Commercial property management contract. Property trust management agreement (sample)

The page presents, relevant in 2019, Form of an agreement on trust management of real estate (apartment), concluded between individuals. You can download it to yourself at any time in .doc, .rtf or .pdf format, the size of the document file is 20.7 kb.

Subject of the contract
Confidential nature of the contract
The term of the contract and the conditions for its early termination
Duties of the parties
Special conditions
Settlements and the right to remuneration
Rights and obligations of the trustee
Responsibility of the parties
Dispute Resolution
Additional terms
Addresses and details of the parties
Signatures of the parties

CONTRACT OF TRUST MANAGEMENT of real estate (apartment)

G. _______________

"_____" _______________ 2016

Citizen ______________________________, passport: series __________, No. __________, issued by ____________________, residing at the address: ______________________________, hereinafter referred to as " principal”, on the one hand, and Citizen ______________________________, passport: series __________, No. __________, issued by ____________________, residing at the address: ______________________________, hereinafter referred to as “ Trustee”, on the other hand, hereinafter referred to as the “Parties”, have concluded this agreement, hereinafter referred to as the “Agreement”, as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. The principal transfers the apartment belonging to him on the right of ownership, located at the address: ______________________________, with a total area of __________ sq. m for use for the purpose of ______________________________ in trust management to the Trustee within __________ days after signing this Agreement, and the Principal accepts it.

1.2. This apartment has the following characteristics: total usable area - __________ sq.m; living area - __________ sq.m; number of rooms __________;

1.3. The Principal guarantees that at the time of the conclusion of this Agreement the apartment is not mortgaged, is not under arrest and is not burdened with any other obligations.

1.4. The trustee uses the apartment during the entire term of the Agreement in accordance with its intended purpose (for living).

1.5. Ownership of the said property is confirmed by the following documents: ______________________________.

1.6. The trustee owns and disposes of the transferred residential premises solely in the interests of the owner.

1.7. The transfer of residential premises to trust management does not entail the transfer of ownership of it to the Trustee.

2. TRUST NATURE OF THE CONTRACT

2.1. By entering into this Agreement, the Principal places special trust in the Trustee as the person who is best able to dispose of the premises belonging to the Principal.

2.2. When exercising the rights and fulfilling the obligations arising from the Agreement, the Trustee is obliged to act in good faith and in the manner that is best for the interests of the Principal.

2.3. The Trustee has the exclusive right to determine what course of action in respect of the managed residential property is in the best interests of the Trustee.

3. TERM OF THE AGREEMENT AND THE CONDITIONS OF ITS EARLY TERMINATION

3.1. The term of this Agreement is determined from "_____" _______________2016 to "_____" _______________2016.

3.2. The rights and obligations of the Trustee to manage the property arise from the moment the residential premises are transferred to the Trustee. The transfer of residential premises is carried out according to the act of transfer of property, signed by both parties. The act of transfer is drawn up in two copies, one of which is handed over to the Principal of the residential premises, and the second - to the Trustee.

3.3. The contract may be terminated before the expiration of the period specified in paragraph 3.1 in the event of the following circumstances:

if the Trustee is declared bankrupt in accordance with applicable law;
in the event of liquidation of the Trustee;
in the event that the Trustee commits actions that are clearly directed to the detriment of the interests of the Principal;
when the Trustee refuses to exercise trust management due to the impossibility for the Trustee to personally carry out trust management of property;
by agreement of the parties;
on other grounds, if such grounds are provided for by law, this Agreement or additional agreements on it.

3.4. The Principal has the right to withdraw from the Agreement at any time, subject to the payment to the Trustee of the remuneration due under the Agreement for the last month of the Agreement.

3.5. If one party withdraws from the Agreement, the other party must be notified at least __________ days prior to termination of the Agreement.

