The GZHN body refuses to make changes to the register of licenses at the request of the management organization for various reasons, which are then often disputed in court. We are talking about a case that reached the Supreme Court of the Russian Federation, in which the question was considered whether the State Housing Inspectorate was right in considering a two-apartment building to be residential and not multi-apartment.
Why did the RF Armed Forces invalidate some requirements No. 938/pr
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The house has two or more apartments with separate exits
Case No. A70-15067/2019 reached the Supreme Court of the Russian Federation, and the main issue that was considered in all instances was determining the status of the house - whether it was multi-apartment or individual residential.
It started with the fact that in Tyumen the administration held an open competition to select a management organization for a building in which there are only two apartments. The management company that won the competition submitted an application and a package of documents to the GZHN body to include the house in the register of regional licenses: copies of the selection protocol and the management agreement with the owners.
Based on the results of consideration of the application, the State Housing Inspectorate refused the company to make changes to the register, citing paragraphs. “a” clause 5 of order No. 938/pr: The MA did not indicate the address of the apartment building in the application, did not attach a copy of the competitive selection protocol and the management agreement. GZHI noted that all the data in the documents does not relate to apartment buildings, but to a residential building, since the apartments, according to the technical documentation, do not have access to common areas, but have separate entrances. The building cannot be classified as an apartment building.
The managing organization did not agree with this position of the GZHI and filed a lawsuit demanding that the department’s refusal be declared illegal and oblige the GZHI to make changes to the register of licenses.
Fences for demolition
The story that reached the country's Supreme Court is typical. In a residential complex consisting of five buildings, one decided to separate itself. The HOA of that building registered a large area around the house for its use and blocked off its own adjacent territory. The Iron Curtain was installed in the middle of the common courtyard, because initially the residential complex was built as a single block. Now one of the buildings has become first among equals. Inside there are children's playgrounds, a sports town, and flower beds.
Residents of other houses, as they say, cannot walk or drive through.
“The owners of the premises in buildings 1, 3, 4, 5 were actually deprived of elements of landscaping and landscaping of the local area intended for the maintenance and operation of all five buildings of the residential complex,” the materials of the Supreme Court say.
The fence restricted residents of the remaining four buildings of the apartment building from passing through the adjacent territory of the residential building, as well as the entry and exit of vehicles, including special equipment: ambulances, firefighters and others.
How did this happen? Formally, everything was according to the law: a land surveying project was developed, public hearings were held, and officials approved new boundaries of the plots. And after the necessary seals were placed, a fence appeared in the yard in November 2021.
One resident was present at the public hearing, and from the building around which the fence was being built
As often happens, it was news to the residents of the remaining buildings that, it turns out, there had been public hearings, supposedly someone was interested in their opinion. But be that as it may, I had to sue.
Lower authorities supported the officials and the fenced building. Like, since all the formalities have been met, then there will be a fence. But this is crafty logic, and it does not comply with the law. The Supreme Court explained in detail how those who decided to take part of the common yard were wrong.
Legal issues of management of apartment buildings are discussed by RG experts in the “Legal Consultation” section
“The Judicial Collegium of the Supreme Court of the Russian Federation canceled the previously issued judicial acts and made a new decision,” Denis Glukhov, senior lawyer at the law office, told RG. — The judges indicated that the owners of premises in apartment buildings become co-owners of the land plot under it from the moment it is formed in the cadastre. Violations of their rights, as owners of a land plot, by the land surveying project can be eliminated by way of a negatory claim, the requirement to comply with the statute of limitations does not apply.”
According to him, the Judicial Panel noted that the land surveying project’s violation of the standards for determining the area of plots allocated for a house cannot be considered legal. And secret public hearings cannot serve as a cover for unlawful redistribution of land.
“From the ruling of the Supreme Court, it became clear that the exclusively formal approach of lower-level judges to the consideration of such a dispute is insufficient: the panel critically assessed the formal conduct of public hearings, pointing out the obligation to take into account the opinion of the population expressed during this procedure, since otherwise contradicts its essence,” - says Denis Glukhov.
In this case, the hearings were conducted as a secret operation, only one resident was present, and by coincidence, it was a resident of the very building that fenced itself off. Needless to say, the tenant liked everything. But was this the public opinion?
Apparently, due to their natural modesty, the organizers of the hearings did not widely publicize that such a discussion was taking place. There were no posters, no announcements, nothing. They just quietly listened to themselves and that’s it.
