Common territory of the decision of the Armed Forces of the Russian Federation. About the local area of \u200b\u200bapartment buildings. Order of the houses

Publication date: 07/13/2018 07:41

Nowadays questions parkovkaIf you live in an apartment building, cost more than ever. If in the old residential building apartment houses 30-40-year old ago, still cars are not so much, then in new buildings that are settled, mostly more than the younger generation, they are much more. And the problem of parking, especially in major cities, It is very acute. After all, and garages in step accessibility are also lacking due to the density of the development as a result of saving space. Residents of apartment buildings in the absolute majority park their cars in the courtyard of the house, their own or neighbor, to whom as lucky.

Only in last years The requirements of urban planning legislation began to oblige developers to provide for the required amount of parking spaces and other elements of infrastructure and improvement. But legislative changes still do not have time for the realities of our life, and urban-planning standards are often underestimated.

So arise as a result of "Wars for Parking Places" Various decisions of owners adopted at general meetings that provide for the installation of barriers at the entrance to the courtyard, or locked parking in the courtyards of houses and others - no less controversial in terms of housing legislation. As far as legitimate, such solutions and the actions of the owners we will consider in this article.

In accordance with Part 1 of Art. 16 FZ "On the introduction of the Housing Code of the Russian Federation" in the existing development of settlements land plotwhere the objects of immovable property included in this house are located, is the common equity property of the owners of the premises in an apartment building.

According to Art. 36 Housing Code of the Russian Federation (hereinafter referred to as the LCD of the Russian Federation) to the general property apartment house refers, including the land plot on which is located this house, with elements of landscaping and improvement, other intended for service, operation and improvement of this house, and objects located on the specified land plot. The boundaries and the size of the land plot on which the apartment building is located are determined in accordance with the requirements of land legislation and legislation on urban planning activities.

Paragraph 2 of Art. 36 LCD RF stipped that the owners of the premises in an apartment building own, enjoy both the limits established by the Housing Code and civil law, dispose of common property in an apartment building.

In accordance with paragraph 1 of Art. 247 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) possession and use of property in equity ownership are carried out by agreement of all its participants, and if consent is in short, in the manner established by the court.

However, to enjoy your share in the general property, including the land plot, the owners are entitled only to meet decisions about it at the general meeting of owners premises of MKDthat is, in the manner prescribed by housing legislation.

In paragraph 5 of Art. 36 LCD RF states that the land plot on which the apartment building is located can be burdened by the right of limited use by other persons. It is not allowed to establish the establishment of land importation if necessary to ensure access of other persons to objects that existed before the day of the introduction of the Housing Code. The new burden of the land plot of limited use is established by agreement between the person who requires such an encumbrance of the land plot, and the owners of the premises in an apartment building. Disputes on the establishment of burdensing of the land plot of limited use or conditions of such burdening are permitted to judicial order.

The rules of improvement of municipal entities and regulatory acts of the subjects of the Federation are also most of its own standards for the procedure for maintenance and use outdoor territory, including on the organization of parking and their coordination.

Very often, the boundaries of the MKD land plot are not defined in accordance with land and urban-planning legislation. For the period of construction, the plot is formed, and in the future, after the time set by law, the land plot is removed from cadastral accountingSince its further design does not occur in various circumstances.

In accordance with Article 44 of the LCD RF, in competence general Assembly Owners of premises (OSS) MKD include decision making:

on the limits for the use of the land plot, which is located a multi-apartment building, including the introduction of restrictions on the use of them;

the improvement of the land plot on which the apartment building is located and which relates to the common property of the owners of the premises in an apartment building, including the placement, on the maintenance and operation of elements of landscaping and improvement in the specified land plot.

These legal entities of the General Meeting Owners are often interpreted very peculiar and this is reflected in the "strange" protocols of general meetings. And some owners and decisions are not needed by some owners, they simply equippass parking spaces at the local area, despite the opinions of other owners and norms of the law. But, the interpretation of the norms of laws, we obtain as a result of the current judicial practice on the application of these rules, which sometimes be polarly opposite.

In the review of the judicial practice of the Supreme Court Russian Federation No. 1 (2018) approved by the Presidium of the Supreme Court of the Russian Federation 28.03.2018, the following conclusion was made: the General Assembly of the Building House of an apartment building does not apply to authorities, to make decisions on the restriction of the rights of the owners of the premises for the use of the house territory in order to host cars belonging to them .

The essence of the case is as follows: at the general meeting of members of the Zhsk with the participation of the applicant (C.), it was decided to establish parking vehicles with the installation of the barrier at the entrance to the yard territory. C. The key chain from the barrier was received and a parking place was subsequently fixed behind it.

Next, after a while at the collection of car owners, on the organization of parking spaces and the improvement of the local area, it was decided to deprive S. Opportunities to park the car owned by the plaintiff, on the fenced door area for violating parking rules approved at the general assembly of car owners, and for violation of the situation on the order of entry and parking of motor vehicles, return previously made by it cash, its initial fee.

