Garage in the local area of an apartment building 2021

Quite often in Russian courtyards of apartment buildings you can see garages built in close proximity to the main housing. Sometimes they are right next to each other. In accordance with current legislation, buildings of this kind are illegal, so they can be quickly demolished. But why then can some garages stand for decades near an apartment building, and nothing happens to them? Is it possible to legalize a garage in the local area of an apartment building? How to act correctly in this situation, who to contact?

Is it possible or not?

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The law does not prohibit building a garage near an apartment building if this procedure is carried out in accordance with a number of regulatory requirements.

Construction alone is not enough - the construction will have to be legalized. In most cases, registration is carried out after the unauthorized construction is completely ready.

Law

There are a number of legislative acts that regulate the specifics of construction and further registration of such structures. They are available both in Federal legislation and the Civil Code.

The first option provides for Federal Law No. 93, in accordance with which the features of the dacha amnesty are determined. The introduction of this law into legal force significantly contributed to simplifying the procedure for registering a number of buildings and the land on which they are located. Garages are included in this number.

The Civil Code has four articles regulating the construction of garages in local areas:

Article 222. Here is a list of buildings that can be considered unauthorized.
Article 52. Official rules are established according to which citizens have the opportunity to obtain official permission to conduct capital construction.
Article 263. All available rights of owners to carry out construction work are disclosed.
Article 8. The specifics of the procedure for registering buildings with the help of a statement of claim to the court are regulated.

What applies to the local area

The general property of an apartment building includes the land plot on which the apartment building is located, as well as elements of landscaping and landscaping, other intended for the maintenance, operation and improvement of this apartment building and objects located on the specified land plot (Clause 4, Part 1, Article 36 of the Housing Code of the Russian Federation , paragraphs “e”, paragraphs “g”, paragraph 2 of Rules No. 491).

Traditionally, this entire plot - minus the land that the house itself directly occupies - was called the local area or local land plot (see also, for example, clause 22 of form 2.1, approved by order of the Ministry of Construction of Russia dated December 22, 2014 N 882/ pr, letter of Rospotrebnadzor dated December 7, 2011, ruling of the Samara Regional Court dated September 16, 2016 in case No. 33 a-11524/2016). In other words, a house-adjacent plot was a plot owned by the owners of premises in an apartment building on the right of shared ownership by virtue of Art. 36 of the Housing Code of the Russian Federation (at the same time, the federal legislator did not give a special definition of the term “domestic territory”).

However, the Supreme Court of the Russian Federation, in its decision dated August 21, 2019 N AKPI 19-451, recognized that the adjacent territory may not be the common property of the owners of premises in an apartment building.

Thus, the term “home area” can be used in two different senses:

1. as part of the general property of the apartment building. Issues of maintaining the “common share” local area are regulated by the same acts as the maintenance of other parts of the common property (CP), and the maintenance itself is entrusted to the management company under the management agreement for the apartment building (part 1 of article 161, part 2 of article 162 of the Housing Code of the Russian Federation) ;

2. as an adjacent territory, that is, a public area that is adjacent to a building/land plot, and the boundaries of which are determined by municipal landscaping rules (clause 37 of Article 1 of the Town Planning Code of the Russian Federation). Such a local area is important only in the context of landscaping. Important: the landscaping rules also apply to the local area that is included in the public area.

Garage in the local area of an apartment building

The construction of garages on the adjacent plot is still possible. But future owners will have to prepare carefully, since the registration procedure includes a large number of nuances and pitfalls.

Read about smoking in the stairwell of an apartment building. What is the fee for apartment building management services? See here.

Installation procedure

To ensure that the installation of a garage in the local area of an apartment building is successful, you can use one of the methods indicated in the list:

By obtaining official permission to conduct construction work.
By submitting an official declaration that allows legalization of self-construction.
By going to court.

Where to contact?

If you decide to try to obtain official permission, contact your local municipality's architectural department for assistance. At the same time, visit your local BTI office.

It is also recommended to seek help from the staff of the special Commission, which has a full range of powers to suppress unauthorized construction and squatting.

The main task is to ask the applicant to leave the construction project behind.

Its representatives will determine the unauthorized construction of the facility based on at least three criteria:

lack of official permission for construction;
violation of urban planning standards during the construction of a new building;
During the construction work, land was used that was not allocated for this purpose.

