The city administration (Executive Committee) with the first Tenant entered into a lease agreement for a land plot with a type of permitted use - “for multi-apartment residential development”, which is on municipal property.
Subsequently, on the basis of the contract of assignment of the right of claim, all rights and obligations under the lease agreement for the land plot were transferred to the second Tenant.
Lease payments under the contract were calculated and paid based on the rate of land tax of a certain type of permitted use.
Later, due to the change in the tax rate on the land plot, the Administration recalculated rental payments. But the recalculation was made by the Administration on the basis of the tax rate established for the land plot with a different type of permitted use than transferred under the lease agreement - “occupied with trading objects”. The tenant refused to pay rent payments according to the new settlement of the Administration. The administration has appealed to the court with a demand to recover from the Tenant the amount of the unpaid lease payments on the new settlement.
The tenant has prepared objections based on the following arguments:
The cadastral passport of the leased land did not contain an indication of such a type of permitted use as “occupied by objects of commerce”.
In the event of actual change in the type of use of the land plot, information on the change in the type of permitted use was subject to registration by entering them into the state cadastre of real estate, and information in the state cadastre of real estate suggested the opposite.
The legislation does not contain provisions on the ability of the Administration to determine, change the size of the rent, based on the purpose of use of the land specified in the concluded lease agreement.
The court agreed with the arguments of the Tenant and stood up for his defense, recognizing the new calculation of the Administration as illegal and refusing the latter to collect the rent.