Chapter 4. RENOVATION AND RE-PLANNING OF PREMISES IN AN APARTMENT BUILDING
Article 25. Types of reconstruction and redevelopment of premises in an apartment building
(as amended by Federal Law No. 558-FZ dated December 27, 2018)
1. Reconstruction of premises in an apartment building is the installation, replacement or transfer of utility networks, sanitary, electrical or other equipment that requires changes to the technical passport of the premises in an apartment building. (as amended by Federal Law No. 558-FZ dated December 27, 2018)
2. Redevelopment of a premises in an apartment building is a change in its configuration, requiring a change in the technical passport of the premises in an apartment building. (as amended by Federal Law No. 558-FZ dated December 27, 2018)
Article 26. Grounds for reconstruction and (or) redevelopment of premises in an apartment building
(as amended by Federal Law No. 558-FZ dated December 27, 2018)
1. Redevelopment and (or) redevelopment of premises in an apartment building are carried out in compliance with the requirements of the law in agreement with the local government body (hereinafter referred to as the body carrying out the approval) on the basis of a decision made by it. (as amended by Federal Law No. 558-FZ dated December 27, 2018)
2. To carry out the reconstruction and (or) redevelopment of premises in an apartment building, the owner of this premises or a person authorized by him (hereinafter in this chapter - the applicant) to the authority carrying out the approval at the location of the premises being rebuilt and (or) replanned in the apartment building directly or through the multifunctional center in accordance with the interaction agreement concluded by them in the manner established by the Government of the Russian Federation: (as amended by Federal Laws dated July 28, 2012 No. 133-FZ, dated December 27, 2018 No. 558-FZ)
1) an application for reconstruction and (or) redevelopment in the form approved by the federal executive body authorized by the Government of the Russian Federation; (as amended by Federal Law No. 160-FZ dated July 23, 2008)
2) title documents for the premises being rebuilt and (or) replanned in an apartment building (originals or notarized copies); (as amended by Federal Law No. 558-FZ dated December 27, 2018)
3) a project for the reconstruction and (or) redevelopment of the premises being rebuilt and (or) replanned in an apartment building, prepared and executed in accordance with the established procedure, and if the reconstruction and (or) redevelopment of the premises in an apartment building is impossible without attaching part of the common property in the apartment building to this premises , also the protocol of the general meeting of owners of premises in an apartment building on the consent of all owners of premises in an apartment building for such reconstruction and (or) redevelopment of premises in an apartment building, provided for in Part 2 of Article 40 of this Code; (as amended by Federal Law No. 558-FZ dated December 27, 2018)
4) technical passport of the premises being rebuilt and (or) replanned in an apartment building; (as amended by Federal Law No. 558-FZ dated December 27, 2018)
5) consent in writing of all members of the tenant’s family (including temporarily absent family members of the tenant) occupying the rebuilt and (or) redesigned residential premises on the basis of a social tenancy agreement (if the applicant is authorized by the landlord to submit the documents provided for in this paragraph the tenant of the residential premises being rebuilt and (or) replanned under a social tenancy agreement);
6) the conclusion of the body for the protection of architectural, historical and cultural monuments on the admissibility of reconstruction and (or) redevelopment of premises in an apartment building, if such premises or the house in which it is located is an architectural, historical or cultural monument. (as amended by Federal Law No. 558-FZ dated December 27, 2018)
2.1. The applicant has the right not to submit the documents provided for in paragraphs 4 and 6 of part 2 of this article, as well as in the event that the right to the rebuilt and (or) replanned premises in an apartment building is registered in the Unified State Register of Real Estate, the documents provided for in paragraph 2 of part 2 of this article . To consider an application for reconstruction and (or) redevelopment of premises in an apartment building, the approval authority at the location of the premises being rebuilt and (or) replanned in an apartment building requests the following documents (copies thereof or information contained in them), if they have not been submitted by the applicant on his own initiative: (as amended by Federal Laws dated June 2, 2016 No. 175-FZ, dated July 3, 2016 No. 361-FZ, dated December 27, 2018 No. 558-FZ)
1) title documents for the premises being rebuilt and (or) replanned in an apartment building, if the right to it is registered in the Unified State Register of Real Estate; (as amended by Federal Laws dated July 3, 2016 No. 361-FZ, dated December 27, 2018 No. 558-FZ)
2) technical passport of the premises being rebuilt and (or) replanned in an apartment building; (as amended by Federal Law No. 558-FZ dated December 27, 2018)
