Where can I rent commercial non-residential premises or a warehouse? How to rent retail space for a store? How to rent out commercial real estate correctly?

Hello to everyone who has visited the website of the popular online magazine “HeatherBeaver”! We have an expert with you - Denis Kuderin.

The topic of today's conversation is commercial real estate rental. The article will be useful to businessmen, owners of non-residential premises and all those who are interested in current financial issues.

At the end of the article you will find an overview of the most reliable Russian real estate companies that provide intermediary services in leasing commercial properties.

So let's begin!

1. Why rent commercial real estate?

Successful business activity largely depends on the well-chosen premises for doing business. This is especially true for trade and the service sector. A cozy, well-equipped store in a busy part of the city attracts customers in itself.

The same can be said about offices. Every self-respecting company should have good premises for work and receiving visitors. Even if you sell goods through an online store, you need a place to complete and issue orders, as well as resolve disputes with customers.

Not every businessman, especially a beginner, can afford to purchase non-residential premises. In such cases, renting commercial real estate comes to the rescue.

We list all the advantages of renting:

  • relatively low financial costs;
  • a simpler documentation procedure compared to purchasing;
  • the ability to change the landlord and move to another building at any time;
  • a large selection of real estate, especially in big cities.

The reverse process - renting out premises - also has many advantages. First of all, it is a reliable source of passive income. Acquiring ownership of commercial space (retail, office, industrial and others) is a good investment option.

As long as private business exists, its representatives will constantly need premises to conduct business, which means that property owners will have a stable profit without much labor.

Finding suitable premises for a business is a troublesome undertaking. The fastest and most reliable way to find an object is to use the services of professional intermediaries.

There is a detailed article on our website about how modern ones work.

2. How to rent commercial real estate - 5 useful tips

When renting commercial properties, you need to be as careful as possible in choosing them. The parameters and functional characteristics of the premises determine how soon you can start a business activity, and whether the object will fully meet the goals of your business.

First, decide how you will look for suitable premises - on your own or with the help of an agency. The first method assumes the presence of an unlimited supply of free time and is associated with various risks. The second option is safer and more reliable.

You will find additional information on the topic of working with intermediaries in the article “”.

Expert advice will help you avoid common tenant mistakes.

Tip 1. Carefully study the hood and ventilation systems

You or your employees will be working in the room, so the presence of working ventilation systems is the most important point. The lack of powerful and autonomous ventilation in a building is a real obstacle to the normal operation of a cafe, restaurant, or grocery store.

Food products must be stored in appropriate conditions, and visitors and sellers should not be disturbed by foreign odors. Moreover, sanitary services simply will not allow you to use the facility as a catering establishment or grocery store if it only has general ventilation.

Tip 2: Focus on loading and unloading areas

A convenient area for loading and unloading goods is another key point for owners of cafes, restaurants, canteens and shops.

It is important that the area where loading and unloading operations will be carried out does not overlook the courtyard of a residential building or the roadway. If you disturb residents or motorists, you will be tormented with complaints.

The issue of adequate power supply is especially relevant for tenants whose business involves the use of energy-consuming equipment - refrigerators, electric ovens, machine tools, etc.

Make sure that the electrical cables in the room are capacious enough to fully meet the needs of the enterprise.

Tip 4. Read the terms of the contract carefully

Before signing your signature on the lease agreement, carefully read the terms and conditions under which you are entering into a deal.

The contract must contain the following points:

  • rental terms, cost and method of payment;
  • if the premises are rented with equipment, then an inventory of the property must be drawn up;
  • liability of the parties for violation of the contract;
  • terms of termination of the agreement.

Expenses for utility bills, garbage removal, maintenance of the fire protection system and security alarm are usually borne by the tenant. However, the landlord pays for major repairs, if necessary, including replacement of plumbing communications and electrical wiring if they fail.

Discuss in advance with the landlord the issue of property insurance - whether such an agreement will be drawn up, and if not, decide who will pay for losses in the event of unforeseen situations.

It is imperative to check the owner’s title documents – the purchase and sale agreement, an extract from the State Register on the right of ownership.

Make sure that the premises actually belong to the person who is renting it to you. Otherwise, one day the real owner of the object will appear with the appropriate powers. It is also important that the premises are not mortgaged, have not been seized for debts, or have other encumbrances.

A person who is far from the intricacies of housing law should take advantage of professional help when renting or purchasing non-residential premises. For example, you can clarify for yourself all the unclear points on the Pravoved website, a resource where specialists from all areas of jurisprudence work.

You can ask your question even without registering, right on the main page. You will receive a legally correct and competent answer in just a few minutes, and completely free of charge. If your problem requires in-depth study, you will need to pay for the services of professionals, but you have the right to set the amount of the fee yourself.

Step 2. Determine the amount of rent

To find out the optimal rental price, use one of two options. The first is to personally review your city’s databases and determine the approximate price range for renting similar premises. Second, delegate this task to a realtor.

By the way, in addition to real estate agencies, private brokers provide intermediary services. They typically charge 25-50% less for their work than companies. However, private specialists working with non-residential real estate, even major cities– units.

5. If you rent out commercial real estate - 3 main risks for the landlord

Every landlord is concerned about the condition of his property and wants to make a profit from rent, not losses.