It is important that the residents are not against the fact that you have built a garage on the territory of the apartment building. Otherwise, the likelihood of obtaining the necessary documents, while simultaneously legitimizing the right of ownership of the object, becomes almost zero.

How to get permission?

To build a garage in the courtyard of an apartment building, you will have to obtain official permission. But practice shows that in most cases, documents are drawn up after the property has already been built.

In this case, you need to seek help from BTI representatives, who must issue an official document assigning unauthorized status to the building. To legitimize, you need to go to representatives of the district administration.

Registration of land ownership

To resolve the issue of legitimizing the unauthorized construction of a garage for its subsequent registration as property, you will have to deal with the most difficult problem - land registration. This procedure consists of establishing the legal status that the land plot has. Such an event has a high chance of failure.

From a legal point of view, this is, in fact, an unauthorized seizure of land, because it may belong to:

owners, which are housing cooperatives, housing and communal services, management companies or other organizations;
each of the residents with equal rights;
public housing department or local government.

The only correct option would be to seek help from a court with a corresponding claim. The owner of the building will have to prove that it belongs to him. Accordingly, the issue with the land is resolved only after the official permission, which we mentioned above, is received.

Required documents

In accordance with the Housing Code of the Russian Federation and other regulations, the usual registration of all permits will be impossible, because at the same time it will be necessary to obtain the support of the municipality and residents.

Before contacting special authorities, you will have to prepare in advance the following package of documents for transmission:

Documentation for a plot of land near an apartment building, which confirms the right to build.
Registration certificate with a full description of the garage.
Cadastral plan of the land on which the garage was built or will be built.
Declaration confirming the completion of construction work in a certain area. From the point of view of the legislation in force in 2021, this is one of the most important documents. After all, it includes complete information about the year of construction, the actual address, purpose, area involved, and the list of connected communications.

And this is not a complete list - depending on the characteristics of a particular situation, it may be supplemented.

Find out how to switch to direct management of an apartment building. What is the procedure for terminating the management of an apartment building? Information here.

Where can I get the house register of an apartment building? Details in this article.

Official website of the Supreme Court of the Russian Federation

09:30 08/15/2017 Neighbors cannot deprive a tenant of the right to leave his car near the house; all apartment owners must receive the keys to the barrier enclosing the courtyard. This clarification was made by the Supreme Court (SC) of the Russian Federation, which considered the complaint of a Muscovite whose neighbors deprived her of the right to park her car in the yard. The capital's courts found no violations in such a domestic conflict, but the highest authority indicated that the residents illegally oppressed the rights of their neighbor.

The Housing Code gives owners the right to own, use and dispose of common property in an apartment building, the Supreme Court recalled. However, the unconditional and inalienable right to use the common property of an apartment building belongs to each owner, and not selectively, he notes. In addition, the law does not provide for any means of limiting or depriving the owner of such a right.

In addition, the court points out, the decision of the general meeting of car owners is not provided for by law as a basis for the emergence, change or termination of civil rights and obligations.

Neighbors dispute

A member of the Esthetika Housing Construction Cooperative went to court and asked the servants of Themis to oblige the neighbors to provide her with unhindered access to the yard.

According to the case materials, the members of the cooperative - the owners of the apartments - at a general meeting decided to install barriers to limit access to the yard of unauthorized cars. Initially, the plaintiff received a parking space and was given the keys to the barrier, but later she was effectively banned from both free access to the house and parking in the yard. Moreover, such a ban extended not only to the applicant herself, but also to members of her family.

The decision states that the woman’s rights were limited for violating parking regulations, but what specific actions of the plaintiff are being discussed is not specified.

The applicant repeatedly tried to resolve the conflict peacefully and tried to convince her neighbors to give her a key fob for the barrier; after unsuccessful attempts, she went to court.

However, neither the capital's Meshchansky Court nor the Moscow City Court supported her demands.

Parking as a bonus

The court found that the Esthetika housing cooperative, at a general meeting of apartment owners, decided to fence off the local area and restrict the entry of other people's cars into the yard.

At the same time, the “Regulations on the procedure for entry and parking of vehicles in the local area” were approved. In addition, the meeting established that the decision to provide or refuse a parking space is made exclusively at a general meeting of car owners.

If a decision is made at a general meeting regarding a particular car owner to refuse to provide a parking space, the resident of the house is obliged to immediately vacate the parking space and hand over the access key (key fob) to the chairman of the car owners’ commission, the housing cooperative rules state.

