Refund of leasing payments upon termination of the leasing agreement

Advice to the lessee in case of delay

There is arrears in leasing payments, which cannot be repaid. The lessor demands the return of the leased asset. What should the lessee do?

Currently, the occurrence of a debt by the lessee to pay lease payments is one of the most common grounds for early termination of a leasing agreement at the initiative of the lessor. In this case, the lessor, after termination of the contract, has the right to demand the return of the leased asset.

What should the lessee do if there is no possibility of repaying the resulting debt, and there is a threat of termination of the leasing agreement and confiscation of the leased asset?

In this article we will indicate five basic rules, following which the lessee can reduce the negative consequences associated with late payment of lease payments to a minimum, and also protect his property interest even in the event of early termination of the leasing agreement.

Rule #1

The leased asset must be returned to the lessor only after termination of the leasing agreement.

The agreement, however, may reflect the lessor's right to “temporarily” retain the leased asset when a debt arises until it is fully repaid. At the same time, there is no effective and legal mechanism for exercising this right - the lessee can give up the leased asset before terminating the contract only of his own free will.

Remember that the lessee is not obliged to follow the lead of the leasing company employees who are persistently trying to seize the property out of court by any means.

In addition, as practice shows, the lessor, having taken possession of the leased asset, is in no hurry to return it to the lessee even after the latter has paid the entire amount of debt, penalties and losses, delaying the transfer of the leased asset, and in some cases, informing the lessee that the leased asset has been sold, and the lessee was sent a notice of the leasing company's refusal of the contract.

Rule #2

In the event of early termination of the leasing agreement at the initiative of the leasing company and the threat of confiscation of the leased asset arises, the lessee must have up-to-date information about the current market value of the leased asset. It is most advisable to contact an independent expert organization to obtain a detailed report on the assessment of the leased asset.

What is it for? In accordance with the law, in case of early termination of the contract and withdrawal of the leased asset, the lessor must use funds from the sale of the leased asset to cover the lessee's debt, losses and expenses directly related to the leasing transaction, and transfer the remaining funds (if any) to the lessee.

However, often the lessor neglects this obligation and subsequently tries to collect the debt, penalties, and other losses from the lessee, completely or partially not taking into account the cost of the seized leased asset.

In such a situation, evidence of the real market value of the leased property at the time of seizure will be an invaluable aid in challenging the actions of the leasing company in court and recovering the unjust enrichment received by the lessor resulting from the early termination of the leasing agreement and seizure of the leased asset.

Rule #3

Under no circumstances should you transfer the leased asset to unidentified persons who introduce themselves as employees of the leasing company or collectors, unless the latter have supporting documents.

When returning the leased item to the lessee, it is necessary to ask the employees of the leasing company to confirm their authority to accept the property on behalf of the lessor.

Otherwise, the lessee risks encountering fraudsters and will be forced to further prove to the leasing company, the insurer, and in some cases, the internal affairs bodies, to whom the expensive property was transferred and on what basis.

Moreover, without showing the due degree of diligence in checking the persons confiscating the leased asset, it will subsequently be extremely difficult to prove one’s non-involvement in its “disappearance”.

Rule #4

Do not transfer the leased asset to the lessor's employees before signing a bilateral act of withdrawal of the leased asset.

The seizure act must necessarily contain the following information: the date of seizure, the place of transfer of the property, the basis for the seizure, as well as a list of the seized property and its condition at the time of seizure. In addition, it is very important that the said act is signed by both parties.

If the lessee does not agree with the contents of the act (for example, with a description of the condition of the leased asset), it is necessary to include comments regarding its contents into the act. It is also very important to reflect in the act a list of inseparable improvements made by the lessee to the leased asset (if any).

Rule #5

In the event of unforeseen problems arising during the implementation of a leasing agreement, it is extremely important to enlist the support of specialists in the field of leasing legal relations.

Only an experienced specialist can quickly assess current risks and develop an optimal plan for exiting an unfavorable situation.

As a rule, if the lessee has a competent legal position, leasing companies are much more willing to agree to a mutually beneficial solution to the problem, knowing about their risks in further litigation, and also understanding that the lessee knows his rights and is ready to effectively defend them.

If the lessee needs to protect his property interest in court, it will be an obvious advantage to have on his side professionals with successful judicial practice in the field of leasing disputes.

