on the lease, carefully read the terms on which you conclude the deal.

The contract must contain the following points:

• lease terms, cost and method of payment;
• if the premises are rented out with equipment, then an inventory of the property must be drawn up;
• responsibility of the parties for violation of the contract;
• terms of termination of the agreement.

The costs of utility bills, garbage collection, the maintenance of the fire system and burglar alarms are usually borne by the tenant. However, the landlord pays for major repairs, if necessary, including the replacement of plumbing communications and electrical wiring if they fail.

Discuss in advance with the landlord the issue of property insurance - whether such a contract will be drawn up, and if not, decide who will take on the payment of damages in case of unforeseen situations.

It is imperative to check the title documents of the owner - the purchase and sale agreement, an extract from the State Register for the right of ownership.

Make sure that the premises really belong to the person who rents it to you. Otherwise, one day it will appear real owner object with the appropriate authority. It is also important that the premises are not pledged, arrested for debts, and have no other encumbrances.

A person who is far from the intricacies of housing law should use professional help when renting or buying non-residential premises. For example, you can clarify for yourself all the unclear points on the website Pravoved - a resource that employs specialists in all areas of jurisprudence.

You can ask your question even without registration, right on the main page. You will receive a legally correct and competent answer in a few minutes, and completely free of charge. If your problem needs in-depth study, you will need to pay for the services of professionals, but you have the right to set the amount of the fee yourself.

Step 2. Determine the amount of rent

To find out the best price rent, use one of two options. First, personally review the databases of your city and determine an approximate range of prices for renting similar premises. Second, delegate this task to a realtor.

By the way, in addition to real estate agencies, intermediary services are provided by private brokers. They usually charge 25-50% less for their work than companies. However, there are only a few private specialists working with non-residential real estate, even in large cities.

5. If you rent out commercial real estate - 3 main risks for a landlord

Each landlord is worried about the condition of his property and wants to get profit from the rental, not losses.

We will list the main risks of commercial real estate owners and show you how to avoid them.

Risk 1. Use of the premises for other purposes

Each well-written lease agreement indicates for what purpose and how the rented premises will be used. This also applies to equipment that you rent with the rental.

If the tenant promised to use the premises as a warehouse, but set up a retail store in it, you have the right to fine him or terminate the agreement without refunding the rental cost.

Risk 2. Damage or loss of property

You handed over the facility and equipment to a respectable, as it seemed to you, citizen, but he, in diplomatic language, did not live up to your expectations. Namely, he brought the premises to a state of devastation, broke the equipment, unscrewed the light bulbs and, in general, behaved like a pig.

In such cases, the owner has the right to demand full compensation for damage. Moreover, not only the cost of repairs should be reimbursed, but also the market value of the damaged equipment.

Liability is not provided if the object and property were damaged as a result of unforeseen circumstances - for example, from a fire or flood.

Risk 3. The tenant refuses to pay the monthly fee

Careless payers should be punished with a ruble. However, this is possible, again, if the lease is drawn up according to all the rules. That is, the document must clearly stipulate the terms and amount of monthly payments.

6. If you rent commercial real estate - 3 main risks for a renter

The tenant can also suffer as a result of illegal or unauthorized actions of the landlord.

Risk 1. Lease of premises to which the "landlord" has no legal rights

If you are rented out by a person who does not have the legal rights of the owner to the object, the contract will be considered invalid. To avoid this, require the presentation of title documents.

You can independently obtain an extract from Rosreestr by contacting the Multifunctional Center. The service is paid, but you will know for certain who is the boss in the house.

Risk 2. Changing the locks in the room immediately after making an advance payment

Yes, such situations still occur in nature. You sign a contract, make an advance payment, get the keys from hand to hand, and when you want to enter the premises with your property, it turns out that the locks have been changed, and the "owners" are gone.

There is only one way out in such a situation - to contact the police and initiate a criminal case on the fact of fraud.

Risk 3. Sublease

The best way to clarify the point here is with a simple example.

Example

The tenant Andrey, an aspiring entrepreneur, rented premises for a store for a year, paying for six months in advance. At the same time, the businessman did not check the title documents, relying on the honesty of the lessor.

After a month of successful trading, the real owner appeared in the store with a full set of original documents. He politely asked the tenant to move out of the occupied area. Andrey tried to find a subtenant in order to at least return his money paid in advance, but the enterprising intermediary did not answer either calls or SMS.

Conclusion: deal directly with the owner. At the very least, he should be aware of all the manipulations that occur with his property.

7. Professional help for tenants and landlords - an overview of the TOP-3 real estate agencies

Finding a qualified intermediary is difficult. To help our readers, we have compiled an overview of the most reliable commercial real estate companies in Russia.

1) Agency.net

Real estate management agency. It will help landlords and tenants lease and rent: office, retail space, workshop, warehouse, mansion and any other commercial property. The company employs only experienced and qualified lawyers and realtors.

A significant plus of the firm is the professional approach, the presence of a detailed website, the development of an individual strategy for each client of the office. There are no services related to real estate that the company's specialists could not provide to users.

Commercial real estate in Moscow and the region is the main specialization of the company. Respect has been operating on the market since 2004. The agency's goal was initially to provide clients with the widest range of services related to the lease, purchase and sale of real estate.

Registration (permanent registration) in Moscow, in an apartment at a low cost. We provide full legal support from A to Z, starting from the selection of living quarters (checking it) and ending with the support of the transaction in government agencies. Always, at least 9 - 11 districts of your choice. Registration takes place strictly within the framework of the law, only officially through the MFC or directly through the Migration Office. The presence of the owner of the home and the person who is required to register. (Permanent registration in Moscow) You will be stamped in your passport from 30 minutes to 5 working days, depending on the chosen method of filing documents. If you want to buy a residence permit in Moscow, then this is not for us. We do not sell it, we offer legal support for registration.

