Details about the rights and obligations of owners of non-residential premises in non-residential and residential buildings

Who has this status?

The owner of any real estate, both residential and non-residential, is the person whose rights are registered in the Unified State Register of Real Estate (Article 131 of the Civil Code of the Russian Federation, Article 1 of the Federal Law “On State Registration of Real Estate”). In the Russian Federation, the owner of such an object may be :

• A citizen or other person legally present in the country.
• Organizations, both commercial and non-profit.
• The state represented by both the Russian Federation as a whole (federal state property) and its individual subjects.
• Local government bodies (municipal property).

According to Part 2 of Art. 8 of the Constitution of the Russian Federation, all types and forms of property in our country are equal and are protected by law equally. Preferential protection of any one form (as in Soviet times) is no longer allowed.

REFERENCE: Therefore, whoever is the owner of the premises, his rights will be the same as those of any other owner.

Responsibility for breach of duty

The legislation equalizes the rights and responsibilities of owners of residential and non-residential premises of apartment buildings. Article 289 of the Civil Code of the Russian Federation regulates the obligations of owners of both types of real estate. For violations of regulations that make up the Civil Code of the Russian Federation, civil penalties may be applied. In certain cases, the perpetrator of violations may be held accountable in court.

Is the owner obligated to maintain the property and pay for housing and communal services?

Article 210 of the Civil Code of the Russian Federation defines a list of responsibilities that must be strictly fulfilled in full and on time by all owners of non-residential property in multi-apartment buildings:

• during the operation of the property, take into account the legally guaranteed rights of other owners and residents of the house;
• use the property within the framework of current legislation;
• strictly observe sanitary and epidemiological standards;
• maintain order and cleanliness in the premises;
• carry out fire prevention measures of a preventive nature;
• pay housing and communal services on time;
• make contributions for the maintenance and repair of the house;
• pay taxes on time;
• coordinate repair and reconstruction activities with specialized government agencies, residents and other owners.

Resolution of the State Committee of the Russian Federation No. 170 dated August 27, 2003 approved a list of norms and rules for the technical operation of residential and non-residential real estate. The basic rules and norms for the operation of non-residential premises, generalized by functionality, are as follows:

1. rules aimed at ensuring fire safety;
2. rules ensuring trouble-free operation of technical equipment;
3. rules for maintaining appropriate sanitary conditions.

These rules and regulations are required to be observed by owners of non-residential real estate in apartment buildings. In order to take into account the rights of residents of apartment buildings, additional restrictions have been introduced on certain types of economic activities, the procedure and time for their implementation.

The nature of interaction to share the burden of maintaining joint ownership of an apartment building is also determined:

• The owner of a non-residential property finances the maintenance of all common building technical elements, communications and the surrounding area of ​​the building on the principle of joint participation together with the residents of the house.
• Current and major repairs of non-residential real estate are carried out by the owner at his own expense, taking into account current legislation and in agreement with the closest neighbors in the building.

• The implementation of sanitary and hygienic measures in non-residential premises is ensured by the owner independently. Cleaning of elements of joint ownership, which include office premises, is carried out jointly with the residents of the apartment building. The nature of participation is agreed upon individually.
• Several forms of management of non-residential real estate are allowed - personal, trust and outsourcing. If the premises are leased, management methods are determined by the tenant.
• The owner of non-residential real estate in an apartment building is obliged to make timely payment of the following utility payments: water supply and sanitation, heat supply, gas (if connected), electricity.

Strict adherence to the rules of ownership and use of non-residential premises in apartment buildings will allow property owners to avoid many conflict situations with management companies with residents of apartment buildings, as well as eliminate claims from government bodies, the settlement of which often involves significant financial costs.

Can it be several people at the same time?

The law allows ownership of premises not only by one person, but also by several at the same time. In this case, common property may be:

1. Shared – this occurs in the vast majority of cases. With it, each party owns a clearly defined share in the right to the premises.
2. Joint . With this form, shares are not determined in advance. This may happen if the premises belong to spouses (Article 34 of the RF IC), a farm (Article 257 of the RF Civil Code), SNT (Article 4 of the Federal Law No. 66-FZ dated 04/15/1998 - until January 1, 2021) or some other rare subjects.

What documents confirm ownership?

Rights to real estate are subject to state registration. Accordingly, in relation to non-residential premises, the supporting documents will be those issued by the registration authorities (currently Rosreestr). Such documents include:

• Until July 2021 – certificate of registration . The old documents have not lost their legal force, but new ones are no longer issued.
• Extract from the Unified State Register of Real Estate . As of today, this is the main and main document that confirms the status of the owner in relation to any premises, buildings and structures, as well as plots of land. This document now combines the data previously contained in the certificate and cadastral certificate.

The situation with real estate and the rights to it may change over time: the owner will sell the property, the organization will change its form, the property will be seized, etc.

IMPORTANT: Therefore, although the validity period of the extract is not limited by law, it is highly recommended not to use one that was issued more than 30 days ago.

Burden of maintaining property (Article 210 of the Civil Code). Draft commentary

Dear Colleagues! As part of the preparation of a commentary on the provisions of the Civil Code on property rights, I will post a draft commentary on Art. 210 GK. This is a very raw text, it will undergo further significant changes. But to optimize the work, I would like to collect all wishes, remarks and comments as early as possible. Therefore, if anyone is not too lazy, please write what else to pay attention to, etc. Due to my vacation, I apologize in advance that I will not be able to respond promptly. But I will try - to the best of my ability. Thank you!

Article 210. Burden of maintaining property

The owner bears the burden of maintaining the property he owns, unless otherwise provided by law or contract.

1. Rule Art. 210 of the Civil Code reflects the general rule, expressed, in particular, in the decisions of the Constitutional Court of the Russian Federation No. 10-P of 04/12/2016, No. 28-P of 07/03/2018 and No. 06/22/2017 No. 16-P: “as a general rule, the person to whom owns the property and bears the burden of maintaining it.”

The burden of maintaining your belongings can manifest itself in several ways. First of all - and, apparently, this was the meaning that was originally intended in the commented norm - the burden of maintaining property means that, as a general rule, it is the owner who bears the risk of negative consequences of neglecting the thing. It is the owner who is obliged to take care of the safety of his property, to take care of it, and if this is not done, then he will reap the fruits of his negligence and will not be able to demand compensation from anyone for his losses. For example, if an owner does not make timely repairs to his individual house, as a result of which it is destroyed, he will not be able to demand from the state or municipality to repair his house.

In the case of common property, the burden of maintaining the property is distributed among its participants. In particular, a participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on common property, as well as in the costs of its maintenance and preservation (Article 249 of the Civil Code of the Russian Federation). If any of the participants in common property avoids incurring expenses for the maintenance of the common property, the owners who incurred such expenses have the right to demand unjust enrichment from him.

For example, in one of the cases, the plaintiff filed a lawsuit to recover unjust enrichment from the defendant in the form of a share of the costs of maintaining common property. The courts came to the conclusion that, being the owners of part of the non-residential premises in the building complex, the plaintiff and defendant are participants in the common shared ownership of the common property of the building complex and, in accordance with Articles 210 and 249 of the Civil Code of the Russian Federation, are obliged to participate in the costs of maintenance and preservation of common property. Having established the absence of a written agreement between the parties on compensation for the costs incurred by the plaintiff for maintaining the property, the courts correctly concluded that the provisions on unjust enrichment and the obligation of the defendant to return to the plaintiff the property unjustly saved at the latter’s expense (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.10.2009 No. 7349/09 in case No. A60-15186/2008-C3).