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Five myths about leasing and return of lease payments

Adequacy and excellent results! We transferred all our legal disputes to the support of Law and Practice.

Many companies in Russia today are experiencing significant financial difficulties, which is reflected in the fulfillment of their obligations to financial institutions: banks and leasing companies.

In the credit sector, there are more or less clear rules of the game, and the relationship between banks and corporate borrowers is quite specific.

In leasing, due to problems of legal regulation, as well as due to the lack of any government supervision over the activities of leasing companies, the rights of the lessee can most often be protected only in court.

Many lessees who have paid a significant part of the leasing payments, have been late and, by a unilateral decision of the lessor, have lost both the leased asset and everything they paid, the question arises: how to return the leasing payments?

However, this question is not as simple as it might seem. The return of lease payments is a complex process that is accompanied by many myths generated, on the one hand, by the complexity of the legal structure of leasing in Russia, and on the other, by the insufficient level of qualifications of many lawyers in the specific field of leasing.

Myth 1. Leasing is rent.
Yes, the Federal Law “On Financial Lease (Leasing)” is in force in Russia; in the Civil Code, the paragraph on leasing is placed in the “Lease” chapter.

And from the point of view of tax and accounting (RAS), leasing is a type of lease. And it is precisely thanks to this that such advantages of leasing are realized as accelerated depreciation and the attribution of expenses for payment of leasing payments to the cost price.

But, from a civil law point of view, leasing is not rent.

Therefore, attempts to return lease payments based on separately calculating the rent and the redemption value separately lead to the loss of the case and, most often, the impossibility of reconsidering it in the future. Attempts to return lease payments based on the calculation/recalculation of depreciation lead to the same disastrous result.

Reality: Leasing is a type of investment activity in which the lessor places and returns funds at a profit, and the lessee attracts financing to purchase the leased asset, and then returns the attracted financing.

What consequences does this have for the lessee?

The main thing is that leasing payments are considered not as payment for the ownership and use of the leased asset, but as a return of financing, which in some cases makes it possible to return part of the lease payments upon termination of the contract and withdrawal of the leased asset.

Myth No. 2.
The lessor has no right to seize the leased asset out of court. Many lessees think that a leasing company can exercise its right to seize a car (or other leased item) only through the court.

Reality: Leasing companies take leased items by force, pick them up at night, stop cars and drop off passengers, and do this without a court order.

Why? In accordance with the provisions of the agreement and the norms of the Federal Law “On Financial Lease (Leasing),” the leasing company has the right to terminate the agreement unilaterally and withdraw the leased asset if the lessee violates certain obligations. Most often this is a delay. And if there were grounds for termination, then it is almost impossible to recognize such termination and seizure as illegal.

Myth No. 3.
The lease agreement can be “reinstated”. Very often, after termination of the leasing agreement and seizure of the leased asset, lessees are offered to pay the debt, penalties, even make several payments in advance, and then the contract will be restored and the leased asset will be transferred to the lessee again.

Reality: In the first eight months of 2016, we received about 600 applications from lessees who applied for a refund of leasing payments. In most cases, managers of leasing companies actively offered to “restore” the contract.

However, the Civil Code does not provide for such a construction as “restoration” of the contract. The leasing company's promises to “restore” and return the leased asset are usually made in words; the lessee is not provided with not only some agreements signed by the leasing company, but even drafts of such documents.

As a result, in a number of cases, lessees repaid the debt, penalties, paid in advance, and then it turned out that their car had already been sold, and the manager threw up his hands, referring to his superiors, Moscow, etc.

Myth No. 4.
You can return the advance under the leasing agreement. Yes, even five years ago, courts sometimes returned the advance payment under a leasing agreement or calculated the unaccounted portion of it. The courts saw in leasing elements of a mixed contract: rent and purchase and sale. And since neither the lease was extended until the end of the contract, nor the sale and purchase took place due to termination, it was believed that the advance, or at least part of it, could be returned.

Leasing companies have combated this by introducing various sophisticated language into lease agreements. Until now, many companies offset the advance payment in the first leasing period precisely with the aim of preventing its return. But these are echoes of old disputes, now no longer relevant, although in the localities there are still some peculiar excesses (see our article).

