What happens to seized property. How assets are transferred from the founder to the company without overpaying taxes The landlord does not give away the property of the tenant

Businessmen whose main activity is related to the rental of real estate often face a situation where the tenant has financial difficulties and is unable to pay the rent. Let's talk about how it is better for a merchant to behave in this case, and we will try to give some tips to reduce the risks for the landlord from the use of the property left by the tenant in his favor.

Almost every landlord is familiar with the situation when tenants are unable to pay rent. During a crisis, there are even more such situations, and many of them are associated with the termination of the tenant's activities. Let's consider this situation from a practical point of view and try to give some advice to reduce the risks for the landlord from the use of the property left by the tenant in his favor.

The legal relationship arising from the property left by the tenant can be considered from several positions. In the event that the tenant has unfulfilled obligations, we can talk about the possibility of retaining property (§ 4, Chapter 23 of the Civil Code of the Russian Federation). The tenant's belongings left in the rented premises may be considered as abandoned (Article 226 of the Civil Code of the Russian Federation). In addition, the lessor's actions with the lessee's property can also be qualified from the point of view of acting in someone else's interest without an order (Chapter 50 of the Civil Code of the Russian Federation). Let's analyze each of these bases in detail.

Tenant stopped paying rent

Let's analyze a typical situation for our days when the tenant stops paying rent. At the first stage, the parties will try to resolve this issue during negotiations, perhaps the tenant will be granted a deferment or installment plan for payment, a temporary discount will be made. If the situation does not improve, the landlord will seek to terminate this agreement. As a rule, for such a case, landlords provide for the possibility of unilateral refusal of their obligations arising from the lease agreement, in case of prolonged or repeated violations of the term for paying rent.

If such an opportunity is not provided for by the landlord, he finds himself in a rather difficult situation, since any of his actions in relation to the premises in this case will violate the law that protects the interests of the tenant even against the owner who leased the property to him. In fact, the landlord in this situation has only two ways - to go to court with a request to terminate the lease agreement or wait for the end of its term. Moreover, with regard to short-term contracts, given the time required for litigation, waiting may be a more preferable option. At the very least, it will be possible to save on legal costs.

In accordance with applicable law, the return of the leased property is provided in the same condition, with the exception of normal wear and tear, in which it was received. In relation to real estate, this usually implies the return of the premises free from the tenant's property. In case of early termination of contracts, situations when tenants do not return the premises properly are quite common. That is, the tenant refuses to sign the acceptance certificate and does not vacate the premises from his property in a timely manner. In this case, he is already the violator of the contractual conditions. Since, from a legal point of view, the right of possession and use has already returned to the lessor, he has the right to actually take possession of his own property. In most cases, the landlord has a second set of keys. That is, from a technical point of view, access to the premises does not cause difficulties. From the point of view of proper recording of our actions, we recommend that the commission open the premises with the obligatory drawing up of the relevant act. In the act, among other things, the fact of the absence or presence of the property of the former tenant in the premises is recorded. After the discovery of this property, it is necessary to create an inventory commission, which will determine how much and what was left. All this is necessary to decide what to do with this property next. As we noted above, depending on the actual circumstances, the lessor determines whether he has the right to retain the tenant's property until the moment he fulfills his obligations, whether he should regard the property as abandoned or, in the interests of the tenant, he can sell the property to pay off obligations under the lease agreement or transfer the property for storage third parties.

We hold property

In accordance with Art. 359 of the Civil Code of the Russian Federation, if the debtor fails to fulfill the demand for payment on time, the lessor has the right to retain things until the corresponding obligation is fulfilled. Thus, the right to withholding can be divided into general civil and special (entrepreneurial) ones. General civil - the right to keep an unpaid thing. For example, a dry cleaner has the right not to return a coat belonging to him to the client until payment for the services specified in the contract. The special (entrepreneurial) right of retention is broader. So, if between the lessee and the lessor, in addition to the lease agreement, a supply agreement is also concluded, the lessor has the right to retain the goods to be transferred to the lessee until the lease is paid.

The creditor may retain the thing in his possession, despite the fact that, after this thing came into his possession, the rights to it were acquired by a third party. That is, the sale of all the property remaining in the office in this case cannot help the tenant to rescue the property belonging to him.

For legal retention, three conditions must be met:

the property must be with the creditor (in our case, this is the landlord) legally;
the debtor (in our case, this is the tenant) must have overdue contractual obligations to the creditor;
the property must be owned by the tenant at the time the lien begins.

