Who makes an estimate for the demolition of buildings to the bailiffs. Methodical recommendations for the execution of court decisions on the demolition of unauthorized buildings. So, we have a court decision on the demolition of an illegal building
Sections:
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Circumstances: The applicant believed that the cost of the demolition work carried out in the disputed structure was overstated, and the act of acceptance of the work performed was not true.
We draw your attention to the fact that this decision could be appealed in a higher court and canceled
OMSK REGIONAL COURT
Presiding: Loseva T.The.
The Judicial Collegium for Administrative Cases of the Omsk Regional Court composed of:
presiding over N.F. Latyshenko,
judges of the regional court Ivolgina N.V., Starostina G.G.,
under the secretary M.,
considered at the hearing on May 27, 2015 the case on the appeal of O.Yu.V., the representative of the Federal Bailiff Service of Russia in the Omsk Region E., against the decision of the Pervomayskiy District Court of Omsk dated February 2, 2015, by which the decision of the bailiff-executor of the PCB on Sovetskiy AO of the city of Omsk UFFSP of Russia in the Omsk region<...>from<...>... on the recovery of expenses for the execution of enforcement actions for enforcement proceedings N<...>with G.N. in favor of O.Yu.V. in total<...>rubles was declared illegal.
After hearing the report of the judge of the regional court Latyshenko N.F., the judicial board
Installed:
G.N. applied to the court with a statement on the recognition of illegal the decision of the bailiff-executor of the PCB in the Soviet AO of the city of Omsk of the UFSF of Russia in the Omsk region to recover the costs of enforcement actions.
In support of the claims, she pointed out that the contested decision from<...>year issued within the framework of enforcement proceedings N<...>, excited in her relation, the subject of execution is the demolition of an unauthorized building in the form of an object capital construction- the second floor and the attic, built over apartment building located at:<...>, by bringing the house in this part to its original condition.
<...>year from the employees of the OSB in the CAO of the city of Omsk, the Federal Bailiff Service of the Russian Federation in the Omsk Region received a local estimate for the amount<...>rubles, which is a calculation of work on the demolition of the second floor and the attic, built on over an apartment building located at the specified address, without performing work to bring the house to its original state. At the same time, the document did not have an indication of the number, date, executor of this calculation and the person, until now has not been approved, a second estimate for bringing the building to its original state has not been drawn up.
Since she could not voluntarily fulfill the requirements of the executive document, the employees of the PCB in the CAO of the city of Omsk of the Federal Bailiff Service of the Russian Federation in the Omsk Region carried out its compulsory execution by offering the recoverer to fulfill the requirements of the executive document on their own and at their own expense, followed by the collection of costs from the debtor. Subsequently, a contract was concluded between the claimant and the contractor, a local estimate was drawn up, approved by the Siberian Center for Pricing in Construction, Industry and Energy CJSC.<...>year to the bailiff-executor, the recoverer provided an act of acceptance of the work performed and an act of transfer Money for the amount<...>rubles as confirmation of actually incurred costs associated with the fulfillment of these requirements.
I thought the cost of the work performed on the demolition of the building was overstated, and the act of acceptance of the work performed from<...>year does not correspond to reality, because as of<...>for a year the demolition work was not carried out.
In addition, she pointed out that as of the day of filing this application, the possibility of familiarizing with the documents specified in the contested resolution and taking copies of OSB from them in the CAO of the city of Omsk was not provided by the FSSP RF for the Omsk region.
Based on the foregoing, I requested a resolution of the SPI OSP for the CAO of the city of Omsk of the UFSSP RF for the Omsk region<...>from<...>year of recovery from G.N. costs of enforcement actions in the amount<...>rubles to be declared illegal and canceled.
Applicant G.N. did not participate in the hearing.
Representative G.N. - U. in the court session upheld the statement. The court explained that the estimate presented in the materials of enforcement proceedings should be assessed critically, since the incorrect calculation of the demolition of the capital structure was applied, the amount of work for the demolition of the structure was incorrectly determined, the volume of work and labor costs were overestimated. The demolition of the structure is calculated for twenty days, while the actual demolition was carried out in four days. The debtor ordered a new local estimate calculation, as a result, the cost of the work turned out to be much lower.
Representative G.N. - G.G. supported the above arguments.
Deputy Head of Service Department bailiffs in the Northern Administrative District of Omsk UFSSP in the Omsk Region<...>pointed out the groundlessness of the stated requirements, asked to refuse them. He pointed out that the scope of work was checked by the customer, the estimate was approved by a specialized organization.
Representative of the UFSSP for the Omsk region<...>did not agree with the statement. She explained to the court that the bailiff had no reason to doubt the local estimate presented by the claimant. The building was capital structure, the scope of work was determined by the project. Indicated that the debtor missed the deadline for appealing the decision from<...>of the year.
Recoverer O.Yew.The. did not take part in the hearing.
Representatives O.Yu.V. - J., O. L. at the hearing they did not agree with the arguments of the statement, they indicated that the decision made by the bailiff-executor was lawful and well-grounded.
Interested party<...>the court explained that the scope of work was determined based on project documentation, which was provided by the customer O.Yu.V.
Representative of CJSC "Siberian Pricing Center in Construction, Industry and Energy"<...>in the previous court session, she explained that the initial estimate was drawn up without project documentation on the basis of the volume and type of work indicated<...>When contacting<...>year G.G., revealing that earlier the estimate for these works had already been carried out, they requested design documentation in accordance with which they made a local estimate.
The court ruled the above decision.
The appeal and additions to it O.Yew.The. asks the court to cancel the decision, to accept a new one. Indicates that the court did not give an assessment of the estimate presented by him, prepared by CJSC "Siberian Center for Pricing in Construction, Industry and Energy", according to which the volume construction works is<...>cub. m. With the presented estimate G.N. he does not agree, believes that the court unreasonably established the volume of construction work in the amount of<...>cub. m, it is not established on the basis of what project documentation the estimate presented by it was made, the testimony of a specialist was not taken into account<...>Also not taken into account is the long period of non-execution by the defendant of the court decision, his incurring costs associated with the trial and the execution of the court decision. Believes that the cancellation of the contested decision by the court without resolving the issue of the cost of work will entail the emergence of a new dispute.