Moscow registration

A Moscow residence permit is issued taking into account all the norms and standards established by the Russian government, strictly through state bodies. In the apartment where you will be registered, besides you, another 5 - 8 people will be registered. No rubber flats! Moreover, rubber flats are criminally punishable.

Permanent registration in Moscow is where your success begins.

Once again, we want to repeat and convey to you that permanent registration in Moscow, which is formalized through our company, is 100% official. With her, you can get everything that is required by the law.

Place your child in school or kindergarten.

Register your vehicle with the traffic police.

Good job in Government and commercial organizations.

Receive loans from the bank, including mortgage loans.

Free of charge health care, in state clinics.

Obtain a new or exchange an existing foreign passport.

Get a driver's license.

Receive a pension that is due by law.

Registration in Moscow for

Registration in Moscow for Citizens of the Russian Federation is a rather demanded service these days. As trite as it may sound, almost any Russian who comes to work in Moscow is faced with the state bureaucratic machine.

Registration in Moscow for foreign citizens

- this is a necessary step in further obtaining citizenship of the Russian Federation. Indeed, according to the law, a person who has received a temporary residence permit must issue a residence permit for the entire period of a Temporary Residence Permit.

It is legally necessary to obtain a residence permit for a Residence Permit or registration for a residence permit in Russia for all 5 years of the validity period of the Residence Permit.

Why do we have a residence permit in Moscow at such an affordable price?

Elementary! We are the final company that provides this service. Let's open the curtain a little, we have about 6-8 intermediaries who bring clients to us, with their "wind-up cost". We are not intermediaries! Our price, first-hand.

Another fact: there are many offers on the Internet for registration through the purchase of a share. This is a very expensive process and the price can go up to 1,200,000 rubles. We have an affordable product, no worse: a residence permit in Moscow without the right to a living space. or contact us and register for much less money? the unequivocal answer is no. It all depends on your goals and financial capabilities. And what is right for you requires analysis.

However, regardless of your choice, you need to remember that registration in Moscow is issued within 6 regulated days by the State Authority.

Deficit and high cost of hotels in the capital and others large cities made daily rent for visitors one of the most convenient options temporary placement. It's a paradox, but renting a separate apartment with a kitchen and everything you need for life costs less than a decent hotel room. Demand naturally spurs supply as well. Therefore, is it any wonder that more and more private investors are engaged in short-term apartment rentals, having only one "odnushka" in their arsenal, and there are plenty of specialized companies offering clients in addition to a dozen or more apartments an additional service in the capital. The times when the only realtors who rent out "an apartment for the night" were grandmothers at the station are over.

Rent without a future

“In terms of price, the cost of daily rented apartments is the same or cheaper than a hotel room of the corresponding level. The difference can reach 20-30%, - says Dmitry Taganov, head think tank company "Inkom-real estate". “In addition, a tourist or a business traveler who has come to the capital for several days has a fully equipped kitchen where you can prepare lunch or dinner on your own. And when placing in a hotel, you will either have to leave a lot of money in a restaurant every time, or look for a decent cafe or restaurant nearby. And it is not a fact that a worthy institution will be a stone's throw away. " The hotel will have to pay for each additional service- shirt washing and ironing, shoe care, etc. In a rented apartment, no one will present an additional bill for the fact that the employer used an iron, washing machine or shoe brush.

As for the landlord, for him the main advantage of a short-term business is the ability to "exit the project" at any time without prejudice. For example, if the apartment is needed for personal needs - the residence of the owner himself, his children or parents, the landlord does not need to wait several months before the contract with the tenant ends, as is often the case with long-term rentals. Moreover, the lease agreement for long term often provides for the payment of a penalty to tenants in the event that it is torn apart through the fault of the owner of the apartment. Renters of daily apartments rarely stay in for more than ten days.

Daily rent makes sense if you are looking to sell an apartment. The time for exhibiting apartments may take several months, especially now, when the demand even for liquid housing is at an extremely low level, but do not miss the opportunity to make money on an apartment that is idle while waiting for the buyer. Daily rent will make it possible to organize displays of the object almost at any time, with long-term rentals, you will have to coordinate the time of visits with the tenants. Also "business for a day" is justified as an option for diversification. If you own two or more apartments, then it is advisable to rent one of them for a long time, and the other for daily rent. Moreover, in Moscow, the seasonality of tourism is less pronounced, and the flow of visitors is stable all year round.

At first glance, daily rent looks even more profitable than long-term. “The cost of a small two-room economy class apartment with good cosmetic repairs, necessary household appliances and furniture will be about 3-4 thousand rubles. per day. It turns out that when renting such an apartment for 20 days a month, you can count on income in the amount of 60-80 thousand rubles. While for a long-term lease, its cost will be in the region of 35-45 thousand rubles. per month ”, - Dmitry Taganov gives an example. At the same time, the rates on the long-term rental market have been steadily decreasing recently, and the profitability from it today does not exceed 4–5%.

No guarantees, no insurance

But it cannot be said that the business of renting housing for a short period is simple. There are many more complexities associated with it than it seems at first glance. The main problem of a daily landlord is the lack of a guaranteed income. With a long-term lease, it is enough to find a client once, conclude a contract - and you can live in peace for a year, receiving a stable monthly income. And in the case of a short-term search for new guests is ongoing.