At the same time, in court, the defendants presented a wonderful argument, saying that the results of the hearings still could not influence the final decision. The lower courts agreed. They say that officials have the right to take into account existing comments, but these comments are not mandatory for acceptance. But judges, especially lower ones, are people too, and they can make mistakes.
“Meanwhile, public hearings are a form of exercising the rights of the population living in the relevant territory to participate in the decision-making process by local governments through public discussion of socially significant issues,” the Supreme Court noted. “The purpose of public hearings is to identify public opinion on issues brought up for public hearing.”
The ultimate goal of such a discussion, continues the Judicial Panel, is to develop recommendations on socially significant issues or to obtain a public assessment of a legal act.
“Regulation of urban planning activities is aimed primarily at ensuring a comfortable living environment, comprehensive consideration of the development needs of the population and territories and is necessary to harmonize state, public and private interests in this area in order to ensure favorable living conditions,” the Supreme Court emphasized.
In other words, people’s opinions need to be heard and taken into account, and formal public hearings in this case did not allow this.
“Of course, for subsequent practice, the definition is extremely valuable, has a detailed argument for owners of residential premises, and will also be useful for city administrative structures to adopt further orders in matters of urban land management,” says Denis Glukhov.
Direct speech
Vladimir Gruzdev, Chairman of the Board of the Russian Lawyers Association:
Although the explanations are given regarding a specific case, the legal positions of the Supreme Court of Russia expressed in the document are extremely important. Lower courts must now focus on them. This is exactly how a unified judicial practice is developed: on similar issues, decisions that have already been developed based on the example of other cases and have become standard are adopted.
Development projects should work for the benefit: create a comfortable environment, develop infrastructure, without violating the rights of citizens living in the neighborhood. Controversial issues that arise must be resolved in a civilized way, creating comfort for new projects; the already established conditions of others must not be destroyed.
* This is an expanded version of the text published in the issue of “RG”
The apartments have exits to common areas or to the common plot of land where the house is located
The decisive factor in the case was the decision of the court of first instance, which was upheld in the courts of appeal and cassation, and was also confirmed by the Supreme Court of the Russian Federation. It was based on the following legislation:
- A residential building is an individually defined building consisting of rooms, as well as premises for auxiliary use (Part 2 of Article 16 of the Housing Code of the Russian Federation).
- An apartment building is a collection of two or more apartments that have independent exits either to a land plot adjacent to a residential building or to common areas (clause 6 of the Decree of the Government of the Russian Federation dated January 28, 2006 No. 47). Also, the MKD must contain elements of the common property of apartment owners.
- Elements of public property in an apartment building include, among other things, the land plot on which it is located (clause 4, part 1, article 36 of the Housing Code of the Russian Federation).
The court took into account that the disputed object is located on a land plot with a single cadastral number. The site is intended for an apartment building. The inspection report of the building indicates the presence of two apartments. Consequently, this is an apartment building, and not an individual residential building, and the administration had the legal right to hold an open competition, and the management company had the legal right to participate in it and conclude a management agreement with the owners. The judge granted the company's claim.
Does GZHI need a copy of the signed DU to change the register of licenses?
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Official website of the Supreme Court of the Russian Federation
As the Court explained, when one person acquires all residential and non-residential premises in an apartment building, he becomes the owner of the entire plot of land if it has already been registered in the cadastral register.
AG experts supported the position of the Supreme Court, which, in their opinion, fills the legislative gap.
At the same time, they separately highlighted the conclusion of the Supreme Court that resort lands can be in the right of common ownership of the owners of premises in an apartment building. The Supreme Court published Determination No. 308-ES20-18388 in case No. A32-17099/2019 regarding the emergence of ownership of land under an apartment building for a legal entity - the owner of all apartments in it.
In March 2021, in the Krasnodar Territory, the ownership of a land plot in the category of lands of specially protected areas and objects with the type of permitted use “resort construction” with an area of 852 square meters was registered in the Unified State Register of Real Estate. m, on which an apartment building owned by Kubansantehmontazh LLC is located. In turn, the company filed several lawsuits to recognize its ownership of this site.
