How to draw up an agreement for the gratuitous use or lease of non-residential premises

In which contracts is gratuitousness allowed?

1. compensated;
2. gratuitous;
3. meeting the criteria of paid and gratuitous contracts.

First, let's discuss compensation agreements. We can include almost most types of transactions to these. When determining consideration in a contract, the first thing attention is paid to is the price of the contract.

Mandatory norms oblige participants in legal relations to indicate price provisions in the contract without fail. If the cost is not indicated in the contract, Article 424 of the Civil Code of the Russian Federation explains this: “In cases where the price is not provided for in the compensation contract and cannot be determined based on its conditions, its execution must be paid at the price that is usually charged under comparable circumstances for similar goods, works or services."

Compensatory contracts include: sales and purchase agreements, supplies, contracts, rents, leases, contracts, paid services, financing for the assignment of a monetary claim, insurance, commissions, agency agreements, commercial concessions, assignments.

In order to ensure that guarantees are provided for each of the parties at all stages of concluding an agreement, the Civil Code of the Russian Federation provides for a preliminary agreement. We could not bypass these agreements, since they are also directly related to the remuneration of transactions and give rise to the beginning of relations between the parties when concluding the main agreement.

Article 429 of the Civil Code of the Russian Federation states that, upon preliminary agreement, the parties undertake to conclude in the future an agreement on the transfer of property, performance of work or provision of services (main agreement) on the conditions stipulated by the preliminary agreement. The preliminary agreement must contain conditions allowing to establish the subject matter, as well as other essential terms of the main agreement.

Considering legal relations only between legal entities (commercial organizations), the Civil Code of the Russian Federation provides a moratorium on the conclusion of gratuitous contracts, in particular donations, since the entrepreneurial activities of legal entities are aimed primarily at making a profit.

However, based on established practice, one or another agreement that meets the criteria of gratuitousness can be interpreted in completely different ways, because the obligations under agreements follow from their essence.

Let's move on to the types of gratuitous contracts only. Free contracts include:

1. gift agreement;
2. agreement for free use (loan);
3. contract for the provision of free services.

The listed agreements are completely different in their legal nature, but they have one thing in common: none of them talks about payment, and gratuitousness is transformed into obligations. Laws do not prohibit the conclusion of such agreements, therefore, before assessing the nature of each agreement separately, you should pay attention to the obligations and responsibilities of the parties, since remuneration does not always take the form of material benefit.

Some agreements, by force of law, can be either gratuitous or compensated, for example: – loan agreement; – contract of agency; – storage agreement.

Let us examine in more detail, for example, a loan agreement is essentially meant to be gratuitous, in which one party (the lender) must transfer into the ownership of the other party (borrower) money or other things defined by generic characteristics, and the borrower is obliged to return the same amount of money (loan amount) to the lender ) or an equal number of other things received by him of the same kind and quality.

It would seem that compensation, in this case, has no place to be, however, the Civil Code of the Russian Federation establishes that the lender has the right to receive interest from the borrower on the loan amount in the amount and in the manner specified in the agreement, and the loan agreement itself is considered concluded from the moment of transfer money or other things.

Or take a contract of agency. He also has the right to be gratuitous, but Article 972 of the Civil Code states that in cases where the agency agreement is related to the implementation of entrepreneurial activities by both parties or one of them, the principal is obliged to pay the attorney a remuneration, unless otherwise provided by the agreement.

The very wording “unless otherwise provided by the agreement...” makes it possible to conclude this agreement on conditions that will be more acceptable to the parties. Remuneration is also allowed under a storage agreement, although there is no direct indication of this in Article 886 of the Civil Code of the Russian Federation.

Expert opinion

Kuzmin Ivan Timofeevich

Legal consultant with 6 years of experience. Specializes in the field of civil law. Member of the Bar Association.

Thus, the legislation provides freedom of choice and allows the parties, at their discretion, to establish both paid and gratuitous bases in the contract.

Features of the agreement

Such an agreement is also called a loan. Both terms can be used. According to it, one individual - called the Lender - transfers to another - the Borrower - any thing for temporary use without charging a fee for it. That is, free of charge. The list of such things is huge: from the already mentioned drill to an entire factory. The main condition is the non-consumability of the transferred item. In other words, so that the latter does not change its properties and does not disappear during use.

