"Auditor's sheets", N 8, 2002

A gratuitous use agreement is one of the types of business agreements that are widely used by parties carrying out entrepreneurial activity. Let us dwell on some issues related to the transfer of property for gratuitous use (with the receipt of property for gratuitous use), as well as its maintenance (operation).

Legal regulation of gratuitous use of property

A gratuitous use agreement (loan agreement) is an agreement between the parties, by virtue of which one party (the lender) undertakes to transfer or transfers a thing for gratuitous temporary use to the other party (the borrower), and the latter undertakes to return the same thing in the condition in which it received it , subject to normal wear and tear or in the condition stipulated by the contract (Article 689 of the Civil Code of the Russian Federation).

Thus, the object of gratuitous use can only be material objects that do not lose their natural properties in the course of their use (non-consumable things) and can be individually defined. The individual certainty of these items is due to the fact that the borrower, at the end of the period of use, must return to the lender exactly the thing that he received from him, and in the condition in which it was provided to him (taking into account normal wear and tear or wear determined by the agreement between the parties) . This is the main difference between a gratuitous use agreement and a loan agreement, by virtue of which the borrower must return to the lender a certain amount of things of the same kind and quality (similar things) or the same amount Money which he previously received.

Property transferred under a gratuitous use agreement must be definitely established. If the terms of the contract do not contain data on the property that allows it to be uniquely identified, then even the contract signed by the parties is not considered concluded. To identify the transferred property in the contract in without fail it is necessary to indicate the name of the property, a description of its quality and other signs that make it possible to accurately determine the relevant object and its condition.

As property transferred for gratuitous use, there may be:

real estate, including buildings, structures, office premises;

vehicles;

electronic - computer technology;

office furniture and other interior items;

other non-consumable and individually defined property.

It should be noted that the transfer of property for gratuitous use should be distinguished from the gratuitous transfer of property, in the course of which the ownership of it passes to the party to which this property is transferred. The right of ownership to the property transferred for gratuitous use shall be retained by its former owner. The contract we are considering is characterized by gratuitousness. This is its main difference from the contract of lease (property lease), according to which the thing is provided for temporary use and possession for a fee.

The parties to this contractual legal relationship can be legal entities and individuals, including those registered as entrepreneurs without forming a legal entity. The right to transfer a thing for free use belongs to its owner or a person who is authorized by him to perform the specified actions (part 1 of article 690 of the Civil Code of the Russian Federation). In particular, the lender may be the lessee of the property, who is entitled, with the consent of the lessor, to provide the property for gratuitous use to third parties. The permission of the owner in this case is fixed in the lease agreement (part 2 of article 615 of the Civil Code of the Russian Federation). The law establishes a restriction, which is expressed in the fact that a commercial organization (open or closed Joint-Stock Company, society with limited liability) is not entitled to act as a lender in relation to persons who are its founder (participant), head or member of its management and control body. Contracts for gratuitous use, one of the parties to which is entity, must be drawn up in writing (part 2 of article 690 of the Civil Code of the Russian Federation).

The lender is obliged to provide the thing (Article 691 of the Civil Code of the Russian Federation):

in a condition that corresponds to the contract and its purpose;

with all its accessories and documents related to it (for example, instructions for its use, technical passport), unless otherwise provided by the contract.

This party to the agreement is also obliged to warn the borrower when concluding an agreement on all rights of third parties to transferred thing(for example, if this thing is pledged) (Article 694 of the Civil Code of the Russian Federation).

According to Article 695 of the Civil Code of the Russian Federation, the borrower is obliged:

maintain this property in good condition, including the implementation of current and major repairs;

bear all the costs of maintaining it.

However, by agreement of the parties, these responsibilities may be redistributed between them. For example, the contract may establish the obligation of the lender to make all types of repairs to the property.

By general rule the risk of accidental loss or accidental damage to property, including that transferred for gratuitous use, is borne by its owner. But in cases established by law, the burden of these risks rests with the borrower.

