14 June 2024

Sublease Rights Upon Early Termination of Lease Agreement in Russia: A Legal Guide

June 14, 2024

BRACE Law Firm ©

General provisions on sublease agreements are established in Chapter 34 of the Civil Code of the Russian Federation (the "Civil Code"). One of the fundamental principles of the regulatory framework for subleases is that the rules governing leases apply to sublease relations (Clause 2 of Article 615 of the Civil Code). However, exceptions to this provision exist.

A lease agreement (the "Lease Agreement" or "Main Lease Agreement") may be terminated early for various reasons. Sometimes this occurs while the term of a sublease agreement has not yet expired. In this case, the subtenant (the "Subtenant") finds itself in a difficult position. On one hand, from that moment on, the Subtenant is in an "illegal" status. Since the tenant (the "Tenant" or "Sublandlord") has lost its status as a Sublandlord, the Subtenant no longer has either a counterparty to the agreement or formal legal grounds to use the property. On the other hand, the Subtenant’s legitimate interests are affected, as it expected to use the asset for a specific period.

The law provides a special protection mechanism for such situations. Clause 1 of Article 618 of the Civil Code allows the Subtenant to enter into a lease agreement directly with the landlord (the "Landlord" or "Owner"). The peculiarity of this mechanism is that it applies with certain restrictions, and to implement it, the Subtenant must compromise and accept new contractual terms. Furthermore, after the termination of the Lease Agreement, the relations between the Landlord, Tenant, and Subtenant form a kind of conflict "triangle", the participants of which exchange mutual claims and demands regarding the return of property and financial settlements.

This article addresses the issues arising from the performance of a sublease agreement after the termination of the Main Lease Agreement. Based on extensive judicial practice, we will examine and analyze the following questions:

The rights and obligations of the Subtenant, Tenant, and Landlord in the specified situation;
Problems related to the use and return of property after the termination of the lease and sublease;
The procedure for settlements between the Landlord, Tenant, and Subtenant after the early termination of the Lease Agreement.

Subtenant Rights Upon Early Termination of the Main Lease Agreement (Article 618 of the Civil Code)

Clause 1 of Article 618 of the Civil Code establishes: "unless otherwise provided by the lease agreement, early termination of the lease agreement shall entail termination of the sublease agreement concluded in accordance with it. In this case, the subtenant has the right to conclude a lease agreement with it for the property that was in its use in accordance with the sublease agreement, within the remaining term of the sublease on terms corresponding to the terms of the terminated lease agreement".

Thus, upon early termination of a lease agreement, the sublease agreement also terminates. This occurs automatically and does not depend on the will, consent, or disagreement of the Subtenant, as a sublease cannot, in principle, exist outside of a valid Main Lease Agreement.

The Subtenant's awareness of this event also does not affect the fact of the sublease termination. Judicial practice has formed a position: the Landlord is not obliged to notify the Subtenant of the lease termination or offer it a direct agreement. By entering into sublease relations, the Subtenant "assumes the risk of possible early termination of the sublease agreement at any time in the event of termination of the lease agreement". [1] Regarding the Tenant (Sublandlord), its good faith behavior implies the need to notify the Subtenant that the sublease agreement is losing its effect due to the termination of the main lease. If the Tenant concealed this circumstance from the Subtenant or notified it late, the Subtenant may subsequently demand compensation for damages caused by the counterparty's incorrect actions. Moreover, if the Tenant continued to collect sublease payments after the termination of the agreement, the Subtenant may recover unjust enrichment (settlement issues will be discussed in more detail in a separate section of this article).

The law allows the Subtenant to maintain use of the property by entering into a lease agreement directly with the Landlord. It should be noted that for the Subtenant, this possibility is a right, not an obligation. The Subtenant may, at its discretion, either initiate the application of Clause 1 of Article 618 of the Civil Code or refrain from active measures and not enter into contractual relations. This right corresponds to the Landlord's obligation to conclude the relevant agreement, and an unreasonable refusal may be challenged in court. Courts satisfy the claims of bona fide Subtenants to compel the Landlord to conclude an agreement under the following set of conditions:

The Main Lease Agreement was terminated before the expiration of its contractual term and before the expiration of the contractual term of the sublease;
The term of the new agreement concluded between the Subtenant and the Landlord cannot exceed the remaining term of the sublease;
The terms of the new agreement between the Subtenant and the Landlord correspond to the terms of the terminated Main Lease Agreement (except for the object and term);
The terminated Lease Agreement did not provide for a different condition regarding the fate of the sublease (that it remains in effect).

This mechanism aims to achieve a reasonable balance of interests for both participants — the Landlord and the Subtenant. [2] Primarily, it allows for reducing risks and protecting the interests of the Subtenant, who, when concluding the sublease agreement, expected to use the property for a certain period.