We will list the main risks for commercial property owners and show you how to avoid them.

Risk 1. Use of the premises for other purposes

Each well-drafted lease agreement specifies for what purpose and how the leased premises will be used. This also applies to equipment that you rent out along with your rental.

If the tenant promised to use the premises as a warehouse, but installed a retail store in it, you have the right to fine him or terminate the agreement without returning the rental price.

Risk 2. Damage or loss of property

You handed over the facility and equipment to what you thought was a respectable citizen, but he, to use diplomatic language, did not live up to your expectations. Namely, he brought the premises to a state of ruin, broke the equipment, unscrewed the light bulbs and generally behaved like a pig.

In such cases, the owner has the right to demand compensation for damage in full. Moreover, not only repair costs must be reimbursed, but also the market value of the damaged equipment.

Liability is not provided if the object and property were damaged as a result of unforeseen circumstances - for example, a fire or flood.

Risk 3. Tenant’s refusal to pay monthly rent

Sloppy payers should be punished with rubles. However, this is possible, again, if the lease agreement is drawn up according to all the rules. That is, the document must clearly stipulate the terms and amount of monthly payments.

6. If you rent commercial real estate - 3 main risks for the tenant

The tenant may also suffer as a result of illegal or unauthorized actions of the landlord.

Risk 1. Renting premises to which the “lessor” has no legal rights

If the premises are rented to you by a person who does not have the legal rights of the owner to the property, the contract will be considered invalid. To avoid this, require the presentation of title documents.

You can independently obtain an extract from Rosreestr by contacting the Multifunctional Center. The service is paid, but you will reliably know “who’s boss.”

Risk 2. Changing the locks on the premises immediately after making an advance payment

Yes, such situations still occur in nature. You sign an agreement, make an advance payment, receive the keys from hand to hand, and when you want to move into the premises with your property, it turns out that the locks have been changed, and there is no trace of the “owners”.

There is only one way out in such a situation - to contact the police and initiate a criminal case on the fact of fraud.

Risk 3. Sublease

The best way to explain this is with a simple example.

Example

The tenant Andrey, an aspiring entrepreneur, rented space for a store for a year, paying six months in advance. At the same time, the businessman did not check the title documents, relying on the honesty of the lessor.

After a month of successful trading, the real owner showed up in the store with a full set of original documents. He politely asked the tenant to move out of the occupied space. Andrey tried to find a subtenant in order to at least get his money paid in advance back, but the enterprising intermediary never responded to either calls or SMS.

Bottom line: Deal directly with the owner. At the very least, he should be aware of all the manipulations that occur with his property.

7. Professional assistance for tenants and landlords - review of TOP-3 real estate agencies

Finding a qualified intermediary is a difficult task. To help readers, we have compiled a review of the most reliable companies Russia, working with commercial real estate.

1) Agency.net

Real estate management agency. Will help landlords and tenants rent and rent: office, retail space, workshop, warehouse, mansion and any other commercial real estate. The company employs only experienced and qualified lawyers and realtors.

A significant advantage of the company is its professional approach, the presence of a detailed website, and the development of an individual strategy for each client of the office. There are no real estate services that the company’s specialists cannot provide to users.

Commercial real estate in Moscow and the region is the main specialization of the company. Respect has been operating on the market since 2004. The agency's initial goal was to provide clients with the widest range of services related to the rental, purchase and sale of real estate.

New cafes are opening in shopping centers, and in street retail format. Market experts told us what problems a tenant faces when choosing premises to locate a catering outlet, and how best to decide on the location, square footage and rental rates.

Shopping centers vs street retail

To make a choice in favor of one or another premises, choosing between a shopping center or street retail, it is necessary to rely, first of all, on the concept of the future establishment, because both the work schedule and the target audience will depend on it. In the first case, family establishments will be more appropriate, in the second - craft bars, cafes with signature cuisine and various themed places.

An important factor may also be how long the cafe has been operating, whether it is looking for its first premises or is moving or even expanding its network. In other words, experience and financial reserves will become significant. “For aspiring entrepreneurs and startups, placement in street retail is more suitable than in a shopping center,” says Egor Ostapenko, director of the retail real estate department at Praedium. - Not every new project is able to immediately cope with fairly high rates in the shopping center and a large security deposit in 2-4 months.”

It is worth considering that district shopping centers usually offer several key formats. Ivan Tatarinov, commercial director of GLINCOM, notes that it is profitable and most in demand for small entrepreneurs who are ready to invest from 500 thousand rubles in opening a catering outlet. up to 1 million rubles is a coffee point. They work even in “weak” properties due to marginality, and they manage to break even in the first month of rent. The second format - food court - provides for a larger volume of investment, from 2.5 million rubles. “The most successful cafes in a food court exist next to a cinema and entertainment area. If there are no entertainment tenants around, you should approach the rental issue very carefully,” the expert clarifies.

When making a choice between a shopping center and street retail, it also makes sense to weigh the pros and cons of both types of placement. It is believed, for example, that it is easier to predict the average number of customers in a shopping center. “In street retail, you can also measure traffic, but it is less predictable and more dependent on weather conditions, and the quality of pedestrians may vary depending on the location,” explains Natalya Ozernaya, deputy head of the street retail department at JLL in Moscow. The same applies to possible competitors: on the street they can set up door-to-door at any time and attract customers, while in a shopping center they usually try to maintain a balance of represented companies.

