What is a Trust Deed. How to legally competently draw up a contract of trust management of real estate. Termination of the contract

A property trust management agreement is drawn up in cases where the owner transfers his property to a person who will manage it in the interests of the owner or another entity. Typically, property is transferred to management for its more efficient use and the greatest benefit. Sometimes an object enters into trust management if there are temporarily no persons obliged to take care of it (for example, until the heirs enter into inheritance rights, a notary has the right to conclude an agreement on trust management of property).

The parties to the agreement include:

1. The founder of management is the owner of the object.
2. A trustee is an entity that assumes responsibility for property management.
3. Beneficiary (optional figure) - the person in whose interests the use of the object is carried out. In a situation where it is not specified in the contract, the founder of the management receives the profit from the use of the object.

By general rule The trustee can be an individual with the status of an individual entrepreneur, or a commercial organization. This rule is quite logical, since the activity of the manager is entrepreneurial. If the contract of trust management of property is concluded on the grounds specified in the law, then there is no such restriction.

For those wishing to draw up an agreement on trust management of property sample this agreement posted on our website.

What objects can be transferred to management?

Those objects from which it is possible to derive profit as a result of their management are transferred to trust management. Management involves a variety of legal and factual actions performed for profit (for example, renting out one part of the land and growing agricultural products on another).

As a rule, a property trust agreement is drawn up for the management of real estate (trade, office space, etc.) or a property complex (for example, an enterprise). Among movable things, securities are most often transferred to management. The funds themselves cannot go into trust, but if they are integral part enterprises, then go into management together with other components of this property complex.

It is possible to transfer pledged things for trust management, but this will not prevent the pledgee from recovering the amount of the debt at the expense of such property. In this regard, the owner is obliged to notify the manager that an encumbrance in the form of a pledge has been imposed on the property coming to him. If he does not do this, then the manager has the right to terminate the contract of trust management of property through the court and receive compensation equal to the annual remuneration.

How is a real estate trust agreement drawn up? Contract form

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The norms of the law determine that the contract of trust management of property is drawn up strictly in writing. If this condition is not met, the agreement between the owner and the manager will be considered invalid.

The execution of a transaction has its own characteristics in cases where real estate is transferred to management. The rules for drawing up a real estate management agreement are similar to the rules established for the case of its sale. In particular, a property trust management agreement should be registered with Rosreestr if the following are transferred to management:

• living quarters;
• company.

In other cases, when transferring to a real estate trustee, it is not the agreement itself that is registered, but only the fact of the transfer of property.

Features of the contract of trust management of property

This agreement has some similarities with other deals. Thus, within the framework of an agency agreement, the agent, as well as the trustee, performs various actions (actual and legally significant) in the interests of the other party. In a lease relationship, the tenant uses someone else's property, including for profit. The manager does the same.

However, the contract of trust management of property has some features:

1. Management is carried out for a specified period.
2. The manager always performs transactions with property on his own behalf (as opposed to an agent who can act on behalf of the customer).
3. The manager does not act in his own interests (unlike the tenant), but in the interests of the owner of the object or the beneficiary.
4. Unlike an agent who performs specific instructions for the customer, the trustee is free in his actions. He independently chooses the best ways to manage property and implements them.
5. An object received in trust management must be separated from other property of the owner and manager. This object cannot be collected for the debts of its owner (with the exception of the pledged property and the case of bankruptcy).

Terms of the contract of trust management of property

The Civil Code clearly lists the conditions that must be reflected in the text of the agreement. Without their agreement by the parties, the contract of trust management of property is considered simply not concluded. So, the essential conditions are:

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• on objects passing to the manager (compound property is transferred according to the inventory);
• the entity in whose interests the contract will be implemented;
• the amount of remuneration that the owner will pay to the manager (if remuneration is not expected, then the text of the agreement should directly indicate its gratuitousness);
• duration of the agreement (maximum 5 years).

The rest of the terms of the contract of trust management of property are not mandatory. However, in order to avoid disagreements and ambiguities, it is worth reflecting in the agreement:

• the presence of restrictions on the performance of certain transactions with property (for example, a ban on its alienation);
• the possibility of disposing of an immovable object;
• the frequency of presentation by the manager of a report on his work;
• the right of the manager to entrust the performance of certain actions to another entity;
• reasons for early termination of the contract;
• the procedure for compensating the manager's expenses incurred by him in the performance of his obligations;
• rights and obligations of the parties;
• liability of the parties in case of breach of contract.

Does the manager have any responsibility?

For improper performance of their duties (in particular, poor-quality property management), the manager bears property liability. In this case, he must compensate:

• to the beneficiary - lost profit;
• to the owner - damage caused by damage to property.

The manager is released from liability if he can prove that the damage was caused by force majeure or as a result of the actions of the owner or beneficiary.

If the manager, when concluding transactions with third parties, goes beyond the limits of authority established for him, he will be responsible for such transactions on his own. However, in this case, the founder of the management will need to prove that third parties knew (or should have known) that the manager goes beyond the established limits.

In other cases, the costs of transactions concluded by the manager in the process of managing the facility are paid at the expense of such property. If the value of this property is not enough to cover all debts, the property of the manager is subject to collection. If, in this case, it is not possible to fully repay the debts, the property belonging to the founder of the management is collected.

When does the contract end?

Upon the expiration of the term of the property trust management agreement, the relationship between the parties shall be terminated if at least one of the parties so declares. In such a case, the object must be returned to its owner. If neither the owner nor the manager wants to terminate cooperation, the contract is considered extended for the same period.

In addition, the relationship under the contract of trust management of property is terminated:

• upon refusal of the beneficiary from the profit under the agreement or in the event of his death (unless the agreement stipulates that in this case the right to receive profit passes to another person);
• circumstances arise that prevent the manager from personally fulfilling the contract, if at the same time he (or the founder) intends to terminate cooperation;
• adoption by the owner of a decision to terminate the contract (in this situation, he is obliged to pay the manager the remuneration specified in the agreement);
• bankruptcy of the founder of the management, having the status of an individual entrepreneur;
• in case of recognition of the manager as fully or partially incompetent, declaring him bankrupt, as well as in case of death.

An exemplary template for a property trust management agreement

TRUST MANAGEMENT AGREEMENT

___________ "__" _______ ____

Represented by ________________________, acting on the basis of _________________, referred to as "Party 1", and _____________________________ represented by ____________________________, acting on the basis of _________________, referred to as "Party 2", have entered into this agreement as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. Party 1 transfers property to Party 2 for trust management in accordance with the list contained in paragraph 2 of the agreement for the period specified in section 4 of the agreement, and Party 2 undertakes to manage this property in accordance with the terms of the agreement.

1.2. The property transferred to trust management is the property of Party 1, which is confirmed by ______________________.

2. OBJECT OF TRUST MANAGEMENT

The object of trust management is: _______________________________________________________________.

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. Party 2 is obliged:

• manage property in the interests of Party 1;
• other duties: _______________________________________________________________.

3.2. Party 2 has the right:

• independently decide on the ways of exercising control;
• other rights: ________________________________________________________________.

3.3. Party 1 is obliged:

• transfer the property to the management of Party 2 under the deed of transfer;
• other duties: _____________________________________________________.

4. TERM OF THE CONTRACT

4.1. The agreement becomes effective from the moment of its signing.

4.2. The contract is concluded for the period up to _______.

5. RESPONSIBILITIES OF THE PARTIES

The responsibility of the parties to the contract is determined by the current legislation.

6. FINAL PROVISIONS

The parties shall promptly notify each other of a change in their address, bank details, phone numbers.