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

4. OBLIGATIONS OF THE PARTIES

4.1. The trustee must:

transfer to the Principal all the benefits and income received from the trust management of the residential premises, with the exception of funds used to cover the costs associated with the trust management of the remuneration due to the Trustee, other payments and expenses provided for by this Agreement;
make settlements with the Principal within the time and in the manner established by this Agreement;
during the term of this Agreement, timely make all necessary utility payments (for electricity, use of water, telephone, and others) in the prescribed manner;
monitor the use of properly transferred property, its use in accordance with its purpose and technical features;
demand compliance with the rules for the use of residential premises from tenants, including safety rules, take the necessary measures to preserve the apartment and the equipment installed in it;
demand that the apartment be kept in good condition;
demand from tenants compensation for damage caused to the premises and the property installed in it through the fault of tenants or third parties in the event of force majeure circumstances;
bear other obligations established by the current legislation for tenants of residential premises;
provide a report on its activities to the Principal;

4.2. The trustee assumes responsibility for settling all risks associated with damage or loss, theft or premature wear of the equipment installed in the apartment that occurred during the term of this Agreement. In the event of loss or damage to the equipment, the Trustee is obliged, at the expense of the tenants of the residential premises, to repair or replace the relevant property with any other property acceptable to the Principal, if any.

4.3. The Trustee is obliged to inform the Principal on all issues and circumstances related to the transferred property. Communications must be timely and complete.

5. SPECIAL CONDITIONS

5.1. The parties have the right to establish special conditions for property management.

5.2. Special conditions are established by an additional agreement.

5.3. The Trustee has the right to unilaterally withdraw from this Agreement if the special terms of trust management offered by the Principal differ significantly from the terms of this Agreement and will be clearly unfavorable for the Trustee or will significantly impede the fulfillment of his duties on trust management, including in part earning profits and other income.

6. SETTLEMENTS AND RIGHT TO REMUNERATION

6.1. The Trustee pays __________ rubles to the Trustee on a monthly basis.

6.2. The trustee is entitled to receive remuneration in the amount of __________% of the income received as a result of trust management. The amounts due to the Principal must be paid to him monthly, no later than the __________ day of the month following the expired month, quarter. Payment for utilities, electricity, telephone communications, the Internet is carried out by the Trustee at the expense of the tenants of the residential premises.

6.3. 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.

6.4. Funds transferred by the Trustee to the Principal are paid in cash or transferred to the settlement account specified in the supplementary agreement.

6.5. The Trustee shall monthly transfer to the settlement account of the Principal, specified in the supplementary agreement, funds in the amount of a monthly rent minus the remuneration to the Trustee and the costs of paying for utilities, electricity, telephone communications, and ______________________________.

7. RIGHTS AND OBLIGATIONS OF THE PRINCIPAL

7.1. The trustee has the right:

verify the performance of the Agreement by the Trustee and receive all information and reports submitted by the Trustee to state regulatory authorities in accordance with applicable law;
file claims against the Trustee in case of violation of this Agreement with the aim of issuing court decisions obliging him to fulfill the Agreement and eliminate the adverse consequences of violations committed by him;
in case of loss of confidence in the Trustee, terminate this Agreement ahead of schedule unilaterally;
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.

7.2. The Principal is obliged to transfer to the Trustee all documents and information necessary for the performance of obligations and the exercise of rights under this Agreement.

8. RESPONSIBILITY OF THE PARTIES

8.1. The Trustee shall be liable for any harm or damage caused by him to the interests of the Principal in the management of property, with the exception of harm or damage caused by force majeure or the actions of the Principal.

8.2. Debts under obligations arising in connection with the management of property are repaid at the expense of income received from it.

8.3. For failure to provide the premises specified in clause 1.1 of this Agreement within __________ days due to the fault of the Principal, the Principal shall pay a penalty in the amount of __________% of the amount of remuneration for each day of delay.

8.4. In case of non-payment by the Trustee within the terms established by this Agreement, a penalty in the amount of __________% per day is charged on the overdue amount for each day of delay.

8.5. Payment of the penalty (penalty) established by this Agreement does not relieve the parties from fulfilling their obligations or eliminating violations.

