THE SUPREME COURT OF RUSSIA: LEASE RIGHT CANNOT BE TRANSFERRED WITHIN THE FRAMEWORK OF BANKRUPTCY OF UNITARY ENTERPRISE

When considering the bankruptcy case of a state unitary enterprise, its manager initiated a discussion of the issue of transferring lease rights to the debtor. The courts of three instances, having found no violations, agreed with the applicant, but the Supreme Court of Russia expressed disagreement with the opinion of the colleagues.

The position of the manager, which was supported by the lower courts, was that the disputed right was negotiable, since the leased land plots that belonged to the public owner were transferred with a lease term of more than 5 years.

The Economics Board, in turn, indicated that in the situation of resolving the issue of transferring the lease right, first of all, it was necessary to establish the presence of the tenant's ability to dispose of such a right.

In similar cases, land legislation does provide for the tenant's right to transfer the lease to third parties. At the same time, the rule of law also establishes restrictions that may be provided for by other laws, and in the case under consideration, there were some of them.

State unitary enterprises are prohibited from transferring rights and obligations to lease land without the consent of the owner, if at the same time it is in public ownership.

Thus, the Supreme Court of Russia concluded that the right to lease a land plot is not an asset of the debtor, which can be transferred for a fee (clause 20 of the Review of Judicial Practice of the Supreme Court № 2 for 2021).