The tenant, having not exercised his right to export his belongings within the term of the contract, expressed his will by inaction. Therefore, we can say that the transfer of things from one person to another in this case occurs without violating the current legislation. However, two conditions must be met for this to happen. Firstly, the lease agreement must have already been terminated (at the end of the term or terminated), and secondly, the landlord should not have obstructed the removal of property during the term of the agreement. Otherwise, the actions of the landlord will be recognized as unlawful. The illegality of the retention automatically entails the need for damages. This is also confirmed by judicial practice (for example, the decision of the Federal Antimonopoly Service of the East Siberian District of October 08, 2012 in case No. A74-3263/2011).

Note that an unscrupulous tenant may in this situation abuse, for example, by retrospectively concluding a lease or safekeeping agreement for the property left in the rented premises.

By its nature, retention is a protective measure resorted to by the lessor in order to reduce the risks of default on the part of the debtor and protect itself from possible losses associated with improper performance of obligations. The terms during which the lessor may retain the debtor's property are not defined by law. However, the lessor merchant must understand that retention is a rather peculiar and far from ideal way to obtain proper performance of obligations from the lessee. First of all, the problem is that it makes sense to keep only what is of interest to the tenant. If the value of the property is obviously lower than the amount of the debt, or if the property, although comparable in value to the amount of the debt, has low liquidity and is not vital for further activities, the tenant has no economic interest in buying it out. And consequently, the landlord runs the risk of getting into his hands property that requires expenses for its maintenance, and a lawsuit against the tenant with an unclear result in relation to the final recovery.

Transferring to third parties

Retained property, as a rule, is kept by the lessor, although the current legislation does not prohibit transferring it to third parties for safekeeping. Moreover, in practice, the fact of storage does not exclude the possibility of using the property for its intended purpose. Together with the lack of time limits for retention, this can lead to the fact that the property will be in actual possession for an indefinitely long period. Moreover, even if the tenant remembers this property later, he is unlikely to be able to recover any losses. Judges also adhere to this position (for example, the decision of the Federal Antimonopoly Service of the Far Eastern District of June 10, 2013 No. F03-2102/2013 in case No. A73-11952/2012).

Sell

More precisely, we are trying to sell. Because in this case we are faced with the basic problem of retention. This problem, in our opinion, lies in the cumbersome, complex and rather expensive method of recovering losses from retained property. In accordance with Art. 360 of the Civil Code of the Russian Federation, the claims of a creditor holding a thing are satisfied from its value in the amount and in the manner prescribed for satisfying claims secured by a pledge. Foreclosure on mortgaged property is a rather laborious process. It is possible in court and out of court. However, the satisfaction of the pledgee's claims at the expense of the pledged property without going to court (out of court) is allowed only on the basis of an agreement between the pledgor and the pledgee. Such an agreement may be concluded separately or included in the pledge agreement. The conclusion of an agreement implies the definition of the subject of the agreement, that is, the list of property subject to extrajudicial recovery. Therefore, the possibility of including an agreement on out-of-court foreclosure on the retained property in the lease agreement is controversial. In essence, this means that in practice, without the consent of the tenant, the landlord holding the property does not have the operational opportunity to either turn it in his favor or sell it to third parties. This requires compliance with a rather cumbersome procedure consisting of two stages. Firstly, going to court, and secondly, organizing the sale at public auction. All this takes time and additional financial costs. In addition, if the tenant begins to actively resist, that is, to participate in court hearings, challenge the assessment and use other rights granted to him by the current legislation, the process may be significantly delayed. However, even if this does not happen, and the owner does not show any interest in the fate of the retained property, in the most common cases (when office furniture or remnants of illiquid goods remain in the premises), this procedure is simply unprofitable. As a result, procedural costs will be greater than the amount that can be obtained from the sale of the tenant's property.

With regard to retention, we can draw the main conclusion: the retention of the tenant's thing by law enforcement practice comes down only to stimulating the debtor, inducing him to buy out his thing from the creditor. To do this, there must be an economic interest of the debtor in the possession of this particular thing, otherwise the retention loses its meaning.

abandoned things

Withholding things, which we discussed above, from the position of the landlord is not the best course of action. This method is effective if the tenant is actively making contact and is interested both in the fulfillment of his obligations and in the fate of the retained property. And if this is not the case? Perhaps then a more effective policy would be to recognize things left on the premises as abandoned? At first glance, it is. On the one hand, in most cases, the value of the property left in the premises is not so great, that is, it is not required to go to court. At the same time, its usefulness for the landlord is highly doubtful. In addition, "abandonment" implies a complete refusal of the tenant from the left things. This may be expressed in the lack of response to repeated requests and letters, or it may be directly written in the tenant's response. In all cases, if the tenant shows his interest, there can be only one result - the property will have to be returned. In particular, this position is also reflected in the decision of the Eighth Arbitration Court of Appeal dated September 7, 2010 in case No. A46-1314 / 2010. Thus, the conversion of the property left by the tenant into the ownership of the lessor as abandoned has certain difficulties. First of all, in determining the status of things.