Representative of the Federal Bailiff Service of Russia for the Omsk Region<...>asks the court to cancel the decision, to accept a new one. Indicates that the amount of the expenses incurred by the recoverer aimed at organizing and carrying out enforcement actions related to the performance of work on the demolition of the unauthorized building has not been documented by the debtor, as well as the fact that the work on the execution of the court decision by the debtor has not been performed. Believes that the cited by G.N. the arguments do not constitute a legal basis for the recognition of the decision on the recovery of expenses for the performance of enforcement actions not complying with the provisions of the Federal Law "On Enforcement Proceedings". Indicates that no proper and indisputable evidence of the violation of the debtor's rights by the contested decision, as well as the existence of a real opportunity to execute the court decision on its own, has not been presented.
In the response to the appeal, G.N. considers the decision to be lawful and justified, and the appeals not subject to satisfaction, also supports the arguments set out earlier.
The persons participating in the case are duly notified of the time and place of the consideration of the case on appeal (l.d.<...>).
G.N., her representative G.G., representative O.Yu.B. - O.L., representative of the UFSSP in the Omsk region<...>took part in the hearing. Other participants in the process did not appear at the hearing, the court did not notify the reasons for their failure to appear, and therefore, the judicial board, guided by part 3 of article 167, part 1 of article 327 of the Code of Civil Procedure Russian Federation, considered it possible to consider the case in their absence.
Having checked the materials of the case, having discussed the arguments of the complaint, having heard the indicated persons, the judicial board finds no grounds for canceling the contested court decision.
In accordance with Part 2 of Article 105 of the Federal Law "On Enforcement Proceedings", if the debtor fails to fulfill the requirements contained in the enforcement document, without good reason, within the newly established time limit, the bailiff draws up a protocol on administrative offense in accordance with the Code of Administrative Offenses of the Russian Federation and establishes new term for execution. If the participation of the debtor is not necessary for the fulfillment of these requirements, then the bailiff will organize the execution in accordance with the rights granted to him by this Federal Law.
At the same time, clause 7 of part 3 of Art. 68 of the Federal Law "On Enforcement Proceedings" provides for the possibility of the bailiff executing enforcement measures, namely, the commission on behalf and at the expense of the debtor of the action specified in the enforcement document, if this action can be performed without the personal participation of the debtor.
As established by the court and follows from the materials of the case,<...>years based on writ of execution N<...>from<...> <...>in relation to G.N. enforcement proceedings were initiated N<...>, the subject of execution is to oblige G.N. independently or at the expense own funds carry out the demolition of an unauthorized building in the form of a capital construction object - the second floor and the attic, built over an apartment building located at:<...>, by bringing the house in this part to its original state (l.d.<...>).
Based on the materials of the case, G.N. no measures were taken to demolish this building on their own and at their own expense (l.d.<...>), which was also not disputed by the parties in the case.<...>from<...>year recoverer O.Yew.The. in connection with his consent, it was instructed to carry out the demolition of the indicated unauthorized building with the subsequent reimbursement of the money spent from the debtor (l.d.<...>).
Based on the materials of the case, the demolition of an unauthorized building in the form of a capital construction object - the second floor and the attic, built on over an apartment building located at:<...>on<...>year was carried out (l.d.<...>).
In support of the costs incurred in connection with the performance of demolition work, O.Yu.V. the bailiff-executor was presented with a local estimate calculation approved by CJSC "Siberian Center for Pricing in Construction, Industry and Energy"<...>years in the amount<...>rubles (l.d.<...>), local estimate, approved by LLC PSF "Zhilstroyservis" for the amount<...>rubles (l.d.<...>), the act of acceptance of works from<...>year, signed between O.Yew.The. and<...>for the amount<...>rubles, the act of acceptance and transfer of funds from<...>year (l.d.<...>).
<...>year bailiff-executor of the PCB in the Soviet AO of the city of Omsk of the Federal Bailiff Service of Russia in the Omsk Region<...>a decision was made to recover from G.N. costs of enforcement actions in the amount<...>rubles, in particular, on the basis of an act of acceptance of work performed and an act of transfer of funds (l.d.<...>).
Pointing to the overestimation of the costs indicated in the recoverer's calculation, G.N. went to court.
In accordance with Part 1, Clause 6, Part 2, Art. 116 of the Federal Law "On Enforcement Proceedings", the costs of performing enforcement actions are monetary funds federal budget, the claimant and other persons participating in the enforcement proceedings, spent on the organization and conduct of enforcement actions and the application of enforcement measures.
The expenses for the execution of enforcement actions include the money spent on the commission necessary actions in the process of execution of the court order.
By virtue of paragraphs 1 and 3 of Article 117 of the said law, the expenses for the performance of executive actions are reimbursed to the federal budget, the claimant and the persons who incurred the specified expenses, at the expense of the debtor. The collection from the debtor of expenses for the performance of enforcement actions, their attribution to the account of the federal budget in the cases provided for by this Federal Law, as well as reimbursement of expenses to the person who incurred them, are carried out on the basis of a resolution of the bailiff-executive approved by the senior bailiff or his deputy.
Satisfying the applicant's claims, the first-instance court rightly proceeded from the fact that O.Yew.V. an estimate of the reliable costs of carrying out work on the demolition of an unauthorized building in the form of a capital construction object - the second floor and the attic, built on over an apartment building located at:<...>, does not confirm.
The local estimate compiled by CJSC "Siberian Center for Pricing in Construction, Industry and Energy" presented in the case materials for the amount of<...>rubles (l.d.<...>) was unreasonable, since, based on the explanations of the head of the estimated pricing department of ZAO Siberian Center for Pricing in Construction, Industry and Energy, attracted as a specialist<...>, who signed the specified estimate, it follows that the estimate was drawn up without submitting the design and technical documentation of the object to be demolished, as well as a study of the volume of work performed. Only the calculations of the cost of work, funds for labor remuneration and labor intensity were subject to verification based solely on the ones provided by the customer<...>information (l.d.<...>).