3) the conclusion of the body for the protection of architectural, historical and cultural monuments on the admissibility of reconstruction and (or) redevelopment of premises in an apartment building, if such premises or the house in which it is located is an architectural, historical or cultural monument. (as amended by Federal Law No. 558-FZ dated December 27, 2018) (Part 2.1 introduced by Federal Law No. 383-FZ dated December 3, 2011)
3. The body carrying out the approval does not have the right to require the applicant to submit other documents other than documents, the request of which from the applicant is allowed in accordance with parts 2 and 2.1 of this article. The applicant is issued a receipt of documents from the applicant indicating their list and the date of their receipt by the body carrying out the approval, as well as indicating the list of documents that will be received upon interdepartmental requests. In case of submission of documents through a multifunctional center, a receipt is issued by the specified multifunctional center. State bodies, local self-government bodies and organizations subordinate to state bodies or local self-government bodies, which have at their disposal the documents specified in Part 2.1 of this article, are obliged to send to the body carrying out the approval the documents requested by such body (their copies or the information contained in them) . The requested documents (their copies or the information contained therein) may be submitted on paper, in the form of an electronic document, or in the form of copies of the requested documents certified by an authorized person, including in the form of an electronic document. (Part 3 as amended by Federal Law dated December 3, 2011 No. 383-FZ (as amended on July 28, 2012))
4. The decision to approve or refuse approval must be made based on the results of consideration of the relevant application and other documents submitted in accordance with parts 2 and 2.1 of this article by the body carrying out the approval, no later than forty-five days from the date of submission of documents to this body , the obligation to submit which in accordance with this article is assigned to the applicant. If the applicant submits the documents specified in Part 2 of this article through the multifunctional center, the period for making a decision on approval or refusal of approval is calculated from the day the multifunctional center transmits such documents to the body carrying out the approval. (Part 4 as amended by Federal Law dated December 3, 2011 No. 383-FZ (as amended on July 28, 2012))
5. The body carrying out the approval, no later than three working days from the date of the decision on approval, issues or sends to the address specified in the application, or through the multifunctional center, a document confirming the adoption of such a decision to the applicant. The form and content of this document are established by the federal executive body authorized by the Government of the Russian Federation. If an application for reconstruction and (or) redevelopment is submitted through a multifunctional center, a document confirming the decision is sent to the multifunctional center, unless another method of receiving it is specified by the applicant. (as amended by Federal Laws No. 160-FZ dated July 23, 2008, No. 133-FZ dated July 28, 2012)
6. The document provided for in Part 5 of this article is the basis for the reconstruction and (or) redevelopment of premises in an apartment building. (as amended by Federal Law No. 558-FZ dated December 27, 2018)
Article 27. Refusal to approve the reconstruction and (or) redevelopment of premises in an apartment building
(as amended by Federal Law No. 558-FZ dated December 27, 2018)
1. Refusal to approve the reconstruction and (or) redevelopment of premises in an apartment building is permitted in the following cases: (as amended by Federal Law No. 558-FZ of December 27, 2018)
1) failure to submit documents specified in Part 2 of Article 26 of this Code, the obligation to submit which, taking into account Part 2.1 of Article 26 of this Code, is assigned to the applicant; (as amended by Federal Law dated December 3, 2011 No. 383-FZ)
1.1) receipt by the body carrying out the approval of the response of a state authority, local government body or an organization subordinate to a state authority or local government body to an interdepartmental request indicating the absence of a document and (or) information necessary for carrying out reconstruction and (or) redevelopment premises in an apartment building in accordance with Part 2.1 of Article 26 of this Code, if the relevant document was not submitted by the applicant on his own initiative. Refusal to approve the reconstruction and (or) redevelopment of premises in an apartment building on the specified basis is permitted if the body carrying out the approval, after receiving such a response, notified the applicant about the receipt of such a response, invited the applicant to submit the document and (or) information necessary for carrying out reconstruction and (or) redevelopment of premises in an apartment building in accordance with Part 2.1 of Article 26 of this Code, and did not receive such a document and (or) information from the applicant within fifteen working days from the date of sending the notification; (clause 1.1 introduced by Federal Law dated December 3, 2011 No. 383-FZ; as amended by Federal Law dated December 27, 2018 No. 558-FZ)
2) submission of documents to the improper authority;