9. DISPUTES RESOLUTION

9.1. Disputes arising from this Agreement are resolved in court, in the manner prescribed by law.

10. ADDITIONAL TERMS

10.1. This Agreement has the following appendices, which are its integral parts: ______________________________.

10.2. This Agreement is made in duplicate, having equal legal force and kept by the Principal and the Trustee.

11. ADDRESSES AND DETAILS OF THE PARTIES

principal

Trustee Registration address:________________________________________ Postal address:________________________________________ Passport series, number:____________________ Issued by:____________________________________________ When issued:_______________ Contact phone number:____________________

12. SIGNATURES OF THE PARTIES

Trustee _________________

in a person acting on the basis of , hereinafter referred to as " Founder”, on the one hand, and in the person acting on the basis of , hereinafter referred to as “ Manager”, on the other hand, hereinafter referred to as “ Parties”, have concluded this agreement, hereinafter referred to as the “Agreement”, as follows:

1. SUBJECT OF THE CONTRACT AND OTHER GENERAL PROVISIONS

1.1. According to this agreement, the Founder of the Management transfers the property to the Manager for a certain period of time in trust management, and the Manager undertakes to manage this property in the interests of the Founder of the Management.

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

1.3. The manager has the right to perform any legal and actual actions in relation to the property transferred for management in the interests of the Founder.

1.4. The Trustee makes transactions with the property transferred for management on his own behalf, indicating that he acts as a trustee by making a note in written documents after the name or title of the Trustee "D.U."

1.5. The object of trust management is, hereinafter referred to as "property".

1.6. The amount of the Manager's remuneration is: rubles and is paid within the following terms and in the following order: .

1.7. The property transferred to trust management is reflected in the Manager's account on a separate balance sheet and independent accounting is kept for it.

1.8. For settlements on activities related to trust management, a separate bank account is opened.

1.9. The property is transferred in the following order: .

2. RIGHTS AND OBLIGATIONS OF THE MANAGER

2.1. The manager exercises, within the limits provided for by law, the powers of the owner in relation to the property transferred to trust management. The Manager shall dispose of immovable property in the following cases: .

2.2. The rights acquired by the Manager as a result of actions for trust management of property are included in the composition of the property transferred to trust management. The obligations arising as a result of such actions of the Manager are performed at the expense of this property.

2.3. To protect the rights to property held in trust management, the Manager has the right to demand any elimination of the violation of his rights in accordance with Articles 301, 302, 304 and 305 of the Civil Code.

2.4. The Manager submits to the Founder a report on his activities within the following terms and in the following order: .

2.5. The manager has the right to reimbursement of expenses incurred by him at the expense of income from the use of property.

3. RESPONSIBILITY OF THE MANAGER

3.1. The manager, who has not shown due care for the interests of the Founder, compensates the Founder for losses caused by the loss or damage to property, taking into account its natural wear and tear, as well as lost profits.

3.2. The manager is responsible for the losses caused, unless he proves that these losses occurred as a result of force majeure or the actions of the Founder.

3.3. Debts on obligations arising in connection with the trust management of property are repaid at the expense of this property. In case of insufficiency of this property, the recovery can be levied on the property of the Manager, and in case of insufficiency of his property - on the property of the Founder, not transferred to trust management.

4. FINAL PROVISIONS

4.1. This agreement is concluded for a period of up to "" a year.

4.2. In the absence of a statement by one of the Parties on the termination of this agreement at the end of its validity period, it will be considered extended for the same period and on the same conditions.

4.3. If one Party refuses this agreement, the other Party must be notified of this three months before the termination of the agreement.

4.4. Upon termination of this agreement, the property held in trust shall be transferred to the Founder.

4.5. The contract is made in copies.

5. LEGAL ADDRESSES AND DETAILS OF THE PARTIES

Founder

Legal address:
Mailing address:
Phone fax:
TIN/KPP:
Checking account:
Bank:
Correspondent account:
BIC:
Signature:

Manager

Legal address:
Mailing address:
Phone fax:
TIN/KPP:
Checking account:
Bank:
Correspondent account:
BIC:
Signature:

Trust management is the activity of disposing of assets. They are provided by the investor to a professional market participant. The main goal in this case is to extract maximum profit at a certain risk. Let us consider further what is the essence of trust management.