Thus, food products, gasoline and other fuels and lubricants, semi-finished products and the like are not eligible for loans.

The lender is either the owner of the thing being transferred or his authorized representative. According to the law, the owner (proprietor) of a thing (property) has the right to dispose of it at his own discretion: put it up for sale, donate it, and, among other things, transfer it to another individual for free use. Any legally capable individual can act as a borrower. The main difference between this agreement and others is the gratuitousness of the transaction itself, where the owner does not receive any material preferences.

So, as mentioned above, the lender transfers a specific thing to the borrower free of charge and temporarily, and the latter undertakes to return it in the same condition (taking into account reasonable wear and tear).

If the agreement does not mention gratuitousness, then, by default, it is considered that a lease agreement (lease agreement) has been concluded.

Possible consequences in the absence of compensation in the contract

The goal of any contract is to ensure that over time it cannot be recognized as invalid or an unconcluded transaction.

The difference between an invalid transaction and an unconcluded one is very significant. According to Article 166 of the Civil Code of the Russian Federation, a transaction is invalid on the grounds established by the Civil Code of the Russian Federation, due to its recognition as such by the court (disputable) or regardless of such recognition (void). The same can be said about the contract.

The invalidity of a contract, equally as the invalidity of a transaction, does not entail the emergence, change or termination of the rights and obligations of the parties, that is, there are no legal consequences.

Void agreements (transactions) are characterized by invalidity by virtue of the rule of law; therefore, it is not required to be declared invalid. To recognize an agreement as not concluded means that it is impossible to establish the contractual obligations of the parties when these necessary conditions have not been achieved between the parties.

When it comes to recognizing an agreement as not concluded, an important evaluation criterion is the counter-expression of will, therefore signing an agreement does not always mean its conclusion. Let's take a gift agreement, which has the properties of a gratuitous transaction.

Despite the presence of the necessary conditions in the contract, it can only be recognized as concluded at the time of transfer of property. The assignment agreement (assignment of the right of claim) deserves attention.

Under an assignment agreement, the right (claim) belonging to the creditor on the basis of an obligation can be transferred by him to another person under a transaction (assignment of the claim) or transferred to another person on the basis of law.

The assignment of a claim by a creditor to another person is permitted if it does not contradict the law, other legal acts or an agreement. Since the assignment agreement must be compensated, legal disputes on this matter are very diverse.

Some courts believe that if the contract does not directly indicate the remuneration, its amount and payment procedure, the contract should be considered invalid, since it will be interpreted as a gift, but other courts take a different point of view.

If we do not indicate the price in the assignment agreement, but all the necessary conditions for this type of transaction are provided, the agreement will be concluded and have legal grounds for the parties.

The court will consider the agreement on its merits. Thus, consideration does not always affect the recognition of contracts as void or unconcluded.

The absence of remuneration provisions in the contract is allowed if this does not contradict the essence of the contract as a whole, therefore it is impossible to unequivocally answer the question of whether the lack of remuneration gives rise to adverse consequences for the parties.

Is the gratuitous nature of the contract an essential condition? Based on Article 432 of the Civil Code of the Russian Federation, the conditions on the subject of the contract are essential, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those regarding which, at the request of one of the parties, an agreement must be reached.

The subject of the agreement must undoubtedly be present in any case. The subject of the contract reflects its essence as a whole, the rights and obligations of participants in civil legal relations and must contain individual characteristics in order to be able to distinguish it from other contracts.

As for the agreement reached on the essential terms of the contract, the law provides for a requirement for the execution of a certain type of contract. Reaching an agreement on essential terms is one of the guarantees that the contract gives rise to legal consequences.

Considering that remuneration is often qualified as remuneration, the presence of this requirement can be considered an essential term of the contract, unless otherwise provided by law. As for the gratuitous basis, everything is different here. Some types of agreements imply exclusive gratuitousness, for example, a gift agreement.

Therefore, applying this norm specifically to donations, the nature of gratuitousness is an essential condition of the contract.