3) non-compliance of the project for reconstruction and (or) redevelopment of premises in an apartment building with the requirements of the law. (as amended by Federal Law No. 558-FZ dated December 27, 2018)
2. A decision to refuse approval for the reconstruction and (or) redevelopment of premises in an apartment building must contain the grounds for refusal with a mandatory reference to the violations provided for in Part 1 of this article. (as amended by Federal Law No. 558-FZ dated December 27, 2018)
3. A decision to refuse approval for the reconstruction and (or) redevelopment of premises in an apartment building is issued or sent to the applicant no later than three working days from the date of such decision and can be appealed by the applicant in court. (as amended by Federal Law No. 558-FZ dated December 27, 2018)
Article 28. Completion of reconstruction and (or) redevelopment of premises in an apartment building
(as amended by Federal Law No. 558-FZ dated December 27, 2018)
1. The completion of the reconstruction and (or) redevelopment of premises in an apartment building is confirmed by an act of the acceptance committee. (as amended by Federal Law No. 558-FZ dated December 27, 2018)
2. The acceptance committee’s report must be sent by the body carrying out the approval to the rights registration body. (as amended by Federal Laws No. 66-FZ dated May 13, 2008, No. 361-FZ dated July 3, 2016)
Article 30 of the Housing Code of the Russian Federation. Rights and obligations of the owner of residential premises (current version)
1. The term “property right”, which is discussed in Chapter 5 of the commented Code, is understood in two meanings: the right of ownership in the objective sense and the right of ownership in the subjective sense.
Property rights in the objective sense are a set of legal norms governing property relations. The right of ownership in the subjective sense is a legally secured ability of a person to exercise the powers of ownership, use and disposal of a thing belonging to him. The content of property rights is the totality of the powers included in it. This set includes three powers: possession, use and disposal. The right of ownership is the right to actually possess a thing, to maintain it in one’s own household. Since such ownership is based on a legal basis (title), it is called title ownership. The right to use is the right to extract useful properties from a thing, satisfy one’s needs, and receive benefits. The owner can transfer the right to use a thing to another person on the basis of a concluded agreement. The right of disposal is the right to determine the legal and actual fate of a thing.
Property rights of persons who are not owners are rights derived from and dependent on the right of ownership, arising at the will of the owner or as directed by law and exercised within the limits established by an agreement with the owner or by law. Property rights include primarily the rights provided for in Art. 216 of the Civil Code: the right of economic management, operational management, lifelong inheritable ownership of a land plot, permanent (perpetual) use of a land plot, easements.
Residential premises can be the object of various property rights (although not all, in particular, they cannot be the object of lifelong inheritable ownership, permanent perpetual use of a land plot and some others). First of all, they represent a special object of such a fundamental property right as the right of ownership. All other property rights are derived from it, and, in addition, they are limited in the scope of powers compared to the right of ownership.
In paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 N 14 “On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation” it was noted that when considering disputes arising in connection with the exercise by the owner of his powers under possession, use and disposal of residential premises belonging to him, “courts should take into account that the law establishes limits for the exercise of ownership rights to residential premises, which are that the owner is obliged to: use the residential premises for its intended purpose, that is, for the residence of citizens (Part 1 of Article 17 of the Housing Code of the Russian Federation, paragraph 2 of Article 288 of the Civil Code of the Russian Federation), maintain residential premises in proper condition, preventing mismanagement of them, respect the rights and legitimate interests of neighbors, rules for the use of residential premises, as well as rules for maintaining the common property of premises owners in an apartment building ( Part 4 of Article 30 of the RF Housing Code). The use of residential premises for carrying out professional activities or individual entrepreneurial activities is permitted in compliance with the provisions established by parts 2 and 3 of Article 17 of the RF LC, paragraph 3 of Article 288 of the RF Civil Code.
Violation of the limits established by law for the exercise of ownership of residential premises entails the application to the owner of various types of liability measures provided for by law, for example administrative in the form of a warning or fine (Articles 7.21, 7.22 of the Code of the Russian Federation on Administrative Offences), civil in the form of deprivation of property rights for residential premises (Article 293 of the Civil Code of the Russian Federation).”