Since the fall, Dmitry K. decided to rent out his apartment in the center of St. Petersburg for daily rent. And from my own experience I was convinced that this business in practice is not as profitable as it seems in theory. “When I rented it under a long-term contract, I always had a guaranteed 30 thousand rubles. per month. Now there is more trouble and less payback, ”he says. Month by month is not necessary. Once Dmitry was very lucky: one family rented an apartment for 20 days, which was doing repairs in their own housing, and, since it dragged on, they had to extend the lease for the same period. But this was the only case. The rest of the time the apartment is occupied on average ten days a month. “However, there are quite objective reasons. First, winter is not tourist season for Petersburg. Secondly, the crisis. The main contingent of clients is tourists and business travelers, and the number of both last months has decreased significantly, ”Dmitry believes.

Svetlana Aleksashina, the manager for renting the housing stock of the Petersburg Real Estate company, notes that the demand for daily housing is uneven and really depends to a large extent on the season: “Before the New Year there was a sufficient number of people who wanted to rent an apartment for several days: many people from other cities came to their friends, relatives to spend the holidays here. Now on the market daily rent calm, but it is traditional for this time of year. Revival, as always, will come in May-June: the season of white nights annually attracts tourists to the city on the Neva. " However, recently the competition in the daily rent market has become even tougher: numerous mini-hotels have appeared, and many visitors preferred this segment to apartments.

There are, of course, alternative ways to ensure a more stable flow of tenants. But these are already options for an amateur. You can, for example, rent an apartment for holidays and parties - for this purpose, real estate in convenient areas is always in demand. But here you need to be aware of the consequences for the condition of the apartment. No one, having paid money, will not take care of the property of the owners. Another option is to rent apartments for female leisure employees. It also guarantees stable profits. “But such apartments quickly deteriorate,” notes one of the landlords. “Besides, when an apartment is located in a decent house, you absolutely don't want to spoil relations with neighbors.”

The constant search for clients is by no means the only problem that awaits the landlord. An apartment for daily rent requires much more attention. After each client, the owners need to put the house in full order, do cleaning, provide fresh bed linen, etc. Moreover, such objects lose their appearance much faster. “Guests are constantly changing, and it is not at all a fact that all of them will be extremely sensitive to new furniture and household appliances. Therefore, the owner daily apartment you will have to do cosmetic repairs much more often than in an apartment rented for a long time. And also pay for insurance against the risk of damage, ”says Dmitry Taganov. True, as noted by the St. Petersburg landlord Dmitry K., buying insurance is too much of a luxury: the insurance companies either refuse to insure such apartments at all, or break too high rates.

With a short-term rental, the risk of facing fraud or crime is much higher. Dmitry K. had already had such an experience. New Year he came to visit the apartment, which at that time was empty, but found that he could not get inside: the key, for some unknown reason, did not fit the lock. Looking closely at the door, Dmitry discovered that the lock had simply been replaced. I had to call an employee of the Ministry of Emergencies, who opened the door and let in the rightful owner. Once in the apartment, Dmitry found many other people's things, a decorated Christmas tree, bottles of alcohol - in a word, clear signs that the apartment was inhabited. After a while, a new "tenant" appeared, who met the real owner of the apartment with indignant questions about the reasons for the latter's stay on the territory of someone else's apartment. It turned out that he rented an apartment through a real estate agency and paid immediately for three months in advance. Gradually, the details of the fraud became clear: shortly before the New Year, a woman rented an apartment for a couple of days, who, according to her, arrived from Sochi. In such a short time she managed to make duplicate keys, and after her official "departure" she returned, changed the lock and under the guise of a realtor, she agreed to rent the apartment to another person. She took an advance payment from him - and disappeared in an unknown direction.

Dmitry was lucky: the illegal tenant vacated the apartment without claims, and, apart from time and nerves, the owner did not suffer any losses. But in a different scenario, the fraudster might not have bothered with the retake, but simply take all valuable property and equipment out of the house. To minimize the risks, you should at least make a copy of the client's passport, but this will not insure you 100% against fraudsters.

Trust or independence?

If you want to rent out your apartment for daily rent, there are two ways in front of you: to transfer the apartment to trust management to a real estate agency or to rent it yourself.

With trust management, on the one hand, the owner is relieved of all the hassle. On the other hand, there remains the risk of fraud on the part of realtors. Agents can simply cheat by underestimating the number of days during which the apartment was rented out, and keep part of the income for themselves. You can't go to the apartment every day and check.

If you take matters into your own hands, you will have to use as many channels of information as possible to find clients. However, this is not too difficult. It is worth typing in "Yandex" or another search engine the words "daily rent" - and there and then you will have a choice of dozens of websites of agencies offering apartments for rent. Almost all of them cooperate with apartment owners. You will need to make a standard description of the proposed housing, indicate all its basic parameters and take a few photos (kitchen, bathroom and bedroom). Photos and descriptions are posted on the agency's website. The owner of the apartment indicates how much he would like to receive per day, and realtors add their wrap on top of this figure. For example, if an apartment "from the owner" costs 2 thousand rubles, then the agency will offer it for 2.5-3 thousand. In this case, deception on the part of intermediaries is hardly possible, since the agency plays exclusively the role of a connecting link. It directs the client, and the owner of the home is already in contact with him: he shows the apartment, and change of linen, and cleaning, and the most pleasant thing is getting paid. Then he already gives the commission to the agency.

In the presence of several apartments, daily rent turns into a full-fledged business, which requires not only initial investments, but also regular expenses. Either outsourcing cleaning services will be required, or the creation of our own operation unit, which will take over the cleaning of apartments, washing and changing bed linen, minor repairs, etc. In addition to the service personnel, an accountant is also needed. You will need to establish relationships with people who are able to resolve any conflict situation with the tenants. An important element of this business is the creation and promotion of an effective website on the Internet. “It looks very difficult, but in practice it may turn out to be the opposite. In the course of the activity, business relations are established with certain organizations, for example, with representative offices of Western firms, as a result of which this business becomes more stable and secure. Moreover, you can receive additional income by providing related services: transport, tourist, etc. ", - says the managing director of the company" Century 21 West "Evgeny Skomorovsky.