Reality: Considering that today's judicial practice does not perceive leasing as a lease or a purchase and sale, the return of lease payments by demanding the return of the advance, the return of the uncredited part of the advance, the unspent advance is a sure way to lose the opportunity to return the lease payments.

Most often, the advance payment is not returned under any circumstances (exceptions are possible when terminating an unfulfilled sales contract and some other cases). But the amount of the advance paid is taken into account when calculating the balance of mutual claims. If the balance is in favor of the lessee, he has the right to recover the corresponding difference. Sometimes this difference is more than the down payment, sometimes less. It all depends on the terms of the specific transaction, but the advance itself is not refundable.

Myth No. 5.
Returning lease payments is easy. Several times we heard from lessees that the advance will be returned to them anyway, part of the payments will also be returned, that all this is simple, you just need...

The unfortunate lawyers who suddenly heard about the return of lease payments also begin to talk about how they will return the advance and lease payments, that they have 95% of successful cases, etc. (we have already said everything about the return of the advance payment on leasing, if suddenly someone talks about the return of the advance payment, or the return of the down payment on leasing, this is a clear sign of incompetence).

Reality: over the past two years in our practice, probably, in no more than a dozen leasing disputes, the lessor did not surprise us, each time new evidence, new facts, new arguments are presented, each time a battle unfolds in court for each leasing agreement, for every ruble balance is in favor of the lessee.

What do those who think that everything is simple do? They file a hastily drafted lawsuit, quickly lose the case, and thereby lose their chance to get their lease payments back. There are a lot of cases when people turn to us after, in seemingly obvious situations, they lost a dispute in the first instance. But, more often than not, nothing can be done: the plaintiff has chosen the wrong method of protecting the right and, as a result, the claims are stated incorrectly, the necessary evidence has not been presented, and the evidence presented by the lessor has not been properly challenged. After this, in most cases, nothing can be done either in appeal or cassation.

Russian leasing has a very complex legal nature, which even many judges do not fully understand. Judicial practice on leasing and return of lease payments is quite heterogeneous. It is not always possible to return lease payments; it all depends on the terms of the contract, the lease term, the financial discipline of the lessee, the cost and condition of the equipment and a number of other factors. However, if the balance of counter-obligations is in favor of the lessee (to be recovered from the lessor), it is necessary to act with certainty, with maximum accuracy and attention to detail.

If you have any questions or require expert advice, call: +7(495)545-44-86

You can also leave a request on the website of the law firm “Pravo i Praktika”.

Refunds and early termination of the leasing agreement

Termination of a leasing agreement is a legal procedure, as a result of which the relationship between its participants is terminated and the transferred property and paid funds are returned. The main issues of terminating a leasing agreement will be discussed in our article.

What is a leasing agreement?

Leasing is a form of financial services, according to which one party (the lessor) acquires, at the direction of the other party (the lessee), property from the seller chosen by the latter and provides it with this property for immediate possession and use for a fee with the right of subsequent redemption. The subject of leasing contractual relations can be any non-consumable property, including property complexes (enterprises, equipment, transport, etc.). Military products are involved in leasing turnover in accordance with international treaties, the law “On military-technical cooperation of the Russian Federation with foreign states” dated July 19, 1998 No. 114-FZ and Decree of the President of the Russian Federation dated September 10, 2005 No. 1062.

land plots and other natural objects;
property prohibited by law from free circulation.

Legislation on early termination of a leasing agreement

The rules on financial lease (leasing) are established:

Civil Code of the Russian Federation. Section 6 of Chapter 34 of the Code is devoted to leasing transactions, which briefly defines the main points, including:
- definition of finance lease;
- questions about the subject of the transaction;
- the procedure for transferring a property;
- Issues relating to the seller's liability.

Also, such relationships are subject to the general rental provisions established by § 1 of Chapter 34 of the Code.

Law “On financial lease (leasing)” dated October 29, 1998 No. 164-FZ. This law regulates relationships in the field of leasing in more detail and completely (compared to the Civil Code of the Russian Federation). In particular, its norms determine the subject composition of the relationship, the powers and obligations of the participants, the content of the contractual document and the transfer of ownership of the leased asset.