“6.17. The Landlord has the right to consider the Tenant's property left in the premises after the expiration of the lease term as abandoned, if the Tenant fails to notify in a timely manner of his interest in this property.

Actions in someone else's interest

This legal justification for the lessor's actions with the lessee's property located in the leased premises has certain gaps in terms of legal logic. The landlord is not a representative, does not fulfill the order, has not concluded either a commission agreement or an agency agreement with the tenant. The actions of the lessor with the abandoned property of the tenant, under certain circumstances, can be attributed to actions in the interest of others without an order. However, in this case there are a number of features, some of which are absent in the legal structure we are considering. So, in this case, it is assumed that the person in whose favor the actions are performed has legitimate interests. However, the landlord operates under conditions of uncertainty. With a “missing” tenant, the landlord cannot unequivocally determine either his intentions, or whether he has any interest in the property left in the premises, or his actual or probable intentions. One can only assume that the tenant, as the owner, has an interest in the -preservation of his -property.

The parties can partially remove this uncertainty by including an appropriate agreed term in the lease agreement.

“5.2.9. With regard to any goods or other property of the Lessee and / or any separable improvements that are not removed by the Lessee after the expiration of the Lease Term and in violation of clause 5.2.8 of this Agreement, the Lessor has the right to remove them from the premises and store them independently or transfer them to third parties.

All expenses incurred by the Lessor in the course of such removal and storage shall be reimbursed by the Lessee.

The main problem in this case, as with retention, is the assumption that the tenant has an interest in the property left by him. If there is no such interest, then the result will be the same as with the retention of property - additional expenses of the lessor without clear prospects for their reimbursement.

To minimize the risks in this case, it is possible to provide in the contract for the option of selling the abandoned property. In this case, if the tenant has a debt, the lessor withholds funds to pay off obligations from the funds received. - The rest is transferred to the tenant.

What's the best way to do it?

Many lessor merchants have a question: “What is the best thing to do if the tenant has disappeared and abandoned his property?”. This question is heard quite often. So, based on the established practice, we can recommend the landlord to include in the contracts provisions that define the property left by the tenant as abandoned. In particular, by providing for the provision in the lease agreement, which is given in Example 3.

“6.17. The tenant is obliged, within the time limits specified in this agreement, to take out the property belonging to him. All property left by the Lessee in the premises, after the expiration of the period for its removal, is considered abandoned by the Lessee, if he did not inform the Lessor in advance about the presence of his own interest in this property. The Lessor has the right, guided by the norms of the current legislation, to determine the fate of the property abandoned by the Lessee.

In cases of missing tenants, it is this provision that will help to avoid most of the issues that arise in such situations.

It is quite difficult to control how employees use phones, laptops, flash drives, etc. received for official purposes. As you know, the entrusted property can be lost, stolen or become unusable in the process of work. In most cases, employees report this immediately, but it also happens that the company finds out about what happened as early as the day the employee was fired. If the employer has confirmation of the fact of the transfer of this property to the employee, as well as the employee’s fault in damage or loss of property, the employer will be able to oblige the employee to compensate for the damage caused. The main thing is to follow the procedure defined by the Labor Code.

At the same time, the damage can be recovered only in the amount of the average monthly earnings of the employee. And if an employee quits and does not agree to voluntarily compensate for the damage, then no more than 20% can be withheld from his salary. At the same time, it is possible that the amount of damage caused may exceed the size of the average monthly earnings. It will be possible to recover it in full if the employer proves that the employee deliberately evades the return of the entrusted property.

Confirmation that the property was issued

The transfer of property by the employer to the employee must be confirmed so that claims can be made against the employee in the future. For example, if we are talking about a cell phone, then it is important that the device of the corresponding brand was transferred to the employee for official use. The fact of issuance of property can also be confirmed by an entry in the statement or journal of issuance of official means of communication.

It would not be superfluous to additionally prescribe in the local acts of the company the procedure for using the office phone, as well as in what cases it should be returned. For example, indicate that the employee must return the phone in cases of a change in his job duties (when the need for office mobile communications has disappeared), dismissal, etc. Similar rules apply to any other property (laptop, voice recorder, etc.) .

An agreement on the use of property can also be drawn up, in which the employee and employer have a detailed procedure for use. Such an agreement is especially relevant in cases where the company does not have a special local act.

At the same time, it is important to remember that the signing of the documents on the transfer of a person with the appropriate authority. As a rule, this is the general, sometimes it may be other persons who bear material responsibility for the property and have the appropriate authority to dispose of it.

If these documents are not available, then it is unlikely that it will be possible to legally apply any measures to the employee. So, considering a specific case, the court refused to recover material damage to the company, due to the fact that the employer did not provide the court with proper evidence that would indisputably confirm that the material values, the loss of which was imputed to the employee, were available in the company (definition Moscow Regional Court dated December 13, 2011 in case No. 33-26381).

