Methodological recommendations of the Federal Bailiff Service for the execution of judicial acts on the demolition of unauthorized buildings. Analytics of the publication Drawing up an estimate for the costs of demolishing an unauthorized building

Drawing up estimates for dismantling (dismantling, demolition) will be required in case of justification or reimbursement of costs in case of deterioration of a building, house or utility networks, in case of a critical physical decrease in bearing capacity, in emergency condition due to damage to the object, in case of obsolescence due to deviation of the main operational indicators from regulatory, in case of inconsistency of the object in relation to the existing concept of territory planning, when deciding to demolish an unauthorized structure, clearing a site for development, etc.).

When determining the cash limit, it is necessary to take into account separately the following costs of the contractor carrying out dismantling work:

• fencing the work area, followed by dismantling;

• dismantling (disassembly) of internal engineering communications at the site;

• dismantling (disassembly) of external utilities (up to the first well);

• dismantling of large-sized engineering equipment located on site;

• dismantling of suitable building elements for reuse, with movement or removal to an intermediate warehouse (usually indicated by the customer);

• demolition or element-by-element dismantling of the above-ground part, depending on the structural elements of the object, as well as the presence of other existing buildings (structures) in the work area, as a rule, this information is indicated in the dismantling organization project (DOD);

• dismantling (disassembling) the underground part of the facility or carrying out other activities;

• removal of construction waste from the construction site (carrying on a stretcher or mechanized);

• loading construction waste into vehicles (mechanized and manual);

• removal of construction waste to a municipal solid waste (MSW) landfill;

• compensation of costs (purchase of coupons) for the disposal of construction waste;

• land reclamation (removal of used soil and delivery of new soil, planting of trees and shrubs).

! Need to remember: When calculating these costs, it is necessary to take into account the return amounts or profit that the contractor performing dismantling work will receive, for example, from the delivery of metal structures to their collection points (these costs are indicated in calculations with the sign "minus").

If it is necessary to clear a site for construction, the costs of dismantling (dismantling, demolishing) a building, house or utility networks are taken into account in the summary estimate in the first chapter, “Preparation of the construction site.”

RUBRIC “QUESTION” - ANSWER"

Costs of disposal of construction waste in a landfill - read...

Question:

The customer refuses to pay the contractor's expenses for disposal of construction waste in a landfill. At the same time, he refers to page 18 of the book by I.Yu. Nosenko “Estimation file in construction” volume 1, which contains the answer to the question of which chapter of the Consolidated Estimate should include the costs for the delivery of construction waste. In particular, the response says the following:

“The costs associated with the removal of construction waste during the construction of new structural elements, including the removal of waste and its delivery to a landfill, are considered overhead costs and are not subject to inclusion in the estimate documentation.”

Is the Customer right?

Answer:

The customer is wrong in this matter.

In paragraph 11 “Costs for the improvement and maintenance of construction sites” of Section III “Costs for organizing work on construction sites” of Appendix 6 “List of overhead cost items in construction” to the “Methodological guidelines for determining the amount of overhead costs in construction” MDS 81-33.2004 information is provided that overhead costs take into account the following costs: “— for labor (with deductions to the unified social tax from labor costs) and other costs for cleaning and cleaning (with garbage removal) of the construction site and the adjacent street strip, including areas roads and sidewalks, installation of paths, bridges and other work related to landscaping of construction sites;.”

The costs of the contractor for the disposal of waste transported to a landfill are not taken into account by overhead standards and must be paid separately. On this issue there was an explanation from the Russian Gosstroy, given below:

LETTER
State Committee of the Russian Federation
for construction and housing and communal services (Gosstroy of Russia)
dated December 28, 1999 No. 10-466

The Department of Pricing and Estimated Standardization in Construction and Housing and Communal Services clarifies this issue.

In accordance with paragraph 10 of the “Methodological guidelines for determining the cost of construction products on the territory of the Russian Federation MDS 81-1.99”, adopted by Resolution of the State Construction Committee of Russia dated April 26, 1999 No. 31, the estimate documentation includes the costs of cleaning and clearing waste from the construction site as part of overhead costs . Accounting for the costs of disposal of unusable soil and waste transported to a landfill is not provided for by current regulatory documents.

Head of Department V.A. Stepanov

It should be noted that the above applies to the disposal of technological waste generated during construction and installation work during new construction, which, for example, includes brick waste and mortar residues from the production of brickwork.

If we are talking about construction waste generated during the dismantling of buildings or their parts, then the cost estimate documentation should take into account the costs of loading, unloading and transporting construction waste from the dismantling of buildings. In addition to these costs, the estimate documentation must take into account the costs of paying for services for the placement and disposal of waste at waste processing sites (“landfills”).

If the work on dismantling buildings is a preparatory stage for further construction, then the specified costs in the estimate documentation can be reflected in Chapter 1 of the consolidated estimate “Preparation of the construction site” with the assignment of loading, unloading and transportation work to construction and installation work . Services for the placement and disposal of waste at waste treatment sites are considered other costs and can be taken into account in chapters 1 or 9 of the consolidated estimate.

The letter of the Ministry of Regional Development dated 05/03/2011 No. 11086-IP/08 recommends taking into account the costs of disposal and disposal of construction waste in Chapter 9 of the Consolidated Estimate.

“The costs of placement and disposal (neutralization) of construction waste, contaminated soil and waste are determined by an estimate based on the data in Section 8 “List of Environmental Protection Measures” of the project documentation, and if it is necessary to demolish (dismantle) an object or part of a capital construction object also descriptions of solutions for the collection, decontamination and disposal of waste and contaminated soils, given in Section 7 “Project for organizing work on the demolition or dismantling of capital construction projects”, and a certificate (calculation) of the enterprise on the cost of placement and disposal of construction waste and waste. Costs associated with payment for these services are determined by calculations and taken into account in accordance with clause 4.85 of the Methodology for determining the cost of construction products on the territory of the Russian Federation MDS 81-35.2004 in Chapter 9 “Other work and costs” (columns 7, 8) of the consolidated cost estimate construction. The costs of loading construction waste and materials unsuitable for further use, generated as a result of dismantling buildings, structures and equipment, into a vehicle and transporting it from the construction site to a storage site or landfill are determined according to current tariffs and are taken into account in local estimates.”

(extract from the letter of the Ministry of Regional Development dated 05/03/2011 No. 11086-IP/08)

Source: Consultations and clarifications No. 4 2016 (84).

Refund of the cost of materials (scrap metal) - read...

Question:

Please provide clarification on how the return of the cost of materials should be taken into account in the local estimate from the dismantling of metal structures during the reconstruction of buildings and structures. And also, is it legal for the customer’s requirement to include refundable amounts in the estimate documentation if the scrap metal was disposed of at a landfill with the receipt of the appropriate certificates, and was not sold?

Answer:

In accordance with clause 4.12 of the Methodology for determining the cost of construction products on the territory of the Russian Federation MDS 81-35.2004 in cases where, according to design decisions, the development of structures or demolition of buildings and structures is carried out, according to structures, materials and products suitable for reuse, based on the results of local Estimated calculations (estimates) provide reference amounts for return amounts (amounts that reduce the size of capital investments allocated by the customer).

These amounts are not excluded from the total of local estimates and from the scope of work performed.

