Common property in former dormitories subject to maintenance by management organizations

Colleagues! I would like to bring up for discussion the issue of former dormitories and the delimitation of the area of responsibility in such dormitories between the owners and management organizations.

I take the management organization as a synonym for the other party in legal relations, however, for housing cooperatives, HOAs, direct management, everything that I will talk about below also applies.

Let's start with the fact that in the 90s and early 2000s, the departmental, service fund, consisting of dormitories, began to become municipal property.

The same fund began to be quite actively privatized by citizens and lost its status as hostels, becoming apartment buildings - with all that it entails.

In fact, such newly formed apartment buildings, commonly referred to as “dormitories,” have two features, two types that are important for management organizations.

In my opinion, a good “definition” is given for them in paragraphs. 51, 52 Rules for the provision of public services, approved. Decree of the Government of the Russian Federation dated May 6, 2011 N 354.

I will quote:

"51. The calculation of the amount of payment for utility services provided to consumers in residential premises in corridor, hotel and sectional type dormitories (with the presence of common kitchens, toilets or shower blocks on the floors) is carried out in the manner established for calculating the amount of payment for utility services for consumers living in a communal apartment."

"52. The calculation of the amount of payment for utility services provided to consumers in residential premises in apartment-type dormitories is carried out in the manner established for calculating the amount of payment for utility services for consumers living in residential premises in an apartment building.”

That is, we have two types of dormitories, one is block-type, where we have amenities in blocks or, in the worst case, on the floor (though I haven’t seen any of those).

And the second option, where we have amenities in the rooms, but have some element in common. For example, I lived in a dorm where everything was in the room: kitchenette, toilet, shower; however, the shower was not there to begin with. Therefore, in a five-story building, on its first floor, there was a fairly large shower room “for everyone.”

And in this, in my opinion, there is a pressing question - what in such dorms is common property in the understanding of Part 1 of Article 36 of the Housing Code of the Russian Federation and Government Resolution No. 491? Because by answering this question we will answer where the zone of responsibility of residents for the maintenance of their property ends and the zone of responsibility of the management organization for the maintenance of the common property of all owners begins.

I would like to immediately distinguish this issue from the issues of maintaining the elevator and the concierge, as non-debatable, since we have a clear position in relation to them of the legislator and the Supreme Court, expressed by the Plenum.

I see it this way in two ways.

Option #1. If you live in a dormitory where amenities in the form of kitchens, toilets, showers are located on your floor (block), you should perceive this removed property as the property only of those citizens who live next to you on the floor or block (as in a communal apartment), i.e. You cannot demand anything from the management organizations for this property (and passages to it).

Option #2. If you live in a dormitory where you and your “floor” neighbors are connected only by corridors, and you are all connected, for example, by a shower on the first floor, then all this is the common property of all residents of the dormitory. Such property must be maintained by a management organization.

Further, to substantiate the position, I will cite the rules of law (except for paragraphs 51, 52 of the above rules).

1. The owner of a residential premises bears the burden of maintaining this premises and, if this premises is an apartment, the common property of the owners of the premises in the corresponding apartment building, and the owner of a room in a communal apartment also bears the burden of maintaining the common property of the owners of the rooms in such an apartment, unless otherwise provided by the federal by law or agreement (Part 3 of Article 30 of the RF Housing Code).

2. The owners of rooms in a communal apartment own by right of common shared ownership the premises in this apartment used to service more than one room (hereinafter referred to as the common property in a communal apartment) - Part 1 of Article 41 of the Housing Code of the Russian Federation.

3. The share in the right of common ownership of common property in a communal apartment of the owner of a room in this apartment is proportional to the size of the total area of the specified room (Part 1 of Article 42 of the Housing Code of the Russian Federation).

4. The share in the right of common ownership of common property in an apartment building of the owner of a room in a communal apartment located in this house is proportional to the sum of the dimensions of the total area of the specified room and determined in accordance with the share in the right of common ownership of common property in the communal apartment of this owner of the area premises constituting the common property in this apartment (Part 2 of Article 42 of the Housing Code of the Russian Federation).