However, in relation to residential buildings, the clarification of the Plenum of the Supreme Court, which dates back to Soviet times, still applies that “each participant in common shared ownership is obliged to bear the costs of maintaining the property in proportion to his share. At the same time, in exceptional cases, the court may deviate from this principle and distribute expenses taking into account the financial situation of the co-owners, health status and other circumstances worthy of attention" (Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 10, 1980 No. 4 (as amended on February 6, 2007) “On some issues of the practice of courts considering disputes arising between participants in common ownership of a residential building”). This “Soviet” explanation should long ago be considered morally outdated, and the degree of participation in the costs of maintaining common property should not depend on financial situation, health and other similar subjective factors.

At the same time, the degree of participation in the costs of maintaining common property may be determined by other, in addition to the size of the share in ownership, objective factors. For example, in Resolution No. 5-P dated January 29, 2018, the Constitutional Court of the Russian Federation indicated that “the legally established criterion for distributing the burden of expenses for maintaining common property in an apartment building, namely the share of a specific owner in the right of common ownership of common property in an apartment building , in itself does not exclude the possibility of taking into account, when making this decision, the characteristics of the relevant premises (in particular, their purpose), as well as other objective circumstances, which - subject to maintaining a balance of interests of various categories of owners of premises in an apartment building - can serve as a sufficient basis for changing shares their participation in the mandatory costs of maintaining common property (the ratio of the total area of ​​residential and non-residential premises in a particular house, the nature of the use of non-residential premises, etc.). This approach makes it possible to ensure, on the basis of the autonomy of the will of the owners of premises in an apartment building, their decision to establish the amount of payment for the maintenance of residential premises or the amount of mandatory payments and (or) contributions associated with paying the costs of maintaining common property in an apartment building, based on specific characteristics of the relevant premises and the conditions for their use, despite the fact that the choice of additional criteria for determining the share of participation of the owners of one or another type of premises in the mandatory costs of maintaining common property in an apartment building should not be carried out arbitrarily, and the differentiation of the amounts of the corresponding payments based on these criteria should not lead to to unacceptable differences in the legal status of owners of premises in an apartment building belonging to the same category.”

1.1. The development of the practice of applying the commented norm has led to a gradual expansion of its meaning compared to the literally understood one, and now the burden of maintenance is no longer understood only as a determination of who bears the consequences of neglecting the physical condition of a thing.

In particular, the commented norm can be used when resolving a vindication claim - to determine whether the plaintiff has demonstrated the will to dispose of property from his possession. In one of the cases included in the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 1 (2015), the following is noted. “The correct resolution of the issue of the possibility of reclaiming property from someone else’s illegal possession requires establishing whether the owner’s will to alienate the property was or was not expressed. ...By virtue of the provisions of Art. 210 of the Civil Code of the Russian Federation, the owner bears the burden of maintaining the property he owns; therefore, to fulfill this obligation, he must be interested in the fate of this property. S., after the expiration in 2007 of the power of attorney dated April 23, 2004 issued to a third party for the sale of property, did not exercise the powers of the owner in relation to the land plot, did not bear maintenance costs, thus by his actions confirming his consent to the removal from his possession land plot subsequently acquired by K.” (Definition No. 4-KG14-25).

State registration of the right to it has come to be understood as a feature of the burden of maintaining real estate in cases where the right of ownership - in cases provided for by law - arises without such registration. Despite the fact that the emergence of ownership of real estate in such cases arises regardless of state registration, failure to do so may have negative consequences for turnover, and therefore the owner who neglected it may be forced to bear certain negative consequences. This approach is reflected, in particular, in the decisions of the Constitutional Court of the Russian Federation No. 28-P of 07/03/2018 and No. 06/22/2017 No. 16-P: “as a general rule, the person who owns the property bears the burden of its maintenance, covering, as the Constitutional Court indicated Court of the Russian Federation, and state registration of the right to such property by its owner.” The inaction of a participant in civil transactions who has not formalized the right of ownership within a reasonable period of time, to a certain extent, creates the preconditions for its loss, as noted in Resolution No. 16-P. This position is shared by the Supreme Court of the Russian Federation: “By virtue of the provisions of Article 210 of the Civil Code of the Russian Federation, the owner of property, as a general rule, bears the burden of maintaining the property belonging to him, which, in turn, presupposes the proper registration of his right (registration) and its protection” (Definition Supreme Court of the Russian Federation dated March 13, 2018 No. 4-KG17-80).

2. Strictly speaking, the burden of maintaining a thing, understood in the literal sense, cannot be considered the responsibility of the owner, because, as a general rule, no one can force him to take care of his thing - after all, he, as the owner, has the right to perform any actions in relation to his thing, and therefore has the right to neglect it.

However, although, as a general rule, the owner exercises his right with his own will and in his own interest, in some cases the law, in order to ensure public interests, can turn the need to take care of his property into the owner’s responsibility, when evading the maintenance of the thing will not just lead to an actual deterioration in its condition , but also to sanctions.

In this case, the burden of maintaining property can also be considered as a manifestation of the principle “property obliges”, known to both private and constitutional law. For example, para. 2 tbsp. 14 of the Constitution of the Federal Republic of Germany of 1949 establishes that “property obliges”, and “the use of it must simultaneously serve the common good.” Similar provisions are included, in particular, in the constitutions of Italy 1947, Portugal 1976, Spain 1978, Brazil 1988, Ukraine 1996.

In the Russian Constitution of 1993, the concept of the social function of property is not directly enshrined, despite the fact that it was initially planned to be enshrined; There is no such general rule in the Civil Code of the Russian Federation. Nevertheless, there are separate norms reflecting this approach in Russian law, and the very possibility of such an approach is reflected in the position of the Constitutional Court of the Russian Federation: in Resolution No. 6-P dated May 31, 2005 in the case of reviewing the constitutionality of the Federal Law of April 25, 2002. No. 40-FZ “On compulsory insurance of civil liability of vehicle owners”, the Constitutional Court of the Russian Federation indicated that the right of ownership, within the limits determined by the Constitution of the Russian Federation, presupposes not only the possibility for the owner to exercise the powers of ownership, use and disposal of property that constitute this right, but also to bear the burden of maintenance property belonging to him (Article 210 of the Civil Code of the Russian Federation), and therefore, when regulating the content of property rights and ensuring the protection of the health, rights and legitimate interests of other persons by imposing on the owners additional responsibilities and encumbrances associated with the ownership of property, the federal legislator must also take into account the special characteristics owned objects, the use of which is associated with an increased danger to others.

For example, the owner of a land plot of agricultural land not only bears the obligation not to use his plot other than for its intended purpose, but is also obliged to do this: non-use of a land plot of agricultural land for activities related to agricultural production within the period established by law, is an administrative offense (part 2 of article 8.8 of the Code of Administrative Offenses of the Russian Federation). Failure to use a land plot intended for housing or other construction, gardening, vegetable gardening, for the specified purposes, if the obligation to use such a land plot within a specified period is provided for by federal law, also entails the imposition of an administrative fine (Part 3 of Article 8.8 of the Code of Administrative Offenses of the Russian Federation ).

Article 13 of the Land Code of the Russian Federation imposes on the owner of a land plot, in order to protect land, the obligation to carry out measures to reproduce the fertility of agricultural lands, protect lands from water and wind erosion, mudflows, flooding, waterlogging, secondary salinization, desiccation, compaction, pollution by chemicals, including including radioactive, other substances and microorganisms, pollution by production and consumption waste and other negative impacts, protection of agricultural land from overgrowing with trees and shrubs, weeds, maintaining the achieved level of reclamation (Part 2).

In some cases, the content of the right of ownership can be almost completely reduced to the owner’s bearing the responsibilities associated with the property he owns (see, for example, Federal Law of June 24, 1998 No. 89-FZ “On Production and Consumption Waste”).