It should be taken into account that the implementation of the Subtenant's rights provided for by Clause 1 of Article 618 of the Civil Code is not a substitution of a party to the agreement. The Subtenant concludes a new agreement with the Landlord on new terms; therefore, general norms related to the change of persons in an obligation cannot apply to such relations:

Provisions on the transfer of a lease (transfer of rights and obligations) do not apply. As a general rule, if a Sublandlord transfers its rights and obligations under a sublease agreement to another person (transfer of lease), the sublease agreement remains in force. [3] However, early termination of a lease agreement does not entail a change of persons in the obligation; therefore, the rights and obligations of the Tenant (Sublandlord) do not automatically transfer to the Landlord;
General regulatory consequences of a change in the property owner do not apply. In accordance with Clause 1 of Article 617 of the Civil Code, upon the transfer of ownership of leased property, the lease agreement does not change or terminate. Since the rules on leases apply to subleases (Clause 2 of Article 615 of the Civil Code), a sublease agreement also remains in force upon a change of owner. However, in the case of early termination of a lease agreement, this rule does not work. The Supreme Court of the Russian Federation explained: upon the alienation of property by the Landlord after the termination of the lease, the former Subtenant is not entitled to demand that the new owner conclude a lease agreement with it. That is, the transfer of ownership of the subject of the lease deprives the Subtenant of the opportunity provided by Clause 1 of Article 618 of the Civil Code. [4]

The provisions of Clause 1 of Article 618 of the Civil Code are of a dispositive nature. This means the following: in a lease agreement, the parties may provide that the sublease remains in effect even after the termination of the lease. In this case, the sublease agreement is not terminated or interrupted, its provisions remain unchanged, and the Landlord will exercise the rights and obligations of the Sublandlord. Such a clause is primarily beneficial to the Subtenant, as it provides a favorable scenario after the lease termination. The Subtenant will not be obliged to return the property and may continue to use it on the previous terms until the end of the sublease term.

The Landlord should apply such a clause with great caution. On one hand, it can serve as a financial "insurance" in the unforeseen event that it becomes necessary to part with the Tenant or if the Tenant itself rejects the agreement. Therefore, if the Landlord does not wish to lose stable income from the property or spend resources on pre-contractual disputes and resolving disagreements with the Subtenant, it may take advantage of the dispositive nature of Clause 1 of Article 618 of the Civil Code and provide for the "automatic" preservation of the sublease after the lease termination. However, this is advisable only when the terms of the sublease agreement are fully controlled by the Landlord. To achieve this, when granting consent to the Tenant for the sublease, the Landlord should establish the terms of the sublease agreement, primarily the payment amount. Otherwise, such a clause could harm the Landlord, who might find itself "trapped" by being forced to accept a new tenant on the unfavorable terms of the sublease agreement.

Does the Reason for Terminating the Lease Agreement Matter?

The early termination of a lease entails the termination of the sublease regardless of the grounds on which the Main Lease Agreement was terminated. [5] The Landlord and Tenant may terminate their relationship for various reasons.

First, the law grants the Landlord and Tenant the right to a unilateral motivated termination of the agreement due to breaches committed by the other party. The Landlord is entitled to terminate the agreement unilaterally when the Tenant fails to comply with the following conditions (Article 619 of the Civil Code):

Uses the property for purposes other than those intended or permits significant or repeated violations of the rules of use;
Significantly deteriorates the property;
Allows a payment delinquency of more than two consecutive times;
Violates the obligation to perform capital repairs.

The Tenant also has the right to terminate the agreement when the Landlord commits violations (Article 620 of the Civil Code):

Fails to transfer the property to the Tenant or creates obstacles to its use;
Violates the obligation to perform capital repairs;
The property becomes unfit for use;
The Tenant discovers defects in the property of which it was unaware and which could not have been identified during the transfer or at the conclusion of the agreement.

Furthermore, the agreement may provide for other grounds for its termination at the initiative of one of the parties (Clause 2 of Article 450, Articles 619, 620 of the Civil Code).

Second, a lease agreement may stipulate the right of each party to unilateral unmotivated termination, which is not contingent on any violations. Unmotivated termination implies a party's expression of will to terminate the agreement without explaining the reasons for its decision.

Third, a lease agreement may be terminated before the expiration of its term by mutual agreement of the parties. Typically, in this case, the Tenant and Landlord conclude an agreement to terminate the contract. Such termination should not be confused with a reduction in the term of the agreement. The parties may agree that the lease term expires in one year instead of two, formalizing this with an additional agreement. Such a change in contractual terms entails a reduction in the lease term but is not an early termination. Therefore, if the lease is terminated early based on a bilateral termination agreement, the Subtenant has the right to conclude a direct agreement with the Landlord. If the lease term was simply reduced, the provisions of Clause 1 of Article 618 of the Civil Code do not apply.

Fourth, a lease agreement may terminate due to objective reasons unrelated to a deliberate intent to terminate a specific contract. For example, the Landlord or Tenant is liquidated (Article 419 of the Civil Code). Another example is the Tenant's acquisition of the leased property from the Landlord; in this case, the lease terminates based on Article 413 of the Civil Code (merger of the debtor and creditor in one person). Furthermore, the termination of contractual relations may be related to circumstances that do not depend on the will of the parties at all (Article 416 of the Civil Code).

Thus, the sublease agreement ceases to operate regardless of the grounds for terminating the lease agreement. However, circumstances directly or indirectly related to the termination of the lease relationship may affect the Subtenant's ability to conclude a new agreement with the Landlord. Clause 1 of Article 618 of the Civil Code protects the interests of a bona fide Subtenant. If, upon termination of the Lease Agreement, it is discovered that the Landlord's consent for the sublease was not obtained, the Subtenant will face problems implementing its right. The Subtenant may also be refused if it used the property for purposes other than intended or committed other violations of the rules of use (for example, non-compliance with sanitary norms, illegal redevelopment). [6]

Special Regime for the Sublease Term

For the Subtenant to implement its right to maintain the lease relationship, all aspects related to the lease and sublease terms are of fundamental importance. The Subtenant can claim to conclude a lease agreement only within the remaining term of the sublease. This is due to the fact that the duration of a sublease agreement cannot, in principle, exceed the lease term (Clause 2 of Article 615 of the Civil Code). In this regard, the law provides for special rules that limit the possibility of applying Article 618 of the Civil Code.