It is also important that premises in shopping centers are often equipped taking into account the requirements for catering, while the location in residential buildings involves a lot of finishing touches and necessary approvals from residents. In a residential building, it is also important to ensure that guests do not smoke close to the entrance and windows. If you make a choice in favor of street retail, then it will be in the place where a cafe or restaurant was previously open.

How much to take in “squares”?

Finding a room that would not be excessive in area, but would not be cramped for future guests of the establishment, is an extremely difficult task, and often practically impossible to solve without a specialist who designs restaurants and cafes. “There is a certain payment system, which is planned based on the establishment’s menu. The area depends, in particular, on whether the cafe will have a full-service kitchen or only pre-cooking, or whether they are ready to do without a kitchen at all,” says Egor Ostapenko. In addition, the number of personnel and the size of the required premises for warehouses, refrigeration units, etc. are taken into account. The main hall in which visitors will sit is planned based on the size of the tables and the possible load. “It is also necessary to take into account the norms and rules, according to which the establishment must have a separate toilet for staff, a shower for cooks, and a place for changing clothes for employees,” adds Anton Belykh, CEO consulting company DNA Realty. “It will be extremely difficult to calculate this without experience.”

The volume of space will, of course, depend on both shopping centers and street retail formats, from which, ultimately, you will have to choose. “Coffee points can rent space from a counter of 3-4 sq.m to small premises of 20 sq.m. m. For a food court, the most popular area is in the range of 25-65 sq. m. m. If an entrepreneur opens a cafe as a franchise, then he is guided in choosing the area by the requirements of the owners already clearly stated in the French book,” explains Ivan Tatarinov.

In contrast to technological subtleties, the adequacy of the proposed rental rate can be judged independently by referring to the analytical calculations of market experts. According to Knight Frank, average rates for a cafe with an area of ​​200 sq. m in the center of Moscow can be 65-75 thousand rubles, and in top locations it can reach up to 90-120 thousand rubles. The average rate in residential areas is 40-45 thousand rubles. per sq. m per year. “Rates for premises in “sleeping rooms”, but in direct visibility from the metro, are often comparable to rates on central streets, precisely because of the daily flow of pedestrians from the metro,” notes Natalya Ozernaya, deputy head of the street retail department at JLL in Moscow.

Source: JLL

How to make a choice? Anton Belykh is sure: in no case should you set a psychological line - for example, “not pay more than a million rubles a month for rent.” “I know restaurants that pay 3-5 million a month for premises and still thrive. And there are establishments that pay 100 thousand and barely make ends meet or even operate at a loss,” explains the expert. “When assessing rental rates, you should take into account not your internal psychological limitations, but the real traffic of the place, its coincidence with your target audience, and make calculations of expected revenue using modern systems.”

Decide on location

When considering space in a shopping center, you can often come across prejudice against strong tenants in the neighborhood at the food court, especially the “big three”: McDonald's, Burger King, KFC. Ivan Tatarinov believes: “Quality and interesting product will not suffer from competition with strong global brands. For example, burger shops manage to very successfully differentiate themselves from similar offerings in the mass segment due to the author’s product and a more individual approach.”

Another erroneous belief is that cafes do well only in the center of Moscow. “There are also many successful establishments in residential areas and on outbound highways. Here it is necessary to take into account the specifics of the area. For example, in Perovo it is better to open something very budget-friendly, but on Michurinsky Prospekt a steakhouse will do just fine. Also, restaurateurs are interested in large residential areas with a huge amount of new housing, which is mainly bought or rented by the middle class,” says Anton Belykh.

In the street retail format, traditionally good places for cafes are pedestrian zones, the number of which has recently increased in the center of Moscow. It’s good if there is a landmark or vacation spot nearby for city residents. Premises located near the metro are also in demand. “Promising, with high development potential, in my opinion, are premises in lofts located on the territories of former factories. A striking example is the opening of the Syrovarnya restaurant on the territory of the Badaevsky brewery, which became an anchor and was joined by a number of other projects: Deep Space, The 12 Wine Bar, Summer Garden,” says Victoria Kamlyuk, director of the company’s street retail department Knight Frank.

As for the location in the center, here in last years Another important concern arises - reconstruction and landscaping work. Constant construction does little to attract customers, especially for cafes that would like to organize summer verandas. “You shouldn’t be afraid of street improvement work and don’t leave,” Victoria Kamlyuk is sure. “We need to negotiate with the landlord a discount of 10-30% for the duration of the reconstruction.” Yegor Ostapenko also fully agrees with the opinion that it is quite possible to “survive” the renovation: “Speaking of landscaping, it should be noted that if the establishment has a certain financial margin of safety, then it is better to wait out this period rather than move out. The reconstruction will end, the street will be transformed, and next season the cafe has a chance to recoup its losses and increase its income.”

The principle of freedom of contract allows us to establish a mechanism for determining the amount of rent that is convenient for the tenant and the landlord. This may be a fixed amount paid monthly, or an amount that includes reimbursement of maintenance costs for the leased facility. In the latter case, the wording of the contractual provision requires special attention.