The Supreme Court of the Russian Federation has canceled all the decisions of the courts of subordination instances, not in favor of the owner, who was deprived of the right to use the local area (according to the decision of the General Assembly), considering them adopted in violation of the existing legislation, while clarifying the following:

«… Paragraph 67 of the joint decree of the Plenums of the Supreme Court of the Russian Federation and the Higher Arbitration Court from April 29, 2010 No. 10/22 "On some issues arising in judicial practice When resolving disputes associated with the protection of property rights and other real rights, it was determined that if the land plot was not formed and the state cadastral record was not carried out against it, the land under an apartment building is owned by the relevant public legal education. The owners of the premises in an apartment building have the right to own and use this land plot to the extent necessary for the operation of the apartment building, as well as objects that are part of common property In such a house. In determining the limits of the empower the owners of the premises in an apartment building to hold and use the specified land plot, Part 1 of Art is necessary. 36 LCD RF.

In these cases, the owners of the premises in an apartment building as the legal owners of the land plot on which this house is located and which is necessary for its operation, by virtue of the provisions of Art. 304 - 305 Civil Code of the Russian Federation have the right to demand eliminating any violations of their rights, at least these violations and were not connected to the deprivation of ownership, as well as the right to protect their ownership.

According to Part 2 of Art. 36 LCD RF, owners of premises in an apartment building own, enjoy both the limits established by this code and civil law are disposed of common property in an apartment building.

In h. 4 tbsp. The 37 LCD of the Russian Federation is prohibited by the alienation of the share in the right of ownership of the common property in an apartment building, as well as the commission of other actions that entail the transfer of this share separately from the ownership of the premises in an apartment building.

Thus, the owner of the room in an apartment building belongs to the unconditional and inalienable right to use the common property of an apartment building. At the same time, any ways of restricting or depriving the owner of the premises in an apartment building of such a right are not provided by the current legislation.

... Court, recognizing the restriction of the right of S. to use parking, located at the local house of an apartment building, regulated by the Regulations on the procedure for entering and parking vehicles at the receiving territory, approved by the General Meeting of Members of the Russian Federation on June 14, 2013, and the relevant requirement of the Government Resolution of Moscow No. 428-PP, did not take into account that this resolution does not regulate the creation and procedures for the use of parking spaces on the fenced incoming area, and therefore the imposition of any restrictions of the rights of S., as the owner of the premises in an apartment building for the use of the house territory, including on the placement of the car belonging to it.

Paragraph 13 of PPM No. 428-PP prohibited the installation and operation of enclosing devices that obstruct or limit pedestrians and passage of vehicles into the territory common use.

The right of S. on the unobstructed entry into the fenced territory of the courtyard of an apartment building during the day, as the owners of the residential premises in this house, enshrined and the Regulations on the procedure for entering and parking vehicles at the local area approved by the General Meeting of the members of the HSK.

Under such circumstances, the reference of the court to the fact that the decision of the general assembly of car owners served as a legitimate basis for limiting the right of the plaintiff to use the parking space, which is generally used by the owners of the apartment building, contrary to the above-mentioned substantive law standards».

In another case, some owners have equipped parking spaces right under the windows of the apartments, which other owners of the MKD premises were indignant. The court fell on the side of the outrageous inhabitants and recognized their rightness in the reluctance to put up with the desires of individual owners who have decided to organize the parking.

By the decision of the Aleksinsky City Court of the Tula region dated November 24, 2013 in case No. 2-1501 / 13, the requirements of the claimant were satisfied and the court obliged the digestive organizers of the parking lot to return to the country's initial state.

«… According to PP. "E" and "G" paragraph 2 of the rules for the mainstate of the general property in an apartment building approved by the Decree of the Government of the Russian Federation of August 13, 2006 No. 491 in general property include a land plot on which the apartment building is located and the boundaries of which are determined on the basis of state cadastral data. accounting, with elements of landscaping and improvement, as well as other objects intended for service, operation and improvement of this house.

The ownership and use of property in equity ownership is carried out by agreement of all its participants, and if consent is inhabited, in the manner established by the court of paragraph 1 of Art. 247 of the Civil Code of the Russian Federation).

Decisions on the limits of the use of the land plot on which the apartment building is located, including the introduction of restrictions on them, they are competing the general meeting of the owners of the premises in an apartment building (paragraph 2 of Part 2 of Art. 44 LCD RF). These decisions are mandatory for all owners of premises in an apartment building, including those who have not participated in the voting (part 5 of Art. 46 LCD RF).

According to paragraph 67 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Wheel of the Russian Federation No. 22 dated April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of ownership and other real rights", if the land plot is not The state cadastral registration was formed and against it, the land under an apartment building is owned by the relevant public legal education.