First, the rules of Clause 1 of Article 618 of the Civil Code apply only when the Main Lease Agreement is terminated early, i.e., before the completion of the term established in the agreement. If the lease term simply expires in accordance with the terms of the agreement, the Subtenant will not be able to exercise the specified right. [7] Therefore, the mechanism for protecting the Subtenant's interests embedded in Article 618 of the Civil Code should be distinguished from the preemptive right to conclude a lease agreement. By virtue of Clause 1 of Article 621 of the Civil Code, a bona fide Tenant, upon the expiration of the lease term, has a preemptive right over other persons to conclude an agreement for a new term. However, the law provides such an opportunity only to the "direct tenant". Other persons, including the Subtenant, cannot exercise the specified right.[8]

Second, Clause 1 of Article 618 of the Civil Code does not apply if the sublease agreement operates under an indefinite term. Such a situation may arise in two cases:

A sublease agreement is deemed concluded for an indefinite term if its specific expiration date is not defined (Clause 2 of Article 610 of the Civil Code);
The agreement is deemed renewed for an indefinite term if the Subtenant continues to use the property after the termination of the agreement and the Sublandlord does not object to this (Clause 2 of Article 621 of the Civil Code).

In these cases, it is impossible to determine the expiration date of the sublease. However, for the Subtenant to take advantage of Clause 1 of Article 618 of the Civil Code, the sublease agreement must have a limited duration that had not expired at the time of the termination of the main agreement. Therefore, if a sublease agreement with an indefinite term exists, the Subtenant will not be able to claim the preservation of the lease relationship. [9]

Third, at the time of exercising the right provided for by Clause 1 of Article 618 of the Civil Code, the term of the sublease agreement must be in effect. Judicial practice explains: "the legislator links the possibility of the subtenant exercising the right to conclude a lease agreement with the owner of the property with the existence of a sublease agreement for the said property at the time of termination of the contractual relationship between the landlord and the tenant". [10] If the sublease agreement had already terminated by the date of the termination of the Main Lease Agreement, the Subtenant has no grounds for concluding a direct agreement with the Landlord.

It should be noted that when considering disputes under Article 618 of the Civil Code, courts apply the rule: if the sublease term expired before the court decision was rendered, the Subtenant's claim may be denied. Since the term of the new lease agreement must not in any case exceed the sublease term, by the time the judicial process concludes, the Subtenant will no longer be able to exercise its right, as it has lost the "legally protected interest" in the consideration of the case. [11]

Fourth, the Landlord's consent granted to the Tenant for the sublease must cover the entire period for which the Subtenant asserts its rights under Clause 1 of Article 618 of the Civil Code. This means the following:

If the Owner specified a final date for the sublease period in the consent, the Subtenant is entitled to exercise the right provided by Article 618 of the Civil Code up to that specified date, but no longer than the remaining term of the sublease;[12]
If the Landlord did not establish an allowed sublease term in its consent, it is implied that the consent extends to the entire lease period, and the Tenant may repeatedly conclude and renew sublease agreements within the lease term. In this case, the Subtenant may claim to conclude an agreement with the Landlord within the remaining term of the sublease. [13]

On What Terms Can a Subtenant Conclude an Agreement with the Landlord?

The terms of the agreement the Landlord concludes with the Subtenant must correspond to the provisions of the Main Lease Agreement that has been terminated (Clause 1 of Article 618 of the Civil Code). Exceptions are made for only two points:

The object of the sublease;
The term (not exceeding the remaining term of the sublease).

Other terms of the Lease Agreement remain by default, as otherwise, the Landlord's interests would be violated. If the Subtenant wishes to exercise its rights to preserve the lease relationship under Clause 1 of Article 618 of the Civil Code, it can compel the Landlord to conclude a lease agreement, but it is not entitled to insist on its own terms, including claiming the preservation of the sublease agreement's provisions. If the Subtenant files a lawsuit against the Landlord to compel the conclusion of a lease agreement specifically on the sublease terms, the court will deny such a claim. [14]

Thus, the law presents the Subtenant with a choice:

Maintain the ability to use the asset legitimately, but on new terms (except for the object and term);
Forego the opportunity to lease the asset if certain positions of the new lease agreement prove unfavorable or simply unacceptable.

It should be noted that the Landlord and Subtenant may go beyond Article 618 of the Civil Code and, by mutual consent, conclude a lease agreement on other terms that are comfortable for both parties and differ from both the Lease Agreement and the sublease agreement. However, this is possible only on a voluntary basis and in the absence of disagreements. In a conflict situation, where the Subtenant exercises its right through compulsion, the rule of preserving the terms of the terminated Lease Agreement applies.

Sometimes Landlords attempt to evade concluding an agreement with a Subtenant, arguing that the area of the objects under the terminated Lease Agreement significantly exceeds the size of the premises provided by the sublease agreement. In such cases, the court preserves the Subtenant's right to conclude a lease agreement regarding that portion of the premises it used under the sublease agreement. [15]

Typically, the main disagreements arise regarding the amount of the rent. Although the new agreement may be unfavorable for the Subtenant, the law protects the Landlord's interests by giving it the opportunity to maintain the same income from the asset that it received under the terminated Lease Agreement.