The procedure, conditions and terms of payment of rent are determined by the lease agreement (clause 1 of Article 614 of the Civil Code), and in their absence, the procedure, conditions and terms of payment usually applied when leasing similar property under comparable circumstances are applied. A similar rule is established in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation for the contract price: if it is not included in the text of the agreement, the execution of the contract must be paid at the price that, under comparable circumstances, is usually charged for similar goods, work or services.

But when concluding a real estate lease agreement, this rule cannot be applied, since rent is its essential condition (Article 432 of the Civil Code of the Russian Federation). In the absence of a condition agreed upon in writing by the parties regarding the amount of rent, the real estate lease agreement is considered not concluded (Article 654 of the Civil Code of the Russian Federation).

The terms of the rent must be formulated in such a way that it is possible to determine exactly when and in what amount the tenant is obliged to make the appropriate payments. The agreement may establish a fixed amount of rent or the procedure (mechanism) for its calculation. In the latter case, the rental agreement will also be considered agreed upon.

The amount of rent may be changed by agreement of the parties within the time periods stipulated by the contract, but not more than once a year, unless otherwise provided by the contract (clause 3 of Article 614 of the Civil Code of the Russian Federation). A change in the amount of rent in accordance with the mechanism provided for in the agreement does not constitute a change in the lease agreement, and, therefore, is not subject to the restrictions mentioned above (clause 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66, hereinafter referred to as Information letter No. 66). For example, the condition of indexing rent depending on inflation does not contradict this restriction. Although the amount of rent changes, the procedure for calculating it remains unchanged.

It is better to provide in the contract for the consequences of the loss of the lessor’s VAT payer status

It is recommended that the lease agreement specify whether the rent includes value added tax (VAT). And if it includes, then it will also be necessary to determine what part of the specified amount is rent, and which one is VAT. For example, indicate the current tax rate to avoid disputes in the future when the tax rate changes during the contract period. It is also recommended to indicate in the agreement that VAT is not charged on the rental amount if the lessor is not a payer of this tax.

All this must be done, since otherwise the parties may have disagreements regarding the amounts to be paid as rent. The position of the courts on this issue is ambiguous, and as a result, the lessor may receive rent in an amount less than expected (resolution of the Federal Antimonopoly Service of the West Siberian District dated September 17, 2010 in case No. A70-14225/2009), and the tenant may be forced to pay VAT in excess the amount of rent (Determination of the Supreme Arbitration Court of the Russian Federation dated February 10, 2010 No. VAS-1414/10 in case No. A51-7727/2009).

A situation is likely where initially the lessor was a VAT payer and in the contract the amount of rent was agreed upon taking into account the tax, but later the obligation to pay this tax ceased. For example, when the lessor switches to a simplified taxation system (clause 2 of Article 346.11 of the Tax Code of the Russian Federation) or in the event of a change in the owner of the leased property, if the new owner is not a VAT payer. In this regard, it is in the interests of the tenant to include in the contract a condition that in the event of termination of the landlord’s obligation to pay VAT, the rent is reduced by the amount of the tax. If such a condition is not agreed upon, the court may refuse to satisfy the request for the return of overpaid rent in the amount of tax (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated 05.08.2011 in case No. A43-24309/2010). At the same time, there is another position when the payment with the amount of VAT included in it is recognized as unjust enrichment of the lessor (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 15, 2010 in case No. A29-2100/2009).

Rent may include fixed and variable parts

The rent cannot be established in the form of payment by the tenant for utilities (electricity, water, heat), fuel, lubricants and other materials consumed when using the leased property. The fact is that with such a payment, the lessor actually does not receive any remuneration from the tenant for the granted right to use the leased object, and this contradicts the paid nature of the agreement (clause 12 of Information Letter No. 66).

In order to reimburse the cost of utility services consumed by the tenant, the parties increasingly indicate in the agreement that the rent consists of two parts - constant and variable. The size of the constant part is determined in the form of a fixed value (or a mechanism for calculating it), and variable part is defined as the cost of utilities consumed by the tenant.

The condition defining the procedure for paying utility bills is an important point of the contract. After all, contracts with resource supply organizations are concluded by the lessor and invoices are issued in his name, and the lessee will have an obligation to reimburse such expenses if this is provided for in the agreement. Utility and other payments include the cost of water supply and sewerage services, telephone communications, consumed electricity, heat supply (gas supply), as well as fees for cleaning premises, garbage removal, etc.

Accounting for utility and operating payments as part of the rent is possible in several options. First, you can set a fixed rent, which already includes the cost of such payments. The tenant then pays a fixed rent each month. Secondly, it is permissible to determine the amount of rent without taking into account the cost of utilities, indicating the right of the tenant to independently enter into agreements with resource supply and service organizations. It should be taken into account that the conclusion of such agreements will entail the emergence of additional obligations for the tenant to such organizations. And thirdly, the parties have the right to establish a rent consisting of a fixed and variable part.

In the latter case, the rent consists of payment for the rented premises in a set amount (fixed part) and rent in terms of reimbursement of the cost of utilities actually consumed by the tenant (variable part).