A well-known example of the owner’s obligation to maintain his property can be considered the burden of maintaining the housing he owns, which lies on the owner. In the domestic legal tradition, it is generally accepted that residential premises are objects of particular significance for society. Therefore, owners are obliged to take measures to ensure the safety of the home. In accordance with Art. 30 of the Housing Code, the owner of a residential premises is obliged to maintain this premises in proper condition, preventing mismanagement of it. According to Art. 293 of the Civil Code of the Russian Federation, if the owner mismanages the housing, allowing it to be destroyed, the local government body may warn the owner about the need to eliminate the violations, and if they lead to the destruction of the premises, also assign the owner a proportionate period for repairing the premises; If the owner, after a warning, continues to use the residential premises for other purposes or fails to make the necessary repairs without good reason, the court, at the request of a local government body, may decide to sell such residential premises at public auction with payment to the owner of the proceeds from the sale, minus the costs of executing the legal action. solutions.

A similar rule is established, for example, for mismanaged cultural property: “In cases where the owner of cultural property, classified in accordance with the law as especially valuable and protected by the state, mismanaged these values, which threatens them with the loss of their meaning, such values, by decision ships can be seized from the owner by redemption by the state or sale at public auction” (Article 240 of the Civil Code of the Russian Federation).

2.1. A striking example of a combination of the rules of Art. 210 of the Civil Code, rules on common property and special rules of housing legislation can be considered rules on financing the capital repairs of an apartment building.

According to Part 3 of Art. 158 of the Housing Code of the Russian Federation, the obligation to pay the costs of major repairs of an apartment building applies to all owners of premises in this building from the moment the ownership of the premises in this building arises. As the Supreme Court of the Russian Federation rightly pointed out in one of its decisions, “this norm specifies the general provision of Article 210 of the Civil Code of the Russian Federation, according to which the owner bears the burden of maintaining the property he owns” (Decision of the Supreme Court of the Russian Federation dated November 26, 2012 No. AKPI12-1337). This is also indicated by the Constitutional Court of the Russian Federation in Resolution No. 10-P dated April 12, 2016: “due to the general principle of civil legislation that the owner bears the burden of maintaining his property, the Housing Code of the Russian Federation ... establishes for all owners of premises in an apartment building the obligation ... not only to bear expenses for their maintenance, but also to participate in the costs of maintaining common property in an apartment building in proportion to their share in the right of common ownership of it by paying fees for the maintenance of residential premises and contributions for major repairs.”

The specificity of ownership of premises in an apartment building and the apartment building itself is that from a practical point of view, without a direct prescription of the law, it would be extremely imprudent to rely on the ability of the owners to independently organize the collection of funds for the maintenance of the house. This is especially true when it comes to raising funds for such an expensive undertaking as a major home renovation. The Constitutional Court of the Russian Federation in its Resolution No. 10-P dated April 12, 2016 on this matter indicated that major repairs “are possible only in the case of timely and full participation of the owners of all premises in such houses in the costs of performing the relevant repair work. Since, due to a number of objective reasons (the number of owners of premises in an apartment building, the complexity and diversity of objects related to common property, etc.), as well as due to the high cost of major repairs and the resulting difficulty of a one-time and one-time collection of funds for their implementation of independent capital repairs exclusively by the owners themselves is in most cases practically impossible; their fulfillment of the obligation to maintain common property in apartment buildings should be reduced, first of all, to financing repair work carried out by third parties, which involves the introduction of legal mechanisms to ensure the accumulation and attraction of necessary and sufficient funds for such financing.”

Therefore, in accordance with Art. 169 of the Housing Code of the Russian Federation, owners of premises in an apartment building are required to pay monthly contributions for major repairs of common property in an apartment building (Part 1), which go to the capital repair fund (Part 1, Article 170 of the Housing Code). In Resolution No. 10-P dated April 12, 2016, the Constitutional Court of the Russian Federation indicated that “the incurrence of expenses for the maintenance of common property in an apartment building, including the costs of major repairs, for each of the owners of premises in this building is not just an integral part of the maintenance burden property belonging to him (Article 210 of the Civil Code of the Russian Federation), but also the obligation that follows from the fact of participation in the right of ownership of common property and which a participant in common shared ownership bears, in particular, to its other participants, which ensures the safety of each specific premises in an apartment building, and the house itself as a whole.”

3. The burden of maintenance also implies the bearing of various encumbrances associated with a thing that are of a public legal nature. For example, “the costs of maintaining property also include the obligation to make payments for negative impacts on the environment” (Resolution of the Supreme Court of the Russian Federation dated August 1, 2017 No. 18-AD17-17).

If a thing is subject to taxation, the corresponding tax, as a general rule, is paid by the owner. Otherwise may be established by law - for example, land tax is paid by persons who own land plots on the right of permanent (perpetual) use or the right of lifelong inheritable possession; in relation to land plots included in the property of a mutual investment fund, management companies are recognized as taxpayers (clause 1 of article 388 of the Tax Code of the Russian Federation).

Since such obligations are often established within the framework of public legal regulation, they can be established at both the regional and local levels. For example, the Regional Law of the Leningrad Region on administrative offenses in Art. 4.10 establishes liability for violation of the requirements established by local government bodies of the Leningrad Region for mowing and harvesting wild grass, uprooting and removing wild bushes on a land plot owned by a person.

At the same time, “local” law-making is not allowed in terms of shifting the burden of maintaining property to another person (see below).

4. The owner not only bears the burden of maintaining his thing in the above senses, but is also obliged to take care that this thing does not cause a violation of the rights and interests of other persons. For example, French civil law contains a rule on the liability of the owner for harm caused by his property (according to Article 1242 of the Federal Civil Code, the owner is responsible for harm caused by a thing belonging to him; in particular, the owner of an animal is responsible for the harm caused by the animal (Article 1243 of the Federal Civil Code)).

The absence of such a rule in Russian civil law does not prevent the implementation of this rule by domestic judicial practice.

In particular, the Constitutional Court of the Russian Federation has repeatedly indicated that the right of ownership presupposes the owner bearing the burden of maintaining the property belonging to him, including in order to prevent harm to other persons (resolutions dated May 31, 2005 No. 6-P, dated April 22, 2011 No. 5-P , definitions dated 04/16/2009 No. 495-О-О, dated 12/24/2012 No. 2353-O, etc.).

The Supreme Court, in Ruling No. 4-KG17-78 dated February 20, 2018, stated the following: “Article 210 of the said code provides that the burden of maintaining the property owned by him is borne by the owner, unless otherwise provided by law or contract. Within the meaning of the above rule of law, the burden of maintaining the property by the owner also presupposes the owner’s responsibility for damage caused as a result of improper maintenance of this property.” The Determination in Case No. 8-B09-10, included in the Review of Legislation and Judicial Practice of the Supreme Court of the Russian Federation for the fourth quarter of 2009, states the following: “Meanwhile, Art. 210 of the Civil Code of the Russian Federation, while determining that the burden of maintaining property lies with the owner, does not regulate issues of compensation for harm caused as a result of the use of this property. Spouses B., as joint owners of property, bear the joint burden of maintaining it. In this case, this means that they were jointly obliged to ensure such conditions for keeping their dog that would prevent harm to other persons. This obligation was not fulfilled by the defendants jointly, and therefore they are obliged to compensate jointly for the damage caused to the plaintiff’s health in accordance with Art. 1080 of the Civil Code of the Russian Federation.”