Under a trust management agreement one party - the founder of the management transfers to the other party - the trustee for a certain period of time the property in trust, and the other party undertakes to manage this property in the interests of the founder of the management or the person indicated by him - the beneficiary (Article 1012 of the Civil Code).

The parties to the trust management agreement are management founder and trustee. The founder of the management, being the owner of the property, transfers it to the manager, and he undertakes to manage this property in the interests of the founder. If property management is carried out not in the interests of the founder of the management or not only in his interests, the legal relationship includes one more entity - the beneficiary, who has an independent right to claim against the trustee. In these cases, the trust management agreement acquires the features of an agreement concluded in favor of a third party (Article 430 of the Civil Code).

Describing the trust management of property, the Civil Code names any legal and actual actions of the manager in relation to the transferred property (paragraph 2 of article 1012), indicates the ability of the manager to treat this property as if it were his own (paragraph 1 of article 1020). The limits of managing other people's property are established by law, as well as by the parties to the contract on the basis of free will.

The transfer of property is not included in the content of the trust management obligation, but is one of the elements of the actual composition necessary for the obligation to arise. If real estate is transferred to trust management, then state registration of such a transfer is required to conclude an agreement (paragraph 2 of article 1017 of the Civil Code). This allows us to speak of a real estate trust management agreement as a formal agreement.

The trust management agreement is personally-trusted, or fiduciary character, which is reflected in its name, in the name of the main debtor, as well as in the signs of his behavior. In business relations without trust in the manager, based on knowledge of his professional and personal qualities, the owner is unlikely to enter into such relations with him. This is due to the risk of inefficient management or loss (total or partial) of the property, which is borne by the owner, transferring the property to management. In the non-commercial sphere (for example, in the trust management of the property of a ward, in patronage, in the management of an inheritance), relations of kinship or friendly proximity of the owner and manager are important. The Civil Code emphasizes the personal nature of the obligations of the trustee to the founder (clause 1 of article 1021), establishes the right of any of the parties to withdraw from the contract due to the impossibility of personal execution of the contract by the manager (clause 1 of article 1024).

In the norms of the Civil Code, a trust management agreement is modeled as a paid one. By virtue of Art. 1016 of the Civil Code, in the absence of conditions in the contract on remuneration to the manager, the contract will be considered not concluded. At the same time, the Civil Code allows for the gratuitousness of the trust management agreement (clause 1, article 1016). These are the cases when the parties to the contract are citizens who do not pursue entrepreneurial goals (management of the property of the ward, etc.).

Trust management of property and real rights to property.

The subject of limited real right (unitary enterprise, institution) is endowed by the owner with the rights of possession, use and disposal of the property of the owner.

It is necessary to distinguish between trust management of property and real right to property. A direct legal connection arises between the subject of a property right and the property assigned to it. The subject of property rights is endowed with the powers of the owner within the limits determined by law (Article 294, 296 of the Civil Code). The trust manager - the actual owner of the property of the founder, has not the powers of the owner, but the right to exercise these powers in relation to the property on his own behalf * (222). The manager receives this right by virtue of the concluded agreement and exercises it as part of the fulfillment by him of his main duty to manage the property. By it's nature given right is of a binding nature. The limits of the powers of the manager are determined not only by law, but also by the contract (clause 2 of article 1012, clause 1 of article 1020 of the Civil Code). In addition, the subject of property rights exercises the powers of the owner in his own interest, and the trustee - always in the interests of another person (Article 1012 of the Civil Code).

Legal qualification of the contract: real- is considered concluded at the time of transfer of the thing, consensual when real estate is transferred to trust management, such a transfer in accordance with paragraph 2 of Art. 1017 of the Civil Code of the Russian Federation must be carried out in the form provided for a contract for the sale of real estate, reimbursable, gratuitous, bilaterally binding- duties are assigned not only to the trustee, but also to the founder of the management, who must pay the trustee the remuneration provided for by the agreement, reimburse the costs of maintaining the management.

Agreements in which the founders of the management appoint beneficiaries are classified as contracts in favor of a third party.

Trust management of property can arise not only on the basis of an agreement, but also by virtue of law (trust management of the property of a ward, missing person, etc.). The basis of such a legal relationship (by virtue of the law) is not just an agreement, but a complex legal structure - the decision of the guardianship and guardianship authority to establish guardianship and the agreement.

Parties to the agreement : founder of trust management and trustee.

The subject composition of the parties: the founder of the trust management - the owner of the property, and in cases provided for by law, other persons who are not the owners of the property (the body of guardianship and guardianship, that is, other entities under the law). A trustee is a commercial organization (except for a unitary enterprise) or an individual entrepreneur. In cases where trust management of property is carried out on the grounds provided for by law, the trustee may be a citizen who is not an entrepreneur, or non-profit organization except for the institution.

If the founder of the management indicates in the agreement another person instead of himself, in whose interests the trustee must act, then along with the two named parties to the agreement, a third person becomes the beneficiary.

The subject of the trust management agreement is the performance by the manager of legal and actual actions in the interests of the founder of the management (beneficiary);

Essential terms of the contract.

· Composition of property transferred to trust management. The objects of trust management are:

o enterprises and others property complexes;

o individual objects related to real estate;

o securities, rights and other property.

The law does not contain a direct prohibition on the transfer to trust management of things defined by generic characteristics. At the same time, the transfer to trust management of only Money permitted only if the trustee is credit organization or another legal entity that has received permission (license) to carry out trust management of funds of citizens and legal entities (clause 2 of article 1013 of the Civil Code of the Russian Federation).

When transferring securities for trust management, the owner does not lose the right of ownership to them; not a right, but a thing is transferred to management.

If property is transferred to trust management, then it must be separated from other property of the founder of management and the property of the trustee himself, and a separate account is opened for settlements on it (Article 1018 of the Civil Code of the Russian Federation). Foreclosure on this property for debts of the founder is not allowed. In this case, the trust management agreement is terminated, and the property is included in the bankruptcy estate.

· Name legal entity or the name of the citizen in whose interests the property is managed (the founder of the management or the beneficiary).

· The amount and form of remuneration to the manager (if the contract is for a fee). Typically, trust management agreements are paid. Conditions on the form and terms of payment of remuneration to the trustee must be provided for in the contract. In the absence of a clause on remuneration in the contract, it is considered gratuitous, for example, when the guardianship and guardianship authority concludes an agreement on trust management of the property of the ward with his relative.

· Term the validity of the contract, which cannot exceed five years, unless other deadlines are established by law. If after the expiration of the term of the contract there is no statement from at least one of the parties about its termination, then the contract is considered extended for the same period and on the same conditions that were provided for in the contract (clause 2 of article 1016 of the Civil Code of the Russian Federation). Thus, the continuing nature of the relationship under the contract makes it possible to prolong it on the same terms.

Contract form : written(Article 1017 of the Civil Code of the Russian Federation). The real estate trust management agreement must be concluded in the form of a single document signed by the parties, with mandatory state registration. The transfer of property is carried out according to the deed of transfer. If we are talking about the transfer of an enterprise, then this act is accompanied by: a property inventory act, a balance sheet, an independent auditor's report on the composition and value of the enterprise, as well as a list of all debts (obligations) included in the enterprise, indicating creditors, characteristics, size and the duration of their claims. The manager always performs the corresponding action on his own behalf, however, he indicates at the same time in whose capacity he acts. This is achieved through the relevant information of third parties in oral transactions or “DU” marks (Clause 3, Article 1012 of the Civil Code of the Russian Federation).