The procedure for terminating leasing relations is determined by general civil rules regarding the termination of any contractual relationship. Accordingly, termination of a financial lease agreement must comply with the rules provided for in Articles 450–453 of the Civil Code of the Russian Federation. According to these rules, you can terminate the contract:

at the request of one of the parties;
by mutual agreement of the parties;
by court decision.

At the same time, it is necessary to resolve issues about the fate of the leased property and payments paid at the time of termination.

On termination of the contract at the initiative of only the lessee or the lessor

The possibility of terminating the leasing agreement at the will of one of the parties may be provided for in the agreement. True, most often termination is a consequence of a significant violation by the other party of the terms of the contract.

Thus, early termination of a leasing agreement at the initiative of the lessee is possible if (Article 620 of the Civil Code of the Russian Federation):

the property under the contract was not transferred within the period stipulated by the terms of the transaction;
the lessor did not repair the property if such an obligation was assigned to him;
the property is unsuitable for use due to circumstances beyond the control of the lessee;
the use of the property is impossible due to the scope of its application or the terms of the contract;
a marriage was discovered that was not mentioned in advance.

The possibility of terminating a leasing agreement at the initiative of the lessor can be discussed in the following cases (Article 619 of the Civil Code of the Russian Federation):

use of property in violation of the terms of the contract or for other purposes;
significant deterioration of property;
failure to make payments on time more than 2 times in a row;
failure to repair the property on time, if such responsibility lies with the lessee.

In addition, the lessor may demand termination of the leasing agreement if the other party did not eliminate the violation of the agreement on time, subleased the property without notice, or interfered with the property, significantly worsening its condition.

In addition to the above reasons for terminating a leasing agreement, the following may be considered:

Significant change in circumstances. This means that if these circumstances had existed at the time the contract was concluded, the contract would not have been concluded at all. On this basis, at the request of one of the parties, the court may decide to terminate the contractual relationship.

However, this reason is a last resort and requires proper evidence from the plaintiff. In this case, first of all, the likelihood of such circumstances occurring and the parties’ awareness of this are assessed. A change in circumstances must occur after the execution of the contract document. In addition, it should be obvious that the counterparties at the time of the transaction could not have anticipated the onset of changes and did not contribute to the onset of such changes.

To terminate a leasing agreement on this basis, the following conditions must be simultaneously met:

such a change in circumstances was not anticipated at the conclusion of the transaction;
the change in circumstances could not be overcome by the interested party with all its care and prudence;
further performance of the contract in changed circumstances will lead to significant losses for the parties;
It does not follow from customs or the terms of the contract that the risk of changes in circumstances that have occurred is assigned to one of the parties.

Significant violation by one of the counterparties of the terms of the contract. The breach must be so significant that it causes serious harm to the other party. In this case, the plaintiff must prove not only the fact of the occurrence of losses, but also their size.

Termination of a leasing agreement in court, claim

A unilateral expression of will to terminate a financial lease agreement usually involves going to court to resolve this issue. However, civil law establishes a mandatory claim procedure for this type of case. This means that the potential defendant, before filing a statement of claim in court, must be sent a special notice (claim), in which it is necessary to state the essence of his demands and set a deadline for their satisfaction.

There is no legally approved unified form of notification-claim, so the document is drawn up in any form. However, when compiling it, it is important to remember that it is necessary to use unambiguous and clear formulations that do not allow for discrepancies.

In addition, in any surrounding circumstances, the notice must include:

Information about counterparties under the contract.
Details of the agreement: number, date, place of conclusion, names of the parties.
Contents of the claim. This part sets out as specifically as possible the essence of the violations committed by the recipient of the notification. It also voices a proposal to fulfill one’s obligations under the transaction within the agreed period and a warning about unilateral termination of the contract through the court in case of failure to fulfill the claim.
Signature of the sending party and seal (if any).

The notification must either be sent by registered mail with notification, or delivered in person, leaving 1 copy with a mark for yourself. Evidence of the sent claim will be a postal notification with the signature of the addressee confirming receipt of the letter, or a copy with a receipt stamp from the recipient (signature and date).

Agreement to terminate the leasing agreement

Termination of the financial lease contractual relationship by mutual consent of the parties is formalized by an agreement on termination of the contract. The signing of the agreement may be preceded by notification to the counterparty of the desire to terminate the contract. However, when obtaining the consent of the other party to terminate the contractual relationship, it is impossible to limit the registration of this fact only by drawing up a notification, since it is necessary to resolve and agree on a number of mandatory issues relating to the return of leased property and payments made.