Rent is an essential term of a lease agreement for a building or structure (Clause 1 of Article 654 of the Civil Code). Therefore, in the absence of an agreed-upon term regarding the payment amount, the lease agreement for the building or structure is considered not concluded. Courts, when considering lawsuits from Subtenants to compel the conclusion of such lease agreements, may refuse to determine the rental rate according to the rules of Clause 3 of Article 424 of the Civil Code (the price "which in comparable circumstances is usually charged for similar goods, works, or services"). If the draft of the disputed lease agreement offered to the Subtenant lacks a clear rental rate, such an agreement is considered not coordinated.[16] Until the parties reach an agreement on the price, the lease agreement cannot be concluded, and the Subtenant will have to vacate the asset until the issue is finally resolved. [17]

A Subtenant may be denied the demand to conclude a lease agreement if the Landlord lacks the objective capability to transfer the property. For example, in the case of the physical destruction of the asset. [18]

A situation may arise where, after the termination of a lease agreement, the Landlord finds a new tenant and concludes an agreement with them. If desired, the Subtenant may conclude a sublease agreement with the new tenant. However, this case would no longer fall under the regulation of Clause 1 of Article 618 of the Civil Code, meaning the Subtenant would lose the right to conclude a direct agreement with the Landlord on the terms of the terminated Lease Agreement. [19]

What if the Main Lease Agreement was Concluded via Auction?

The law establishes a general rule: the conclusion of lease agreements for state or municipal property is carried out based on the results of competitive procedures (auctions in the form of a tender or auction). According to Part 1 of Article 17.1 of Federal Law No. 135-FZ dated July 26, 2006, On Protection of Competition (the "Law No. 135-FZ"), "the conclusion of lease agreements, gratuitous use agreements, trust management agreements for property, and other agreements providing for the transfer of possession and (or) use rights in relation to state or municipal property not assigned under the right of economic management or operational management, may be carried out only based on the results of tenders or auctions for the right to conclude these agreements". This rule is formalized in the clarifications of the Supreme Arbitration Court of the Russian Federation regarding leases: in accordance with Clauses 1 and 3 of Article 17.1 of the Law No. 135-FZ, Article 39.6 of the Land Code of the Russian Federation, Article 73.1 of the Forest Code of the Russian Federation, as well as in other cases, compliance with competitive procedures is necessary to conclude a lease agreement. [20]

If property is transferred into a lease without conducting auctions, the agreement is void (Clause 2 of Article 168 of the Civil Code), as it violates public interests and the legally protected rights of third parties — potential tenants. The Law No. 135-FZ provides for exceptions to this rule. In particular, if the lease right is granted on the basis of federal laws establishing a different procedure for disposing of such property (Point 1 of Part 1 of Article 17.1 of the Law No. 135-FZ).

FAS Russia has provided clarifications twice regarding the conduct of auctions when transferring property into a lease based on Clause 1 of Article 618 of the Civil Code — in 2009 and 2011. [21] The position of FAS Russia unequivocally states that concluding such an agreement does not require auctions and does not violate antimonopoly legislation, as the situation is an exception provided for in Point 1 of Part 1 of Article 17.1 of the Law No. 135-FZ. FAS Russia notes that for exemption from competitive procedures, a combination of the following conditions is necessary:

The agreement with the Subtenant is concluded due to the early termination of a lease agreement;
The agreement with the Subtenant is concluded for the property that it used in accordance with the sublease agreement;
The agreement is concluded within the remaining term of the sublease;
The agreement is concluded on terms corresponding to the terms of the terminated Lease Agreement.

That is, when the situation clearly falls under Clause 1 of Article 618 of the Civil Code, and the terminated Lease Agreement between the Landlord and Tenant was concluded via auction, the Landlord is not obliged to conduct auctions to conclude a direct lease agreement with the Subtenant. This approach has been actively supported by judicial and antimonopoly practice, recognizing as lawful an agreement with a Subtenant who asserted its right to maintain the lease relationship outside of competitive procedures. [22] Refusals by Rosreestr to state-register sublease agreements concluded under Clause 1 of Article 618 of the Civil Code without auctions are unlawful and are successfully challenged in court. [23] Judicial instances justify their decisions by citing the aforementioned FAS Russia clarifications, noting that the essential terms of the lease agreement remained unchanged, [24] and "the sublease right is derived from the lease right obtained through compliance with competitive procedures". [25]

An exception to the uniform law enforcement practice is the decision of the cassation instance of the Ural District, which in 2015 recognized as illegal the transfer of property into a lease based on Clause 1 of Article 618 of the Civil Code without auctions. In the court's view, the specified norm is not among the exceptions provided by Part 1 of Article 17.1 of the Law No. 135-FZ, as "the possibility of concluding a lease agreement with a subtenant without complying with the procedure established by antimonopoly legislation is not provided for".[26] By formalizing a lease agreement outside of the auction procedure, the Landlord, according to the court, granted the Subtenant an advantage in the market and ensured favorable business conditions. This precedent is rather an exception to the general trend. Generally, judicial and antimonopoly authorities recognize the possibility of concluding a direct lease agreement with a Subtenant based on Clause 1 of Article 618 of the Civil Code without auctions, provided other legal requirements are met.

