Does an individual need to become an individual entrepreneur to rent out non-residential premises?

What are the regulations governing the letting of real estate?

The main legal act regulating the legal relations in question will be the Civil Code of the Russian Federation. Some of the rules related to the topic are stated in the following acts:

Tax Code of the Russian Federation.
Federal Law “On State Registration of Real Estate”.

The last of these documents can be called “accompanying”; they reveal details:

How does the registration process work?
what percentage of tax is established when receiving income from the rental of real estate.

But the largest number of rules governing rental issues is contained in the Civil Code of the Russian Federation .

You can find out what the lease of non-residential premises is and how transactions are formalized in this material.

Can an individual be a lessor?

As noted, ownership can be expressed in the disposal of property. That is, the Civil Code of the Russian Federation does not prohibit individuals from renting out non-residential premises.

Tenants can be:

individuals;
legal entities;
municipalities and the state, under certain conditions.

In a word – almost all subjects of civil law. Meanwhile, it must be remembered that activities related to the systematic receipt of profit are regarded by the state as entrepreneurial . In this case, the entity that is engaged in business must be registered with the tax authorities in a certain way:

as an individual entrepreneur;
as a founder of a legal entity.

Theorists put forward the opinion that leasing non-residential premises can be called entrepreneurship only in cases where:

the contract is concluded for a long term;
there is an established circle of contractors using non-residential premises.

In practice, courts are not inclined to go into detail. If the competent authorities become aware that an individual. a person rents out his non-residential premises to someone for money, then they try to bring this person to justice : administrative or even criminal, if, say, major damage is caused to the state. Thus, if you plan to make a living by renting out real estate, then it is better to register as an individual entrepreneur.

However, many successfully engage in rental activities illegally. Nothing new: “In Russia, the severity of laws is compensated by the optionality of their implementation.” If the tax authorities are interested in the lessor, then he will need to prove that renting out real estate is a special case. Making a profit on an ongoing basis was not part of the plan.

Individual entrepreneur registration

A mandatory condition of the law is the presence of a specific address for any business entity. For enterprises, a legal address is mandatory. But an individual entrepreneur is an individual, so he does not need to have a legal address. According to the law, when registering an individual entrepreneur, he indicates his registration address. That is, the activities of an entrepreneur can be carried out at home.

However, for the tax inspectorate it is of great importance where to look and check the activities of an entrepreneur. If the tax service indicates the address of a specific premises, for example, if an individual entrepreneur rents an office but does not actually work there, then such an entrepreneur will be held accountable.

At the place of registration of an individual, Federal Tax Service employees will not be able to check the private home of the entrepreneur. It will be enough for him to provide accounting or tax documentation during the audit.

Do I need to inform the tax office about the place of business? Yes. This is necessary so that notifications from the Federal Tax Service do not arrive at home, but at the place of actual work.

Is it possible to rent an office without an individual entrepreneur? In fact, you can rent a room. However, illegal business activities are prosecuted by law. Such an entrepreneur faces fines or even criminal liability.

Where can a “physicist”-landlord find a client?

You can use standard methods of searching for clients:

place an ad in a newspaper;
post information on social networks;
publish information about the availability of vacant non-residential premises on popular bulletin boards: “Avito”, “Yula” and so on.

You can post advertisements at bus stops and entrances. The degree of effectiveness will, of course, vary. In general, finding clients is more a matter of marketing rather than jurisprudence. You need to have a good idea of which individuals are looking for non-residential premises.

Since 2015, and maybe earlier, the topic of “mini-warehouses” has become popular, when people store things they don’t really need, which they hate to throw away or can only be used in season, not on the balcony, but in some kind of “storage cell” . Someone may need a room to fulfill their creative needs. For example, a person may want to start an unofficial club for radio-controlled model enthusiasts.

You need to understand why physical. a person may want to rent the premises. From here, draw conclusions about where you can find potential clients.

You can shift the task of finding a tenant onto the shoulders of a realtor . To do this, you need:

contact the appropriate agency;
enter into a contract.

Judging by current practice, the owner of non-residential premises does not lose anything in this case. As a rule, realtors collect money from tenants, not from landlords .

On the other hand, people who want to rent non-residential premises try to find an option without intermediaries so as not to pay extra money. Therefore, if a realtor takes up the matter, there is a risk that they will be looking for a client for a very long time.

How to choose?

If there is no end to those wishing to rent a property, then you can select one or more tenants using the following criteria:

The person’s plans must include harmless activities that he wants to carry out in the rented premises. Obviously, it is better to choose a tenant who will store potatoes on the premises than one who plans to hold music rehearsals twice a week.
The tenant must be solvent. For example, one is ready to pay rent 3-4 months in advance. Another asks to wait even with a small deposit. Obviously, you need to choose the first candidate.
Subjective opinion: it is worth concluding an agreement with a tenant who is always in touch and lives nearby. It happens that the owner urgently needs to get into his non-residential premises, but the tenant has left somewhere, did not leave the keys, and does not answer the phone.

How to create a favorable price for the parties?