If there are no provisions on price in the contract or when it is not provided for in the consideration contract and cannot be determined based on the terms of the contract, its execution must be paid at the price that, under comparable circumstances, is usually charged for similar goods, work or services.

In such cases, there are no grounds for recognizing the contract as not concluded.

1. An agreement under which a party must receive payment or other consideration for the performance of its obligations is compensated.

2. A gratuitous agreement is an agreement under which one party undertakes to provide something to the other party without receiving payment or other consideration from it.

3. An agreement is assumed to be for compensation unless otherwise follows from the law, other legal acts, content or essence of the agreement.

Agreement for free use of property sample

If the property under this Agreement was transferred without its accessories and documents related to it, without which it cannot be used for its intended purpose or its use significantly loses value for the Borrower, the latter has the right to demand the provision of such accessories and documents or termination of the Agreement and compensation for actual damage suffered by him.

3.2. A Party that fails to fulfill or improperly fulfills its obligations under this Agreement is obliged to compensate the other Party for losses caused by such failure, unless otherwise provided by current legislation and this Agreement.

3.3. The borrower shall compensate for losses if they arose as a result of his guilty actions or inaction.

3.4. The Lender is responsible for defects in the property that he intentionally or through gross negligence did not stipulate when concluding this Agreement.

3.5. The Lender is liable for damage caused to a third party as a result of the use of property, unless he proves that the damage was caused due to intent or gross negligence of the Borrower or his employee.

3.6. For failure to fulfill or improper fulfillment of other obligations under this Agreement, the Parties bear responsibility established by the current legislation of the Russian Federation.

RISK OF ACCIDENTAL DEATH OR ACCIDENTAL DAMAGE TO PROPERTY

4.1. The risk of accidental loss or accidental damage to property is borne by the Lender, except for the cases specified in clause 4.2 of this Agreement.

4.2. The Borrower bears the risk of accidental loss or accidental damage to property if the property is lost or damaged due to the fact that he used it not in accordance with this Agreement or the purpose of the property or transferred it to a third party without the consent of the Lender. The borrower also bears the risk of accidental death or accidental damage to property if, taking into account the actual circumstances, he could have prevented its death or damage by sacrificing his property, but chose to keep his property.

TERM OF THE CONTRACT. CHANGE AND TERMINATION OF THE AGREEMENT

5.1. This Agreement comes into force from the moment it is signed by both Parties and is valid until “” 2018.

5.2. The Agreement may be amended or terminated early by written agreement of the Parties, as well as in other cases provided for by the current legislation of the Russian Federation or this Agreement.

The Borrower has the right to demand termination of this Agreement:

• upon discovery of deficiencies that make the normal use of the property impossible or burdensome, the presence of which he did not know and could not know at the time of concluding the Agreement;
• if the property, due to circumstances for which he is not responsible, turns out to be in a condition unsuitable for use;
• if, when concluding the Agreement, the Lender did not warn him about the rights of third parties to the property;
• if the Lender fails to fulfill the obligation to transfer the property or its accessories and documents related to it.

5.4. The Lender has the right to demand termination of this Agreement in cases where the Borrower:

• uses the property not in accordance with the Agreement or the purpose of the property;
• fails to fulfill obligations to maintain the property in good condition or maintain it;
• significantly deteriorates the condition of the property;
• transferred the property to a third party without the consent of the Lender.

5.5. This Agreement is terminated on the grounds established by the current legislation of the Russian Federation.

FORCE MAJEURE

6.1. Neither Party to this Agreement is liable to the other Party for failure to fulfill obligations due to circumstances that arose against the will and desire of the Parties and which cannot be foreseen or prevented (force majeure), including declared or actual war, civil unrest, epidemics, blockades, earthquakes , floods, fires and other natural disasters, as well as prohibitive actions of authorities and acts of government bodies. A document issued by the relevant competent authority is sufficient evidence of the existence and duration of force majeure.

6.2. A Party that fails to fulfill its obligation due to force majeure must immediately notify the other Party of the occurrence of these circumstances and their impact on the fulfillment of obligations under the Agreement.

DISPUTE RESOLUTION

7.1. All disputes and disagreements that may arise between the Parties on issues that are not resolved in the text of the Agreement will be resolved through negotiations on the basis of the current legislation of the Russian Federation.