It should be taken into account: if such an agreement is concluded for a term exceeding the sublease agreement, the Landlord's actions are regarded as a violation of antimonopoly legislation. From the moment the sublease term expires, the "protective" regime of Article 618 of the Civil Code ceases, and for the entire subsequent period, property may be leased only based on the results of competitive procedures. [27]

Property Remains with the Subtenant After Lease Termination – To Return or Not to Return?

After the termination of the Main Lease Agreement, the Subtenant often continues to use the property. There may be various reasons for this behavior:

The Subtenant is unaware of the termination of the Main Lease Agreement and that the sublease has also terminated. As already noted, the Landlord is not obliged to notify the Subtenant of this circumstance. As for the Tenant (Sublandlord), it may intentionally hide the information from the Subtenant with the aim of enriching itself through illegal sublease payments.
The Subtenant knows about the lease termination but erroneously interprets the legal nature of the situation in its favor, believing that the sublease agreement has not terminated and that it has the right to continue using the asset (for example, applying the rules on the change of a party to the agreement by analogy).
The Subtenant knows about the termination of the Main Lease Agreement and understands that the sublease has ended. However, it intends to exercise its right and conclude an agreement with the Landlord based on Clause 1 of Article 618 of the Civil Code. The process of coordinating a new agreement takes a certain amount of time, as the parties may have disagreements over individual terms. Furthermore, the Landlord may simply evade concluding it. The Subtenant is ready to defend its interests and plans to legalize the period of actual use after all disputed issues are settled; therefore, it does not wish to vacate the asset.

In any case, regardless of the Subtenant's intentions, its good or bad faith, the use of subleased property after the termination of a lease agreement is illegal. By virtue of Article 622 of the Civil Code, after the termination of a lease agreement, the Tenant is obliged to return the property to the Landlord; this rule also applies to subleases. [28]

The law enforcement practice on this issue is uniform: since the termination of a lease agreement automatically terminates sublease relations, the Subtenant has no right to withhold the asset, and lawsuits for eviction and the return of property are satisfied by the court. [29] Courts explain that Clause 1 of Article 618 of the Civil Code allows the Subtenant to protect its interests but does not grant the right to extra-contractual use of the property.[30]

An exception to the general rule is the financial lease agreement — leasing (Article 665 of the Civil Code). A practice of the Supreme Arbitration Court of the Russian Federation has formed that rejects the lessor's demands against the sub-lessee for the return of property transferred under a sub-leasing agreement. The courts take into account the peculiarity of financial leasing, which allows for the possibility of the transfer of ownership of the property to the lessee (sub-lessee) after the expiration of the lease term and the payment of all leasing fees. [31] Therefore, if such a condition is embedded in the agreement, the lessor, after the termination of the main agreement, does not have the ability to reclaim the property from the sub-lessee, even if the latter did not send an official appeal on this matter. "Taking into account the peculiarity of the leasing agreement, the sub-lessee's failure to appeal to the lessor to conclude a lease agreement with it does not indicate the possibility of reclaiming the leased property from the sub-lessee and the loss of its opportunity to subsequently acquire the property as owner". [32]

The procedure for returning property that the Subtenant continues to use is often accompanied by the following questions:

Who is entitled to present the return demand to the Subtenant — the Landlord or the Tenant? The Tenant cannot reclaim the property, as after the termination of the lease agreement, it has already lost the status of the legal possessor of the asset and is not a party to the agreement. Accordingly, the Landlord possesses the right to reclaim the asset from someone else's illegal possession. [33]
Against whom should the Landlord bring the demand for the return of property withheld by the Subtenant — the Tenant or the Subtenant? In law enforcement practice, there is no single algorithm of actions in such a situation; therefore, the Landlord may reclaim its property from either of the specified persons. If the Subtenant actually uses the property, it would be fairer and more effective to bring the demand specifically to it. However, courts may satisfy a claim directed at the Tenant because, formally, it was the party to the lease agreement and bears the obligation to the Landlord to return the property. [34]

The transfer into lease and the return of property are formalized by a certificate of acceptance and transfer. This is an established business custom, and for the lease of buildings and structures, it is a direct requirement of the law. In accordance with Clause 1 of Article 655 of the Civil Code, "the transfer of a building or structure by the landlord and its acceptance by the tenant shall be carried out under a transfer certificate or another document on transfer signed by the parties. Unless otherwise provided by law or the lease agreement for the building or structure, the landlord's obligation to transfer the building or structure to the tenant shall be considered fulfilled after it is provided to the tenant for possession or use and the parties sign the relevant transfer document". A similar rule applies when returning the asset.

However, judicial practice takes a flexible approach to this issue, stating that the certificate of acceptance and transfer is not the only admissible evidence of return, and the absence of such a certificate does not yet confirm actual use of the property.[35]

Thus, the Subtenant’s primary task is to return the asset to the legal right holder as soon as it receives information about the termination of the sublease based on Clause 1 of Article 618 of the Civil Code. It is also in the Subtenant’s interest to formalize a document that can confirm the fact of the return with the exact date of this event.

A Subtenant who has returned the asset and intends to exercise its right to conclude a direct agreement with the Landlord may have concerns about the property's future fate. The Owner might, without waiting for the resolution of disagreements, sell the asset, lease it to another person, or otherwise dispose of it. For example, it might carry out redevelopment or reconstruction of the premises. In this case, a Subtenant who has applied to the court with a lawsuit to compel the conclusion of an agreement is entitled to protect its interests through injunctive relief:

Prohibiting the Owner from taking actions to dispose of the disputed property;
Prohibiting Rosreestr from performing registration actions (when the asset is real estate).

