Rental holidays in connection with Coronavirus: What is the rental holidays and how to issue - News in T,

Due to the coronavirus, self-insulation of people and the introduction of restrictions for business, many tenants can not pay for their offices, retail space, warehouses and exhibition halls. The state decided to provide the affected sectors to a special measure of support - the so-called rental holidays. This is the period when it is possible to legally not to make a rent under the contract, even if the premises owns not the state, but a private company.

Ekaterina Miroshkin

economist

Vacations do not exempt from payments to us, but allow you to temporarily not make them. When the crisis is over and all restrictions will be removed, we will have to return the accumulated debts in parts. But at the time of restrictions, this will help keep the right to the room and not lose money.

That's how to use rental holidays and what will happen when they are running out.

What is rental holidays

This formulation is used in different values. For example, before Coronavirus, the period was so called when the tenant after the conclusion of the contract could not make payments during the move time or until it becomes justice in a new place.

Due to the pandemic, rental holidays were introduced at the federal level - government decree. This is a delay for tenants under the conditions that state establishes - they are for all common. And they should also be observed by all parties, even if initially in the contract or civil code is written something Other.

Rental holidays are one of the measures of state support. But the budget does not pay it directly to the tenant or the landlord. The state only regulates this sphere, gives relaxation, but it does not allocate anyone on this program.

Rent can be reduced or not to contribute to other legitimate ways. In this analysis - only about those holidays, which are provided for by the Government Decree No. 439 of April 3, 2020 and relate to tenants of commercial real estate owned by private owners. That is, those tenants, what majority.

Who can use rental holidays

The delay of the rent is provided only for tenants of commercial real estate. That is, the tenant of the office, the store or warehouse can be delayed on the basis of the Government Decree. And those who remove the apartment can not refer to this rate.

So that you can not pay for rent, such conditions must coordinate:

  1. The tenant is a company or IP from the affected sectors of the economy.
  2. The leased property is a non-residential premises, including the federal, municipal or private. Housing is not suitable.
  3. The lease agreement was concluded before the regime introduced an increased readiness mode: for Moscow - until March 5, for Perm - until March 15, for Tomsk - until March 18.
  4. The tenant actually suffered or may suffer due to coronavirus restrictions. That is, it acts in good faith, and not just uses the benefit to not pay.

For example, the company rents a shop in the shopping center - it is used for the retail sale of doors. Due to the regime High ready-to-store retail trade was banned, and shopping centers were closed. The company can not work, but must pay for rent. It can use rental holidays to get a delay. Even if the landlord against the government decree is a more reliable argument in the negotiations than just partnerships. And in court it will be a slaughter argument at all: there is good faith and real damage.

The same company can rent a warehouse in the industrial storage industrial complex. At the same time, they are sold through the site: remote trade with delivery is allowed even during the mode of high availability. The landlord sees that cars are constantly loaded in the warehouse, store holders are working there, trucks come for unloading goods, check-out for entry and departure. And the firm brought an antiseptic to the warehouse and actively trades them in bulk. The same company may refuse the rental holidays regarding the warehouse, because there are questions about good faith when requesting a delay. Even if the rest of the conditions are observed, the right to vacation in question.

There are no other conditions for rental vacation. And the landlord cannot be installed. For example, with a small or middle business to be optional, although for other support measures, this requirement must be respected.

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For what period you can get a delay

Rental holidays consist of two stages:

  1. While there is a mode of high readiness. At this time you can Do not contribute at all. But to pay utility services and the content of the property will have to, on them delay does not apply.
  2. Since the end of the high readiness regime until October 1, 2020. When all the limitations are canceled, the tenant can enter 50% of the usual fee under the contract.

Cancellation of individual self-insulation measures is not yet canceling the mode of high availability. Even if the summer verandas were allowed in the region, hairdressing with one workplace and fitness clubs on recording, this does not mean that the mode of increased readiness ended.

