The situation seems to be simple. Mansions for the preservation of historical heritage and restoration of architectural monuments (according to the Federal Law of June 25, 2002, 73-FZ "On objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation") were leased with the obligation to restore them. As a bonus, tenants paid a preferential rate after the restoration of the object.
Now the program for the preservation of cultural heritage sites is under threat. Tenants are being evicted from the restored monuments, and the mansions are planned to be sold at auction. In such circumstances, the program for the preservation of historical heritage is unlikely to remain attractive to investors.
Even the “Charitable Foundation for the Protection and Proper Maintenance of Cultural Heritage Sites” fell under the action of evicting tenants. “Everything happened under the cover of secrecy,” says Grigory Ivanov, president of the charitable foundation, which is located in the estate of N.G. Grigoriev.
The representatives of the foundation found out by chance that they would soon become homeless. “Nobody asked our opinion, nobody came to us with a check,” comments Grigory Ivanov. - Our lawyers accidentally found the decisions of the Government Commission, laid out in the public domain. And they could have found out about this already in court. " Historical mansion - Grigoriev's house-estate (1st Kadashevsky lane, 10, bldg. 1) "The Charitable Foundation for the Protection and Proper Maintenance of Cultural Heritage Objects" received 12 years ago under a contract of gratuitous use from the Federal State Budgetary Institution of Culture "Management Agency and the use of historical and cultural monuments ”.
House-estate of Grigoriev (right), early 1980s / Photo: a-dedushkin.livejournal.com
“We do not lease premises - our charitable foundation holds art exhibitions, a children's theater studio, concerts and performances. I understand if, as a result of the inspection, any serious violations were discovered: for example, we would rent out premises and receive a lot of money for this, or did not maintain the building in proper condition. But no one checked us, - says Grigory Ivanov. - It remains only to assume that someone liked Grigoriev's house-estate ”.
According to him, the foundation's lawyers tried to investigate how Grigoriev's house-estate got into the plans of the Government Commission. This happened on December 30 last year at a meeting in absentia of the commission, previously the object was not there.
1st Kadashevsky lane in 1996 (Grigoriev's house-estate - the first house on the right) / Photo: Guaglione / pastvu.com
Now the foundation has three court cases, two of them were initiated by the charitable organization itself. The Fund disputes the decision of the Government Commission and the order of the Federal Property Management Agency. The eviction case has been suspended pending consideration of these cases.
“It turns out that Dom.RF can poke a finger into any object and take it away? - asks the president of the charitable foundation. “I have before my eyes the history of the company that carried out the reconstruction of the historic building, and it is also being evicted.”
As clarified in JSC Dom.RF, real estate objects owned by the Russian Federation, in respect of which the Government Commission endowed JSC Dom.RF with agency powers, were often encumbered by lease or gratuitous use agreements with third parties.
The fact of the existence of such agreements, emphasize in JSC "Dom.RF", testifies to the ineffective management of federal property. "Unnecessary and not used by federal authorities objects are leased to third parties, who often sublet them, making significant profits from the use of federal property," says the official response of Dom.RF to Tsian.Zhurnal.
According to the state company, it is the ineffective use of federal property that is the reason why the Government Commission makes decisions on the expediency of transactions for the alienation of property from federal property to private property at an open auction (transactions are authorized to be made by Dom.RF JSC).
At the same time, the state-owned company could not give examples when a historical mansion - an object of cultural heritage was subleased to third parties and the tenant would have made a profit using state property.
Nevertheless, “court practice on claims of JSC“ Dom.RF ”on termination of lease agreements is uniform, and comes down to satisfying claims of JSC“ Dom.RF ”, - this is how they commented on the situation regarding the eviction of tenants at the request of Cyan.Zhurnal. “There have been no precedents in practice when the judicial authorities refused to terminate such agreements.”
Dispute about the "preferential rate"
Maykov House / Photo: NataliP111 / wikimapia.org
As an example, a tenant of a mansion who pays at a reduced rate, Dom.RF cites LLC Gorodissky & Partners Law Firm. The company leases Maykov's house (Bolshaya Spasskaya str., 19a, bldg. 1) on the basis of a security lease agreement. For a mansion with an area of 1407.1 sq. m law firm pays 107,529
rubles 90 kopecks per month (according to information from JSC Dom.RF).
The average rental price for historic mansions in the center of Moscow is much higher. According to the estimates of the international consulting company CBRE, it is 30-35 thousand rubles per 1 sq. M. m per year. Now the tenant company pays at a preferential rate of only about 1,000 rubles per sq. M. m per year.
Maykov House / Photo: gorodissky.ru
But the tenant received the right to a preferential rate for carrying out restoration work on the architectural monument, which cost him 233,538,729 rubles 25 kopecks (documents confirming the cost of the work are at the disposal of the editorial office).
As a result of the restoration, the historical appearance of the mansion of the beginning of the 19th century with elements of the 1780s was completely restored, and the foundation of the building was raised by 80 cm.The quality of the work performed is evidenced not only by the conclusion of the Ministry of Culture (available in the edition), but also by the fact that the project restoration was included in the collection "100 examples of successful scientific restoration of the XXI century" Moscow, which is "".