The debtor is represented by local estimates from<...>year of CJSC "Siberian Pricing Center in Construction, Industry and Energy" in the amount of<...>ruble (l.d.<...>), as follows from the explanations<...>, the estimate was drawn up on the basis of project documentation, which explains the difference in the cost of work.
Thus, given that the amount incurred by O.Yew.The. the costs of demolishing the unauthorized building did not have sufficient confirmation, the court correctly recognized the decision of the bailiff from<...>years on the recovery of expenses for the performance of enforcement actions from the debtor in the amount of<...>rubles ruled illegally.
Discrepancies in the form of a residential - non-residential building, as indicated by the representative of O.Yu.V., FSSP of Russia in the Omsk region, in any case, about the reliability of the estimate for the amount<...>, as well as estimates for the amount<...>rubles exceeding the estimate from<...>years four times does not testify.
Furthermore, in accordance with Art. 61 of the Federal Law "On Enforcement Proceedings", the bailiff-executor, as a person who does not have special knowledge, provides an opportunity on his own initiative to involve a specialist (specialists) in enforcement proceedings in order to obtain qualified assistance in resolving issues requiring special knowledge, in particular for assessment of the scope of work on the demolition of the object and the costs incurred by the recoverer.
Meanwhile, the bailiff did not use this right, in connection with which the recoverer O.Yew.M. the documents were accepted without a corresponding check and assessment of the information reflected in them.
The reason for the complaint O.Yew.The. that the court, when making the decision, took into account the local estimate provided by G.N., is not taken into account by the judicial board, since the specified document was accepted by the court only as one of the evidence in the case when recognizing the decision of the bailiff from<...>year on the collection of expenses for the performance of enforcement actions from the debtor unlawful.
The indication of complaints about the length of time the defendant failed to comply with the court decision, the costs incurred by the recoverer related to the trial and the execution of the court decision, does not have legal significance in the framework of the case under consideration.
Proceeding from the subject of the dispute and the stated requirements, the court of first instance had no grounds to raise the issue of the examination, as well as the involvement of a specialist, as indicated in the complaint by O.Yu.V. The results of the examination of the volume and cost of the work performed, the need for which was pointed out by O.Yu.V., in the case under consideration, did not have legal significance for resolving the issue of whether the contested decision of the bailiff-executor was illegal, since the said decision was based on an unconfirmed report on the costs of fulfilling the requirements of the executive document, which predetermined its illegality.
The judicial board notes that the recognition of the decision of the bailiff-executor from<...>year on recovering the costs of enforcement actions from the debtor illegal is not an obstacle for the recoverer to reimburse the debtor in the future for the costs incurred by him in the implementation of the court decision.
At the same time, a bailiff who does not have the necessary special knowledge to evaluate such a report is obliged to involve a specialist in the enforcement proceedings, which is allowed by law and is aimed at protecting the rights and legitimate interests of the parties to the enforcement proceedings.
Regarding the arguments of the representative of the Federal Bailiff Service of Russia in the Omsk region about the passage of G.N. the deadline for filing an application with the court to challenge the decision of the bailiff-executor from<...>of the year, a copy of which she received<...>years, while the application was filed with the court<...>years, and the incorrect application by the court of Part 2 of Article 15 of the Federal Law "On Enforcement Proceedings", the judicial board agrees with them.
Part 2 of Article 15 of the Federal Law "On Enforcement Proceedings", according to which the terms are calculated in years, months and days. The terms calculated in days do not include non-working days, regulates the calculation of time limits in enforcement proceedings, rather than procedural time limits for filing an application with the court or in the order of subordination.
At the same time, the court correctly took into account that the bailiff-executor did not provide the opportunity for G.N. in obtaining copies of documents that served as the basis for the issuance of the contested decision of the bailiff, which in fact was a valid reason for missing the deadline.
References of the representative of the Federal Bailiff Service of Russia in the Omsk Region to the fact that G.N. the copies of documents requested by her did not interfere with going to court, and then getting acquainted with the documents and, if necessary, clarifying the requirements, they are not recognized as sound. By general rules, established by clauses 4, 5 h. 2, Art. 131 Code of Civil Procedure of the Russian Federation in statement of claim it must indicate what is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his claims, as well as the circumstances on which the plaintiff bases his claims, and the evidence confirming these circumstances. The postponement of the procedure for obtaining copies of documents in court, given that the bailiff is obliged to provide the debtor with an opportunity to familiarize himself with them and make copies does not meet the requirements of civil proceedings, creates objective obstacles to the exercise of the right to appeal to the court.
Under the aforementioned circumstances, the panel of judges sees no reason to interfere with the contested court order on the grounds of complaints.
The case was considered by the court in compliance with the rules of procedural law, all the evidence presented, the objections of the persons participating in the case, their explanations in accordance with Art. 67 of the Code of Civil Procedure of the Russian Federation was given a proper assessment.
Violations or incorrect application by the court of the norms of substantive or procedural law, which could lead to the adoption of an incorrect judicial act, the judicial board does not see.
Guided by Art. Art. 328, 329 Code of Civil Procedure of the Russian Federation, judicial board
Hello Tatiana!
The bailiff-executor, upon receipt of an executive document on the demolition of an unauthorizedly erected structure, is obliged to perform the following actions:
3. Organization of execution of a court decision on the demolition of an unauthorized structure
3.1. According to Art. 30 of the Law, the bailiff-executor initiates enforcement proceedings on the basis of a writ of execution at the request of the claimant or his representative, if the deadline for the submission of the executive document for execution has not expired and this document meets the requirements provided for by Art. 13 of the Law.
3.2. When the execution of a judicial act is entrusted to a representative of the government, a civil servant, a municipal employee, as well as an employee of a state or municipal institution, a commercial or other organization, the bailiff warns these persons about criminal liability, provided for by Art. 315 of the Criminal Code of the Russian Federation, for non-execution of a judicial act, as well as obstruction of its execution.