The Civil Code of the Russian Federation gives serious freedom to the parties to transactions on many issues, including the issue of determining the price of the contract. Thus, the amount of the rent will depend entirely on how the parties determine it . The landlord can name his price. Tenant - agree, refuse or ask for a price reduction.

Obviously, when it comes to pricing, it is necessary to focus on the market. If you set the rent too high, it will be difficult to find a landlord. Even if someone agrees to pay a high price, after a while, this person will look for ways to terminate the contract in order to rent a similar premises cheaper.

If the price is too low, there will be no end to customers. But you won’t be able to earn much. Therefore, it seems best to set the price so that it is slightly lower than that of competitors.

Where to keep workers without an office

Do I need an office for an individual entrepreneur if he has employees? Many entrepreneurs specializing in providing services do without office space. Some private specialists register as an individual entrepreneur only to gain experience. Working from home has become very common today.

Chapter 49.1 of the Labor Code on remote workers prescribes the conditions under which workers who carry out their activities from home can be hired. In order to legally formalize such employment, experts recommend indicating in the contract that this is a remote worker.

Also, individual entrepreneurs have the right not to enter into employment agreements with their employees, but to hire them as temporary or one-time contractors and conduct business relations as with counterparties. For example, if an individual entrepreneur is engaged in advertising on the Internet, then he does not necessarily need to hire programmers or specialists in the field of Internet marketing.

For each order received from clients, it is enough to find an appropriate specialist, who can later be registered as a counterparty. But hired specialists need to be registered. Expenses for employees will be taken into account by the tax service only if they are documented.

When carrying out repair and construction work, an individual entrepreneur can also use the labor of specialists without having an office. But if the business activity is quite extensive, then maintaining office equipment and documentation at home will be problematic.

On video: Official freelancing

How can the owner conclude an agreement?

The algorithm of actions is approximately the following:

We need to find a client. This has already been discussed in this article.
It is necessary to make a presentation of the premises.
Attention: One of the grounds for terminating a lease agreement is the identification of defects in the property that the tenant could not notice during inspection, but which led to difficulties in using the premises.
Therefore, it is better to tell about all the defects of the property at once.
Legal examination of documents.
The tenant must present a passport. Theoretically, in practice it is unlikely that the lessor may require a certificate from a psychoneurological and narcological dispensary to ensure that the counterparty is legally competent. The landlord must confirm that the property belongs to him. To do this, you must present legal documents. You also need to prove that third parties do not have the right to non-residential premises. A fresh extract from the Unified State Register of Real Estate provides answers to all questions.
Next, the parties discuss all the terms of the transaction, put their signatures under the text of the document and the transfer deed.
The last stage is state.
registration of the agreement, in accordance with the requirements of Art. 609 of the Civil Code of the Russian Federation. Meanwhile, registration is not always necessary. According to the position of the Supreme Arbitration Court, promulgated at the beginning of the 2000s, it is not subject to the state. registration of a lease agreement for buildings and structures, if it is concluded for a period of up to a year. The court expresses the following opinion: non-residential premises are not a building, but it is an object that is directly connected with it. Therefore, registration is also not necessary for the above-mentioned duration of the contract.

The position is controversial, but already generally accepted.

Read more about how to correctly conclude a lease agreement for non-residential premises in our article.

What do the parties need to consider when concluding a transaction?

The most important thing is to write down all the necessary points regarding the rules for using non-residential premises. Very often, disputes arise because some points are not specified. For example, conflicts arise regarding the implementation of repairs, payment or non-payment for the cost of inseparable improvements made, the list of works or actions that can be carried out on the premises.

Content

The document must reflect the following information:

Passport details of the parties and their representatives, if the transaction is not executed in person.
Description of the property, indicating all its characteristics, including area and address.
Information about the rental period. This will be discussed further below.
Amount of rent, payment procedure.
Additional terms and conditions.

Validity

According to Art. 610 of the Civil Code of the Russian Federation, if the lease agreement does not indicate its validity period, then it is considered to be indefinite . However, such an agreement is not subject to registration.

How long can the agreements be valid for?

Up to 12 months – no need to contact Rosreestr or MFC.
Over 12 months - you need to go through the procedure of state registration of the lease agreement.

The most convenient option is to submit documents to the nearest MFC.

Tax

In accordance with Art. 224 of the Tax Code of the Russian Federation, the income tax for individuals - citizens of the Russian Federation in the country is 13% . Some people think it’s not enough, others think it’s a lot. From 10,000 rubles you need to give 1,300 rubles to the state.

There is an opinion that it is better to rent out non-residential premises as an individual entrepreneur. The tax will indeed be less. For example, if you work on a patent taxation system, you can give the state an amount calculated using the following formula:

Patent = 6% × PD/12 × M , where:

PD - estimated income for the year.
M is the number of months for which a patent is issued.

But there are also disadvantages. An individual entrepreneur must make regular contributions to the pension fund, Social Insurance Fund and Compulsory Medical Insurance Fund. The amount turns out to be quite large - more than 20 thousand rubles.

We recommend that you familiarize yourself with other useful materials on our website about renting non-residential premises. Read about how non-residential premises are rented by a legal entity and the specifics of renting from an individual entrepreneur.

