A sublease agreement (or sublease agreement) is an agreement under which the tenant rents out the property he has rented to another person.
In accordance with Article 615 of the Civil Code of the Russian Federation, the tenant has the right to enter into a sublease agreement only with the consent of the lessor. If the lessor does not want in advance that his property be subject to further sublease to third parties, he can do this by including a corresponding clause in the contract.
If the tenant entered into a sublease agreement without the consent of the lessor, the lessor will have the right to demand termination of the lease agreement and compensation for losses due to the fact that the tenant does not use the property in accordance with the terms of the lease agreement.
It is better to document the consent to sublease the property as an annex to the agreement. If the landlord’s consent to sublease his property is received, then the parties (tenant and subtenant) have the right to enter into a sublease agreement for the premises from the date of such consent.
Until the moment when the agreement is considered concluded (the transaction is completed), it does not create any rights and obligations for the parties. Therefore, the general consequence of recognizing an agreement as not concluded (a transaction as failed) is that the methods of protection used in ordinary contractual relations cannot be applied to such an agreement.
Subleasing of forest areas is prohibited. Commercial organizations cannot transfer leased property for free use to a person who is the founder of this organization, participant, manager, or member of its management and control bodies.
The rules on rental agreements apply to sublease agreements. The lease agreement must contain data that makes it possible to definitely establish the property to be transferred to the lessee as the leased object. In the absence of this data in the lease agreement, the condition regarding the object to be leased is considered not agreed upon by the parties, and the corresponding lease agreement is not considered concluded.
Therefore, in the sample sublease agreement, it is necessary to specifically indicate data that makes it possible to definitely establish the property to be transferred to the subtenant as the object of the sublease agreement. In this case, the description of the property being subleased must correspond to the subject of the lease agreement. Otherwise, the sublease agreement may be considered invalid.
According to Part 2 of Clause 2 of Article 615 of the Civil Code of the Russian Federation, a sublease agreement cannot be concluded for a period exceeding the term of the lease agreement. The conclusion of a lease agreement by the lessor and the tenant for a new term on similar terms does not entail an extension of the sublease agreement. In this case, a new sublease agreement must be concluded for a period corresponding to the term of the lease agreement.
Early termination of the lease agreement entails the termination of the sublease agreement concluded in accordance with it. In this case, the subtenant has the right to conclude a lease agreement for the property in his use under the sublease agreement within the remaining term of the sublease on terms and conditions corresponding to the terms of the terminated lease agreement.
non-residential premises for office in a person acting on the basis, hereinafter referred to as " Subtenant", on the one hand, and in the person acting on the basis of, hereinafter referred to as " Tenant", on the other hand, hereinafter referred to as the "Parties", have entered into this agreement, hereinafter " Agreement”, about the following:1. THE SUBJECT OF THE AGREEMENT
1.1. The Tenant undertakes to provide the Subtenant with premises furnished as an office, consisting of (total area sq.m.), located in the building at the address: .
1.2. This agreement is concluded with the written consent of the Lessor, acting on the basis of ownership of the premises.
2. OBLIGATIONS OF THE PARTIES
2.1. The tenant is obliged:
- provide the premises for use by the Subtenant within the period stipulated by this agreement;
- notify the Subtenant of all obligations of the Tenant to the Landlord arising from the lease agreement for non-residential premises;
- warn the Sublessee about all rights of third parties to the subleased property;
- require the Lessor to carry out major repairs at its own expense;
- monitor the use of the premises for their intended purpose.
2.2. The subtenant is obliged:
- maintain property in good condition;
- carry out routine repairs at your own expense;
- pay rent on time in the amount and terms specified in this agreement.
3. COST AND PAYMENT TERMS
3.1. For the provided premises, the Subtenant shall pay the Tenant a monthly amount in the amount of rubles per square meter.
3.2. This amount is due no later than the date of each month.
3.3. The rent amount may change no more than once a year.
4. RESPONSIBILITY OF THE PARTIES
4.1. For improper fulfillment of their obligations, the parties have the right to demand early termination of the contract and compensation for losses.
4.2. In the event of a significant violation by the Subtenant of the terms for payment of rent, the Tenant has the right to demand from him early payment of rent, but not more than for two consecutive terms.
5. TERM OF THE AGREEMENT AND CONDITIONS OF TERMINATION
5.1. This agreement comes into force from the moment the property is transferred for temporary use and is valid. By agreement of the parties, this period may be extended. The transfer of property occurs the next day after signing the contract.
5.2. The contract can be terminated early only if one of the parties fails to fulfill its obligations.
6. OTHER PROVISIONS
6.1. The validity period of this agreement cannot exceed the validity period of the lease agreement between the Tenant and the Lessor.