7.2. In case of non-settlement during negotiations, disputes are resolved in court in the manner established by the current legislation of the Russian Federation.

FINAL PROVISIONS

8.1. In all other respects that are not provided for by the terms of this Agreement, the Parties are guided by the current legislation of the Russian Federation.

8.2. This Agreement is drawn up in 2 copies having equal legal force, one copy for each of the Parties.

Appendix No. 1. Characteristics of property transferred for free use.

LEGAL ADDRESSES AND PAYMENT DETAILS OF THE PARTIES

Lender

Registration: Postal address: Passport series: Number: Issued by: By: Telephone:

Borrower

Legal address: Postal address: Taxpayer Identification Number: KPP: Bank: Account/account: Correspondent/account: BIC:

SIGNATURES OF THE PARTIES

Lender _________________

Borrower _________________

If you have any questions, please contact our lawyers for advice.

Expert opinion

Kuzmin Ivan Timofeevich

Legal consultant with 6 years of experience. Specializes in the field of civil law. Member of the Bar Association.

In order to understand how to proceed in your case, please fill out the feedback form. Briefly describe your situation, indicate your name, city and phone number, submit an application and receive advice from our lawyer within 10 minutes.

• May 8, 2021
• Terms
• Yulia Abdulbarova

Agreement is a very broad concept. After all, this document formalizes completely different relationships between people - sale and purchase, donation, rent, provision of loans, hiring an employee, etc.

To structure all this, appropriate classifications are introduced. One of the most common divisions of contracts in civil law is into gratuitous and compensated.

What exactly belongs to the first group, how these documents are drawn up, we will analyze in the article.

What does free mean?

Thus, all legal relations where one party provides another with property or a service without any benefit for themselves can be called gratuitous. There are also a number of relationships that can only exist on this basis.

A gratuitous agreement is a document formalizing such relations between citizens and organizations. It necessarily stipulates that one party will not benefit from the fulfillment of its obligations. As in compensation agreements, the terms of the transaction, obligations and rights of the parties are also specified here.

As for objects, they are various property, works or services. The subjects of such an agreement are the parties to the transaction free of charge.

Standard form

Despite the fact that such an agreement is gratuitous, it is necessary to reflect the financial interaction of the parties, which will inevitably take place after its signing..

You can take as a basis the rights of the parties that are guaranteed in this case by law. You can make any changes or supplement the document with individual paragraphs, stipulating specific conditions in it, for example:

• which party, to what extent and in what cases bears the costs of maintaining the premises;
• whether compensation will be made to the borrower for inseparable improvements;
• who will become the owner of the separable improvements after the termination of the agreement.

Conclusion rules

The requirements for the form of a loan agreement are not as strict as, for example, for a lease agreement.
However, it is necessary to specify its subject: the main characteristics of the premises and the exact address of the location. If you miss this point, then such an agreement may not be recognized as valid. Samples of this document, which can be freely downloaded on the Internet, as a rule, contain only points supported by the Civil Code of the Russian Federation . If necessary, with the consent of the parties, they can be supplemented or changed.

In the contract, it is important to provide and fix the degree of responsibility of the parties in each situation that may arise after it comes into force.

Such an agreement can be either fixed-term or indefinite, if it does not indicate the end date of the lease. So, this point must also not be lost sight of. .

What should the text contain?

The agreement must contain information about the lender and the borrower. The document must contain comprehensive information about the subject of the contract itself, as well as the conditions for its transfer and use:

1. What kind of object is being transferred to the borrower, its address and main characteristics.
2. What documentation is transferred along with this property?
3. For what purpose can it be used by the borrower?
4. For how long is the property provided?
5. How much is it estimated by the parties?

Attention !
It should reflect what responsibilities and rights each party receives, based on what specific situations may arise after concluding this agreement. Among which:

1. Within what time period must the item be transferred to the other party?
2. Are there any restrictions on its use, and what exactly?
3. Who has the responsibility to maintain his item in good condition and to repair it.
4. Who pays for repairs if faults are found?
5. In what condition must the borrower return the property to its owner?