Courts satisfy such motions because injunctive relief aims to maintain the balance of interests of interested parties and does not prevent the Owner from possessing and using the property. [36]

Who, to Whom, and How Much Should be Paid if the Subtenant Continues to Use the Property?

As already noted, after the termination of the Main Lease Agreement, the Subtenant is obliged to return the property. If the Subtenant continues to use the asset, it incurs an obligation to pay for the actual use. Furthermore, the withholding of property by the Subtenant may lead to various types of damages for both the Landlord and the Tenant. At least three parties are involved in this situation: the Landlord, Tenant, and Subtenant. Often, other participants are involved in the dispute. For example, a new tenant to whom the Owner leased the asset, or a new owner to whom the Landlord sold the property after the termination of the lease agreement. A clear and unambiguous algorithm for their interaction when collecting payments for the use of property is not established in the law. Therefore, if the Subtenant refuses to return the property after the early termination of a lease agreement, the following questions arise:

Who is entitled to present the Subtenant with a demand for payment for the use of the property — the Landlord or the Tenant?
Against whom should the Landlord bring the demand for payment for the use of property that the Subtenant fails to return—the Tenant or the Subtenant?
How is the fee for the actual use of property withheld by the Subtenant determined?
Is it possible to bring a solidary claim against the Tenant and the Subtenant?

Let us consider the most common scenarios and analyze how the participants can protect their financial interests and which recovery tools are the most promising.

Scenario 1. The Landlord (or Owner) brings a demand against the Tenant with whom the lease agreement has been terminated.

This possibility is embedded in Article 622 of the Civil Code. If the Tenant does not return the property, the Landlord is entitled to demand:

Payment of the rent for the entire period of actual use;
Compensation for damages if their amount exceeds the collected rent;
Payment of contractual penalties for the late return of property.

When the Owner brings a demand against a former Tenant, the price for the period of actual use of the property is determined in accordance with the rent amount that was established in the terminated lease agreement. [37] This is because such demands are considered to arise from contractual relations and do not constitute unjust enrichment.[38]

When bringing demands against the Tenant, it must be taken into account that the lease agreement with it has already been terminated. If a bona fide Tenant has vacated the asset and notified the Subtenant of the termination of the sublease agreement, it no longer has formal grounds for reclaiming the property from the Subtenant, as it is neither the Owner of the property nor a party to the agreement. Therefore, holding it responsible for the illegal actions of the Subtenant would be unfair. It is advisable for the Owner or Landlord to bring claims against the Tenant only in the event of its bad-faith behavior, for example:

If the Tenant failed to take measures to terminate the sublease agreement, i.e., did not notify the Subtenant and continues to sublease the property and receive sublease payments without legal grounds;
If the Tenant terminated the sublease agreement but actually uses the property together with the Subtenant, i.e., participates in its withholding.

In practice, Landlords often bring a demand for the return of the asset and payment for its use even against a bona fide Tenant who timely notified the Subtenant, terminated the sublease agreement, and does not participate in the withholding of the property. In such a case, the Tenant is entitled to pass on the incurred financial losses (payments made to the Owner or Landlord) to the Subtenant by bringing a demand for compensation of damages. The reasoning for such a demand is as follows: [39]

The Subtenant's failure to fulfill the obligation to return the property deprived the Tenant of the opportunity to timely transfer it to the Landlord;
Due to the Subtenant's failure to return the property, the Tenant was forced to pay the Landlord for actual use, despite the fact that the lease and sublease agreements were already terminated. Thus, the Subtenant's actions are in a causal relationship with the Tenant's damages.

Scenario 2. The Landlord (or Owner) brings a demand against the Subtenant.

If, after the termination of the lease and sublease agreements, the Subtenant continues to use the property, the Landlord is entitled to demand payment for the actual use directly from the Subtenant. The legal protection mechanism in this case will differ from the mechanism used when collecting payment from the Tenant.

The Subtenant's behavior is regarded as unjust enrichment at the Landlord's expense; therefore, recovery occurs according to the rules of Articles 1102 and 1105 of the Civil Code. [40]

The concept of unjust enrichment is as follows. A person who has illegally acquired or saved property at the expense of another person is obliged to return the unjustly acquired or saved property (Clause 1 of Article 1102 of the Civil Code). According to Clause 2 of Article 1105 of the Civil Code, a person who illegally used someone else's property without the intent to acquire it must compensate the victim for what it saved as a result of such use, at the price existing at the time the use ended and in the place where it occurred (i.e., at market price).

Unjust enrichment should be distinguished from damages. Damages are understood as the victim's expenses in connection with the loss or damage of property, as well as unearned income (Clause 2 of Article 15 of the Civil Code). Compensation for damages is a measure of liability. Unjust enrichment, on the other hand, implies the enrichment of one person at the expense of another.

Thus, the Landlord’s demand for payment for use against the Tenant and a similar demand against the Subtenant differ in:

The legal instrument of protection. The demand against the Tenant is contractual, while the demand against the Subtenant has the character of unjust enrichment.
The method of calculating the payment. The Tenant pays at the contractual rate; the Subtenant pays at the average market price established for the property at the time the use ceases and taking into account the place of use (for example, the region).