If there is no opportunity to use the real estate, the landlord can be asked to reduce the rent. This is also the norm of the law and the type of state support due to the pandemic, and not the usual condition at the discretion of the parties. True, there is no details about the amount of reduction in the law.

How to pay for rent after vacation

Vacations will end on October 1. By this time, debt accumulates: the whole rental fee during the mode of increased readiness and half of payments after it. On the conditions of repayment, the tenant and the landlord may agree on themselves - and fix everything in addition.

But there are conditions that cannot be worse against the tenant, they were established by the Government:

  1. Tenant begins to repay debt Not earlier than January 1, 2021.
  2. Payments to pay off the debt must be made in a month or less.
  3. Each payment to debt account is up to 50% of the usual monthly fee.

For example, beauty salon pays for the area in the shopping center 60 000 Рper month. From May, the owner decided to use the rental holidays. From August 1, the mode of increased readiness was abolished. At this point accumulated 180,000 РDebt. In August and September, the salon will be instead of 60,000 РPay only 30,000. The total amount of debt during the holidays will be 240,000 Р: 60 000 × 3 + 30 000 × 2.

This duty will begin to repay from January 2021 - every month of 30,000 Р. And so eight months. The debt payment will need to be made in addition to the usual rent. That is, in 2021 it will have to pay 90,000 for several months Рper month: current payments and part of the accumulated debt.

No additional payments or fines due to delay it can not be. That is, the landlord does not have the right to put a penalty or yet Some Interest. The tenant will only pay the amount of debt, even if in the main contract the delay initially assumed additional payments. But to reduce the amount of rental fees accrued during the vacation, by agreement you can.

How to issue rental holidays

To get and use a delay, you need to refer to the landlord and conclude an add-building. Landlord will be Due to this to make the law. That is, he has no choice: the state makes it give to the benefit.

But the landlords do not want to lose money, so they often do not respond to requests, refuse or pretend that the new rate does not concern them. At such a case, the Supreme Court described the options when even unanswered or the consent of the landlord, rental vacations still act:

  1. The landlord does not respond to the rapider request for a deferment;
  2. The landlord agreed with the postponement of orally or in the correspondence, but the add-building did not sign;
  3. The tenant did not pay, and the landlord did not object;
  4. The tenant did not pay on time, but at the same time the landlord knew about his right to delay and did not inform him about it.

Check if your business belongs to the affected industries: there is not so simple, the right to benefits sometimes do not recognize even tax inspections. What to say about property owners: they will rest before the latter. Perhaps you can completely legally pay for rent. But calculate the forces: the time will come - and the debt will have to be repayed, he will not go anywhere.

Why use rental vacations, if you still have to pay debts

Rent holidays are as if official, legitimate delay. That is, you did not delay payments yourself, and you allowed the state. With the landlord, it is then dealt with the help of benefits and tax delay.

And if the delay is legal, albeit against the will of the landlord, it means that the business of the tenant does not threaten the consequences that would overtake him due to unauthorized Delay payments.

This is what the rental holidays helps:

  1. The contract cannot be terminated Due to delay. Without vacation, the landlord has the right to evict the tenant. We'll have to look for a new room, make repairs again, spend money on advertising. Legal delay will not allow to apply such sanctions to the tenant even through the court.
  2. There will be no additional payments. If you just delay the payment, the landlord will accrue the penalty and fines. For the period of delay, this will not happen: any accrual over ordinary payments will be illegal.
  3. We will not have to agree on uncomfortable conditions for repayment of debt. Without establishing rules at the state level, the landlord could demand to pay off the whole debt in two months, and so it should wait and cannot require money.

More state support for business:

The Supreme Court of the Russian Federation acknowledged that some organizations and IP are entitled to expect to delay and reduce rental payments due to the spread of coronavirus infection and restrictive measures taken in connection with it. We tell who is entitled to take advantage of rental holidays and how to do it.

Rental vacation right

The Supreme Court of the Russian Federation in the review of judicial practice on the application of legislation on countering the proliferation of coronavirus infection (COVID-19) No. 2 (approved the Presidium of the Armed Forces of the Russian Federation 30.04.2020) recognized and additionally explained the right of business to delay the rental.