The rights and obligations of the parties must be clearly defined in the contract.

The trustee must:

· to exercise, within the limits provided for by law and (or) the agreement, the powers of the owner in relation to property transferred to trust management (Article 1020 of the Civil Code of the Russian Federation). The law requires him to carry out trust management of property personally. The manager may entrust these actions to another person in the following cases (Article 1021 of the Civil Code of the Russian Federation):

a) if authorized to do so by the agreement, or received the written consent of the founder of the department;

b) if it is forced due to circumstances to ensure the interests of the founder or beneficiary and is unable to receive instructions from the founder of the management within a reasonable time;

provide the founder of the management and the beneficiary with a report on their activities within the time limits established by the agreement (clause 4 of article 1020 of the Civil Code of the Russian Federation);

· Termination of the agreement entails the obligation of the trustee to return to the founder of the management all the property held in trust, unless otherwise provided by the agreement.

The trustee has the right:

exercise the powers of the owner on the property transferred to him within the limits established by law and (or) the contract;

· apply all civil law methods to protect the property transferred to trust management (clause 3 of article 1020 of the Civil Code of the Russian Federation). To protect the rights to property under management, the trustee is endowed with the legal right to bring vindication and negatory claims (Articles 301, 302, 304, 305 of the Civil Code of the Russian Federation, by virtue of clause 3 of Article 1020 of the Civil Code of the Russian Federation);

demand payment of remuneration, if provided for by the contract, as well as reimbursement of necessary expenses incurred by him during the trust management of property at the expense of income from the use of this property (Article 1023 of the Civil Code of the Russian Federation);

· demand from the founder of management after the conclusion of the contract the real transfer of property to him.

Rights of the founder of the management:

the right to demand from the trustee the proper performance of the contract;

· have the right to demand from the trust manager a report on his property management activities;

· the right to demand the termination of the contract if it is impossible to implement it by the trustee.

Responsibilities of the founder of the management - a third party:

payment of remuneration;

Reimbursement of expenses at the expense of income received from the use of property.

Principal liability of the trustee to third parties (Article 1022 of the Civil Code of the Russian Federation):

for obligations to third parties arising in connection with the implementation of trust management of property, losses are repaid from the property held in trust management, in case of its shortage - from the personal property of the manager, and only in case of its shortage - from the property of the founder of the management, not transferred to the trust control. Further, the founder of the management has the right to demand, by way of recourse, compensation for the losses incurred by him from the actions of the trustee. E. Sukhanov defined this complex structure of responsibility as a two-stage subsidiary responsibility;

If, when making transactions with third parties, the trustee or the attorney appointed by him go beyond the powers granted to the trustee, or act in violation of the established restrictions, then the responsibility for the obligations arising from this shall be borne by the trustee of his own property, unless third parties prove that they did not know and could not know about the specified violations committed by the trustee or the attorney appointed by him.

The property trust management agreement is terminated (Article 1024 of the Civil Code of the Russian Federation) due to :

proper fulfillment of obligations;

death of a citizen who is a beneficiary, or liquidation of a legal entity - beneficiary;

death of the trustee, recognition of his incapacity, limited capacity, missing;

recognition of a trustee who is an individual entrepreneur as insolvent (bankrupt);

recognition of the founder of the management, which is an individual entrepreneur, insolvent (bankrupt);

· the impossibility for the trustee to personally carry out trust management of property, and the trustee is obliged to notify the founder of the management of this as a general rule, three months before the termination of the contract.

Commercial concession agreement

The term "commercial concession" is, in essence, a synonym for the term "franchising", which has entered into international practice, which is understood as the voluntary cooperation of two or more business partners for the purpose of sharing the means of individualization (company name, commercial designation, trademark or service mark) belonging to one of them. At the same time, the party that granted the right to use the means of individualization simultaneously provides the user with protected commercial information (know-how) and provides ongoing consulting assistance in organizing a business. (The most famous example is the opening of McDonald's restaurants around the world.)

Under a commercial concession agreement one party (the copyright holder) undertakes to grant the other party (the user) for a fee for a period or without specifying a period of time the right to use in the user's business activities a set of exclusive rights belonging to the copyright holder, including the right to a trade name and (or) commercial designation of the copyright holder, to a protected commercial information, as well as other objects of exclusive rights provided for by the agreement - a trademark, a service mark, etc. (Clause 1, Article 1027 of the Civil Code of the Russian Federation).

Commercial concession agreement - consensual, reimbursable, bilaterally binding. The parties to the agreement are copyright holder(the grantor of the right to use his means of individualization and know-how) and user(the person to whom these rights are granted). They can be commercial organizations and citizens registered as individual entrepreneurs (clause 3 of article 1027 of the Civil Code of the Russian Federation).

Subject a commercial concession agreement is a set of exclusive rights to a company name and (or) commercial designation, to trademark and on commercial information, including the experience of organizing the relevant entrepreneurial activity. It follows from the definition of the contract that the subject of the contract may include exclusive rights to other objects of intellectual property (for example, to an industrial design).

In the subject of a commercial concession agreement, commercial designations should be highlighted - for example, the name of a legal entity, although unregistered, but widely known, which is protected without special registration (for example, Coca-Cola).

The commercial concession agreement must be concluded in downtime writing , non-observance of which entails its invalidity (clause 1 of article 1028 of the Civil Code of the Russian Federation). This agreement is subject to state registration by the body that registers a legal entity or individual entrepreneur acting under the contract as the copyright holder. The need for such registration is due to the fact that by transferring the use of rights that individualize activity, the right holder also limits his own rights, and such a restriction must be public.

State registration of legal entities is carried out by the relevant bodies of the local administration (a special Registration Chamber has been established in Moscow). In the future, it is planned to concentrate this function in the bodies of justice.

When concluding a commercial concession agreement, there is a transfer of exclusive rights to certain intellectual property objects, the transfer of rights to which is subject to special registration with the Patent Office (the right to a trademark, invention, industrial design).

Therefore, if the complex of exclusive rights includes rights to these objects, then, in addition to state registration, registration with the Patent Office is required. Failure to comply with the requirement for such registration also leads to the invalidity of the contract.

A mandatory condition of a commercial concession agreement is the remuneration paid by the user to the right holder. Article 1030 of the Civil Code of the Russian Federation contains an approximate list of forms of such payments, among which are mentioned fixed one-time or periodic payments, deductions from revenue, margins on wholesale price goods transferred by the right holder for resale. However, in practice, the remuneration of the right holder usually consists of two parts: a fee for connecting to the right holder's proprietary network and subsequent periodic payments determined in fixed amounts or as a percentage of revenue.

There may be situations when the right holder changes his company name or commercial designation to one that is more consistent with his image. Such a change also affects the user to a certain extent, therefore the law establishes that the commercial concession agreement also applies to the new company name or commercial designation of the copyright holder. If the user does not want to exercise his right, he may demand termination of the contract and compensation for damages or a commensurate reduction in the remuneration due to the copyright holder.

Commercial concession agreements are characterized by the presence of conditions, the implementation of which may lead to a restriction of competition in the market. In particular, we are talking about assigning a certain territory to the user, in which neither other users nor the right holder himself can act, as well as a prohibition for the user to compete both independently and by obtaining similar rights from the competitors of the right holder (such a prohibition may valid for a certain period and after the expiration of the contract).