Mansion on the plan of 1833 / Image: gorodissky.ru
According to the documents provided by Gorodissky & Partners Law Firm LLC, the preferential rental rate was established only at the end of 2013, when the rent was reduced from 5,075,411.42 to 1,522,623.38 rubles per year. Thus, over the seven years starting from 2014, the company compensated only 24,869,516.28 rubles (3,552,788.04 × 7), that is, about 10% of all costs incurred.
Nikolay Andrianov, partner of the Trubor Law Firm, believes that the situation when the state in court demands to terminate the lease agreement if the tenant properly fulfills the terms of this agreement, in fact, means the seizure of the property from the tenant.
In accordance with part 3 of Article 35 of the Constitution, no one can be deprived of their property except by a court decision. At the same time, “property” in this case means not only property belonging to a person on the basis of the right of ownership, but also property rights, including the right to lease, Nikolai Andrianov points out.
“The fact that the state has a formal right to seize property is not yet a sufficient condition for such seizure, which is logical, since the state itself adopts laws establishing the grounds and procedure for the seizure of property.
Property can be seized only if the court establishes that it is really necessary to satisfy the public (public) interest, and that without such seizure it will be impossible to satisfy this public (public) interest ”.
partner of the law firm "Trubor"
The lawyer recalls that even if the court comes to the conclusion that the withdrawal of the object from the tenant is justified, such withdrawal by virtue of part 3 of Article 35 of the Constitution of the Russian Federation is permissible only on condition of preliminary compensation to the tenant for all losses caused by the early termination of the lease agreement.
COMPENSATION FOR DAMAGES
Moreover, as such losses, the lessee must be reimbursed not only for the costs incurred by him in connection with the restoration of the cultural heritage object, but also:
expenses for finding a new premises, moving;
the difference between the rates of rent that he pays under the current lease agreement and will be forced to pay for the lease of the new premises;
any other damages, including loss of profits.
Without compensation for such losses, early termination of the lease agreement would contradict part 3 of Article 35 of the Constitution of the Russian Federation.
“By and large, everything that was spent on reconstruction, with the exception of the profit received from the ownership of the object, can really be reimbursed,” agrees Sergei Sergeev from the Moscow Bar Association “Arbat”. - Yes, this will most likely have to go a long way in arbitration, but there are chances of success. "
Early termination of contracts with the subsequent eviction of tenants from old mansions, cultural heritage sites, JSC "Dom.RF" relies on the goals established by Art. 1 161-FZ, namely: assistance in the development of housing construction and the formation of an affordable housing market, as well as assistance in other development of territories, including the creation of industrial parks, technology parks, business incubators, comments Anna Savkunova, a lawyer at Dentons.
It is not obvious how exactly the sale of cultural heritage objects (which cannot be demolished or reconstructed - it is only permissible to carry out work on their preservation) will contribute to the implementation of the goals of JSC Dom.RF, other than simply serving as a source of funding, the lawyer says.
Nikita Filippov, Head of the De Jure Law Office, Honorary Lawyer of Russia, expresses his point of view: “Since the object (the historical mansion - Ed.) Has been built and exists for a long time, its transfer from a bona fide tenant to an unknown person (it has already been announced that the mansions will be sold at auction - anyone can become their new owner) has nothing to do with achieving the goals of the law on promoting housing development. In my opinion, therefore, there are chances to recognize the relevant decision of the competent authority as illegal.
the interdepartmental collegial body nominated by the government of the Russian Federation, on the basis of which JSC "Dom.RF" is filing a claim for termination of the lease agreement. "
In accordance with the current legislation, explains Maksim Alekseev, a lawyer, a lawyer of the real estate and investment practice of the Kachkin and Partners law firm, the transfer of ownership of property to another person is not a basis for the termination of other property or liability rights in relation to such property.
THE TRANSFER OF OWNERSHIP TO THE RENTED PROPERTY TO ANOTHER PERSON SHALL NOT BE THE GROUNDS FOR TERMINATION OR AMENDING THE LEASE AGREEMENT, EXCEPT THE AMENDMENTS IN THE CONTRACT INFORMATION ABOUT THE RENTAL STANDARD 617 OF THE RENTAL STANDARD.
The lease of an object of cultural heritage was initially determined by the public (public) interest, which is expressed in the preservation of this object (part 3 of Article 44 of the Constitution of the Russian Federation). In Russian judicial practice, there have already been several cases when the highest courts have pointed out the inadmissibility of opposing some public interests to others, Nikolai Andrianov recalls.
For a long time, the state tried to save the crumbling monuments of architecture, persuading investors to purchase such objects for long-term lease on favorable terms ("for a ruble") - in exchange for the tenant's obligation to preserve the monuments, the Kachkin and Partners company notes.
However, few were tempted by such an offer. Firstly, because of the difficulties with the preparation and implementation of works to preserve cultural heritage sites. Secondly, the high cost of such work frightened off.
AND, AS EKATERINA KANAYEVA, LEADING LAWYER OF THE PRIORITET LEGAL COMPANY SUMMARIZES, THERE IS A RISK OF FORCED TERMINATION OF A LONG-TERM LEASE BY THE PUBLIC AUTHORITIES.
“Apparently, Dom.RF will also play its role in driving the last nail into the coffin lid, with claims to terminate lease agreements against tenants who are conscientiously fulfilling their obligations to restore and maintain historical mansions,” says Maxim Alekseev from the law firm Kachkin & Partners.
The risk of losing investments and lease rights will definitely discourage potential investors from restoring monuments that are in disrepair. It's a pity.