2. Part 2 of the commented article talks about the peculiarities of concluding agreements on the transfer of residential premises for use, depending on who they are transferred for use. Thus, the owner of a residential premises can provide it to a citizen under a rental agreement, an agreement for gratuitous use, or on other legal grounds.
Residential premises can be transferred to a legal entity only under a lease agreement with the obligatory condition of using this premises for the residence of citizens.
The procedure for concluding such agreements is regulated by civil law, and primarily by the Civil Code of the Russian Federation.
3. The burden of maintaining a residential premises is understood, first of all, as the owner’s obligation to pay for utilities associated with maintaining in proper condition not only the residential premises itself, but also the common property in the house (elevators, stairs, etc.), and if we are talking about a room in communal apartment, this means common areas (corridors, toilets, etc.).
The burden of maintaining a home also includes the responsibility to pay property taxes.
Exceptions to this general rule may be provided by treaty or federal law. As an example, Art. 16 of the Law of the Russian Federation of July 4, 1991 N 1541-1 “On the privatization of the housing stock in the Russian Federation”, according to which the former landlord retains the obligation to carry out major repairs of the house in accordance with the standards for the maintenance, operation and repair of the housing stock in the manner established by the housing legislation of the Russian Federation. In the latter case we are talking about Art. 158 of the Housing Code of the Russian Federation (see commentary to it), according to which the owners of residential premises bear the costs of paying for major repairs only partially.
4. Part 4 of the commented article speaks in general terms about the obligation of the owner of a residential premises to maintain this premises in proper condition, preventing mismanagement of it, to respect the rights and legitimate interests of neighbors, the rules for the use of residential premises, as well as the rules for maintaining the common property of the owners .
We are talking about the Rules for the use of residential premises, approved by Decree of the Government of the Russian Federation of January 21, 2006 N 25, and the Rules for the maintenance of common property in an apartment building, established by Decree of the Government of the Russian Federation of August 13, 2006 N 491.
5. Separately, Part 5 of the commented article talks about the additional obligation of the owner of a residential premises to ensure the management of municipal solid waste (MSW) by concluding an agreement with a regional operator for the management of MSW. It also explains the concept of municipal solid waste management.
The situation with MSW is difficult, especially for owners of individual residential buildings. Everywhere, owners of individual residential buildings, as well as dacha, garden and vegetable plots of land, or chairmen and other authorized persons of the relevant non-profit associations (garden non-profit partnerships, dacha non-profit partnerships and partnerships, etc.) do not enter into appropriate agreements for the provision of removal services, transportation and disposal of waste. Citizens often use garbage containers installed by local governments or specialized organizations for these purposes, or even throw out their garbage and other waste on nearby land plots, highway rights-of-way or in the forest, forming numerous spontaneous landfills, often near urban and rural settlements.
As correctly noted in the literature, the forms of legal influence on citizens in order to conclude such agreements with them, as well as the possibility of bringing to legal liability those citizens who evade their conclusion, remain insufficiently clear. This quite naturally raises the questions: will it be necessary to prove that these citizens actually use municipal containers, or, due to the mandatory nature of the law, this fact does not require proof, and also on what basis should we collect the cost of services provided in the absence of an agreement for the collection, transportation and disposal of solid waste?
———————————
Ponomarev M.V., Filatkina Yu.E. Legal regulation of municipal solid waste management: practice, problems, prospects // Advocate. 2021. N 1. P. 24.
There is no answer to this question yet.
Comment source:
“ARTICLE-BY-ARTICLE COMMENTARY TO THE HOUSING CODE OF THE RUSSIAN FEDERATION”
S.P. Grishaev, 2018
Official website of the Administration and Duma of the Border Municipal District of Primorsky Krai
Article 19. Housing stock
Article 21. Insurance of residential premises
Ruling of the Supreme Court of the Russian Federation dated 06/07/2017 N 307-KG17-5968 in case N A56-31404/2016 Requirement: On cassation review of judicial acts in the case of invalidating an order. Decision: The transfer of the case to the Judicial Collegium for Economic Disputes of the Armed Forces of the Russian Federation was refused, since the courts, having established that the order was issued by the authorized body, based on the proof of the fact that the partnership incorrectly calculated payments for utility services due to its use of incorrect data on the area of residential premises, came to the conclusion that the order issued by the housing inspection complies with the requirements of the law. In their conclusions, the courts were guided by Articles 20, 153 of the Housing Code of the Russian Federation, as well as the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation dated May 6, 2011 N 354.