Recipe for success

Not every apartment will be rented equally well. There are a number of parameters on which its demand among potential tenants will depend. First, the location of such housing is important. “For short-term rentals, small apartments in the Central District of Moscow, for example, in Stalinist houses, are especially in demand. Areas with large exhibition centers are also popular, ”says Vadim Lamin, head of the exclusive department of the Penny Lane Realty luxury apartment rental department. At the same time, the parameter “walking distance of the metro” remains an important parameter - just like when buying or long-term lease.

If an apartment rented for a long time can be minimally furnished, then in the case of a short-term rental such a number will not work. Everything should be here in order to provide residents with a comfortable alternative. hotel room... A person arriving at a hotel does not bother to take with him soap, towel, toothpaste, linen. All this he receives on the spot. For daily rentals, you need to ensure the same.

The room should have a comfortable wardrobe and a sleeping place. The kitchen must be equipped with a refrigerator, kettle and microwave. The latter is a more indispensable element than a plate. “Few of the visitors are involved in serious cooking. They either eat in a cafe or prefer to buy ready-made food and warm it up, ”says realtor Sergei. A TV is required in the room, and a DVD player has also become popular recently. Such trifles often play an important role, especially since the competition in the daily rental market is great, and there is practically no difference in prices.

Short term rent: PRO & CONTRA

1. Potentially higher income than long term rentals.

2. The ability to go out of business at any time.

3. Free disposal of the apartment (you can sell, settle relatives, etc. at any time).

1. Lack of guaranteed income.

2. The need for constant search for new customers.

3. The apartment often requires repair, it loses its presentation faster.

4. More labor-intensive business: the apartment needs to be put in order after each client, it is necessary to provide residents with a complete "hotel" set - linen, dishes, furniture and household appliances.

The principle of freedom of contract makes it possible to establish a mechanism for determining the amount of rent that is convenient for the lessee and the lessor. This can be either a fixed amount paid on a monthly basis, or an amount that includes reimbursement of maintenance costs for the rented object. In the latter case, the wording of the contractual clause requires special attention.

The procedure, conditions and terms for making the rent are determined by the lease agreement (clause 1 of article 614 of the Civil Code), and in their absence, the procedure, conditions and terms of payment usually apply when renting similar property under comparable circumstances. A similar rule is established in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation for the contract price: if it is absent in the text of the agreement, the performance of the contract must be paid at a price that, under comparable circumstances, is usually charged for similar goods, works or services.

But when concluding a lease agreement for real estate, this rule is not applicable, since rent is an essential condition for it (Article 432 of the Civil Code of the Russian Federation). In the absence of a condition on the amount of rent agreed by the parties in writing, the real estate lease agreement is considered not concluded (Article 654 of the Civil Code of the Russian Federation).

The terms of the rent must be formulated in such a way that it is possible to determine exactly when and in what amount the tenant is obliged to make the corresponding payments. The contract may establish a fixed amount of rent or the procedure (mechanism) for calculating it. In the latter case, the rental condition will also be considered agreed.

The amount of rent can be changed by agreement of the parties within the time frames stipulated by the contract, but not more often than once a year, unless otherwise provided by the contract (clause 3 of article 614 of the Civil Code of the Russian Federation). A change in the amount of rent in accordance with the mechanism provided for in the agreement does not constitute a change in the lease agreement, and, therefore, does not fall under the restrictions mentioned above (clause 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66, hereinafter - Information letter No. 66). For example, the condition on the indexation of rent depending on inflation does not contradict this restriction. Although the amount of rent is changing, the procedure for calculating it remains unchanged.

It is better to provide for the consequences of the loss of the status of a VAT payer by the lessor in the contract.

It is recommended to indicate in the lease whether the amount of the rent includes value added tax (VAT). And if it does, then it will also be necessary to determine which part of the indicated amount is rent and which is VAT. For example, indicate the current tax rate in order to avoid disputes in the future when the tax rate changes during the period of the contract. It is also recommended to indicate in the agreement that no VAT is charged on the amount of the rent if the lessor is not the payer of this tax.

All this must be done, as otherwise the parties may have disagreements about the amounts to be paid as rent. The position of the courts on this issue is ambiguous, and as a result, the lessor may receive a rent in an amount less than expected (resolution of the Federal Antimonopoly Service of the West Siberian District of 17.09.2010 in case No. A70-14225 / 2009), and the lessee may be forced to pay VAT in excess the amount of the rent (Determination of the Supreme Arbitration Court of the Russian Federation dated 10.02.2010 No. VAS-1414/10 in case No. A51-7727 / 2009).

A situation is likely when the landlord was originally a VAT payer and in the contract the amount of the rent was agreed upon taking into account the tax, but later the obligation to pay this tax ceased. For example, when the lessor switches to the simplified taxation system (clause 2 of article 346.11 of the Tax Code of the Russian Federation) or in the case of a change in the owner of the leased property, if new owner is not a VAT payer. In this regard, it is in the interests of the lessee to include in the contract a clause stating that in the event of termination of the lessor's obligation to pay VAT, the rent is reduced by the amount of tax. If such a condition is not agreed, the court may refuse to satisfy the claim for the return of the excessively paid rent in the amount of tax (resolution of the FAS of the Volgo-Vyatka District of 05.08.2011 in case No. А43-24309 / 2010). At the same time, there is another position, when the payment with the included VAT amount is recognized as unjust enrichment of the lessor (resolution of the FAS of the Volgo-Vyatka District of January 15, 2010 in case No. A29-2100 / 2009).