They are shown in a separate line called “including refundable amounts” and are determined on the basis of the items and quantities of structures, materials and products received for subsequent use, also given after the final estimate. The cost of such structures, materials and products as part of refundable amounts is determined at the price of possible sales minus the costs of bringing them into a usable condition and delivering them to the storage location.

If it is impossible to use or sell materials from disassembly, their cost is not taken into account in the refund amounts.

Judicial acts on the demolition of unauthorized buildings, although they occupy a small share in the total number of enforcement proceedings being carried out, however, from the point of view of public importance, they play a very significant role.

This article was copied from https://www.site

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 unauthorized buildings, although they occupy a small share in the total number of enforcement proceedings being carried out, however, from the point of view of public importance, they play a very significant role.

This is due not only to the fact that the unauthorized construction site is a high-risk facility that poses a threat to the life and health of citizens, but also to the fact that in recent years, funding from the federal budget for organizing the enforcement of such judicial acts has been significantly reduced.

From the point of view of creating legal certainty in the procedure for executing these judicial acts, some significant steps have recently been taken. For example, Federal Law No. 441-FZ dated December 28, 2013 amended the wording of Art. 107 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings) specifically in terms of detailing the procedure for forced demolition of unauthorized buildings.

In furtherance of the provisions of the Law on Enforcement Proceedings, letter No. 8 of the Federal Bailiff Service of Russia dated March 31, 2014, communicated to territorial authorities Methodological recommendations for the execution of court decisions on the demolition of unauthorized buildings.

However, these documents provide that in the event of failure to comply with a court decision by the debtor after the application of administrative liability measures, the question of attracting the appropriate specialized organization to fulfill these requirements at the expense of the federal budget is carried out in accordance with the provisions of Federal Law dated 04/05/2013 No. 44-FZ “On Contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law No. 44-FZ) and the instruction of the FSSP of Russia dated January 31, 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 acquire particular relevance in practice.

Possible options for the practical implementation of these methods may look like this.

1. Fulfillment of the requirements of the writ of execution on the demolition of an unauthorized building by the claimant independently or by involving third parties with the subsequent collection of expenses for carrying out enforcement actions from the debtor.

1.1. Financing by the claimant of expenses for carrying out 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 Arbitration Procedure Code of the Russian Federation.

This form is also directly provided for in 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 may offer the claimant to bear the costs of applying enforcement measures with their subsequent reimbursement at the expense of the debtor.

However, in the course of the practical application of this norm, the question arises about how the claimant will 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 enforcement proceedings are being conducted, or directly the person who will actually carry out demolition work 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 units of the territorial bodies of the Federal Bailiff Service (approved by order of the Ministry of Justice of Russia No. 11, Ministry of Finance of Russia No. 15n dated January 25, 2008) does not provide for the possibility of accounting funds received as compensation for the costs of carrying out enforcement actions and applying enforcement measures, settlements between the claimant and the person involved in dismantling the object must be made directly, i.e., bypassing the Bailiff Service.

1.2. Direct commission by the claimant of actions aimed at demolishing an unauthorized building. In judicial practice, disputes have repeatedly arisen about the legality of the participation of the claimant as a person directly carrying out actions to execute the judicial act on the demolition of an unauthorized structure.

In almost all cases, such disputes ended in recognition of this method of executing a court decision as lawful.

For example, in one of the enforcement proceedings for the demolition of an unauthorized building, the debtor went to court with a demand to declare illegal the actions of the bailiff to attract the claimant (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 demands by the fact that since JSC Russian Railways acts as a party to the dispute, the specified 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 decision of the Krasnoselsky District Court of St. Petersburg dated May 10, 2017, the debtor’s administrative claim was denied.

By the appeal ruling of the St. Petersburg City Court dated August 1, 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 not satisfied.

In accepting the appeal ruling, the court explained that since the debtor in enforcement proceedings voluntarily did not comply with the court decision to vacate the land plot, and did not provide evidence of the impossibility of fulfilling the requirements of the executive document due to emergency circumstances to the bailiff, the bailiff legally and justifiably carried out forced execution of a court decision by releasing the land plot from the debtor's movable property.

JSC Russian Railways has the technical ability to dismantle the fencing of the land plot and the substation located on it, therefore, in this case, it is the appropriate specialized organization, reasonably involved by the bailiff in the execution of the court decision by freeing the land plot from the debtor's property.

From the point of view of legislative technology, the wording of Part 8 of Art. 107 of the Law on Enforcement Proceedings seems to be not entirely successful and in practice may cause ambiguous conclusions when interpreting the term it contains regarding an entity capable of being involved in the execution of a court decision. Part 8 art. 107 of the Law on Enforcement Proceedings gives the bailiff the right to engage a specialized organization to execute the court decision. The term “organization” in the meaning 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, means nothing more than a legal entity.

Thus, if you follow the letter of the law, then only a legal entity can be involved in the forced demolition of a building as part of enforcement proceedings. In fact, this means that it is impossible to attract individual entrepreneurs in this capacity, including those who have all the necessary permits to carry out this type of activity.

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 writ of execution for the demolition of an unauthorized building with preliminary collection from the debtor in court of expenses for carrying out enforcement actions to demolish this unauthorized building with the subsequent use of the collected funds to execute the court decision.

Judicial practice of implementing this method of action is not numerous and is based on the application of the following algorithm of actions:

The bailiff or the claimant engages an appropriate specialist who assesses the cost of demolition of the unauthorized building;

Based on the submitted documents on the assessment of the cost of these works, the bailiff or the recoverer sends to the court that issued the writ of execution an application to change 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;

Based on the ruling to change the method of execution of the decision to demolish an unauthorized building, the court issues a writ of execution to collect from the debtor in favor of the claimant the necessary funds to organize the relevant work.

For example, in the Interdistrict Department of Bailiffs for Special Enforcement Proceedings of the Federal Bailiff Service of Russia in the Volgograd Region, enforcement proceedings were pending on the obligation of a legal entity to demolish an unauthorized construction site.

Despite the enforcement measures taken, the requirements contained in the writ of execution were not fulfilled by the debtor organization. In this regard, the bailiff on the basis of Art. 37 of the Law on Enforcement Proceedings, he applied to the court that issued the executive 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 November 10, 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 funds in the amount of 227,987.80 rubles, necessary to fulfill the requirements for the demolition of an 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 goal of restoring violated rights. Since in Art. 324 of the Arbitration Procedure Code of the Russian Federation, as a basis for changing the method of execution of a judicial act, the presence of circumstances that complicate its execution is indicated, then the very fact of the debtor’s continued failure to comply with a court decision to demolish an unauthorized building is the basis for changing the method of execution of a judicial act.

On similar grounds, the ruling of the Arbitration Court of the Krasnoyarsk Territory dated August 18, 2015 in case No. A33-7596/2014 satisfied the claims made by the claimant to change the method of execution of the court decision on the demolition of an unauthorized building.

3. Involvement of a specialized organization for the forced demolition of an unauthorized building on a free basis (without funding enforcement actions from the federal budget) with subsequent collection of expenses incurred from the debtor in favor of the specialized organization.

The practical implementation of such a mechanism for compulsory execution of a judicial act can be carried out in the following ways.

3.1. Applying to the court with an application to change the method and procedure for executing a judicial act on the demolition of an unauthorized structure by admitting a third organization as a participant in enforcement proceedings. For example, the bailiff of the Lazarevsky district department of bailiffs of Sochi of the Federal Bailiff Service of Russia in the Krasnodar Territory was carrying out enforcement proceedings on the demolition of an unauthorized building.