If there are signs of corpus delicti under Art. 315 of the Criminal Code of the Russian Federation, the bailiff-executor draws up a report on the detection of signs of corpus delicti, which is registered in the manner prescribed by the order of the Ministry of Justice of Russia dated 02.05.2006 No. 139.
3.3. Simultaneously with the initiation of enforcement proceedings, the bailiff takes measures aimed at prohibiting the commission of registration actions both in relation to the structure to be demolished and the land plot on which it is located.
3.4. After the expiration of the period for voluntary execution, the bailiff-executor shall exit at the place of execution of the enforcement actions to establish the fact of execution or non-performance by the debtor of the requirements of the enforcement document.
3.5. In case of non-fulfillment by the debtor of the requirements contained in the court order, within the period established for voluntary execution, as well as non-fulfillment by him of the court order, subject to immediate execution, within 24 hours from the date of receipt of a copy of the court ruling bailiff to initiate enforcement proceedings bailiff decides to recover performance gathering, establishes a new deadline for the debtor for execution and warns him that after the specified time period, compulsory execution will be carried out.
In addition, the bailiff-executor draws up and submits to the materials of enforcement proceedings a plan-diagram of the land plot on which the objects to be demolished are located, indicating the number of entrances / entrances to the specified land plot, other objects located within its borders, as well as photographs of the subject demolition of objects.
After the issuance of an order on the collection of the performance fee, the bailiff conducts an inspection property status the debtor, including in order to establish the possibility of collecting from him in the future administrative fines and costs of enforcement actions.
At the same time, bringing the debtor to administrative responsibility is carried out after the bailiff-executor has issued a resolution on the collection of the performance fee, regardless of its actual collection.
In addition, the bailiff-executor sends a letter to the recoverer with a proposal to apply to the court with a statement on the execution of the judgment on his own in the manner of Art. 206 Code of Civil Procedure of the Russian Federation.
3.6. If the debtor has not complied with the requirements contained in the writ of execution, without good reason within the newly established period, the bailiff draws up a protocol on an administrative offense, taking into account the requirements of Art. 28.2 of the Administrative Code of the Russian Federation.
The bailiff-executor has the right each time to establish a reasonable time for the debtor to fulfill the demolition requirements contained in the executive document, and if the debtor fails to fulfill these requirements without good reason, draw up a protocol on each administrative offense under Art. 17.15 of the Administrative Code of the Russian Federation, and transfer it for consideration to the officials of the FSSP of Russia, specified in Art. 23.68 Administrative Code of the Russian Federation.
In the event of a prolonged default by the debtor of the court decision, it is recommended that the bailiff-executor revise downward the deadline for fulfilling the requirements of the court order and more actively apply administrative measures to the debtor.
3.7. If the debtor in enforcement proceedings is a citizen, the bailiff-executor shall issue a resolution on a temporary restriction on the debtor's departure from the Russian Federation.
If the debtor in the enforcement proceedings is a legal entity, the bailiff-executor in the presence of an unpaid enforcement fee or imposed earlier in accordance with Art. 17.15 of the Code of Administrative Offenses of the Russian Federation of a fine has the right to apply to the court with an application for a temporary restriction on leaving the Russian Federation for an official of the debtor.
3.8. The bailiff applies all measures aimed at fulfilling the requirements of a non-property nature contained in the executive document, in accordance with Art. 105 of the Law.
If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff, who, after checking the materials of the enforcement proceedings, addresses with a memorandum addressed to the head of the relevant territorial body, in which he sets out the essence of the requirements of the executive document of a non-property nature, and also, in chronological order, describes the actions taken to fulfill the requirements of the executive document.
Allocation of funds to pay the costs of enforcement actions to fulfill non-property requirements, including the demolition of unauthorized buildings and / or development design and estimate documentation, carried out in accordance with the letter of the FSSP of Russia dated 31.01.2011 No. 12 / 08-1872-VM, which, among other things, established requirements for design and estimate documentation.
Thus, I recommend that you familiarize yourself with the materials of the enforcement proceedings for the presence / absence of the above actions, which the bailiff was obliged to carry out from the moment he received the enforcement document. If executed, you will receive information on the progress of enforcement actions in enforcement proceedings. In the absence of them, you have grounds for filing demands for the actions (inaction) of the bailiff in judicial procedure by presenting administrative action and / or complaints in the order of subordination (to a superior official).
Document overview
The procedure for the execution of judicial acts on the demolition of unauthorizedly erected buildings has been determined. It applies to both capital construction and temporary buildings (garages, kiosks, billboards, etc.).
Enforcement proceedings are initiated on the basis of a writ of execution at the request of the claimant. A plan-scheme of the land plot with an indication of the entrances and entrances to it is attached to the case. Attached are photographs of the subject to be demolished. The bailiff takes measures aimed at prohibiting the commission of registration actions both in relation to the structure to be demolished and the land plot on which it is located.
The debtor is given a period during which he can voluntarily fulfill the requirements for the demolition of the object. In case of non-fulfillment, a resolution is issued on the collection of the performance fee, a new period is established, after which the compulsory execution will be carried out. If the debtor did not fulfill the requirements without good reason within the newly established time limit, the bailiff-executor draws up a protocol on the administrative offense.
Based on the results of the demolition, an act is drawn up. It is signed by the persons who were present.
The costs of demolition, as well as the storage of the seized property are subject to reimbursement at the expense of the debtor.
The procedure for the actions of the bailiff-executor has been established if the object to be demolished is operated, citizens permanently reside in it, or unauthorized persons and pets are found there.
Bailiffs in cases when it is necessary to raze some illegal house. The topic is acute and painful, therefore, in this case, both skill and tact are required from the bailiff, but that everything should be within the framework of the law.
Detailed rules on how to destroy a building that no longer has a place on this land are detailed in the guidelines Federal Service bailiffs for the demolition of unauthorized buildings. For example, as the document explains, the presence of the debtor is not at all necessary for bulldozers, the main thing is that he be notified of the day and hour of the visit. If it hurts a person to see how something that has been built is crumbling, he may not come. They'll take it down without him. But, before it comes to extreme measures, the debtor will be warned more than once, and he will be given a chance to do everything himself.