It is better to fix the amount of the variable part of the rent for each month separately

In practice, the amount of rent in terms of reimbursement of the cost of electrical energy consumed by the tenant is determined either on the basis of the electricity meter readings, separately installed for the tenant, or on the installed power by taking into account the power of all electrical appliances operating in the premises and the approximate duration of their operation. The amount of water or gas consumed can also be determined by the meter. Calculation of the cost of heating services depends on the total heated area, calculated in cubic meters. Reimbursement of telephone communication costs is made on the basis of data on the status of the personal account provided by the communication organization.

To recognize a fixed part of the rent as an expense, the tenant only needs to have the lease agreement itself, in which it is defined. To recognize the variable part in expenses, a separate primary document is required, which will reflect the cost of utilities consumed by the tenant with a breakdown by type of service and with links to the relevant documents and the amount of the variable part of the rent for the month calculated in accordance with the lease agreement.

What is this primary document? When concluding an agreement, the parties to the lease agreement independently agree on this issue in relation to a specific situation. This can be a bilateral act, or a certificate from the landlord’s accounting department. The main thing is that the document used contains all the mandatory details listed in Art. 9 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (clause 1 of the letter of the Federal Tax Service of Russia dated February 4, 2010 No. ШС-22-3/86@).

If, in accordance with the agreement, the rent (or part thereof) is a variable amount, then in order to recognize this amount as an expense, the tenant must receive a primary document from the lessor every month, since the amount of the rent varies from month to month. And when the rent is determined in the contract at a constant (fixed) amount, monthly acts confirming the amount of payment are not needed, since the amount of the rent does not change.

It is worth remembering that difficulties may arise with the preparation of primary documentation, since the landlord is not a supplier of utility services to the tenant, but in fact acts as an “agent” of the tenant in transferring payments for services provided by resource supply organizations. For the landlord, these payments are not income, but serve as compensation for expenses.

Rent from the lessor, including variable

Lease relationships are very popular among business entities. By providing “free” property for rent, landlords use it to generate additional income, and tenants, in turn, for a certain fee, get the opportunity to use other people’s movable or immovable property.

In this article we will consider the issues of accounting for rent received by the landlord from the tenant.

In accordance with Article 614 of the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation), the main responsibility of the tenant is the timely payment of rent for the use of the property in the amounts and terms stipulated by the lease agreement.

The rent is set as follows:

– payments determined in a fixed amount, made periodically or at a time;

– the established share of products, fruits or income received as a result of the use of leased property;

– provision by the tenant of certain services;

– transfer by the lessee to the lessor of the thing stipulated by the contract for ownership or lease;

– imposition on the lessee of the costs stipulated by the contract for improving the leased property.

The parties may provide in the lease agreement for a combination of these forms of rent or other forms of rent payment.

The most common type is to set the rent in the form of fixed payments made periodically or in a lump sum.

Several objects can be transferred under a lease agreement at once. In this case, the rent can be set both as a whole for all leased property, and for each object separately. In order to avoid further disagreements between the parties to the agreement, it is better to set the rent separately for each leased object.

Variable rent, established monthly, by agreement of the parties, in order to compensate for utility bills, in the author’s opinion, does not fully comply with the law. At the same time, from the point of view of the tax authorities, with such a rent, the lessor will be able to recognize only expenses for the purchase of fuel, water and energy of all types, spent on technological purposes, generation of all types of energy, heating of buildings, as well as expenses on transformation and transmission of energy consumed to them directly, without taking into account those consumed by tenants (Letter of the Federal Tax Service of the Russian Federation for the Moscow Region dated November 13, 2006 No. 21-25-I/1372). In contrast to the tenant, who has the right to include in the expenses accepted for taxation of profits both the constant and variable components of the rent (Letter of the Federal Tax Service of the Russian Federation for the Moscow Region dated November 13, 2006 No. 21-25-I/1372).

According to the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 “Review of the practice of resolving disputes related to rent”, paragraph 11 of which explains that when applying paragraph 3 of Article 614 of the Civil Code of the Russian Federation, courts must proceed from the fact that within a year The terms of the contract providing for a fixed amount of rent or the procedure (mechanism) for calculating it must remain unchanged. The tenant filed a claim with the landlord in the arbitration court to invalidate the terms of the lease agreement providing for the landlord's quarterly increase in the amount of rent by indexing it to take into account inflation, since this condition contradicts the imperative norm of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, which establishes the possibility of changing the amount of rent no more than once a year. But the court, albeit only in the case under consideration, found that determining the rental rate in an amount equivalent to a certain amount in foreign currency means establishing a mechanism for calculating it. This determination of the rent is intended to eliminate the adverse effects of inflation. A change in the foreign currency exchange rate does not mean a change in the amount of rent in accordance with paragraph 3 of Article 614 of the Civil Code of the Russian Federation. As a result, it turns out that in order to introduce a variable rent it is necessary to have a clear algorithm for calculating it, specified in the contract, otherwise it is easy to lose a court case.

The terms for payment of rent are determined by the contract. In this case, the parties can provide for any procedure for its payment: monthly, quarterly, once a year, by making an advance payment or with a deferred payment.

Paragraph 3 of Article 614 of the Civil Code of the Russian Federation stipulates that the rent may be changed by agreement of the parties within the time limits specified in the contract, but not more than once a year. At the same time, the amount of rent can either increase or decrease.