At the same time, objective imputation by imposing liability on the owner for damage caused by a thing without establishing the grounds for tortious liability should not be allowed. For example, the Ruling of the Supreme Court of the Russian Federation dated September 28, 2010 No. 5-B10-71 reflects the following position. A fire occurred in a house owned by the defendant, as a result of which the said house burned down and also damaged the house owned by the plaintiff. The plaintiff filed a lawsuit against the defendant for the recovery of 1,895,000 rubles. to compensate for the damage caused, as well as to reimburse him for the costs of paying for the services of an expert and representative, citing the fact that damage to his property was caused as a result of a fire in the defendant’s house, and the defendant, as the owner of this house, is obliged to properly maintain his property and monitor its safety. The claim was partially satisfied. The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation found the supervisory complaint to be satisfied on the following grounds: “According to Art. 210 of the Civil Code of the Russian Federation, the owner bears the burden of maintaining the property belonging to him, unless otherwise provided by law or contract. In accordance with Part 1 of Art. 1064 of the Civil Code of the Russian Federation, harm caused to the person or property of a citizen, as well as harm caused to the property of a legal entity, is subject to compensation in full by the person who caused the harm. From this legal norm it follows that liability occurs under a set of conditions, which includes the presence of harm, the illegality of the behavior of the harm-doer, as well as the cause-and-effect relationship between the unlawful actions and the adverse consequences that occur. The absence of one of the listed conditions is grounds for refusal to satisfy the claim for damages.” Taking this into account, the Judicial Panel came to the conclusion that in such circumstances it cannot be recognized as legal for the court to impose the obligation on the defendant to compensate for the damage caused to the plaintiff as a result of damage to the house by fire, since the court decision did not provide evidence that it was the defendant who violated the fire safety rules and is the causer of harm responsible for causing the fire.

However, even if there are no grounds for bringing the owner to tort liability, he is obliged to take action to stop such use of a thing belonging to him, which leads to a violation of the rights of other persons. A similar conclusion can be drawn, in particular, on the basis of the resolution of the Constitutional Court of the Russian Federation dated July 9, 2013 No. 18-P “In the case of verifying the constitutionality of the provisions of paragraphs 1 and 6 of Article 152 of the Civil Code of the Russian Federation in connection with the complaint of citizen E.V. Krylova". It follows from this Resolution that the owner of any property used by another person to cause harm to the victim is obliged to take all measures within his power to stop the violation.

5. By law or contract, the burden of maintaining a thing may be transferred to another person.

5.1. It must be remembered that the contractual imposition of the burden of maintaining a thing on another person has significance only in the relations of the parties to this agreement.

For example, the Presidium of the Supreme Arbitration Court of the Russian Federation in its Resolution dated April 12, 2011 No. 16646/10 indicated the following. By virtue of paragraph 1 of Article 158 of the Housing Code, the owner of premises in an apartment building is obliged to bear the costs of maintaining the premises belonging to him, to participate in the costs of maintaining common property in an apartment building in proportion to his share in the right of common ownership of this property by paying a fee for the maintenance and repair of residential premises . ... Due to the provisions of Articles 161, 162 of the Housing Code, the tenant of this property could not be directly responsible for concluding an agreement on his own behalf with a management company for the management of an apartment building and paying for the expenses incurred by it. The court’s reference to the fact that such a tenant’s obligation arises from the lease agreement is unfounded, since this agreement governs the relationship between the owner and the tenant.” The Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2015) also emphasizes the following. “The tenant’s obligation to maintain the property in good condition, carry out routine repairs at his own expense and bear the costs of maintaining the property (Clause 2 of Article 616 of the Civil Code of the Russian Federation) is established in relations with the lessor, and not with the utility service provider or resource supply organization, which is not a party lease agreement."

This circumstance must also be taken into account in order to bring tort liability for damage caused by a thing.

However, the assignment by the owner of his responsibilities for the maintenance of a thing by contract to another person may have completely different consequences when it comes to the performance of public duties. For example, in the Review of Judicial Practice of the Supreme Court of the Russian Federation for the second quarter of 2006, with reference to the requirements of the Federal Law “On Fire Safety,” it is stated that “responsibility for violation of fire safety rules rests with the person who owns, uses or disposes of property legally, that is, such a person can be either a lessor or a tenant. Since the parties to the lease agreement can themselves resolve the issue of the scope of responsibilities in the field of ensuring fire safety rules, a person who has not fulfilled the obligation assigned to him should be held accountable for violating these rules. Moreover, if this issue is not regulated in the lease agreement, then liability for violation of fire safety requirements can be assigned to both the tenant and the lessor, depending on whose unlawful, guilty action (inaction) formed the administrative offense for which liability provided for in Part 1 of Art. 20.4 of the Code of Administrative Offenses of the Russian Federation (Review of judicial practice of the Supreme Court of the Russian Federation dated September 27, 2006 “Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2006”).

5.2. The law's shifting of the burden of maintaining property onto the non-owner is not a rare phenomenon. For example, according to paragraph 2 of Art. 616 of the Civil Code of the Russian Federation “the tenant is obliged to maintain the property in good condition, carry out routine repairs at his own expense and bear the costs of maintaining the property, unless otherwise provided by law or the lease agreement.” The tenant may also be required by law to carry out major repairs. In particular, the Federal Law “On Heat Supply” establishes that the lessee of heat supply facilities that are in state or municipal ownership is obliged to maintain these facilities in good condition, carry out their current repairs and major repairs, and bear the costs of their maintenance (Part 1 of Article 28.3 ).

A well-known example of a law shifting the burden of maintaining property onto a person who is not its owner is provided by privatization legislation. Article 16 of the Law of the Russian Federation of July 4, 1991 No. 1541-1 “On the privatization of the housing stock in the Russian Federation” provides for the retention of the former landlord’s obligation to carry out major repairs of the house, if it was not carried out by him before the privatization by the citizen of the residential premises in the house requiring major repair. If the obligation to carry out major repairs of a residential building arose with the public owner at the time of privatization of the residential premises of the house by citizens, but the obligation to carry out major repairs was not fulfilled, the court, according to the Law, Art. 158 Housing Code of the Russian Federation and Art. 210 of the Civil Code of the Russian Federation, after the former landlord fulfills the requirement of the new owners of a residential building, he will oblige the former - public - owner to carry out major repairs of the house at the expense of budget funds (see, for example, the Determination of the Supreme Court of the Russian Federation dated November 27, 2017 No. 306-ES17-18128 in case No. A57-15601/2016). After the former owner fulfills the obligation to make major repairs, this responsibility already falls on the owners of the house: “Based on the systemic interpretation of Art. 16 of the above-mentioned obligation to overhaul residential premises, as well as common property in an apartment building, the obligation to carry out subsequent major repairs lies with the owners of residential premises, including citizens who have privatized residential premises" (Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter 2007, approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation dated 01.08.2007).

Imposing the burden of maintaining a thing on the non-owner by law is the prerogative of the federal legislator, since we are talking about regulating property relations. Thus, such an imposition is unacceptable by a normative act of a lower level, even if it deals with the regulation of public relations. For example, when considering cases in which, at the regional level, the owner of land plots was entrusted with the obligation to improve public lands adjacent to their plots, the Supreme Court of the Russian Federation considered that we were talking about shifting the burden of maintaining public property, and indicated: “Article 210 of the Civil Code of the Russian Federation established that the owner bears the burden of maintaining the property he owns, unless otherwise provided by law or contract. Consequently, cases of bearing the burden of maintaining property by a person who is not its owner can only be established by federal laws, to which the Landscaping Rules do not apply, or by agreement” (Decision of the Supreme Court of the Russian Federation dated April 17, 2018 No. 50-KG18-6).

The burden of maintaining a thing imposed by law on the non-owner may not have the property of his obligation to the owner. For example, Art. 13 of the Land Code of the Russian Federation provides for the obligation of land users, landowners and tenants to take measures to reproduce the fertility of agricultural lands; protection of lands from water and wind erosion, mudflows, flooding, swamping, secondary salinization, drying out, compaction, pollution with chemicals, etc. If we talk, for example, about a person who owns a land plot on the right of lifelong inheritable ownership, it can hardly be assumed that this is his private legal obligation in relation to the public owner.

5.2.1. The imposition by law of obligations for the maintenance of property on the non-owner may lead to the emergence of his obligations to third parties.

