DISPUTES RELATED TO THE CONCLUSION, MODIFICATION, OR TERMINATION OF AN AGREEMENT (TRANSACTION) AND FULFILLMENT OF CONTRACTUAL OBLIGATIONS UNDER THE LEASE AGREEMENT
According to article 540 of the Civil Code, under a property lease agreement, the landlord undertakes to provide the tenant with property for a fee for temporary possession and use.
The lease agreement is a classic traditional one for all legal systems. The lease agreement is part of a group of agreements governing the transfer of property for temporary use. Unlike property transfer agreements, a lease agreement does not entail a change of ownership, therefore, in the economic sense, it formsalizes such a turnover relationship in which the goods are not a thing, but the right to use it.
In accordance with article 541 of the Civil Code, enterprises and other property complexes, land plots, buildings, structures, equipment, vehicles and other things that do not lose their natural properties in the process of their use (non-consumable things) can be leased. The object of property lease may also be the right of land use, the right of subsurface use and other property rights, unless otherwise provided by legislative acts.
The subject of claims in cases of this category were claims for: recovery of arrears under the lease agreement, termination of the lease agreement, amendments to the lease agreement, recovery of material damage, recovery of losses, recovery of a fine for early termination of the lease agreement, invalidation of the lease agreement, and coercion to conclude a lease agreement.
Debt collection under the lease agreement
According to Clause 3 of Article 561 of the Civil Code, if the tenant has not returned the hired property or returned it untimely, the landlord has the right to demand payment for the use of the property for the entire time of delay.
In the event that the specified fee does not cover the losses caused to the landlord, he may demand their compensation. By the decision of the district court no.2 Kazybekbiysky district of Karaganda city dated June 16, 2015 (case No. 2-9170), the claim of IP Shabanova Victoria Dmitrievna to Artyom Anatolyevich Maglyui for recovery of the amount owed and compensation for material damage was satisfied.
In satisfying the plaintiff's claims, the court indicated that the defendant had returned the rented property untimely and in a technically defective condition, and the plaintiff's claims were recognized by the defendant. In addition to the requirement to collect rent arrears, landlords claim damages (lost profits) due to the late return of property.
350 of the Civil Code, the debtor who has violated the obligation is obliged to compensate the creditor for the losses caused by the violation (paragraph 4 of Article 9 of this Code).
When resolving such claims, it is necessary to establish whether there was a fact of late return of property by the lessee, whether the lessor had a real opportunity to lease the property to third parties if his right had not been violated.
553 of the Civil Code, the tenant is obliged to maintain the property in good condition, make repairs at his own expense and bear the costs of maintaining the property, unless otherwise established by law or contract.
According to clauses 1 and 2 of art. 561 of the Civil Code, after termination of the property lease agreement, the tenant is obliged to return the property to the landlord in the condition in which he received it, taking into account normal wear and tear or in the condition stipulated by the contract.
If the condition of the returned property at the end of the contract does not meet the conditions provided for in paragraph 1 of this article, the lessee shall compensate the lessor for the damage caused.
If the leased property fails before the service life stipulated in the contract, the lessee shall reimburse the lessor for the residual value of the property, unless otherwise provided by the contract.
Collection of rent claimed by a person who is not the owner of the property.
In this regard, it should be borne in mind that, according to Art. 543 of the Civil Code, the right to lease property belongs to its owner. Landlords may also be persons authorized by legislative acts or by the owner to lease the property.
By the decision of the Al-Farabi District Court of Shymkent, South Kazakhstan region, dated May 13, 2015 (case No. 2-2348), Nuranbekov A.B.'s claim to the limited liability company "Kurylys Sapa" for the recovery of rent was dismissed and the counterclaim of the limited liability company "Kurylys Sapa" to Nuranbekov A.B. for recognition of the transaction was satisfied. imaginary and invalid.
The decision was not appealed to the appellate and cassation instances. It has entered into legal force.
So, demanding the amount of arrears on the lease of his premises, the plaintiff submitted to the court the lease agreement No. 1 for non-residential premises dated May 01, 2013, concluded between him and Kurylys-Sapa LLP.