The procedure for recovering damages

The procedure for legal actions will depend on when the fact that the employee does not have the property of the employer is revealed. One of the first actions that a company will have to take is to record the fact that the employer has become aware of the loss of a cell phone, laptop or voice recorder. In general, cases when the employer became aware of the fact of the loss of property can be divided into two types: in the course of employment and upon dismissal.

Missing discovered during work

The employer can learn about the loss of property entrusted to the employee for official use from his direct or his colleagues, and sometimes from the employee himself. If the information was provided by the head of the employee, then a memorandum should be requested from him, in which he must state the facts known to him about the loss of company property.

In this case, first of all, the employer will have to establish the amount of harm caused. It is established by conducting an inventory. The procedure for its implementation is regulated by the Guidelines for the inventory of property and liabilities (approved by order No. 49 dated 06/13/1995). To carry it out, the employer will need to create a commission and draw up the relevant documents on the inventory. The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear of this property.

The most important thing that the employer needs to establish in order to bring the employee to liability is the employee’s fault, because in accordance with the Labor Code of the Russian Federation, the employee is liable only in case of culpable damage to the employer’s property (Article 233).

Guilt may be in the form of intent or negligence. To establish it, the employer must conduct an internal investigation. In this regard, a commission should be created, including relevant specialists. The legislation does not define the requirements for members of such a commission, so the employer himself determines which specialists should be included in it. As a rule, these are accounting departments, security services, administrative and economic departments and are created on the basis of the order of the employer in any form. Note that the inventory and investigation can be carried out by one commission. The term for conducting such an investigation is not defined by law, so the employer can conduct it within the time period specified by him, depending on the specific circumstances.

After the commission is created, it must, on the basis of available evidence, establish the presence or absence of the employee's fault in causing damage to the employer's property.

As part of the internal investigation, it is necessary to request from the employee to whom the property was entrusted an explanation regarding the revealed fact of loss or damage to property (Article 247 of the Labor Code of the Russian Federation). If the employee confirms the fact of the loss and reports the objective reasons for this incident, this will make it possible to more quickly make a decision regarding compensation for the damage caused. Note that the period during which the employee must provide it is not established by the Labor Code. It is logical to assume that here, by analogy with Part 1, Art. 192 of the Labor Code of the Russian Federation, give the employee two working days to provide it. If the employee does not provide an explanation for the loss of property, the commission must record this in the relevant act.

At the same time, the commission must comprehensively and fully investigate all known circumstances, explanations of the employee, and establish whether there is a causal relationship between the action (inaction) of the employee and the damage caused. It is the commission that is empowered to establish the guilt of the employee.

If the damage caused is less than the average monthly earnings of the employee, the employer, based on the conclusion of the commission, issues an order to bring the employee to liability. It is important to remember that such an order must be issued within a month from the date the commission draws up a conclusion based on the results of an internal investigation. Based on such an order, the employee will have to pay the employer a fixed amount of money.

If the amount of material damage exceeds the average monthly earnings of the employee, then recovery cannot be carried out on the basis of an order. In this case, the recovery is made either with the consent of the employee (about which the parties draw up an appropriate agreement), or in court - if the employee refuses to voluntarily compensate for the damage.

So, considering the case on the application of the employee for the recovery of unlawfully withheld, the court recognized the actions of the employer to withhold funds from wages as illegal. He pointed out that the amount recovered was more than the average monthly salary and had to be recovered exclusively through judicial procedure (cassation ruling of the regional court dated February 13, 2012 in case No. 33-214).

The loss was discovered when the employee was dismissed

Most often, the company does not check daily that the employee has the official property entrusted to him, but only upon dismissal asks to return this property to the employer. As a rule, when an employee submits a letter of resignation, he is given a bypass sheet, which must be signed by the heads of structural divisions (accounting, administrative and economic department, etc.). We note right away that the practice of not issuing an employee until he returns the previously issued property will be unlawful. Therefore, even if the employee evades the return of property, the employer will still have to fire him on the last day of work, issue a work book and make a final

Quite often, it arises whether the employer in this case can withhold a sum of money from the employee's salary to compensate for the damage caused due to the loss of property. It is difficult to answer this question unambiguously. The point is that Art. 137 of the Labor Code of the Russian Federation establishes specific cases when deductions can be made from an employee's salary. In this list, there is no such case as deductions from wages for causing material damage to the company. At the same time, law enforcement practice follows a different path - if bringing to liability is carried out in a legal manner, then deductions can be made.