Due to the long-term failure to comply with the requirements of the writ of execution by the debtor, the bailiff applied to the court with an application to change the method of execution of this court decision.

By the ruling of the Lazarevsky District Court 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 executing the original court decision on the demolition of an unauthorized building, allowing a third party who is not a party to the enforcement proceedings to dismantle the unauthorized structure with the subsequent collection of costs for carrying out enforcement actions from the debtor.

This procedure is quite applicable, however, this practice seems ambiguous, since in fact the court, by its ruling, authorizes the participation of a specialized organization as a person facilitating the fulfillment of the requirements contained in the executive document (clause 3 of Article 48 of the Law on Enforcement Proceedings).

At the same time, an 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 require judicial authorization and is within the exclusive competence of the bailiff.

The possibility of subsequent recovery of expenses for carrying out enforcement actions incurred by the organization involved in enforcement is provided for by the provisions 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 resolution of the bailiff, approved by the senior bailiff or his deputy.

3.2. Conclusion with a specialized organization of a gratuitous (not providing for payment for work from budgetary funds) contract for the implementation of work on the demolition of an unauthorized structure with the subsequent collection 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 places an announcement in the regional media and (or) on its website about its readiness to attract a specialized organization to participate in the execution of court decisions on the demolition of unauthorized buildings free of charge. The announced information specifically stipulates that involving an organization in participation in enforcement actions does not imply payment for work from the federal budget. With an organization that has expressed a desire to participate in enforcement actions and has the necessary permits to carry out this type of activity, the territorial body of the FSSP of Russia concludes an agreement to carry out work on the demolition of an unauthorized structure.

The concluded agreement must necessarily reflect:

The literal content of the operative part of the writ of execution, on the basis of which the forced demolition of an unauthorized structure occurs;

The condition that the contract is gratuitous (clause 2 of Article 423 of the Civil Code of the Russian Federation) and does not provide for payment for work from the budget, however, does not exclude the possibility of recovering incurred expenses from the debtor in the manner established by the legislation of the Russian Federation;

The condition that the organization is entrusted with responsibilities not only for the demolition of an unauthorized construction site, but also for the removal (disposal) of construction waste remaining after completion of the work. The specific method of demolition of the object and the method of removing construction waste remaining after the work is determined by the specialized organization independently based on the technical, technological and other conditions of the work;

Dates for the start and completion of demolition work on an unauthorized structure.

It should be noted that the legality of concluding such an agreement, as well as the content of its terms, were subject to control by the judiciary.

Thus, the debtor under the writ of execution on the demolition of an unauthorized building filed a lawsuit against the Federal Bailiff Service of Russia in the Volgograd Region to invalidate the contract for the demolition of an unauthorized building, concluded on December 12, 2016.

In support of the stated requirements, the debtor indicated that this agreement is of a “sham” nature, since it was concluded on a gratuitous basis, but it contains a condition regarding the possible recovery of expenses from him for carrying out enforcement actions; he also indicated that the agreement was concluded for 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 Voroshilovsky District Court of Volgograd dated May 2, 2017 in case No. 2-1247/2017, the debtor was denied the stated requirements.

Based on the debtor’s argument that his rights were violated by the fact that he might be charged for the costs associated with the dismantling of an unauthorized building in favor of a specialized organization, the court indicated that the costs of carrying out enforcement actions are reimbursed to persons who incurred these costs at the expense of debtor by virtue of Part 1 of Art. 117 of the Law on Enforcement Proceedings.

The debtor's arguments that the agreement was concluded for a purpose that is obviously contrary to the fundamentals of law and order and morality, and contrary to Law No. 44-FZ, were also rejected by the court and stated that the provisions of this regulatory legal act apply to relations aimed at ensuring state and municipal needs at the expense of the relevant budgets. In the case under consideration, the contract was concluded free of charge, payment for the services of a specialized organization is not made from budget funds, 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 08/09/2017 in case No. 33-13543/2017, the decision of the first instance court was left unchanged, and the appeal was not satisfied.

The 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 issues a resolution to attract the specified organization to participate in enforcement actions. From this moment on, the organization acquires the status of a specialist with all the ensuing legal consequences.

The proposed first three options for organizing the demolition of an unauthorized structure imply the need to recover, within the framework of enforcement proceedings, the costs incurred in carrying out enforcement actions. In this regard, there is a need to ensure the recovery of these expenses by seizing (banning) the debtor’s property.

The legislation on enforcement proceedings, as well as the Methodological Recommendations for the execution of court decisions on the demolition of unauthorized buildings (approved by the Director of the Federal Bailiff Service of Russia on March 31, 2014), does not resolve the issue of the possibility of applying interim (restrictive) measures in relation to the debtor’s property at that stage of enforcement proceedings when a decision has not yet been made on the collection of expenses for carrying out enforcement actions (i.e., within the framework of non-property claims).

However, this issue has been resolved in law enforcement practice.

Thus, within the framework of enforcement proceedings for 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 voluntarily paid all the property sanctions imposed on him in the form of enforcement fees and administrative fines under Art. 17.15 Code of Administrative Offenses of the Russian Federation. In this regard, on October 17, 2016, as part of the said enforcement proceedings, the bailiff issued a ruling banning the alienation of a land plot owned by the debtor located outside the location of the facility to be demolished.

By the decision of the Krasnoarmeysky District Court of Volgograd dated December 19, 2016 in case No. 2a-5228/2016, the specified resolution of the bailiff was declared illegal.

As follows from the reasoning part of this judicial act, the court came to the conclusion that the decision of the bailiff was illegal due to the fact that the land plot in respect of which the ban was established is not the subject of enforcement proceedings.

This decision was appealed by the bailiff to 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 first instance court was canceled and the debtor was denied the stated demands.

In overturning the decision of the court of first instance, the appellate court noted that it follows from the contested decision that it was made in order to ensure the execution of a court decision; the arrest is expressed in a ban on carrying out registration actions. Under such circumstances, the court came to the conclusion 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 writ of execution on the demolition of an unauthorized building by organizing work on the forced demolition of this structure by local government bodies independently, with their own forces and means.

It is known that in most cases, the claimants under enforcement documents are local government bodies or prosecutors who have gone 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 to directly carry out dismantling work, as well as staff capable of carrying out work on such equipment, local government bodies, due to the wide range of powers entrusted to them, have the appropriate resources.

As a rule, local government bodies are the founders of various municipal unitary enterprises and municipal institutions, whose functions include, among other things, the implementation of work closely related to both the construction and dismantling of buildings, structures, structures.

A number of municipalities specifically adopt municipal regulatory legal acts that define the procedure for dismantling unauthorized construction projects administratively.

For example, Resolution of the Volgograd Administration dated April 12, 2013 No. 764 approved the Procedure for dismantling unauthorized non-stationary objects installed on the territory of Volgograd, as well as the Regulations on commissions for resolving issues of dismantling unauthorized non-stationary objects installed on the territory of Volgograd.

This document regulates the activities of the administration of Volgograd, its structural divisions, organizations and institutions in the implementation of measures related to the dismantling of unauthorized installed non-stationary objects, the installation of which does not require a building permit, located on land plots for which state ownership is not demarcated, land plots, municipally owned and located inside municipally owned facilities.