Ruling of the Supreme Court of the Russian Federation dated 05.05.2017 N 302-KG17-4861 in case N A10-780/2016 Requirement: On cassation review of judicial acts in the case of invalidating an order. Decision: The transfer of the case to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation was refused, since the courts came to the correct conclusion that the total area of the premises included in the common property in an apartment building should include not only the area of the stairwells, but and area of attics, technical basements; an exception when determining the total area of premises included in the common property in an apartment building is only cold water supply for common house needs. In satisfying the stated requirement, the courts were guided by Articles 198, 201 of the Arbitration Procedural Code of the Russian Federation, Articles 20, 153, 156, 158 of the Housing Code of the Russian Federation, Rules No. 354, Appendix No. 2 to the said Rules and proceeded from the fact that the total area of the premises included in the composition of the common property in an apartment building, not only the area of staircases, but also the area of attics and technical basements must be included; an exception when determining the total area of premises included in the common property in an apartment building is only cold water supply for common house needs.
Ruling of the Supreme Court of the Russian Federation dated April 20, 2017 N 310-KG17-293 in case N A36-1870/2016 Requirement: On cassation review of judicial acts in the case of invalidating an order of an authorized body. Decision: The transfer of the cassation appeal for consideration in a court session of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation was refused, since the work on maintenance and repair of fire-fighting equipment should have been included in the list of works and services for the maintenance and current repair of common property in an apartment building. Taking into account the above, the courts came to the conclusion that the content of the contested order corresponds to the essence of the identified violation, is aimed at eliminating it and ensuring compliance with mandatory requirements, is actually enforceable, issued by an authorized official and within the competence of the housing inspection, on legal grounds, provided for in Part 4.2 of Article 20 of the Housing Code, in compliance with the procedure.
Ruling of the Supreme Court of the Russian Federation dated April 14, 2017 N 308-KG17-1618 in case N A63-14189/2015 Requirement: On cassation review of judicial acts in the case of declaring illegal the actions of the authorized body to conduct an unscheduled on-site inspection, a protocol on an administrative offense. Decision: The transfer of the case to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation was refused, since there was no evidence that the company had taken all measures within its power to maintain apartment buildings in proper condition. Having assessed the evidence presented, guided by Articles 71, 198, 201 of the Arbitration Procedural Code of the Russian Federation, Articles 20, 161 of the Housing Code of the Russian Federation, Article 10 of the Federal Law of December 26, 2008 N 294-FZ “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control ( supervision) and municipal control", Article 36 of the Federal Law of December 30, 2009 N 384-FZ "Technical Regulations on the Safety of Buildings and Structures", Rules No. 170, Rules for the Maintenance of Common Property in an Apartment Building, approved by Decree of the Government of the Russian Federation dated August 13, 2006 No. 491, taking into account the decision of the magistrate of court district No. 3 of the Industrial District of Stavropol that entered into legal force, the courts came to the conclusion that there were gross violations of the requirements of housing legislation in the actions of the company.
Ruling of the Supreme Court of the Russian Federation dated April 13, 2017 N 309-KG17-2516 in case N A76-4834/2016 Requirement: On cassation review of judicial acts in the case of invalidating the clause of the order to eliminate identified violations of housing legislation. Decision: The transfer of the cassation appeal for consideration in a court session of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation was refused, since it was established that the appealed order issued by an authorized person met the requirements of the current legislation. Guided by 20, 45, 46, 162 of the Housing Code and the Rules for the implementation of activities for the management of apartment buildings, approved by Decree of the Government of the Russian Federation of May 15, 2013 N 416, having examined and assessed the evidence presented in accordance with the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation, the court rightfully refused to satisfy the requirements, since it established the compliance of the appealed order in the contested part, issued by an authorized person, with the requirements of the current legislation.