For example, the Presidium of the Supreme Arbitration Court of the Russian Federation, in its Resolution No. 15066/12 of June 11, 2013, indicated that housing legislation establishes the obligation of tenants living in multi-apartment residential buildings under social tenancy agreements to pay a fee for the maintenance of the common property of a residential building directly to the management organization if it manages a residential building. The owner of these residential premises bears these expenses only until the residential premises are occupied. This conclusion was later confirmed by the Supreme Court of the Russian Federation, which noted that, as a general rule, when transferring apartments owned by a municipality to citizens under a social tenancy agreement, the obligation to pay the utility service provider a fee for the maintenance and repair of common property in an apartment building and fees for utilities lies with the employer (Review of judicial practice of the Supreme Court of the Russian Federation No. 2 (2015), approved by the Presidium of the Supreme Court of the Russian Federation on June 26, 2015).

How can you find out who the owner is by looking at the address of a house?

Quite often in practice a situation arises when only the address of the premises is known, but not its owner. Is it possible to find out who owns a premises based on its location?

Yes, it can be done. The fact is that the USRN data is available to everyone. In order to obtain complete information about the object, including information about the owner, you need to send a request to Rosreestr and order an extract from there :

1. By personally contacting the Rosreestr branch at the location of the object.
2. Using the online service on the official website of this organization. However, for this, a person will need to pre-register on the State Services portal.

It must be remembered that although information from the Unified State Register is available to everyone, the service for issuing it is paid. As of the end of 2017 - beginning of 2021, this extract will cost citizens at least 300 rubles. The exact tariffs currently in effect should be found in Rosreestr.

Unscrupulous neighbors and common property in non-residential buildings: how to protect your rights

It often happens that a part of a building that previously belonged to one owner acquires a separate owner. In this case, the previous owner is not always ready to accept the neighbor and stop treating the building “as if it were his own.” Legal difficulties may arise with such a position. My colleague Ilshat Galimov, Deputy General Director of the First Legal Network, and I decided to look into the legal side of this issue.

Paragraph 2 of paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 No. 64 “On some issues of the practice of considering disputes about the rights of the owner of premises to the common property of a building” will help to clarify the situation. According to the document, from the moment at least one of the premises located in the building becomes the property of another person, the right of common shared ownership of the common property of the building arises. Ownership of the building as a whole is terminated, and a corresponding entry is made in the register. However, in practice, the owner of newly acquired premises continues to constantly face violations of his rights.

For example, the previous owner of the entire building independently places advertisements on the walls, and antennas of cellular operators on the roof, receiving money for this only in his own pocket. Or, from time to time, some innovations appear on the walls of buildings, roofs or foundations, and engineering communications are constantly undergoing changes. And so - in the summer the rooms are cold, and in the winter - hot (or vice versa). There are cases when, on the initiative of the previous owner of the entire building, the supply of energy resources is stopped, including to premises that no longer belong to him.

According to the position of the Supreme Court of the Russian Federation, the right of the owners of premises - participants in common shared ownership to own, use and dispose of common property cannot be interpreted as allowing one owner to violate the same rights of other owners, opposing them to their interests. The sole use of common property by one owner without the consent of others is contrary to the requirements of the law, since, by virtue of clause 4 of Art. 1 of the Civil Code of the Russian Federation, no one has the right to take advantage of their illegal or dishonest behavior.

There are tools to protect the interests of the new owner through substantive law. The new owner of the premises and the former sole owner legally jointly own the common property. The former “owner of the building” can be pointed out that he is derogating the ownership rights of the new owner of the premises (Article 301 of the Civil Code of the Russian Federation, paragraph 3, paragraph 9 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 64), and these are grounds for filing a claim. However, going to court with a negative claim for each fact of “innovations” by the previous owner of the building is also not an option. Another option is to go to court with a request to recognize the right of common shared ownership of common premises and equipment in the building.

As stated in paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 No. 64, such an application can be submitted by the new owner of individual premises in the building, including in cases where an entry is made in the register about the individual property rights of the previous owner of the building to common areas. The court considers such a requirement as similar to the owner’s demand to eliminate any violations of his rights that are not associated with deprivation of possession. Thus, such a statement is the same as the “classical requirement” under Art. 304 of the Civil Code of the Russian Federation is a negative requirement. Negative claims do not have a value assessment.

When filing a claim in court for recognition of the right to common property, not related to the deprivation of its possession, the applicant is faced with the first and seemingly obvious and legal requirement of the court - the need to pay the state fee as a property claim. In practice, such requirements of courts of general jurisdiction, which they enshrine in rulings on leaving a statement of claim without progress, unfortunately, occur very often. However, they are illegal and have no legal basis.

In accordance with the explanations contained in the joint letter of the Ministry of Finance of the Russian Federation and the Federal Tax Service of the Russian Federation dated August 1, 2012, when filing statements of claim with the courts of general jurisdiction with demands for recognition of ownership of real estate, which are associated with the subsequent registration of this right, must be paid National tax. The amount of the fee is determined depending on the value of the property, as when filing a claim of a property nature subject to assessment.

However, in the circumstances under consideration, the plaintiff’s demand for recognition of the right to common property is not aimed at obtaining:

• “additional” powers of the plaintiff to own, use and dispose of common premises and equipment in the building, which he already has by force of law;
• subsequent entry into the Unified State Register of Information about the plaintiff’s additional rights to own, use and dispose of common premises in the building (or new objects of ownership)

The request is aimed at canceling the record in the Unified State Register of Individual Ownership of the defendant for the common premises in the building. Accordingly, the stated claim is not of a property nature and is not subject to assessment.

This claim is not aimed at recognition of the plaintiff’s rights, but at the annulment of the defendant’s individual right of ownership of common property, which creates conditions or a threat for violation of the plaintiff’s rights and is a restorative claim.

The above legal position is confirmed by the ruling of the Supreme Court of the Russian Federation of August 28, 2021 N 83-KG18-13, which in its judicial act noted that in accordance with Article 304 of the Civil Code of the Russian Federation, the owner may demand elimination of violations of his rights, although these violations were not associated with deprivation of possession. One of the ways to protect a violated right is to restore the situation that existed before the violation of the right and to suppress actions that violate the right or create a threat of its violation.

Here it is useful to refer to paragraph 38 of the Review of the practice of resolving disputes by courts arising in connection with the participation of citizens in the shared construction of apartment buildings and other real estate. According to the document, in the described case, the requirements for recognition of the right of common ownership are aimed specifically at eliminating the violation of rights through challenging the right of individual ownership.

You can also refer to paragraph 52 of the resolution of the Plenum of the RF Armed Forces and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights.” The document explains that challenging the registered right to real estate is carried out by filing claims, decisions on which are the basis for making an entry in the Unified State Register. In particular, if the operative part of the judicial act resolves the issue of the presence or absence of law, which is assumed in the present case.

Thus, satisfaction of the requirements for the recognition and establishment in a judicial act of certain premises currently registered in the Unified State Register on the right of individual ownership of the defendant, the legal regime of common property in the building, will at the same time be the basis for the entry by the territorial bodies of Rosreestr at the location of the real estate corresponding entry in the Unified State Register.

Resolution of the Supreme Arbitration Court of the Russian Federation dated July 27, 2011 N 1457/11 establishes the conclusion that the court’s decision to recognize the right of common shared ownership is the basis for changing the information in the Unified State Register about the cancellation of the record of the defendant’s individual ownership of the disputed premises. A similar conclusion was confirmed in the decision of the Second Arbitration Court of Appeal dated January 16, 2014 in case No. A29-2992/2013.

In this case, the appellate court indicated that recognition of the right of common shared ownership excludes the existence of individual ownership of the municipality in the disputed property and there is no need to submit an independent demand to cancel the record of individual ownership of the municipality for common premises.