Realizing that these provisions may contradict antimonopoly legislation, the Civil Code of the Russian Federation provides an opportunity to challenge these conditions and invalidate them at the request of the antimonopoly body (State Committee on Antimonopoly Policy) or other interested person, if these conditions, taking into account the state of the relevant market and the economic situation of the parties, contradict antimonopoly legislation (clause 1 of article 1033 of the Civil Code of the Russian Federation). The decision to challenge the restrictive terms of the contract should be taken both after studying the general situation and finding out the position that the parties to the contract occupy in this market. However, in Art. 1033 of the Civil Code of the Russian Federation mentions two conditions limiting the rights of the parties, which in any case should be recognized as void. Such restrictions apply to:

a) the right of the right holder to determine the selling price of goods by the user or the price of works (services) performed (rendered) by the user, or to set an upper or lower limit for these prices;

b) the obligation of the user to sell goods, perform work or provide services exclusively to a certain category of buyers (customers) or exclusively to buyers (customers) located (residence) in the territory specified in the contract.

A commercial concession agreement can be concluded both for a fixed period and without specifying a period. It follows from this that the term is not an essential condition of the contract.

The Civil Code of the Russian Federation provides for a number of obligations of the right holder, which should be included in the commercial concession agreement. So, in accordance with paragraph 1 of Art. 1031 of the Civil Code of the Russian Federation, the right holder is obliged:

transfer to the user technical and commercial documentation and provide other information necessary for the user to exercise the rights granted to him under the commercial concession agreement, as well as instruct the user and his employees on issues related to the exercise of these rights;

issue the licenses stipulated by the agreement to the user, ensuring their execution in the prescribed manner.

A number of obligations of the copyright holder are optional - they can be included in the contract at the discretion of the parties. These include, in particular, the obligations of the copyright holder:

ensure the registration of a commercial concession agreement (clause 2, article 1028 of the Civil Code of the Russian Federation);

provide the user with ongoing technical and advisory assistance, including assistance in training and advanced training of employees (clause 2, article 1031 of the Civil Code of the Russian Federation);

control the quality of goods (works, services) produced (performed, rendered) by the user on the basis of a commercial concession agreement (clause 2, article 1031 of the Civil Code of the Russian Federation).

The commercial concession agreement may provide for the right of the user to allow other persons to use the complex of exclusive rights granted to him or part of this complex on the terms of subconcession, agreed by him with the right holder or specified in the commercial concession agreement. The agreement may provide for the obligation of the user to grant, within a certain period of time, to a certain number of persons the right to use these rights on the terms of subconcession (clause 1, article 1029 of the Civil Code of the Russian Federation).

Thus, under the contract sub-concessions the user acts as a secondary copyright holder, and his counterparty acts as a secondary user. With the help of a sub-concession, the original right holder expands his ability to influence the market for his goods or services and is therefore interested in issuing them. In this regard, the law allows for the possibility of replacing a secondary right holder (i.e. a user under the main commercial concession agreement) with the main right holder in the event of early termination of a concession agreement concluded for a period, or termination of such an agreement concluded without specifying a period (clause 3 of Art. 1029 of the Civil Code of the Russian Federation).

If the commercial concession agreement was concluded for a certain period, then it is valid during this period, and if it is concluded without specifying a period, until it is terminated in the manner prescribed by law. However, even before the termination of the contract, it may be terminated or modified.

Amending the contract is carried out by agreement of the parties. It can also be changed in court at the request of one of the parties in case of a material breach of the contract by the other party. Finally, the contract can be amended if there is a significant change in the circumstances from which the parties proceeded when concluding the contract. At the same time, any changes to the commercial concession agreement are subject to mandatory state registration in the same manner as its conclusion (Article 1036 of the Civil Code of the Russian Federation), and only from the moment of registration the changes become effective for third parties.

As for the termination of the contract, in addition to the general grounds for termination of obligations, it is also terminated in the following cases:

a) unilateral repudiation of an agreement concluded without specifying a term. Each of the parties to the contract has the right to withdraw from the contract at any time by notifying the other party six months in advance, unless the contract provides for a longer period (clause 1, article 1037 of the Civil Code of the Russian Federation);

b) unilateral refusal of the user from the contract in the event of a change in the company name or commercial designation of the copyright holder (Article 1039 of the Civil Code of the Russian Federation);

c) termination of the rights to a company name and commercial designation belonging to the copyright holder without replacing them with new similar rights (clause 3 of article 1037 of the Civil Code of the Russian Federation);

d) the death of the right holder, if the heir does not register as an individual entrepreneur within six months from the date of opening of the inheritance (clause 2 of article 1038 of the Civil Code of the Russian Federation);

e) declaring the right holder or user insolvent (bankrupt) in accordance with the established procedure (clause 4, article 1037 of the Civil Code of the Russian Federation).

Termination of a commercial concession agreement is subject to state registration in the same bodies that register the conclusion of this agreement. Moreover, if any change to the contract is registered, then the termination of the contract is registered only if it occurred ahead of schedule (in cases where the contract was concluded for a certain period) or if the contract was concluded for an indefinite period.

During the term of the commercial concession agreement, the right holder may assign one or all of his exclusive rights to a third party. By itself, such a transfer of rights is not a basis for changing or terminating the contract (clause 1, article 1038 of the Civil Code of the Russian Federation). In this case, the new right holder simply acquires all the rights and obligations arising from the previously concluded commercial concession agreement.

In the event of termination of one of the exclusive rights included in the complex of exclusive rights transferred under a commercial concession agreement, the agreement continues to be valid, with the exception of those provisions that relate to the terminated right.

As an exception to the general rule, the liability of the parties under a commercial concession agreement occurs regardless of fault. At the same time, the right holder is responsible not only to the user for improper performance of the contract, but also to third parties for the inadequate quality of goods (works, services). This responsibility can be both subsidiary (additional) and joint and several.

In particular, the copyright holder bears judicial responsibility for the claims made to the user about the discrepancy between the quality of goods (works, services) sold, performed, rendered by the user under a commercial concession agreement (part 1 of article 1034 of the Civil Code of the Russian Federation). If the requirements are imposed on the user as a manufacturer of products (goods) of the right holder, then the latter is jointly and severally liable with the user. At the same time, the liability of the copyright holder is limited by the condition of quality and does not extend to violation by the user of other terms of contracts concluded with third parties (quantity, terms, etc.).

General rules
Article 1012 of the Civil Code of the Russian Federation establishes that under a property trust agreement, one party (the founder of the management) transfers to the other party (the trust manager) a certain period property in trust management, and the other party undertakes to manage this property in the interests of the founder of the management or the person indicated by him (the beneficiary).

The transfer of property for trust management does not entail the transfer of ownership of it to the trustee.

The trustee, when managing property, has the right to perform any legal and actual actions in relation to this property in accordance with the contract in the interests of the beneficiary (clause 2 of article 1012 of the Civil Code of the Russian Federation).

Restrictions on individual actions for trust management of property may be provided for by law or an agreement.

The trustee makes transactions with the transferred property on his own behalf, indicating that he acts as such a manager (clause 3 of article 1012 of the Civil Code of the Russian Federation). In practice, this requirement is considered to be complied with if, when performing actions that do not require written registration:
the counterparty is informed of their commission by the trustee;
in written documents after the name (name) the note “D. U."

If there is no indication of acting as a trustee, then he is liable to third parties personally and only with the property that belongs to him.

As a general rule, the founder of trust management is the owner of the property (Article 1014 of the Civil Code of the Russian Federation). The trustee may be an individual entrepreneur or an organization, with the exception of a unitary enterprise (Article 1015 of the Civil Code of the Russian Federation). The property cannot be transferred to trust management government agency or a local government body (clause 2, article 1015 of the Civil Code of the Russian Federation).