Rent can include fixed and variable parts

The rent cannot be set in the form of payment by the tenant for utilities (electricity, water, heat), fuel and lubricants and other materials consumed when using the leased object. The fact is that with such a payment, the lessor does not actually receive any remuneration from the tenant for the right to use the leased object, and this contradicts the paid nature of the contract (clause 12 of Information Letter No. 66).

In order to reimburse the cost of utilities consumed by the tenant, the parties increasingly indicate in the agreement that the rent consists of two parts - constant and variable. The size of the fixed part is determined as a fixed amount (or a mechanism for calculating it), and the variable part is defined as the cost of utilities consumed by the tenant.

The condition that determines the procedure for payment of utility bills is an important clause of the contract. After all, contracts with resource supplying organizations are concluded by the lessor and invoices are issued in his name, and the tenant will be obliged to reimburse such expenses, if this is provided for in the agreement. Utilities and other payments include the cost of water supply and sewerage services, telephone communications, consumed electricity, heat supply (gas supply), as well as fees for cleaning premises, garbage disposal, etc.

Accounting for utility and maintenance payments as part of the rent is possible in several ways. First, you can set a fixed rent, which already includes the cost of such payments. The tenant then pays a fixed rent every month. Secondly, it is permissible to determine the amount of rent without taking into account the cost of utilities, indicating the tenant's right to independently conclude contracts with resource supplying and service organizations. It should be borne in mind that the conclusion of such agreements will entail for the tenant the emergence of additional obligations to such organizations. And, thirdly, the parties have the right to set the rent, consisting of a fixed and variable part.

In the latter case, the rent consists of the payment in part of the rented premises in a fixed amount (fixed part) and rent in terms of reimbursement of the cost of utilities actually consumed by the tenant (variable part).

It is better to fix the amount of the variable part of the rent for each month separately.

In practice, the amount of rent in terms of reimbursement of the cost of electricity consumed by the lessee is determined either on the basis of the readings of the electricity meter installed separately for the lessee, or by the installed capacity by taking into account the capacity of all electrical appliances operating in the premises and the approximate duration of their operation. The amount of water or gas consumed can also be determined by the meter. The calculation of the cost of heat supply services depends on the total heated area, calculated in cubic meters. Reimbursement of costs for telephone communications is made on the basis of data on the state of the personal account provided by the communications organization.

To recognize the fixed part of the rent as an expense, the lessee only needs to have the lease in which it is defined. To recognize the variable part in expenses, a separate primary document is required, which will reflect the cost of utilities consumed by the tenant with a breakdown by type of service and with links to the relevant documents and the amount of the variable part of the rent for the month calculated in accordance with the lease agreement.

What is this primary document? When concluding an agreement, the parties to the lease agreement agree on this issue independently in relation to a specific situation. It can be a bilateral act, and a reference-calculation of the lessor's accounting department. The main thing is that the document used contains all the mandatory details listed in Art. 9 of the Federal Law dated 06.12.2011 No. 402-FZ "On Accounting" (clause 1 of the letter of the Federal Tax Service of Russia dated 04.02.2010 No. ShS-22-3 / [email protected]).

If, in accordance with the agreement, the rent (or part of it) is a variable value, then in order to recognize this amount as part of expenses, the lessee must receive a primary document from the lessor on a monthly basis, since the amount of rent varies from month to month. And when determining the rent in a constant (fixed) amount in the contract, monthly acts confirming the amount of the payment are not needed, since the amount of the rent does not change.

It is worth remembering that it may be difficult to draw up the primary documentation, since the lessor is not a supplier of utilities to the tenant, but actually acts as the tenant's “agent” in transferring payments for services rendered by resource supplying organizations. For the landlord, these payments are not income, but compensation for expenses.

Rent from the lessor, including variable

Lease relations are very popular among business entities. By providing "free" property for rent, landlords use it to generate additional income, and tenants, in turn, for a certain fee, get the opportunity to use other people's movable or immovable property.

In this article, we will consider the issues of accounting for rent received by the landlord from the tenant.

In accordance with article 614 Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation) the main obligation of the lessee is the timely payment of the rent for the use of the property in the amount and terms stipulated by the lease agreement.

The rent is set in the form:

- defined in a fixed amount of payments made periodically or at a time;

- the established share of products, fruits or incomes received as a result of the use of the leased property;

- provision of certain services by the lessee;

- transfer by the lessee to the lessor of the thing stipulated by the contract into ownership or lease;

- imposing on the lessee the costs of the improvement of the leased property stipulated by the contract.

The parties may provide in the lease agreement for a combination of the specified forms of rent or other forms of payment for the lease.

The most common type is the establishment of rent in the form of fixed payments, made periodically or in a lump sum.

Several objects can be transferred under a lease agreement. In this case, the rent can be set both for the whole of the leased property, and for each object separately. In order to avoid further disagreements between the parties to the agreement, it is better to set the rent separately for each object leased out.

Variable rent, set monthly, by agreement of the parties, in order to compensate for utility bills, according to the author, does not fully comply with the law. At the same time, from the point of view of the tax authorities, with such a rent, the lessor will be able to recognize only the costs of purchasing fuel, water and energy of all types spent for technological purposes, generation of all types of energy, heating of buildings, as well as costs of transformation and transmission of energy consumed them directly, without taking into account those consumed by the tenants (Letter of the Federal Tax Service of the Russian Federation for the Moscow Region dated November 13, 2006 No. 21-25-I / 1372). Unlike the lessee, who has the right to include both fixed and variable components of the rent in the composition of expenses accepted for taxation of profits (Letter of the Federal Tax Service of the Russian Federation for the Moscow Region dated November 13, 2006 No. 21-25-I / 1372).