At the same time, within the meaning of parts 3 and 4 of Article 16 of the Introductory Law, the owner is not entitled to dispose of this land in the part in which land plot under an apartment building should be formed. In turn, the owners of the premises in an apartment building have the right to own and use this land plot to the extent that it is necessary for the exploitation of the apartment building, as well as objects included in the general property in such a house. In determining the limits of the empower the owners of the premises in an apartment building in possession and use of the specified land plot, it is necessary to be guided by part 1 of article 36 of the LCD of the Russian Federation.

The owners of the premises in an apartment building own, enjoy both the limits established by this Code and civil law are disposed of common property in an apartment building.

A decrease in the size of the common property in an apartment building is possible only with the consent of all owners of the premises in this house by reconstruction.

By decision of the owners of premises in an apartment building adopted at the general meeting of such owners, common property facilities in an apartment building can be transferred to other persons if it does not violate the rights and legitimate interests of citizens and legal entities.

... From the act of examination of the local area ... from 18.12.2013, approved by the decision of the head of the administration of the MO Aleksinsky district ... from 18.12.2013, it follows that the above house is included in the list of dilapidated residential buildings, the land plot is not marked. This house is located on the part of the land plot of 4743 sq. M with cadastral number ... with permitted use: for multi-storey (residential) buildings.

By the decision of the deputies collection municipal Education... dated June 29, 2006 No. ... "Rules of improvement and content of the territory of the municipality were approved" …».

By virtue of Art. 4 Rules - work on the improvement of the territory of the urban settlement is allowed only on projects agreed with architecture authorities in the prescribed manner.

Prohibited:

self-confinement to build various kinds of economic and auxiliary buildings, sheds, garages, pigeon, greenhouses, and so on in the courtyards of houses without permission of the administration ... (Art. 10.19. Rules);

travel, parking and parking vehicles in unidentified places (on lawns, in squares, on sidewalks, children's and sports grounds);

travel, parking, parking of cars and trucks for processed and seeded fields and dirt roads, not authorized for travel (Art. Article 10.29., 10.30. Rules).

... in accordance with Table 7.1.1 Sanpin 2.2.1 / 2.1.1.1200-03 ( new edition), "Sanitary-protective zones and a sanitary classification of enterprises, structures and other objects" distance from facades of residential buildings and ends of houses with windows, ends of residential buildings without windows when placing parking on 1-machine places and less should be at least 10 meters .

The court in the case was established that the defendants were made by unauthorized arrangement of parking spaces for vehicles (with damage to the upper layer of soil and fruit crushed, curb) at the local area from the end side ... at a distance of 50 cm from the facade of a residential building. The removal of the land plot for the creation of the parking lot by the administration of the municipality ... not produced. These circumstances confirm also submitted by the plaintiff and defendants of the photo (l. 49-59).

In addition, violation of the rules about the improvement in ... (Article 4, Article 10.19 is admitted.), Sanpine requirements 2.2.1 / 2.1.1.1200-03.

According to paragraph 1 and 2 of Art. 222 Civil Code of the Russian Federation is subject to demolition of unauthorized construction, that is, a residential building, another building, construction or other real estatecreated on the land plot not allocated for these purposes in the manner prescribed by law and other legal acts or created without receiving it required permits or with a significant violation of urban planning and construction norms and rules. Unauthorized construction is subject to demolition by her face either at his expense.

Presented in the case of evidence confirmed violation of the rights of the plaintiff in part of the unauthorized arrangement of parking spaces for vehicles and the requirements in terms of its liquidation by bringing to the initial state by removing the curb stone and crushed stone, to be satisfied».

In another judicial dispute, the management organization, in this case, the HOA, limited the owner to the use of the local MKD area by blocking the key chain from the barrier installed at the entrance. Justice owner had to look at the Supreme Court, which canceled the decisions of the courts of the first and second instance.

« Thus, the decision of the TPC "Nevsky Meridian" on the issue of prohibiting the plaintiff to enter the incoming territory contradicts the current legislation, since it violates the rights and legitimate interests of P.A.N. as the owner of the room in an apartment building for unhindered access to common property, as well as the possibility of parking vehicle At any time of the day at any free place at the local area.

The current legislation does not provide for the possibility of blocking the access of the owner to the country area on the basis of the decision of the General Assembly of the owners of the residential building as a sanction for violation of the land plot established by the meeting.

The fact that "the procedure for using the land plot", approved by the decision of the general meeting of the owners of an apartment building dated June 9, 2013, is not invalid, is not an unconditional basis for its application.

The courts in the consideration of the dispute were to be guided by part 2 of Article 11 of the Civil Procedure Code of the Russian Federation, according to which the court, having established in the resolution of civil cases that the regulatory legal act does not comply with the regulatory legal act having greater legal force, applies the norms of the act of the greatest legal force. .