A trustee cannot be a beneficiary under a trust management agreement.

Can be transferred to trust management:
enterprises and other property complexes;
individual objects related to real estate;
securities;
rights certified by non-documentary securities;
exclusive rights, etc. (Clause 1, Article 1013 of the Civil Code of the Russian Federation).

Property that is under economic management or operational management cannot be transferred to trust management (clause 3 of article 1013 of the Civil Code of the Russian Federation).

Features of the conclusion of the contract
An agreement on trust management of property can only be concluded in writing (Article 1017 of the Civil Code of the Russian Federation). If the object of trust management is real estate, then the contract must be concluded in the form provided for the contract for the sale of real estate (clause 2 of article 1017 of the Civil Code of the Russian Federation), including it is subject to state registration (article 4 federal law dated July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it”).

The contract of trust management of real estate is considered concluded not from the date of its signing by the parties, but after the transfer of property to the trustee, provided that such transfer is certified by state registration.

At the same time, for tenants, an agreement on trust management of real estate will enter into force only from the date of state registration of such a transfer (clause 2, article 551 of the Civil Code of the Russian Federation). Before registering the transfer of property, all rights and obligations to third parties are borne by the owner, and not by the trustee.

It should be noted that it is not the trust management agreement itself that is subject to state registration, but the transfer of property for trust management. Thus, if the amendments and additions to the contract do not directly relate to real estate, but to the procedure for managing it, then there is no reason to register these documents.

The essential terms of the property trust management agreement are (Article 1016 of the Civil Code of the Russian Federation):
the composition of the property transferred to trust management;
the name of the legal entity or the name of the citizen in whose interests the management is carried out (the founder of the management or the beneficiary);
the amount and form of remuneration to the manager, if the contract provides for the payment of remuneration;
contract time.

In the absence of one of the above conditions, the contract is considered not concluded. For example, the lack of data in the contract that would make it possible to definitely establish the property to be transferred to the trustee is critical.

The contract of trust management of property is concluded for a period not exceeding five years. For certain types property transferred for trust management, the law may establish other deadlines for which an agreement can be concluded (clause 2, article 1016 of the Civil Code of the Russian Federation).

The time limit was established in order to protect the rights of the owner of the property. However, if the parties do not declare the termination of the contract at the end of its validity period, then it is considered extended for the same period and on the same conditions that were provided for by the contract.

The peculiarity of trust management is that this agreement is concluded not for making one-time transactions with property, but for managing it for a long time. Incidentally, this is confirmed judicial practice. That is, a management agreement cannot be concluded for the performance of any one-time action, since trust management implies the continuing nature of the relationship.

The property transferred to trust management must be separated from the property of both the manager and the founder of the management (Article 1018 of the Civil Code of the Russian Federation). That is, the objects are reflected in the trustee on a separate balance sheet and they are independently accounted for.

However, if securities from different founders are transferred to trust management, then they can combine their blocks of shares for transfer to him (Article 1025 of the Civil Code of the Russian Federation).

Property encumbered with a pledge can be transferred to trust management (clause 2 of article 1019 of the Civil Code of the Russian Federation), and the pledgor remains its owner and retains the ability to dispose of it. This is also beneficial for the mortgagee, since additional income from competent property management can help the owner fulfill his obligations to him. At the same time, the manager must be warned about the pledge, otherwise he has the right to demand:
termination of the contract;
remuneration for one year.

Rights and obligations of the parties
The trustee has the right to perform any legal and actual actions in relation to this property in accordance with the contract in the interests of the beneficiary. Restrictions may be provided for by law or an agreement (clause 2, article 1012 of the Civil Code of the Russian Federation).

In the interests of the owner of the property, the aspects related to the reporting of the trustee, as well as the need to coordinate the conclusion of individual transactions with the property transferred for management, should be stipulated in the contract.

Thus, you can protect yourself, for example, from unauthorized sale of property. That is, the founder of the management can restrict the actions of the trustee, for example, prohibit him from selling property without his consent.

The property of the founder transferred under a trust management agreement is not allowed to be levied on the debts of the founder, except in cases of bankruptcy (clause 2, article 1018 of the Civil Code of the Russian Federation). If, in the course of the trust management agreement, debts arose on obligations in connection with the management of property, then they are repaid at the expense of this property.

In case of insufficiency of the property of the founder, transferred under the trust management agreement, and the property of the manager, the collection of debts may also be applied to the property of the founder of the management, not transferred to the trust management.

Obviously, the trustee must be chosen carefully, otherwise you can not only not make a profit, but also lose what you have.

A trustee is also liable for his own property if he:
did not notify the counterparty of the conclusion of the transaction as a manager;
made a transaction in excess of the powers granted to him;
made a transaction in violation of the restrictions established for him.

He is also obliged to compensate for the losses incurred by the founder (Article 1022 of the Civil Code of the Russian Federation).

The trustee must also take care of the interests of the founder and beneficiary, and failure to comply with this requirement entails the responsibility of the trustee:
the beneficiary is compensated for lost profits;
to the founder - losses caused by the loss or damage to property, plus lost profits (clause 1, article 1022 of the Civil Code of the Russian Federation).

The trustee may be released from liability for losses caused to the beneficiary and the founder of the management due to force majeure or the action of the beneficiary or the founder of the management (Clause 1, Article 1022 of the Civil Code of the Russian Federation). That is, if a fire occurs due to the fault of third parties, then the trustee is responsible, if the property is destroyed as a result, for example, natural disaster the manager is not responsible.

The property trust management agreement may provide for the provision by the trustees of a pledge to secure compensation for losses that may be caused to the founder of the management or the beneficiary by improper performance of the trust management agreement (Clause 4, Article 1022 of the Civil Code of the Russian Federation).

If securities are transferred to trust management, then attention should be paid to the fact that the failure of the issuer to fulfill its obligations does not exempt from liability. Grounds: only force majeure exempts the trustee from liability, the circumstances of which do not include, in particular, violations of obligations by counterparties. With this in mind, attempts to include such conditions in the contract should be stopped.

The trustee is entitled to remuneration, stipulated by the agreement trust management of property, as well as to reimburse the necessary expenses incurred by him during the trust management of property, at the expense of income from the use of this property (Article 1023 of the Civil Code of the Russian Federation).

At the same time, the trustee must document the fact of incurring the expenses caused by the trust management of property, otherwise he may be denied reimbursement of the necessary expenses.

Termination of the contract
An agreement on trust management of property may be terminated due to (Article 1024 of the Civil Code of the Russian Federation):
death of a citizen who is a beneficiary, or liquidation of a legal entity - beneficiary, unless otherwise provided by the agreement;
refusal of the beneficiary to receive benefits under the contract, unless otherwise provided by the contract;
death of a citizen who is a trustee, recognition of his incapacity, limited capacity or missing, as well as recognition of an individual entrepreneur as insolvent (bankrupt);
refusal of the trustee or the founder of management from the implementation of trust management due to the impossibility for the trustee to personally carry out trust management of property;
refusal of the founder of the management from the contract for reasons other than those specified in paragraph 5 of clause 1 of Article 1024 of the Civil Code of the Russian Federation, subject to the payment to the trustee of the remuneration stipulated by the contract;
declaring insolvent (bankrupt) a citizen-entrepreneur who is the founder of the management. In case of refusal of one party from the agreement on trust management of property, the other party must be notified of this three months before the termination of the agreement, unless the agreement provides for a different notice period.

An extension of the contract under the same conditions and for the same period may be refused if the founder of the trust management sent a letter on termination of the trust management agreement and the obligation to return the property within the prescribed period.