At the same time, decisions on the dismantling of objects on the territory of Volgograd are made by commissions for resolving issues on the dismantling of unauthorized installed non-stationary objects on the territory of Volgograd, created in the administrations of the relevant districts of Volgograd, without applying to the judicial authorities.

The extrajudicial procedure for the demolition of unauthorized construction projects was the subject of verification by both the prosecutor's office and the judiciary.

Thus, the deputy prosecutor of the Volgograd region appealed to the Arbitration Court of the Volgograd Region with a statement to the administration of Volgograd to invalidate the resolution of the administration of Volgograd dated April 12, 2013 No. 764 as not complying 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 October 6, 2003 No. 131-FZ “On the general principles of organizing local self-government in the Russian Federation.”

In support of the stated requirements, the prosecutor's office indicated that, since civil legislation is under the jurisdiction of the Russian Federation, the contested regulatory legal act was adopted in excess of the competence of local government bodies, violates the rights of owners of non-stationary movable property and constitutional guarantees for the protection of private property rights in the Russian Federation.

At the same time, by the decision of the Arbitration Court of the Volgograd Region dated September 02, 2013 in case No. A12-14507/2013, the stated claims were denied in full.

By the decision of the Federal Arbitration Court of the Volga District dated November 21, 2013 in case No. A12-14507/2013, this decision was left unchanged.

In general, this position of the judicial authorities seems not only correct, but also consistent with the actual state of affairs associated with the technical capabilities of carrying out actions to dismantle unauthorized construction projects.

In developing such an initiative of individual local government bodies, taking into account the resources and capabilities available to them, which were mentioned above, it seems more correct to generally remove from the jurisdiction of the FSSP of Russia the need for forced execution of judicial acts on the demolition of unauthorized buildings located on municipal lands. Local self-government bodies are completely self-sufficient public legal entities, not only from the point of view of having the appropriate power (administrative and regulatory) powers, but also from the point of view of possessing the technical and human resources necessary to fulfill the requirement to demolish unauthorized buildings.

Bibliography

1 According to the departmental statistical reporting of the FSSP of Russia in form No. 1-1 “Main indicators of the work of bailiffs of the FSSP of Russia” for 2017, the share of enforcement proceedings for the demolition of unauthorized buildings in the total number of enforcement proceedings pending 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 of the Town Planning Code of the Russian Federation). At the same time, legal entities and individual entrepreneurs who have received all the necessary documents enjoy equal rights.

3 See Chapter 3 of Federal Law No. 131-FZ dated October 6, 2003 “On the general principles of organizing local self-government in the Russian Federation.”

Document overview

The procedure for executing judicial acts on the demolition of unauthorized buildings has been determined. It applies to both capital construction projects 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 diagram of the land plot indicating the entrances and entrances to it is attached to the file. Attached are photographs of the site to be demolished. The bailiff takes measures aimed at prohibiting registration actions both in relation to the building subject to demolition and the land plot on which it is located.

The debtor is given a period during which he can voluntarily comply with the demands for demolition of the object. In case of non-compliance, a decision is made to collect the enforcement fee, a new period is established, after which forced execution will be carried out. If the debtor does not fulfill the requirements without good reason within the newly established period, the bailiff draws up a protocol on the administrative offense.

Based on the results of demolition, a report is drawn up. It is signed by the persons present at the time.

The costs of demolition, as well as storage of seized property, are subject to reimbursement at the expense of the debtor.

A procedure has been established for the actions of the bailiff if the object to be demolished is being exploited, citizens permanently reside in it, or strangers and pets are found there.

Demolition or relocation of a neighbor’s illegal building is not an easy matter, which is why it is important to get advice from our lawyer.

Grounds for demolition of unauthorized construction

A claim against a neighbor for the demolition of buildings between plots. Of course, the construction of a neighbor or other persons on your land plot is a violation of your rights. However, not all claims for the demolition of unauthorized buildings are brought by neighbors. Such a claim may be brought by the municipal administration against your building. Let's consider the grounds for filing a claim for demolition, both against a neighbor, and for bringing it against you by third parties or government agencies:

1. Construction without agreement with a neighbor. You can file a claim for the demolition of an unauthorized building that violates the rights of your neighbors. According to the law, the construction of permanent buildings between plots is prohibited without obtaining the appropriate consent of the owners of neighboring plots. Disputes arise if the owner of one of the plots changes, and the neighbors are under construction. The new owner can file a claim for demolition, arguing that he did not give permission for this. If the defendant provides official permission from the previous owner, this will be enough to prove the legality of his actions.
2. Construction without permission. Demolition of a garage on the border with a neighboring plot of land is possible if its gates block the neighbor's plot, and the car is driven out onto someone else's territory. Another reason for demolition is the lack of official permission from the authorities for construction. If the garage is not on the site plan, cadastral and technical passport, then the court may oblige the owner of the site to demolish the unauthorized building. Legalizing the construction will be problematic and expensive, but lawbreakers often go for it.
3. Violation of sanitary norms and rules. You can file a claim to relocate a toilet located on the street near the property line, arguing that biological waste pollutes the soil and unpleasant odors negatively affect the quality of life.
4. Unauthorized construction. Lack of appropriate documentation legalizing the right to construct the facility. These circumstances are the basis for filing a claim against you for demolition. In such a situation, the only optimal solution to your problem would be to file a counterclaim for recognition of ownership of the unauthorized construction.
5. Violation of the boundaries of one's own area. Your construction of a building outside the boundaries of your land plot. In this case, as a recommendation, we advise you to carry out cadastral work to remove boundaries in kind. Having determined the boundaries of your site with precision, you will exclude the possibility of construction, for example, on public lands that are assigned to the administration.
6. Violation of land use and development rules. Today there are often situations when people build objects in areas that are not intended for this purpose. Well, for example, individual housing construction on gardening lands. In this case, protecting your rights is also possible only in court.
7. The person does not have the right to use the land plot. This situation may arise in the event of termination of the lease agreement or initial unauthorized seizure of land. To resolve the current situation, you need to contact the owner of the land plot, complain to the regulatory authorities or file a claim in court - all this can be done, incl. with our help.

Absence of any legal claims at all to the land plot on which construction is taking place. In other words, the use of a land plot without legal grounds, and the plot itself does not belong to you in more than one type of right (ownership, other paid/gratuitous use). In such a situation, the legislator has provided for the possibility of protecting violated rights through (which can be studied by following the link to the possibility of applying these provisions of the law).

ATTENTION: how to win legal disputes over land plots between neighbors and other persons - watch the video. Subscribe to the YouTube channel and free consultation on land issues in the comments of the video will be professional and on time.

The procedure for demolishing an unauthorized building by court decision

Controversial issues with neighbors and other owners of adjacent lands can be resolved without resorting to court, but sometimes it is impossible to achieve a peaceful solution to the problem. In court, you need to be consistent and present real evidence of unauthorized seizure of land or violation of the rights of neighbors.