But there is one more nuance. Withholding is possible only in the amount of 20% of monthly wages (Article 138 of the Labor Code of the Russian Federation). Therefore, despite the fact that the employee leaves the company, this does not mean that the employer has the right to make larger deductions. If such a withholding is made, then the employee will be able to challenge it in court. Thus, the Supreme Court held that the maximum amount of deductions for each payment of wages is established by the legislator in the interests of the employee, in order to ensure that the employee receives a certain amount sufficient to meet his basic necessities of life. In this case, it does not matter whether the employment relationship continues or the employee is dismissed (determination dated February 27, 2012 in case No. 33-531).

Meanwhile, termination of the employment contract does not relieve the party to this contract from liability (part 3 of article 323 of the Labor Code of the Russian Federation). Therefore, in this situation, the employer can conclude an agreement with the employee on compensation for damage with installment payment. This agreement should specify specific dates for the payment of the remaining amount of material damage. If the employee violates the terms for the payment of funds established in such an agreement, the employer has the right to go to court with a corresponding claim.

As a general rule, the employer has the right to apply within one year from the moment when he became aware of the damage caused to him (Article 392 of the Labor Code of the Russian Federation). Such a moment is considered the date of the commission's conclusion based on the results of an internal investigation.

At the same time, it is possible that by the time the employee refuses to make the next payment under the agreement on compensation for material damage, more than a year has passed from the date the conclusion was drawn up by the commission. The question arises whether the company will lose the right to appeal to the court, because the limitation period is set for one year from the date of discovery of the damage caused. In this situation, if there is an agreement concluded between the employer and the employee on the voluntary repayment of the debt with installment payments, the one-year period for applying to the court is calculated from the moment when the employee had to compensate for the damage (make another payment), but did not. This conclusion, in particular, was made by the Supreme Court of the Russian Federation in its ruling dated July 30, 2010 No. 48-B10-5.

Note that compensation by the employee for damage can be carried out in other ways, in particular:

by paying the employer money from personal funds;
by transferring, with the consent of the employer, equivalent property or repairing damaged property;
by combining several methods (partially withholding, partially repaying at the expense of personal funds).

Employee fault

It will be possible to hold an employee liable for the loss of a business phone or laptop only if the following legally significant circumstances are proved: the employee’s wrongfulness, guilt in causing damage, as well as a causal relationship between the employee’s action and the consequences.

Speaking about illegal behavior, it should be borne in mind that, in accordance with Art. 21 of the Labor Code of the Russian Federation, an employee must take care of the property of the employer, and also immediately inform him of the occurrence of a situation that poses a threat to the safety of the property of the employer. Thus, if an employee has lost, due to his own negligence, the property issued to him for official use, then his actions already contain illegality, which is an indispensable element in the occurrence of liability.

The situation is more complicated in the case of the theft of official property of an employee. For example, an employee left a working laptop in the car. During the employee's absence, the attacker opened the car and stole the laptop. Here it should be taken into account whether the employee has taken all due diligence measures so that this does not happen. In particular, whether the car was locked, whether the employee had the right to leave the laptop unattended in the car (or is there an express ban in the local regulation), etc.

In order to make the issue of clarifying these nuances more indisputable, the employer should draw up a local act, where it is necessary to prescribe the measures that the employee must take to ensure the safety of the property entrusted to him. This will allow the employer to prove that the employee violated internal regulations, thereby confirming the presence of unlawfulness in the employee's actions.

The most important circumstance in which bringing an employee to liability can be considered lawful is the presence of the employee’s fault in causing damage. Note that the Labor Code of the Russian Federation does not disclose the concept of guilt, so here one should be guided by the concepts that are formulated in the Criminal Code of the Russian Federation (Article 24). Namely, guilt can be in the form of intent or negligence. The intent itself can be direct or indirect, and negligence can be expressed in negligence or frivolity.

In cases of loss of the property of the employer entrusted to the employee for official purposes, as a rule, negligence committed by the employee is implied. In the situation under consideration, this will be enough to hold the employee liable, provided that there is a direct causal relationship between the action he committed and the consequences that occurred.

In the case when there is evidence of the fact of the loss of property, illegality and guilt of the employee's actions, it will not be difficult to prove it. However, do not forget that the employee will be released from liability if the following circumstances are established:

irresistible force;
normal economic risk;
emergency or necessary defense;
failure by the employer to provide appropriate conditions for the storage of entrusted property.

As a rule, in most cases, the courts recognize it as illegal to impose material liability on an employee precisely because the employer did not provide the proper conditions for storing the entrusted property. For example, an employee was supposed to return a work laptop to a special storage room, but could not do this due to the fact that the room was closed or the employee who was responsible for receiving the equipment was absent. Also, the employee could leave property in the office, the door to which did not close due to the fact that the lock was broken.