The degree of responsibility of the borrower should be specified if, through his fault, the property is damaged or destroyed:

1. To what extent will he have to compensate for the damage?
2. In what time frame?

The final provisions must include:

1. In what form can additions or changes be made to the agreement.
2. In what form should all notices or notifications be sent?
3. From what moment does the document come into force?

Indicate the addresses and details of the parties.

Next, the parties must put their signatures.

The document must be accompanied by an act of acceptance and transfer of property . It describes in detail the condition in which the property is being transferred, compiles a list of everything that is attached to the object of transfer, and indicates the presence or absence of defects and malfunctions.

Document structure

1. At the top in the middle is the name of the document.
2. On the next line is the place and date of his conclusion.
3. Full name of the parties who enter into this agreement.
4. Subject of the agreement.
5. Rights and obligations of the parties.
6. Responsibility of the parties.
7. Risk of loss or damage to property.
8. Final provisions.
9. Addresses, details and signatures of the parties.

Duration and costs

The validity period is determined by the agreement, but if there is no such information in it, the agreement will be considered unlimited.
Although, it can be terminated at any stage of its validity, both at the initiative of the lender and at the initiative of the borrower, unless otherwise specified in the document. Reference .
Since such an agreement does not require state registration, payment for this type of service is no longer required. Sometimes it is still certified by a notary, despite the fact that this type of agreement does not require this. In this case, it will be necessary to pay for the services of a notary; the cost of this may be about 8,000 - 9,000 rubles (depending on the prices for the services of a particular specialist).

Acceptable Cases

We have defined that a gratuitous agreement is a document concluded when one party does not undertake to pay a fee or provide property, goods or services in exchange to the other party for the fulfillment of obligations under this agreement.

In addition to Art. 423 of the Civil Code of the Russian Federation, Art. 572, 689, 972 of the same Civil Code. Here we see that the contract is gratuitous:

• Donations.
• Loans.
• Loan (may be reimbursable).
• Storage (can also be paid).

The conditions for determining the forms of such contracts are directly presented in the Civil Code.

Donation

The gift agreement is free of charge. It involves the transfer of property from one party to another as a gift. Or releases you from property obligations.

Expert opinion

Kuzmin Ivan Timofeevich

Legal consultant with 6 years of experience. Specializes in the field of civil law. Member of the Bar Association.

The object of such an agreement is the item being donated. In most cases, this is a small gift, an item whose value does not exceed 5 minimum wages. There are two parties here: the donor (he can be called a benefactor or donor) and the recipient.

Such an agreement is gratuitous in nature. Since the donor does not receive anything in return from his decision.

If in return the recipient provides him with at least some material benefit, then the contract will no longer be considered gratuitous. This applies to cases where the parties intend to “disguise” any mutually beneficial transaction under a gift agreement - from purchase and sale to exchange.

The subject of the donation is always clearly indicated in such agreements. But in most cases it is not in written, but in oral form. This is an ordinary transfer, the presentation of a gift.

Is gratuitousness always beneficial?

Is an agreement for the free use of an apartment always beneficial? Speaking about the advantages and disadvantages of the gratuitous form of disposal of premises, we can draw the following conclusion.

If you still cannot do without such a form, it is more reliable to formalize legal relations with the participation of a notary and transfer of the premises for use under a deed.

Especially if the agreement is drawn up between strangers, a large family or a person with limited legal capacity is moving into the apartment.

You can learn about some aspects of applying the right to free use of real estate by watching the video:

See also Phone numbers for consultation June 02, 2021 kasjanenko 908

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Discussion: 6 comments

1. Valeria says:
   07/07/2017 at 00:57

   Of course, it is advisable to conclude an agreement on free use; if you change your mind, you should be able to do so legally. On the other hand, the person who will use the premises will be sure that it is free of charge.

   Answer

2. Natalya says:

   07/15/2017 at 12:32

   Personally, it’s somehow strange for me to read about free use agreements. No, when a legal entity rents out a legal entity, then this is understandable, but when you let a relative, friend or girlfriend stay, you won’t even dare to mention some kind of agreement. And those you don’t trust shouldn’t be allowed into your living space. It's simple. A friend lived with us for a month for family reasons - they just gave us the keys and agreed on a time frame. And everything was fine. What other agreement is needed?

