of February 15, 2012 No. 1
About some questions of hearing of cases arising from rent legal relationship
Plenum of Supreme Economic Court of the Republic of Belarus for the purpose of ensuring the correct and uniform application of the legislation by economic courts of the Republic of Belarus by hearing of cases, arising from rent legal relationship (except for leases of the parcel of land and other isolated natural objects), being guided by Articles 74, 75 Codes of the Republic of Belarus about judicial system and the status of judges, POSTANOVLYAET to make the following explanations.
1. Judicial protection of the rights and legitimate interests of persons participating in the cases arising from rent legal relationship is guaranteed by Articles 13, 60 Constitutions of the Republic of Belarus.
The Law on lease and Chapter 34 of the Civil Code in the part which is not contradicting the Decree No. 150 are applied to the legal relationship following from lease agreements of the real estate which is in state-owned property and in property of economic societies in which authorized capitals more than 50 percent of shares (shares) are in property of the Republic of Belarus and (or) its administrative and territorial units (further the real estate which is in state-owned property) including by transfer of such property to the sublease.
To the legal relationship connected with lease of capital structures (buildings, constructions), the isolated rooms, their parts in the markets and in shopping centers for the organization and implementation of retail trade (further - trade places), the Law on lease and Chapter 34 of the Civil Code in the part which is not contradicting decrees No. 148 and No. 150 are applied.
Paragraph 1 of Chapter 34 of the Civil Code containing general provisions about the lease agreement is applied to different types of the lease agreement and separate types of the leased property: hire, lease of vehicles, lease of buildings and constructions, lease of the companies, finance lease (leasing) if other is not established by the legislation, including regulations of group of companies about these agreements. According to Article 596 of group of companies special regulations have priority.
Considering that the isolated rooms, parking places, their parts are the real estate objects other than capital structures (buildings, constructions) in which they are, but inseparably linked with them, to lease agreements of the isolated rooms, parking places, their parts rules of paragraphs 1, 4 Chapters 34 of the Civil Code are applied.
Draw the attention of economic courts that determinations of terms and the concepts "capital structure (building, construction)", "the isolated room", "parking place" contain in article 1 of the Law of the Republic of Belarus of July 22, 2002 "About state registration of real estate, the rights to it and transactions with it" (The national register of legal acts of the Republic of Belarus, 2002, No. 87, 2/882; 2011, No. 65, 2/1823) (further - the Law on state registration).
3. Adoption (edition) of the act of state body or body of local authority and self-government about leasing of the real estate which is in state-owned property is the basis for the conclusion of the lease agreement, however in itself does not generate rent legal relationship.
4. The main document establishing legal relationship between the lessor and the lessee is the lease agreement signed in writing and signed by the parties (their representatives) (Item part one 1, Item 2 of Article 404, Item 1 of Article 580 of group of companies). Concerning capital structures (buildings, constructions), the isolated rooms, parking places, their parts (further - real estate) the lease agreement is signed in writing by creation of one document (part one of Article 622 of group of companies). Non-compliance with written form of the lease agreement of real estate attracts its invalidity (part two of Article 622 of group of companies).
The lease agreement is considered the prisoner if between the parties in the form required in the subject cases the agreement on all essential terms of the contract which treat the subject of the agreement, conditions which are called in the legislation as essential, necessary or obligatory for the agreement of this type, and also all those conditions concerning which according to the statement of one of the parties the agreement (Item 1 of Article 402 of group of companies) shall be reached is reached. In particular, conditions belong to essential provisions of the lease:
about the data allowing to establish definitely the property which is subject to transfer to the lessee as object of lease (Item 3 of Article 578 of group of companies);
about rent payment due dates according to the lease agreement of the real estate (except for trade places) which is in state-owned property (Items 1, 14 Regulations on procedure for determination of the amount of the rent when leasing capital structures (buildings, constructions), the isolated rooms, parking places, their parts, No. approved by the Decree 150).
The transfer act shall contain the data specified in Item 7 of the Regulations on procedure for leasing of capital structures (buildings, constructions), the isolated rooms, parking places, their parts which are in republican property approved by the Decree No. 150.
In case of assessment of the actual facts of the case economic courts should recognize that lack of the transfer act not always demonstrates that the lessor and (or) the lessee did not fulfill the duties on transfer and (or) acceptance to lease of property, and in the presence of proofs of execution by lease agreement parties (the actual use of property, payment of lease payments, finding of property of the lessee on leased premises, etc.) object of lease can be considered transferred to use to the lessee.
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