At the same time, the judicial board on civil cases of the Supreme Court of the Russian Federation notes that the given legal norm is subject to use not only to regulatory legal acts adopted by public authorities, but also to local regulatory actsWhat the "procedure for using the land plot" approved by the decision of the General Meeting of the Owners of an apartment building dated June 9, 2013

The Judicial Board of Civil Affairs of the Supreme Court of the Russian Federation finds that the Court of Appeal Violations allowed when considering the case are essential, they influenced the outcome of the case and without their elimination it is impossible to restore and protect the violated rights, freedoms and legitimate interests of PA. N., in connection with which the appellate definition of the judicial board on the civil cases of the St. Petersburg City Court of January 23, 2017 is subject to cancellation with the direction of the case for a new consideration of the appellate court».

Thus, limiting the rights of owners of the MKD premises in the form of failure to provide access to the country area (even if the decision of the OSS, who accepted the local act for the MKD is not challenged and the barrier is established legally), as well as actions on unauthorized placement of parking lots, recognized by the Supreme Court and other vessels illegal .

According to the materials of the site Burmaster.

We consider regular situations and judicial practice, in particular, the position of the Supreme Court of the Russian Federation on the reconstruction of apartments and other premises in an apartment building.

In this article, we will consider a dispute about the use of common property in an apartment building between owners and an entrepreneur and its decision by the Supreme Court of the Russian Federation.

Circumstances of the dispute

The situation is completely ordinary and standard, many tenants came across such, well, if lucky, heard about such a situation.

The entrepreneur bought an apartment in an apartment building and decided to rebuild it into the hairdresser.

He held a general meeting of owners, received 75% of the vote of the owners and appealed to the local administration to obtain permission.

However, one owned person did not agree with such a formulation of the issue, opposed the accommodation in the house of the hairdresser, and, consequently, the re-equipment of the apartment and demanded to return everything in the original initial state. Entrepreneur All claims to its reference, having on the hands of the permission of the local administration and the protocol of the General Meeting of Owners with a positive decision than forced the owner to apply to court.

The district court supported and satisfied claim The owners of the demolition of the structure, acknowledged the permission to the administration illegal and ordered the entrepreneur to demolish the annex.

The entrepreneur challenged the decision of the first instance on appeal and won.

The owner, accordingly, appealed to the Supreme Court of Russia.

Position of the Supreme Court

What if the administration was wrong

Resolution for reconstruction is a complex and important question. It is understood that the local government authority, endowed with the authority to issue such permits, owns full information when and in what way to issue it. But he is sometimes mistaken.

If it turns out that permission to reconstruct was illegally, the victim is entitled to compensate the costs of construction and demolition through the court. The authority issued such permission must pay for their losses from their budget ( art. 1069 of the Civil Code of the Russian Federation).

In our case, the entrepreneur has a chance to receive compensation from the city administration

conclusions

Disputes associated with the use of common property in an apartment building, ambiguous, complex and eternal. Therefore, it is important to know what position on these affairs at the Supreme Court of Russia. In order for your home the situation, as in today's example, follow these simple rules: 0

House for three years. In the past year constitutional Court Russia issued a decision (RESOLUTION OF THE COP of the Russian Federation of 28.05.2010 No. 12-P), recognizing the point of law contrary to the Constitution, which requires certainly a public meeting to decide on the design of the site and appoint an authorized person for further procedures. That is, a statement about the formation of the local area of \u200b\u200bthe high-rise building can file any of the owners of the apartment in the house. Those. Any owner of housing can apply for the design of the local territory in the city administration (a collective statement is required from all owners of housing)? another question. The house area of \u200b\u200ban apartment building is not in the property, a store is built in a tight house, a part of the owners against, it is consistent, the decisions of the plenums of the Supreme and Supreme Arbitration Courts of the Russian Federation dated April 29, 2010 No. 10/22. Paragraph 67 of this Resolution, apply to the court for 1.Change the store construction procedure? 2. Private territory privatization?

Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of April 29, 2010 N 10/22 Moscow "On some issues arising in judicial practice in resolving disputes related to the protection of ownership and other real rights"

Disputes on land rights on which apartment buildings are located

66. According to Part 1 of Article 16 of the Federal Law "On the Enhancement of the Housing Code of the Russian Federation" (hereinafter - the Introductory Law) and Part 1 of Article 36 of the Housing Code of the Russian Federation (hereinafter referred to as the LCD of the Russian Federation) owners of the premises in an apartment building belongs to the right Property land with elements of landscaping and improvement, on which the apartment building and other objects of immovable property are located (hereinafter referred to as a multi-apartment building).

Due to parts 3 and 4 of Article 16 of the introductory law on the application of any person authorized by the decision of the General Assembly of the Owners of the premises in an apartment building, the authorities carry out the formation of a land plot on which this house is located.

If the land plot under the apartment building was formed before the introduction of the LCD of the Russian Federation and in relation to it, state cadastral records were carried out, the right of general share ownership of it at the owners of the premises in an apartment building is considered to be arising from the law from the moment the LCD of the LCD (part 2 2 Article 16 of the introductory law).