In case No. A32-25129/2013, it was established that the plaintiff acquired ownership of an apartment building on the basis of a purchase and sale agreement with Visa LLC, and the transfer of ownership was registered in the Unified State Register of Real Estate on October 11, 2002. At the same time, the court recognized as a cadastral error the information previously contained in the state real estate cadastre about the disputed land plot. In case No. A32-4030/2018, the courts found that the land plot under an apartment building passes into the common shared ownership of the owners of the premises in such a building free of charge, and the corresponding claim should be brought to the Krasnodar Territory. In turn, in case No. A32-47190/2018, the company was refused to recognize as illegal the refusal of the Rosreestr Office for the Krasnodar Territory to state registration of ownership of the specified land plot. Then the court proceeded from the fact that in relation to the disputed land plot the property right of the Krasnodar Territory was registered, therefore, between the company (the owner of the premises in an apartment building) and the above-mentioned subject of the Russian Federation there is a dispute about the right to the named land plot, which is subject to resolution in the manner of claim proceedings with another subject composition of the parties.
In this regard, the Kubansantehmontazh society filed a lawsuit against the Department of Property Relations of the Krasnodar Territory to recognize the ownership rights of a subject of the Russian Federation to the land plot as absent and to recognize the ownership rights to the disputed object. According to the plaintiff, the disputed plot was registered on the cadastral register on March 18, 2013 at the expense of the company on the recommendation of the Department based on its letters about the allocation of a plot for a house. Therefore, it is “Kubansantehmontazh” that is the owner of the site on which this house is located, from the moment the site is formed, regardless of the state registration of the right to it by force of law.
Three courts rejected the company's claim, citing the fact that the disputed plot of land is located on the lands of a resort of regional significance and belongs to the lands of specially protected areas, therefore it cannot be transferred to private ownership. The courts added that the right of common shared ownership of the disputed land plot could not arise on the basis of the norms of housing legislation, since the plaintiff is the only owner of apartments in a residential building located on the disputed plot, and the provisions of Part 1 of Art. 16 of the Law on the Introduction of the Housing Code of the Russian Federation and Part 1 of Art. 36 of the Housing Code of the Russian Federation do not apply to the issue of transferring such a land plot into the ownership of the sole owner of the apartment building.
They also considered that, within the meaning of a number of provisions of the Civil Code of the Russian Federation, the emergence of the right of common shared ownership of the common property of an apartment building, including a land plot, presupposes the mandatory presence of a plurality of co-owners of the premises located in such a building, and two-apartment buildings do not belong to multi-apartment buildings, the co-owners of the premises in which acquire the right of common shared ownership of the land plot under such a house in a special manner. In turn, the society’s demand to recognize the defendant’s land plot as absent is an inappropriate method of defense, since the plaintiff has not registered ownership rights and there are no grounds for recognition of such a right.
After studying the materials of the case, the Judicial Collegium for Economic Disputes of the Supreme Court, with reference to a number of normative legal acts, its own practice and legal positions of the Constitutional Court of the Russian Federation, recalled that the qualifying feature of an individual residential building is the presence of rooms (not apartments) in it, the main criteria for classifying a residential building Multi-apartment housing is a collection of several apartments with independent access to an adjacent land plot or to common areas, as well as the presence of elements of common property.
As the Supreme Court explained, the lower courts did not apply the relevant rules of law in the case under consideration and did not examine the presence or absence of signs of a multi-apartment residential building in the disputed object, despite the fact that in the certificates of state registration of property rights of the company the disputed object is named as a two-apartment residential building, in an extract from EGRN is like a two-story residential apartment building. “The courts made an unfounded conclusion that if all apartments in an apartment building have one owner, then the rules of clause 4, part 1, art. 36 and art. 16 of the Housing Code do not apply,” the definition emphasizes.
The board added that when one person acquires all residential and non-residential premises in an apartment building, and therefore all shares in the right of common shared ownership of common property, such a person, from the moment of state registration of the right to the last apartment or non-residential premises in an apartment building, when the land plot has already been registered in the cadastral register, becomes the owner of the entire plot.
“The court also made an unfounded conclusion that the land plot on which the multi-apartment residential building is located cannot be transferred to private ownership if this plot is located on the lands of specially protected natural areas,” the judicial act noted. As the Supreme Court explained, as a general rule, restricted lands in specially protected natural areas that are in state or municipal ownership are not granted into private ownership, except in cases established by federal laws. At the same time, the right of common shared ownership of the owners of premises in an apartment building to the land plot on which the house is located arises by force of law - the provisions of the Housing Code and the Introductory Law, including if the apartment building is located within the boundaries of a specially protected natural area territory, regardless of whether the house was put into operation before the creation of a specially protected natural area or after (except for cases of erection of unauthorized buildings), which corresponds to the rules of clause 2 of Art. 27 Land Code of the Russian Federation.