The tenant has the right to demand a reduction in rent in the event of:

– if, due to circumstances for which he is not responsible, the conditions of use provided for in the lease agreement or the condition of the property have significantly deteriorated;

– if the lessor violates the conditions for major repairs of the leased property;

– if the lessor did not warn the tenant about the rights of third parties to the property when concluding the lease agreement.

In the event of a significant violation by the tenant of the terms for payment of rent, the lessor has the right to demand from him early payment of rent within the period established by the lessor. In this case, the lessor has no right to demand early payment of rent for more than two consecutive terms (clause 5 of Article 614 of the Civil Code of the Russian Federation).

Rent in accounting.

The procedure for recording lease payments in the lessor's accounting depends on whether this activity is the main one or not.

In accordance with paragraph 5 of PBU 9/99 “Income of the Organization” (Order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 32n “On approval of the Accounting Regulations “Income of the Organization” PBU 9/99” (hereinafter referred to as PBU 9/99)) in organizations whose subject of activity is the provision for a fee for temporary use (temporary possession and use) of their assets under a lease agreement, revenue is considered to be receipts the receipt of which is associated with this activity (rent).

Chart of Accounts for Accounting and Instructions for its Application (Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n “On approval of the Chart of Accounts for accounting financial and economic activities of organizations and instructions for its application”) to summarize information on income and expenses associated with the usual type of activity of the organization, as well as to determine the financial result for them, account 90 “Sales” is intended.

Revenue from the provision for a fee for temporary use (temporary possession and use) of its assets under a lease agreement (when this is the subject of the organization’s activities) is reflected in account 90 “Sales” subaccount 90-1 “Revenue”.

If the provision of assets for rent is not the main activity of the organization, then, according to paragraph 7 of PBU 9/99, receipts associated with the provision for a fee for temporary use (temporary possession and use) of the organization’s assets are recognized as other income and are reflected in the credit of account 91- 1 “Other income”.

In this case, expenses associated with the provision for a fee for temporary use (temporary possession and use) of the organization’s assets are recognized as other (clause 11 PBU 10/99 “Organization expenses” (Order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 33n “On approval Accounting provisions “Expenses of the organization” PBU 10/99)).

In order to determine what type of activity to include operations for the transfer of property for rent, you must refer to paragraph 4 of PBU 9/99.

In accordance with this paragraph in accounting, the organization independently recognizes receipts as income from ordinary activities or other income, based on the requirements of PBU 9/99, the nature of its activities, the type of income and the conditions for their receipt.

In other words, the organization must independently decide what type of activity the operations of transferring property for rent belong to, and consolidate this in the accounting policies of the organization. This condition is determined by the Charter of the organization, where most often the leasing of property is provided as a type of activity; accordingly, the lessor recognizes the receipts as income from ordinary activities.

If the rent payment is reflected by the organization in accounting as income from ordinary activities, then the following entries are made in the accounting:

Debit of account 62 “Settlements with buyers and customers” Credit of account 90-1 “Revenue” - reflects the amount of rental payments to be received;

Debit of account 90-3 “Value added tax” Credit of account 68-2 “Calculations for value added tax” - reflects the amount of VAT payable to the budget;

Debit of account 51 “Settlement accounts” Credit of account 62 “Settlements with buyers and customers” – reflected cash received from the tenant.

Transferred in a single payment for the entire period of validity of the lease agreement, the rent is considered as an advance payment and is accounted for in account 62 “Settlements with buyers and customers” subaccount “Settlements for advance payment”.

If the rent is reflected in the lessor's accounting as part of other income, then the following entries are made in the accounting:

Debit of account 76 “Settlements with various debtors and creditors” subaccount “Settlements for rent” Credit of account 91-1 “Other income” - reflects the accrual of rent receivable;

Debit account 91-2 “Other expenses” Credit account 68-2 “Calculations for value added tax” – VAT is charged;

Debit of account 51 “Settlement accounts” Credit of account 76 “Settlements with various debtors and creditors” subaccount “Calculations for rent” – funds received from the tenant are reflected.

The one-time transferred amount of rent for an organization in which the transfer of assets for rent is not the main activity is taken into account in account 98 “Deferred income” subaccount 98-1 “Income received for deferred periods”.

Subaccount 98-1 “Income received for future periods” takes into account the movement of income received in the reporting period, but relating to future reporting periods.

The amount of income relating to future reporting periods is reflected in the credit of account 98 “Deferred income” in correspondence with the accounts for cash or settlements with debtors and creditors, and in the debit - the amount of income transferred to the corresponding accounts at the beginning of the reporting period, to to whom these incomes belong.

Analytical accounting in account 98-1 “Income received for future periods” is carried out for each type of income.

Rent is recognized in accounting based on the assumption of temporary certainty of the facts of economic activity and in the presence of the conditions listed in paragraph 12 of PBU 9/99:

– the organization has the right to receive this revenue arising from a specific agreement or confirmed in another appropriate manner;

– the amount of revenue can be determined;

– there is confidence that as a result of a particular transaction there will be an increase in the economic benefits of the organization.

If at least one of the listed conditions is not met in relation to cash and other assets received by the organization in payment, then accounts payable, and not revenue, are recognized in the organization’s accounting.

Example.

The organization entered into an equipment rental agreement for a period of three months. The monthly rent is 17,700 rubles (including VAT - 2,700 rubles).