In accordance with Article 696 of the Civil Code of the Russian Federation, this happens if the property is lost or damaged due to the fact that the borrower:

used it not in accordance with the terms of the contract or its purpose;

transferred it to a third party without the consent of the lender;

given the facts, could have prevented undesirable consequences for said property by sacrificing his property, but chose to keep his thing.

The contract for gratuitous use may specify the period during which it is valid. If the period of gratuitous use is not specified in the contract, then the contract is considered concluded for an indefinite period. In this case, each of the parties has the right to withdraw from the contract at any time by notifying the other party one month in advance, and in the case of gratuitous use of real estate - three months in advance. The contract may establish a different period for terminating the contract for gratuitous use concluded for an indefinite period.

The condition for the validity of this legal relationship has a significant impact on the procedure for the withdrawal of any of the parties from the contract.

According to Article 699 of the Civil Code of the Russian Federation, the following procedure for refusal is established. Under an agreement for gratuitous use concluded without specifying a term, each of the parties has the right to withdraw from the agreement by notifying the other party one month in advance. Under a contract of gratuitous use, concluded with an indication of the term, only the borrower has the right to withdraw from the contract. At the same time, he is obliged to warn the other party about this one month in advance. Note that the contract may establish a different period for notifying the counterparty in case of withdrawal from the contract.

For non-fulfillment or improper (for example, untimely) fulfillment of the obligations stipulated by the contract, the guilty party may be subject to economic sanctions in the form of a penalty (fine or penalty). This sanction is a measure civil liability and provided for in the contract.

In addition to gratuitousness, the differences between a gratuitous use agreement and a lease agreement are:

the amount of liability of the lender (failure to provide a thing, for the shortcomings of a thing transferred for gratuitous use). Under this agreement, only real damage is subject to compensation, while under a lease agreement - real damage and lost profits;

scope of the borrower's rights. If the thing is not provided for gratuitous use, the borrower does not have the right to demand it from the lender, while if the thing is not provided for rent, the lessee has such a right;

the extent of the obligations of the borrower for the maintenance of the thing. As a general rule, the borrower also bears the costs of capital repairs of the property used free of charge. Under the lease agreement, this obligation is assigned to the landlord.

Accounting of property transferred for gratuitous use (accepted for gratuitous use), as well as expenses associated with its maintenance (operation)

The receipt and transfer of property for gratuitous use must be appropriately reflected in the accounting records of the parties. The document confirming the completion of this business transaction is the act of acceptance - transfer, which indicates the range of property provided and its value, agreed by the parties. In this act, it is also desirable to indicate the inventory numbers assigned to the transferred property by the lender. This act is accepted accounting if it is duly executed and signed by authorized representatives of the parties.

Upon receipt by the organization of fixed assets transferred to it for free use, these objects are accounted for on the off-balance account 001 "Leased fixed assets" in the assessment agreed by the parties in the contract (clause 87 of the Methodological Guidelines for Accounting of Fixed Assets approved by the Order of the Ministry of Finance of Russia dated 20.07.1998 N 33n (as amended on 28.03.2000) At the same time, the borrower maintains analytical records for each lender, as well as for each object of fixed assets received for gratuitous use (according to the inventory numbers of the lender).

Unless otherwise agreed by the parties to the agreement, all costs associated with the current and major repairs of the property in question, as well as its operation, shall be borne by the borrower. These expenses may be included in expenses for ordinary activities, works, services, if the property is used for production or management purposes.

In particular, these expenses include:

expenses for the purchase of fuels and lubricants consumed during the operation of a gratuitously used vehicle, repair of this tool;

current and overhaul office space, which the organization uses free of charge on the basis of a concluded contract, operating costs for its maintenance. These expenses in accounting are reflected in the corresponding balance accounts in the amount of actually incurred expenses and are not subject to rationing;

other similar expenses incurred in accordance with the concluded agreements and confirmed by the relevant primary documents.

Example. The organization - the lender transfers for temporary use to the organization - the borrower a motor vehicle with all accessories. The value of the transferred property agreed by the parties is 60,000 rubles. Under the terms of the agreement, the costs associated with the operation and repair of property are borne by the organization - the borrower, which uses the vehicle for production purposes.