Upon termination of the trust management agreement, the property held in trust management shall be transferred to the founder of the management, unless otherwise provided by the agreement.

IMPORTANT:

If an economic entity owns property, the management of which requires special knowledge and qualifications, then it seems appropriate to transfer the property to trust management by drawing up a special agreement for this.

Failure to comply with the form of an agreement on trust management of property or the requirement to register the transfer of real estate to trust management entails the invalidity of the agreement (clause 3 of article 1017 of the Civil Code of the Russian Federation).

The trustee has the right to perform any legal and actual actions in relation to the property in accordance with the agreement in the interests of the beneficiary. Restrictions may be provided for by law or an agreement (clause 2, article 1012 of the Civil Code of the Russian Federation).

The trustee must document the fact of incurring the expenses caused by the trust management of property, otherwise he may be denied reimbursement of the necessary expenses.

Margarita POLUBOYARINOVA, expert of LLC "Your reliable partner"

CONTRACT N _____

trust management of real estate

_______________ "__"___________ ____ d. __________________________________, hereinafter referred to as ___ "Founder (name of organization) of the Department", represented by ____________________________________________________________, (position, full name) acting __ on the basis of ________________________________, on the one hand, (Charter, power of attorney) and _________________________________, hereinafter referred to as ___ "Trust (name of organization) manager", represented by _____________________________________________________, (position, full name) acting __ on the basis of _____________________, on the other hand, jointly (Charter, power of attorney) referred to as "Parties" , individually the "Party", have entered into this agreement (hereinafter referred to as the "Agreement") as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. The Trustee transfers to the Trustee for the period specified in this Agreement the property for trust management, and the Trustee undertakes to manage this property in the interests of the Trustee.

———————————

<*>The contract is considered concluded if between the parties, in the form required in the relevant cases, an agreement is reached on all essential conditions contracts. The condition on the subject of the contract is an essential condition of the contract (clause 1 of article 432 Civil Code Russian Federation). The essential terms of the contract are the terms that are named in the law or other legal acts as essential or necessary for contracts of this type (paragraph 2, clause 1, article 432 of the Civil Code of the Russian Federation).

1.2. The object of trust management is ___________________________________ ________________________________________________________________________________, (indicate the name and other characteristics of real estate) located at: __________________________________________________ (hereinafter referred to as the "Property"). The property belongs to the Founder of the Department on the right of ownership, which is confirmed by Certificate N _____, issued by ___________________________ (indicate the issuing authority) dated "__" ___________ ____

———————————

The composition of the property transferred to trust management is an essential condition of the trust management agreement (clause 1, article 1016 of the Civil Code of the Russian Federation).

1.3. This Agreement is concluded for a period up to _____________________. (the term of the Agreement cannot be more than five years)

1.4. The transfer of the Property for trust management does not entail the transfer of ownership of it to the Trustee.

1.5. The transfer of the Property for trust management is subject to state registration in accordance with the procedure established by the current legislation of the Russian Federation.

The transfer of real estate for trust management is subject to state registration in the same manner as the transfer of ownership of this property (clause 2, article 1017 of the Civil Code of the Russian Federation). The right of ownership and other real rights to immovable things, restrictions of these rights, their emergence, transfer and termination are subject to state registration in the Unified state register bodies that carry out state registration of rights to real estate and transactions with it (clause 1, article 131 of the Civil Code of the Russian Federation).

2. RIGHTS AND OBLIGATIONS OF THE PARTIES

2.1. The founder of the management has the right:

2.1.1. Check the execution of the Agreement by the Trustee.

2.1.2. Exercise control over the actions of the Trustee by inspecting the Property transferred to the trust and reviewing the balance sheet maintained by the Trustee.

2.1.3. Receive all information and reports submitted by the Trustee to state regulatory authorities in accordance with the current legislation of the Russian Federation.

2.1.4. Receive income from the Property transferred for management, less the amounts payable to the Trustee in the form of remuneration and compensation for expenses on trust management.

2.2. The founder of the department is obliged:

2.2.1. Transfer to the Trustee the Property, as well as all documents and information necessary for the performance of obligations and the exercise of rights under this Agreement.

2.2.2. Pay remuneration in accordance with Section 4 of this Agreement.

2.2.3. Upon termination of this Agreement, accept the Property returned by the Trustee in the manner prescribed by this Agreement.

2.3. Transactions with Property The Trustee makes on his own behalf, indicating that he acts in his capacity as the Trustee, by noting in written documents after the name or title of the Trustee "D.W."

2.4. The trust manager exercises, within the limits provided for by law and this Agreement, the powers of the owner in relation to the Property transferred for trust management. The Trustee may dispose of the Property only with the prior written consent of the Trustee in the following cases:

1. ____________________________________________________________.

2. ____________________________________________________________.

3. ____________________________________________________________.

2.5. The rights acquired by the Trustee as a result of the management of the Property are included in this Property. The obligations arising as a result of such actions of the Trustee shall be discharged at the expense of this Property.

2.6. In order to protect the rights to the Property held in trust management, the Trustee has the right to demand any elimination of the violation of his rights in accordance with the civil legislation of the Russian Federation.

2.7. The trustee must:

2.7.1. Separate the Property received by him in trust management or acquired by him at the expense of the Founder's funds from other property of the Founder of Management and from own property. This Property is reflected in the Trustee on a separate balance sheet, and independent accounting is maintained for it.

2.7.2. Open a separate bank account for settlements on activities related to the trust management of the Property.

2.7.3. Within _____ days after the end of the next quarter, submit to the Founder of the Department a report on its activities.

2.7.4. Transfer to the Founder of the Management all the benefits and income received from the trust management of the Property, with the exception of funds used to cover the costs associated with trust management, taxes, as well as other payments and expenses provided for by this Agreement.

Income received from the management of the Property, as well as expenses incurred by the Trustee in the course of the execution of this Agreement, are accounted for by him on a separate balance sheet and indicated in the report submitted to the Trustor of the management.

If the amount of income received from the management of the Property exceeds the expenses incurred in connection with this, the Trustee is obliged to transfer the existing difference to the Trustor.

The amounts of the difference indicated above must be transferred by the Trustee to the Settlement Account of the Settler of the Trust specified in Section 9 of this Agreement.

2.7.5. Ensure the safety of the Property held in trust.

2.8. Expenses associated with the transfer of real estate for trust management and state registration of the said transfer shall be borne by ____________________________________. (indicate the Party to the Agreement)

3. PROCEDURE FOR TRANSFER AND RETURN OF PROPERTY

3.1. Within _____ (__________) days from the date of conclusion of this Agreement, the Trustor of the Management transfers the Property to the Trustee.

3.2. The transfer of the Property is carried out according to the Act of acceptance and transfer of the Property, which is an integral part of this Agreement.

3.3. In the event of early termination or termination of this Agreement, the Trustee returns the Property held in trust within _____ days from the date of expiration of the Agreement.

3.4. The return of the Property is also carried out under the Act of acceptance and transfer of the Property, which is drawn up by the Trustee within the period established by clause 3.3 of this Agreement.

4. REMUNERATION TO THE TRUSTEE

The amount and form of remuneration to the manager (if the latter is provided for by the agreement) are an essential condition of the trust management agreement (clause 1, article 1016 of the Civil Code of the Russian Federation).

4.1. The amount of the Trustee's remuneration under this Agreement is _____% of the income received as a result of trust management, and is paid within _____ (__________) business days from the date of approval of the relevant report.

4.2. The Trustee has the right to full reimbursement of the necessary expenses incurred by him, related to the management of the Property, at the expense of income from the use of this Property.