The Subtenant is obliged to pay for the entire period of actual use. Even if the property is subsequently leased or subleased to it again, the period of extra-contractual use from the moment of the sublease agreement's termination until the conclusion of a new sublease agreement with it must be paid to the Landlord according to the rules of unjust enrichment. [41]

In judicial practice, there are various ways to determine the amount of payment collected from the Subtenant in this situation:

The payment is determined based on the rate under the Main Lease Agreement that was terminated early.[42] This method can be called the most common.
If the Landlord leased the property to another person after the termination of the lease agreement, the fee from the Subtenant may be collected based on the rate established by the new lease agreement. [43] This method is effective because it allows for determining the amount of unjust enrichment at the moment the Subtenant ceases to use the property.
The payment is determined based on the rate under the sublease agreement concluded with the Subtenant. [44] A precedent exists where, after the termination of the lease and sublease agreements, the Subtenant continued to actually use the asset while making payments for use at the rate established by the sublease agreement. This rate was lower than the payment under the terminated Main Lease Agreement. The Landlord demanded that the Subtenant pay it unjust enrichment in the form of the difference between the rates of lease and sublease payments. The court denied the demand: "since the lease agreement was not concluded after the termination of the sublease agreement, the subtenant did not assume the obligation to make lease payments in an increased amount; the subtenant, after the termination of the lease and sublease agreements and until the vacation of the premises, has an obligation to make the lease payment agreed upon in the sublease agreement". [45]
Sometimes courts use a general regulatory approach, applying the principle of payment "at the price existing at the time the use ended and in the place where it occurred". [46] This implies that the price is determined based on the rental rate for similar objects. [47]

In addition to the fee for actual use, the Landlord may collect interest from the Subtenant for the use of someone else's funds (Article 395 of the Civil Code). In accordance with Part 2 of Article 1107 of the Civil Code, such interest is accrued on the amount of the unjust monetary enrichment from the moment the Subtenant learned or should have learned of the termination of the lease and sublease agreements.

Scenario 3. The Owner brings solidary claims against the Tenant and Subtenant.

According to Clause 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 73 dated November 17, 2011, On Certain Issues of the Practice of Applying the Rules of the Civil Code of the Russian Federation on the Lease Agreement (the "Plenum No. 73"), if property is leased by a person who is not the owner and does not have the right to transfer it into a lease, the owner may recover from such a landlord all income received from the illegal lease. Such a demand may be brought only against a bad-faith landlord who knew about the illegality of its actions. The Owner is entitled to bring a solidary claim against the person to whom the property was illegally leased or subleased (i.e., the Tenant or Subtenant).

Thus, in certain cases, the Owner may solidarily reclaim from the Tenant and Subtenant the income (sublease payments) received during the period of the Subtenant’s illegitimate use of the property. [48]

Such demands are brought under Article 303 of the Civil Code, which grants the Owner the right to recover all income that a person who illegally possessed the property received or should have received during the period of possession. If the possessor is bona fide, the income is not compensated for the entire period, but from the moment it learned or should have learned of the illegality of the possession or received the Owner's legal claim for the return of the property. The recovery provided for by Article 303 of the Civil Code should be distinguished from other types of monetary claims:

These funds are not a fee for actual use, as they are regulated by other norms and calculated in a different way. For actual use, the Tenant compensates the Landlord with a fee in the amount of the terminated Lease Agreement, while the Subtenant pays at the market price according to the rules of unjust enrichment;
These funds are not damages to the Owner. If the Owner suffers damages during the period of illegal possession (for example, property is damaged or lost), they may be recovered via a separate claim;
These funds are not unjust enrichment. Clause 12 of the Plenum No. 73 states that the provisions of Article 303 of the Civil Code are a special norm and take priority over the general rules of unjust enrichment.

To bring a solidary claim against the Tenant and Subtenant after the termination of the lease and sublease agreements under Article 303 of the Civil Code and Clause 12 of the Plenum No. 73, a combination of the following conditions is simultaneously required:

Bad-faith behavior of the Sublandlord, i.e., the absence of rights to transfer the asset into a sublease. For example, when the Tenant, after the termination of the lease agreement with it, did not terminate the sublease agreement and continued to receive income from the Subtenant, or when the Tenant initially concluded the sublease agreement without the right to do so (i.e., without the Owner’s consent);
Bad-faith behavior of the Subtenant, i.e., awareness that the sublease was illegal. The Subtenant will bear solidary liability with the Sublandlord from the moment it learns that the sublease agreement has terminated;
The bad-faith Sublandlord received payments from the bad-faith Subtenant under the sublease agreement;
Only the Owner of the property is entitled to bring such a demand.

When recovering income under Article 303 of the Civil Code, the Owner also has the right to receive interest for the use of someone else's funds under Article 395 of the Civil Code.

Scenario 4. The Tenant brings a monetary demand against the Subtenant.

After the termination of the Main Lease Agreement, the Tenant is not entitled to demand any payment from the Subtenant for the use of the property. Since the Tenant has lost its status as a Sublandlord, it has no right to receive contractual payments. The Tenant will also be unable to bring extra-contractual claims in the form of unjust enrichment against the Subtenant, because from the moment the Main Lease Agreement terminates, the Landlord becomes the Subtenant’s creditor. [49] Courts protect the Landlord’s interests even if the Subtenant continued to make payments to the Tenant after the termination of the agreement, reasoning that the Tenant lacks grounds to accept such payment.[50]

Thus, the monetary demands that the Tenant can bring against the Subtenant after the termination of the lease and sublease agreements are reduced to the recovery of damages incurred by the Tenant due to the Subtenant’s refusal to return the property. Typically, these damages are the payments the Tenant was forced to pay at the Landlord's request.

