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Transfer of an apartment to a non-residential court practice. New rules and regulations for the transfer of residential premises to non-residential


Question:

I live on the second floor of an apartment building. Last year, the apartment on the first floor, which is located just below me, was bought by a husband and wife - businessmen. And then they opened there hairdressing salon... It became simply impossible to be at home - constant noise, smell, etc., especially on weekends. The residents of our entrance complained to the district administration about the illegal use of the apartment for commercial purposes.

The administration reported that the owners of this apartment were fined 1,500 rubles and issued an order on the need to register an apartment in non-residential premises by September 15, 2013. However, until now, everything remains the same. The owners simply paid the fine and continue to use the apartment for other purposes. Tell me how you can stop this? I do not want them to approve the transfer to non-residential premises of this apartment.

Answer:

The Civil Code of the Russian Federation establishes that the intended purpose of residential premises is the residence of citizens; in order to use the residential premises for other purposes (in particular, for commercial purposes), it must first be transferred to the status of non-residential premises (Articles 288, 671 of the Civil Code of the Russian Federation). For this there is special procedure with its inherent features and exceptions.

The main condition under which the apartment can be transferred to non-residential premises is that this should not in any way violate the rights and legitimate interests of other citizens, and also not conflict with the requirements that are established for residential premises (Article 17 of the RF LC). The practice of arbitration courts is such that all transactions within the framework of which the misuse of residential premises occurs are considered null and void, i.e. do not entail any legal consequences.

A citizen who owns a dwelling that is not used for its intended purpose may be brought to administrative responsibility in the form of a fine from 1,000 to 1,500 rubles. Administrative liability for such a violation in relation to entrepreneurs and legal entities The Code of Administrative Offenses of the Russian Federation is not provided for, but there are cases when such liability was introduced at the level of the constituent entities of the Russian Federation (for example, in the Khabarovsk Territory) and it was several times higher than the fines for ordinary citizens.

According to article 22 of the RF LC, an apartment can be converted to the status of a non-residential premises if a number of conditions are met: 1) the apartment is located on the first floor of a residential building or above the first floor, but there are no living quarters under it; 2) technically, the design allows for a separate entrance to the premises; 3) the owner does not use this premises for permanent residence in it; 4) there are no encumbrances on the premises in the form of the rights of third parties (there is a pledge, seizure, etc.) on the premises. In the event that at least one of these conditions is not met, the transfer to non-residential premises may be refused by the authorized body.

Housing legislation does not provide for the quality prerequisite transfer of residential premises to non-residential ones; obtaining consent from all owners of residential premises adjacent to a specific premises. That is, in fact, and in the absence of such consent, the transfer to non-residential premises can be carried out. But still, you can contact the administration with a written statement that the commercial use of the premises adjacent to you significantly violates your rights to the full use of your living quarters.

The administration may well qualify this violation of Article 17 of the RF LC and refuse to transfer. Otherwise, you always have a second option - it is to go to court with a requirement to your neighbors to remove obstacles that prevent you from living peacefully in your own apartment, and to recognize the transfer of residential premises to non-residential premises unlawful.

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If we consider this option: “In accordance with the current legislation, the consent of neighbors is not required. However, to re-design the facade of the building, including by adding steps to the loggia, approval is required with the owners of the property of the apartment building. In addition, if the land plot under the house stands on
cadastral registration and belongs to homeowners, i.e. is common
property and to ensure access, it is necessary to agree with the owners. "

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Lawyer, Kaliningrad

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Hello, Elena. The possibility of transferring residential premises to non-residential premises is provided for by law. Decision-making on the transfer of residential premises to non-residential ones belongs to the powers of local self-government bodies.

Transfer of residential premises to non-residential premises is not allowed if access to the transferred premises is impossible without the use of premises that provide access to residential premises. However, you write that the owner plans to equip a separate entrance to the street.

To begin with, write to the mayor's office a statement of disagreement with the translation, justifying the violation of your rights, which the translation will lead to.

To go to court, you need proof that such a translation violates your rights and the law. Considering that Part 2 of Art. 22 LCD contains a limited list of conditions under which the transfer of premises to non-residential premises is not allowed, according to the description you have given, it does not follow that there are obstacles from the law for the transfer (neighbors provide a separate entrance).

Such evidence could be an expert opinion, if it is established that the corresponding redevelopment (equipment for leaving the loggia) violates SNiPs, or worsens your living conditions.