According to the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 "Review of the practice of resolving disputes related to rent", in paragraph 11 of which 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 within a year the condition of the contract should remain unchanged, providing for a fixed amount of rent or the procedure (mechanism) for calculating it. The lessee appealed to the arbitration court with a claim against the lessor to invalidate the terms of the lease agreement, which provides for a quarterly increase by the lessor of the amount of rent by indexing it taking into account inflation, since this condition contradicts the peremptory norm of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, which establishes the possibility of changing the amount of rent no more than once a year. But the court, though only in the case under consideration, established that the determination of the rent rate in an amount equivalent to a certain amount in foreign currency means the establishment of a mechanism for its calculation. This determination of the amount of rent is intended to eliminate the adverse effects of inflation. A change in the exchange rate of a foreign currency does not mean a change in the amount of rent in accordance with paragraph 3 of Article 614 of the Civil Code of the Russian Federation. As a result, it turns out that in order to introduce a variable rent, it is necessary to have a clear algorithm for calculating it, prescribed in the contract, otherwise, it is easy to lose the lawsuit.

The terms for making the rent are determined by the contract. At the same time, the parties can provide for any procedure for its introduction: monthly, quarterly, once a year, by making a prepayment or with a deferred payment.

Clause 3 of Article 614 of the Civil Code of the Russian Federation stipulates that the rent can be changed by agreement of the parties within the terms provided for by the contract, but not more often than once a year. At the same time, the amount of rent can both increase and decrease.

The lessee has the right to demand a reduction in rent in the event of:

- if, due to circumstances for which he is not responsible, the conditions of use provided for by the lease agreement, or the condition of the property has significantly deteriorated;

- if the lessor violated the conditions for the overhaul of the leased property;

- if the lessor did not warn the tenant about the rights of third parties to the property when concluding a lease agreement.

In the event of a significant violation by the tenant of the terms of payment of the rent, the lessor has the right to demand from him an early payment of the rent within the period established by the lessor. At the same time, the lessor does not have the right to demand early payment of the rent for more than two consecutive terms (paragraph 5 of Article 614 of the Civil Code of the Russian Federation).

Rent in accounting.

The procedure for reflecting lease payments in the lessor's accounting depends on whether this activity is the main one or not.

In accordance with clause 5 of PBU 9/99 "Income of the organization" (Order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 32n "On approval of the Accounting Regulations" Income of the organization "PBU 9/99" (hereinafter - PBU 9/99)) in organizations whose subject of activity is the provision for a fee for temporary use (temporary possession and use) of their assets under a lease agreement, the proceeds are considered receipts, the receipt of which is associated with this activity (rent).

Chart of accounts of accounting and Instructions for its application (Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n "On approval of the Chart of accounts for financial and economic activities of organizations and instructions for its application") to summarize information on income and expenses related to the usual type of activity of the organization, as well as to determine the financial result on them, account 90 "Sales" is intended.

Proceeds from the provision for a fee for temporary use (temporary possession and use) of their assets under a lease agreement (when it is the subject of the organization's activities) is reflected in account 90 "Sales" subaccount 90-1 "Revenue".

If the provision of assets for lease is not the main activity of the organization, then, according to paragraph 7 of PBU 9/99, receipts related to the provision for a fee for temporary use (temporary possession and use) of the organization's assets are recognized as other income, and are reflected in the credit of account 91- 1 "Other income".

In this case, the costs associated with the provision for a fee for temporary use (temporary possession and use) of the organization's assets are recognized as other (clause 11 PBU 10/99 "Organization's expenses" (Order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 33n "On approval Accounting Regulations "Expenses of the organization" PBU 10/99 ")).

In order to determine which type of activity to include operations on the transfer of property for rent, you need to refer to paragraph 4 of PBU 9/99.

In accordance with the specified paragraph in accounting, the organization independently recognizes income as income from ordinary activities or other income, based on the requirements of PBU 9/99, the nature of its activities, the type of income and the conditions for their receipt.

In other words, the organization must independently decide what type of activity the transactions for the transfer of property to lease belong to, and fix this in the accounting policy of the organization. This condition is determined by the Charter of the organization, where most often the lease of property is provided as a type of activity, respectively, the lessor recognizes income as income from ordinary activities.

If the rent will be reflected by the organization in accounting as income from ordinary activities, then the following entries are made in the accounting:

Debit of account 62 "Settlements with buyers and customers" Credit of account 90-1 "Revenue" - the amount of lease payments to be received is reflected;

Debit of account 90-3 "Value added tax" Credit of account 68-2 "Calculations for value added tax" - the amount of VAT payable to the budget is reflected;

Debit account 51 "Settlement accounts" Credit account 62 "Settlements with buyers and customers" - reflected cash received from the tenant.

Transferred as a single payment for the entire period of the lease agreement, the rent is considered as a prepayment and is recorded on account 62 "Settlements with buyers and customers" subaccount "Settlements for prepayment".

If the rent is reflected in the lessor's accounting as other income, then the following entries are made in the accounting:

The debit of account 76 "Settlements with different debtors and creditors" subaccount "Settlements for rent" Account credit 91-1 "Other income" - reflects the accrual of rent to be received;

Debit of account 91-2 "Other expenses" Credit of account 68-2 "Calculations on value added tax" - VAT charged;

The debit of account 51 "Settlement accounts" Account credit 76 "Settlements with various debtors and creditors" subaccount "Settlements for rent" - reflected the money received from the lessee.

The lump-sum amount of the lease payment of the organization, in which the transfer of assets to lease is not the main activity, is accounted for in account 98 "Deferred income" subaccount 98-1 "Income received on account of future periods".

On subaccount 98-1 "Income received on account of future periods" the movement of income received in the reporting period, but relating to future reporting periods, is taken into account.