Resolution of the Supreme Court of the Russian Federation dated March 28, 2017 N 19-AD17-6 Requirement: On the cancellation of acts of bringing to responsibility provided for in Part 1 of Art. 7.23.3 of the Code of Administrative Offenses of the Russian Federation, for violation of the rules for carrying out entrepreneurial activities in the management of apartment buildings. Decision: The claim was denied, since it was established that the company, which carries out business activities of managing apartment buildings on the basis of management agreements, did not take all measures depending on it to comply with the rules for carrying out these activities; an administrative penalty was imposed on the company according to the rules established by the Code of Administrative Offenses of the Russian Federation , the statute of limitations and the procedure for bringing the company to administrative responsibility have not been violated. Part 4.2 of Article 20 of the Housing Code of the Russian Federation establishes that the grounds for conducting an unscheduled inspection, along with the grounds specified in Part 2 of Article 10 of the Federal Law of December 26, 2008 N 294-FZ, are receipts to the state housing supervision body, the municipal housing authority control, including information from local authorities on facts of violation of the requirements for the maintenance of common property of premises owners in an apartment building and the implementation of current and major repairs of common property in this building, on facts of violation by the management organization of the obligations provided for in Part 2 of Article 162 of this Code . An unscheduled inspection on the specified grounds is carried out without agreement with the prosecutor's office and without prior notification to the inspected organization of the unscheduled inspection.
Ruling of the Supreme Court of the Russian Federation dated March 22, 2017 N 303-KG17-1349 in case N A16-404/2016 Requirement: On cassation review of the decision in the case of invalidating the order. Decision: The transfer of the case to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation was refused, since the courts came to the correct conclusion that the defendant lawfully calculated the amount of payment for the maintenance of common property. Courts of first and appellate instances, guided by Articles 198, 201 of the Arbitration Procedural Code of the Russian Federation, Articles 20, 39, 154, 156, 162 of the Housing Code of the Russian Federation (hereinafter referred to as the Housing Code), Rules for the maintenance of common property in an apartment building, approved by a government decree in the Russian Federation Federation dated 1.08.2006 N 491, the management agreement of the apartment building dated December 30, 2010, refused to satisfy the stated requirement, indicating that the amount of the stipulation for the maintenance and repair of common property in the apartment building should be established based on the results of the decision of the general meeting of owners, and not unilaterally.
Determination of the Constitutional Court of the Russian Federation dated February 28, 2017 N 292-O “On the refusal to accept for consideration the complaint of citizen Anatoly Sergeevich Grigoriev about the violation of his constitutional rights by part 2 of Article 155 of the Housing Code of the Russian Federation” Clause 1 of part 2 of Article 155 of the Housing Code of the Russian Federation, under consideration in conjunction with the provisions of housing legislation on the procedure for concluding and agreeing on the terms of a management agreement for an apartment building (Article 162 of the Housing Code of the Russian Federation), monitoring the activities of management organizations (Article 20 of the Housing Code of the Russian Federation) and ensuring free access to information, including services provided and work performed for the maintenance and repair of common property in an apartment building (parts 10 and 10.1 of Article 161 of the Housing Code of the Russian Federation), ensures timely payment by the owners of premises in an apartment building for consumed utilities and financing of necessary work to manage the apartment building, aimed at maintaining the common property in such a house is in good condition and cannot be considered as violating the constitutional rights of the applicant in the aspect specified by him in the complaint.
Ruling of the Supreme Court of the Russian Federation dated 02/06/2017 N 309-KG16-19619 in case N A71-2460/2016 Requirement: On cassation review of judicial acts on an application to declare illegal inaction during an inspection, expressed in violation of the deadline for conducting an inspection, inconsistency of the specified in the response of the conclusions to the norms of the current legislation, failure to indicate the results of the audit in accordance with the questions posed and the requirements of the law. Decision: The transfer of the case to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation was refused, since the court came to the correct conclusion that the fact that the inaction of the inspectorate violates the rights and legitimate interests of the applicant was not proven. Having re-examined and assessed the presented evidence according to the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation, guided by Articles 20, 45, 46, 162, 164 of the Housing Code and Articles 10, 11, 12, 13, 26 of the Federal Law of December 26, 2008 N 294-FZ “On Protection rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control,” the appellate court, with the conclusions of which the district court agreed, overturned the decision of the first instance in terms of satisfying the requirements, without establishing the inaction of the Inspectorate, which violated the rights and legitimate interests of the applicant.