If, nevertheless, you were unable to reach an agreement in pre-trial order on the organization and implementation of future and/or ongoing development by your neighbor, we can only protect your rights in court. The trial will include the following steps:

Pre-trial dispute resolution and preparation for trial

Pre-trial preparation. This stage will include the preparation of the statement of claim itself, as well as the collection of evidence. As part of this dispute, you, as a person whose rights have been violated, will need to prove the following circumstances, depending on the basis of the claim:

• construction by the defendant of an object on the territory of your land plot in whole or in part;
• violation by a neighbor of building codes and regulations regarding regulatory setbacks from the adjacent border, and/or from your permanent structure;
• construction by a neighbor of a building that may pose a threat to you or other persons;
• filing an official statement of claim for the demolition of a fence or relocation of another building;

Court for the relocation (demolition) of a toilet, shed or other building

Trial. During this stage, the judge will need to establish that your rights have been violated. You, in turn, are required to provide evidence to substantiate your claims and statements. As such evidence you can provide:

Conclusion of a cadastral engineer. In conclusion, the specialist must indicate the construction of the object on the boundaries (within the boundaries) of your site.

Construction and technical conclusion. In this conclusion, the specialist will determine whether the standards were violated during the construction of the object in terms of the development of the object. Moreover, the expert must determine whether the object complies with the construction project and is constructed in accordance with the requirements of building codes and laws.

Execution of a court decision on the demolition or relocation of a building

Making a court decision and its execution. If the court rules in your favor, your opponent will still have to bear or move the substring. It is best to do this voluntarily. In case the defendant evades the execution of a judicial act, you can apply for the issuance of a writ of execution and present it to the competent authority. The bailiff, with the involvement of third-party organizations, will execute the court decision, and the costs associated with its execution will be borne by the violator.

Sometimes the course of events takes a completely different turn and government authorities raise the issue of terminating ownership rights in relation to your real estate property - the building and the land plot underneath it. This point is regulated at the legislative level and is called. As a rule, disputes arising against the background of such a problem arise from determining the value of the property that is subject to seizure. Estimates provided by government agencies are not always objective. Only a court can resolve such a dispute.

The chances of success increase significantly if you use the services of our lawyer. Contact those experts who specialize in such matters. They will independently fill out a statement of claim to dismantle the fence, tell you exactly how you need to proceed, realistically assess the likelihood of a positive outcome of the measures and tell you how the procedure goes (more details on this topic can be found in the link).

Failure to comply with a court decision on the demolition of an unauthorized building

According to the amendments to civil legislation dated August 4, 2018, which entered into legal force, the time frame for the demolition of an unauthorized building ranges from 3 to 12 months, depending on the nature of the object. What to do if the defendant has not demolished the building within the time established by the court?

In this case, the enforcement mechanism, which is handled by the Federal Bailiff Service, begins to work. By using the services of an expert who constantly interacts with these structures, you significantly increase your chances of a positive outcome:

1. After the writ of execution is received by the bailiff, the situation will unfold as follows: since the period established for voluntary execution has expired, the bailiff sets the debtor a new deadline for the demolition of the unauthorized construction.
2. If the debtor in this case does not comply with the requirements contained in the writ of execution, without good reason, the bailiff draws up a protocol on an administrative offense against the debtor. At the same time, it is important to understand that applying measures to the debtor that entail unfavorable consequences for him may not always lead to the desired result. Often, debtors in such categories of cases seek to evade fulfillment of the obligation to demolish an unauthorized building.
3. If, after all the actions taken by the bailiff, the building is not demolished, the bailiff has the right do the demolition yourself illegal building. Actions to demolish an unauthorized building will be carried out at the expense of budget funds with their subsequent collection from the debtor. One should only take into account that this procedure is not carried out quickly and in practice is quite complex. Since it is necessary to coordinate the allocation of funds with the management of the FSSP of the Russian Federation in the subject. In addition, the demolition of an illegal building often involves investing significant sums of money, organizing a competition for work and many other related actions, combined with the significant employment of the bailiffs themselves - all this allows us to conclude that
   that the procedure for demolishing an unauthorized building can take a very long time.

And here it is very important to exercise control from a specialist who can analyze the work of the bailiff for the legality of actions and promptly eliminate errors and shortcomings in his work.

Postponement of execution of a court decision on demolition

Civil legislation gives the debtor, the collector, as well as the bailiff the right to raise before the court the issue of deferring the execution of a court decision in the presence of circumstances that make it difficult to execute the court decision. As a rule, in a case of demolition of an unauthorized building, most often the applicant is the debtor, who for some reason cannot fulfill the court decision on time.

LAW: according to Article 203 of the Civil Code of the Russian Federation, the court has the right to grant a deferment to the debtor based on his property status or other circumstances.

Granting a deferment of execution of a court decision directly affects the interests of the claimant and delays the protection of his rights. Therefore, the grounds for its provision must be exceptional. The applicant must provide evidence of the existence of circumstances that significantly impede the execution of the court decision. In turn, the claimant may submit to the court objections to the application to defer the execution of the court decision on the demolition of the unauthorized building. Then the court, having assessed the arguments of both sides, comes to the following conclusions: whether the reasons for granting a deferment are valid and justified, whether the granting of a deferral meets the criteria of fairness and whether it does not affect the essence of the constitutional rights of participants in enforcement proceedings. If the court determines that there are grounds for granting a deferment, a ruling is issued indicating the period for granting the deferment.

Thus, the procedure for demolishing an unauthorized building is quite complicated and difficulties can arise at any stage. That is why, by resorting to the help of professionals, you can significantly facilitate the resolution of this issue and confidently assert that you have used all the possibilities to achieve the desired goal.

Help from a lawyer regarding unauthorized constructions

In case of unauthorized seizure of a land plot by a person who does not have legal rights, the real owners of the property may file a claim to move a fence or other permanent structure. It is advisable to resolve such issues amicably, but if a peaceful outcome is unrealistic, you should go to court. Be sure to get the services of our lawyers who will tell you how to act in a certain situation.

By following our recommendations, you can bypass the courts and carry out construction without additional encumbrances in the form of litigation. In case a dispute arises between the shared owners of the site, you can resolve it by preparing. If such an agreement cannot be reached by the shared owners of the property, the only solution is, with which our lawyer can help you today.

P.S.: if you have a problem, call our lawyer and we will try to resolve your issue: professionally, on favorable terms and on time

Our new offer - free legal consultation through an application on the website.

Motivated
solution made 08/17/2015

IN THE NAME OF THE RUSSIAN FEDERATION

08/13/2015 Sysertsky District Court of the Sverdlovsk Region, composed of presiding judge Torichnaya M.V., with the participation of the applicant’s representative Z.Ya., interested person D., with secretary T., having considered civil case No. 2-1272/2015 in open court at the request of Z. to recognize the inaction of the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal,

INSTALLED:

Z. applied to the court to recognize the inaction of the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal, indicating that the bailiff of the Sysertsky district department of bailiffs of the Federal Bailiff Service for the Sverdlovsk Region B., on the basis of a writ of execution for case No. 40817810604900317040, issued by the Sysertsky District Court, DD.MM.YYYY, enforcement proceedings were initiated No. 40817810604900317040 to eliminate obstacles to the use of a land plot located at the address: in relation to D. (hereinafter referred to as “Debtor”) in favor of Z. (hereinafter referred to as “Debtor”) text - “Applicant”).

At the time of filing the complaint, execution within the framework of this proceeding had not been completed; the obstacles to the use of the land plot by the demolition of the unauthorized construction of an extension to the store "" by the "Debtor" were not eliminated. The bailiff does not provide the “Applicant” with information about the progress of activities carried out within the framework of enforcement proceedings.