Assets

Most of the objects listed in the Civil Code act as them. Art. 128 contains a list of such assets. The objects of trust management are primarily finances and material values. The investor can also provide shares, real estate and so on. Assets also include property and exclusive rights (to works of art, literature, etc.). This category does not include

Features of the provision

A trust is a transaction that involves the legal provision of an asset. If, for example, an enterprise acts as it, then its preservation as an independent legal entity is practically impossible. This is due to the fact that the trust management of an LLC or other organization is reflected by the responsible person on a separate balance sheet. Material assets are accounted for. At the same time, a separate bank account is opened to perform settlement operations. The provision of intellectual property, exclusive rights to non-profit organizations for trust management should be distinguished from their transfer under a concession agreement. In the latter case, the transaction is made for the purpose of conducting independent entrepreneurial activities by the investor.

Isolation of objects

The legislation, except in exceptional cases, does not provide for a direct prohibition on the transfer of things characterized by generic characteristics. Meanwhile, the structure of the agreement, the features of the interaction of subjects, the list of assets indicate that a transaction can be made only in relation to individually defined items. Material values should be separated from other benefits belonging to the owner and manager. In this regard, even items that are determined by generic characteristics (for example, sets of linen in the inherited mass) acquire individual certainty to a certain extent.

Financial institutions

As a general rule, trust management of funds is not allowed. However, the law provides for exceptions. So, according to Art. 5 of the Federal Law "On Banks", a credit institution - a legal entity that has a license to conduct relevant activities issued by the Central Bank - can carry out settlement and other operations, conclude an agreement on trust management of the client's property and finances. The latter can be both an organization and a citizen. Structures that are not credit may also receive the right of trust management. To carry out the relevant activities, they must have a license, which is granted in accordance with Art. 7 of the Law of February 3, 1996

Municipal and federal property

The transfer of property to trust management has its own specifics, which must be taken into account when concluding transactions. So, for example, for the performance of certain operations by a professional market participant, he can be provided with both private and public funds, or However, material assets that were previously provided to a unitary enterprise or institution must lose their legal status before they are transferred to trust management. . This is due to the fact that the benefits have already been provided to the subject and are used in a limited mode. Providing material assets to a professional market participant would make it impossible for a unitary enterprise, municipal or state institution to exercise its legal capabilities.

Subjects

The participants in the transaction under consideration may be:

Founder of trust management.
Beneficiary.
Manager.

The first two participants may coincide (which most often happens in practice). The manager acts as an independent individual and does not coincide with either the beneficiary or the founder, since their functions are completely incompatible. If the activity is carried out on the grounds established by law, it may be an individual who does not conduct entrepreneurial activities, or a non-profit structure (except for an institution).

Nuances

Trust management is a voluntary transaction. The appointment of a subject responsible for the disposal of assets is carried out only with his consent. A model of trust management can provide for both reimbursable and non-reimbursable basis of relations. The decision to provide material assets is made by their owner. It is he who acts as an investor and, accordingly, the founder of the management.

Provision of capital

It implies not only their preservation, but also their multiplication. Funding is provided for a specific period. For operations with financial resources, the manager, as a rule, receives remuneration. It is worth noting that until recently such transactions were concluded only by wealthy people. Today, there are organizations that accept amounts from $ 1 million in trust management. However, at present there are quite a lot of companies to which smaller capital can be transferred. Basically, the minimum amount is 200 thousand rubles. If the investor has, for example, 50 thousand, then he can still transfer them to management. Such small amounts are pooled. With them, the manager conducts the same operations as with the funds of one investor. But in the latter case, the individual wishes of the client are taken into account. The legislation also allows trust management of shares in capital.

Timing

As a rule, the contract of trust management of property is concluded for a year. According to experts, investing for a shorter period is not advisable. Meanwhile, today there are companies that can accept assets for 6 months. The management agreement usually provides for the possibility of seizing material assets before the expiration of the agreed period, as well as automatic prolongation (extension) of the agreement.