As the Court pointed out, taking into account that the ownership of a land plot formed for an apartment building arises by force of law and the ownership right to it is registered in the Unified State Register of Real Estate for another person, and within the framework of a specific dispute, numerous methods of protecting the right chosen by the court did not resolve the legal conflict about legal claims to the object of real rights, then the methods of protecting the right chosen by the plaintiff in this case correspond to the explanations contained in paragraph 52 of the Resolution of the Plenum of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 10/22 of April 29, 2010, and are appropriate. In this regard, the Supreme Court overturned the judicial acts of the lower courts and returned the case for a new trial at the first instance.
Commenting on the ruling of the Supreme Court, Anna Minushkina, Chairman of the Minushkina and Partners Agency, noted that it filled the legislative gap regarding what to do with the ownership of a plot under an apartment building if the owner of all apartments is one person. “It is logical to assume that if the owner of all apartments is the same person, then “sole” ownership arises. However, it took the plaintiff in this case many years to confirm his right of “sole” ownership of the land plot under the apartment building, and therefore the Court’s conclusion is quite reasonable that if all apartments in an apartment building have one owner, then he the rules of housing legislation on the right of ownership of the common property of the owners of the premises of an apartment building apply,” the expert believes.
According to the lawyer, the Supreme Court also made an important conclusion, according to which the right of common shared ownership of the owners of premises in an apartment building to the land plot on which the house is located arises also if the apartment building is located within the boundaries of a specially protected natural area , since the current legislation provides for the emergence of ownership rights to such a land plot by virtue of a direct indication of the law. “I believe that this conclusion was made taking into account the principle of the unity of fate of land plots and real estate objects firmly associated with them, as well as in order to ensure the rights of owners of premises in apartment buildings,” suggested Anna Minushkina.
Lawyer, senior partner of Altavista Law Firm Valeria Arshinova supported the conclusions of the Supreme Court that the plaintiff had the right to consider this dispute at his request, since he was legally and actually connected with both the land plot and the construction projects on it.
“Refusing the claim, the court of first instance, referring to judicial acts in related cases, pointed to an apartment building, but did not establish the signs of a residential building. The Supreme Court of the Russian Federation drew attention to this, since the court of first instance should have analyzed the title documents in more detail. An important conclusion in the definition also concerns the fact that resort lands can be in the common ownership of “multi-apartment owners” - this is of significant importance for practice,” the expert concluded. Zinaida Pavlova
Apartment owners have common property
GZHI filed an appeal, pointing out that the land plot, although it belongs to the common property of the apartment building, is not a common premises. Therefore, the presence of such a plot cannot be a sign that the house is an apartment building. A residential building consisting of two apartments with separate exits to a land plot without direct access to common areas is not multi-apartment. The disputed house has the characteristics of a residential building of a blocked development in accordance with Art. 49 Civil Code of the Russian Federation.
The Court of Appeal, repeating the arguments of its colleagues and fully agreeing with them, also added that
- The disputed building is recognized as an apartment building due to the presence of common property in it: a single roof and a single solid facade, a common foundation, one plot of land, and intra-building utilities for energy supply.
- The presence of common property entails the possibility of managing it by a specialized organization.
- The technical passport of the house indicates the presence of attic floors; accordingly, the house has an attic, which is a room intended to serve more than one apartment, and is part of the common property of the owners of the premises.
The Court of Appeal confirmed the legality of recognizing the building as an apartment building and, therefore, the illegality of the refusal of the State Housing Authority to make changes to the register of licenses according to the application of the management organization. The dispute moved to the cassation court, which completely agreed with the previous decisions. The Supreme Court of the Russian Federation, to which the State Housing Inspectorate appealed, refused to consider the complaint, having found no grounds for this.
As a result, the house was recognized as an apartment building, and the State Housing Authority was obliged to make changes to the register of licenses of the region in accordance with the results of an open competition for the selection of management entities.
On the extension of the contract with the management company, concluded based on the results of an open competition
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The main goal of managing an apartment building is to properly maintain and repair the common property of the owners of premises in the apartment building and improve its consumer properties.
The common property in an apartment building is maintained in accordance with the requirements of legislation on technical regulation, sanitary and epidemiological welfare of the population, and fire safety.
The Housing Code of the Russian Federation and other federal laws do not establish the concept of an apartment building. At the same time, clause 6 of the Regulations on recognizing premises as residential premises, residential premises unsuitable for habitation and an apartment building as unsafe and subject to demolition or reconstruction, approved by Decree of the Government of the Russian Federation of January 28, 2006 No. 47, an apartment building is recognized as a set of two or more apartments that have independent exits either to a plot of land adjacent to a residential building or to common areas in such a building. An apartment building contains elements of common property of the owners of premises in such a building in accordance with housing legislation.