5. The share in the right of common ownership of common property in a communal apartment of the owner of a room in this apartment follows the fate of the right of ownership of the specified room (Part 3 of Article 42 of the Housing Code of the Russian Federation).

6. The owners of rooms in a communal apartment bear the burden of expenses for maintaining the common property in this apartment (Part 1 of Article 43 of the Housing Code of the Russian Federation).

7. The share of mandatory expenses for the maintenance of common property in a communal apartment, the burden of which is borne by the owner of the room in this apartment, is determined by the share in the right of common ownership of the common property in this apartment of the specified owner (Part 2 of Article 43 of the Housing Code of the Russian Federation).

8. An apartment is recognized as a structurally separate room in an apartment building, providing direct access to common areas in such a house and consisting of one or more rooms, as well as premises for auxiliary use, intended to satisfy citizens’ household and other needs related to their residence in such a separate room (Part 3 of Article 16 of the RF Housing Code).

9. A room is recognized as a part of a residential building or apartment intended for use as a place of direct residence of citizens in a residential building or apartment (Part 4 of Article 16 of the Housing Code of the Russian Federation).

But here is a norm that, at first glance, can be put into contraposition.

The owners of premises in an apartment building own, by right of common shared ownership, the common property in the apartment building, namely:

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 utilities , other equipment serving more than one room in a given house (technical basements) - clause 1, part 1, article 36 of the Housing Code of the Russian Federation.

In fact, everything I quoted is one indivisible norm. It does not contradict itself and fully determines the legal relations of owners of rooms in dormitories. Also, all this is consistent with Government Decree No. 491.

As a result, I propose to consider the newly formed dormitories as apartment buildings of two types:

- apartment buildings in the classical sense, where small apartments have everything (or almost everything) for self-service, and the common property of the house is everything that does not fit into these apartments;

- multi-apartment buildings of a communal type, where blocks or floors are apartments, and the common property is staircases, stairs, attics, basements, etc.

Please criticize!

What is PNI?

Psychoneurological boarding schools (PNI) are government institutions that house adults with chronic mental illnesses who need constant care. It is important to emphasize that these are not hospitals, but boarding schools where residents are provided with social services.

Often, staff perceive people living in PNI as patients who need to be isolated from society and treated, say social activists who help people with disorders. Representatives of non-profit organizations that work with PNI often call it a prison. “The PNI and DDI system - yes, I say this - is a modern Gulag for the elderly and disabled,” said the founder of the Vera Hospice Fund, Nyuta Federmesser.

People who live in PNI cannot take care of themselves?

Most PNI residents are truly incapacitated, that is, their civil rights are limited and they require the permission of a guardian for many things. Usually the only guardian who makes all decisions for a person with limited legal capacity is the director of the boarding school himself.

But people in PNI can fall in love and start a family?

They can fall in love, but by law a person with limited legal capacity cannot get married. How difficult it is to achieve restoration of legal capacity and leave the boarding school has already been mentioned above. In addition, in boarding schools, as a rule, they do not talk about how to properly protect themselves, and do not provide residents with contraceptives.

Read also: Why does the current system of psychoneurological boarding schools need to be urgently changed?

At the same time, women in boarding schools become pregnant regularly - from the staff, from the men living there, Bitova said. Those who become pregnant are forced to have abortions, since the child cannot remain in the adult boarding school. If the child is still born, he is taken to an orphanage.

On October 18 in Yekaterinburg, a woman living in the Uktus boarding house for the elderly and people with disabilities said that she and several guests were forced by threats to undergo sterilization.

Can I leave the PNI if things get bad there or if I want to return to my family?

Formally, people can live in PNI permanently, temporarily (up to six months) or for five days a week. In addition, residents have the right to refuse social services.