Ruling of the Supreme Court of the Russian Federation dated January 23, 2017 N 306-KG16-19196 in case N A12-47169/2015 Requirement: On cassation review of judicial acts in the case of challenging the actions of the housing inspection. Decision: The transfer of the case to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation was refused, since the court came to the correct conclusion that the inspectorate unlawfully excluded information about the management of the applicant’s house from the register of licenses, thereby exceeding its authority. Satisfying the stated requirements and recognizing the actions of the inspection as illegal, the courts of the first and appellate instances, having assessed the evidence presented by the parties in the case materials according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, guided by Article 450 of the Civil Code of the Russian Federation, Articles 20, 46, 98, 162, 198 of the Housing Code Code, Federal Law dated 05/04/2011 N 99-FZ “On licensing of certain types of activities”, Rules for the implementation of activities for the management of apartment buildings, approved by Decree of the Government of the Russian Federation dated 05/15/2013 N 416, taking into account the letter of the Ministry of Construction and Housing and Communal Services of the Russian Federation dated 02/24/2015 N 4745-АЧ/04 “On certain issues arising in connection with the implementation of the legislation of the Russian Federation on licensing business activities for the management of apartment buildings”, came to the conclusion that the inspection, having concluded that there was a violation of the conclusion procedure with the management agreement with the company, independently and in the absence of a court decision confirming this conclusion, she unlawfully excluded from the register of licenses information about the applicant’s management of house No. 56, thereby exceeding her authority.
Order of the Ministry of Construction of Russia dated August 17, 2016 N 570/pr On approval of the Methodological Instructions on the procedure for the formation and activities of the licensing commission to ensure the activities of state housing supervision bodies in licensing the management of apartment buildings in a constituent entity of the Russian Federation b) participation of self-regulatory organizations, public associations, others non-profit organizations specified in Part 8 of Article 20 of the Housing Code of the Russian Federation (Collection of Legislation of the Russian Federation, 2005, N 1, Art. 14; 2011, N 30, Art. 4590; 2012, N 26, Art. 3446; N 53, Art. 7596; 2013, N 52, Art. 6982; 2014, N 23, Art. 2937; N 26, Art. 3406; N 30, Art. 4218, Art. 4256; 2015, N 27, Art. 3967; 2021, No. 27, Article 4288, Article 4305, No. 28, Article 4558) (hereinafter referred to as other non-profit organizations, Housing Code), in the activities of the Commission;
Decree of the Government of the Russian Federation dated June 11, 2013 N 493 (as amended on September 13, 2018) “On State Housing Supervision” (together with the “Regulations on State Housing Supervision”) 4. Recommend that government bodies of the constituent entities of the Russian Federation approve within the limits established in the constituent entity of the Russian Federation Federation of staffing levels of government bodies of a constituent entity of the Russian Federation standard of staffing levels of employees of state housing supervision bodies, ensuring the implementation of the powers assigned to such bodies by Article 20 of the Housing Code of the Russian Federation.
Order of the Ministry of Construction of Russia dated January 28, 2016 N 41/pr (as amended on March 30, 2017) “On approval of methodological recommendations for the creation of specialized non-profit organizations carrying out activities aimed at ensuring the overhaul of common property in apartment buildings and ensuring their activities” with Part 1 of Article 20 of the Housing Code of the Russian Federation, control over the regional operator’s compliance with mandatory requirements established in accordance with housing legislation relates to state housing supervision carried out by state housing supervision bodies in the manner established by the highest executive body of state power of a constituent entity of the Russian Federation, taking into account the requirements to the organization and conduct of state housing supervision established by the Regulations on state housing supervision, approved by Decree of the Government of the Russian Federation of June 11, 2013 N 493;
<Letter> Ministry of Construction of Russia dated 10/09/2015 N 32582-АЧ/04 “On certain issues arising in connection with the implementation of licensing control in the field of business activities for the management of apartment buildings” In accordance with Part 5 of Article 20 of the Housing Code of the Russian Federation (hereinafter - Housing Code of the Russian Federation) officials of state housing supervision bodies (hereinafter referred to as the GZHN body), as part of licensing control, have the right to issue orders to stop violations of mandatory requirements for compliance with housing legislation, to eliminate identified violations, to take measures to ensure compliance with mandatory requirements, as well as draw up protocols on administrative offenses related to violations of mandatory requirements.