If the land plot under an apartment building was formed after the introduction of the LCD of the Russian Federation and in relation to it, state cadastral records were carried out, the right of total ownership of it at the owners of the premises in an apartment building arises by the law from the moment of state cadastral accounting (part 5 of article 16 Input law).

By virtue of parts 2 and 5 of article 16 of the introductory law, a land plot under an apartment building goes into general shared property Owners of premises in such a house for free. No acts of the authorities about the emergence of the right of total share ownership of the owners of the premises in an apartment building is not required.

67. If the land plot is not formed and the state cadastral record has not been carried out in relation to it, the land under an apartment building is owned by the relevant public legal education. At the same time, within the meaning of parts 3 and 4 of Article 16 of the introductory law, the owner is not entitled to dispose of this land in the part in which land plot under a multi-family house should be formed. In turn, the owners of the premises in an apartment building have the right to own and use this land plot to the extent that it is necessary for the exploitation of the apartment building, as well as objects included in the general property in such a house. In determining the limits of the empower the owners of the premises in an apartment building in possession and use of the specified land plot, it is necessary to be guided by part 1 of article 36 of the LCD of the Russian Federation.

In these cases, the owners of the premises in an apartment building as the legal owners of the land plot on which the house is located and which is necessary for its operation, by virtue of Article 305 of the Civil Code of the Russian Federation, have the right to demand eliminating any violations of their rights, at least these violations and were not connected to deprivation of possession, as well as the right to defend its ownership, including against the owner of the land plot.

68. The owners of the premises in an apartment building are entitled to challenge in court taking into account the subordaginity of cases according to the rules of chapter 25 of the Code of Civil Procedure of the Russian Federation or chapter 24 of the APC of the Russian Federation Actions (inaction) of the authority for the formation of a land plot on which this house is located to develop documentation on the territory planning (Articles 45 and 46 Town Planning Code Of the Russian Federation), as well as the actions preceded by land plot, in particular, decisions on the provision of land plot for construction, to carry out trading for the sale of land plot or the right to conclude a land lease agreement and so on.

If, as a result of such actions, the authority authorities have the right to land required for the operation of an apartment building, the owners of the premises in it may apply to court to such third parties with a claim aimed at challenging the relevant right, or with a claim for establishing Land boundaries.

When considering these lawsters, the court allows controversial questionsassociated with the boundaries of this land plot, in accordance with the requirements of land legislation and legislation on urban planning activities (part 1 of article 36 of the LCD of the Russian Federation). At the same time, the obligation to proverse the circumstances that served as the basis for the formation of a land plot in the contested boundaries and the amount is imposed on the relevant authority.

The court decision, which establishes the boundaries of the land plot, is the basis for changing information about this land plot in the State Real Estate Cadastre.

Object rights (In this case, the rights of the overall share ownership of the owners of the apartment building) is land plot (Article 6 of the Land Code of the Russian Federation). The term "house territory" is not used in the field property law. This term is used in urban planning and utility operational activities, and therefore cannot be used to understand the issue of property affiliation.

Land located near the house, as a separate object does not exist, since the legislation operates the term "Land of an apartment building with elements of landscaping and improvement" and located at such a plot "Objects intended for service, exploitation and improvement of this house" and "Rest sites, game, sports, housekeeping sites, guest parking lots of motor vehicles, green plantings."

Such a land plot is determined on the basis of the standards acting / acting at the time of construction at home and includes both the building area ("stain of development") and territory near the house ("district territory").

For state registration ownership of an apartment or non-residential premises in an apartment building is simultaneously implemented state registration of shares in the right common property indoors and landThe general property in it (Ch.5 Art. 40 of the Federal Law of July 13, 2015 N 218-FZ "On State Registration of Real Estate"). State registration emergence, transition, termination, restrictions rights to residential or non-residential premises in apartment buildings and encumbrances of such a room at the same time is State registration The emergence, transition, termination, restrictions of inextricably linked with it rights of total ownership of common property and encumbrances of such property (Part 1 of Art. 42 of the Federal Law of 13.07.2015 N 218-FZ "On State Registration of Real Estate"). A similar rate was found in Art. 23 of the Federal Law No. 122-FZ in the editorial office operating to 1.01.2017.

The land plot, which is part of the common property of the owners of premises in an apartment building, is described in the current federal legislation as follows:

1. Housing Code of the Russian Federation (paragraph 4 of Part 1 of Article 36)

The owners of the premises in an apartment building belongs to the right of common share ownership of the common property in an apartment building, namely .................. .. land plot where the house is located otherwise intended for service, operation and improvement of this house and objects located on the specified land plot;

1. "Rules for the content of common property in an apartment building" (appliance. Decree of the Government of the Russian Federation of August 13, 2006 No. 491)

(Paragraph 1, subparagraphs "E" and "F") "The composition of the general property includes:

— land plot where the apartment building is located and the boundaries of which are defined on the basis of state cadastral accounting data, with elements of landscaping and improvement ;

— other objectsintended for maintenance, operation and improvement of an apartment building, including transformer substations, heat pointsintended for servicing one apartment building collective parking lots, garages, children's and sports grounds Located within the boundaries of the land plot on which the apartment building is located. "

1. Sanpin 2.1.2.2645-10 "Sanitary and epidemiological requirements for living conditions in residential buildings and premises" (appliance. Decree of the Chief State Sanitary Doctor of the Russian Federation 10.06.2010 N 64) *

2.3 land plot must envisage the possibility of organizing the organization territory with clear functional zoning and accommodation sites of recreation, game, sports , household places, guest parking lots of motor vehicles, green plantings.