If the employer was aware of the problem with the lock, and the employee left the laptop in the office in accordance with the company’s procedure, then in this case the court may refuse to recover the amount of damage caused to the employee from the employer. Therefore, in order for the employer to have a confident position on this issue, the specific procedure for using the entrusted property and ensuring its safety should also be prescribed in the local act, which the employee must be familiarized with against signature.

The amount of the penalty

After the value of the property lost by the employee is determined and the employee's fault in causing harm is established, it is necessary to determine in what amount the amount of harm caused can be recovered from the employee.

As you know, by virtue of the employment contract concluded with the company, employees bear limited liability and full liability in cases specified by law. In a situation where an employee cannot return the property entrusted to him, there are all grounds for bringing him to liability in an amount not exceeding his average monthly earnings. However, the question arises - what to do if the value of the property exceeds the average earnings of an employee?

Bringing an employee to full liability in this case is a rather debatable issue. The list of grounds implying full liability is exhaustive. It is enshrined in Art. 242 of the Labor Code of the Russian Federation and a number of federal laws. We note right away that such a basis as full individual liability cannot be applied here. Such contracts can only be concluded with employees who service inventory items. At the same time, the lists of employees with whom it is possible to conclude such contracts are also closed. Therefore, it is unlikely that an employer will be able to prove the legitimacy of entering into such an agreement in relation to a business phone or laptop of an ordinary employee.

At the same time, the point of view is very common, according to which in this case the damage can be recovered from the employee in full, since the property was received on the basis of a one-time document. Nevertheless, this conclusion cannot be considered indisputable either.

The courts believe that full liability for the lack of valuables received under one-time documents occurs when an employee is involved in a one-time operation, for example, for an urgent order, delivery, transfer of property, valuables needed or sent to the employer. At the same time, it is not possible to entrust this function to those employees who are constantly engaged in this and whose labor duties include this (cassation rulings of the Supreme Court of the Republic dated in case No. 33-901 / 12, the regional court dated 11.29. Republic of Adygea dated December 09, 2011 in case No. 33-1319).

It is unlikely that the use of the received property in daily activities implies its one-time nature. In this regard, it is likely that the court will refuse to satisfy the requirements of the employer to the employee.

Another reason for bringing an employee (who is not a financially responsible person) to full liability is the intentional infliction of harm to the employer. This option is possible when the employee, having the property of the employer, avoids returning it. In this situation, it is obvious that the employee understands that his actions cause harm to the company. At the same time, he acts with direct intent and cannot but be aware of the consequences of his actions.

And if the company applies to the relevant authorities, then such behavior of an employee can be qualified as embezzlement, theft or theft, which implies criminal or administrative liability (Article 7.27 of the Code of Administrative Offenses of the Russian Federation: petty theft - does not exceed 1000 rubles) or a crime (Art. 160 of the Criminal Code of the Russian Federation: misappropriation or embezzlement). At the same time, the presence of a guilty verdict of a court or a decision in an administrative case will allow the employer to also demand compensation for damage in full on the grounds provided for in paragraphs. 5 and 6 h. 1 tbsp. 243 of the Labor Code of the Russian Federation. And all the mandatory elements of holding an employee liable under labor law will be established by the court as part of the relevant processes.

But contacting the relevant authorities is not mandatory. Judicial practice contains examples of bringing to full liability as a result of non-return to the employer of property transferred to the employee, when a criminal case on misappropriation was not initiated. For example, by a decision in a specific case, the court recovered from the employee the amount of damage caused due to the fact that he did not return to the employer the mobile phone and other property entrusted to him (determination of the regional court dated May 16, 2012 in case No. 33-3808).

A. Lavrukhina,
Senior Associate at Prioritet Law Firm

June 6, 2014

Often disagreements arise in the relationship between the landlord and the tenant of premises of any type (residential, commercial). Most often, disagreements are related to non-payment or irregular payment of rent by the tenant. If the parties do not have mutual material claims, the way out of the situation will be the termination of the lease agreement and the search for other tenants. But often it is precisely financial claims that take place, and a situation may arise in which the landlord retains the tenant's property and makes a demand to pay off the debt, that is, the property is a pledge. It should be considered how legitimate this is, and how this action is regarded from a legal point of view.

Liability of the landlord for the property of the tenant

It should be clarified that the responsibility of the lessor for the property of the tenant should be clearly regulated by the contract. In some cases, the landlord does not have access to the premises being leased, so he cannot bear responsibility for the property. But, being the owner of the premises, he has the full right to gain access to the premises belonging to him in any way that does not contradict the Legislation (this may be breaking doors, calling emergency services, etc.).

Illegal retention of property by the landlord can cause a lot of inconvenience to the tenant: he cannot use his belongings, sometimes documents or items that are used daily may be on the list of retained property.

If the passport of a citizen of the Russian Federation became the subject of retention (pledge), among other property, it is necessary to contact law enforcement agencies, since according to Decree of the Government of the Russian Federation No. may be pledged.