The amount of income related to future reporting periods is reflected in the credit of account 98 "Income of future periods" in correspondence with accounts for accounting for cash or settlements with debtors and creditors, and in debit - the amount of income transferred to the corresponding accounts at the onset of the reporting period, to to whom these revenues are attributed.

Analytical accounting on account 98-1 "Income received for future periods" is maintained for each type of income.

The rent is recognized in accounting based on the assumption of temporary certainty of the facts of economic activity and in the presence of the conditions listed in paragraph 12 of PBU 9/99:

- the organization has the right to receive this proceeds arising from a specific contract or otherwise confirmed accordingly;

- the amount of revenue can be determined;

- there is confidence that as a result of a particular transaction there will be an increase in the economic benefits of the organization.

If in respect of monetary funds and other assets received by the organization in payment, at least one of the listed conditions has not been fulfilled, then the accounts payable, and not the proceeds, are recognized in the accounting of the organization.

Example.

The organization entered into an equipment lease agreement for a period of three months. The amount of rent per month is 17,700 rubles (including VAT - 2,700 rubles).

The lease payment in the amount of 53,100 rubles (including VAT - 8,100 rubles) was transferred by the tenant immediately for the entire period of the lease agreement.

The lessor organization uses the following sub-accounts of the working chart of accounts:

62-1 "Calculations for rent";

62-2 "Settlements in advance payment".

The following entries were made in the accounting of the organization - the lessor:

Debit 51 Credit 62-2 - 53,100 rubles - the amount of advance payment for the rented equipment is reflected;

Debit 62-2 Credit 68-2 - 8,100 rubles - VAT is charged on the prepayment amount (clause 1 of Article 167 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation));

Debit 62-2 Credit 98–45,000 rubles - the amount of prepayment is reflected as deferred income;

Debit 62-1 Credit 91-1 - 17,700 rubles - accrued rent for the reporting period;

Debit 91-2 Credit 68-2 - 2,700 rubles - VAT charged on the rent of the reporting period;

Debit 68-2 Credit 62-2 - 2,700 rubles - accepted for deduction of VAT from the prepayment amount;

Debit 98 Credit 62-1 - 15,000 rubles - the amount of the rent previously recorded as deferred income is reflected.

The landlord must issue an invoice to the tenant for the rent.

According to clause 3 of Article 168 of the Tax Code of the Russian Federation, an invoice is issued no later than five calendar days, counting from the date of the provision of services.

Issuance of invoices for the sale of services for the provision of rental property is possible not earlier than the end of the tax period, at least the month in which the services were actually rendered.

Rent in tax accounting.

The provision of property for rent is the main activity of the organization.

According to article 249 of the Tax Code of the Russian Federation, the rent received from the lessee is classified as income from sales. The main types of activities are determined by the Charter of the organization, where most often the lease of property is provided as a type of activity.

If an organization recognizes income and expenses on an accrual basis for the purpose of taxation of profits, then income is recognized in the reporting (tax) period in which they occurred, regardless of the actual receipt of funds, other property (work, services) (paragraph 1 of Article 271 of the Tax Code RF).

For organizations that systematically provide for a fee for temporary use and (or) temporary possession and use of their property, the costs of such activities are related to the implementation (subparagraph 1 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation).

If the lease agreement provides for an uneven schedule of lease payments, then, according to the latest clarifications of the Ministry of Finance of the Russian Federation, given in Letters dated April 17, 2009 No. 03-03-06 / 1/258, dated April 2, 2009 No. 03-03-06 / 1 / 212, the taxpayer, on the basis of subparagraph 3 of paragraph 4 of Article 271 of the Tax Code of the Russian Federation, must in such cases take into account rental payments in income, based on the amounts provided for in the payment schedule. A similar position is contained in the Resolution of the FAS of the Ural District of December 16, 2008 in case No. F09-9466 / 08-C3.

According to the author, an uneven payment schedule also occurs when the rent is paid once for a long period of time, for example, once a year or every six months. At the same time, a one-time inclusion of such a fee in income is not entirely profitable for the organization, since it will lead to a one-time payment of income tax or an advance payment in a larger amount. Therefore, it is more expedient to distribute such incomes over the reporting periods. However, taking into account the position of the Ministry of Finance of the Russian Federation, such an approach may give rise to claims from the tax authorities.

It should be noted that earlier officials indicated that income in the form of rent payments is recognized in tax accounting taking into account the principle of equal recognition of income and expenses, regardless of their actual payment. At the same time, the monthly conclusion of acts of services rendered under a lease agreement for the purposes of tax accounting of income in the form of rental payments is not required. This position was set forth in the Letters of the Ministry of Finance of the Russian Federation dated April 17, 2007 No. 03-03-06 / 1/248, dated February 6, 2007 No. 03-03-06 / 1/59, dated November 10, 2006 No. 03-03 -04/1/752, Federal Tax Service of the Russian Federation for the city of Moscow dated September 22, 2008 No. 20-12 / 089128.

The provision of property for rent is not the main activity of the organization.

In this case, income from the lease of property is recognized as non-operating income (paragraph 4 of Article 250 of the Tax Code of the Russian Federation).

Subparagraph 3 of paragraph 4 of Article 271 of the Tax Code of the Russian Federation establishes that for non-operating income from the lease of property, the date of receipt of income is the date of settlement in accordance with the terms of concluded agreements or the presentation of documents to the taxpayer serving as the basis for making calculations, or the last day of the reporting (tax) ) period.

The expenses for the maintenance of the property transferred under the lease agreement (including depreciation of this property) are included in the non-operating expenses (subparagraph 1 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation).

Communal payments.

As noted above, in accordance with Article 614 of the Civil Code of the Russian Federation, the rent can be set either in a fixed amount or in a “floating” amount, consisting of two parts - a fixed amount of rent and a variable component consisting of utility bills.