The reflection of these business transactions in the accounting of the borrower is as follows:

When the organization - the owner of fixed assets or other property is transferred in accordance with the contract for gratuitous use, these objects (other property) continue to be listed on its balance sheet. At the same time, the disposal of fixed assets (write-off from balance sheet in connection with the loss of ownership of it) does not occur, in contrast, for example, from a gratuitous transfer. Fixed assets transferred for temporary gratuitous use are accounted for by the owner on the balance sheet account 01 "Fixed assets", sub-account "Fixed assets transferred for gratuitous use". Analytical accounting for this sub-account should be kept for separate inventory items of fixed assets. At the same time, the construction analytical accounting should provide the possibility of obtaining data on the places of storage of fixed assets (to borrowers).

If the transfer of property for gratuitous use is carried out by the tenant, who records it on the off-balance account 001 "Leased fixed assets", then it seems appropriate to keep records of the property on the corresponding sub-account "Property transferred for gratuitous use", which is opened to the specified off-balance account.

In accordance with the contract for gratuitous use, the costs associated with the current and major repairs of the property in question, as well as its operation, may be borne by the lender. Note that the property transferred for gratuitous use at the organization - the lender ceases to participate in the production process. Therefore, these expenses cannot be included in expenses from ordinary activities.

In accordance with paragraph 23 of the Accounting Regulation "Accounting for Fixed Assets" RAS 6/01, approved by Order of the Ministry of Finance of Russia dated March 30, 2001 N 26n, during the period beneficial use depreciation deductions for a fixed asset object are not suspended, except when it is transferred by decision of the head of the organization to conservation for a period of more than three months, as well as the period of restoration of a fixed asset object, the duration of which exceeds 12 months. Therefore, for property transferred for gratuitous use, the lender continues to charge depreciation deductions, the source of which is the organization's own funds. Accordingly, the borrower does not charge depreciation deductions.

Taxation of transactions related to the transfer of property for gratuitous use (with the receipt of property for gratuitous use), as well as its maintenance (operation)

Note that the transfer of property for free use as an operation does not give rise to tax consequences for the parties to the agreement. This is due to the fact that during such a transfer there is no transfer of ownership of property from the lender to the borrower and, accordingly, this operation is not a sale and subject to VAT and tax on road users. The gratuitous nature of the contract excludes the possibility of obtaining economic benefit directly from the transfer of property, and, accordingly, the tax base for corporate income tax is not formed.

The costs of the organization for the maintenance of property received for gratuitous use are included in expenses that reduce the income received by the organization if:

expenses are documented;

expenses are economically justified;

the received property is used to carry out activities aimed at generating income.

Thus, the obligation of the borrower to bear the burden of these expenses should, among other things, follow from the requirements of the law or the concluded agreement. In this case, they are subject to inclusion in the composition of the costs associated with the production and sale (clause 2, clause 1, article 253 of the Tax Code of the Russian Federation).

At the same time, the considered costs incurred by the lender in accordance with the terms of the agreement cannot be included in the expenses accepted for the purposes of taxing the organization's profits, since the property transferred by the lender does not participate in its activities aimed at generating income. In addition, fixed assets transferred (received) under contracts for gratuitous use are not subject to depreciation (clause 7, clause 2, article 256 of the Tax Code of the Russian Federation). These fixed assets are not subject to depreciation starting from the first day of the month following the month in which the transfer took place. At the end of the contract for gratuitous use and the return of fixed assets to the owner, depreciation is charged starting from the first day of the month following the month in which the return of fixed assets occurred.

Expenses for the repair of fixed assets worth more than 10,000 rubles, which, in accordance with the mutual agreement of the parties, are borne by the borrower, are accepted for the purpose of calculating corporate income tax within the established standards, the amount of which depends on the type of activity carried out by the borrower (Article 260 of the Tax Code of the Russian Federation ).

The costs associated with the payment of property tax are borne by the owner of the property in question, who is responsible for the correct calculation and timely transfer of this tax to the budget.

The parties to the loan agreement are the lender and the borrower.