Three years have passed since the initiation of enforcement proceedings, but enforcement has still not been carried out.

In the event of a long-term failure by the debtor to comply with a court decision, the bailiff is recommended to review downward the deadline for fulfilling the requirements of the writ of execution and more actively apply administrative measures to the debtor.

According to clause 3.8. of the said Letter, if the debtor in the enforcement proceedings is a citizen, the bailiff issues a resolution on a temporary restriction on the debtor’s departure from the Russian Federation.

According to clause 3.9. of the specified Letter, the bailiff applies all measures aimed at fulfilling the requirements of a non-property nature contained in the executive document, in accordance with Art. (as amended on 12/02/2019) > "> (with amendments and additions, entered into force on 01/01/2020) > Chapter 13. Execution of non-property requirements contained in executive documents > Article 105. General conditions for the execution contained in executive documents requiring the debtor to perform certain actions (refrain from performing certain actions)" target="_blank">105 Federal Law "On Enforcement Proceedings".

According to paragraph 3.10 of the said Letter, for the purpose of forced demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve the appropriate specialized organization in accordance with the provisions of the Federal Law “On Enforcement Proceedings”.

If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff about this, who, after checking the materials of the enforcement proceedings and establishing the fact of the full application of compulsory measures in accordance with the provisions of Art. 105 of the Law submits a memorandum addressed to the head of the relevant territorial body, which sets out the essence of the requirements of the executive document of a non-property nature, and also describes in chronological order the actions taken to fulfill the requirements of the executive document.

The involvement of an appropriate specialized organization to fulfill these requirements at the expense of the federal budget is carried out in accordance with the provisions of Federal Law dated 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" and the instructions of the FSSP Russia dated January 31, 2011 N 12/08-1872-VM.

In accordance with clause 4.5. Letters, forced execution of the requirement for the demolition of an unauthorized structure, building or structure or their individual structures, is carried out with the participation of witnesses (if necessary, with the assistance of internal affairs officers) with the drawing up of a corresponding act on the demolition of the structure, building or structure or their individual structures and inventory of property in accordance with the provisions of Art. 107 of the Law.

Thus, since the measures taken within the framework of enforcement proceedings are ineffective and did not lead to the independent demolition of the building by the debtor, the bailiff had to involve a specialized organization to carry out the forced demolition of the unauthorized building.

It should be noted that forced execution of the writ of execution by the “Applicant” independently with subsequent collection of expenses from the “Debtor” can only be carried out if the claimant makes such a decision, based on information received as part of the enforcement proceedings, indicating the financial situation of the “Debtor” ", which will ensure further recovery from him of the costs of the demolition of the unauthorized building (clause 4.1. of the said Letter).

In our case, the “Applicant” did not decide to independently demolish the unauthorized building with the subsequent attribution of costs to the “Debtor”, which means that the bailiff must carry out measures within the framework of enforcement proceedings aimed at the execution by the “Debtor” of the writ of execution and the elimination of obstacles to the use of land site until its execution.

In addition, the “Applicant” assumes that the property subject to demolition continues to be used.

According to clause 6.1. of the said Letter, if it is established that a capital construction project is being demolished, the bailiff draws up an act of enforcement action, in which he indicates these circumstances, and also serves on the persons operating the object to be demolished with demands to stop these actions.

In case of repeated establishment of the fact of exploitation of an object subject to demolition by the same persons, the bailiff takes measures to bring them to administrative responsibility in accordance with Art. . Code of Administrative Offenses of the Russian Federation.

Thus, the “Applicant” believes that the bailiff did not take the necessary actions aimed at executing the writ of execution, namely the demolition of an unauthorized addition that created obstacles to the use of the land plot located at the address: No. 40817810604900317040 within three years from the date of initiation enforcement proceedings.

He asked that the inaction of the bailiff of the Sysertsky District Department of Bailiffs of the Office of the Federal Bailiff Service for the Sverdlovsk Region be declared illegal in enforcement proceedings No. 40817810604900317040 initiated on August 29, 2012; oblige the Sysert district department of bailiffs of the Office of the Federal Bailiff Service for the Sverdlovsk Region to provide a full report on the activities carried out during enforcement proceedings.

Applicant Z. did not appear at the court hearing. He sent his representative to the court.

At the court hearing, the applicant’s representative Z. Ya. supported the stated demands in full, and additionally explained to the court that the decision has not yet been executed, which violates the rights of the plaintiff.

Interested person D. at the court hearing objected to the stated demands, explained that the bailiff had taken many actions, but an unenforceable decision had simply been made. The bailiffs visited the site multiple times and became convinced that technically the decision could not be carried out.

He provided a review to the court, indicating that the bailiffs have objective reasons that prevent the execution of the decision of the Sysertsky District Court dated DD.MM.YYYY.

One part of the reasons is organizational and technical. The design of the building does not allow part of it to be demolished at a distance of 1 meter from the border of the land plot, as required by the court decision. Dismantling the load-bearing wall will cause the destruction of the entire building. In the city, such an action would be tantamount to a terrorist act. In addition to other dangers, there is a real possibility of destruction of infrastructure facilities located in the immediate vicinity of the building. These are power lines, gas pipelines, communication lines. Among the communication lines there is one of federal significance, which is supervised by the FSB.

By provoking the bailiffs to action, Z. pushes them to commit great misfortune. By declaring the need to involve a specialized organization, he, either unknowingly or consciously, creates a picture of the ease of execution of a court decision. There are no such specialized organizations. The participation of several organizations is necessary. Design, including. The role of the city authorities, where Z. intends to carry out a destructive process, is not indicated in any way.

Another reason is legal. The court decision ordered the demolition of the part of the unauthorized building identified by the extension. My building cannot be defined by unauthorized construction. During its construction, legal order was observed. Registration rules are also followed. This is confirmed by a certificate of state registration of ownership of the specified building, issued to the interested person by Rosreestr on the basis of documents certifying compliance with the legal order.

Indicates that the building has no structures that can be identified as an extension. Structurally, the building is an integral two-level structure.

Everything indicated is known to Z. He admits the impossibility of executing the court decision. His repeated statements, including in the Sysertsky District Court, are supporting facts.

Z.'s claims against the bailiffs are unfounded. Failure to do the impossible cannot be determined by inaction. Impossible, within the framework of law and technical potential. The procedure for executing court proceedings is strictly in accordance with the law.

The bailiff did not appear at the court hearing. The reason for the absence is unknown. The time and place of the hearing of the case were duly notified.

Taking into account the opinions of the persons participating in the case, and on the basis of Art. Of the Civil Procedure Code of the Russian Federation, the court determined to consider the case at this appearance.

After listening to the explanations of the applicant’s representative, an interested party, and examining the case materials, the court comes to the following conclusion.

According to Art. of the Civil Procedure Code of the Russian Federation, an application to challenge the decisions of an official of the bailiff service, his actions (inaction) is considered in the manner prescribed by Chapters 23 and 25 of this Code, with the exceptions and additions provided for by this article.

Part 1 of Article 254 of the Civil Procedure Code of the Russian Federation provides for the right of a citizen or organization to challenge in court a decision, action (inaction) of a government body, local government body, official, state or municipal employee if they believe that their rights and freedoms have been violated.