The Moscow courts considered that since the plaintiff was deprived of parking according to the procedure established by Aesthetics, there was no violation of her rights, because the woman has access to her apartment, of which she is the owner, and a parking space is not included in the mandatory “bonus” » to the apartment.

Position of the Armed Forces

The Judicial Collegium for Civil Cases of the Supreme Court found these conclusions to be inconsistent with the requirements of the law.

In her decision, she relied on the norms of the Civil and Housing Codes, as well as on the provisions of the plenums of the Supreme and Supreme Arbitration Court.

Owners of premises in an apartment building, as the legal owners of the land plot on which the house is located and which is necessary for its operation, by virtue of the provisions of Articles 304-305 of the Civil Code, have the right to demand the elimination of any violations of their rights, even if these violations were not connected with deprivation of possession, the court notes.

He also cites paragraph 4 of Article 37 of the Housing Code: allotment in kind and alienation of a share in the right of ownership of common property in an apartment building, as well as the commission of any other actions that lead to the transfer of this share separately from the right of ownership of premises in an apartment building, are prohibited.

Thus, the owner of premises in an apartment building has an unconditional and inalienable right to use the common property of the apartment building, reminds the Supreme Court.

“At the same time, any methods of restricting or depriving the owner of premises in an apartment building of such a right are not provided for by the current legislation,” the decision notes.

The Supreme Court indicated that the Moscow courts, having supported the decision to deprive the plaintiff of the right to parking, referred to the fact that such a measure was provided for by the procedure for using intra-house space established by the housing cooperative, and the fencing of the yard itself complied with the requirements of the capital government decree No. 428-PP “On the procedure for installing fences in adjacent areas in the city of Moscow."

However, the court did not take into account that this resolution of the Moscow government does not regulate the creation and procedure for using parking spaces in a fenced local area, and, consequently, the imposition of any restrictions on the owner’s right to use the local area, including the placement of property on it. her car, the highest authority notes.

In such circumstances, the court’s reference to the fact that the decision of the general meeting of car owners served as a legal basis for limiting the plaintiff’s right to use a parking space that is in common use by the owners of the premises of an apartment building contradicts the above norms of substantive law, as indicated in the decision.

Garage cooperative and its meetings

The provisions of the Civil Code regulate that rights and obligations arise, among other things, from the decisions of meetings, but only in cases provided for by law.

In paragraph 103 of the resolution of the Plenum of the Supreme Court dated June 23, 2015 No. 25, it is explained that decisions of meetings mean decisions of the civil law community, i.e. a certain group of persons empowered to make decisions at meetings, with which the law associates civil consequences that are binding on all persons who had the right to participate in such a meeting, as well as on other persons, if this is established by law or follows from the essence of the relationship.

From the above legal norms and explanations it follows that one of the mandatory conditions for recognizing a decision of a meeting as a basis for the emergence, change or termination of civil rights and obligations is the presence in the law of an indication of civil legal consequences that are mandatory for all persons authorized to participate in such a meeting, he believes Sun.

He also recalls that Article 115 of the Housing Code provides an exhaustive list of governing bodies of the housing cooperative - the general meeting of members of the housing cooperative, a conference, if the number of participants in the general meeting of members of the housing cooperative is more than fifty and this is provided for by the charter of the housing cooperative, as well as the board of the housing cooperative and the chairman housing cooperative board.

As you can see, there is no general meeting of car owners in this article.

“In this connection, the decision of the general meeting of car owners cannot be qualified as entailing civil consequences,” the decision notes.

Thus, the decision of the general meeting of car owners is not provided by law as a basis for the emergence, change or termination of civil rights and obligations and cannot entail civil consequences in the form of restricting the owner’s right to use the adjacent territory of an apartment building, the court emphasizes.

The Supreme Court overturned the ruling and sent the case for a new trial to the appellate court.

Alice Fox

Link to original

How to legitimize if installed unauthorized?

In case of independent construction without permission, the sequence of actions will be as follows:

Seeking help from representatives of the administrative corps of the municipal body.
Receive a complete list of papers for subsequent processing.
Collecting documents and filling out a declaration.
Engaging the support of neighbors who can confirm in writing that there are no complaints.
Waiting for a decision from the administrative body.
Obtaining permits for subsequent registration in Rosreestr.
Appeal to the court to challenge it in court.

The procedure for registering a garage as a property is long, but if the answer is positive from the municipality or court, you have the full right to use the garage at your own discretion.