However, even if the owner does not come to the demolition, it will not do without witnesses. It is imperative to destroy buildings in the presence of attesting witnesses. The property of the owner who has not arrived will be described and taken to a safe place. True, the debtor will have to pay for the storage of things left after the demolition of the house. If he does not take his property within two months, it will go under the hammer. The costs of executing the judgment will be deducted from the proceeds, and the rest will be given to the former owner of the things. If he does not take the money, they will be kept for three years, then they will be transferred to the treasury.
When, instead of demolition, you just need to disassemble something, for example, a metal garage, the details of the structure will be carefully rewritten and arrested. Then they will also be sold, and the money will be used to pay the costs of the execution of the judgment. If something remains on top, it will be given to the debtor.
There is also a subtle point: you always need to figure out whether an unauthorized construction is considered housing. Usually not. In this case, demolition is demolition and should not be confused with eviction. They just destroyed it, that's all. But it so happens that a person is also registered in this illegal building. Then, when filing a claim for the demolition of a building, it is necessary to simultaneously demand the eviction of the tenant. From a legal point of view, demolition and eviction are two different procedures. Therefore, as stated in the methodological recommendations, if an unauthorized building to be demolished has signs of a dwelling, the bailiff must send a request to the passport office, whether any tenants are registered there.
In general, before calling the bulldozers, the bailiffs must give the debtor a time to do everything voluntarily and independently. At the same time, reasonable time should be allotted. Of course, breaking is not building, but still destruction requires some preparation. When the debtor stubbornly resists the execution of the court decision - he wastes time, does not make contact, he may be restricted from traveling abroad. It is also recommended that bailiffs, in case of long-term non-execution by the debtor of the court decision, revise the deadline for fulfilling the requirements downward and more actively apply administrative sanctions to the debtor.
By the way, at the beginning of the year, a law came into force, setting out in detail the procedure for the eviction of debtors, as well as the demolition of illegal buildings. It was he who allowed the debtor's things to be sold when he refuses to take them. It is also necessary to evict debtors only with attesting witnesses. If necessary, the bailiffs can invite the police for support. You have to leave with all your good, and take the dogs and cats, if there are any, with you.
Judicial acts on the demolition of unauthorizedly erected buildings, although they occupy an insignificant share in the total number enforcement proceedings, being on execution, however, from the point of view of social importance, play a very significant role.
This article was copied from https://www.website
S.Yu. GUSAKOV,
Head of the Department for Organization of Enforcement Proceedings of the Office of the Federal Bailiff Service of Russia in the Volgograd Region
Judicial acts on the demolition of unauthorizedly erected buildings, although they occupy an insignificant share in the total number of enforcement proceedings, are being executed, but from the point of view of social importance, they play a very significant role.
This is due not only to the fact that the object of unauthorized construction is an object of increased danger that poses a threat to the life and health of citizens, but also to the fact that in last years funding from the federal budget for the organization of compulsory execution of such judicial acts has been significantly reduced.
From the point of view of creating legal certainty of the procedure for the execution of these judicial acts, some significant steps have been taken recently. For example, Federal Law No. 441-FZ of December 28, 2013 changed the wording of Art. 107 Federal law dated 02.10.2007 No. 229-FZ "On Enforcement Proceedings" (hereinafter referred to as the Law on Enforcement Proceedings) precisely in terms of detailing the procedure for the forced demolition of unauthorizedly erected buildings.
In development of the provisions of the Law on Enforcement Proceedings, by letter of the FSSP of Russia dated March 31, 2014 No. 8, the territorial bodies were informed Guidelines by execution judgments on the demolition of unauthorized buildings.
However, these documents provide that in the event of non-execution of the court decision by the debtor after the application of administrative measures, the issue of attracting a relevant specialized organization to fulfill these requirements at the expense of the federal budget is carried out in accordance with the provisions of the Federal Law dated 05.04.2013 No. 44-FZ "On contract system in the field of procurement of goods, works, services to meet state and municipal needs "(hereinafter referred to as Law No. 44-FZ) and the indication of the FSSP of Russia dated 31.01.2011 No. 12 / 08-1872-VM.
At the same time, as already noted, the funds allocated from the federal budget to finance these executive actions are clearly insufficient. In this regard, methods that make it possible to ensure the execution of these judicial acts without attracting appropriate budget funding are acquiring particular relevance in practice.
Possible options for the practical implementation of these methods may look as follows.
1. Fulfillment of the requirements of the executive document on the demolition of an unauthorizedly erected structure by the claimant independently or by attracting third parties by the latter with the subsequent recovery of costs for the execution of enforcement actions from the debtor.
1.1. Financing by the recoverer of the costs of enforcement actions. The possibility of using this method of executing a judicial act follows from the provisions of Part 1 of Art. 206 Code of Civil Procedure of the Russian Federation and Art. 174 APC RF.
This form is also directly provided for by Part 8 of Art. 107 of the Law on Enforcement Proceedings, according to which, in order to ensure the forced demolition of a structure, building or structure or their individual structures, the bailiff-executor may invite the recoverer to incur expenses for the application of enforcement measures with their subsequent reimbursement at the expense of the debtor.
However, in the course of the practical application of this rule, the question arises of how the claimant can exercise his right to finance these expenses in terms of who will be the recipient of the funds: the structural unit of the territorial body of the FSSP of Russia, in which the enforcement proceedings are conducted, or directly the person who will actually carry out work on the demolition of an unauthorized building?
Taking into account the fact that clause 3 of the Instruction on the procedure for accounting for funds received at the temporary disposal of structural subdivisions of territorial bodies of the Federal Bailiff Service (approved by order of the Ministry of Justice of Russia No. 11, the Ministry of Finance of Russia No. 15n dated 25.01.2008) does not provide for the possibility of accounting funds received as compensation for the costs of enforcement actions and the application of enforcement measures, settlements between the claimant and the person involved in the dismantling of the facility must be made directly, i.e., bypassing the Bailiffs Service.
