The principle of applying “tacit consent”
Today, more than ever, our state needs to attract foreign investment, primarily in infrastructure projects, which is the key to economic growth and the state’s recovery from the crisis. Weekly, domestic top officials participate in economic forums and round tables at both the national and international levels, at which they in every way assure potential investors of the enormous attractiveness of Russia and the creation of the most favorable investment climate. The national path to the economic miracle and the title of “East European Economic Tiger” promises to be long and difficult, but there is hope for positive and systemic shifts in the near future. However, for now, we must admit that the vast majority of investors, whom we carry on hand and cherish like the apple of an eye, have been forced to wander for years in the labyrinths of bureaucratic offices to obtain a permit, conclusion of an agreement, and the like.
Everyone is well aware that the key to investment flow and sustainable economic development is the creation of clear, understandable and transparent rules of the game for all business players without exception. The state establishes such rules in laws and industry regulations, which in practice do not always demonstrate a clear and unambiguous approach to the settlement of certain legal relations. It is in such controversial situations that each investor seeks to find protection in an independent court as a mandatory attribute of every civilized and investment-attractive country.
For many years of work on infrastructure projects (mainly in the port industry), a team of law firms has gained invaluable experience and experience in the legal relations of leasing state real estate between port infrastructure facilities (open and closed storage areas, office and industrial premises, etc.), which is taken into account on the balance of seaports and without which the implementation of the infrastructure project in the port is virtually impossible.
The procedure for concluding lease agreements is regulated by a special law “On the rental of state and communal property”, the task of which is to establish a clear procedure, as well as the rights, obligations and powers of its participants at each stage. However, in practice, participants in the procedure (authorities) very often commit violations of statutory obligations, using vague wording of certain provisions of the Law, which leads to arbitrary interpretation of these norms by the parties and even uneven application by the courts.
Tacit (un) consent
First of all, we are talking about the position of Part 3 of Art. 9 of the Law on rent regarding the application of the principle of the so-called “tacit consent” in case of violation of the terms of agreement of the lease by the state property management body. The rental law provides that the management body considers the materials submitted to it and within 15 days after their receipt sends the lessor (regional branch of the State Property Fund at the location of the property) conclusions on the terms of the lease or on refusal to conclude a lease. If the landlord has not received the conclusions of the management body, permission, refusal or proposals from the management body to conclude a lease of real estate with a budget institution, organization, the conclusion of a lease with these bodies is considered agreed, after which the State Property Fund publishes it in the media and on its web -site the announcement of the intention to lease the property.
In March 2017, one of our clients contacted the State Property Fund with a statement on the conclusion of a lease of real-estate state property, which is recorded on the balance sheet of SE Yuzhny Commercial Sea Port and belongs to the Ministry of Infrastructure. The Fund immediately sent the lease materials to the Ministry to obtain the necessary approval, however, in the absence of any response within 15 days, the client again contacted the Fund and requested that the lease be agreed upon due to the violation of the 15-day deadline by the governing body. However, the State Property Fund did not share the applicant’s position and said that the principle of “tacit consent” applies only to budgetary institutions, in which our client (private company) certainly does not apply. In addition, over time it became clear that the Ministry nevertheless reviewed the lease materials with a significant violation of the deadlines – 52 days (instead of the ones prescribed by law 15), but provided an answer on the refusal to conclude an agreement on fairly contradictory grounds.
In practice, state property lease materials can gather dust for months in the offices of ministries and departments, without consideration, while the potential tenant continues to hope for a lease to create a new project or expand his business. Realizing the lack of responsibility and any negative consequences, officials are in no hurry to fulfill their direct duties.