This right can be implemented by organizations and PI in the event of an introduction in the region in which they carry out their activities, the regime of increased readiness due to coronavirus.

The delay is provided with respect to real estate, which is in the state, municipal, as well as private property organizations and IP. The exceptions are residential premises. Organizations and IP, renting residential premises, can not count on a delay.

Moreover, as noted in the review of the Armed Forces of the Russian Federation, the legislation does not provide an indication that the rental holidays apply only to the contracts on which the lease object acts as a whole. Consequently, the holidays also apply to the lease agreements of a part of the immovable thing. For example, in cases where the organization leases any part of the building or room in it.

At the same time, not all organizations and IP are granted the right to postpone the rental fee. And only those who carry out entrepreneurial activities in the sectors of the Russian economy, to the greatest extent affected by the deterioration of the situation as a result of the spread of a new coronavirus infection.

Recall, the list of injured industries of the Russian economy was approved by the Decree of the Government of the Russian Federation of 03.04.2020 No. 434.

In addition, the right to the deferment applies not to all lease agreements. It applies only to the lease agreements concluded before the decision-making decisions on the introduction of high readiness regime.

If all of the above conditions are followed, the tenant has the right to demand a delay to make rent payments. Penalties, interest for using other people's money and penalties in connection with the deferment of rental payments are not applied. Installing additional payments payable to the tenant in connection with the provision of a delay, the landlord will also not be able to.

Receiving a rental delay

The tenant of real estate, satisfying all the above requirements, has the right to demand from the Lessor to conclude an additional agreement to the lease agreement, providing a delay in the payment of the rent. Such an agreement must be concluded within 30 days from the date of the appropriate treatment of the tenant. The requirement to grant a delay may be declared by a tenant in arbitrary writing.

The delay is provided for a period until October 1, 2020, starting from the date of introduction on the territory of the organization / IP of the entrepreneurial activity of the high availability regime. Parties to the lease agreement can establish an earlier moment of providing a tenant to delay the rental fees.

As explained by the Armed Forces of the Russian Federation, the period of action is applied to the lease agreements regardless of the date of the additional agreement on the provision of such a delay.

Therefore, the tenant in any case is considered to be a delay from the date of the introduction of an increased readiness mode. Even in those situations where the landlord refused to grant a delay, and the tenant had to challenge his actions in court (coordinated to the conclusion of an additional agreement to the Agreement).

In some situations, the Landlord must notify the tenant on the presence of the right to delay the rent. This is provided for cases when the rent is not submitted to the agreed term and the landlord knows that the tenant carries out activities in the affected area of ​​the region.

In the absence of such a notification, the Lessor will also be considered a delay to the tenant since the introduction of high readiness regime.

Right to reduce rent

Along with obtaining a postponement for making rental payments, the organization and IP in some cases have the right to demand from the landlord to reduce the rent.

As the Russian Armed Forces explains in his review, the right to reduce the rent can be implemented in the event of the impossibility of using the leased property. This inability should arise due to the introduction of high-readiness regime by the regional authorities due to coronavirus.

For example, when the subject of the Russian Federation is prohibited from the work of entertainment and trading establishments located in the rented premises and buildings. Moreover, the right to reduce the rental fee, unlike a delay, is applied to all organizations and SP, and not only on those who work in the areas of the economy affected by coronavirus.

The rent is to be reduced from the moment when the impossibility of using the leased property on the initially agreed appointment has occurred. That is, from the date of administration in the regimen of an increased readiness mode.

Separately, the Armed Forces of the Russian Federation notes that the moment of reducing the board does not depend on the date of the additional agreement on its decrease. This moment does not depend on the date of entry into force of the court decision on the coercion of the landlord to reduce the rent.

Moreover, if the landlord refuses to reduce the fee and requires it to recover through the court, then in court, the tenant has the right to refer to the fact that the landlord unreasonably shied away from reducing the board. This court argument must take into account when resolving disputes on the recovery of rental payments.

