Is it possible to purchase the building of the municipal bus station in private property
Answering the question: is it Possible to purchase the building, which is a municipal property and owned by the right of economic management of local passenger motor transportation enterprise, without bidding (auction), it is necessary to refer to article 217 of the Civil code of the Russian Federation. It says that the property in municipal ownership can be sold by its owner in the property of citizens and legal persons in the manner prescribed by the laws on privatization of state and municipal property.
According to the General rules of acquisition of municipal property in the property set out in the Federal law of 21.12.2001 № 178 – FZ "On privatization of state and municipal property", indeed, the sale of municipal property initially should be carried out through the organization and holding of auction or competition. However, paragraph 12 of article 43 of this law, an exception. In particular, municipal property may be acquired in the property, bypassing the tender or auction, through the purchase of such property by the lessee. It is important to note that such a right established in law is not for all tenants, but only those with whom a contract of lease with option to purchase of municipal property was concluded before the entry into force of the act, namely, to 26 April 2002. In addition, the law prescribes a limitation period when the right of redemption may be exercised by the tenant. Thus, the redemption of municipal property is carried out on the basis of the application of the lessee of such property:
"1) the terms established by the contract of lease with option to buy, if it contains terms of the size of redemption, terms and procedure of payment;
2) a period of six months from the date of entry into force of this Federal law, if a lease with option to purchase does not contain conditions about the size of the ransom, the timing and manner of its payment by:
of any lease of state or municipal property as a contribution into authorized capital of joint-stock companies, created in conjunction with the tenant with the provision of the last right of priority of acquisition of the shares of the said society, if the market value of the leased property on the date of application is over 10 thousand established by Federal law of minimum wage. The procedure for determining the value of the said shares, the terms and procedure of their payment shall be determined in accordance with this Federal law;
concluding additional agreements providing for terms of the size of redemption, terms and procedure of payment if the market value of the leased property on the date of application is 10 thousand established by Federal law of minimum wage and below."
If after the above deadline a statement of tenant is not received, unspent provisions of such agreements repurchase lapse under the direct instructions of the law.
It should be noted that currently, the second condition actually lost value and may not be exercised as of the date of entry into force of the Federal law expired more than 6 months.
Thus, municipal property may be acquired in property of a commercial organization without a tender or auction if the purchaser has entered into prior to April 26, 2002, the lease of this property, containing terms of the size of redemption, terms and procedure of payment, and tenant's statement of the realization of the right of redemption filed on time.
Besides the above described exceptions to the General rule, the Federal law of 21.12.2001 № 178 – FZ "On privatization of state and municipal property" allowed the possibility of establishing a separate law features associated with the privatization of municipal property by the subjects of small and medium enterprises (clause 5, article 3). So, according to the Federal law from 22.07.2008 № 159 – FZ "About features of alienation of the property which is in state ownership of subjects of the Russian Federation or municipal property and leased by subjects of small and medium enterprises, and on amendments to certain legislative acts of the Russian Federation" subjects of small and medium enterprises given the right to purchase the leased property. This right may be exercised either on the basis of initiatives of the state or municipal unitary enterprise, which is expressed in the direction of the relevant proposal, the subject of small and medium enterprises or on the initiative of the latter – by a Declaration about implementation of advantage right on acquisition of the leased property to the authority. In any case, you must meet the following conditions:
a) the subject of small and average business should not be a credit or insurance organization (with the exception of consumer cooperatives), investment Fund, pension Fund, professional participant of the securities market, pawnshops; must not be a party to agreements on production section; must not engage in business activities in the field of gambling; must not be a resident of the Russian Federation in the order established by the legislation of the Russian Federation on currency regulation and currency control, except for the cases stipulated by international treaties of the Russian Federation; must not carry out mining and processing of minerals (except for common minerals);
b) leased property as of July 1, 2015 must be in the temporary possession and (or) temporary use of the subject of small and average business continuously for two years or more (if priority right is implemented on the initiative of the latter for about 3 years or more) in accordance with the contract or leases such property;
C) no arrears of rent for such property, the penalties (fines, penalties) on the day of conclusion of the contract of purchase and sale of the leased property in the event of the receipt of the proposal of the state or municipal unitary enterprises on the conclusion of the Treaty, and in the case of a contract on the initiative of subjects of small and average business — on the day of filing small or medium-sized business statement of pre-emptive right to purchase the leased property;
g) the leased property is not included in the approved in accordance with part 4 of article 18 of the Federal law of 24.07.2007, № 209 – FZ "About development of small and medium entrepreneurship in the Russian Federation" the list of state property or the municipal property intended for transfer to possession and (or) in using to subjects of small and average business, except under part 2.1 of article 9 of Federal law of 22.07.2008 № 159 – FZ;
d) information on the subject of small and average business on the day of conclusion of the contract of purchase and sale of the leased property is not excluded from the unified register of subjects of small and medium enterprises (applicable from 01.08.2016 years).
Be aware that in accordance with paragraph 3 of article 10 of the Federal law from 22.07.2008 № 159 – FZ the right of priority to acquisition of rented municipal property may be used until 01 July 2018.
Based on the foregoing, it follows that the competition and auction for sale of municipal property is not required if the property was leased to small and medium entrepreneurship and last in the order established by the legislation of the Russian Federation, implemented its pre-emptive right to purchase the leased property.