6.2. In the event of early termination of a lease agreement for non-residential premises, the Subtenant has a preferential right to conclude a lease agreement with him for the property that was in his use in accordance with the sublease agreement within the remaining period.
The concept of sublease of non-residential premises includes a lot of subtleties and nuances. In particular, this affects the payment of taxes. Until 2012, taxation for persons entering into lease and sublease agreements followed a simplified scheme. Currently, these concepts fall under the general taxation system.
In addition, you need to know exactly which OKVED code is applicable for subleasing a non-residential property. In this article, we will try to understand all the intricacies of subletting premises.
What is sublease?
The very concept of subletting can be classified as the re-letting of a property to a third party. This requires the consent of the owner of the premises. The procedure is relevant for residential and non-residential premises.
It is worth noting that you can sublease the entire premises or part of it. It looks like this: you rent non-residential premises from an organization or individual for a certain amount of money. After this, you can sublease it for a more significant amount.
Permission to sublease premises is confirmed by Article 615, paragraph 2 of the Civil Code of the Russian Federation. It states that the tenant can deal with the leased property as follows:
- sublease the building (or part thereof);
- give it away for free use;
- transfer your rights as a tenant to a third party.
It is worth noting that the original lease agreement does not provide for the tenant's right to sublet without the owner's permission. However, a clause may be included that gives the tenant the right to sublease the property. This ensures a direct contract between the tenant and the third party. The owner's consent is no longer required.
From this we can conclude that the sublease agreement is concluded between the parties to the agreement. These can be both individuals and legal entities.
Sometimes a real estate agency that provides services for leasing premises can act as a legal entity. In this case, the taxation for the tenant changes and a different OKVED code comes into force.
- Read also:
Drafting involves writing a standard document. The agreement is signed by the parties to the transaction. This is a standard procedure that is not affected by the timing of the agreement and the status of its participants.
An agreement for the sublease of non-residential premises must include the following points:
- territorial location indicating the exact address;
- total area of the building;
- intended purpose;
- term of the sublease agreement;
- form and terms of payment.
In some cases, the main agreement may be supported by the following documents:
- cadastral passport and certificate of State registration of the object;
- act of acceptance/delivery of non-residential premises;
- protocols of disagreements and agreement of disagreements.
Important! Despite the existence of a standard form of a sublease agreement, it is allowed to be drawn up in free form. In this case, a prerequisite is the inclusion of all main points.
You need to know that if the contract is concluded for a period of more than 12 months, its state registration is required. The Agreement comes into force only from the moment of its registration. Otherwise, permission to rent the premises by a third party will not have legal force.
In addition, the re-tenancy agreement must not exceed the term of the original tenancy. However, upon expiration, the document is not automatically renewed. Each time a new contract is required.
Rights and obligations of the parties
The rights and obligations of the parties to the agreement deserve special attention. This does not apply to the owner of the premises, but only to the tenant and subtenant. Let's consider the rights and obligations of each of the parties to the agreement.
Tenant
This party is obliged to: provide non-residential premises in a condition suitable for use, ensure the supply of water, electricity and heating.
It is worth noting that the inaction of utility services does not imply the responsibility of the tenant. In addition, the tenant is obliged to familiarize the subtenant with the internal regulations and the evacuation plan in case of emergency situations.
The tenant has the right to verify compliance with the terms of the sublease agreement. This is done during working hours and in the presence of the subtenant. The latter is obliged to provide all documents, including permission for a certain type of activity.
The tenant has the right to carry out major or current repairs in non-residential premises subleased. In this case, the subtenant is notified in writing 30 days before the work is carried out. It is worth noting that during renovation, rent is not charged to the subtenant.
The tenant has the right to establish the operating procedures for the premises on weekends and holidays. This does not affect the order and amount of payment.
Subtenant
This contracting party is obliged to use the premises only for the purposes specified in the contract. Monitor the technical and fire conditions of non-residential premises in accordance with established standards.
Independently bear full responsibility to the authorities that grant permission and control business activities. Eliminate the consequences of accidents and other damage to premises caused through one’s own fault.
Do not carry out or if there is no written permission from the tenant. Pay the rent specified in the contract on time.
If the rental agreement for the premises is terminated early, at the initiative of the subtenant, the tenant must be notified of this no later than one month in advance.
The subtenant is obliged to provide the tenant with the following documents when concluding the contract:
- an extract of bank details, with the seal of the company and the signature of an accountant;
- an extract from the Unified State Register of Legal Entities, taken no later than 30 days before signing the contract;
- a document giving permission to sign a sublease agreement.
It is worth noting that the above list of obligations of the parties is far from complete, but their basic rights and obligations are indicated here.