The legislation does not establish a standard form of agreement, however, established practice makes it possible to determine a list of priority information that should be present in the document. In particular, the agreement to terminate a finance lease must include:

Details of the agreement. The document must contain a title with reference to the details of the agreement that is being terminated, as well as the number, date and place of drawing up the agreement itself.
Preamble. The introductory part of the agreement must contain identification data of the counterparties under the contract being terminated and, if necessary, data from the documents on the basis of which the representatives act.
Contents of the agreement. The main section of the termination document must contain the following points:
- on termination of a specific contract indicating the details of its contract;
- termination of obligations of the parties from the moment of termination;
- absence of claims of the parties to each other.

Additionally, the text of the agreement can detail the procedure for the return of property that is the subject of the contractual relationship, and the funds paid, which are partial payment for the cost of the property transferred under the contract.

Details (passport data) and signatures of the parties.

Refund of leasing payments upon termination of the contract

Financial lease agreement, in accordance with Art. 624 Civil Code of the Russian Federation and Art. 19 of Law No. 164-FZ, in most cases includes an additional condition on the right to purchase the subject of the transaction (property) by the lessee, therefore such an agreement can be regarded as containing elements of a purchase and sale agreement. Consequently, upon termination of the financial lease agreement and the transfer of the subject of the transaction to the lessor, the redemption price of the subject of the transaction, which is part of the payments under the agreement, is subject to return to the lessee (Clause 1, Article 28 of Law No. 164-FZ).

The main problem in this case is determining the actual size of the redemption price of the subject of the transaction and, accordingly, the funds to be returned. Thus, it is logical, even when concluding a transaction, to describe in the contract the composition of leasing payments, indicating the redemption price separately.

In the event that the parties cannot agree on the amount of the redemption price to be returned, or the lessor refuses to return what was paid, the only option left is to go to court. In the statement of claim, one should demand the return of the amount of unjust enrichment (clause 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2000 No. 49).

Disputes regarding the degree of deterioration of property as a result of operation and the corresponding reduction in the redemption price can be resolved through an examination. If the parties do not request an examination and do not submit a calculation of the residual value of the subject of the transaction, the court has the right to calculate the debt independently.

Return of the subject of the leasing agreement

In case of early termination of leasing relations, the procedure for returning the subject of the transaction - the leased property - is important. The transfer of property must be formalized by a transfer and acceptance certificate, which will indicate all the main points that are important to the parties.

In particular, the act reflects the following information:

about the qualitative condition of the subject of the transaction;
completeness of property;
identified shortcomings or defects that appeared during the use of the property by the lessee.

In addition to the actual return of the property by the lessee, the lessor must correctly reflect the current state of affairs in accounting. From this side, the registration procedure depends on how the property in question was listed on the balance sheet of each of the counterparties and for what reason the financial lease agreement was terminated. This procedure is defined in detail by the order of the Ministry of Finance of the Russian Federation “On the reflection in accounting of transactions under a leasing agreement” dated February 17, 1997 No. 15.

Thus, the procedure for early termination of relations under a leasing agreement is a rather complex process. Even in the case where there is a mutual desire to terminate the financial lease agreement, a large number of issues must be taken into account and documented. Otherwise, termination is carried out in court and requires each of the counterparties to prove their position.

Refund of leasing payments upon termination of the contract

(“EZh-Lawyer”, 2014, N 19)

REFUND OF LEASING PAYMENTS UPON TERMINATION OF THE AGREEMENT

Yuri Kantser, lawyer, Volgograd.

In the event of early termination of the financial lease agreement at the initiative of the leasing company, it returns the car to itself, since ownership of it would transfer to the client only after payment of all payments. In this situation, can the client return the lease payments actually paid?

There are no grounds for retention

If, after termination of the leasing agreement and return of the car, the leasing company withholds the paid part of the redemption price without providing the client with counter-performance, such withholding is unreasonable.

The monthly leasing payment is only partly a payment for using the car; the rest consists of repayment of the cost of the car to transfer ownership of it to the client. Therefore, the point of view of leasing companies, which, upon termination of the contract, refuse to return any money, citing the fact of using the car for a specific period, is unlawful.