Without such confirmation, it is premature to make predictions about the outcome of the resolution of the case.

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Lawyer, Simferopol

Hello, clause 2 of article 17 of the Housing Code of the Russian Federation allows the use of residential premises for entrepreneurial activities by citizens living in it legally, if this does not violate the rights and legitimate interests of others, as well as the requirements that the residential premises must meet.

According to Art. 22. of the Housing Code of the Russian Federation, the conditions for transferring residential premises into non-residential premises and non-residential premises into residential premises:
1. Transfer of residential premises into non-residential premises and non-residential premises into residential premises shall be allowed subject to compliance with the requirements of this Code and the legislation on urban planning.
2. Transfer of living quarters to non-residential premises is not allowed if access to the transferred premises is impossible without using premises that provide access to the living quarters, or there is no technical ability to equip such access to this premises, if the transferred premises is part of the living quarters or is used by the owner of this premises or another citizen as a place of permanent residence, as well as if the ownership of the transferred premises is encumbered with the rights of any persons.
3. Transfer of an apartment in an apartment building to a non-residential premises is allowed only in cases where such an apartment is located on the first floor of the said building or above the first floor, but the premises located directly under the apartment being transferred to non-residential premises are not residential.
4. Transfer of non-residential premises to residential premises is not allowed if such premises do not meet the established requirements or it is not possible to ensure the compliance of such premises with the established requirements, or if the ownership of such premises is encumbered with the rights of any persons.

Additional entrance, porch device - requires a building permit.
A building permit, in accordance with Article 51 of the Urban Planning Code of the Russian Federation, is issued with 100% consent of the owners of apartments in the house.
Such a refurbishment affects the common property of the owners of premises in the MKD, in accordance with Article 36 of the LC.

Part 1 of Art. 46 LCD RF determines required amount votes for a positive decision - 2/3.

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Lawyer, Kaliningrad

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I agree with Dmitry Milushev regarding the need to obtain the consent of the owners common property at home. However, I know a lot of decisions when the court legalized the extension of the porch for equipping a separate entrance to the non-residential premises, when the owners were against and went to court demanding to demolish the porch in front of other people's windows. Something more weighty is needed here than just an objection to such an arrangement.

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and specifically for Moscow, one more thing should be taken into account:

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Lawyer, Kazan

Good day!

According to part 1 of article 22 of the Housing Code Russian Federation(hereinafter referred to as the Housing Code), the transfer of residential premises to non-residential premises is allowed taking into account compliance with the requirements of this Code and legislation on urban planning.

The project for the reconstruction and redevelopment of a residential premises into non-residential premises provides for the implementation of work on the construction of an external entrance porch, which entails use of the adjoining territory related to common property of owners premises of an apartment building, as well as a change in the mode of use of a part of the land plot on which the apartment building is located.

In accordance with Article 36 of the Housing Code, according to which the owners of premises in an apartment building own, on the basis of common share ownership, common property in an apartment building, namely the land plot on which this building is located, a decrease in the size of common property in an apartment building is possible only with the consent of all owners of premises in this house through its reconstruction (part 3).

By virtue of other provisions of the Housing Code, if the reconstruction, reorganization and (or) redevelopment of premises is impossible without attaching part of the common property in an apartment building to them, such reconstruction, reorganization and (or) redevelopment of premises must be obtained agreement of all owners of premises in an apartment building(part 2 of article 40); the competence of the general meeting of owners of premises in an apartment building includes making decisions on the limits of use of the land plot on which the apartment building is located, including the introduction of restrictions on the use of it (paragraph 2 of part 2 of article 44).

Judicial practice in this matter for you positive.

All the best!

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    Lawyer, Moscow

    Z hello Elena!
    According to Art. 16 Law of the city of Moscow dated January 27, 2010 N 2 (as amended on November 6, 2013) "Fundamentals of the Moscow City Housing Policy" (ConsultantPlus)

    1. Transfer of residential premises to non-residential premises in the city of Moscow
    allowed in accordance with federal law, laws and other
    legal acts of the city of Moscow.

    2. The owner of the dwelling (the person authorized by him)
    has the right to apply with an application to the authorized executive body
    of the city of Moscow on the change in the purpose of the residential premises and on the transfer
    its in non-residential.

    3. Consideration of issues, preparation of translation protocols
    residential premises into non-residential premises are carried out by the City Interdepartmental Commission
    on the use of the housing stock of the city of Moscow.