In accordance with Article 255 of the Civil Procedure Code of the Russian Federation, decisions, actions (inaction) of state authorities, local government bodies, officials, state or municipal employees contested in civil proceedings include collegial and individual decisions and actions (inaction), as a result of which: the rights and freedoms of a citizen are violated; obstacles have been created to the citizen’s exercise of his rights and freedoms; a citizen has been unlawfully assigned any duty or has been unlawfully held accountable.

According to Part 1 of Art. 121 of the Federal Law “On Enforcement Proceedings”, the decisions of the bailiff and other officials of the bailiff service, their actions (inaction) regarding the execution of the executive document can be appealed by the parties to the enforcement proceeding, other persons whose rights and interests are violated by such actions (inaction) , in order of subordination and challenged in court.

In accordance with Art. 122 of the Federal Law “On Enforcement Proceedings”, a complaint against a decision of an official of the bailiff service, his actions (inaction) is filed within ten days from the date the bailiff or other official issued a decision, committed an action, established the fact of his inaction or refused to challenge . A person who was not notified of the time and place of action shall file a complaint within ten days from the day when this person learned or should have known about the adoption of a decision or the commission of actions (inaction).

Similar provisions are contained in Part 2 of Art. Civil Procedure Code of the Russian Federation, according to which, an application to challenge the decisions of an official of the bailiff service, his actions (inaction) is filed with the court in the area of ​​\u200b\u200bactivity of which the specified official performs his duties, within ten days from the date of the decision, commission of actions or from the day when the claimant, debtor or persons whose rights and interests were violated by such a resolution, actions (inaction) became aware of the violation of their rights and interests.

Based on the writ of execution No. 40817810604900317040 from DD.MM.YYYY, issued by the Sysertsky District Court, bailiff B. initiated enforcement proceedings No. 40817810604900317040 against the debtor D. in favor of the claimant Z., subject of execution: to eliminate the obstacle to the use of land plot No. 40817810604900317040, which is confirmed by the resolution to initiate enforcement proceedings dated DD.MM.YYYY.

In accordance with Part 1.2 of Article 14 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”, decisions on issues of enforcement proceedings made by the bailiff, the chief bailiff of the Russian Federation, the chief judicial bailiff of a constituent entity of the Russian Federation, senior bailiff and their deputies (hereinafter also referred to as an official of the bailiff service) from the date of sending (presentation) of the writ of execution for execution, are formalized by decisions of an official of the bailiff service.

From the materials of the enforcement proceedings presented to the court, it is clear that to date the requirements of the enforcement document have not been fulfilled.

During the enforcement proceedings, the following enforcement actions were carried out: demands were sent to D. to execute the court decision and provide the bailiff with supporting documents: DD.MM.YYYY

The act of execution dated DD.MM.YYYY established that the court decision was not executed by debtor D.

Due to the fact that the court decision by the debtor D. was not executed by Z., it was proposed to find a specialized organization and carry out the demolition of the unauthorized building "" at a distance of at least 1 meter from the border of land plots No. plot No. 40817810604900317040 on street k., cadastral number No. 40817810604900317040, bring this plot to its original condition. These expenses will be recovered from D.

DD.MM.YYYY D. was again required to execute the court decision.

DD.MM.YYYY, on the basis of the act of execution, it was established that the court decision of D. was not executed. DD.MM.YYYY the collector Z. was again asked to execute the court decision, with the costs of execution being allocated to the debtor D.

DD.MM.YYYY D. demands for execution of the court decision were again made.

DD.MM.YYYY D. was charged an enforcement fee in the amount of

DD.MM.YYYY the bailiff applied to the court with an application to terminate enforcement proceedings in connection with newly discovered circumstances (providing a certificate of state registration of ownership of real estate, namely a land plot located at the address: , cadastral number No. 40817810604900317040 .

By the ruling of the Sysertsky District Court dated DD.MM.YYYY, the application of the bailiff of the Department of the Federal Bailiff Service for K. to terminate enforcement proceedings No. 40817810604900317040 initiated by DD.MM.YYYY was denied.

The appeal ruling of the Sverdlovsk Regional Court dated DD.MM.YYYY left the ruling of the Sysertsky District Court unchanged, and D.’s private complaint was not satisfied.

Also included in the materials of the enforcement proceedings is Z.’s complaint to the Office of the Federal Bailiff Service for the Sverdlovsk Region about the actions of the bailiff. However, the materials of the enforcement proceedings do not contain a procedural decision on this complaint.

The materials of the enforcement proceedings do not contain any other documents confirming the execution by the bailiff of actions aimed at executing the court decision.

Thus, the court found that from DD.MM.YYYY, that is, for more than a year, the bailiff did not take any actions aimed at executing the court decision.

In accordance with Article 2 of Federal Law N 229-FZ "On Enforcement Proceedings", the tasks of enforcement proceedings are the correct and timely execution of judicial acts, acts of other bodies and officials, and in cases provided for by the legislation of the Russian Federation, the execution of other documents in order to protect violated rights, freedoms and legitimate interests of citizens and organizations.

Enforcement of judicial acts is entrusted to the relevant bailiff services; the direct implementation of functions for the execution of judicial acts is entrusted to bailiffs (Article 5 of Federal Law No. 229-FZ).

According to Articles 12, 13 of the Federal Law of July 21, 1997 N 118-FZ “On Bailiffs”, the bailiff in the process of compulsory execution of judicial acts is obliged to take measures for the timely, complete and correct execution of enforcement documents.

In accordance with Art. 105 of the Federal Law “On Enforcement Proceedings”, in cases of failure by the debtor to fulfill the requirements contained in the writ of execution within the period established for voluntary execution, as well as his failure to comply with the writ of execution, subject to immediate execution, within 24 hours from the date of receipt of a copy of the bailiff’s decision - executor to initiate enforcement proceedings, the bailiff issues a resolution to collect the enforcement fee and sets the debtor a new deadline for execution. If the debtor fails to fulfill the requirements contained in the writ of execution, without good reason, within the newly established period, the bailiff draws up a protocol on the administrative offense against the debtor in accordance with the Code of the Russian Federation on Administrative Offenses and sets a new deadline for execution. If the participation of the debtor is not necessary to fulfill these requirements, then the bailiff will organize execution in accordance with the rights granted to him by this Federal Law.

By virtue of Part 2 of Article 68 of this Law, enforcement measures are applied by the bailiff after the initiation of enforcement proceedings. If, in accordance with this Federal Law, a period is established for the voluntary fulfillment of the requirements contained in the executive document, then measures of compulsory execution are applied after the expiration of such a period.

Thus, Article 107 of Federal Law No. 229-FZ defines the specifics of fulfilling the requirement contained in the executive document to vacate a land plot, to demolish a structure, building or structure or their individual structures.

According to Part 8 of this article, in order to force the release of a land plot or the demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve the appropriate specialized organization.

In accordance with Part 9 of Article 107 of Federal Law N 229-FZ, in order to ensure the forced eviction and release of non-residential premises, land or the demolition of a structure, building or structure or their individual structures, the bailiff may offer the claimant to bear the costs of applying enforcement measures with their subsequent compensation at the expense of the debtor.

In addition, the Federal Bailiff Service of the Russian Federation dated March 31, 2014, developed and approved “Methodological recommendations for the execution of judicial acts on the demolition of unauthorized buildings” (the previously existing Methodological Recommendations became invalid due to the publication of these).