5. RESPONSIBILITIES OF THE PARTIES

5.1. Debts under obligations arising in connection with the trust management of the Property shall be repaid at the expense of this Property. In case of insufficiency of this Property, the recovery may be levied on the property of the Trustee, and in case of insufficiency of his property - on the property of the Trustor of the management, not transferred to trust management.

5.2. The Trustee shall be liable for any harm or damage caused by him to the interests of the Trustee in managing the Property, except for harm or damage caused by force majeure or actions of the Trustee.

5.3. The Trustee, who has not shown due diligence for the interests of the Trustor, compensates the latter for losses caused by the loss or damage to the Property, taking into account its natural wear and tear, as well as lost profits.

6. PROCEDURE FOR AMENDING, TERMINATION AND TERMINATION OF THE AGREEMENT

6.1. All changes and additions to the Agreement are valid if made in writing and signed by duly authorized representatives of the Parties. Relevant additional agreements The Parties are an integral part of the Agreement and are subject to state registration in the manner prescribed by the civil legislation of the Russian Federation.

All notices and communications under the Agreement must be sent by the Parties to each other in writing.

6.2. This Agreement may be terminated early by agreement of the Parties, as well as unilaterally on the grounds established by the current legislation of the Russian Federation.

6.3. The Trustor has the right to withdraw from the Trust Management Agreement at any time, subject to the payment to the Trustee of the remuneration due under the Agreement for the entire period of the Agreement.

6.4. In case of unilateral refusal of one Party from the Agreement, the other Party must be notified in writing of this at least three months before the termination of the Agreement.

6.5. In the absence of a statement by one of the Parties on termination of the Agreement at the end of its validity period, it is considered extended for the same period and on the same conditions.

6.6. In the event of termination of the Agreement, regardless of the grounds for its termination, the Property held in trust management must be returned to the Trustor.

7. DISPUTES RESOLUTION

7.1. All disputes and disagreements arising between the Parties on the content of this Agreement and in connection with it will be resolved through negotiations on the basis of current legislation Russian Federation.

7.2. If the Parties have not reached mutual agreement during the negotiation process, disputes are resolved in court at the location of the Property (option: in the arbitration court ____________________ at the address: _________________________ in accordance with its regulations).

8. FINAL PROVISIONS

Along with the condition on the subject of the contract, as well as the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, the essential terms of the contract are all those conditions regarding which, at the request of one of the parties, an agreement must be reached (para. 2 paragraph 1 article 432 of the Civil Code of the Russian Federation). Thus, the parties have the right to determine for themselves any condition as essential, in case of inconsistency of which the contract cannot be considered concluded.

8.1. This Agreement comes into force from the moment of state registration of the transfer of the Property to trust management and is valid for the period specified in clause 1.3 of this Agreement.

8.2. In the absence of a statement by one of the Parties on termination of the Agreement at the end of its validity period, it is considered extended for the same period and on the same conditions.

8.3. For all other issues not regulated by this Agreement, the Parties will be guided by the current legislation of the Russian Federation.

8.4. This Agreement is made in triplicate, one of which is kept by the Founder of the Department, the second by the Trustee, and the third by the body that carries out state registration of rights to real estate and transactions with it.

9. ADDRESSES, DETAILS AND SIGNATURES OF THE PARTIES

Trustor Name: ______________________ Name: ______________________ Address: _____________________________ Address: _____________________________ OGRN _______________________________ OGRN _______________________________ TIN ________________________________ TIN ________________________________ KPP ________________________________ KPP ________________________________ R/s ________________________________ R/s ________________________________ in __________________________________ in _________________________________ C/s ________________________________ C/s ________________________________ BIC ________________________________ BIC ________________________________ OKPO _______________________________ OKPO _______________________________ ______________ (___________________) ______________ (___________________) M.P. M.P.

A property trust agreement is an agreement on the transfer of the selected powers of the owner to the manager for a certain period of time, as a rule, in order to generate income. More details about the essential conditions of this type of transactions, about the features of their conclusion and execution are described in this article.

Trust management agreement

— a successfully developing version of property relations, a special process of property management, providing for the widest possible powers of the manager in relation to the object of management.

Prior to the adoption of the current Civil Code, the Russian legislator tried to instill trust property, or a trust, from the Anglo-Saxon branch of law, which ultimately did not take root.

Trust management is not the alienation of property, that is, the manager does not receive the property transferred to him into ownership. This is the main distinguishing feature of trust management in comparison with a trust, in which the transfer of property rights to the trustee is assumed (decree of the President of the Russian Federation of December 24, 1993 No. 2296, which has become invalid).

The reasons for transferring property to trust management (hereinafter referred to as TC) are most often the owner’s lack of knowledge and/or experience for independent management or the lack of such an opportunity.

The purpose of using this property management mechanism is to make a profit from the property without direct participation and time expenditure.

Sample contract of trust management can be downloaded from the link: Sample real estate trust management agreements .

Features of the contract of trust management of property

Features include the following:

• The conclusion of the contract is allowed exclusively by the owner. Ignoring this requirement gives rise to the nullity of the transaction, except for the cases specified in Art. 1026 of the Civil Code of the Russian Federation (Resolution of the Federal Antimonopoly Service of the Urals District dated April 25, 2011 No. Ф09-1569 / 11-С5).
• The nature of the legal relationship is lasting, a one-time transaction as the goal of the manager's activity is excluded (Resolution of the Federal Antimonopoly Service of the Moscow District dated January 30, 2001 No. KG-A41 / 112-01).
• Isolation of property: accounting is carried out on a separate balance sheet, and for settlements under remote control, a separate bank account is used, opened by managers marked “Trust Management” (Resolution of the Federal Antimonopoly Service of the Urals District dated September 06, 2011 No. F09-5496 / 11).
• It is possible to conclude in favor of a third party - the beneficiary (clause 1 of article 1012 of the Civil Code of the Russian Federation).
• Validity trust management agreements limited to 5 years (clause 2, article 1016 of the Civil Code of the Russian Federation).
• The manager is authorized to carry out actions of a legal and factual nature with the property; restriction of his rights exclusively by actual activity leads to the fact that property trust agreement qualifies in court as the provision of services (Decree of the Federal Antimonopoly Service of the Volga District dated November 14, 2000 No. A12-2240 / 2000-s24).
• The debt that has become the result of property management is covered from its value (clause 3 of article 1022 of the Civil Code of the Russian Federation).

IMPORTANT! The subject of trust management cannot be levied within the framework of enforcement proceedings.

However, there are a number of exceptions to this provision:

• bankruptcy of the founder of the remote control - in this case, the specified property constitutes the bankruptcy estate along with the rest of the property (clause 2 of article 1018 of the Civil Code of the Russian Federation);
• transfer of collateral property to the remote control - the pledgee in such a situation is not deprived of the opportunity to claim it in the order of recovery (Article 1019 of the Civil Code of the Russian Federation).

However, when the enforcement proceedings have already been initiated and / or the debtor's property has been seized, the transfer to management will be regarded as an abuse of the right, and the transaction is declared void (clause 10 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 25, 2008 No. 127).

Essential terms of the contract of trust management of property

To essential conditions trust management agreements relate:

1. The composition of the property.

   It implies an accurate description of the property, its individualizing features and composition (Article 1016 of the Civil Code of the Russian Federation), and neglecting the condition, according to the courts, leads to non-conclusion trust management agreements. An example is the decision of the 7th AAC dated November 30, 2011 in case No. A45-3341 / 2011.