    4. Decision of the City Interdepartmental Commission on
    the use of the housing stock of the city of Moscow on the transfer of housing to
    non-residential is approved by the authorized executive body of the city
    Moscow.

    5. Organization and procedure for carrying out work on the transfer of residential
    premises in non-residential are determined by the fed

    . That is, the transfer of residential premises to non-residential premises in the city of Moscow is allowed in accordance with the requirements of the legislation.

    According to Art. 22, "Housing Code of the Russian Federation"

    Transfer of residential premises to non-residential premises and non-residential premises
    premises in a dwelling are allowed subject to compliance with the requirements
    of this Code and legislation on urban planning.

    Transfer of residential premises to non-residential premises is not allowed,
    if access to the transferred premises is impossible without using the premises,
    providing access to living quarters, or there is no technical
    the ability to equip such access to this room, if the transferred
    the premises are part of the residential premises or are used by the owner
    this premises or by another citizen as a place of permanent residence,
    and also if the ownership of the transferred premises is encumbered with rights
    any persons.

    3. Transfer of an apartment in an apartment building to a non-residential one
    premises are allowed only in cases where such an apartment is located on
    the first floor of the said house or higher than the first floor, but the premises
    located directly under the apartment being converted to non-residential premises,
    are not residential.

    4. Transfer of non-residential premises to residential premises is not
    is allowed if such a room does not meet the established requirements or
    there is no way to ensure the compliance of such a room with the established
    requirements or if the ownership of such premises is encumbered with rights
    any persons.

    That is, the transfer of residential premises to non-residential premises is not allowed if there is no technical ability to equip access to this premises. without using a common passage (separate entrance).

    In accordance with Article 36 and paragraph 2 of Article 40 of the RF LC

    the owners of premises in an apartment building belong to the premises in this building on the basis of the right of common shared ownership, not


    that are parts of apartments and are intended to serve more than one
    premises in this house, including inter-apartment staircases,
    stairs, elevators, elevator and other shafts, corridors, technical floors, attics,
    basements in which there are engineering communications, other serving more
    equipment in one room in this house (technical basements), as well as
    roofs enclosing load-bearing and not bearing structures this house, mechanical,
    electrical, sanitary and other equipment located in this
    indoor or outdoor home and serving more than one room,
    improvements and other intended for maintenance, operation and
    improvement of this house, objects located on the specified land
    plot (hereinafter referred to as common property in an apartment building). Borders and size
    the land plot on which the apartment building is located are determined in
    in accordance with the requirements of land legislation and legislation on
    urban planning activities.
    The owners of premises in an apartment building own, use and
    established
    this Code and civil legislation, the limits are disposed of by the general
    property in an apartment building.
    By the decision of the owners of premises in an apartment building, adopted at
    general meeting of such owners, objects of common property in an apartment
    the house can be transferred for use to other persons in the event that it is not
    violates the rights and legitimate interests of citizens and legal entities.

    If
    reconstruction, reconstruction and (or) redevelopment of premises are impossible without
    joining to them a part of the common property in an apartment building, for such
    reconstruction, reconstruction and (or) redevelopment of premises should be
    the consent of all owners of premises in an apartment building has been obtained.

    That
    there is, since cutting the door in the loggia is a reconstruction
    houses with accession
    parts of the common property (land, study, walls of the house, etc.), then the neighbors are obliged
    obtain the consent of the owners of the house.

    V
    in accordance with article 51 of the Civil Code of the Russian Federation

    Construction, reconstruction of facilities
    capital construction is carried out on the basis of a permit for
    construction, except for the cases provided for in this article.

    V
    for the purpose of construction, reconstruction of a capital construction object
    the developer sends an application for
    issuing a building permit directly to the issuing authority
    building permits K the said statement attached

    T oh yes, for permission
    for the reconstruction of the house, the neighbors are required to submit the consent of all owners with a positive conclusion of the expert examination of the design
    documentation.

    Arbitrage practice:

    (Resolution of the Federal Antimonopoly Service of the East Siberian District of 01/31/2014 on case No. A33-3673 / 2013 (ConsultantPlus))

    12/13/2012 the entrepreneur applied to the administration with
    an application for redevelopment and transfer of residential premises into non-residential premises. By Decree of December 29, 2012 N 923, the administration refused to
    redevelopment and transfer of the specified residential premises to non-residential ones for reasons
    lack of evidence of the consent of all apartment owners of a residential building to
    carrying out such procedures.