A borrower is a person who receives property for gratuitous use. Any person can act as a borrower. However, in cases stipulated by law or by the lender itself, only special entities can be loan recipients.

The lender is the owner of the property transferred for use or a person authorized by law or the owner of the property to lend property Civil Code Russian Federation Clause 1 of Article 690. The transfer of property for gratuitous use is the right of every owner. Other property owners must have special authority to transfer property for free use. This authority must be based on the law or on the will of the owner of the Civil Code of the Russian Federation, paragraph 1, Article 690. In particular, the lessee may transfer the leased property for free use only with the consent of the lessor. Such consent is one of the forms of the will of the owner.

Any entity can be a lender and a borrower civil law. The right to transfer a thing for gratuitous use belongs to its owner and other persons authorized to do so by law or by the owner Civil Code of the Russian Federation Art. 690 p. 2.

In accordance with Art. 660 of the Civil Code, the tenant of the enterprise has the right to transfer for free use the things that are part of the leased enterprise. State or municipal enterprises that have property under the right of economic management may transfer movable property for gratuitous use independently, and immovable property - with the consent of the owner. Federal property not assigned to enterprises may be transferred for free use by the Ministry of State Property of the Russian Federation and its territorial bodies.

A commercial organization is not entitled to transfer property for gratuitous use to a person who is its founder, participant, head, member of its management or control bodies. In addition, due to the fundamental prohibition of donations between commercial organizations, the Civil Code of the Russian Federation Art. 575, a commercial organization cannot transfer a thing for free use to another commercial organization.

With regard to borrowers special requirements GC does not install. However, this may take place in special laws.

The main obligation of the lender is to provide the borrower with the thing in a condition corresponding to the terms of the contract for gratuitous use and its purpose. Together with the thing, all its accessories and related documents (instructions for use, technical passport, etc.) are transferred to the borrower, unless otherwise provided by the contract. When a breach by the lender of the obligation to transfer accessories and documents deprives the borrower of the opportunity to use the provided thing for its intended purpose, or such use loses its value to a significant extent, the borrower has the right to demand the transfer of accessories and documents related to the thing to him, or the termination of the contract and the recovery of the real property incurred by him. damage. At the same time, due to the gratuitous nature of the loan agreement, the possibility of recovering losses in the form of lost profits is excluded.

Liability for defects in things transferred for free use is limited in comparison with the liability of the lessor under a lease agreement Civil Code of the Russian Federation, Art. 612 or the seller under the contract of sale Civil Code of the Russian Federation Art. Art. 475 - 476 for a similar violation. Firstly, the lender is only liable for those shortcomings of the thing that he intentionally or through gross negligence did not indicate when concluding the contract. Civil Code of the Russian Federation, paragraph 1 of Art. 693 . The lender is not responsible for the shortcomings of the thing that were agreed upon by him at the conclusion of the contract, or were known to the borrower in advance, or should have been discovered by the borrower during the examination of the thing or checking its serviceability when concluding the contract or when transferring the thing . 693 .

Secondly, if defects are discovered in the transferred thing, the borrower has the right to choose only from two options: either to demand from the lender the gratuitous elimination of the defects of the thing or reimbursement of his expenses for their elimination, or to terminate the contract ahead of schedule and compensate the real damage suffered by him. In this case, the lender, notified of the requirements of the borrower or of his intention to eliminate the defects of the thing at the expense of the lender, may immediately replace the defective thing with another similar thing that is in proper condition. 693 .

The obligation of the lender to warn the borrower about all the rights of third parties to this thing (servitude, right of pledge, etc.) must be fulfilled when concluding a contract for gratuitous use.

Failure to fulfill this obligation gives the borrower the right to demand termination of the contract and compensation for the real damage he has suffered Civil Code of the Russian Federation, Part 2, Art. 694 . The transfer of a thing for gratuitous use is not a basis for changing or terminating the rights of third parties to this thing Civil Code of the Russian Federation, Part 1, Art. 694 .

