Owner has changed - who should pay rent under a lease?
So, you are renting a property. During the term of the contract, a change of ownership of the property took place. The new owner invoices you for payment.
At what point are the claims of the new owner regarding the receipt of the rent are justified:
a) from the date of state registration of the transfer of ownership of real estate to the new owner,
b) from the date of concluding the contract of sale of real estate or the date of receipt by the buyer (new owner) of the property from the seller (former owner) under the transfer deed,
c) from the date of state registration of the supplementary agreement to the lease agreement, fixing the changes that have occurred (change of party, change of the lessor's details, etc.)?
Despite the apparent simplicity of this situation, there is no single answer to it.
In favor of the fact that the previous landlord retains his right to receive rent until the state registration of the transfer of ownership to the new landlord, the following arguments are most often cited. As follows from article 551 of the Civil Code of the Russian Federation, the fulfillment by the parties of the contract of sale of real estate before the state registration of the transfer of ownership from seller to buyer is not a basis for changing their relations with third parties.
On the other hand, article 8 of the Civil Code establishes that the right to property subject to state registration arises from the moment of registration of this right, unless otherwise provided by law. It follows that even if the contract of sale is fulfilled and the property is transferred to the new owner (lessor), the right to receive rent from the new owner will arise from the moment of registration of the transfer of ownership from the previous lessor to the new lessor. Many judicial acts testify in favor of this approach.
However, a different approach has been formed in judicial practice.
Since the conclusion of the contract for the sale of non-residential premises, the landlord has lost the right to dispose (including lease) of alienated premises, and therefore, has lost the right to demand payment of rent (Decision 9th AAC No. 09AP-27978/2009-GK of 11.02 .ten)
We agree that this approach cannot be considered groundless. As we know, the owner owns the right to own, use, dispose of his property. From the date of transfer of property to the acquirer, does the seller have the indicated rights to use, own, dispose of property transferred in fulfillment of the contract for the sale of real estate? In our opinion, no.
As for the third approach, in accordance with the position developed by YOU, the new owner acquires, and the old one loses the right to receive rent, regardless of whether the question was raised about reissuing the lease.
Recommendations:
1. It will be less risky to adhere to the position on the need to pay rental payments to the new owner from the date of state registration of transfer of ownership of the leased property.
2. When concluding a lease agreement, it will be useful to stipulate this situation, indicating the way to resolve it. It will not give a 100% guarantee in court, but it will add one more argument to your position.
3. In a situation where it is necessary to make a payment prior to the state registration of the ownership of the new lessor, sign the agreement (tripartite) to the lease agreement establishing the appropriate procedure. Extend this agreement to the desired period.
4. Take a letter from the old owner authorizing you to make a payment to the new owner.
We will repeat. This will not completely protect you, but it may be one of the arguments in your favor in the event of a lawsuit.
Galina Korotkevich
Our law firm provides various legal services in various cities of Russia (including Novosibirsk, Tomsk, Omsk, Barnaul, Krasnoyarsk, Kemerovo, Novokuznetsk, Irkutsk, Chita, Vladivostok, Moscow, St. Petersburg, Yekaterinburg).
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