1.2. Direct commission by the claimant of actions aimed at demolishing an unauthorized building. V jurisprudence Disputes arose repeatedly about the legality of the claimant's participation as a person directly carrying out actions on the execution of a judicial act on the demolition of an unauthorized structure.
In almost all cases, such disputes ended with the recognition of this method of executing a court decision as legitimate.
For example, in one of the enforcement proceedings on the demolition of an unauthorizedly erected structure, the debtor applied to the court with a demand to declare illegal the actions of the bailiff-executor to attract the recoverer (JSC "Russian Railways") in the manner prescribed by Part 8 of Art. 107 of the Law on Enforcement Proceedings, as a specialized organization directly carrying out actions to dismantle the structure. The debtor motivated his claims by the fact that since Russian Railways is acting as a party to the dispute, the said legal entity cannot act as a specialized organization performing the functions provided for in Part 8 of Art. 107 of the Law on Enforcement Proceedings.
By the decision of the Krasnoselsky District Court of St. Petersburg dated 05/10/2017, the debtor was denied the administrative claim.
By the appeal ruling of the St. Petersburg City Court dated 01.08.2017 No. 33a16739 / 2017 in case No. 2a-2617/2017, the decision of the court of first instance was left unchanged, and the appeal was dismissed.
When accepting the appeal ruling, the court clarified that since the debtor in the enforcement proceedings did not voluntarily fulfill the court decision on the release of the land plot, and did not present evidence of the impossibility of fulfilling the requirements of the enforcement document due to extraordinary circumstances to the bailiff, the bailiff legally and reasonably made a compulsory execution of a court decision by freeing a land plot from movable property the debtor.
Russian Railways has the technical ability to dismantle the fence of the land plot and the substation located on it, therefore, in this case, it is a proper specialized organization, reasonably involved by the bailiff-executor to execute the court decision by freeing the land plot from the debtor's property.
From the point of view of legislative technique, the wording of Part 8 of Art. 107 of the Law on Enforcement Proceedings does not seem to be entirely successful and in practice can cause ambiguous conclusions when interpreting the term contained in it with respect to a subject that can be involved in the execution of a court decision. Part 8 of Art. 107 of the Law on Enforcement Proceedings gives the bailiff-executor the right to involve a specialized organization for the execution of the court decision. The term "organization" in the sense given to it by Part 1 of Art. 1 of the Law on Enforcement Proceedings, paragraph 1 of Art. 48 of the Civil Code of the Russian Federation, denotes nothing more than a legal entity.
Thus, if you follow the letter of the law, then for the forced demolition of a building within the framework of enforcement proceedings, only a legal entity can be involved. In fact, this means the impossibility of attracting individual entrepreneurs as such, including those who have all the necessary permits to carry out such activities.
It seems that the wording used by the legislator in Part 8 of Art. 107 of the Law on Enforcement Proceedings is inaccurate and implies the possibility of involving not only legal entities, but also individual entrepreneurs for the execution of a court decision.
2. Fulfillment of the requirements of the executive document on the demolition of an unauthorizedly erected structure with a preliminary recovery from the debtor in a judicial proceeding of the costs of performing enforcement actions for the demolition of this unauthorizedly erected structure with the subsequent use of the collected funds for the execution of the court decision.
Judicial practice for the implementation of this method of action is not numerous and is based on the application of the following algorithm of actions:
The bailiff-executor or the recoverer engages an appropriate specialist who assesses the cost of demolition of the unauthorizedly erected structure;
On the basis of the submitted documents on the assessment of the cost of these works, the bailiff-executor or the claimant sends to the court that issued the executive document, an application for changing the method of execution of the court decision by collecting money from the debtor in the amount necessary to fulfill the requirements for the demolition of the unauthorized building;
On the basis of the ruling on changing the method of execution of the decision on the demolition of an unauthorizedly erected structure, the court issues a writ of execution to recover from the debtor in favor of the claimant the necessary funds to organize the relevant work.
For example, at the performance in Interdistrict department bailiffs for special enforcement proceedings of the Federal Bailiff Service of Russia in the Volgograd region were enforcement proceedings on the obligation of a legal entity to demolish the object of unauthorized construction.
Despite the measures taken to enforce the requirements contained in the executive document, the debtor-organization was not executed. In this regard, the bailiff-executor on the basis of Art. 37 of the Law on Enforcement Proceedings applied to the court, which issued an enforcement document with an application to change the method of execution of the court decision.
By the ruling of the Arbitration Court of the Volgograd Region dated 10.11.2017 in case No. A12-26231 / 2012, the stated requirements were satisfied; the method of execution of the judicial act was changed by collecting from the debtor-organization of funds in the amount of 227,987.80 rubles, necessary to fulfill the requirements for the demolition of the unauthorized building.
Satisfying these requirements, the court emphasized that the change in the method of execution of the judicial act is due to the impossibility of its independent execution by the defendant, and the choice of a new method of execution corresponds to the purpose of restoring violated rights. Since in Art. 324 of the Arbitration Procedure Code of the Russian Federation, as the basis for changing the method of execution of the judicial act, the presence of circumstances that complicate its execution is indicated, then the very fact of the debtor's continued non-execution of the court decision on the demolition of the unauthorizedly erected structure is the basis for changing the method of execution of the judicial act.
For similar reasons, the definition of the Arbitration Court Krasnoyarsk Territory dated 18.08.2015 in case No. А33-7596 / 2014, the claims filed by the recoverer to change the method of execution of the court decision on the demolition of the unauthorized building were satisfied.
3. Involvement of a specialized organization for the compulsory demolition of an unauthorizedly erected structure on a gratuitous basis (without financing executive actions from the federal budget) with the subsequent recovery of the costs incurred from the debtor in favor of the specialized organization.
The practical implementation of such a mechanism for the enforcement of a judicial act can be carried out in the following ways.
