Рenalty for late return of rented property

Abstract

The article deals with topical issues of applying liability measures for untimely return of property provided for use under lease terms. Based on the norms of the current legislation, the specific features of the penalty provided for in Part 2 of Art. 785 of the Civil Code of Ukraine, and outlined the problematic issues of legal qualification of the relevant accruals from the point of view of their legal nature, the calculation period, and the duration of the statute of limitations.
 It is noted that the imperfection of the legislative technique led to the emergence of opposite approaches to clarifying the nature of the increased costs of the tenant for the use of the property in the non-contractual period – such charges are considered as double rent for the use of the property and as a penalty for violating the obligation to return the property. The position regarding the possibility of simultaneous charging of rent for the period of non-contractual use of the property and a penalty as a penalty for late return of the property, which was reflected in the materials of court practice, also turned out to be controversial. The legal conclusions of the Supreme Court formed at the time of preparation of the article are presented, according to which the calculation of rent must take place exclusively during the period of validity of the lease agreement, and outside the contractual period of use of the property, a penalty in the amount of double the rent for the time the property is actually in the use of the tenant is subject to application. The corresponding position was formed by the cassation instance based on the distinction between regulatory and protective prescriptions and the impossibility of their combination (identification).
 The work indicates the need to establish the lessee’s fault in the untimely return of the property, highlighted the problematic issues of calculating the cost of using the property when renewing the lease agreement on the basis of Art. 764 of the Civil Code of Ukraine and Art. 284 of the Economic Code of Ukraine.
 Based on the results of the research, proposals were made to improve the current legislation, aimed at ensuring its unambiguous understanding by the participants of the tenancy relationship and the unification of the judicial practice of resolving disputes of the relevant category.