The obligation of the borrower to maintain the thing is to maintain the thing received for gratuitous use in good condition, including the implementation of current and major repairs, and to assume all expenses for its maintenance, unless otherwise provided by the contract for gratuitous use of the Civil Code of the Russian Federation, Part 1 Art. 694 . The imposition by law on the borrower of obligations to carry out major repairs also shows the difference between a paid lease agreement and a gratuitous loan agreement.

The borrower is obliged to use the thing transferred to him for gratuitous use in accordance with the terms of the contract, and if such conditions are not established in the contract, then in accordance with the purpose of the thing. In case of violation of this obligation, the lender has the right to demand termination of the contract and compensation for losses Civil Code of the Russian Federation, paragraph 2, Art. 689, paragraphs 1 and 3 of Art. 615 .

The borrower has the right to make improvements in the property transferred to him for gratuitous use. The separable improvements made by the borrower shall be his property, unless otherwise provided by the loan agreement Civil Code of the Russian Federation, clause 2, Art. 689, paragraph 1 of Art. 623 . If the borrower, without the consent of the lender, makes inseparable improvements in the thing transferred to him, then the cost of such improvements is not subject to compensation. 689, paragraph 3 of Art. 623 . Re-equipment, re-equipment, re-planning and other changes in the subject of the loan are possible with the consent of the lender in compliance with the norms of public law Sukhanov E.A. Textbook "Law of Obligations"; volume 2; 2nd edition.

During the period when the borrower has a thing transferred for gratuitous use, the risk of accidental loss or accidental damage to this thing lies with him. Civil Code of the Russian Federation, Art. 696 if:

a) the thing has perished or been damaged due to the fact that the borrower has not used it in accordance with the contract for gratuitous use or the purpose of the thing;

b) the borrower transferred it to a third party without the consent of the lender (with the consent of the lender, the risk falls on the lender);

c) taking into account the actual circumstances, the borrower could prevent its destruction or damage by sacrificing his thing, but preferred to keep his thing.

In all other cases, when the borrower used the thing transferred to him for gratuitous use in good faith, with full attention and care in accordance with the terms of the contract and the purpose of the thing, the risk of accidental loss of the thing falls on its owner. 211 .

The loan agreement specifically addresses the issue of liability for damage caused to third parties as a result of the use of the subject of the loan. As a general rule, the lender is liable for such damage, unless he proves that the damage was caused due to the intent or gross negligence of the borrower or the person who has this thing with the consent of the lender Civil Code of the Russian Federation Art. 697 . However, if the thing transferred for gratuitous use is a source heightened danger and as a result of its actual exploitation by the borrower (his crew) harm was caused to a third party, then in accordance with par. 2 p. 1 art. 1079 of the Civil Code, such damage must be compensated by the borrower as the title owner of the source of increased danger. If a thing that is a source of increased danger is transferred for gratuitous use to a borrower with a crew consisting of persons who are employees of the lender and operates the thing for the benefit of the borrower, then the lender will be liable for the damage caused to third parties as a result of such exploitation. for he remains the owner of the thing.

The lender, as the owner, has the right to alienate the thing or transfer it to a third party for compensation. In this case, the rights under the previously concluded loan agreement are transferred to the new owner or user, and his rights in relation to the thing are encumbered with the rights of the borrower Civil Code of the Russian Federation, paragraph 1, Art. 700 .

In the event of reorganization of a legal entity - a borrower, its rights and obligations under the agreement are transferred to the legal entity that is its successor, unless otherwise provided by the agreement. In the event of the death of a citizen-borrower, the right to free use of a thing received by him under a loan agreement is not included in the inheritance mass even when the thing transferred for temporary use is immovable, which distinguishes this right from the lease right to real estate Civil Code of the Russian Federation paragraph 2 of Art. 617 . The death of a citizen-borrower, as well as the liquidation of a legal entity-borrower are grounds for terminating a loan agreement Civil Code of the Russian Federation Art. 701 .

Anyone concluded by the taxpayer becomes the object of close attention of the regulatory authorities. Often such an agreement acts as one of the ways to regulate relations with counterparties. Consider further the features that the contract for gratuitous use has. A sample document will also be presented in the article.