The landlord does not give away the tenant's property. Action without breaking the law.

In no case should you yourself, without the knowledge of the landlord, enter the premises by any possible means (if access is limited). These actions can be regarded as damage to someone else's property, and as a criminal offense.
It is necessary to find out what is the reason for the retention of property. If there is a fact of a debt, then it is necessary to pay it off, thereby not violating the terms of the lease agreement.
Sometimes a pre-trial agreement cannot be reached, then, in disputable situations, it makes sense to go to court. It should be remembered that if the court decides in favor of the landlord, the tenant will pay all legal costs on his own.

If the landlord prevents the export of property, while all contractual relations are observed, it makes sense to contact law enforcement agencies. This should be done only in a situation in which the tenant has no financial obligations to the landlord: otherwise, law enforcement officers will recommend resolving the issue in court.

In the event of a clear violation by the tenant of the terms of the contract and in the event of a debt, the landlord has the right to apply to the court to restrict access and alienate the tenant from his property. This will limit the tenant's access to the property within the framework of the law, and the enforcement of the court order will be monitored by the bailiff service.

Happiness in marriage is a fragile thing, which at any moment can end in divorce and the most unprincipled division of property, in which each party often tries to snatch a bigger piece. Lawyers told the site "RIA Real Estate" instructive stories of the division of real estate between former spouses, and also instructed them how not to blunder and not lose their blood meters.

No shenanigans

A cruel joke with spouses during a divorce can be played by all sorts of fraud that they commit when selling or buying real estate. So, Dmitry Chernokaltsev, managing partner of the Corporate Solidarity company, shared an instructive story.

One entrepreneur from St. Petersburg saved up for an apartment in the city center. At the same time, funds from the sale of his wife's personal apartment, acquired by her before marriage, were also invested in her purchase, the expert says.

Wanting to get away from the tax on the sale of an apartment, the wife indicated the amount in the contract at 1 million rubles. Moreover, new housing in the center of the Northern capital was also bought according to the documents for 1 million rubles (the sellers also wanted to save on taxes), although, of course, it cost much more, and the husband paid for the significant difference. However, the new apartment was designed for his wife and daughter.

After some time, the marriage fell apart and the question arose about the division of property. Moreover, the ex-husband saw the court case as simple, since the wife's share in the apartment was acquired during the marriage, which means it is to be divided in half, says Chernokaltsev.

But the miserable spouse did not take into account the fact that the wife had an agreement on the sale of her one-room apartment in the suburbs of St. Petersburg for 1 million rubles and documents on the purchase of a new apartment on the same day for the same amount. It turns out that the new apartment was bought with the wife's funds from the sale of her personal apartment. The former spouse did not have any documents confirming his investments.

Here is exactly the situation when, wanting to save on taxes, they indicated an underestimated cost of the apartment, but at the same time one of the spouses deprived himself of the opportunity to prove that he had invested in it, explains Chernokaltsev. The second mistake was that he initially did not register a share in the ownership of the apartment, signing certain agreements with his wife. The expert urges the spouses not to agree to any fraud and documentedly protect their interests.

We share everything at once

Spouses can lose their share of jointly acquired property by simply “wrongly” divorcing.

During the marriage, the couple purchased two apartments, one of which was registered for the husband, the other for the wife. After the dissolution of the marriage, the spouses decided that everyone gets the apartment that is registered to him, and no legal support for such an agreement followed.

Five years after the dissolution of the marriage, the wife died, and the heirs were already preparing to enter into the inheritance. But then the ex-husband suddenly changed his mind and went to court with a claim for the division of jointly acquired property, hoping to grab half of the apartment of the now deceased wife, to which he seems to be entitled, because there was no official division of property.

However, the court denied his claims on the grounds that the spouse did not live in the disputed apartment after the dissolution of the marriage, did not use it, did not pay utility bills, did not attempt to move into the apartment, and more than three years had passed since the dissolution of the marriage, that is, limitation period.

It is legally difficult to determine the beginning of this period when considering disputes on the division of jointly acquired property after a divorce, if more than three years have passed since the official divorce, Tamaz Mstoyan, lawyer at the Leontiev and Partners Law Office, notes.

Therefore, in order to avoid such litigation between former spouses, it is necessary immediately after the divorce to carry out the division of property, either through the court or by signing a "settlement" agreement on the division of jointly acquired property, the lawyer advises.

Loan apartment section

One of the most insidious, but typical stories of the division of property in a divorce is the division of credit housing, says Igor Vyalov, partner at the Shabarin and Partners law firm. The expert cites the following situation as an example.

The property was purchased by the spouses with borrowed funds. In the mortgage agreement, the husband was listed as the borrower, and the wife acted as a co-borrower. When the marriage was dissolved, the question arose - which of the spouses will retain the right to live in the apartment?