Advantages and disadvantages

In comparison with a deposit in a bank, trust management is considered more profitable. However, there is always a risk of not making a profit at all. Neither a private manager nor a company can guarantee a fixed income. In practice, it may happen that the investor not only does not earn, but also loses his capital. In this case, he will have to pay the manager remuneration under the contract.

DU and mutual funds

Trust management has much in common with Experts recommend studying these activities in more detail. In both cases, the manager's task is to preserve and increase the investor's capital. However, the services of companies have different legislative regulation. In trust management, it is allowed to use options, futures and other derivatives that are not available to mutual funds. In the event of a market fall, a professional participant can sell financial instruments. But at the same time he is limited in his actions. For example, a manager cannot play on a bearish market by making "short trades". This is due to the fact that he is prohibited from borrowing shares and lending. Legislation, by granting companies the right to trust management of property, provides protection for private investors. One of the mechanisms is a ban on obtaining any loans.

Efficiency and individual approach

The undoubted advantage of trust management is the ability to withdraw funds on the day of receipt of a request from a client. With mutual funds, such an operation is carried out within three days. At the same time, during this period, the state of the market can change significantly both in a negative and in a positive direction. In trust management, a professional participant works personally with the client's financial assets. Even if they are combined into pools, the number of investors in it is significantly less than in mutual funds.

Trust management of securities

It involves ensuring a high return on investment. The broker acts as a guarantor of the safety of the client's assets. The investor's funds are placed in the clearing house, and securities - in the stock exchange's depository. The tasks of the broker include keeping records of the movement of money and shares of the client, the calculation and deduction of income tax. When choosing a company, it is necessary to take into account the duration of its activity in the market, as well as the volume of the client base. Accordingly, the larger and longer the broker works, the higher its reliability.

Important point

When transferring assets to a trustee, the client seeks to obtain guarantees of the profitability of their investments. However, in accordance with the Federal Law regulating the circulation of shares, a professional market participant is prohibited from giving such guarantees. Together with this norms, the publication by the trustee of the historical profitability received by him in previous periods is allowed.

Real estate as an asset

The essence of trust management in this case boils down to the fact that the owner, who, for example, wants to rent out a room or structure, transfers all worries to the realtor. When concluding a conventional agreement, the agency acts as an intermediary. His task is only to find an employer. Trust management involves a significant expansion of the realtor's functions. Their list will depend on the needs and capabilities of the owner. The agency not only looks for a tenant, but also develops and signs an agreement with him, receives payment for the use of the facility, controls the timeliness of payment of bills, fulfillment of obligations by the tenant, and so on.

Conclusion

Trust management today is included in the list of services provided by many banking organizations. As a rule, such tasks are undertaken by large financial companies. At the same time, according to a number of experts, it is more expedient to entrust the management of their assets to banks. This is due to the low cost of services compared to brokerage organizations. The fact is that the banking structure does not need to recruit additional staff who would carry out trust management. It is enough to add these functions to the duties of existing specialists. Trust management is very popular today. This is a passive way of earning income. However, it requires certain financial investments. Companies providing such services offer various options for increasing investor funds. Undoubtedly, in each transaction there is a certain risk, however, the income can be quite high. Trust management is a convenient way to increase your capital. At the same time, it is not at all necessary for an investor to understand all the intricacies of this activity.

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 its very nature, this right is binding. 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 a non-profit organization, with the exception of an 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 other 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 of funds alone to trust management is allowed only if the trustee is a credit institution or another legal entity that has received permission (license) to carry out trust management of funds of citizens and legal entities (Clause 2, 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.

· The name of the 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, a trademark and commercial information, including experience in 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 simple 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 an individual entrepreneur acting under the agreement as a 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 the 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 proceeds, mark-ups on the wholesale price of 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.).

The property trust management agreement regulates the relationship between the owner of the property and the person whom he trusts to dispose of the property on his behalf.

Features of the trust management agreement depend on the type of property transferred for management.

We will consider the following types of trust management agreements, with samples:

general (framework) contract
ward property management agreement
contract for the management of property constituting endowment capital
contract for the management of the property of a missing citizen
real estate management contract
estate management agreement

For all of these types of contracts, there are General requirements. They are as follows:

The contract is between the owner and the manager. The owner may instruct the manager to act in his own interests, or in the interests of another person who is not a party to the contract.