This conclusion was made due to the following.

Based on the general rule of Art. 665 Civil Code of the Russian Federation, art. 2 of the Federal Law of October 29, 1998 N 164-FZ “On financial lease (leasing)”, under a financial lease agreement, the obligations of the lessor are reduced to acquiring ownership of property from a third party (seller) and providing this property to the lessee for temporary possession and use.

At the same time, according to Art. 624 of the Civil Code of the Russian Federation and Art. 19 of Law N 164-FZ, an additional condition may be included in a financial lease agreement regarding the transfer of ownership of the leased asset to the lessee under this agreement. Such an agreement should be considered as a mixed one (clause 3 of Article 421 of the Civil Code of the Russian Federation), containing elements of a financial lease agreement and a purchase and sale agreement.

Consequently, the rules of the Civil Code of the Russian Federation governing the purchase and sale are applied to the relations of the parties regarding the repurchase of the leased asset.

In accordance with paragraph 1 of Art. 454 of the Civil Code of the Russian Federation, under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (product) into ownership of the other party (buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it.

In the event of termination at the request of the lessor of the leasing agreement with the right of repurchase and the withdrawal of the leased asset by him, the lessor's obligation to transfer the equipment to the lessee into ownership ceased. Consequently, there are no longer any grounds for withholding that part of the funds that were paid by the lessee to repay the redemption price of the leased asset.

It is important to take into account here that the useful life of the equipment in the vast majority of cases significantly exceeds the leasing period, which means that the expiration of the leasing period specified in the contract does not entail complete natural wear and tear of the equipment and a drop in its current market value to zero. For example: a leasing agreement is concluded for a period of one to five years, and the service life of the car is tens of years.

Consequently, by virtue of paragraph 3 of Art. 423 of the Civil Code of the Russian Federation, which establishes the presumption of compensation for any contract, clause 1 of Art. 28 of Law N 164-FZ, according to which the payments under a financial lease agreement with the right to buy also include the redemption price of the leased asset, which was supposed to transfer to the lessee the right of ownership of equipment having a current market value other than zero at the end of the period of temporary possession and use of the leased asset the cost is determined by the payment of the redemption price.

Since, as a rule, the parties provide for the transfer of ownership of the car upon making all leasing payments without any additional payment, the redemption price in this case is not an independent payment and is included in the leasing payments determined by the transaction.

Thus, in the event of termination of the financial leasing agreement at the initiative of the lessor and the withdrawal of the leased asset by him, the lessor’s obligation to transfer ownership of the car to the lessee ceased.

Consequently, there are no grounds for the leasing company to retain that part of the funds that were actually paid by the client to repay the redemption price of the leased asset as part of lease payments.

The above legal position is based on the conclusions of the Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 18, 2010 No. 1729/10 in case No. A41-243/09 and dated July 12, 2011 No. 17389/10 in case No. A28-732/2010-31/18.

Determining the size of the claim

Determining the actual size of the redemption price of the car, as well as the size of the redemption price already paid as part of leasing payments and, accordingly, the amount of claims under the claim is problematic.

In accordance with the explanation of the Presidium of the Supreme Arbitration Court of the Russian Federation, contained in paragraph 1 of information letter No. 49 dated January 11, 2000, a party has the right to claim as unjust enrichment the funds received before termination of the contract, if reciprocal satisfaction was not provided by the party who received it and the obligation to provide it has disappeared .

According to the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 18, 2010 in case No. 1729/10 under a financial lease agreement with the right of redemption by the lessor who has become the owner of the leased asset, the property is initially transferred to the lessee only for temporary possession and use (Article 2, paragraph 1 of Article 11 Law N 164-FZ). Upon subsequent repurchase, ownership rights are transferred to the goods, the condition of which has changed during the time the property was in the possession of the lessee due to natural wear and tear. Under such conditions, compensation to the lessor for natural wear and tear of property formed during the period of temporary possession of the leased asset by the lessee and temporary use of this property is associated with lease legal relations, and not with the transfer of ownership and, accordingly, cannot be considered as repayment of part of the redemption price.