Practical use

Contract for free use can be used as:

  1. Incentives. For example, an enterprise provides display, trade equipment for a sample of a certain volume of goods.
  2. Means of reducing the fixed costs of the payer. For example, this may be the granting of the right to free operation of illiquid real estate, which implies the imposition on the user of the costs of its maintenance.
  3. Facilities effective management material values ​​in the group of companies.

tax office claims

Free use, according to the control authorities, offers certain benefits. In accordance with this, the tax inspectorate, as a rule, makes the following claims:


Definition

What does it represent? This agreement provides that one party assumes the obligation to transfer or provide a thing for temporary free operation to another subject of legal relations. The latter, in turn, will have to return the object in the same condition in which it was received, taking into account its normal wear and tear, or in a form that is stipulated by the terms of the transaction. This is how it is characterized in Article 689 of the Civil Code.

Specificity

It is allowed to transfer for gratuitous use only such objects that have individually defined characteristics. This means that a thing must first of all have characteristics by which it can be distinguished from a mass of similar ones. For example, you can make free use of living quarters, car, TV. But 10 tons of rolled metal cannot become the subject of an agreement as a general rule. This is explained by the fact that, under the terms of the transaction, it will be necessary to return the same thing, and not a similar one.

Legal aspects

An agreement on the gratuitous use of a premises or other individually defined object, a transaction of sale, lease, exchange, etc., refers to agreements on the transfer of a thing. What does it mean? This suggests that all of these agreements involve the emergence of certain duties and rights and relate to property. The difference is that in some cases, material values ​​are transferred into ownership. This happens when exchanging, donating, buying and selling. And it involves only exploitation. Ownership remains with the rightful owner. Since these agreements have a number of common features, in practice it became possible to apply the rules provided for one category of contracts to their other types. This is confirmed in particular by Art. 689, paragraph 2 of the Civil Code. In accordance with the norm, the rules on the lease agreement also apply to.

Property interest

It is not available free of charge. There is no need to talk about the absence of another interest in the transaction from the owner. Essentially, free use of property implies any benefit. However, in this case, the interest of the subject transferring the thing is not obvious or is only assumed. It may also be that the owner simply does not want to advertise it.

Free use of the premises

Today, the provision of real estate for operation without charging a fee often becomes the subject of disputes in the legal and judicial practice. In accordance with the legislation, the agreement on gratuitous use is considered as a loan agreement. In it, the owner acts as a lender, and the receiving participant acts as a borrower. The conditions and procedure, in accordance with which real estate is carried out, are regulated by the provisions of the Civil Code, LCD, Land Code. Article 288 Civil Code, the right of ownership implies the possibility for the owner to provide the object belonging to him to third parties for operation only on the basis of an agreement. However, it must be in writing.

Design features

As in other cases, the agreement on gratuitous use must comply with the requirements of the law. It contains information about:


Important point

If it will be carried out by an apartment, cottage, house, the borrower must be provided with all the documents that he will need to pay for housing and communal services, the implementation of targeted and other fees provided for in the agreement. When concluding a transaction, the owner is obliged to inform the other party about all the rights of third parties to the object. For example, real estate may be pledged, an easement has been established in relation to it, etc.

Owner's responsibility

According to the provisions of Article 693 of the Civil Code, the lender is obliged to provide the recipient with information about the shortcomings of the property transferred under the contract for gratuitous use. If this was not done, then the owner is responsible. So, if the user discovers defects about which the lender did not notify him in advance, he has the right to demand:


Nuances

The owner who provided the property in b free use, is not responsible for the shortcomings that are present in the object, if he informed the other party about them in advance at the conclusion of the transaction. If the borrower is ready to eliminate defects on his own at the expense of the owner with his consent, then the receiving participant must be sent an official notification of this possibility. This provision is established by paragraph 3 693 of the article of the Civil Code. If the defects are unremovable, that is, they are the result of uneven shrinkage, deformation, cracking in the supporting structures or threaten the health and life of people, the borrower may terminate the agreement unilaterally.