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Article from the magazine "Home Book" Actual on August 21, 2015

Contents of the magazine number 17 for 2015

MG Sukhovskaya, lawyer

Rent holidays without fear and reproach

How to make a temporary liberation of the tenant from rental payments

To fully use the room in its activities, the tenant is often required to carry out any preliminary work, for example, make repairs. Naturally, it takes time, despite the fact that it is difficult to exploit real estate during this period. And the contract lease is already acting ...

In such situations, the landlords usually agree to provide the so-called rental holidays - the time interval during which the fee for the rental premises is not charged, and the right to use it for the tenant is maintained. By the way, rental holidays usually relate only to payments directly. The vacation fee for utility services does not apply.

The term of such vacation can be any. In practice, he is from one- 2 months to a year with superfluous. It depends mainly from the area of ​​the surrenders of the premises, as well as on the degree of their readiness, on the type of work planned and on the length of the lease agreement.

How to fix in the contract about the rental holidays in order to avoid tax risks, we will talk.

The material will not address the issues of transferring and taking into account the inseparable improvements produced by the tenant.

This is a bad idea

It is clear to avoid in the contract for the lease of the wording, in which the tax authorities can see gratuitous use of the room in "Free" period:

5.2.1. Due to the need for repair work in the rental room, the period from July 1, 2015 to August 31, 2015 is inclusive as parties by rental holidays during which the rent for the premises is not paid.

2.5. Within 2 months, from the moment of the transfer of the leased room on the act of acceptance and transfer, the tenant provides holidays for renting, under which it is understood by the exemption of the tenant from the obligation to pay the rent.

This may entail an additional tax burden for both sides of the contract:

Another option is found risky from the tax point of view of the rental vacation. The contract registers that rent payments are beginning to be paid, for example, from the date of signing the gear ratio (the so-called rental date). And until its signing, the tenant provides access to the room without the right to use it by intended purpose. So this same access may well be interpreted by the tax authorities as a real start of lease.

But try it ...

Do not overpay taxes will help one of the ways proposed below.

Method 1. Register the rent pays with 1st For months lease, but simply reduce it for some period.

Suppose you are planning to remove the office for 11 months, the rent for which is 100,000 rubles. per month, taking into account VAT. The landlord is ready to provide for the first 2 months rental holidays for the decoration of the room. To eliminate tax risks, you can conclude a lease agreement with such a condition: for the first 4 months of rental size of the board is 50,000 rubles. per month, and starting with 5th months rises to 100,000 rubles.

It is possible to formulate it like this:

2.5.5. The monthly rent is 100,000 (one hundred thousand) rubles, including VAT.

2.5.6. During the period of repair and finishing and other preparatory work in the transmitted premises (from July 1, 2015 to October 31, 2015, inclusive) the tenant pays a rent in the amount of 50% of the established clause 2.5.5 of this Agreement.

With this option, the amount of rental payments for the lease period will remain unchanged. As given the vacation, the fee for 11 months would be 900,000 rubles. (100,000 rubles. X (11 months - 2 months)), and without vacation it will be the same: (50,000 rubles. X 4 months) + (100 000 rub. X 7 months).

Limits to reduce rent not p. 1 Art. 105.3 NK RF .Even if the tenant and landlords are interdependent иp. 2 art. 105.1 NK RF ,The deal is unlikely to fall into the category controlled by value criteria юPP. 2, 3 tbsp. 105.14 of the Tax Code of the Russian Federation .But still it is not worth the rental holiday at the time of rent (for example, 100 rubles per month) so that the tax authorities cannot retrain the deal with all the ensuing consequences.