So, at the time of signing the Lease Agreement No. 1 for non-residential premises with Nuranbekov A.B., Kurylys-Sapa LLP had already leased premises from KazNIIHimProekt LLP under Agreement No. 36 dated 04.01.2013, located at 3 Al-Farabi Square, Shymkent.
This agreement was not terminated by the parties and was legally binding on the day of the case review. From this, the courts concluded that there was no need for Kurylys-Sapa LLP to rent additional premises.
The court found that neither "Kurylys-Sapa" LLP, nor its division or individual employees had actually ever occupied the premises specified in the Lease Agreement No. 1 for non-residential premises dated May 01, 2013, concluded between Nuranbekov A.B. and "Kurylys-Sapa" LLP.
According to the Agreement No. 36 dated 04.01.2013, the amount of rent for premises owned by KazNIIHimProekt LLP and located on Alfarabi Square 3 is 138,200 tenge per month, when the rent for the actually unused premises located at the address: Shymkent, Argynbekov Street, 2"a" is 278,000 tenge per month.. In addition, the location of Kurylys-Sapa LLP as a subject of accreditation is indicated in the Accreditation Certificate: Shymkent, Alfarabi Square, 3 "a".
Taking into account these circumstances, the court came to a reasonable conclusion that the transaction made for the lease of premises located at the address: Shymkent, Argynbekova Street, 2"a", according to Contract No. 1 dated May 01, 2013, is imaginary and invalid.
At the same time, in accordance with subparagraph 1) of paragraph 2 of Article 43 of the Law of the Republic of Kazakhstan "On Limited Liability Companies" and paragraph 7.2 of the Charter of Kurylys-Sapa LLP, changing the location of the partnership falls within the exclusive competence of the general meeting of participants of the limited liability company. In addition, according to subparagraph 8) of paragraph 7.8 of the Charter, the approval of cost estimates falls within the exclusive competence of the Supervisory Board of the Partnership.
However, without the decision of the sole Participant, JSC NC SEC Shymkent, and without approval of the annual budget by the Supervisory Board, the former director of the Partnership, Davidbekov A., illegally concluded a lease agreement with Nuranbekov A.B.
Moreover, the court of first instance, and the higher instances agreed with this, gave a proper assessment, which it considered unreliable, to the testimony of witness Egemberdiev K., that "he accepted the main funds from the former director Davidbekov A. according to the act of acceptance and transfer in a rented room located on Argynbekov Street 2"a", since all the fixed assets of Kurylys-Sapa LLP have always been located in the premises indicated in the Accreditation Certificate: Shymkent city, Al-Farabi Square, 3 "a".
Moreover, the Act of acceptance and transfer of fixed assets, signed by all members of the commission, including Egemberdiev K., states that the fixed assets were located in the laboratory at 3 "a" Al-Farabi Square. With this in mind, the counterclaims were satisfied and the lease agreement for non-residential premises located at 2 "a" Argynbekov Street, Shymkent, concluded on May 01, 2013 between the Kurylys-Sapa Limited Liability Partnership and Nuranbekov Akzhol Batyrovich was declared imaginary and invalid. We believe that in this case, when making a decision in the operative part, taking into account the requirements of the Civil Code and the Regulatory Decree of the Supreme Court of July 16, 20074 No. 5 "On certain issues of dispute resolution related to the protection of home ownership", it was necessary to indicate only that the contested contract was recognized by the court as imaginary.
So, on March 15, 2015, the specialized interdistrict economic court of the South Kazakhstan region considered a case on the claim of Olga Nikolaevna Loktenko, a participant in Samal Transit LLP and Ak-su Bazary LLP, against Balabiev, a participant in Samal Transit LLP, Nursultan Kairatovich Balabiev, a participant in Ak-su Bazary LLP, Balabieva Aigerim Kairatovna, and third parties Samal Transit LLP, Ak-su Bazary LLP on the recognition of the lease agreement dated 04/24/2014 and all decisions taken on it as invalid, while the plaintiff motivated his claims by the fact that, justifying his claims by, that the lease agreement was signed by the participants of Balabiev N. and Balabieva A. LLP, and not by the executive body, in addition, on the basis of the lease agreement, Ak-su Bazary LLP illegally re-registered the location of the legal entity.