The Subtenant, in turn, has the right to demand from the Tenant the return of overpaid funds that were transferred by it under the sublease agreement (for example, an advance payment). Such payment is qualified as unjust enrichment. [51] This rule does not apply when the Subtenant, during the period of actual use, transferred payments to an unauthorized Tenant, as such a situation is regulated by Clause 12 of the Plenum No. 73. If the Tenant initially lacked the right to transfer the asset into a sublease or bad-faithly continued the sublease relationship after the termination of the Main Lease Agreement, the Subtenant loses the right to the return of payments. Further settlements between the parties may already be carried out within the framework of demands for recovery of damages or unjust enrichment.

Key Conclusions and Insights

In concluding the article, it can be inferred that the mechanism provided by Clause 1 of Article 618 of the Civil Code aims for the balanced protection of the interests of both the Landlord and the Subtenant. The Subtenant receives the opportunity to use the property for as long as it planned when concluding the sublease agreement. The law obliges the Landlord to conclude an agreement with a bona fide Subtenant but gives it the opportunity to maintain the terms that were provided for in the terminated Lease Agreement and, accordingly, were acceptable to it. Implementing Clause 1 of Article 618 of the Civil Code requires a compromise from both sides: the Landlord will be forced to lease the property again, and the Subtenant will have to accept contractual terms that are new to it (primarily regarding the amount of the rent).

To minimize disagreements and risks arising from the termination of a lease agreement, participants in lease relations should consider the "pitfalls" of this situation and, if possible, address them in the agreement, as well as in the process of interacting with each other.

Insights for the Landlord

In the lease agreement, impose an obligation on the Tenant to promptly notify the Subtenant of the early termination of the lease agreement and the need to return the property;
Provide in the lease agreement for a penalty against the Tenant for late return of the property, even if it was transferred under a sublease agreement;
Formalize the return of property with a certificate of acceptance and transfer indicating the exact date — this will not only record the Subtenant's fulfillment of its obligation but also allow for the correct calculation of the period for recovering funds;
When granting consent to the Tenant for the sublease, detail the Subtenant's use of the property as much as possible (compliance with the intended purpose and rules of operation, performance of repairs, etc.). This will help the Landlord subsequently reject the claims of a bad-faith Subtenant to conclude a direct agreement;
If the Landlord wants to ensure continuous rental income in the event of its unforeseen termination, it can include a clause in the lease agreement stating that the sublease agreement does not terminate but remains in effect. However, this is advisable only when the Landlord is certain that the terms of the sublease agreement will suit it. To achieve this, it should provide for them in advance in the consent for the sublease.

Insights for the Tenant

In the sublease agreement, state that early termination of the lease agreement, regardless of the reasons, entails the termination of the sublease. If the Landlord and Tenant have agreed that the sublease remains in effect after the termination of the lease, this clause must be reflected in the sublease agreement;
The Tenant is obliged to promptly and officially notify the Subtenant of the early termination of the Main Lease Agreement, as well as the resulting consequences — that is, that the sublease is also terminated (specifying the term). From the specified date, the Tenant is no longer a party to the agreement, and sublease payments cease to accrue;
Send the Subtenant a demand to return the asset with a specified term, and take all actions depending on the Tenant to ensure its return. It is desirable to notify the Landlord in writing that the property is in the Subtenant's actual possession and inform it of the measures taken by the Tenant to resolve the situation;
From the moment the lease agreement terminates, the Tenant must not collect from the Subtenant payments under the sublease agreement or fees for actual use (unjust enrichment). All settlements occur in the regime of compensation for damages.

Recommendations for the Subtenant:

When concluding a sublease agreement, one should ensure the Landlord's consent for the sublease exists and familiarize oneself with its terms;
Provide in the sublease agreement for the Sublandlord's obligation to promptly notify the Subtenant of the early termination of the lease agreement;
Upon receiving information about the termination of the lease and sublease agreements, the Subtenant is obliged to immediately return the asset, recording this with a certificate of acceptance and transfer. It is desirable to return the property directly to the Landlord. Transfer to the Tenant is possible considering specific circumstances, for example, if the Landlord for some reason does not respond or interacts slower than the Tenant. It is in the Subtenant's interest to end the period of extra-contractual use as quickly as possible. An exception is the situation where a clause stating that the sublease remains in effect is included in the lease agreement;
From the moment the lease agreement terminates, the Subtenant should not pay the sublease fee to the Tenant. If the Subtenant continues to withhold the property, monetary demands for payment for use must come from the Landlord;
If the Subtenant intends to conclude an agreement with the Landlord, the initiative must come from the Subtenant. It sends the Landlord an appeal to exercise its right according to Clause 1 of Article 618 of the Civil Code;
When concluding a direct agreement with the Landlord, the Subtenant must be ready to accept the terms of the lease agreement (except for the duration and the subject of the lease). If the specified agreement does not suit the Subtenant, it will not be able to compel the Landlord to conclude an agreement on its own terms. In this case, the protection mechanism provided by Clause 1 of Article 618 of the Civil Code will remain unimplemented.

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