The decision of the Twentieth Arbitration Court of Appeal dated April 28, 2021 in case No. A54-3934/2013 noted the legitimacy of the conclusion that the requirement for partial cancellation of the record of registration of the defendant’s ownership of non-residential premises is not an independent requirement, but is a consequence of the requirement for recognition of the plaintiff's right to common shared ownership. In addition, in the said decision, the court recognized the legality of classifying this claim as a non-property claim.

The fact that the requirement for recognition of common shared ownership of common property in a building is a requirement of a non-property nature and is essentially aimed not at recognizing rights, but at suppressing actions that violate rights, is also reflected in the Cassation ruling of the Investigative Committee for civil cases of the Volgograd Regional Court dated 27 May 2011 in case No. 33-6626.

According to paragraph 53 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22, the defendant in a claim aimed at challenging a registered right is the person for whom the disputed right is registered. The state registrar is not a defendant in such claims, but may be involved in such cases as a third party who does not make independent claims regarding the subject of the dispute. At the same time, according to paragraph 4 of this paragraph of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation, the state registrar is obliged to make an entry in the Unified State Register on the basis of a judicial act, regardless of its participation in the case.

It is advisable to supplement the plaintiff’s first demand with another demand - “to determine the regime of ownership and use of common property in the building.” As a result of the first requirement, the court will determine the composition of the common property in the building - common premises and equipment, the main role of which is to ensure the life and functioning of the building as a whole. The second requirement helps determine the procedure for joint ownership and use of such property.

Since a future court decision must be enforceable, in order to satisfy the requirement arising from a negative claim to recognize the plaintiff’s right of common shared ownership of common property and equipment in the building, it must specifically define the common property, i.e. its individually defined characteristics must be indicated. The impossibility of obtaining such documents from the previous owner of the building is already a fact of violation of rights, which is not connected with deprivation of his possession. Accordingly, in such a situation, the new owner has the right to count on the protection of his interests.

Rights and obligations regarding property maintenance

A person who legally owns non-residential premises has the right:

• Use it in any way that does not violate the law.
• Dispose of it, including by selling, leasing, contributing to the authorized capital of business companies, etc.
• Protect your property from any attacks from outside, including through legal action.
• Use common property if the premises are located in an apartment building or building.

The owner of non-residential premises has the following responsibilities:

• Do not violate the legitimate interests of third parties when using the premises.
• Pay taxes on your property.
• Participate in bearing the costs of maintaining your property. This is especially important in the case when the object is owned by two or more persons: each of the co-owners bears expenses for it - either equal or in proportion to their shares (Article 249 of the Civil Code of the Russian Federation).
• Participate in the costs of maintaining common property - in proportion to the area owned in the building.
• Do not dispose of your share in the common ownership of home property separately from the premises. This means that although the owner of a premises in an apartment building owns a share in its infrastructure, he cannot sell, donate or, for example, mortgage it separately from the premises.

Owner's powers

According to Art. 217 of the Civil Code of the Russian Federation, the owner has the following rights:

• possession;
• order;
• use.

In practice, this means that the owner can take any actions in relation to his property. If we consider this issue in more detail, we can say that such an owner has the right to:

• alienate non-residential property (sale, exchange, rent, pledge);
• bequeath an object to certain subjects;
• carry out current and major repairs of the premises;
• reconstruct the property in agreement with government agencies;
• transform the property into a residential apartment/apartment;
• use property to make a profit and engage in business;
• conclude a real estate insurance contract;
• protect property by all legal means.

The rights of the owner are ideally unlimited, but in an apartment building it is always necessary to take into account the interests of neighbors. This means that it will be problematic for a person to freely reconstruct and increase the area of ​​the premises.

REFERENCE. If the property ambitions of the subject will affect the common property of the owners of the apartment complex, then it is necessary to hold a general meeting of residents and obtain their consent to this (Article 40 of the Housing Code of the Russian Federation).

Watch a video about the rights of owners of non-residential premises in apartment buildings:

Registration of transfer to another person

If the previous owner decided to dispose of his property and transfer it to another person for ownership, then the change of owner is formalized as follows :

1. A purchase and sale, gift or other agreement is drawn up, depending on the nature of the transaction.
2. The state fee is paid, an application, copies of the agreement and other necessary documents are submitted to Rosreestr directly, by mail or through the MFC.
3. At the time established by law, Rosreestr makes changes to the Unified State Register data and issues an extract to the new owner.

In the event that agreements have been concluded in relation to real estate that cannot be terminated in the event of a change of owner, the new person is obliged to notify the counterparties under such agreements about the changes that have occurred. Among such agreements, the most common is a lease agreement - and then a notice is sent to the tenant so that he knows to whom he must now pay rent.

IMPORTANT: The new owner changes the terms of the previously concluded contract, in accordance with Part 1 of Art. 617 of the Civil Code of the Russian Federation, he cannot do so of his own free will.

For the tenant, only written notice is sufficient . There is no need to draw up and sign an additional agreement with him, since the terms of the agreement, as expressly stated in the law, do not change.

Non-residential premises in MKD

Since the new year, the nature of the relationship between the organization managing the house (management company, homeowners' association, housing or housing construction cooperative) and the owner of non-residential premises has changed.

Previously, such an owner had two options to receive housing and utility services: in the general manner through a management company, homeowners association, housing complex/housing cooperative or by agreement with a resource supply organization (RSO). Now the owner of the premises must enter into resource supply agreements under direct contracts with the RSO. The organization managing the apartment building acts as a third party in these relations. It no longer provides housing and communal services to premises that are non-residential. However, with all this, the MA has new responsibilities.

At the moment, the management organization, homeowners association, housing or housing construction cooperative must:

• notify the owner of non-residential premises of the need to enter into agreements with the resource supply organization and the regional MSW operator;
• receive a number of documents and mandatory information from the owner of the premises;
• information about the owners of non-residential premises in an apartment building.

Such changes are associated with the advent of the Russian Federation Regulation No. 1498 dated December 26, 2016 “On issues of providing utilities and maintaining common property in an apartment building.” This resolution included the above responsibilities in the so-called Rules No. 354 (Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of Russia dated 05/06/11 No. 354).

This requirement does not apply to owners of parking spaces (car spaces) . The management organization, homeowners' association, housing or housing-construction cooperative interacts with these owners in exactly the same manner as with the owners of residential premises in an apartment building.

Question: who should commission and seal water, gas and electricity meters in non-residential premises?

After switching to a direct contract with RSO, work on commissioning individual metering devices must be carried out by the corresponding resource supply organization.

The supply of cold and hot water supply, thermal energy, electricity and gas to the non-residential premises of an apartment building, as well as water disposal (sewerage), must take place on the basis of direct agreements with the RSO. Such agreements are concluded in accordance with the current rules on water supply, sewerage, electricity supply, gas supply, heat supply (paragraph 3, paragraph 7 of Rules No. 354.

For example, the RF PP dated July 29, 2013 No. 643 approved a standard domestic hot water supply (hot water supply) contract. Clause 13 of this agreement provides for the obligation of the resource supplying organization to provide access to hot water meters (metering units). And clause 19 introduces the obligation to seal meters.

Agreement between the management organization and the owner of non-residential premises

What agreement is to be concluded between the management company and the owners of non-residential premises in the apartment building depends on the method of managing the house. If the management company manages the MKD, then the same rules apply; if it’s an HOA, a residential complex/housing cooperative, then others.

The management company manages the apartment building

The management company signs an apartment management agreement with each property owner. These conditions are approved by the OSSP (general meeting of premises owners) in the apartment building. In this case, the provisions of Part 1 of Article 162 of the Housing Code of the Russian Federation must be observed (equal conditions for all owners). There is no special agreement (form of contract) specifically for owners of non-residential premises in the law.