This decision was appealed to the appellate and cassation instances. Left unchanged and entered into force.
As follows from the case file, according to the agreement on 24.04.2014, the participants of Samal Transit LLP and Aksu Bazary LLP Balabiev N.K. and Balabieva A.K. concluded a lease agreement, according to which Samal Transit LLP transfers non-residential premises with a rent of 50,000 to Aksu Bazary LLP. tenge monthly.
The lease expired on December 31, 2014. In accordance with clause 1, clause 2, Article 43 of the Law "On Limited and Additional Liability Partnerships", the exclusive competence of the general meeting of participants in a limited liability partnership includes changing the charter of the partnership, including changing the size of its authorized capital, location and brand name, or approving the charter of the partnership in a new version.
In accordance with the Order of the Minister of Justice dated 12.04.2007 No. 112 "On Approval of Instructions on State Registration of Legal Entities and Registration of Branches and representative offices", in order to change the legal address of the partnership, the judicial authorities must:
1) an application in the form set out in Appendix 16 to these Instructions, for joint-stock companies operating on the basis of a Standard charter set out in appendix 17 to these Instructions, signed by the head of a legal entity or other authorized person, sealed (legal entities with state participation - an application marked by the registrar);
2) a decision or an extract from the decision of the authorized body of the legal entity on amendments and additions to the constituent documents of the legal entity, the regulations on the branch (representative office), sealed with the seal of the legal entity;
3) in case of change of the actual location, three copies of the text in Kazakh and Russian on amendments and additions to the constituent documents of the legal entity, the regulations on the branch (representative office) or the newly issued three copies of the constituent documents of the legal entity, the regulations on the branch (representative office), sealed by the seal of the legal entity;
4) the originals of the former constituent documents of the legal entity, the regulations on the branch (representative office).
Taking into account the above, the court of first instance, and the collegiums agreed with it that a lease agreement is not required to change the legal address of the partnership.
By the decision of the specialized interdistrict Economic Court of the South Kazakhstan region No. 2-15615 dated 12/15/2014, the minutes of the general meeting of Ak-su Bazary LLP No. 3 dated 04/24/2014 on changing the location of the Partnership were declared invalid, the fact of transferring the legal address of Ak-su Bazary LLP to Shymkent, Aimautova str. 143 was declared illegal.
At the same time, the court stated that the plaintiff had not provided the original of the disputed lease agreement to the court as evidence, in turn, the defendants also confirmed at the court hearing that they did not have the original of the disputed agreement.
At the request of the plaintiff's representative, the court requested the registration dossier of Ak-su Bazary LLP from the judicial authorities, and during the investigation it was found that the original of the disputed contract was also missing from the case file. The plaintiff's claim was denied. By virtue of Article 559 of the Civil Code, the transfer of ownership, the right of economic management or the right of operational management of leased property to another person is not grounds for changing or terminating the lease agreement.
In the event of the death of a citizen who is the tenant of immovable property, his rights and obligations under the lease agreement for this property shall pass to the heir, unless otherwise provided by legislative acts or the contract.
The landlord has no right to refuse such an heir to enter into the contract for the remaining term of its validity, except in cases where the conclusion of the contract was determined by the personal qualities of the employer.
This rule establishes the fate of the contract in the event of a change of persons, both on the side of the landlord and the tenant.
As a general rule, the lease agreement remains in force when the parties change, although regulation has its own peculiarities depending on which side the change of face takes place.
If the change occurs on the side of the lessor, the owner of the leased property, then the contract always remains in force on the same terms.
In this case, the former owner loses, and the new one acquires the right to receive income from renting out the property. In addition, the transfer of ownership of leased property to another person does not in itself constitute grounds for judicial changes to the terms of the lease agreement.
If the change of persons occurs on the tenant's side, then the contract is not always maintained. Paragraph 2 of Article 559 of the Civil Code regulates relations in which a tenant is represented by an individual, and a change of person on the tenant's side occurs due to his death.
In this case, the personal qualities of the tenant may be taken into account, if they conditioned the conclusion of the contract.
Only in this case, the lessor has the right, even if there is no provision in the contract for termination of the lease agreement due to the death of the tenant, to refuse the heir to the succession in the lease obligation. This rule is designed for contracts concluded for a period of time.