    The courts established that the project of reorganization and
    redevelopment of residential premises into non-residential premises provides for the implementation of work on
    the device of the porch of the external entrance, which entails the use of
    adjoining territory belonging to the common property of the owners of the premises
    an apartment building, as well as a change in the mode of use of a part of the land
    plot on which the apartment building is located.

    Assessing this circumstance, the courts reasonably
    were guided by the provisions of Article 36 of the Housing Code, according to which
    owners of premises in an apartment building are entitled to a common
    shared ownership of common property in an apartment building, namely
    the land plot on which this house is located, with elements of landscaping and
    improvement (paragraph 4 of part 1); reduction of the size of the common property in
    an apartment building is possible only with the consent of all owners of premises in
    this house by reconstruction (part 3).

    Correctly applying the specified housing standards
    legislation to the established circumstances of the case, the courts reasonably
    admitted that the entrepreneur did not provide evidence of the consent of all
    owners of premises in a residential building for the transfer of residential premises to non-residential premises
    due to a change in the mode of use of a part of the land plot on which
    an apartment building is located.

    Resolution of the Federal Antimonopoly Service of the East Siberian District of 03/13/2014 on case No. А78-5060 / 2013 (ConsultantPlus))

    By a decision of 04/25/2013, the administration refused
    to the entrepreneur in satisfaction of the above statement. As a foundation
    refusal by the administration indicated the need to obtain the consent of all
    owners of residential premises with reference to part 3 of Article 36 of the Housing
    of the Code of the Russian Federation.

    Entrepreneur counting this decision administration
    illegal, appealed to the Arbitration Court of the Trans-Baikal Territory with a statement about
    recognizing it as illegal.

    By refusing to satisfy the stated requirements, the court
    of the first instance proceeded from the fact that according to the redevelopment project
    it is planned to make changes to the enclosing supporting structures (dismantling
    window opening to the level of the finished floor for the office entrance device), which
    according to paragraph 1 of Article 36 of the Housing Code of the Russian Federation are
    common shared property. The court took into account the fact that the satisfaction
    the entrepreneur's requirements for the transfer of residential premises to non-residential premises will entail
    a decrease in the area of ​​a land plot, which is a common property
    owners of a residential building.

    At the same time, as follows from the provisions of the Housing Code
    Russian Federation, for the reconstruction of an apartment building
    a decision of the general meeting of owners of premises is required, and in some
    cases and the consent of all owners of premises in an apartment building.

    So, according to part 3 of article 36 of the Housing Code
    Of the Russian Federation reduction of the size of common property in an apartment building
    is possible only with the consent of all owners of premises in this house by
    reconstruction.

    By virtue of part 2 of article 40 of the Housing Code of the Russian
    Federation, if the reconstruction, reorganization and (or) redevelopment of premises
    are impossible without joining to them a part of the common property in an apartment
    house, for such reconstruction, reconstruction and (or) redevelopment of premises
    the consent of all owners of premises in the apartment must be obtained
    home.

    When interpreting the specified norms of housing legislation
    the courts proceed from the fact that despite the absence in part 2 of Article 23 of the Housing
    of the Code of the Russian Federation, instructions on the right of a local self-government body
    require the applicant to submit the consent of all owners
    apartment building at the stage of resolving the issue of transferring residential premises to
    non-residential, if such a transfer is associated with the need to carry out work on
    reconstruction of the house or providing the applicant for this purpose with part of the general
    land, then in these cases the provisions of parts 2 and 3 of Article 23
    Of the Housing Code of the Russian Federation must be applied in conjunction with
    rules that provide for the need to obtain the consent of all

    • Various reasons dictate the need to transfer residential premises to non-residential ones. Most often, apartments located on the first floors of houses are transferred to the non-residential fund. They make shops, pharmacies, beauty salons, etc. However, there are controversial points that may arise upon obtaining the appropriate permission. What are these points, we will tell you in this analysis of judicial practice.

    Judicial practice in this segment consists mainly of refusals to transfer premises. Often, local government bodies refuse to transfer due to the lack of consent of the owners of apartments located in the building where the transfer is planned.

    It should be strictly remembered that an apartment can be transferred to a non-residential premises only in two cases - if it is on the first floor or if it is above the first floor, but non-residential premises are also located on the floors below.