At the same time, the management agreement must contain provisions directly related to the owners of non-residential premises in the apartment building. There are two such special conditions:

• the owner’s obligation to enter into a written resource supply agreement with the RSO and an agreement for the provision of services for the management of MSW with the local regenerator;
• consequences of the event if the owner does not sign such agreements.

Such requirements are specified in paragraph 14, paragraph “p”, paragraph 31 and in paragraph 9, paragraph “k”, paragraph 148(22) of Rules No. 354. If your current apartment management agreement does not contain these provisions, you should definitely include them . This will free you from unnecessary disputes and misunderstandings with the owners.

Homeowners association, residential complex or housing cooperative manages apartment buildings

There can be two situations here, depending on whether the owner of the non-residential premises is a member of a housing association or not.

If the owner of a non-residential premises is not a member of a partnership or housing cooperative (housing-construction cooperative), then a contract (agreement) is concluded for the provision of services for R&D (maintenance and routine repairs of common property) (Part 6 of Article 155 of the Housing Code).

If the owner is a member of a housing association, then there is no need . Members of a homeowners' association, housing complex, housing cooperative are required to pay for the M&I of the industrial building in an apartment building in the manner established by the governing bodies of the homeowners' association, residential complex or housing cooperative (part 5 of article 155 of the Housing Code).

Notifying the owner of non-residential premises about the need to enter into agreements with RSO

Current legislation provides for the obligation to notify owners of non-residential premises in an apartment building about the need to switch to direct contracts. The notice period is not specified in the law, but it is best not to delay. The sooner non-residential premises in apartment buildings are notified, the less likely there are problems in the future.

The notification must contain three groups of information (paragraph 14 of subparagraph “p” of paragraph 31 and paragraph 9 of subparagraph “j” of paragraph 148(22) of Rules No. 354):

1. It is the responsibility of the owner of non-residential premises to enter into written agreements with the RSO and an agreement for the provision of services for handling MSW with the reoperator.

2. Consequences in case of non-conclusion of contracts. There will be consumption of commercial resources, but without a written contract. This means that the resource supplying organization will determine the volume of resource consumption in a calculated manner, which is provided for by current regulations. This method of calculating for resources is very unprofitable for owners of premises in apartment buildings. Non-contractual consumption of resources gives the resource supplying organization the right to stop supplying utility resources to a given non-residential premises, if such a technical possibility exists.

3. Link to pp. 6, 114 and 148(1) of Regulation No. 354 (rules on the obligation to conclude contracts and the consequences of their failure to comply).

It is recommended that the notice indicate the owner’s obligation to provide information and documents in accordance with the provisions of paragraph 18 of Regulation No. 354.

The notice must be delivered to the owners of non-residential premises simultaneously in two ways .

First notification method

In compliance with the norms specified in paragraph 4 of paragraph 6 and paragraph 5 of paragraph 148(1) of Rules No. 354, give a notice to each owner of non-residential premises in the house. Each copy must be signed by an authorized person (manager or representative by proxy) and sent by mail, delivered in person. The method of transmission of the notice must be recorded so that it is clearly established that the owner received such notice (for example, a receipt upon delivery).

Second notification method

Place a general notice for all owners of non-residential premises in apartment buildings on notice boards located:

• in all entrances of a residential building;
• in the premises of the management organization - in the place where the population is received.

This is provided for by the norms of paragraph 14 sub-clause. "p" clause 31 and paragraph 9 sub. “k” clause 148(22) of Rules No. 354.

Note! Failure to notify the owner of non-residential premises can lead to misunderstandings and disputes.

If the owner does not sign direct contracts with RSO, then resource specialists will determine the volume of commercial resources by calculation. This means that the property owner will pay more than expected. He can blame the management organization for such an overpayment and demand compensation for losses in the amount of the overpayment.

Judicial practice has not yet been formed, so it is difficult to say what the court will decide in such a situation. The very fact of the dispute already has a negative consequence.

Question: does the tenant have the right to independently enter into direct contracts with RSO?

No, he does not have such a right. The responsibility lies only with the owners of non-residential premises (paragraph 3 of paragraph 6 of Rules No. 354).

Question: does the owner of non-residential premises need to renew agreements with RSO that were previously concluded?

No, it is not necessary if they do not contradict current legislation. These agreements were concluded by real estate owners in accordance with the rules of civil law in force at that time. Only they were concluded as a right, and not an obligation, for these owners of non-residential premises.

What documents and information do you need to obtain from the owner of non-residential premises?

The owner of the property is obliged to transfer documents and information to the management company (HOA, residential complex, housing cooperative). They are necessary for the management organization to manage apartment buildings, these are: copies of resource supply agreements with RSO. The MA has the right to demand a copy of the agreement with the RSO from the moment of conclusion (clause 18 of Rules No. 354). But in fact, the moment of conclusion of the MA may not be known. Therefore, it is necessary to send a request to the owner of non-residential premises in the apartment building with the wording: “Based on clause 18 of Rules No. 354, we ask you to provide us with copies of all your contracts with resource supply organizations. If you have not yet concluded direct agreements, please provide copies of them within 3 (three) days from the date of signing.”

In addition, non-residential premises in apartment buildings must provide the management with the following information:

1. Volumes of utility resources consumed during the billing period under resource supply contracts. Property owners are required to provide this data in the same manner and within the same time frames as ordinary owners of premises (clause 18 of Regulation No. 354).
2. Volumes of MSW management services provided during the billing period under an agreement with the regional MSW operator. The owner of non-residential premises is obliged to provide this information within three working days from the date of receipt of the request from the MA (paragraph 4 of paragraph 148(1) of Regulation No. 354).

Question: what to do if non-residential premises in an apartment building do not transmit data on the volume of consumed utility resources to the management company, homeowners' association, residential complex, housing cooperative

A written request for information can be sent not only to the owner, but also to the relevant resource supply organization (subparagraph “e(1)” of paragraph 18 of Regulation No. 124). RSO must take into account separately the volume of supply of communal resources to owners of residential and non-residential premises in apartment buildings.

Transfer of information about the owners of non-residential premises to the RNO and the regional MSW operator

There is one more responsibility of the management organization. She is obliged to transfer information about the owners of non-residential premises to the RSO and to the registrar for the management of solid waste (paragraph 4, paragraph 6 and paragraph 5, paragraph 148(1) of Rules No. 354).

To fulfill this obligation, the notice must indicate the following:

• address of the house where non-residential premises are located in the apartment building;
• list of non-residential premises;
• Full name or name of the organization owning non-residential premises.

Additionally, you can specify: telephone numbers of the property owner. This will help resolve unforeseen issues that may arise for the RSO and the regional MSW operator.

Send the message in any convenient way that records receipt of the correspondence.

Non-residential premises in MKD
2.9 (58.22%) 45 vote[s]

Why is the meeting called?

If the premises, even non-residential ones, are located inside an apartment building, its owner must participate in the management of the building - including in the general meeting of owners. According to Art. 45 of the Housing Code of the Russian Federation, a meeting of owners is held at least once a year.

The usual time is the second quarter of the year, which follows the reporting period. In addition, any owner can request a special meeting. If he owns at least 10% of the votes, the meeting must be held.

The following issues are resolved at the general meeting:

1. About major repairs, reconstruction, expansion of the building, construction of extensions.
2. About the formation of a fund for major repairs, the amount of contributions there - and about the person who will open an account and conduct transactions for this fund.
3. About the receipt of a loan by the homeowners association, management company or other organization managing the house, and about its repayment at the expense of the capital repair fund.
4. About the boundaries of the land plot under the house and the procedure for using this land.
5. On persons authorized to conduct business on behalf of the owners.
6. About choosing a management company, etc.

Other issues may also fall within the competence of the general meeting. Meeting decisions are made both in person and in absentia, by sending questionnaires to the owners.

What are the responsibilities?