According to the National Standard of the Russian Federation “Housing and communal services and management of apartment buildings. Terms and definitions" (GOST R 51929-2014) apartment building - a capital construction project completed and put into operation properly, which is a volumetric building structure, having above-ground and underground parts, including in-house engineering and technical support systems, common premises uses that are not parts of apartments, other premises in a given house that do not belong to individual owners, and residential premises intended for permanent residence of two or more families, having independent access to common areas in such a house (with the exception of semi-detached buildings); An apartment building includes built-in and (or) attached non-residential premises, as well as the adjacent territory (land plot).”
In accordance with Article 36 of the Housing Code of the Russian Federation, the owners of premises in an apartment building own, by right of common shared ownership, the common property in the apartment building, namely:
1) premises in this house that are not parts of apartments and are intended to serve more than one room in this house, including inter-apartment landings, stairs, elevators, elevator and other shafts, corridors, technical floors, attics, basements in which there are engineering communications, other equipment serving more than one room in a given house (technical basements);
2) other premises in this house that do not belong to individual owners and are intended to meet the social and everyday needs of the owners of premises in this house, including premises intended for organizing their leisure time, cultural development, children's creativity, physical education and sports and similar events;
3) roofs enclosing load-bearing and non-load-bearing structures of a given house, mechanical, electrical, sanitary and other equipment (including structures and (or) other equipment designed to ensure unhindered access for people with disabilities to premises in an apartment building) located in this home outside or indoors and serving more than one room;
4) the land plot on which this house is located, with elements of landscaping and improvement, other objects intended for the maintenance, operation and improvement of this house and located on the specified land plot. The boundaries and size of the land plot on which the apartment building is located are determined in accordance with the requirements of land legislation and legislation on urban planning.
The owners of premises in an apartment building own, use and, within the limits established by the Housing Code of the Russian Federation and civil legislation, dispose of the common property in the apartment building.
Common property in an apartment building belongs to the owners of the premises in this building on the right of common shared ownership.
The right of common shared ownership of common property in an apartment building arises simultaneously with the acquisition of ownership of residential and (or) non-residential premises in such a building by virtue of direct instructions of the law and regardless of the subjective aspirations of the acquirer.
The share in the right of common ownership of common property in an apartment building of the owner of premises in this building is proportional to the size of the total area of its premises. The share in the right of common ownership of common property in an apartment building follows the fate of the ownership of the specified premises.
Owners of premises in an apartment building bear the burden of expenses for maintaining common property in an apartment building. The share of mandatory expenses for the maintenance of common property in an apartment building, the burden of which is borne by the owner of the premises in such a house, is determined by the share in the right of common ownership of the common property in such a house of the specified owner.
The owner of premises in an apartment building does not have the right :
1) to allocate in kind his share in the right of common ownership of common property in an apartment building;
2) alienate his share in the right of common ownership of common property in an apartment building, as well as perform other actions entailing the transfer of this share separately from the right of ownership of the specified premises.
By decision of the owners of premises in an apartment building, adopted at a general meeting of such owners, common property in an apartment building may be transferred for use to other persons if this does not violate the rights and legitimate interests of citizens and legal entities. Such a decision is made on the basis of a qualified majority (at least 2/3 of the votes of the total number of votes of the owners of the premises of an apartment building (Clause 1 of Article 46 of the Housing Code of the Russian Federation). Providing the common property of an apartment building for use is possible both on a free and paid basis .
Reducing the size of common property in an apartment building is possible only with the consent of all owners of premises in this building through its reconstruction.
According to Part 4.1 of Art. 36 of the RF Housing Code adaptation of common property in an apartment building to ensure unhindered access for disabled people to premises in an apartment building in accordance with the requirements specified in Part 3 of Art. 15 of the Housing Code of the Russian Federation, is allowed without a decision of the general meeting of owners of premises in an apartment building only if such adaptation is carried out without attracting funds from these owners.
On a note
The status of a house as an apartment building is important for the owners and, as in this case, for the municipality and management organization. If the house is multi-apartment, then questions arise about the method of managing it, carrying out current and major repairs of common property, forming a capital repair fund, recognizing the house as unsafe, and others.
As the courts indicated in the case considered, if a residential building with two or more apartments has common property: a roof, an attic, a basement, a plot of land, communications, then such a building is recognized as an apartment building, regardless of whether the apartments are equipped with exits to common premises.