    Finding the root of the problem

    Everyone knows that for a transfer it is necessary to obtain permission from a local government body (in Moscow - MVK under the Department of Housing Policy). Refusals are often motivated by the lack of consent of other apartment owners among the documents.

    As practice shows, there is a lack of understanding when consent is required and when it can be dispensed with. The main reason the occurrence of disputes is the lack of clear legislative regulation this issue... Article 23 of the RF LC specifies a list of documents that the owner of the premises must submit to the authority that issues permits for translation. This list contains only five names of documents - an application, documents establishing ownership of the premises, the floor plan and its technical passport, the floor plan of the house and the redevelopment project. The most interesting thing is that the law establishes this list exhaustive, since it is strictly stated that no other documents are required. Article 24 of the LC RF gives an exhaustive list of situations when a refusal to issue a permit may follow - the documents that are defined by Art. 23 of the RF LC, the documents were submitted to the wrong body, the conditions for translation were not met and the project did not meet legal requirements. As you can see, there is nothing unsaid about the need to provide the consent of neighbors. However, other provisions of the RF LC indicate that the reconstruction of a residential apartment building is possible only with the consent of the general meeting of the owners of these apartments. Article 44 of the RF LC refers to the competence of the general meeting of owners to decide on the reconstruction of a house and on the limits of using the land plot on which the house is located. If we are talking about reducing the size of the common property belonging to all tenants in the event of a house reconstruction, the consent of the general meeting is required, this is evidenced by Article 36 of the RF LC. Consent is also necessary if it is necessary to attach to a specific room during its redevelopment or reconstruction of part of the common home property. However, the lack of consent to the translation on the part of all owners is not a ground for refusal. Accordingly, if the transfer from the housing stock to the non-residential stock is not accompanied by the reconstruction or reduction of the common property of the house, then there is no need to obtain a decision from the general meeting of owners.

    However, imperfect legislation is not the only problem. Each court considers a specific case, and already comes to the conclusion whether the consent of the general meeting of owners is necessary. Do you need a simple majority of votes or is the consent of all owners strictly necessary. Naturally, the question is being decided whether the redevelopment is considered reconstruction, and to what extent it affects the common home property.

    Whoever wants to, so decides

    You should think about what reconstruction is. Article 1 of the Urban Planning Code of the Russian Federation says that reconstruction is a change in the parameters of a building, its parts and a change in the quality of engineering and technical support... However, one should distinguish between reconstruction and redevelopment. Redevelopment is the installation, replacement or relocation of plumbing equipment, electrical equipment, engineering equipment, which requires changes to the technical plan. Redevelopment is essentially a change in the configuration of the room. Although the law clearly defines redevelopment and renovation, there is often no full understanding of the difference in these terms. For example, the local self-government bodies recognize something as a redevelopment, and the court recognizes it as a reconstruction, or vice versa.

    By the decree of the Federal Antimonopoly Service of the East Siberian District dated 05/18/2011 No. A33-10747 / 2010, the court recognized the redevelopment of the device in the apartment with a separate entrance and the dismantling of the pier, while the administration recognized this as reconstruction and demanded a document confirming the consent of other owners.

    There is also a lot of disagreement regarding the reduction of the area of ​​common house property and its joining. So, by the resolution of the FAS of the Volga District of 24.12.2010 No. A12-3630 / 2008, the court satisfied the entrepreneur's claim against the administration, which believed that the construction of a staircase from the basement to the store was a decrease in common property and required the consent of all neighbors. The court held that these actions did not constitute an attachment to the common household property.

    Land problems

    The desire to install a separate entrance, visor, porch or threshold is directly related to the solution of the land issue. If at least a centimeter of land is used near the territory of the house, then this is considered the use of common property. This is indicated by almost all courts (decisions of the FAS of the West Siberian District of 07.04.2011 in case No. A70-6719 / 2010, FAS of the Far Eastern District of 25.04.2011 No. F03-1516 / 2011, FAS of the Ural District of 27.01.2011 No. F09- 11380/10-C6).

    However, it should be remembered that, in the opinion of the courts, the consent of the owners is required only if the land plot is registered in the cadastre. If the site is not registered, then it is not common property... This is clearly stated in the Definition The Supreme Court RF dated 23.11.2009 No. 80-B09-26.

    After analyzing the judicial practice, we can conclude that in most cases the courts side with entrepreneurs, however, if only the case does not concern land issues.