Thus, the land plot of an apartment building includes children's, sports grounds, recreation sites, parking lots, landscaping, etc.

Since the UO (HOA) performs work and provides services for the maintenance and maintenance of the general property of the owners of the MKD, which includes a land plot, such an UO (HOA) serves this land plot as an integral part of the common property of the owners of this house.

An apartment building can only be controlled by one managing organization (Ch.9 Art. 161 LCD RF).

Establishing the structure of the residential premises and utilities Refer to the exceptional powers of the state authorities of the Russian Federation in the field of housing relations (paragraph 16 of Article 12 of the LCD of the Russian Federation).

The composition of the minimum list necessary to ensure the proper maintenance of common property in an apartment building of services and works, the procedure for their provision and implementation is established by the Government of the Russian Federation (part 1.2 of Article 161 of the LCD of the Russian Federation).

Decree of the Government of the Russian Federation of 03.04.2013 N 290 (Ed. Dated February 27, 2017) "On the minimum list of services and work necessary to ensure the proper maintenance of common property in an apartment building, and the procedure for providing and fulfillment" provides for "work on the content of the land plot where the apartment building is located, with elements of landscaping and improvement, other objects intended for servicing and operating this house. "

According to the explanations of the Plenum of the Supreme Court of the Russian Federation in the Resolution of June 27, 2017, N 22 "On some issues of consideration by the courts of disputes on the payment of utilities and residential premises occupied by citizens in an apartment building under a social hire agreement or owned by it on the right of ownership", fee for residential premises (for the content of the residential premises) is a boardfor services, work on managing an apartment building, for the maintenance and current repair of common property in an apartment buildingfor utilities consumed in the content of common property in an apartment building (P.9 Plenum); the general property in an apartment building includes a land plot,on which this house is located, with elements of landscaping and improvement (p.13 of the Plenum); under the content of the common property in an apartment building, a complex of works and services should be understoodaimed at maintaining this property in a state that ensures compliance with the characteristics of the reliability and security of an apartment building, security for the life and health of citizens, the safety of their property, the availability of use of residents and (or) non-residential premises, general premises, as well as land plot on which apartment house is located, constant readiness of engineering communications, accounting devices and other equipment included in the general property (p.14 of the Plenum).

The management organization is not entitled to unilaterally Change the procedure for determining the size of the fee for the content of the residential premises and charge the fee for the content of the residential premises in the amount exceeding the size of such a board, defined in accordance with the concluded management contract of the apartment building (paragraph 13 of the Plenum).

In paragraph 19 of Plenum also indicated that " Board size For the use of residential premises (hiring fees), depending on the quality and improvement of residential premises, the location of the house and is determined based on the occupied common Square Residential premises (parts 2 and 4 of Articles 156 LCD RF). "

Thus, the size of the board depends only on the listed indicators, among which there is no such factor as the absence or presence of cadastral accounting of the land plot.

Clarification of legal norms regarding the land plot of an apartment building, which is not put on cadastral records, given in paragraph 67 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Wheel of the Russian Federation No. 22 dated April 29, 2010 "On some issues arising in judicial practice in resolving disputes, associated with the protection of property rights and other real rights. " According to these explanations, "if the land plot is not formed and the state cadastral registration has not been carried out against it, the land under an apartment building is owned by the relevant public legal education. However, According to the meaning of parts 3 and 4 of Article 16 of the introductory law, public legal education is not entitled to dispose of this land in the part in which land plot under the apartment building should be formed. In turn, owners of premises in an apartment building have the right to own and use this land plot To the extent that it is necessary for the use of an apartment building, as well as objects included in the general property in such a house. When determining the limits of the empower the owners of the premises in an apartment building in possession and use of the specified land plot, it is necessary to be guided by part 1 of article 36 of the LCD RF. "

This position indicates that the highest courts indicated the existing rights of the owners of premises in apartment buildings for unformed land plots on a par with decorated.