Rent in the amount of 53,100 rubles (including VAT - 8,100 rubles) was paid by the tenant immediately for the entire period of validity of the lease agreement.

The lessor organization uses the following subaccounts of the working chart of accounts:

62-1 “Calculations for rent”;

62-2 “Calculations for advance payment.”

The following entries were made in the accounting records of the lessor organization:

Debit 51 Credit 62-2 – 53,100 rubles – reflects the amount of advance payment for leased equipment;

Debit 62-2 Credit 68-2 – 8,100 rubles – VAT is charged on the amount of the advance payment (clause 1 of Article 167 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation));

Debit 62-2 Credit 98–45,000 rubles - the amount of prepayment is reflected in deferred income;

Debit 62-1 Credit 91-1 – 17,700 rubles – rent accrued for the reporting period;

Debit 91-2 Credit 68-2 – 2,700 rubles – VAT accrued on rent for the reporting period;

Debit 68-2 Credit 62-2 – 2,700 rubles – accepted for VAT deduction on the prepayment amount;

Debit 98 Credit 62-1 – 15,000 rubles – reflects the amount of rent previously included in deferred income.

The landlord must issue an invoice to the tenant for the amount of rent.

According to paragraph 3 of Article 168 of the Tax Code of the Russian Federation, an invoice is issued no later than five calendar days, counting from the date of provision of services.

Issuing invoices for the sale of services for the provision of property for rent is possible no earlier than the end of the tax period, at least the month in which the services were actually provided.

Rent in tax accounting.

Providing property for rent is the main activity of the organization.

According to Article 249 of the Tax Code of the Russian Federation, rent received from the tenant is classified as income from sales. The main types of activities are determined by the organization's Charter, where most often the rental of property is provided as a type of activity.

If an organization, for profit tax purposes, recognizes income and expenses using the accrual method, then income is recognized in the reporting (tax) period in which they occurred, regardless of the actual receipt of funds, other property (work, services) (clause 1 of Article 271 of the Tax Code RF).

For organizations that provide their property on a systematic basis for a fee for temporary use and (or) temporary possession and use of their property, the costs of such activities are associated with sales (subclause 1 of clause 1 of Article 265 of the Tax Code of the Russian Federation).

If the lease agreement provides for an uneven schedule of rental payments, then, according to the latest clarifications of the Ministry of Finance of the Russian Federation, given in Letters dated April 17, 2009 No. 03-03-06/1/258, dated April 2, 2009 No. 03-03-06/1 /212, the taxpayer, on the basis of subparagraph 3 of paragraph 4 of Article 271 of the Tax Code of the Russian Federation, must in such cases take into account rental payments in income, based on the amounts provided for in the payment schedule. A similar position is contained in the Resolution of the Federal Antimonopoly Service of the Ural District dated December 16, 2008 in case No. Ф09-9466/08-С3.

According to the author, an uneven payment schedule also occurs when rent is paid once over a long period of time, for example, once a year or every six months. At the same time, a one-time inclusion of such a fee in income is not entirely beneficial to the organization, since it will lead to a one-time payment of income tax or a larger advance payment. Therefore, it is more expedient to distribute such income across reporting periods. However, taking into account the position of the Ministry of Finance of the Russian Federation, such an approach may cause complaints from the tax authorities.

Let us note that earlier officials indicated that income in the form of rental payments is recognized in tax accounting taking into account the principle of uniform recognition of income and expenses, regardless of their actual payment. At the same time, monthly conclusion of acts of services rendered under a lease agreement is not required for the purposes of maintaining tax accounting of income in the form of lease payments. This position was set out in Letters of the Ministry of Finance of the Russian Federation dated April 17, 2007 No. 03-03-06/1/248, dated February 6, 2007 No. 03-03-06/1/59, dated November 10, 2006 No. 03-03 -04/1/752, Federal Tax Service of the Russian Federation for the city of Moscow dated September 22, 2008 No. 20–12/089128.

Providing property for rent is not the main activity of the organization.

In this case, income from leasing property is recognized as non-operating income (clause 4 of Article 250 of the Tax Code of the Russian Federation).

Subparagraph 3 of paragraph 4 of Article 271 of the Tax Code of the Russian Federation establishes that for non-operating income from leasing property, the date of receipt of income is the date of settlements in accordance with the terms of concluded agreements or presentation to the taxpayer of documents serving as the basis for making calculations, or the last day of the reporting (tax) ) period.

Expenses for the maintenance of property transferred under a lease agreement (including depreciation on this property) are included in non-operating expenses (subclause 1 of clause 1 of Article 265 of the Tax Code of the Russian Federation).

Communal payments.

As noted above, in accordance with Article 614 of the Civil Code of the Russian Federation, rent can be set either in a fixed amount or in a “floating” amount, consisting of two parts - a fixed amount of rent and a variable component consisting of utility bills.

As a rule, all lease agreements, in one form or another, contain a condition that it is the tenant who bears the costs of paying utility bills. This raises the question: how is it most beneficial from a tax point of view for the parties to the agreement to document such a condition. And first of all in this case we're talking about about such a controversial tax as VAT.

In practice, there are different payment options for paying for electricity, gas, water supply, telephone communications and other utilities. Let's take a closer look at them.