As a rule, all lease agreements, in one form or another, contain a condition that it is the tenant who bears the cost of paying utility bills. In this case, the question arises: how is it most profitable from a tax point of view for the parties to the agreement to document such a condition. And first of all, in this case, we are talking about such a controversial tax as VAT.

In practice, there are different payment options for electricity, gas, water supply, telephone communications and other utilities. Let's consider them in more detail.

1. Utilities are included in the rent.

The first method is rarely used. After all, tariffs for utilities are constantly growing, in addition, when concluding an agreement, the parties do not yet know to what extent utilities will actually be consumed by the tenant. Consequently, it is hardly possible to calculate in advance the amount of a fixed rent payment that will cover all the expenses of the lessor for utility bills in the performance of the contract. The parties are not entitled to change the amount of the rent during the year, the prohibition on this is established by paragraph 3 of Article 614 of the Civil Code of the Russian Federation.

Therefore, usually in a lease agreement, the parties do not provide for the amount of rent itself, but the method for calculating it, as a result of which a change in the variable component of the rent during the year does not mean a revision of the price of the lease, because the mechanism for determining the amount of rent remains the same.

With a "floating" rent, all amounts received by the lessor from the lessee, including utility bills, are recognized as income from the lease of the property.

By virtue of article 146 of the Tax Code of the Russian Federation, the lessor charges VAT on the entire amount of the rent and pays it to the budget. The invoice is issued by the lessor to the tenant for the entire amount of the rent (including the amount of utility bills), and a separate line for "communal" is not allocated.

A landlord who has received invoices in his name from utilities has the right to deduct the VAT indicated in their invoices in full. After all, if the utility payments received from the tenant are included in his income, then he has the right to recognize the utility services consumed by the tenant as his expenses. The same procedure for taxing VAT was explained by officials in the Letter of the Federal Tax Service of the Russian Federation dated February 4, 2010 No. ШС-22-3 / [email protected] A similar opinion is shared by the arbitrators in the Resolution of the FAS of the North Caucasian District of December 21, 2009 in case No. А63-8994 / 2004-С4-9, of June 11, 2009 in case No. А53-18515 / 2008-С5-27, FAS Central District of May 29, 2009 in case No. А23-3029 / 2008А-14-202, FAS of the North-Western District of January 10, 2007 in case No. А05-7971 / 2006-13, dated July 4, 2007 in case No. А56- 38904/2006.

A lessee who has received an invoice from the lessor for rental services (for the entire amount, including utility bills) in the general manner, on the basis of Articles 171 and 172 of the Tax Code of the Russian Federation, has the right to deduct the amount of VAT indicated in the lessor's invoice. The judges share a similar opinion, as an example we can cite the Resolution of the FAS of the North-Western District of December 27, 2010 in case No. A56-7049 / 2010, Resolution of the FAS of the Moscow District of August 26, 2008 in the case No.KA-A40 / 7882-08 , Resolution of the Federal Antimonopoly Service of the North Caucasus District of June 26, 2008 in case No. F08-3507 / 2008 and others.

2. Utilities are paid separately from the rent.

If utility bills are not included in the rent, then the most safe option reimbursement of utility costs of the lessor is the conclusion of a lease agreement with elements of a mediation agreement. That is, the lease agreement provides in advance that the lessor, as an intermediary acting on his own behalf, but in the interests of the tenant, acquires utilities for him.

In addition, as an option, a separate intermediary agreement can be concluded. Remember that there is a charge for the intermediary, so the mixed lease must provide for the intermediary's fee, or a separate intermediary contract must pay for the lessor who mediates the tenant.

Moreover, since utilities exhibit their documents in the name of the owner of the property, the options for an intermediary agreement concluded between the lessor and the tenant can be either a commission agreement or an agency agreement, in which the agent acts on his own behalf, but in the interests of the principal.

In this case, the landlord will issue two invoices in the name of the tenant: one in his own name for rental services, the second in his own name for utilities. Moreover, the invoice issued to the tenant for utilities is issued by the landlord based on the data of the invoice issued by the utility supplier in the name of the landlord himself. This invoice is not entered into the lessor's purchase book, but is filed in the ledger of received invoices. This is the procedure for issuing invoices by VAT taxpayers, participants in intermediary agreements, is provided for by the Rules for maintaining journals of received and issued invoices, purchase books and sales books when calculating value added tax, approved by Decree of the Government of the Russian Federation of December 2, 2000 No. 914 ...

With such a utility reimbursement scheme, the amount received from the tenant to reimburse utilities is not the lessor's income. The amounts received are recorded in the lessor's accounting as separate business transactions.

In accordance with subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, when determining the tax base for income tax, income in the form of property (including cash) received by the commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under the commission agreement is not taken into account, agency agreement or other similar agreement, as well as for reimbursement of costs incurred by the commission agent, agent and (or) other attorney for the principal, principal and (or) other principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or ) other attorney in accordance with the terms of the concluded agreements. These income do not include commissions, agency or other similar fees that become income from ordinary activities.

In case of over-presentation of utilities, the lessor removes the risks associated with both income tax and VAT, as well as those associated with the possible recognition of the transaction null and void in accordance with Articles 166-181 of the Civil Code of the Russian Federation, as well as the risks of criminal liability arising under Article 171 of the Criminal Code Of the Russian Federation "Illegal entrepreneurship" (in terms of re-presentation of communication services).

However, under such a scheme, in addition to the obligation to charge VAT on the amount of rent, the lessor has an obligation to charge tax on the amount of his intermediary fee.

This text is an introductory fragment. From the book All about the simplified taxation system (simplified taxation system) the author Terekhin R.S.

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