Recall that a real estate lease agreement concluded for a period of 1 year, it is necessary to register in the Rosreestr authorities аp. 2 art. 609, paragraph 2 of Art. 651 of the Civil Code of the Russian Federation .An unregistered contract is considered not inconclusive, and, in the opinion of controlling authorities, the costs of it cannot be taken into account for taxation purposes. яLetters of the Ministry of Finance of 01.12.2011 № 03-03-06 / 1/791 ; UFNS in Moscow dated 06.07.2011 № 16-12 / 065620 @ .However, the courts, in particular the Moscow region, with this opinion categorically disagree ыSee, for example, the resolutions of the FAS MO of 10/06/2011 No. A40-1866 / 11-20-10 , 08/19/2010 № ka-a40 / 9192-10 .

Method 2. To consolidate in the lease agreement the duty of the landlord to compensate the tenant the cost of working to bring the room to a suitable state by credit to the rental of rent for an enno month. Civil legislation is admission тp. 2 art. 614 of the Civil Code of the Russian Federation .

By default, the landlord must produce the overhaul of the transferred property, and the tenant is the current repair тPP. 1, 2 tbsp. 616 of the Civil Code of the Russian Federation ,If the contract is not established otherwise.

The wording in the contract may be like this:

"3.1.1. Repair, re-equipment, reorganization and other actions necessary to bring the leased premises to a state suitable for its use on the intended purpose, a specific agreement, are carried out at the expense of the tenant.

3.1.2. The landlord compensates for the leaser costs associated with repairing and (or) with the implementation of these actions by testing the costs of the lease for the first 4 months of the actions of this Agreement. In this case, the parties are drawn up and sign an act of testing of mutual requirements on a consistent form (Appendix No. 2 to the Agreement).

From the 5th For months, the rent is paid according to claim 2.5.5 of the contract. "

***

As you can see, the condition about the rental vacation is completely easy to formulate, while not mentioning them.

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Other articles of the magazine "Home Book" on the topic " Rent / Leasing ":

2021

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Rental holidays - a new concept

Rental vacationThe conditions for the conclusion of contractual rental relations are extremely diverse. They depend on the parameters of the object of real estate, which is in question in the contract. Often, for example, a room is taken for rent, requiring minor reconstruction or repair. The possibilities of efficient operation of real estate are limited, as a result - a decrease in productivity. Rent holidays come to the leaser. This concept is not as wide as much as much.

So, vacation for the tenant is the complete absence of rent, or its reduced rate when using real estate. Terms are determined by the Treaty, but do not exceed 1-2 months. Features of renting precisely, the premises are most often implied. The owner understands that it is difficult to pass the premises in a non-ideal state, the tenant is put before the fact of preliminary costs. Inclusion B. Rental vacation rental agreement greatly simplifies mutual understanding. Prisoner Additional Agreement Rental Vacations Prevents how to reduce the amount of rental payment, or the inclusion of renovation costs as the rental shape (paragraph 2 of Art. 614 of the Civil Code of the Russian Federation).

It is possible that the relationship arose between the Contracting Parties before the conclusion of the contract. In these circumstances, enters into force (2 Art. 425 of the Civil Code of the Russian Federation) , Decree payments , The above-mentioned agreement comes into force. Mandatory registration and contract, and an additional agreement (claim 1 of Art. 26 of the Law on Registration) is the basis of fulfilling all obligations from the date of the conclusion of the contract and add-on.

Certain agreements Rental holidays Tax consequences Have for both Contracting Parties. VAT accrual for the cost of lease of property according to claim 2 of Art. 154 of the Tax Code of the Russian Federation is made to the landlord, even taking into account the fact that the rent is not submitted. Obviously, during the holidays, the depreciation is not made, because by force (paragraph 3 of Article 256 of the Tax Code of the Russian Federation) property is transferred to free use. Rental deferments for payments are not the basis of refusal to pay for income tax and for the tenant. P.8 Art. The 250 Tax Code of the Russian Federation refers revenues obtained in the form of free of charge acquired property to non-dealerization. Market prices in accordance with the provisions of Art. The 40 Tax Code of the Russian Federation are the basis for calculating income tax. The economic benefit that the tenant receives is obvious because it does not pay rent. It is possible to fight with this item if you prove that the costs associated with reconstruction (repair) are part of the rent.

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