1. Utilities are included in the rent.

The first method is used quite rarely. After all, tariffs for utility services are constantly growing, in addition, when concluding an agreement, the parties do not yet know to what extent utility services will actually be consumed by the tenant. Consequently, it is hardly possible to calculate in advance the amount of a fixed rental payment that covers all the lessor’s expenses for utilities during the execution of the contract. The parties do not have the right to change the amount of rent during the year; the prohibition on this is established by paragraph 3 of Article 614 of the Civil Code of the Russian Federation.

Therefore, usually in a lease agreement, the parties do not stipulate the amount of rent itself, but the methodology for calculating it, as a result of which a change during the year in the variable component of the rent does not mean a revision of the price of the lease agreement, because the mechanism for determining the amount of rent remains the same.

With a “floating” rent, all amounts received by the lessor from the tenant, including utility bills, are recognized as his income from leasing the property.

By virtue of Article 146 of the Tax Code of the Russian Federation, the lessor charges VAT on the entire amount of rent and pays it to the budget. An invoice is issued by the landlord to the tenant for the entire amount of the rent (including the amount of utility bills), and “utilities” is not highlighted as a separate line.

The landlord, who has received invoices from utility companies in his name, has the right to deduct the VAT indicated in their invoices in full. After all, if utility payments received from the tenant are included in his income, then he has the right to recognize the utilities consumed by the tenant as his expenses. The same procedure for assessing VAT was explained by officials in Letter of the Federal Tax Service of the Russian Federation dated February 4, 2010 No. ШС-22-3/86@. A similar opinion is shared by the arbitrators in the Resolution of the FAS North Caucasus District dated December 21, 2009 in case No. A63-8994/2004-C4-9, dated June 11, 2009 in case No. A53-18515/2008-C5-27, FAS Central district dated May 29, 2009 in case No. A23-3029/2008A-14-202, FAS North-Western District dated January 10, 2007 in case No. A05-7971/2006-13, dated July 4, 2007 in case No. A56- 38904/2006.

A tenant who has received from the lessor an invoice for rental services (for the entire amount, including utility bills) in the general manner, on the basis of Articles 171 and 172 of the Tax Code of the Russian Federation, has the right to deduct the amount of VAT indicated in the lessor's invoice. Judges share a similar opinion; as an example, we can cite the Resolution of the Federal Antimonopoly Service of the North-Western District dated December 27, 2010 in case No. A56-7049/2010, the Resolution of the FAS Moscow District dated August 26, 2008 in case No. KA-A40/7882-08 , Resolution of the Federal Antimonopoly Service of the North Caucasus District dated June 26, 2008 in case No. F08-3507/2008 and others.

2. Utilities are paid separately from the rent.

If utility bills are not included in the rent, then the safest option for reimbursing the landlord’s utility costs is to conclude a lease agreement with elements of a mediation agreement. That is, the lease agreement stipulates in advance that the lessor, as an intermediary, acting on his own behalf, but in the interests of the tenant, purchases utilities for him.

In addition, as an option, a separate mediation agreement may be concluded. Do not forget that the services of an intermediary are paid, therefore, the mixed lease agreement must provide for the intermediary’s remuneration, or a separate intermediary agreement must provide for payment for the services of the landlord providing intermediary services for the tenant.

Moreover, since utility companies expose their documents in the name of the property owner, the options for an intermediary agreement concluded between the landlord and the tenant can be either a commission agreement or an agency agreement, in which the agent acts on his own behalf, but in the interests of the principal.

In this case, the landlord will issue two invoices in the name of the tenant: one in his own name for rental services, the second in his own name for utilities. Moreover, the invoice issued to the tenant for utility services is issued by the lessor on the basis of the data of the invoice issued by the utility service provider in the name of the lessor himself. This invoice is not entered into the lessor's purchase book, but is filed in the journal of received invoices. It is precisely this procedure for issuing invoices by VAT taxpayers and participants in intermediary agreements that is provided for by the Rules for maintaining logs of received and issued invoices, purchase books and sales books for value added tax calculations, approved by Decree of the Government of the Russian Federation of December 2, 2000 No. 914 .

With such a scheme for reimbursement of utility costs, the amount received from the tenant in reimbursement of utility services is not the income of the landlord. The received amounts are taken into account in the lessor's accounting as separate business transactions.

In accordance with subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, when determining the tax base for income tax, income in the form of property (including cash) received by a commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement is not taken into account. agency agreement or other similar agreement, as well as for reimbursement of costs incurred by the commission agent, agent and (or) other attorney for the principal, principal and (or) other principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or) ) another attorney in accordance with the terms of the concluded agreements. This income does not include commission, agency or other similar remuneration, which becomes income from ordinary activities.

When re-presenting utilities, the lessor is relieved of the risks associated with income tax and VAT, as well as those associated with the possible recognition of the transaction as void in accordance with Articles 166–181 of the Civil Code of the Russian Federation, as well as the risks of criminal liability arising under Article 171 of the Criminal Code Russian Federation “Illegal entrepreneurship” (in terms of over-provision of communication services).

However, with this scheme, the lessor, in addition to the obligation to charge VAT on the amount of rent, has the obligation to charge tax on the amount of his intermediary remuneration.

This text is an introductory fragment. From the book All about the simplified taxation system (simplified taxation system) author Terekhin R.S.

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