Nevertheless, it is very difficult to leave the boarding school

Firstly, because these rules do not apply to incapacitated people. And secondly, you can leave a PNI only with the permission of a special commission that will decide whether a person can live independently. However, there is no clear definition of what this means.

In fact, you need to obtain the consent of the boarding school, and for institutions of this type, as a rule, this is unprofitable. Being both customers of social services (as guardians) and performers, it is beneficial for PNIs that their wards remain forever within the walls of the institution, as representatives of specialized NGOs have repeatedly said.

What does a person do in a PNI? How similar is this to the life of an ordinary person?

In most boarding schools, living conditions and spending time are the same for everyone. The rules apply to both people with severe mental disorders and those who do not have serious diagnoses.

In boarding schools, people do not have their own personal belongings; they cannot manage money.

They do not have the right to get a job or start studying

They are forbidden to marry, give birth and raise their own children. Patients in their care cannot refuse to take medications. At the same time, any violation of the rules or dissatisfaction with the staff can be a reason for hospitalization in psychiatric clinics, and wards can also be tied to a bed or put in an isolation ward.

Many boarding schools have workshops, but it’s a stretch to call it leisure. Firstly, for people who have been in the same room for years, a change of scenery would be more useful: even the road to a workshop in another house would already give them a lot of impressions. And secondly, even if one of the guests had the desire to try something new, he would have to figure it out on his own: classes in the workshops are not organized in any way.

Often, residents of boarding schools do not leave the PNI premises for several years; many lie on their beds all day long. “Adults lie in white beds and look at the ceiling,” actress Ksenia Alferova, co-founder of the “I Am” Foundation, described the life of PNI wards.

Who is in PNI?

Adults and elderly people with mental disabilities live in the PNI. In boarding schools there are elderly people with mental illnesses, people with severe addictions and people with congenital mental disorders who have lost their caregivers. In Russia, according to various sources, from 160 to 220 thousand people live in psychoneurological boarding schools. 20% of them are young people from 18 to 35 years old.

As a rule, young people end up in PNI after being released from boarding homes for children with mental disorders. However, former pupils with “severe” diagnoses from ordinary orphanages are also sent to PNI. According to Tatyana Malchikova, president of the Civil Commission for Human Rights in Psychiatry, orphans often end up in boarding schools not because of mental retardation, but because of pedagogical neglect.

Is there an alternative to the PNI system?

Yes, the system of psychoneurological boarding schools has a working alternative - assisted living. This is when a person with a mental disability lives at home or in conditions close to home, under the supervision of specialists: usually social educators, social workers and volunteers. A person learns minimal self-service (cooking, washing, planning a budget), can work or do what he likes in a safe environment.

There are already working examples of such houses in Russia, but there are very few of them.

Is it possible to go outside from the PNI?

If a resident does not have legal capacity, then he does not have the right to leave the boarding school anywhere without the permission of the staff. In addition, many PNI departments are simply locked. Thus, according to the head of the center for therapeutic pedagogy “Special Childhood” Anna Bitova, freedom of movement in boarding schools is violated everywhere - the heads of institutions believe that it is safer this way, but they have no legal right to do so.

Even if PNI residents are allowed to walk, their time for walking is often limited.

What about doctors and relatives? Can't they really intervene?

Alferova noted that the staff of many boarding schools do not even know the names of their charges. Representatives of specialized NGOs often talk about ill-treatment of residents of PNI by staff: tying up, physical violence, punishment.

Often people in boarding schools are prohibited from seeing their relatives, friends or volunteers, explaining that their visits allegedly have a bad influence on the ward. Often, for several months, loved ones cannot get a meeting with their loved ones who live in boarding schools.

Without a law on shared guardianship, relatives of people with severe mental disabilities remain in a hopeless situation. Families are forced to make a choice: either continue to care for relatives until the end, or send them to a psychoneurological boarding school and lose the opportunity to influence the life of a loved one.