3.1. Going to court with an application to change the method and procedure for the execution of a judicial act on the demolition of an unauthorized structure by admitting a third organization as a participant in enforcement proceedings. For example, the execution proceedings on the demolition of the unauthorized structure were being carried out by the bailiff of the Lazarevsky district department of the bailiffs of the city of Sochi of the Federal Bailiff Service of Russia for the Krasnodar Territory.
In connection with the long non-fulfillment of the requirements of the executive document by the debtor, the bailiff - the executor applied to the court with an application to change the method of execution this decision court.
By the ruling of the Lazarevsky District Court of the city of Sochi, Krasnodar Territory, dated October 17, 2017, in case No. 2-131 / 2016, the stated requirements were satisfied. The court changed the method and procedure for the execution of the initial court decision on the demolition of the unauthorized building, allowing a third party, who is not a party to the enforcement proceedings, to dismantle the unauthorized building with the subsequent recovery of the costs of enforcement actions from the debtor.
This procedure is quite applicable, but this practice seems to be ambiguous, since in fact the court, by its determination, authorizes the participation of a specialized organization as a person facilitating the execution of the requirements contained in the executive document (paragraph 3 of article 48 of the Law on Enforcement Proceedings).
At the same time, the analysis of the interrelated provisions of Part 8 of Art. 107, art. 61, paragraph 3 of Art. 48 of the Law on Enforcement Proceedings shows that the involvement of a specialized organization to participate in enforcement actions (enforcement measures) does not need judicial authorization and is within the exclusive competence of the bailiff.
The possibility of subsequent recovery of costs for the execution of enforcement actions incurred by the organization involved in compulsory execution is provided for by the norms of Art. 117 of the Law on Enforcement Proceedings; in accordance with these norms, reimbursement of expenses to the person who incurred them is made on the basis of a decision of the bailiff-executor, approved by the senior bailiff or his deputy.
3.2. Conclusion with a specialized organization gratuitous (not providing for payment for work at the expense of budget funds) an agreement for the performance of work on the demolition of an unauthorized structure with the subsequent recovery of expenses confirmed by the organization from the debtor.
The mechanism for implementing this method of executing a court decision is as follows.
The territorial body of the FSSP of Russia posts in the regional mass media and (or) on its website an announcement of its readiness to attract a specialized organization to participate in the execution of court decisions on the demolition of unauthorized buildings on a gratuitous basis. The announced information specifically stipulates that attracting an organization to participate in executive actions does not imply payment for work from the federal budget. With an organization that has expressed a desire to participate in executive actions and has the necessary permits for the implementation of this type of activity, the territorial body of the FSSP of Russia concludes an agreement for the execution of work on the demolition of an unauthorized structure.
In the concluded agreement in mandatory should reflect:
The literal content of the operative part of the writ of execution, on the basis of which the forced demolition of the unauthorized structure takes place;
The condition that the contract is free of charge (clause 2 of Art. 423 of the Civil Code of the Russian Federation) and does not provide for payment for work from the budget, but does not exclude the possibility of collecting the costs incurred from the debtor in the manner prescribed by the legislation of the Russian Federation;
The condition that the organization is responsible not only for the demolition of the unauthorized construction object, but also for the cleaning (disposal) of construction waste left after the completion of the work. The specific method of demolition of the object and the method of cleaning construction waste remaining after the completion of work are determined by a specialized organization independently based on the technical, technological and other conditions for the performance of work;
Terms of commencement and completion of work on the demolition of the unauthorized structure.
It should be noted that the legality of the conclusion of such an agreement, as well as the content of its terms, were subject to control by the judicial authorities.
So, the debtor, under the executive document on the demolition of an unauthorized building, filed a lawsuit against the Federal Bailiff Service of Russia in the Volgograd Region for recognition invalid contract to carry out work on the demolition of an unauthorizedly erected structure, concluded on 12.12.2016.
In support of the stated claims, the debtor indicated that this agreement is “feigned” in nature, since it was concluded on a gratuitous basis, however, it contains a condition on the possible recovery from him of expenses for the performance of enforcement actions; he also indicated that the agreement was concluded with a purpose that is obviously contrary to the foundations of law and order and morality, and contradicts Law No. 44-FZ.
By the decision of the Voroshilovskiy District Court of Volgograd on 05/02/2017 in case No. 2-1247 / 2017, the debtor was denied the stated claims.
On the argument of the debtor that his rights were violated by the fact that he may be charged with the costs associated with the dismantling of the unauthorized building in favor of a specialized organization, the court indicated that the costs of enforcement actions are reimbursed to the persons who incurred these costs at the expense of the debtor by virtue of Part 1 of Art. 117 of the Law on Enforcement Proceedings.
The debtor's arguments that the contract was concluded for a purpose that is obviously contrary to the foundations of law and order and morality, and contradicts Law No. 44-FZ, were also rejected by the court and indicated that the provisions of this regulatory legal act apply to relations aimed at ensuring state and municipal needs at the expense of the respective budgets. In this case, the contract was concluded free of charge, payment for the services of a specialized organization at the expense of the budget is not made, and therefore the provisions of Law No. 44-FZ do not apply to these legal relations.
By the appeal ruling of the Judicial Collegium for Civil Cases of the Volgograd Regional Court dated 09.08.2017 in case No. 33-13543 / 2017, the decision of the court of first instance was left unchanged, and the appeal was dismissed.
A further algorithm of actions is that on the basis of the concluded agreement, as well as the provisions of Articles 61, 107 of the Law on Enforcement Proceedings, the bailiff-executor makes a decision to involve the specified organization to participate in enforcement actions. From this moment, the organization acquires the status of a specialist with all the ensuing legal consequences.
The proposed first three options for organizing work on the demolition of an unauthorizedly erected structure presuppose the need to recover the costs incurred for performing enforcement actions within the framework of enforcement proceedings. In this regard, it becomes necessary to ensure the collection of these costs by imposing an arrest (prohibition) on the debtor's property.
In the legislation on enforcement proceedings, as well as in the Methodological Recommendations for the execution of court decisions on the demolition of unauthorized buildings (approved by the Director of the FSSP of Russia on 03.31.2014), the issue of the possibility of applying interim (restrictive) measures against the debtor's property at that stage of enforcement proceedings is not regulated when an order has not yet been made to recover the costs of enforcement actions (i.e., within the framework of non-property claims).