In addition to legal opportunities, the subject has a set of obligations that are an integral part of the right of ownership, and especially in the MKD according to Article 210 of the Civil Code of the Russian Federation.

Attention. The law equates the owner of non-residential premises to any other tenants.

His main responsibilities are the following:

1. respect the legitimate interests of neighbors (do not make loud noise, comply with the law “On Silence”);
2. use the object only for lawful purposes;
3. comply with sanitary, epidemiological and fire safety standards;
4. maintain the facility in proper condition;
5. make payments for utilities, including contributions for major repairs, as well as repairs/maintenance of the house (Articles 153, 158 of the Housing Code of the Russian Federation);
6. coordinate your actions with the owners of residential premises and government agencies in the event of a major reconstruction of the premises;
7. pay property taxes;
8. enter into an agreement with a management company or HOA, resource supply organizations.

These are the general responsibilities of any owner; therefore, in this case, the subject does not receive additional encumbrances due to its status. All of the above actions are derived from Art. 30 Housing Code of the Russian Federation .

Reference. It is worth noting that the legislator did not single out such owners as a special category, in fact equating them with other residents of apartment buildings.

When is a power of attorney required to represent interests?

ATTENTION: In cases where a person cannot exercise his rights himself for some reason, he can use the help of a representative.

This also applies to the exercise of rights arising from the ownership of non-residential premises. The owner can issue a power of attorney in the following cases :

• When the premises belong to the organization. The only person acting on behalf of a legal entity without a power of attorney is its director. All other employees must have this document.
• When the owner cannot personally attend the general meeting and sends a representative.
• When registration of rights in Rosreestr is required. In this case, the power of attorney must be notarized.

A power of attorney is also required in all other situations when another person acts on behalf of the owner. The only exception is the case when the premises belong to a minor, and parents act on his behalf: they have the right to represent the interests of the child without a special document.

What commercial facilities can be located in an apartment building?

Not long ago, changes to the Housing Code of the Russian Federation came into force in Russia regarding the placement of commercial facilities in residential buildings. In most residential high-rise buildings, apartments are adjacent to offices, shops, pharmacies and other commercial facilities. The law allows you to organize a business in specially equipped non-residential premises of an apartment building and even use your own apartment for professional and entrepreneurial purposes. Experts from the branch of the Federal Cadastral Chamber for the Republic of Mordovia explained what types of commercial activities can be carried out in a multi-storey residential building.

An apartment building is a building, most of which is reserved for residential premises. In many old buildings, apartments on the first floors have long been transferred by the owners to the category of non-residential, refurbished and function as retail outlets and service enterprises. In modern new buildings, the first floors are initially designed by developers as non-residential - to accommodate various commercial objects.

Living spaces

Russian legislation allows the use of residential premises not only for their intended purpose - for living, but also for doing business.

Thus, according to Article 17 of the Housing Code, professional or individual entrepreneurial activities in residential premises can be carried out by citizens legally residing in it, provided that the rights of other residents are respected, as well as the requirements that the residential premises must meet. In other words, the work of an entrepreneur should not cause inconvenience to other residents of the apartment, as well as neighbors in the house, lead to violation of sanitary standards and safety regulations during the operation of residential premises, or cause damage to engineering equipment or the structure of the building. Individuals registered as individual entrepreneurs or self-employed have the right to conduct business at home. Tutors, translators, lawyers, accountants, programmers, web designers, tailors, etc. often combine home and work. In addition, in some apartments of residential buildings there are still small accommodation facilities: mini-hotels and hostels.

“Most hostels and mini-hotels are located in residential areas, so the flow of complaints and requests from citizens does not stop. From the moment the amendment to the Housing Code comes into force, it will be prohibited to locate enterprises providing hotel services in residential premises of apartment buildings. Thus, before October 1, it is necessary to carry out the procedure for transferring residential premises to non-residential ones,” says Elena Shvabauer, deputy director and chief technologist of the branch of the Cadastral Chamber for the Republic of Mordovia.

The current legislation also does not prevent the organization of small private production in an apartment, for example, making cakes, packaging and packing goods, and soap making. But you won’t be able to count on large production volumes because the Housing Code prohibits placing industrial production in residential premises. Thus, the possibility of using devices or machines that violate permissible noise or vibration levels and consume large amounts of electricity are automatically excluded.

Another prohibition of the Housing Code applies to conducting missionary activities in residential premises, with the exception of cases provided for in Article 16 of Federal Law No. 125-FZ “On Freedom of Conscience and Religious Associations.”

Non-residential premises

Non-residential premises in an apartment building are intended only for commercial, administrative, public and other activities and cannot be used for temporary or permanent residence of citizens. As a rule, they house shops, pharmacies, beauty salons, offices, medical institutions, kindergartens, utility companies, etc.

Activities in non-residential premises are strictly limited by fire, sanitary and urban planning standards and should not lead to air pollution and residential areas, exceed the permissible noise level, or pose a threat to the life or health of the residents of the house. The ban also includes establishments operating after 11 p.m., institutions and funeral service stores, warehouses for any purpose, specialized fish stores, baths and saunas, laundries and dry cleaners, and public toilets.

In most cases, residents of the first floors in standard high-rise buildings, the designs of which did not include the construction of special premises for doing business, transfer their apartments to non-residential buildings. However, recently this procedure has become much more complicated. According to Federal Law No. 116-FZ “On Amendments to the Housing Code of the Russian Federation”, before applying to the authorized body with an application to transfer residential premises to non-residential premises, the owner must obtain the written consent of each owner of the premises adjacent to his apartment, as well as a majority vote owners of residential and non-residential premises located in the house and entrance.

“It should be remembered that the reconstruction of a residential premises, for example, the installation of a new entrance, in accordance with the requirements of Article 22 of the Housing Code, when using part of the common property of the owners of an apartment building, requires that the owner of such premises bring the issue to the general meeting of owners. When reducing the area of ​​the common property of the house, the owner will need the consent of 100% of the owners in the house,” explained Elena Schwabauer.

The law does not have retroactive effect, but gives residents the right to decide whether another commercial premises will be opened in their building.

In what case is it possible to send a claim to the owner?

In some cases, the owner may receive a claim from the outside , for example, if:

1. He had arrears in paying for electricity, water and other similar payments.
2. When he uses the property in a way that violates the legitimate interests of other persons (for example, he uses a room on the ground floor of a residential building as a workshop, and the noise from working with tools is heard after 10 p.m.).
3. When it maintains common property in an unsatisfactory condition, if, by decision of the general meeting, its maintenance is entrusted to the owners.
4. When the neighbors flooded from the premises.

It is also possible to submit claims in other situations when the actions or inaction of the owner violate the interests or rights of others.

What rights do owners have?

Each owner has the opportunity to use the premises at his own discretion in accordance with the established purpose of the property.

The owner can exercise his right not only to unimpeded disposal of property, but also to protect the property from various attacks, including filing a lawsuit in accordance with Article 35 of the Arbitration Procedure Code of the Russian Federation.

The law ensures the possibility of carrying out any real estate transactions.

Owners of non-residential premises, if necessary, carry out the following transactions:

• Sale, exchange for any movable or immovable property.
• Drawing up a gift agreement, drawing up a will.
• Rental.
• Transfer to trust management.

If specific disputes arise regarding the rights of ownership of commercial real estate, decisions of the Plenum of the Supreme Arbitration Court of the Russian Federation are used to resolve them in court.

The law establishes rules regarding the powers of owners of non-residential premises, similar to the rules for resolving disputes for residents of apartment buildings.

Owners of non-residential premises have the opportunity to elect bodies that allow them to unite to protect their own rights and interests. Important decisions are made by members of the HOA, cooperative or management company.

With the help of such bodies, legal interaction with public utilities and government agencies is ensured. On behalf of the meeting, you can file a collective complaint or go to court.