User Responsibility

After providing the immovable object to the person for operation, the party to the agreement assumes certain responsibilities. These include, among other things, the need to maintain the premises in proper condition, the implementation of maintenance costs, including payment for current and major repairs, unless otherwise specified in the contract. In addition, the subject bears the risk of damage to the object provided to him in accordance with the agreement in the following cases:

Damage caused to a third party in connection with the operation of the object implies the responsibility of the owner. In accordance with Art. 697 of the Civil Code, the rightful owner may not bear it if he proves that the harm arose as a result of the user's gross negligence.

Early termination of the agreement

In Art. 698 of the Civil Code establishes cases in which it is allowed to terminate the contract by the lender before the end of the period provided for in it. These include violations committed by the borrower:

  1. Operation of the object for other purposes.
  2. Failure to fulfill the obligation to maintain property, maintain it in proper (serviceable) condition.
  3. Performing actions that cause significant damage to the object.
  4. Transfer to third parties without obtaining the consent of the owner.

It should be noted that, according to Article 699 of the Civil Code, both parties have the right to refuse an agreement for gratuitous use, concluded without specifying the period of its validity. In this case, one participant (initiator) is obliged to notify the other of the intention to terminate the contract no later than 1 month.

Persons entitled to conclude an agreement for the gratuitous use of residential premises

Residential premises may be provided for gratuitous use both on the grounds and in the manner established by regulations, certain categories of citizens, and in a general contractual manner upon reaching an agreement between the interested parties - the lender and the borrower (Article 689 of the Civil Code of the Russian Federation; Part 2 of Article 30 of the LC RF).

In the first case, residential premises are provided from a specialized housing stock for the purpose of social protection of certain categories of citizens (Article 99, LC RF).

For example, in the city of Moscow, the right to receive residential premises for gratuitous use is granted to elderly citizens and disabled persons recognized as in need of residential premises or to improve their living conditions, who previously transferred residential premises to the city free of charge and in accordance with the established procedure in connection with their placement in the organization of a stationary social services, in case of refusal to receive social services in a stationary form, if they cannot be returned to their previously occupied living quarters. For the purpose of social protection of certain categories of citizens in Moscow, an agreement is also concluded for the gratuitous use of residential premises with large families(Article 27 of the Law of the City of Moscow dated 27.01.2010 N 2; Art. Article 25, Law of the City of Moscow dated 14.06.2006 N 29; clause 11.2 of the Decree of the Government of Moscow dated 01.04.2008 N 248-PP; clause 1.1 .3 Decree of the Government of Moscow dated September 21, 2016 N 588-PP).

Other constituent entities of the Russian Federation may provide for other categories of citizens who have the right to free use of residential premises (for example, citizens from among orphans, citizens who are raising a disabled child, disabled people of group I or II, elderly citizens who have lived in the territory subject of the Russian Federation for at least a certain period of time, etc.).

In the second case, under a contract for gratuitous use, a citizen - the owner of a dwelling (lender) transfers the dwelling for use to his relatives, friends or any other persons of his choice (borrowers) (part 2 of article 30 of the LC RF).

A legal entity can also be a lender under a contract for the gratuitous use of residential premises. At the same time, a commercial organization is not entitled to transfer property for gratuitous use to a person who is its founder, participant, head, member of its management or control bodies, however, it has the right to transfer residential premises for gratuitous use to its ordinary employee, employee of a counterparty organization, etc. (Clause 2, Article 690 of the Civil Code of the Russian Federation).

The main differences between the contract for the gratuitous use of residential premises and the contract for the rental of residential premises

In order to obtain residential premises for use on favorable terms for themselves, citizens who do not belong to those in need social protection, you need to know the differences between a contract for gratuitous use and a contract of employment. The main difference and advantage of the contract for gratuitous use lies in its gratuitousness, however, there are other differences between these contracts.

1. Term of the contract

An employment contract can be concluded for a period of up to five years (clause 1, article 683 of the Civil Code of the Russian Federation).

An agreement for gratuitous use can be concluded for any period (clause 2 of article 689, clause 1 of article 610 of the Civil Code of the Russian Federation). If such an agreement is concluded with large families, the term of the agreement is five years with the right to conclude it for a new term for the period until reaching youngest child in a family of 16 years of age (if he is studying in educational institution- 18 years) (clause 11.4 of Decree N 248-PP).