Order of the Ministry of Regional Development of Russia dated August 23, 2013 N 360 “On approval of methodological recommendations for developing the procedure for implementing state housing supervision in the constituent entities of the Russian Federation, including the procedure for interaction of municipal housing control bodies with the authorized executive authorities of the constituent entities of the Russian Federation carrying out regional housing supervision, and administrative regulations for the execution of functions of state housing supervision and municipal housing control" 10. The name of the regulations is recommended to be determined taking into account the wording corresponding to the wording of the provisions of Article 20 of the Housing Code of the Russian Federation, in accordance with which the functions of state housing supervision and municipal housing control are provided for.
<Letter> of Rosprirodnadzor dated October 15, 2013 N AA-03-03-36/15272 “On sending clarifications” (together with the “Letter” of the Ministry of Natural Resources of Russia dated October 9, 2013 N 12-44/19533 “On sending clarifications on the issue of development PNOOLR") According to subparagraph 2 of paragraph 5 of Article 20 of the Code, a management organization is a legal entity, regardless of its legal form, or an individual entrepreneur engaged in managing an apartment building. In accordance with paragraph 2.3 of Article 161 of the Code, when managing an apartment building, the management organization is responsible to the owners of the premises in the apartment building for the provision of all services and (or) performance of work that ensure the proper maintenance of the common property in this building and the quality of which must meet the requirements of technical regulations and the rules established by the Government of the Russian Federation for the maintenance of common property in an apartment building, for the provision of utilities depending on the level of improvement of the building, the quality of which must comply with the requirements established by the Government of the Russian Federation for the provision, suspension and limitation of the provision of utilities to owners and users of premises in apartment buildings and residential buildings.
<Letter> FTS of Russia “Procedure for calculating the volume of consumption of utility services for general house needs” According to paragraph 3 of the Decree of the Government of the Russian Federation dated 05/06/2011 N 354, clarifications on the application of Rules N 354 are provided by the Ministry of Construction and Housing and Communal Services of the Russian Federation, and state control the compliance of the quality, volume and procedure for the provision of utility services with the requirements established by Rules No. 354 is carried out by authorized executive authorities of the constituent entities of the Russian Federation (State Housing Inspections) in the manner established by the federal executive authority authorized by the Government of the Russian Federation (Ministry of Construction of Russia) in accordance with Article 20 of the Housing Code of the Russian Federation.
Letter of the Ministry of Regional Development of Russia dated 09/06/2012 N 23554-VK/14 <On the procedure for functioning of the State Housing Property Bodies> In accordance with Part 1.1 of Art. 20 of the Housing Code of the Russian Federation, municipal housing control refers to the activities of local government bodies authorized to organize and conduct inspections on the territory of a municipal entity of compliance by legal entities, individual entrepreneurs and citizens with the mandatory requirements established in relation to the municipal housing stock by federal laws and laws of constituent entities of the Russian Federation in the field of housing relations , as well as municipal legal acts. The Ministry of Regional Development of Russia proceeds from the fact that the provisions of Art. 20 of the RF Housing Code on the implementation of municipal housing control in relation to the subject of inspection and the powers of officials of municipal housing control relate only to inspections of compliance with mandatory requirements in relation to the municipal housing stock.
<Letter> of Rospotrebnadzor dated November 14, 2012 N 01/12810-12-32 “On certain current aspects of the legal regulation of housing relations and the functions of Rospotrebnadzor in the field of housing and communal services” At the same time, the new edition of Article 20 of the Housing Code of the Russian Federation not only introduced the concept of state housing supervision, but it has also been established that state housing supervision is exclusively regional state supervision, the general definition of which is given in turn in paragraph 3 of Article 2 of the Federal Law of December 26, 2008 N 294-FZ “On the protection of the rights of legal entities and individual entrepreneurs in the implementation of state control (supervision) and municipal control" (hereinafter referred to as Law No. 294-FZ).
<Letter> FTS of Russia dated 10.10.2012 N DS-7920/5 “On the issue of the functioning of the “Utility Payments Calculator” posted on the website of the FTS of Russia” Clause 161 of the Rules establishes that state control over the compliance of quality, volume and procedure for provision utility services to the requirements established by the Rules are carried out by authorized executive authorities of the constituent entities of the Russian Federation in the manner established by the federal executive authority authorized by the Government of the Russian Federation in accordance with Article 20 of the Housing Code of the Russian Federation.