Landlord candidate

Experts from the Legal Consulting Service GARANT Anastasia Bakhtina and Alexey Alexandrov explain when the rental of non-residential premises by an individual can be qualified as illegal business activity.

Does an individual need to obtain the status of an individual entrepreneur to rent out non-residential premises?

The right to lease property belongs to its owner (Article 608 of the Civil Code of the Russian Federation). At the same time, a citizen can carry out the activity of leasing property as an individual who is not an individual entrepreneur (hereinafter also referred to as an individual entrepreneur), since the law does not contain a requirement to register an individual as an individual entrepreneur as a necessary condition for leasing property owned by him.

Entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law (paragraph three of clause 1 of article 2 of the Civil Code of the Russian Federation).

According to paragraph 1 of Art. 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur.

The implementation by an individual of entrepreneurial activity without state registration, depending on the circumstances, may be the basis for bringing him to administrative (Part 1 of Article 14.1 of the Code of Administrative Offenses of the Russian Federation) or criminal (Article 171 of the Criminal Code of the Russian Federation) liability.

As noted by judicial practice, and also emphasized in their explanations by the Russian Ministry of Finance and tax authorities, the presence of signs of entrepreneurial activity in a citizen’s actions can be evidenced, in particular, by the following facts: - production or acquisition of property for the purpose of subsequent profit from its use or sale; — economic accounting of operations related to transactions; — the interconnectedness of all transactions made by a citizen in a certain period of time; — stable relationships with sellers, buyers, and other counterparties.

If these signs are present, an individual is required to register as an individual entrepreneur. However, the mere fact that an individual has entered into transactions on a reimbursable basis is not enough to recognize the activity he is carrying out as entrepreneurial, if the transactions made do not constitute an activity. Therefore, in the absence of the above signs, an individual has the right to rent out property that belongs to him without registering as an individual entrepreneur (see, for example, Resolution of the Supreme Court of the Russian Federation dated January 10, 2012 N 51-AD11-7, letters of the Ministry of Finance of Russia dated December 28, 2012 N 03- 04-05/10-1454, dated November 17, 2009 N 03-04-05-01/808, Federal Tax Service of Russia dated February 25, 2013 N ED-2-3/ [email protected] , Federal Tax Service of Russia for Moscow dated June 15. 2009 N 20-14/ [email protected] ).

These conclusions take into account the position expressed by the Plenum of the Armed Forces of the Russian Federation in Resolution No. 23 of November 18, 2004 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of funds or other property acquired by criminal means.” In paragraph 2 of this resolution, the Supreme Court of the Russian Federation indicated that in cases where a person not registered as an entrepreneur acquired residential premises or other real estate for personal needs or received it by inheritance or under a gift agreement, but due to the lack of need for use of this property, temporarily leased it or rented it out and as a result of such a civil transaction received income (including in a large or especially large amount), what he did does not entail criminal liability for illegal business (Article 171 of the Criminal Code of the Russian Federation).

Individual cases of the sale of goods, performance of work, provision of services by a person not registered as an individual entrepreneur do not constitute an administrative offense under Part 1 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, if the quantity of goods, its range, volumes of work performed, services provided and other circumstances do not indicate that this activity was aimed at systematically generating profit (clause 13 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated October 24, 2006 N 18 “On some issues that arise for courts when applying the Special Part of the Code of the Russian Federation on Administrative Offenses”, Resolution of the Supreme Court of the Russian Federation dated June 30, 2006 N 53-AD06-2). In a letter dated 02/08/2013 N ED-3-3/ [email protected] the Federal Tax Service of Russia emphasized that the signs of entrepreneurial activity are of an evaluative nature; to qualify the activity of an individual in leasing out their own property in accordance with them is possible only if there is a complete and comprehensive information about all the circumstances of its activities.

The implementation of entrepreneurial activity may be indicated, for example, by concluding an agreement for a period of more than one tax period (calendar year) or its extension for the next period, repeated receipt of income, repeated conclusion of lease agreements with the same legal entity, etc. (see, for example, letter of the Federal Tax Service of the Russian Federation for Moscow dated April 15, 2005 N 18-12/3/26639, resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 28, 2004 N A38-4668-5/85-2004). As law enforcement practice shows, when resolving this issue, factors such as the focus of a citizen’s actions on the systematic receipt of profit, the permanent nature of the activity of leasing property, and the acquisition of property for the purpose of leasing it are taken into account.

Thus, the issue of qualifying actions for leasing non-residential premises as a citizen’s entrepreneurial activity can only be finally decided by the court, taking into account the totality of specific circumstances. Thus, if the subject of the lease agreement is a premises not intended for the residence of citizens, and the owner of the premises regularly receives income from renting it out, there is a risk that such actions of a citizen will be recognized as entrepreneurial activity and he will be brought to administrative liability on the basis of Part 1 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation with the imposition of a fine in the amount of 500 to 2000 rubles (see also the decisions of the Altai Regional Court dated October 20, 2011 N 4a-634/2011, the Supreme Court of the Republic of Tatarstan dated February 16, 2011 N 7a-138m).

The texts of the documents mentioned in the experts’ response can be found in the
GARANT .
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