You can divide an apartment bought with mortgage funds during a divorce in several ways.

Firstly, spouses can amend the loan agreement by agreeing this step with the bank, replacing joint and several liability for the loan with the obligation of each of them for their part of the debt. Although, Vyalov admits, banks are usually extremely reluctant to take this step.

The second way is when a husband and wife, again after agreement with the bank, can re-register a mortgage loan for one of them. In this case, the second is exempt from loan payments, but loses the right to real estate.

Sometimes, according to the lawyer, there are situations when, for example, relatives allocate funds to one of the spouses for the initial mortgage payment.

But in this case, the actions for the transfer of such money must be correctly executed, either by drawing up a loan agreement indicating the amount and purpose of the funds, or a receipt for the transfer of money. This moment can also be written in the marriage contract, which, by the way, can be drawn up during the marriage. The absence of proper evidence confirming the use of personal money by the spouse in the transaction, entails the recognition of this property as the joint property of the spouses.

Protect the "square" from the wedding

Difficulties in the division of property by spouses also arise if they did not take care of protecting their "squares" at the time of the wedding. Vyalov recalls one of these stories.

The man inherited a country house from his parents. A few years later he married, and the house was completed, appropriate for the needs of a young family, already on jointly acquired funds. However, when the marriage was dissolved in court, the issue of "sharing" arose, and the court recognized this house as joint property and made a decision on its division in equal shares between the spouses. This, of course, seemed to her husband an injustice.

However, Vyalov confirms that the personal property of each of the spouses can be recognized as joint property if it is established that investments were made in the house during the marriage, significantly increasing its value. For example, a major overhaul was made, reconstruction, re-equipment or other work was carried out.

Therefore, the lawyer advises the spouses to draw up a marriage contract at the time of marriage and immediately register in it all the real estate that is in the personal property of each of them.

Let's start with the fact that the retention of someone else's property is an illegal measure that entails administrative or criminal liability. Under the appropriation of someone else is understood the illegal possession of it, concealment, and refusal to give on demand.

Of course, there are several options for the development of events in which the retention of objects of value occurs legally. A striking example is the following situation: the creditor withdrew material assets from the debtor after the expiration of the civil contract due to non-fulfillment of its obligations. If the lender has all the necessary package of documents, then such actions will be absolutely legal.

In this article

Illegal retention of other people's property

If a third party took / did not give away your valuables, then this situation already falls under the classification of “illegal retention” or “theft”. The actions of other individuals / legal entities will be considered reasonable and correct if the following aspects are observed:

Previously, one of the types of civil contracts was signed, according to which the values are transferred from the actual owner to the assignee.
If the owner owed money to the opponent or did not fulfill his loan obligations.

Despite the fact that the issue of appropriation of someone else's movable / immovable property is quite acute and is a very common problem, there is no separate legal act regulating the composition of the offense and determining the legal responsibility for this offense.

Appropriation or arbitrariness?

The Criminal Code of the Russian Federation distinguishes two types of crime: appropriation and arbitrariness. So, in order to understand the intricacies of the law, we will analyze each offense.

Criminal action in part is characterized by the following aspects:

The property was temporarily transferred to a third party for safekeeping.
The opponent gains and profits from the fact that he holds other people's material values.
When an attacker provides material goods to his counterparties, he does not indicate that he is not the actual owner of the assets.

The concept of arbitrariness is directed to a different legal aspect and is characterized by the following parameters:

The attacker performs a number of actions aimed at infringing on the rights of the owner, being in a civil relationship.
A third party arbitrarily disposes of the property, not taking into account the interests of the owner.

If the infringed owner received significant damage from the unlawful actions of a person, then this action falls under the classification "crime", if the damage is small - "administrative offence".

Property return mechanism

If the offender does not give up the property at the first request of the victim, then there is no point in doing nothing, it is necessary to move on to radical methods.

The mechanism for returning your property consists of the following steps:

It is necessary to file a statement with the police, where clearly describe the essence of the problem. If the information that you have filed a complaint with the police and the offender is threatened with further proceedings with law enforcement agencies has not yielded any results, then you can start the judicial process.
File a lawsuit in court. For specialized assistance, contact a lawyer to help you not only collect the right package of documents, but also develop a business strategy, correctly describe the requirements and the essence of the problem. A return claim form can be obtained from the judicial authorities or downloaded from the world wide web. If you provide documents confirming that the term of the contracts has expired long ago and these actions of the opponent have no basis, then the judicial authorities will take your side.
If during the proceedings your rights / interests are violated, you can file an application with the prosecutor's office.

In any case, you cannot do without the help of a competent representative of the jurisprudence, since it is you who need to prove your ownership of the retained property and actually return it.