By virtue of paragraph 1 of Art. 28 of Law N 164-FZ, leasing payments mean the total amount of payments under the leasing agreement for the entire term of the leasing agreement, which includes reimbursement of the lessor’s costs associated with the acquisition and transfer of the leased asset to the lessee, reimbursement of costs associated with the provision of other services provided for in the leasing agreement , as well as the lessor's income. The total amount of the leasing agreement may include the redemption price of the leased asset if the leasing agreement provides for the transfer of ownership of the leased asset to the lessee.

In case No. A28-732/2010-31/18, in connection with which Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 12, 2011 No. 17389/10 was adopted, the redemption value of the leased asset was symbolically determined by the parties to the agreement in the amount of 1000 rubles, although the market price of the equipment exceeded 14 million rubles.

As the Presidium of the Supreme Arbitration Court of the Russian Federation noted, the establishment in the contract of a symbolic redemption price close to zero means that the actual redemption price was included, among other things, in the periodic leasing payments determined by the transaction.

A different interpretation of the terms of the agreement would contradict the very essence of the relationship for the repurchase of the leased asset, since the sale and purchase relationship would actually be given a gratuitous character in the absence of any grounds for this and in violation of the requirements of Art. 575 of the Civil Code of the Russian Federation.

In the case under consideration, the arbitration court of first instance, after the case was transferred to it from the Supreme Arbitration Court of the Russian Federation, independently, without conducting an examination, determined the redemption value of the leased asset.

The residual value is subject to calculation in accordance with the procedure for accounting on the balance sheet of organizations for fixed assets, regulated by Order of the Ministry of Finance of Russia dated March 30, 2001 N 26n, based on the depreciation of equipment using the straight-line method, to which an accelerated coefficient is not applied.

According to the provisions of clause 54 of Order of the Ministry of Finance of Russia dated October 13, 2003 N 91n, to repay the cost of fixed assets, the annual amount of depreciation charges is determined. The annual amount of depreciation is determined using the straight-line method based on the original cost or current (replacement) cost (in case of revaluation) of an item of fixed assets and the depreciation rate calculated based on the useful life of this item.

The useful life, representing the time during which an object of fixed assets serves to fulfill the goals of the taxpayer’s activities, is not arbitrary in nature and is subject to determination taking into account the Classification of fixed assets, approved. The Government of the Russian Federation on the basis of Art. 258 Tax Code of the Russian Federation.

According to the Decree of the Government of the Russian Federation dated 01.01.2002 N 1 “On the Classification of fixed assets included in depreciation groups,” a middle-class car for official and individual use as a fixed asset belongs to the third depreciation group, for which the useful life is more than three years and up to five years inclusive.

In addition, as stated in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 18, 2010 N 1729/10, the mere use of a special depreciation coefficient for accounting and tax accounting purposes does not indicate either increased natural wear and tear of equipment during its operation by the lessee, or faster the rate of decline in the current market value of equipment.

In case No. A41-243/09, in which the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 18, 2010 was adopted, after sending the case for a new trial, the court of first instance conducted an appraisal and technical examination of the case, in accordance with which the depreciation wear and tear of equipment, the cost of equipment without depreciation, the market value of equipment taking into account natural wear and tear as of the time of return of the leased asset. Thus, the residual value of the item was determined without taking into account depreciation, which was the basis for the court’s decision.

In similar cases, plaintiffs’ demands for the return of the paid redemption value of the leased asset are often satisfied taking into account the conclusions of forensic examinations (Resolutions of the Federal Antimonopoly Service UO dated 03/05/2013 in case No. A60-40593/2010, FAS Moscow Region dated 08/06/2012 in case No. A40-112838/11 -114-991).

However, based on the above methodology, arbitration courts make decisions without special assessment studies of the subject of leasing (Resolutions of the Federal Antimonopoly Service VVO dated 08/30/2013 in case No. A29-9380/2012, FAS DO dated 08/05/2011 in case No. A73-3067/2010, FAS MO dated February 10, 2014 in case No. A40-12336/12-76-126).

According to the Minutes of the meeting of the FAS UO working group to discuss issues arising in the practice of applying the Arbitration Procedure Code of the Russian Federation, dated June 15, 2012 No. 2, issue No. 8 considered the problem of the procedural powers of the court to determine the residual value of the leased asset in the absence of requests for an examination. As a result, it was stated that if the persons participating in the case did not provide a calculation of the residual value of the leased asset and did not submit a request for an examination, but from the case materials it is clear that the lease payments included the redemption value of the leased asset, the court the first instance is not deprived of the opportunity to independently calculate the amount of debt.