However, this issue has been resolved in law enforcement practice.
So, within the framework of enforcement proceedings on the demolition of an unauthorized building, the debtor did not fulfill the requirements contained in the executive document, but at the same time he regularly in voluntarily paid for all property sanctions imposed on him in the form of a performance fee and administrative fines under Art. 17.15 Administrative Code of the Russian Federation. In this regard, the bailiff-executor on October 17, 2016, within the framework of the said enforcement proceedings, issued a resolution prohibiting the alienation of the land plot belonging to the debtor, located outside the location of the object to be demolished.
By the decision of the Krasnoarmeyskiy District Court of Volgograd dated 19.12.2016 in case No. 2a-5228/2016, the said decision of the bailiff-executor was declared illegal.
As follows from the reasoning part of this judicial act, the court concluded that the decision of the bailiff-executor was unlawful due to the fact that the land plot, in respect of which the ban was established, was not the subject of enforcement proceedings.
This decision was appealed by the bailiff-executor in the court of appeal.
By the appeal ruling of the Judicial Collegium for Administrative Cases of the Volgograd Regional Court dated April 20, 2017 in case No. 33a-6516/2017, the decision of the court of first instance was canceled, the debtor was denied the stated claims.
Canceling the decision of the court of first instance, the appellate court noted that from the contested decision it follows that it was made in order to ensure the execution of the court's decision, the arrest is expressed in a ban on registration actions. In such circumstances, the court concluded that the arrest is a guarantee of ensuring the rights and legitimate interests of the claimant and cannot be considered as violating the rights and legitimate interests of the debtor.
4. Fulfillment of the requirements of the executive document on the demolition of an unauthorizedly erected structure by organizing work on the forced demolition of this structure by local governments independently, by their own strength and means.
It is known that in most cases recoverers under executive documents are local authorities or prosecutors who have applied to court to protect the interests of the municipality in accordance with Art. 45 Code of Civil Procedure of the Russian Federation.
Unlike the Federal Bailiff Service, which does not have at its disposal the special equipment necessary for the direct execution of dismantling work, as well as a staff of employees capable of carrying out work on such equipment, local governments, due to a wide range of powers entrusted to them, have the appropriate resources.
As a rule, local governments are founders of various municipal unitary enterprises and municipal institutions, whose functions include, inter alia, the implementation of work closely related to both the construction and dismantling of buildings, structures, structures.
In a number of municipalities specially adopted are municipal normative legal acts defining the procedure for dismantling unauthorized construction objects in an administrative manner.
For example, the decree of the Volgograd administration dated 04/12/2013 No. 764 approved the Procedure for dismantling unauthorized non-stationary objects on the territory of Volgograd, as well as the Regulation on commissions for resolving issues on dismantling unauthorizedly installed non-stationary objects on the territory of Volgograd.
This document regulates the activities of the Volgograd administration, its structural divisions, organizations and institutions for the implementation of measures related to the dismantling of unauthorized non-stationary objects, the installation of which does not require a building permit, located on land plots, state ownership of which is not delimited, land plots that are in municipal ownership and located inside objects that are in municipal ownership.
At the same time, decisions on dismantling objects on the territory of Volgograd are made by commissions for resolving issues on dismantling unauthorized non-stationary objects on the territory of Volgograd, created in the administrations of the corresponding districts of Volgograd, without contacting the judicial authorities.
The extrajudicial procedure for the demolition of unauthorized construction objects was the subject of verification both by the prosecutor's office and by the judiciary.
Thus, the Deputy Prosecutor of the Volgograd Region applied to the Arbitration Court of the Volgograd Region with an application to the Volgograd administration to invalidate the Volgograd administration decree of 12.04.2013 No. 764 as inconsistent with Art. 35 of the Constitution of the Russian Federation, Articles 11, 209 of the Civil Code of the Russian Federation, Art. 16 of the Federal Law of 06.10.2003 No. 131-FZ "On general principles organization of local self-government in the Russian Federation ”.
In support of the stated requirements, the prosecutor's office indicated that since the civil legislation is under the jurisdiction of the Russian Federation, the contested normative legal act was adopted in excess of the competence of local authorities, violates the rights of owners of non-stationary objects of movable property and constitutional guarantees for the protection of rights private property In Russian federation.
At the same time, by the decision of the Arbitration Court of the Volgograd Region dated 02.09.2013 in case No. А12-14507 / 2013, the stated requirements were denied in full.
Federal Decree arbitration court Of the Volga District of November 21, 2013 in case No. A12-14507 / 2013, the said decision was left unchanged.
In general, such a position of the judicial authorities seems to be not only correct, but also consistent with the actual state of affairs associated with the technical possibilities of taking actions to dismantle unauthorized construction objects.
In the development of such an initiative of individual local self-government bodies, taking into account the resources and capabilities they have, which were mentioned above, it seems more correct to remove from the jurisdiction of the FSSP of Russia the need for compulsory execution of judicial acts on the demolition of unauthorizedly erected buildings located on municipal lands. Local self-government bodies are completely self-sufficient public law formations, not only in terms of the availability of appropriate power (administrative and regulatory) powers, but also in terms of the possession of the technical and human resources necessary to fulfill the requirement to demolish unauthorized buildings.
Bibliography
1 According to the data of the departmental statistical reporting FSSP of Russia in form No. 1-1 "Basic performance indicators of bailiffs of the FSSP of Russia" for 2017, the share of enforcement proceedings on the demolition of unauthorized buildings in the total number of enforcement proceedings that were under execution was 0.02%.
2 It should be recalled that members of a self-regulatory organization in the construction field can be both legal entities and individual entrepreneurs(part 1 of article 55.6 Urban Development Code RF). At the same time, legal entities and individual entrepreneurs who have received all Required documents enjoy equal rights.
3 See Chapter 3 of Federal Law No. 131-FZ of 06.10.2003 “On General Principles of Organization of Local Self-Government in the Russian Federation”.