The contract has a fixed period of validity. During this period, the manager is practically not limited in the disposal of property under management. The main condition is that all actions must be performed in the interests of the owner.

Participants in legal relations have the right to know that they are entering into an agreement not with the owner of the property, but with the manager. For oral transactions, he is obliged to warn about this, and in transactions made in writing, make a special note of the form “D.U.”. Violation of this requirement entails the material responsibility of the manager himself, and not at the expense of the property held in trust.

What property can be transferred to trust management?

The object of trust management is most often real estate, securities that have rights in value terms (property and intellectual), as well as other types of property.

The law itself establishes three prohibitions for trust management. So, cannot be transferred to management:

A) money as an independent object

b) things that are under economic control

V) things that are in operational control

Accordingly, any objects that do not fall under these prohibitions may be subject to trust management.

The money is transferred to trust management through the mechanism of funds, or using banks and the features provided for by the legislation on the securities market.

Who can be a trustee?

A legal entity or an individual entrepreneur, for which the relevant type of activity is provided for in the statutory (constituent) documents or upon registration, can act as a trustee. And if it is necessary to obtain additional permits - if such permits are available (for example, for professional participants in the securities market).

From among citizens, the trustee may be the executor named in the will (the person executing the will), or a trustee managing the property of the ward.

In most cases, by virtue of an agreement, a commercial organization or an entrepreneur acts as a trustee, and on the basis of the law, individuals are involved in trust management.

Forbidden act as a trustee to local governments and state authorities, as well as to unitary enterprises.

Not allowed combine two roles under a trust management agreement, namely the manager and the beneficiary. The reason, I think, is obvious. At least - suspicions of lack of objectivity.

Responsibility of the trustee

The manager must pursue one and the main goal - taking care of the interests of the person who entrusted him to manage the property.

For violation of this principle, a negligent trustee is obliged to compensate for direct losses caused to the property and lost profits from its use for its intended purpose.

However, care is a double-edged sword. An overzealous manager who has violated the limit of the powers granted is responsible for the damage caused by his own property.

As well as responsible for the debts that were formed as a result of the implementation of trust management.

In turn, from the income received from the use of property held in trust management, the manager is paid remuneration.

What must be included in a trust agreement?

A trust management agreement is always concluded in writing.

If the subject of management is real estate, then the trust management agreement must be registered, as in the case of sale and purchase.

Violation of any of the above conditions entails the invalidity of the contract.

The property that is transferred for management is specifically listed in the contract.

It also indicates who is the founder of the management. In other words, who is the owner of the property who has decided to transfer it to management.

Separately, it is stipulated in what amount, form and in what time frame the manager receives remuneration for his activities.

As a general rule, the term of a trust management agreement does not exceed five years. Existing exceptions are related to investment and securities laws.

If at the expiration of the term of the trust management agreement none of the participants declares their intention to terminate it, then the agreement is considered extended for the same period.

Sample trust management agreements for download:

Framework agreement for trust management of property (sample)

Contract of trust management of the property of the ward (sample)

Agreement on trust management of property constituting target capital (sample)

Contract of trust management of property of a missing citizen (sample)

Real estate trust management agreement (sample)

Trust management agreement of hereditary property (sample)

Termination of the trust management agreement

There is a certain list of circumstances due to which the trust management agreement is considered terminated. Among them:

death or liquidation (for organizations) of the beneficiary
refusal of the beneficiary to receive benefits under the contract in the future
death, incapacitation or bankruptcy of the trustee
cancellation of the contract due to the fact that the trustee has lost the opportunity to personally dispose of the managed property
cancellation of the contract by the founder for other reasons, with the obligatory payment of remuneration to the manager

As a general rule, a party that intends to withdraw from a trust management agreement must notify the other party of this three months in advance. The contract may establish a different period.

The property transferred to trust management upon termination (termination) of the contract shall be returned to the founder.

Do you have any questions? Feel free to ask them in the comments!