“Risks of inability to use the leased property and non-receipt of rent” — article by Tatiana Tereshchenko and Alexander Sergeev
The difficulties associated with the proper execution of the concluded lease agreements, which the participants of civil turnover faced in the context of the pandemic and the existing public legal restrictions, explain in general the increased practical interest in what constitutes the risk of accidental inability to use the leased property under the general lease rules and how it should be distributed between the parties.
Tatiana Tereshchenko, head of the analytical department of Prime Advice, co-authored with Alexander Sergeev in an article for the magazine "Arbitrazhnye spory" analyze the provisions of Articles 606, 611, 614 of the Civil Code of the Russian Federation and the established judicial practice, including paragraph 27 of the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 3 (2020) (approved by the Presidium of the Supreme Court of the Russian Federation on November 25, 2020), and draw attention to the importance of distinguishing the situation of the impossibility of using leased property under the circumstances, which do not depend on the lessee (i.e., the risk in its pure form), on the situation of the inability to use the leased property for reasons that depend on the lessor (i.e., the lack of grounds for the lessee to fulfill the obligation to pay rent).
The authors conclude: in the first case, the realization of the risk means that the tenant is obliged to pay rent, although he has the right to ask for its reduction according to the general rules of paragraph 4 of Article 614 of the Civil Code of the Russian Federation. In the second case, the release of the lessee from the obligation to pay rent payments is a way of imposing on the lessor the negative consequences of violating its own contractual obligation to provide the lessee with a quiet use and possession of the leased property (Articles 606, 611 of the Civil Code of the Russian Federation).
Taking into account the dispositive nature of the norm of paragraph 4 of Article 614 of the Civil Code of the Russian Federation on the risk of inability to use the leased property and allowing for the possibility of changing the general rule by agreement of the parties, the authors conclude that the assessment of whether the lessee should pay rent in the event of inability to use the leased property will be influenced not only by the fact (not)proper performance of the lessor's obligation to ensure the lessee's peaceful use and possession of the leased object, but also by the substance of the terms of a specific lease agreement.
Keywords: the obligation of the lessor to ensure the safe use and possession, the risk of accidental impossibility of using the leased property, rent, Article 614 of the Civil Code of the Russian Federation, the Supreme Court of the Russian Federation.