   Answer

3. Dina says:

   07/20/2017 at 07:54

   Contract or not, some kind of document needs to be drawn up. For example, some kind of obligation that the person whom you allowed to use the premises (apartment) free of charge will pay for utilities.

   Answer

4. Vasily says:

   08/13/2017 at 13:46

   It seems to me that it is better to conclude an agreement. Because in this case, you will know for sure that the rent will be paid by the person who lives in the apartment. In addition, nothing will wear out or break.

   Answer

5. Dudarev Fedor Vladimirovich says:

   04/20/2018 at 14:16

   The regulations for concluding agreements are established by Chapters 34 and 36 of the Civil Code, I know this, but it is not being implemented! And no one is interested in your chapters 34 and 36 of the Civil Code. That's the problem!

   Answer

6. Sergey Petrovich says:

   08/13/2020 at 03:46

   My parents gave their dacha to a friend of mine to use free of charge while they themselves went abroad to work for three years. So then nothing remained of this dacha. And there is no one to ask, because the contract was not concluded, even though it was free of charge.

   Answer

Free use

Let's move on to a new category. A contract of gratuitous use is a document under which a thing is transferred into temporary possession without paying for its rental. Another acceptable name for this agreement is a loan agreement.

If the property is of insignificant value and is not of particular value, then such an agreement is concluded orally. But if the subject is vehicles, real estate or expensive items, it would be reasonable to formalize the transaction in writing.

The agreement for gratuitous use is a lease agreement that has legal force. For example, in the case of resolving contradictions between the parties in court. The document can be notarized upon request.

Subject and content of the agreement

The subject of the agreement is movable and immovable property: plots of land, buildings, motor vehicles, mechanized or electronic devices, and other non-consumable things. Accordingly, an agreement for the use of real estate and an agreement for the use of movable property are drawn up.

The subject of the transaction must be described in detail in accordance with all title documentation. Organizations require an acceptance certificate describing the condition of the item being transferred.

In the sample you can see how to correctly draw up a contract for the transfer of property for use.

The category of contracts for the transfer of property for temporary operation (management) includes: contracts for rental, rental of residential premises, gratuitous use of property. These include: a lease agreement for motor vehicles, an agreement for the gratuitous use of municipal property, an agreement for the gratuitous use of a land plot, etc. They are classified as property, but are not included in the above category: an agreement for the joint use of property, an agreement for the common use of property.

Classification of contracts for the use of property by the presence/absence of consideration:

• agreement for free use of property;
• paid agreement for the use of property.

An agreement for paid use of property regulates the relationship between individuals and legal entities regarding the provision of real estate and movable property for a fee for short- or long-term use.

A correctly drawn up agreement for the use of property is presented in this sample.

Read also: agreement on gratuitous transfer of ownership rights

Control

Which contract is gratuitous? Another example is trust management. It involves the transfer of property from one party to another for an indefinite period. There are two participants here - the trustee and the principal.

According to the agreement, the trustee is obliged to dispose of the property transferred to him for management, taking into account the interests of the principal and taking into account the provisions of the concluded agreement.

Such gratuitous agreements are drawn up in writing, in free form. An exception will be agreements on trust management of valuable property. They are securities, real estate, enterprises, etc.

Why is this agreement considered gratuitous? It does not confer ownership rights on the manager.

Nuances

Deal Features

Despite the general provisions with court and lease agreements, the described use of real estate on a contractual basis also has its own subtleties.

• The agreement is subject to termination at any time at the initiative of one of the parties. The law requires notifying the other party one month before termination of legal relations. But even taking this into account, being in constant anticipation of an unpleasant surprise is inconvenient for the parties to the agreement.
• Current and major repairs in accordance with Art. 695 of the Civil Code of the Russian Federation is carried out by the borrower. Unless, of course, otherwise follows from the terms of the contract.
• The owner of the premises, when renting it out for use, is obliged to warn the borrower about the registered rights of third parties (bank collateral, citizens registered in the apartment). Failure to comply with the requirement allows the other party to terminate the agreement without compensation for possible losses.
• Upon termination of the agreement, the guest does not have the right of priority to extend the agreement. The exception is large families.