Moreover, constitutional Court in clause 4.2. decisions of 05/28/11 No. 12-P "In the case of the verification of the constitutionality of parts 2, 3 and 5 of Article 16 of the Federal Law" On the introduction of the Housing Code of the Russian Federation ", parts 1 and 2 of Article 36 of the Housing Code of the Russian Federation, paragraph 3 of Article 3 and Paragraph 5 of Article 36 of the Land Code of the Russian Federation in connection with the complaints of citizens E.Yu. Dugenets, V.P. Minina and E.A. Plekhanov "indicated that" the owners of the premises in an apartment building, a land plot under which is not formed, ... actually carry out the possession and use of the unformed land plot on a par with the owners of the premises in an apartment building, a land plot under which is formed. "

It is also necessary to mention the essence of the term "formed plot", "the formation of a land plot", which is not identical to cadastral accounting.

Used ubiquitous term "formation of the land plot" is currently in Russian legislation Not disclosed.

By this issue Position of Rosreestra (profile federal Body in terms of these legal relations) is set out in a letter from 29.10.2015 N 19-Ex / 15537-cm / 15, according to which "the formation of a land plot is a complex of organizational actions and work aimed at the individualization of the land plot as a civil rights object, including the preparation of documents containing the necessary information about the land plot for the implementation of state cadastral accounting in accordance with the Federal Law of 24.07.2007 N 221-FZ "On State Cadastre of Real Estate" (hereinafter - the Cadastre Law) and for the implementation of state registration of rights On the object of real estate in accordance with the Federal Law of 21.07.1997 N 122-FZ "On the state registration of rights to immovable property and transactions with it".(Specified federal laws Mentioned in the editorial office, operating until 01.01.2017. Currently, the main provisions of these laws transferred to the Federal Law No. 218, which is valid from 01/01/2017).

The most complete maintenance of the term "formation of the land plot" is given inclause 1 Part 4 of Art. thirty first edition "Land Code of the Russian Federation" of 25.10.2001 N 136-FZ (currently does not work) in relation to the discovery land plots From state or municipal lands for new construction. According to this norm, work on the formation of a land plot includes:

- preparation of the project boundaries of the land plot and the establishment of its borders on the ground;

- determination of the permitted use of the land plot;

- Definition technical Conditions connecting objects to engineering and technical support networks;

- making a decision on bidding (competitions, auctions) or the provision of land plots without trading (competitions, auctions);

- Publication of reports on bidding (competitions, auctions) or acceptance of statements on the provision of land plots without trading (competitions, auctions).

After the formation of the site is carried out its cadastral record. Cadastral registration is not a stage of formation, but is an independent procedure, which is only the accounting of the already available characteristics of the site (area, borders, location on the ground), and the result of entering information about the site into the cadastral accounting authority.

The answer was prepared by an expert of the Interregional Commission NP "Housing and Commissars Control"
to control the provision of property rights
Owners of the premises of apartment buildings
in subjects and municipalities
Russian Federation

A.Ya.Nagalycheva.

A certain territory is located next to any apartment building, which is a total of all residents who can use it at their discretion in accordance with the collective decision.

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What it is?

The house area of \u200b\u200bthe apartment building is a land plot adjacent to the building, with clearly designated boundaries.

It should be landscaped and landscaped, as well as provide residents with the possibility of realizing the right to exist in a favorable environment. Also, the house territory must be registered properly in the state registration bodies of real estate.

What is included?

According to current norms of the legislation of apartment buildings, some collective property have at their disposal.

• entrances;
• attic and basement;
• the land plot, which is in close proximity to the house and is enshrined at this building by the decision of the city municipality.

To find out what is considered to be a local area, it is necessary to refer to the standards.

It is written in it that this category includes:

• pedestrian walkways, sidewalks and bridges;
• areas of landscaping;
• garages and parkings;
• emergency and through passages;
• sports grounds;
• game complexes for children;
• distributive, transformer and thermal booths and items.

All these zones are necessary to ensure the comfortable life of the property owners and are located within the boundaries of the territory relating to the building.

The legislation clearly defines the rules of exploitation of these land plots and objects, on them located.

Law

Key regulatory actsgoverning issues related to the local area are:

• Housing Code establishing which objects belong to the railway sites.
• SNiP, establishing standards relating to the location of objects in this area.
• Civilian I. Land CodesThe provisions of which are regulated by the nuances of property rights to real estate.
• Administrative Code, in the 7th article of which the responsibility provided for for violation of obligations to maintain the purchase area in proper condition is prescribed.

Who owns?

Outdoor territory of an apartment building 2019, the law refers to the overall ownership of persons who speak this building with apartments.

Thus, in the 16th article of the Federal Law No. 189, it is indicated that the territory surrounding the apartment building built on the site, along with all the objects and designs on it located, is considered to be the collective shareholders of the owners of housing, which has passed privatization.

If such a well-built zone was not created before the introduction of the LCD, all citizens who are owners of housing in this house, have the right to apply for a request containing the request for the allocation of such territory to the authorities of the national or regional authorities.

Registration in collective property

For the full use of the local area, residents of the house need it to have clearly designated boundaries and was properly framed.