2. Manager's fee.

   The absence of a condition on remuneration (its form, amount, etc.) does not entail the application of the norms of Art. 424 of the Civil Code of the Russian Federation on the procedure for determining the price: in this case property trust agreement qualifies as invalid.

   There may be a free clause. A gratuitous remote control is considered when it is expressly stipulated in the contract, otherwise the transaction should be declared invalid (void) as expressly stated in Art. 1016 of the Civil Code of the Russian Federation.

   In practice, the definition of a clear amount of remuneration is not always convenient or applicable, more often the parties determine this amount as a percentage of the income received. However, this seemingly convenient method hides the risk of qualifying the contract as a void transaction (decree Arbitration Court Moscow District dated September 26, 2014 No. Ф05-9456/14). When setting remuneration not in monetary terms, one should check whether it contradicts the norms of the current legislation (Resolution of the Federal Antimonopoly Service of the North Caucasus District of October 11, 2001 No. Ф08-3279 / 2001).

3. Contract term.

   In general, the period trust management agreements limited to 5 years (clause 2, article 1016 of the Civil Code of the Russian Federation). The contract is real, that is, it begins to operate at the time of the actual transfer of property. This rule is also applicable to those cases when the encumbrance of the object is registered by the state, since the law does not prohibit the execution of the contract before state registration.

Parties to the contract of trust management of property

This role may be played by:

• founder of management;
• beneficiary;
• trustee.

By default, the owner is considered the founder of the management. However, there are exceptions allowed by Russian law:

• guardian/custodian (Article 38 of the Civil Code of the Russian Federation);
• executor or notary (Article 1173 of the Civil Code of the Russian Federation);
• government agency, etc.

The beneficiary may be a citizen or legal entity. He is not a party to and is not always present in a legal relationship. The appearance of a beneficiary gives the contract in question the features of an obligation in favor of a third party, as a result of which it becomes impossible to terminate or change the agreement without the consent of this third party (Article 430 of the Civil Code of the Russian Federation).

The founder of the management and the beneficiary may be the same. If the last one in property trust agreement is not specified, then the obligation is fulfilled by default in favor of the founder.

As a general principle, a trustee is a business entity; from commercial organizations not entitled to engage in this activity unitary enterprises. If there is a special instruction in the law, then the manager can become individual or non-profit organization. The trustee is not entitled to become a beneficiary due to a direct prohibition of the law (clause 3 of article 1015 of the Civil Code of the Russian Federation).

Specifics of a trustee

The functionality of the manager implies reporting to the founder of the department (clause 4 of article 1020 of the Civil Code of the Russian Federation), as well as bearing responsibility to him:

• The manager is obliged to compensate not only for real damage, but also for lost profits.
• For the obligations of the remote control in excess of the value of the entrusted object, the manager is responsible, first of all, with his property, and only if the latter is insufficient, it is possible to levy execution on the property of the owner.
• In case of exceeding his authority, the manager is personally liable for the damage caused.
• The law imposes on the manager the obligation to exercise due care for the legitimate interest of the persons who established the management or beneficiaries. However, in judicial practice there is no established position on the question of what is meant by due diligence. Therefore, when applying to the court, you will have to prove a causal relationship between the actions of the manager and the losses incurred (decree of the 9th AAS dated 02.12.2013 No. 09AP-39337/2013).

The manager acts on his own behalf. Its status in relation to the managed object is indicated by the note “Trust Management” in the documents (clause 3 of article 1012 of the Civil Code of the Russian Federation; determination of the Supreme Arbitration Court of the Russian Federation of December 21, 2011 No. VAS-14518/11). Its absence will lead to the fact that the responsibility for transactions will be borne by the manager directly of his property.

It is necessary to describe in more detail the powers of the manager, especially in terms of disposing of property, for example, the admissibility of concluding a lease for a period exceeding the term of the remote control, as well as the sale of property (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 07.06.2011 No. 495/11).

Types of trust management agreements

The type of remote control depends on the object transferred for management, which determines the features of the contract and the duration of its validity.

So, a remote control agreement can be concluded in relation to:

• valuable papers;
• exclusive rights;
• enterprises;
• real estate;
• hereditary property;
• air or sea ​​vessels etc.

However, there are some restrictions on securities: by virtue of Section II of the Order of the Federal Financial Markets Service of the Russian Federation “On Approval of the Procedure for Carrying out Activities for the Management of Securities” dated 04/03/2007 No. 07-37/pz-n, far from all types of them can be objects of management. In particular, DU is not allowed in relation to:

• tradeable securities,
• bills,
• checks
• deposit certificates,
• unnamed passbooks (to bearer).

Real estate trust agreement

The transfer of real estate into trust management is subject to the state registration procedure carried out by the Rosreestr authorities.

IMPORTANT! It is not a contract that should be registered, but rather the transfer of an immovable object as a basis for its encumbrance, since this fact is recorded in the USRR (clause 1, article 4 of the Federal Law “On state registration of rights ...” dated July 21, 1997 No. 122-FZ (hereinafter - the Law on registration of rights).

Therefore, all changes and additions to it are formalized as annexes to it in simple written form without registration (Resolution of the Federal Antimonopoly Service of the Far East of June 26, 2007 No. F03-A73 / 07-1 / 1656).

notarization trust management agreements for real estate is not required, unless the parties decide otherwise.

Transactions related to the disposal of real estate on the terms of trust management, from January 15, 2016, in accordance with Art. 30 of the Law on registration of rights are subject to mandatory notarization.

The current legislation does not impose requirements on the assessment of the value of the transferred property trust agreement real estate. But the assessment is obligatory for objects belonging to the Russian Federation, subjects of the Russian Federation or municipalities when transferring them to trust management.

Acceptance and transfer of property takes place on the basis of the relevant act.

The law does not provide for a change in persons in an obligation under the remote control, therefore, if the owner decides to sell his property, the contract will terminate (determination of the Supreme Arbitration Court of the Russian Federation of October 28, 2009 No. VAS-11689/09).

Contract of trust management of hereditary property

This agreement is one of the exceptions, where a notary or an executor of a will can become the founder of the management.

Heirs are appointed as beneficiaries under the agreement. It is in this type of agreement that the failure to indicate the beneficiary will not entail negative consequences, since the circle of heirs is determined not at its conclusion, but over a long period of entry into the inheritance, for the period of which trust management is established (determination of the St. -2845/2014). In this case, the identification of new heirs does not entail the invalidity of the contract, and the generated consequence is their accession to the number of beneficiaries (definition Supreme Court RF of 07.07.2015 No. 78-KG15-7).

Special requirements for the execution of trust management of the property of a deceased citizen are established in Art. 37, 1171 of the Civil Code of the Russian Federation:

• valuation of property in order to calculate the amount of the manager's remuneration (not higher than 3% of the cost);
• prior consent to the transaction of the guardianship authorities, if there are minor heirs;
• the maximum validity period is 6 months (or 9 months in special cases).

So, property trust agreement acts as one of the options for using property in order to generate income efficiently, on professional basis, at the same time with minimal personal involvement and in the absence of time costs.

Like any type of cooperation, such an agreement is characterized by a number of advantages and disadvantages.

Advantages:

• one of simple ways investment;
• accounting is maintained by the manager;
• segregation of property;
• management is carried out by a professional who knows the market and its pitfalls;
• high degree of responsibility of the manager;
• ownership is not transferred;
• protects property from creditors for debts of the founder.

Flaws:

• the contract is based on trust;
• there is no clear list of rights and obligations of the manager;
• lack of information on the actual cash flow on the Trust account;
• income is not guaranteed.