According to paragraph 2.4 of the Methodological Recommendations, its scope can be applied when fulfilling the requirements of executive documents on the release of land plots by demolishing buildings or their individual parts, on the demolition of individual elements of buildings and structures (floors, superstructures, extensions) and other executive documents of a similar nature.

In this case, the demolition of structures, buildings or structures located on a land plot or their individual structures is carried out if this is indicated in the executive document, in accordance with the provisions of Article 107 of the Law.

For the purpose of forced demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve the appropriate specialized organization in accordance with the provisions of the Law.

If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff about this, who, after checking the materials of the enforcement proceedings and establishing the fact of the full application of compulsory measures in accordance with the provisions of Article 105 of the Law, submits a report to the name of the head of the relevant territorial body, which sets out the essence of the requirements of the executive document of a non-property nature, and also describes in chronological order the actions taken to fulfill the requirements of the executive document.

The costs of demolishing an unauthorized structure are related to the costs of carrying out enforcement actions and are subject to reimbursement at the expense of the debtor in accordance with Chapter 16 of the Law “On Enforcement Proceedings”.

The sequence of actions of employees of territorial bodies of the FSSP of Russia to reimburse expenses for carrying out enforcement actions is determined by the Methodological Recommendations for organizing work for reimbursement of expenses for carrying out enforcement actions dated DD.MM.YYYY N 01-10 (clause 4.6).

Moreover, taking into account the specifics of the subject of execution, the Methodological Recommendations prescribe, when fulfilling the requirements of executive documents on the demolition of unauthorized buildings, to be guided by internal indicators characterizing the level of effectiveness of the measures taken, established by the letter of the FSSP of Russia dated DD.MM.YYYY N 12/01-28214 -TI.

Methodological recommendations for the execution of judicial acts on the demolition of unauthorized buildings explain the procedure for actions of both territorial divisions and the Federal Bailiff Service of the constituent entities of the Russian Federation in fulfilling the requirements of the writ of execution of this category.

If the requirements of the writ of execution are fulfilled in the manner prescribed by Article 107 of the Federal Law “On Enforcement Proceedings” and the specified Methodological Recommendations, the tasks of the enforcement proceedings for the period from the date of initiation of the enforcement proceedings would be completed in a timely and correct manner.

The requirement of a writ of execution does not impose the obligation to demolish an unauthorized structure on the service of bailiffs and indicates the demolition of buildings at the expense of the debtors. However, this circumstance does not relieve department officials from fulfilling the duties assigned to them by law and job description.

From the content of Article 107 of the Federal Law “On Enforcement Proceedings” it follows that this article of the Law regulates the execution of the requirements of the writ of execution for the demolition of an unauthorized building, for the vacancy of a land plot, and for the debtor’s obligation to vacate a land plot. Parts 3 and 4 of Article 107 of the Law clearly provide a list of actions that include the release of the land plot specified in the executive document from movable and immovable property. It is indicated that the demolition of a structure, building or structure or their individual structures includes dismantling, dismantling or destruction of the structure, building or structure specified in the executive document, or their individual structures, regardless of the type, purpose and degree of completion, as well as the removal of construction waste .

Fulfillment of the requirements of the writ of execution of the specified category does not depend on at whose expense the demolition of buildings or the release of a land plot should be carried out. The levers specified in Article 107 of the Law “On Enforcement Proceedings”, in the Methodological Recommendations, are subject to application in the event of failure by the debtor to voluntarily comply with the requirements of the writ of execution within the established time frame.

Thus, in order to execute the writ of execution containing the requirement that the debtor at his own expense demolish the buildings specified in the writ of execution and vacate the land plot occupied by unauthorized buildings, the bailiff was obliged to be guided precisely by the provisions of Articles 68, 107 of Federal Law No. 229- Federal Law, and, accordingly, take measures to clear the land from buildings, and draw up an act based on the results of the relevant actions.

According to the materials of the enforcement proceedings, the bailiff repeatedly issued demands to the debtor for the execution of the court decision, in addition, there is no information about sending these demands to the debtor in the materials of the enforcement proceedings. It also follows from the case materials that the decision to collect the enforcement fee from D. in connection with the failure to execute the writ of execution within the period established by law was issued once. Administrative liability under Art. of the Russian Federation for failure to comply with the requirements of the writ of execution without good reason, D. was not brought in by the bailiff. No other actions aimed at enforcing the court decision were taken within the framework of enforcement proceedings.

At the same time, in accordance with Art. 64 of the Federal Law “On Enforcement Proceedings”, enforcement actions are actions performed by a bailiff in accordance with this Federal Law, aimed at creating conditions for the application of enforcement measures, as well as forcing the debtor to complete, correct and timely fulfillment of the requirements contained in the executive document.

The provisions of the Federal Law “On Enforcement Proceedings” grant the bailiff the right to apply such enforcement measures as the commission by the bailiff on behalf and at the expense of the debtor of the action specified in the executive document, including the demolition of an unauthorized building, in the event if such an action can be performed without the personal participation of the debtor.

As follows from the case materials, the bailiff did not provide evidence of the impossibility of executing the enforcement document without the personal participation of the debtor with the subsequent collection of enforcement fees and expenses for carrying out enforcement actions from him in accordance with paragraphs. 7 clause 3 art. 68 of the Federal Law "On Enforcement Proceedings". Also in the case there is no information about the bailiff taking any measures aimed at performing on behalf and at the expense of the debtor the action specified in the executive document.

Methodological recommendations developed by the Federal Bailiff Service of the Russian Federation for the execution of judicial acts on the demolition of unauthorized buildings also provide for, in the event of a debtor’s failure to comply with a court decision, the application by the bailiff to the debtor of all measures aimed at fulfilling the requirements of the executive document, in particular, the issuance of a resolution on temporary restrictions on the debtor's departure from the Russian Federation, as well as organizing the execution of a court decision without the participation of the debtor at the expense of the federal budget, with subsequent reimbursement by the debtor of the costs of demolishing the building.

The inaction of the bailiff led to a delay in the execution of the court decision, which violated Art. The Russian Federation has the right to judicial protection, including the right to execution of a judicial act within a reasonable time.

Thus, taking into account that the bailiff for a long time did not take effective and sufficient measures for the real and timely fulfillment of the requirements of the writ of execution, the court comes to the conclusion that the inaction of the bailiff, expressed in a long-term failure to fulfill the requirements contained in the writ of execution, is illegal. sheet of the Sysertsky District Court of the Sverdlovsk Region.

D.'s arguments that the bailiff has objective reasons that prevent the execution of the court decision, such as the impossibility of demolishing part of the building due to its design, namely, the demolition of a load-bearing wall will cause the collapse of the entire building, as well as the fact that at present there is no annex as an object, but there is a single structure for which a certificate of state registration of rights has been received, the court rejects it because it has no legal significance for the case and justifies the inaction of the bailiff.

Based on the above, in accordance with Art. Art. - Civil Procedure Code of the Russian Federation, court

DECIDED:

Z.'s application to recognize the inaction of the bailiff of the Sysert district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal is satisfied.

Recognize the inaction of the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal.

Oblige the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region to eliminate the violations committed.

The decision can be appealed on appeal to the judicial panel for civil cases of the Sverdlovsk Regional Court within a month from the date the court decision was made in final form, by filing an appeal through the Sysertsky District Court.

Judge: Torichnaya M.V.

Court: