How to understand what constitutes the common property of an apartment building according to clause 3, part 1. Art. 36 Residential Complex of the Russian Federation
How to understand what constitutes the common property of an apartment building according to clause 3, part 1. Art. 36 Residential Complex of the Russian Federation
1. Article 36 of the Housing Code of the Russian Federation speaks, judging by its name, about the right of ownership of the common property of the owners of premises in an apartment building (hereinafter referred to as the house) and in particular in paragraph 3 of part 1 of this article it is written: - “ 1. Owners of premises in an apartment building The common property in an apartment building belongs by right of common shared ownership, namely:
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 house outside or inside the premises and serving more than one room;”[1]
2. Clause 3, Part 1, Art. 36 of the Housing Code of the Russian Federation lists the types of common property. This listing is separated by commas and the conjunction “and”. But even with this selection of enumerations, this enumeration can be read and understood in different ways.
3. For the correct understanding declared in this article, you need to know what the legislator wanted to say when he wrote this norm as he stated it. This is required to correctly interpret and apply this article.
4. Let’s start with the phrase: “roofs enclosing the load-bearing and non-load-bearing structures of a given house...”
5. Here, does everything that is further listed in the above quote refer to the word “roof” or not?
6. Let’s ask ourselves a question: do the roofs protect the load-bearing and non-load-bearing structures of a given house? Fenced. This means this is the first understanding and it relates only to the concept of a roof, as an object of common property rights.
7. Is there a second meaning? I suppose it exists. I believe that no one doubts that the “roof” is an independent object of ownership? But the second similar object in the right of ownership will most likely be “the enclosing load-bearing and non-load-bearing structures of this house.” After all, a house has walls, which can be load-bearing or non-load-bearing, and which also make up the structure of the house. But should these structures be only enclosing? Protecting from what?
8. So in this case the legislator wanted to point out to us one component in the right of common ownership or two? Is there enumeration here or not?
9. Next, let us turn to the phrase “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 a given building outside or inside the premises and serving more than one premises;”
10. First, about what is indicated in brackets. I exclude from the detailed analysis what is indicated in brackets, although there are questions about this part. I will briefly note in this part only that some of the houses will be equipped with a ramp and handrails for their use by citizens with disabilities. The ramp and handrails are clearly outside the house. Most often, they were not even included in the house construction project, and were subsequently made additionally. Should they constitute the common property of the house? I suppose they should. But how to register ownership of this ramp and handrails? Who should do this? Do you need a decision from the general meeting of owners of the premises for this? Or is it enough to contact Rosreestr, for example, a management company with an application for state registration of rights? Is it even necessary to apply to Rosreestr to register such a right? Maybe contacting the Bureau of Technical Inventory (BTI) is enough? Should a project be developed for this ramp and handrails? Where should this project be stored? Should this project be submitted to Rosreestr along with an application for state registration? Or should the project be submitted to the BTI? The answers to other questions depend on the answer to these questions - for example, what is subject to major or routine repairs in this house? How and where can I find out about the composition of the common property of the house?
11. By excluding the text from brackets, we get the following construction of clause 3, part 1, article 36 of the Housing Code of the Russian Federation - “other equipment located in a given house outside or inside the premises and serving more than one room;” Let's try to analyze this.
12. So there is some “other equipment”. It may be in this house. Can it be located outside this house? Since the indication in the text of the article says “outside or inside the premises and serving more than one premises,” I conclude that the common property of the house may be outside the premises of the house, but it must serve more than one premises, since the conjunction “and” is used before the words “serving” more than one room."
13. There may be other interpretations of the text of this article.
14. It would be interesting to know them. Especially in that part - how to properly register the common property that appeared in the house after passing a technical inspection by the BTI authorities and registering ownership? For example, a general meeting in a house decided to install a video surveillance system, connect it to the general house power supply system and delegate to the management company the conclusion of an agreement for the installation of such a system and the choice of the location of video surveillance cameras to monitor the common property of this house. Such video cameras were installed on the front facade of the house. But from them it is not possible to view the general property of the house, but you can only view the green area in front of the house. And let’s say I don’t agree with this arrangement of CCTV cameras. What to do in this case? How can I find out if this video surveillance system has been added to the common property?
15. But all this text, which was difficult to understand, had to be written a little differently, using the division of the paragraph into paragraphs. Let this cause an increase in the volume of the text of the law, but it will be more understandable to those who read and apply it.
[1] “Housing Code of the Russian Federation” dated December 29, 2004 N 188-FZ (as amended on December 30, 2020) https://www.consultant.ru/cons/cgi/online.cgi?rnd=282E96D30C9774B48F8076C446CBB4A7&base=LAW&n=371925&dst =4294967295&cacheid=814E81794B83451DA3E745053F736101&mode=rubr&req=doc#09957780949181851 (accessed February 18, 2021)
How is common property in an apartment building managed?
Lawyer Antonov A.P.
In accordance with Art. 209 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, including alienating his property into the ownership of other persons, transferring to them, while remaining the owner, the rights possession, use and disposal of property, pledge property and encumber it in other ways, dispose of it in any other way. The owners of apartments in an apartment building own, by right of common shared ownership, the common premises of the house, the load-bearing structures of the house, mechanical, electrical, sanitary and other equipment outside or inside the apartment that serves more than one apartment (clause 1 of Article 290 of the Civil Code of the Russian Federation). The list of common property in an apartment building belonging to the owners of premises in an apartment building on the right of common shared ownership is determined by Art. 36 of the Housing Code of the Russian Federation and clauses 2 - 9 of the Rules for the maintenance of common property in an apartment building, approved by Decree of the Government of the Russian Federation of August 13, 2006 N 491. By virtue of Part 2 of Art. 36 of the Housing Code of the Russian Federation, 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. According to Art. 246 of the Civil Code of the Russian Federation, the disposal of property in shared ownership is carried out by agreement of all its participants. Provided for in Part 2 of Art. 36 of the RF Housing Code, the right of owners of premises in an apartment building to own, use and dispose of common property in an apartment building cannot be interpreted as allowing one owner to violate the same rights of other owners, and to oppose the interests of one owner to the interests of other owners (clause 23 of the Review of Judicial Practice Supreme Court of the Russian Federation No. 1 (2017), approved by the Presidium of the Supreme Court of the Russian Federation on February 16, 2017). Issues of disposing of the common property of an apartment building fall within the competence of the general meeting of owners of premises in an apartment building (Part 2 of Article 44 of the Housing Code of the Russian Federation). The Ruling of the Supreme Court of the Russian Federation dated October 29, 2018 N 307-ES18-16531 in case N A56-59412/2017 reflects the position according to which the decision on the procedure for use, disposal, collection of fees for the placement of objects on the common property of an apartment building and its size is documented in a protocol of the general meeting of owners of premises in an apartment building and is within its exclusive competence. Decisions of the general meeting of owners of premises in an apartment building on issues put to vote are adopted by a majority vote of the total number of votes of the owners of premises in an apartment building participating in this meeting or by a majority of at least two-thirds of the total number of votes of owners of premises in an apartment building, in depending on the content of the issue put to vote (Part 1 of Article 46 of the RF Housing Code). Decisions made by the general meeting of owners of premises in an apartment building, as well as voting results, are brought to the attention of the owners of premises in this building by the owner specified in Art. 45 of the Housing Code of the Russian Federation by another person, on whose initiative such a meeting was convened, by posting a corresponding message about this in the premises of this house, determined by the decision of the general meeting of owners of premises in this house and accessible to all owners of premises in this house, no later than ten days from the date of adoption of these decisions (Part 3 of Article 46 of the RF Housing Code). 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 can be transferred for use to other persons if this does not violate the rights and legitimate interests of citizens and legal entities (Part 4 of Article 36 Housing Complex of the Russian Federation). If a decision is made to provide the common property of an apartment building to a third party, the management body of the apartment building concludes a lease agreement with the third party in the manner established by the Civil Code of the Russian Federation. By virtue of clause 2 of Art. 651 of the Civil Code of the Russian Federation, a lease agreement for a building and structure concluded for a period of at least one year is subject to mandatory state registration.
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Documents Statistics on documents and execution of orders
GOVERNMENT OF THE RUSSIAN FEDERATION
RESOLUTION
dated August 13, 2006 No. 491
Moscow
On approval of the Rules for the maintenance of common property in an apartment building and the Rules for changing the amount of payment for the maintenance of residential premises in the case of the provision of services for the management, maintenance and repair of common property in an apartment building of inadequate quality and (or) with interruptions exceeding the established duration
(As amended by Decrees of the Government of the Russian Federation dated 05/06/2011 No. 354, dated 04/03/2013 No. 290, dated 05/14/2013 No. 410, dated 03/26/2014 No. 230, dated 12/25/2015 No. 1434, dated 05/30/2016 No. 480 , from 07/09/2016 No. 649, from 12/26/2016 No. 1498, from 02/27/2017 No. 232, from 09/09/2017 No. 1091, from 03/27/2018 No. 331, from 09/13/2018 No. 1090, from 10/12/2018 No. 1221, from 15.12 .2018 No. 1572, dated November 23, 2019 No. 1498, dated June 29, 2020 No. 950)
In accordance with Articles 39 and 156 of the Housing Code of the Russian Federation, the Government of the Russian Federation decides:
1. Approve the attached:
Rules for maintaining common property in an apartment building;
Rules for changing the amount of payment for the maintenance of residential premises in the event of the provision of services and performance of work on the management, maintenance and repair of common property in an apartment building of inadequate quality and (or) with interruptions exceeding the established duration. (As amended by Decree of the Government of the Russian Federation dated December 26, 2016 No. 1498)
2. To recognize as invalid:
Decree of the Government of the Russian Federation of February 17, 2004 No. 89 “On approval of the Basic Principles of Pricing in the Sphere of Housing and Communal Services” (Collected Legislation of the Russian Federation, 2004, No. 8, Art. 671);
Decree of the Government of the Russian Federation of July 30, 2004 No. 392 “On the procedure and conditions for citizens to pay for housing and utilities” (Collected Legislation of the Russian Federation, 2004, No. 32, Art. 3339).
3. The Ministry of Regional Development of the Russian Federation shall approve, before October 1, 2006, regulations on the development, transfer, use and storage of operating instructions for an apartment building and making the necessary changes to it, the form of the said instructions, as well as methodological recommendations for its development and application.
4. The Ministry of Justice of the Russian Federation shall submit, in accordance with the established procedure, to the Government of the Russian Federation a draft resolution of the Government of the Russian Federation, providing for amendments to the Decree of the Government of the Russian Federation of February 18, 1998 No. 219 “On approval of the Rules for maintaining the Unified State Register of Rights to Real Estate and Transactions” with him”, concerning the procedure for entering into the Unified State Register of Rights to Real Estate and Transactions with It records of rights to real estate objects that are the common property of the owners of premises in an apartment building.
5. The Ministry of Economic Development and Trade of the Russian Federation shall approve, before October 1, 2006, the procedure for determining the composition of the common property of the owners of premises in an apartment building and the form of the technical accounting document for such property.
6. Establish that the effect of subparagraph “d” of paragraph 24 and paragraph 25 of the Rules for the maintenance of common property in an apartment building, approved by this resolution, applies to apartment buildings, permission for the commissioning of which was received after July 1, 2007.
7. Establish that:
the boundaries of separate land plots within which real estate objects are located, intended for electricity, heat, gas and water supply to the population and sanitation, as well as the boundaries of the zones of public easements within residential areas, microdistricts to ensure unhindered servicing of the specified property are established by the authorities local government until July 1, 2007;
the boundaries of blocks, microdistricts, public lands are determined by red lines in accordance with the urban planning, land and housing legislation of the Russian Federation, and state cadastral registration of land plots on which apartment buildings are located is provided, without charging fees to the owners of premises in an apartment building until July 1 2008
8. Establish that explanations on the application of the rules approved by this resolution are given by the Ministry of Construction and Housing and Communal Services of the Russian Federation. (As amended by Decree of the Government of the Russian Federation dated March 26, 2014 No. 230)
Chairman of the Government
Russian Federation M. Fradkov
APPROVED by Decree of the Government of the Russian Federation of August 13, 2006 No. 491
RULES for maintaining common property in an apartment building
(As amended by Decrees of the Government of the Russian Federation dated 05/06/2011 No. 354, dated 04/03/2013 No. 290, dated 05/14/2013 No. 410, dated 03/26/2014 No. 230, dated 12/25/2015 No. 1434, dated 05/30/2016 No. 480 , from 07/09/2016 No. 649, from 02/27/2017 No. 232, from 09/09/2017 No. 1091, from 03/27/2018 No. 331, from 09/13/2018 No. 1090, from 12/15/2018 No. 1572, from 11/23/2019 No. 1498, from 29.06 .2020 No. 950)
These Rules regulate relations regarding the maintenance of common property owned by the right of common shared ownership to the owners of premises in an apartment building (hereinafter referred to as the common property).
I. Determination of the composition of common property
1. The composition of common property is determined:
a) owners of premises in an apartment building (hereinafter referred to as the owners of premises) - in order to fulfill the obligation to maintain common property;
b) government bodies - for the purpose of monitoring the maintenance of common property;
c) local government bodies - for the purpose of preparing and holding an open competition for the selection of a management organization in accordance with Part 4 of Article 161 of the Housing Code of the Russian Federation.
2. The composition of common property includes:
a) premises in an apartment building that are not parts of apartments and are intended to serve more than one residential and (or) non-residential premises in this apartment building (hereinafter referred to as common areas), including inter-apartment landings, stairs, elevators, elevators and others shafts, corridors, strollers, attics, technical floors (including built-in garages and areas for motor transport, workshops, technical attics built at the expense of the owners of the premises) and technical basements in which there are utilities, garbage collection chambers, garbage chutes, other services serving more than one residential and (or) non-residential premises in an apartment building equipment (including boiler rooms, boiler rooms, elevator units and other engineering equipment); (As amended by Decree of the Government of the Russian Federation dated February 27, 2017 No. 232)
b) roofs;
c) enclosing load-bearing structures of an apartment building (including foundations, load-bearing walls, floor slabs, balcony and other slabs, load-bearing columns and other enclosing load-bearing structures);
d) enclosing non-load-bearing structures of an apartment building serving more than one residential and (or) non-residential premises (including windows and doors of common areas, railings, parapets and other enclosing non-load-bearing structures);
e) mechanical, electrical, sanitary and other equipment, including structures and (or) other equipment designed to ensure unimpeded access for people with disabilities to the premises of an apartment building (hereinafter referred to as equipment for people with disabilities and other low-mobility groups), located in an apartment building house outside or inside the premises and serving more than one residential and (or) non-residential premises (apartment); (As amended by Decree of the Government of the Russian Federation dated 07/09/2016 No. 649)
f) a land plot on which an apartment building is located and the boundaries of which are determined on the basis of state cadastral registration data, with elements of landscaping and landscaping;
e1) automated information-measuring systems for accounting for the consumption of utility resources and services, including a set of measuring systems (metering devices, data collection and transmission devices, software products for collecting, storing and transmitting metering data), in cases where they are installed at the expense of the owners premises in an apartment building, including as part of the performance of the obligation to install metering devices in accordance with the requirements of the Federal Law “On Energy Saving and Improving Energy Efficiency and on Amendments to Certain Legislative Acts of the Russian Federation”; (Added by Decree of the Government of the Russian Federation dated December 26, 2016 No. 1498)
g) other facilities intended for the maintenance, operation and improvement of an apartment building, including transformer substations, heating points intended to serve one apartment building, collective parking lots, garages, children's and sports grounds located within the boundaries of the land plot on which the apartment building is located .
3. When determining the composition of common property, information on rights to real estate objects that are common property contained in the Unified State Register of Rights to Real Estate and Transactions with It (hereinafter referred to as the Register), as well as information contained in the state land cadastre, is used.
4. In the event of a discrepancy (contradiction) in information about the composition of common property contained in the Register, documentation of state technical accounting, accounting of managers or other organizations, technical documentation for an apartment building, the information contained in the Register takes precedence.
5. The common property includes in-house engineering cold and hot water supply systems, consisting of risers, branches from the risers to the first shut-off device located on the branches from the risers, the specified shut-off devices, collective (common house) cold and hot water metering devices, first shut-off devices - control valves on the outlets of intra-apartment wiring from risers, as well as mechanical, electrical, sanitary and other equipment located on these networks. (As amended by Decree of the Government of the Russian Federation dated May 14, 2013 No. 410)
The common property includes an in-house engineering drainage system, consisting of sewer outlets, fittings (including bends, transitions, pipes, revisions, crosses, tees), risers, plugs, exhaust pipes, drainage funnels, clearings, branches from risers to first butt connections, as well as other equipment located in this system. (Added by Decree of the Government of the Russian Federation dated May 6, 2011 No. 354)
The common property includes an in-house engineering gas supply system, consisting of gas pipelines laid from a gas source (when using liquefied petroleum gas) or the point of connection of these gas pipelines to the gas distribution network up to and including shut-off valves (taps), located on branches (drops) to the in-house gas supply equipment, tank and (or) group cylinder installations of liquefied hydrocarbon gases intended for supplying gas to one apartment building, gas-using equipment (with the exception of household gas-using equipment included in the internal gas equipment), technical devices on gas pipelines, including regulating and safety valves, gas control systems for premises, collective (common house) gas meters, as well as gas meters that record the volume of gas used in the production of utility services for heating and (or) hot water supply. (As amended by Decrees of the Government of the Russian Federation dated May 14, 2013 No. 410; dated September 9, 2017 No. 1091)
6. The common property includes an intra-house heating system, consisting of risers, heating elements, control and shut-off valves, collective (common house) heat energy metering devices, as well as other equipment located on these networks.
7. The common property includes an in-house power supply system, consisting of incoming cabinets, input distribution devices, protection, monitoring and control equipment, collective (common house) electricity metering devices, floor panels and cabinets, lighting installations in common areas, electrical installations smoke removal systems, automatic fire alarm systems of internal fire water supply, freight, passenger and fire elevators, automatically locking devices for the entrance doors of an apartment building, networks (cables) from the external border established in accordance with paragraph 8 of these Rules to individual, common (apartment) electrical energy metering devices, as well as other electrical equipment located on these networks.
The common property does not include an intelligent electrical energy (power) metering system, including collective (common house) electrical energy metering devices that provide the possibility of their connection to intelligent electrical energy (power) metering systems; the obligation to purchase, install, replace, and authorize commissioning, as well as subsequent operation of which is entrusted to the guaranteeing suppliers of electrical energy in accordance with the Federal Law “On Electric Power Industry”. (Added from July 1, 2021 - Decree of the Government of the Russian Federation dated June 29, 2020 No. 950)
8. The outer boundary of electricity, heat, water supply and sewerage networks, information and telecommunication networks (including wired radio broadcasting networks, cable television, fiber optic networks, telephone lines and other similar networks) included in the common property, unless otherwise is not established by the legislation of the Russian Federation, is the outer boundary of the wall of an apartment building, and the limit of operational responsibility in the presence of a collective (common building) metering device for the corresponding communal resource, unless otherwise established by agreement of the owners of the premises with the utility provider or resource supply organization, is the connection point of the collective (common building) ) metering device with the corresponding utility network included in the apartment building.
9. The outer boundary of the gas supply networks that are part of the common property is the point of connection of the first shut-off device with the external gas distribution network.
I1. Requirements in accordance with which a list of property is determined that is intended for joint use by owners of premises in several apartment buildings
The list of property that is intended for joint use by owners of premises in several apartment buildings who have decided to create a homeowners’ association in accordance with paragraph 1 of part 2 of Article 136 of the Housing Code of the Russian Federation may include common property in respect of which the decision provided for in paragraph 3 parts 2 article 44 of the Housing Code of the Russian Federation, namely:
a) common property specified in subparagraphs “e” and “g” of paragraph 2 of these Rules;
b) common property, if such property meets any of the following requirements:
joint use of common property is permitted by the design documentation in accordance with which the construction, reconstruction, major repairs of such houses were carried out, or by the technical documentation for these houses;
ensuring the operability of the common property in one apartment building from among such buildings is achieved subject to connection (technological connection) to the common property in another apartment building from among the specified buildings - for engineering systems, equipment, devices.
(As of July 1, 2016, the section has been supplemented - Decree of the Government of the Russian Federation dated May 30, 2016 No. 480)
II. Requirements for the maintenance of common property
10. Common property must be maintained in accordance with the requirements of the legislation of the Russian Federation (including on sanitary and epidemiological welfare of the population, technical regulation, protection of consumer rights) in a condition that ensures:
a) compliance with the reliability and safety characteristics of an apartment building;
b) safety for the life and health of citizens, safety of property of individuals or legal entities, state, municipal and other property;
c) accessibility of use of residential and (or) non-residential premises, common areas, as well as the land plot on which the apartment building is located, including for disabled people and other groups of the population with limited mobility; (As amended by Decree of the Government of the Russian Federation dated 07/09/2016 No. 649)
d) compliance with the rights and legitimate interests of premises owners, as well as other persons;
e) constant readiness of utilities, metering devices and other equipment included in the common property for the provision of utilities (supply of utility resources) to citizens living in an apartment building, in accordance with the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings (hereinafter referred to as the Rules for the provision of utility services); (As amended by Decree of the Government of the Russian Federation dated December 26, 2016 No. 1498)
f) maintaining the architectural appearance of an apartment building in accordance with the design documentation for the construction or reconstruction of an apartment building;
g) compliance with the requirements of the legislation of the Russian Federation on energy saving and increasing energy efficiency. (Added by Decree of the Government of the Russian Federation dated May 6, 2011 No. 354)
11. The maintenance of common property, depending on the composition, design features, degree of physical wear and tear and technical condition of the common property, as well as depending on the geodetic and climatic conditions of the location of the apartment building, includes:
a) inspection of common property carried out by the owners of premises and the responsible persons specified in paragraph 13 of these Rules, ensuring timely identification of non-compliance of the condition of common property with the requirements of the legislation of the Russian Federation, as well as threats to the safety of life and health of citizens;
b) ensuring the readiness of in-house engineering power supply systems and electrical equipment that are part of the common property for the provision of public electricity supply services; (As amended by Decree of the Government of the Russian Federation dated May 6, 2011 No. 354)
c) maintaining the premises that are part of the common property in a condition that ensures the temperature and humidity in such premises established by the legislation of the Russian Federation, including by constantly maintaining open air throughout the entire calendar year for the premises of basements and technical underground areas included in composition of common property, if there are vents in such premises; (As amended by Decree of the Government of the Russian Federation dated November 23, 2019 No. 1498)
d) cleaning and sanitary cleaning of common areas, as well as the land plot included in the common property;
e) collection and removal of liquid household waste, including waste generated as a result of the activities of organizations and individual entrepreneurs using non-residential (built-in and attached) premises in an apartment building; (As amended by the Decree of the Government of the Russian Federation dated February 27, 2020
Prohibition on alienation or allocation of a share of common property by the owner
The issue of alienation or allocation of a share of common property is regulated by Art. 37 Housing Code of the Russian Federation. After the determination of shares in the right of common shared ownership has occurred, prohibitions regulated by law are imposed on the participants in the agreement. In particular, the article regulates the ban on the alienation of shares.
According to Art. 290 clause 2 of the Civil Code of the Russian Federation, a property share cannot act as an independent object of civil transactions. Accordingly, the principle follows from this norm that a share in common property cannot be alienated separately from real estate. In addition, the owners of a residential shared building are not given the right to implement in practice other actions that entail the provision of this share separately from the rights of ownership of the apartment.
Determining shares in the right of common ownership of common property is a rather complex procedure that requires the participants to have good legal knowledge. Therefore, when registering rights, it is recommended to contact professional lawyers who will bring all the documentation into proper form.
Author of the article
News
May 8, 2020
Common property in an apartment building: advantages of state registration
Dear applicants!
When purchasing an apartment or other non-residential premises (office, store), you need to take into account that you become the owner of not only the purchased property, but also at the same time, by force of law, a participant in shared ownership of the common property of an apartment building.
State registration of the right to common property in the Unified State Register of Real Estate is of a declarative nature and at the same time is the only evidence of the existence of a registered right, as well as the basis for guaranteeing the constitutional rights of citizens to own, use and dispose of their property. In this article we will try to highlight the advantages of state registration of the common property of an apartment building.
First of all, let us clarify that the common property of an apartment building is a broad concept. The Housing Code includes everything that is in a house outside of apartments, non-residential premises, including the roof, technical floors, rooms in basements, attics, landings and stairs, corridors, elevators, strollers, etc. In addition, the land plot under the house along with the surrounding area is common property.
The common property belongs to all owners of premises (apartments, offices, etc.) in this apartment building, that is, each owner owns a share in the right. The shares of all owners are recognized as proportional to the area of the premises owned, that is, the larger the size of the apartment or non-residential premises, the larger the size of the share in the right to common property.
Please note that the law recognizes common property as a single, indivisible piece of real estate, which means that the right of ownership arises not for the elevator or the roof of the house separately, but for all common property as a whole.
The principle of a single legal fate of your share in the right to common property and your apartment (non-residential premises) has also been established. This means that when acquiring ownership of premises in an apartment building, the acquirer receives a share in the right of common ownership of common property in the apartment building, regardless of whether the document that is the basis for registering the transfer of ownership of the premises (for example, in an agreement on the alienation of property) ), an indication of this. However, an application to transfer the right to a land plot during state registration is mandatory. It will not be possible to sell common property separately, including a land plot for an apartment building.
According to the provisions of the current legislation, regardless of whether state registration of the right of shared ownership of the common property of an apartment building is carried out or not, from the moment the land plot is formed and its state cadastral registration is carried out, the land plot on which the apartment building and other components are located of such a house, real estate objects pass free of charge into the common shared ownership of the owners of the premises in the apartment building. Land surveying makes it possible to determine clear boundaries of the territory in which management companies are required to carry out their activities (plant trees, mow grass, remove garbage, snow, etc.). You can find out whether the plot under the house is registered in the cadastral register on the “Public Cadastral Map” of Rosreestr. In other words, the right of shared ownership of the common property of an apartment building arises from the owner of the premises by force of law and is not related to the moment of state registration of the right. Registration of common property in MKD is of a declarative nature.
To carry out state registration of a land plot, you must contact the nearest multifunctional center, submit an application for state registration and pay a state fee of 200 rubles.
At the same time, it should be noted that modern realities dictate the vital need for proper registration, that is, state registration, of the right of common ownership of common property in an apartment building. First of all, this is due to certain opportunities to influence the living environment (for example, arrangement of the local area, organization of parking lots, children's playgrounds, restriction of the passage of foreign cars, transfer of certain components of common property for the use of other persons, etc.). As co-owners of the common property, you can control the use of the land under your home, basement, attic, etc. Together with your neighbors, you will be able to make decisions on the possible transfer of such property for rent (for example, the wall of a house can be rented out for advertising, the roof can be rented out for placing equipment, etc.). The income from such rent will be used for general house needs. Or, conversely, you will be able to object to the use of common property in a way that does not suit you. These opportunities appear for residents of an apartment building after the emergence of the right of common shared ownership of common property (especially such an element as the corresponding land plot) and confirmation of the emergence of such a right.
An important fact is that the property and land plots that are part of the common property of the MKD, according to clause 2 of Art. 389 of the Tax Code of the Russian Federation from 01/01/2015 are excluded from the objects of taxation.
The Rosreestr Office recommends not to neglect this information and to take measures so that the right of common shared ownership of the common property of an apartment building, including a land plot, that has arisen by force of law, is registered in the Unified State Register of Real Estate, in order to subsequently be able to dispose of this property (organization of car parking, installation of playgrounds, placement of advertising structures, etc.).
Share of common property and ownership
A share in the right of common shared ownership is a category that has repeatedly become a determinant for conflict situations between the owners of apartment buildings. In particular, the key factor for the emergence of property conflicts is the right of common shared ownership.
The definition of the right to common shared ownership can be considered in an objective and subjective sense. In the first case, we are talking about a set of legal norms that regulate relations regarding ownership of property (which is a single whole) by several persons at one time, but in clearly demarcated shares. As for the right of shared ownership in the subjective sense, it is understood that two or more citizens can jointly own, manage and use allocated shares in an apartment building at their own discretion.
The right of common shared ownership can arise taking into account the grounds of various and varied legal facts.
However, drawing a conclusion based on practice, in most cases the right arises after the completion of a civil transaction that was carried out by several persons, for example, a sale and purchase.
The share in the right of common ownership in common property duplicates the fate of the right of a residential apartment. In other words, if the prerogative to use real estate passes to another owner, then the powers of disposal will correspond to the scope of the rights of the previous owner.
Consulting housing and communal services/homeowners association/residential property management
With the development of the institution of property, citizens have problems with state registration of the right of common shared ownership of common property in an apartment building. In this article I will try to answer the questions that concern you.
What is the common property of owners in an apartment building?
In accordance with Art. 36 of the Housing Code of the Russian Federation, the owner of an apartment in an apartment building, along with the premises occupied by him as an apartment, also owns a share in the right of common shared ownership of the common property of the house, i.e. premises owners can register a share proportional to the occupied area for the following property:
- the land plot on which this house is located, with elements of landscaping and improvement and other objects intended for the maintenance, operation and improvement of this house, located on the specified land plot.
- buildings and structures (located on a common site and related to the common property of a given house);
- 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), as well as roofs enclosing load-bearing and non-load-bearing structures of a given house, mechanical, electrical, sanitary and other equipment located in a given house outside or inside the premises and serving more than one room;
The owners of residential and non-residential premises in an apartment building own, use and, within the limits established by housing and civil legislation, dispose of the common property in the apartment building, while the share in the right of common ownership of the common property in the apartment building of the owner of the premises in this building follows the fate of the ownership right to the specified room. When transferring ownership of premises in an apartment building, the share in the right of common ownership of the common property in this building of the new owner of such premises is equal to the share in the right of common ownership of the specified common property of the previous owner of such premises.
The right of common shared ownership of common property belongs to the owners of premises in a building (house) by force of law, regardless of its registration in the Unified State Register of Rights.
The owner of premises in an apartment building does not have the right to:
- to allocate in kind your share in the right of common ownership of common property in an apartment building;
- alienate one’s 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.
Is state registration of the right to common property in a house required?
Registration of the right to common property is mandatory in the following cases:
1. Construction of a new common property;
2. Acquisition of a common land plot;
3. Concluding transactions for the transfer of common real estate for use;
4. Setting restrictions.
What regulations establish the procedure for registering the right to common property in an apartment building?
1. Article 23 of the Federal Law of July 21, 1997. No. 122-FZ “On state registration of rights to real estate and transactions with it” (hereinafter referred to as the Registration Law), it is established that state registration of rights to real estate and transactions with it in apartment buildings is carried out in accordance with this Federal Law and the Housing Code of the Russian Federation.
2. Instructions on the specifics of making entries in the Unified State Register of Rights to Real Estate and Transactions with It during the state registration of rights to real estate objects that are common property in an apartment building, providing information on registered rights of common shared ownership of such real estate objects, approved Order of the Ministry of Justice of the Russian Federation dated February 14, 2007 No. 29 regulates issues related to the specifics of making entries in the Unified State Register of Rights to Real Estate and transactions with it when carried out by territorial bodies of the Federal Service for State Registration, Cadastre and Cartography, state registration of rights to real estate and transactions with them, as well as maintaining title documents, providing information on registered rights of common shared ownership of these objects.
Who can apply for state registration of the right to the common property of an apartment building?
Submission of documents for state registration of the right of common shared ownership of real estate objects is carried out in accordance with the Registration Law (including articles 16, 17 and 18 of the Registration Law).
Applications for state registration of the right of common shared ownership of real estate, restrictions (encumbrances) of this right may be submitted:
- all owners of premises in an apartment building;
- representatives of the owners of premises in an apartment building, if this right is granted to them on the basis of duly executed powers of attorney, by a decision of the general meeting of owners (minutes), on other grounds in accordance with the law;
- the chairman and (or) other member of the board of the homeowners association (hereinafter referred to as the HOA) in the presence of a document confirming the authority (the authority is confirmed by these persons presenting the charter of the HOA (original or notarized copy), a document certifying the election of the person to whom this right is granted, chairman, member of the board of the HOA, the relevant minutes of the general meeting of the HOA members (original or notarized copy);
- a person in whose favor a restriction (encumbrance) of the registered right of common shared ownership of real estate objects has been established, provided that the common property was previously registered in the Unified State Register.
If, at the time of submitting documents for state registration of the existence of the right of common shared ownership of real estate in the existing development of settlements, there are no records in the Unified State Register of Rights to Real Estate and Transactions with It on the state registration of the existence of rights of owners (individual owners) of premises in an apartment building that have arisen before the entry into force of the Registration Law (until January 30, 1998), originals and copies of title documents confirming that these persons have rights to the premises (for example, a certificate of inheritance) are also submitted. After the state registration of the right of common shared ownership of real estate objects, the originals of the title documents are returned to the applicant, and copies of the title documents are placed in the title document file.
Registration of rights to common property is possible only after registration of the owner’s right to his individual premises.
What is the size of the state fee for state registration of common property rights?
According to Art. 333.33 of the Tax Code of the Russian Federation for state registration of a share in the right of common ownership of common real estate in an apartment building, a state duty of 100 rubles is charged (for each owner of residential or non-residential premises).
An approximate list of documents required for state registration of the right of common shared ownership of real estate objects that are common property in an apartment building:
1. Applications for state registration of the right to common shared ownership (drawn up when receiving documents);
2. Identification document of the applicant or his representative;
3. A notarized power of attorney, if there is a representative or a protocol on the election of an elected official, who is vested with the rights to submit an application and receive documents after state registration of common property;
4. Payment document confirming payment of the state duty (100 rubles is paid by each owner of residential premises);
5. Decision (minutes) of at least 2/3 of the owners of premises of the general meeting of apartment owners in an apartment building on the size of shares in the right of common shared ownership of common property, indicating:
a) Shares in the right in the form of a simple fraction,
b) Each owner of the premises (full name, date of birth, passport details, place of residence or place of registration);
c) Details of the documents on the basis of which the premises belong (at least 2 originals) (Article 15 of the Law on the implementation of the Housing Code, Article 245 of the Civil Code, paragraph 39 of the Rules for maintaining the Unified State Register);
6. Certificates of state registration of ownership of apartments;
7. Title documents confirming rights to real estate (apartments);
8. Documents on the formation by a state authority or local government body of the land plot on which the apartment building is located, if the land plot was formed after the entry into force of the Housing Code (clauses 4, 5 of Article 16 of the Law on the entry into force of the Housing Code);
9. The decision of the general meeting of owners of premises in an apartment building on the formation of the land plot on which the apartment building is located (in the event that the land plot on which the apartment building and other real estate objects included in such a building are located has not been formed before the entry into force Housing Code) (clause 3 of Article 16 of the Law on the entry into force of the Housing Code);
10. Plans of real estate objects, including a cadastral passport of the land plot on which the apartment building is located (Articles 17, 18 of the Registration Law, paragraph 5 of Article 16 of the Law on the Enforcement of the Housing Code), as well as a technical registration document of the apartment building containing information about the composition of common property in an apartment building.
11. In accordance with Art. Art. 13, 17 of the Federal Law of July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it” and the requirements of the current legislation for carrying out a legal examination of documents, in addition to the above documents, from the applicant, if necessary, additionally Other documents may be required.
Is a certificate of state registration of the right of common shared ownership of common property in an apartment building issued?
A certificate of state registration of rights, in connection with the state registration of the right of common shared ownership of real estate objects, is not issued to the owner of premises in an apartment building.
Information on the state registration of the right of common shared ownership of real estate objects is included in the certificate of state registration of the right of ownership of an apartment or non-residential premises in an apartment building by entering into it a description of the real estate objects and indicating the size of the share in the right of common ownership of it.
The right holder of the premises (participant in common shared ownership of common property in an apartment building), who earlier, after state registration of ownership of the premises (residential or non-residential), was issued a certificate of state registration of the right, in which the size was not indicated in the “Type of right” column shares in the right to common property in an apartment building, after entering the relevant information into the Unified State Register, a certificate of state registration of the right can be re-issued.
In conclusion, I would like to remind you that the acquisition of rights entails obligations, including the payment of taxes on common property.
Ozerova M.S., chief specialist-expert of the Neryungri department
Newspaper "Industry of the North"