This is done in several consecutive stages:

• The first of which provides for a collective meeting with a meeting, the appointment of a trusted person and adoption on the results of a special meeting.
• At the second stage, the trustee is sent to the state administration or management of regional supervision with a statement on the creation of the local area territory. After conducting land management procedures, the authorized body approves the draft boundaries of the site.
• The third stage provides for the direct marking of the territory. This is done by the Department of Administration or the Regional Office of the Regional Department, in the area of \u200b\u200bresponsibility of which is located a multi-storey. Territorial Department land resources Development of a conclusion about the free allocation of a plot into collective share ownership.

From the moment the entry about the adjacent to the house land area Located in the State Cadastre, this land plot together with all objects belonging to the structure of this building is transferred to the collective share ownership of housing owners.

Outdoor territory of an apartment building

Giving a special status to the country area is necessary to implement the following functions:

• the formation of the territorial structure, that is, separation into functional zones, due to which residents of the house can realize their needs guaranteed by law;
• control on the part of the owners of the housing that the land is exploited according to its intended purpose;
• implementation, relative to the joint maintenance of the local area in proper condition.

Responsibility for the maintenance of the local area in the proper condition is fully on the owners of the property, which must control the following points:

• cleaning the site, including snow;
• arrangement of sections for recreation and games of children;
• the construction of fences with the obligatory accounting of the interests of residents of nearby buildings;
• arrangement of platforms for collecting and subsequent destruction of garbage;
• arrangement of parking places;
• planting vegetation and subsequent care of it;
• the construction of the buildings necessary for a comfortable life and their planned repairs.

Landscaping

In accordance with the norms of legislation, the costs associated with the landscaping of the country area fall on the shoulders of the residents of this house. Often, people do this voluntarily without spending additional funds for the wage of hired workers.

Over the municipality, an exclusively sanitary cleaning of the territory and spoke in the emergency condition of trees is made.

Cleaning

In rules and regulations housing Fund It is clearly spelled out who should remove the local territory.

In particular, the cleaning of the site and the passage between multi-storey buildings It is in the field of responsibility, while a specialized enterprise should be engaged in the air purification in the quarter.

Rules Parkovka

When organizing a parking area near a multi-storey building, it is necessary to comply with all safety requirements and sanitary standards. In particular, it should be located at least 10 meters from the walls of the house.

The access of foreign cars to the receiving territory may be limited by the decision of the general meeting of residents.

However, this cannot concern emergency transport and emergency services to have free access to the territory when there is a need for this.

Installation of shogrbum

The law makes it possible to install the barrier at the entrance to the local area under such conditions:

• unhindered access to the territory for employees of fire protection and emergency workers, as well as employees of enterprises carrying out services for engineering communications;
• the disadvantages of residents of neighboring houses are not created;
• adjusting entry / departure is carried out constantly, regardless of day.

Before installing the barrier in obligatory case Appropriate permission must be obtained from the state architectural and construction supervision. Otherwise, its structure will be recognized illegal and the design will be demolished.

How many meters?

The size of the section adjacent to apartment houseIt is determined individually taking into account the norms prescribed in legislative acts regulating urban planning, land and housing spheres.

The width of the site on average varies within 3-6 meters depending on the number of factors:

• availability of the surrounding building of roads in general use;
• floors at home;
• building density in the quarter.

The calculation of the area of \u200b\u200bthe local area is traditionally produced by finding a product of a total area of \u200b\u200bbuildings and a specific indicator of the land plot on square meter housing. In specific cases, additional indicators can be used in the calculation.

How to find out the boundaries?

The zone near the multi-storey house is a common owner of all apartment owners. They have the right to dispose of this territory at their discretion, ennoble it, landslide, build various designs, without violating the standards established at the legislative level.

Find out what the size of the site and where its borders exactly pass, in the cadastral plan of a particular object. You can request this document in the management company engaged in the service of the building.

Interview

The territory adjacent to home together with all objects located on it is located in the total ownership of residents at home. In practice, all this often have extraneous citizens.

If this state of affairs does not suit the owners, they should take care of the interviewing of this territory. You can order such a procedure in the cadastral or management company.

To begin with, the meeting of residents with the adoption of the appropriate solution and the preparation of the Protocol on its results is required.

Based on this document consists of managing Companywhose employees perform an intertarization procedure.

The title documentation reflects all the main parameters and characteristics of the site, on the basis of which the management company calculates costs in the territory clean and other utility costs. If a documenting The territory was not implemented, then all costs associated with its content bears the municipality.

Installation of fences

Before the construction and use of any kind of fences of all action should be in obligatory Coordinated with the administration.

Procedure for installing fences Next:

• holding a meeting of residents with deciding on the need to construct the fence;
• writing a statement to the local administration with a request to issue a permit for the construction of a fence of strictly defined dimensions, the plan of the future object is submitted to the responsible government agencies and is agreed with them;
• obtaining a permit, which is usually issued without problems in the absence of violations.

Responsibility for unauthorized area