2. Preemptive right to conclude a contract for a new term

At the end of the lease term, the tenant has the pre-emptive right to conclude an agreement for a new term (Article 684 of the Civil Code of the Russian Federation).

At the end of the term of the contract for gratuitous use, the temporary tenant does not have a pre-emptive right to conclude a contract for a new term.

3. Procedure for termination of the contract

The lease agreement can be terminated at the request of the tenant at any time with the obligatory notification of the landlord in writing about the termination of the agreement three months before the date of termination, and at the request of the landlord - only in judicial order in cases provided for by law. Also, the contract can be terminated in court at the request of any of the parties in the cases provided for by law (clauses 1,, 3, article 687 of the Civil Code of the Russian Federation).

If the contract for gratuitous use is unlimited, then each of the parties has the right to cancel the contract at any time by notifying the other party one month in advance, unless the contract provides for a different notice period. If the contract for gratuitous use is concluded for a certain period, then the borrower has the right to refuse the contract in the same manner, unless otherwise provided by this contract (Article 699 of the Civil Code of the Russian Federation); each of the parties has the right to demand early termination of the contract in cases provided for by law (Article 698 of the Civil Code of the Russian Federation).

4. Distribution of responsibilities for the repair of residential premises

The current repair of the dwelling is carried out by the tenant, the overhaul is carried out by the landlord, unless otherwise provided by the contract (Article 681 of the Civil Code of the Russian Federation).

Current and major repairs are carried out by the borrower, unless otherwise provided by the agreement (Article 695 of the Civil Code of the Russian Federation).

The procedure for concluding a contract for the gratuitous use of residential premises

If you, as the owner of a dwelling, wish to transfer it to other citizens for use under a gratuitous use agreement, then we recommend that you follow the following algorithm to conclude a gratuitous use agreement.

Step 1. Decide on the terms of the contract and draw it up

The contract for the gratuitous use of residential premises must contain the following information:

1) name (if the lender is a legal entity) or full name. (if the lender is a citizen) of the lender and F.I.O. the borrower(s); if the agreement on behalf of the lender or the borrower is signed by their representatives by proxy, also F.I.O. representative and details of the power of attorney; the address of the location or place of residence of the lender and the address of the place of residence of the borrower; details of documents proving the identity of the borrower and the lender - an individual (or PSRN, TIN and KPP of the lender-organization);

2) details of the document certifying the lender's ownership of the dwelling (the number of the entry on registration of the right in the Unified State Register of Real Estate, the date of its entry, the series and number of the certificate of right and the date of its issue), or the details of the contract, if the certificate of right was not issued ;

3) description of the residential premises to be transferred (address, area, number of living rooms and other essential characteristics);

4) description of the technical and sanitary condition of the premises;

5) rights and obligations of the parties;

6) the obligations of the parties for the maintenance of the residential premises: who bears the costs of paying for the apartment (including for utilities), who carries out the current and major repairs of the residential premises;

7) information on the existence of rights of third parties to the residential premises (for example, if the apartment is pledged);

8) the term for which the contract is concluded. If the term is not specified in the contract, then the contract is considered concluded for an indefinite period.

IN fixed-term contract gratuitous use, it may be provided that the borrower is not entitled to unilaterally withdraw from the contract, except in cases where such withdrawal is allowed (Clause 2, Article 699 of the Civil Code of the Russian Federation).

If the lender under the contract for the gratuitous use of residential premises is an organization, then the contract must be concluded in writing (clause 1, part 1, article 161 of the Civil Code of the Russian Federation).

If the lender under the contract for the gratuitous use of residential premises is individual, the contract may be concluded orally. However, in order to avoid the occurrence conflict situations In this case, we also recommend concluding the contract in writing.

Step 2. Sign an agreement for the gratuitous use of residential premises

Upon reaching agreement on all essential terms, the lender and the borrower or their authorized representatives must sign the agreement. After that, the contract is considered concluded and enters into force (Article 425, Civil Code of the Russian Federation).