And yet, to strengthen the evidence base in the case and the strength of the claims, it is better to apply for an examination. Thus, in the Resolution dated 01.09.2011 in case No. A57-12554/2010, FAS PO, canceling judicial acts, indicated the need to conduct a forensic examination in the first instance during a new consideration to establish the redemption price of the leased asset on the date the lessee returns the vehicle to the lessor.

Moreover, in some cases, if the motivation for the claims is unclear (lack of a clear calculation of the redemption value of the car) and in the conditions of the plaintiff’s direct refusal to submit a request for an examination, the arbitration court may refuse to satisfy the claims (Resolution of the Federal Antimonopoly Service dated June 18, 2013 in case No. A49-4931/2012).

So, if the leasing company retains both the car and the funds paid for this car after termination of the contract, then there is unjust enrichment on its part. The former lessee has every right to demand the return of the amount of money. The main thing is to prove the size of such claims, and if difficulties arise with calculating the redemption value, an examination should be carried out.

Refund of leasing payments upon termination of the leasing agreement

We contacted the company Legal Protection of the Lessee for the return of unjust enrichment after termination of the leasing agreement and seizure of the leased property. Within 3 months, the lawyers of this company recovered from VEB-Leasing JSC the amount of unjust enrichment in the amount of RUB 1,914,315: . case No. A40-151045/17, showing his professionalism and sensitive attitude to the matter.

We thank the leasing lawyers of LLC “Legal Protection of the Lessee” for their professionalism in the matter of recovery of unjust enrichment after the seizure of equipment from JSC “VEB-Leasing”. RUB 622,655 recovered Case No. A40-241146/16

Thanks to the leasing lawyers of Legal Protection of the Lessee LLC, after the termination of the leasing agreement and the seizure of the leased asset, our company got rid of receivables and returned lease payments in the amount

RUB 826,559 Case No. A40-94486/17 and Case No. A40-101878/17

The leasing company terminated the leasing agreement, after which our company returned the leased property (the subject of the lease). By contacting the company “Legal Protection of the Lessee” LLC, we got rid of the current receivables and returned the redemption value of the leased asset in the amount of 1,549,434 rubles. We express our gratitude to leasing lawyers. Case No. A40-172882/17

The leasing company terminated the leasing agreement, after which our company returned the leased property (the subject of the lease). By contacting the company “Legal Protection of the Lessee” LLC, we got rid of the current receivables and returned lease payments in the amount of 1,044,270 rubles. We express our gratitude to leasing lawyers. Case No. A40-117788/17

We thank the leasing lawyers of Legal Protection of the Lessee LLC for the return of lease payments after termination of the leasing agreement in the amount of 4,979,767 . Case No. A40-23527/16

We thank the leasing lawyers of Legal Protection of the Lessee LLC for the return of unjust enrichment after termination of the leasing agreement in the amount of 374,944 . Case No. A40-250123/2017

Unjust enrichment of the leasing company

Unilateral termination by the lessor of the leasing agreement, due to the lessee's delay in payment of lease payments, should not entail the receipt by the lessor of such benefits that would put him in a better financial position than the one in which he would have been if the lessee had fulfilled the agreement in accordance with his conditions.

The lessor should not receive more than what is provided for in the lease agreement

What can be recovered from the leasing company?

If the payments made by the lessee to the Leasing Company, together with the cost of the returned
leased asset, are more than the amount that the Lessor could expect under the leasing agreement, then the Lessee has the right to recover
the corresponding difference (unjust enrichment).

An example of calculating the return of the redemption value of a leased asset

The amount that the leasing company expected to receive under the contract:

12 850000 rub.

2,000,000 rub.

Price of the leased item according to the contract:

RUB 9,850,000

Cost of the seized leased asset (used contract or appraiser's report):

RUB 8,600,000

Amount of unjust enrichment:

RUB 4,980,000

WE RETURN THE AMOUNT OF UNWORTHY ENRICHMENT TO THE LEASING COMPANY THROUGH JUDICIAL PROCEDURE

Leave a request for consultation and preliminary calculation

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