The legal successor acquires the rights of the lessee only for the remaining term of the contract.
Under a contract concluded without specifying a time limit, the parties, in this case the lessor, have the right to unilaterally terminate the contract at any time in accordance with the rules of clause 2 of Article 545 of the Civil Code.
Termination of lease agreements
When considering claims for termination of lease agreements, the requirements of Article 402 of the Civil Code are taken into account that a claim for amendment or termination of a contract may be filed by a party in court only after receiving a refusal from the other party to the proposal to amend or terminate the contract or failure to receive a response within the period specified in the proposal, and in its absence within thirty days.
Failure to comply with sanitary standards by the developer after the provision of the land plot cannot serve as a basis for the cancellation of the akim's resolution on the provision of the land plot
According to article 401 of the Civil Code, the amendment and termination of the contract is possible by agreement of the parties, unless otherwise provided by this Code, other legislative acts and the contract.
At the request of one of the parties, the contract may be amended or terminated by a court decision only:
1) in the event of a material breach of contract by the other party;
2) in other cases stipulated by this Code, other legislative acts or an agreement.
It follows from the content of this provision that the right to demand termination of the contract in court belongs only to the parties to the contract.
Thus, the prosecutor is not a party to the lease agreement, so he has no right to file claims for termination of the agreements.
At the same time, the cassation board noted that according to paragraph 11 of the Normative Resolution of the Supreme Court No. 20 dated December 24, 2010 "On certain issues of the application by courts of the norms of Chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan", in accordance with the provisions of Article 8 of the Law of the Republic of Kazakhstan "On Administrative Procedures", the decision of a state body, a local government body in the form of An individual legal act may be appealed if such an act has not ceased to be effective in connection with the execution of the instructions (requirements) contained therein.
If a civil law transaction is concluded on the basis of an individual legal act, then the contested transaction, for example, a contract for the performance of works (services) based on the results of a tender, is subject to appeal in the order of claim proceedings. If a transaction is declared invalid on grounds of non-compliance with the requirements of the law, the reasoning part of the decision must indicate the conclusions of the court on the illegality of the decision that served as the basis for concluding the disputed transaction.
In this case, lease agreements were concluded on the basis of the contested resolutions of the Akimat, but the prosecutor demanded that these agreements be terminated rather than declared invalid, guided by the Supreme Court's regulatory resolution No. 6 of July 16, 2007 "On certain issues of the application of Land Legislation by Courts," according to paragraph 8 of which the courts should keep in mind that the executive body may change or reverse its decision to grant the right to a land plot before fulfilling the requirements specified in it, for example, until the person receives the state act on the land plot.
From the moment of receipt of these documents, the land user is granted the right to a land plot in the form of private ownership, permanent or temporary land use, therefore, a dispute about the right can only be resolved in court.
When considering claims for termination of a lease agreement, courts should be guided not only by the norms of the General Part of the Civil Code on the grounds and procedure for termination of the contract and the special norm of Chapter 29 – Article 556 "Amendment and termination of the lease agreement at the request of one of the parties"
404 of the Civil Code, unilateral refusal to perform a contract (renunciation of a contract) is allowed in cases provided for by this Code, other legislative acts or an agreement of the parties.
Consequently, the parties may provide in the lease agreement for the possibility of unilateral cancellation of the contract.
A unilateral refusal to perform a contract carried out in accordance with the contract is a legal fact leading to the termination of the contract.
An appeal to the court by the party giving effect to such a unilateral refusal is not required.
However, the other party, which considers the said unilateral refusal to be unlawful, may, if it does not contradict the law, challenge it in court.
Legal relations in the analyzed area are regulated not only by the Civil Code (hereinafter referred to as the Civil Code), in particular, Articles 540-600 of Chapter 29, but also
The Land Code,
The Water Code,
The Forest Code,
The Tax Code,
Laws of the Republic of Kazakhstan:
On Subsoil and subsoil use dated June 24, 2010;
On State property dated March 1, 2011;
On concessions dated July 7, 2006;
On financial leasing dated July 5, 2000;
On Banks and Banking Activities dated August 31, 2008.
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