Features of taxation
Subletting is very often confused with intermediary services for renting out premises. According to the Tax Code of the Russian Federation, these are different concepts, and accordingly, the taxation procedure also differs.
Intermediary services are often provided by real estate agencies that enter into lease agreements with the owner and, with his consent, rent out premises to third parties. For this purpose, OKVED code 70.31 “Activities of real estate agencies” and OKVED code 68.31 “Real estate agencies” are used.
For activities related to the sublease of real estate, you can use OKVED code 70.20 “Leasing your own residential and non-residential real estate” and OKVED code 68.20 “Leasing and operating your own or leased real estate.”
Income of individuals from subletting real estate is taxed at a personal income tax rate of 13%. The document in form 3-NDFL is submitted annually, until April 30. The required amount must be paid no later than July 15 of the current year.
For legal entities, the tax rate is 6% according to the simplified tax system. But given the status of an entrepreneur, additional insurance premiums may be assigned.
Remember that tax evasion falls under administrative and criminal liability.
The maximum fine for tax evasion when subletting non-residential premises can be 500,000 rubles or imprisonment for up to 3 years.
Still have questions?
Write your question in the form below and receive detailed legal advice:
Sublease of non-residential premises is the right of the tenant to temporarily rent out the property to a third party. A sample contract can be downloaded for free.
The country's legislation provides for the right of a tenant of non-residential premises to have the rights of a lessor and to sublease the property. Sublease has identical parameters to lease relationships. The only difference is in the subject of the transaction and certain rights and obligations to the main lessor. Sample sublease agreement for non-residential premises is available on this page of the free resource, and it can be downloaded via a direct link without any restrictions.
The structure of the document, terminology, powers, obligations, terms, conditions of registration and other circumstances may fully correspond to the main contract and duplicate it. The object of sublease of non-residential premises can be: shops, offices, warehouses, industrial buildings and structures, and others. The most important circumstance of sublease is the owner’s awareness of the sublease of his property. This transaction has a free form of execution. An important criterion is the condition of mandatory state registration of the agreement if the legal relationship lasts more than one year.
Mandatory clauses of a sublease agreement for non-residential premises
:- Title, date and place of compilation;
- Next, the details of the participants and the powers of representatives are entered;
- Subject, technical parameters and individual characteristics;
- Cost, terms, powers, obligations, responsibilities;
- Additional terms and conditions; final provisions;
- Dispute resolution, signatures and transcripts of the parties.
In essence, such an agreement can be considered as the provision of specific property or part of it to those who rented it, to another person (subtenant) for use for any payment and for any period.
In this design, the primary tenant effectively becomes the lessor for said other person. Typically, the ability to sublease is provided for in the earliest lease agreement.
The institution in question is one of the most common and widely applicable in practice due to its ease of mobility for regulating relevant legal relations.
Let's look at some important aspects of this agreement.
In order to avoid all sorts of problems and risks, it seems necessary to remind you that you have the right to sublease an item only with the consent of the lessor, expressed in writing.
As noted above, it can be contained either in the primary or in a separate agreement. This condition serves to ensure the interests and rights of the owner.
Please also note that the prohibition on potential subletting contained in the primary agreement is legally void.
The term of the agreement you are interested in should not exceed the term of the primary agreement that establishes the lease. If you extend the last of these contracts for an indefinite period, you can do the same with the first.
In order to prevent various potential force majeure events, conclude the document in question exclusively in writing. At the same time, you can also take advantage of its notarization, which, of course, is not necessary, but can further protect your rights and interests in the event of any unpleasant controversial situations.
Please also note that the agreement you are interested in, if its duration is more than one year, entails mandatory state registration. Of course, you can bypass this rule by specifying a time period of, for example, 11 months.
The information that should be reflected in the contract in question
- designation of the place and date of the transaction;
- details of the parties, as well as representatives (if any);
- an indication of the subject of such agreement;
- rights and obligations of the parties;
- amount and procedure of payment;
- validity;
- additional conditions are stipulated, for example, the possibility of changing such an agreement, the method of resolving possible disputes, etc.
- signatures of the parties.
Let us draw your attention to some more important aspects that you need to keep in mind when entering into legal relations regulated by the agreement in question.
In situations where the primary lease agreement terminates, the sublease immediately terminates.
If, through your agreement with the other party, you provide for the automatic extension of the lease agreement, this circumstance does not entail the same process regarding sublease.
When you want to establish an indefinite nature for both types of legal relations mentioned, and then want to terminate them, remember that you have an obligation to do this at least three months before the proposed termination of any of the two contracts discussed in this article.
Below is a standard form and a sample sublease agreement, a version of which can be downloaded for free.