The GZHN body refuses to make changes to the register of licenses at the request of the management organization for various reasons, which are then often disputed in court. We are talking about a case that reached the Supreme Court of the Russian Federation, in which the question was considered whether the State Housing Inspectorate was right in considering a two-apartment building to be residential and not multi-apartment.
Why did the RF Armed Forces invalidate some requirements No. 938/pr
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The house has two or more apartments with separate exits
Case No. A70-15067/2019 reached the Supreme Court of the Russian Federation, and the main issue that was considered in all instances was determining the status of the house - whether it was multi-apartment or individual residential.
It started with the fact that in Tyumen the administration held an open competition to select a management organization for a building in which there are only two apartments. The management company that won the competition submitted an application and a package of documents to the GZHN body to include the house in the register of regional licenses: copies of the selection protocol and the management agreement with the owners.
Based on the results of consideration of the application, the State Housing Inspectorate refused the company to make changes to the register, citing paragraphs. “a” clause 5 of order No. 938/pr: The MA did not indicate the address of the apartment building in the application, did not attach a copy of the competitive selection protocol and the management agreement. GZHI noted that all the data in the documents does not relate to apartment buildings, but to a residential building, since the apartments, according to the technical documentation, do not have access to common areas, but have separate entrances. The building cannot be classified as an apartment building.
The managing organization did not agree with this position of the GZHI and filed a lawsuit demanding that the department’s refusal be declared illegal and oblige the GZHI to make changes to the register of licenses.
The housing is unsuitable for habitation. next steps
A residential building in disrepair is a residential building whose condition threatens the safety of living of citizens.
3.
The emergency condition of a residential building occurs as a result of: a) deformation, damage, reduction in strength and load-bearing capacity of one or a group of load-bearing structural elements (foundations, walls, load-bearing partitions, columns, ceilings, balconies, loggias, roofs, stairs and other load-bearing structural elements) ;b) deformation of the base of the building; c) damage during earthquakes, subsidence, uneven precipitation, natural disasters, etc., if these damages cannot be eliminated while simultaneously constructively meeting the requirements of building codes and regulations for residential buildings for special conditions construction and operation; d) accident, fire, if restoration work is technically impossible or impractical from an economic point of view.
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The apartments have exits to common areas or to the common plot of land where the house is located
The decisive factor in the case was the decision of the court of first instance, which was upheld in the courts of appeal and cassation, and was also confirmed by the Supreme Court of the Russian Federation. It was based on the following legislation:
- A residential building is an individually defined building consisting of rooms, as well as premises for auxiliary use (Part 2 of Article 16 of the Housing Code of the Russian Federation).
- An apartment building is a collection of two or more apartments that have independent exits either to a land plot adjacent to a residential building or to common areas (clause 6 of the Decree of the Government of the Russian Federation dated January 28, 2006 No. 47). Also, the MKD must contain elements of the common property of apartment owners.
- Elements of public property in an apartment building include, among other things, the land plot on which it is located (clause 4, part 1, article 36 of the Housing Code of the Russian Federation).
The court took into account that the disputed object is located on a land plot with a single cadastral number. The site is intended for an apartment building. The inspection report of the building indicates the presence of two apartments. Consequently, this is an apartment building, and not an individual residential building, and the administration had the legal right to hold an open competition, and the management company had the legal right to participate in it and conclude a management agreement with the owners. The judge granted the company's claim.
Does GZHI need a copy of the signed DU to change the register of licenses?
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Decree of the Government of the Russian Federation dated January 28, 2006 No. 47
9. Residential premises should be located primarily in houses located in the residential area in accordance with the functional zoning of the territory.
10. Load-bearing and enclosing structures of residential premises, including those included in the common property of the owners of premises in an apartment building, must be in working condition, in which violations that arise during operation in terms of deformability (and in reinforced concrete structures - in terms of crack resistance) do not lead to disruption of the performance and load-bearing capacity of structures, the reliability of a residential building and ensure the safe stay of citizens and the safety of engineering equipment.
The foundations and load-bearing structures of a residential building, as well as the foundations and load-bearing structures that are part of the common property of the owners of premises in an apartment building, must not have any destruction or damage leading to their deformation or the formation of cracks, reducing their load-bearing capacity and impairing the operational properties of the structures or residential building as a whole.
11. Residential premises, as well as the common property of the owners of premises in an apartment building, must be arranged and equipped in such a way as to prevent the risk of injury to residents when moving in and around the residential premises, when entering and leaving the residential premises and residential building. , as well as when using engineering equipment and ensure the possibility of moving items of engineering equipment in the corresponding premises of apartments and auxiliary premises of the house, which are part of the common property of the owners of premises in an apartment building. At the same time, the slope and width of flights of stairs and ramps, the height of steps, the width of treads, the width of landings, the height of passages along stairs, the basement, the attic in use, the dimensions of doorways should ensure the convenience and safety of movement and placement.
12. Residential premises must be provided with engineering systems (electric lighting, drinking and hot water supply, drainage, heating and ventilation, and in gasified areas also gas supply). In settlements without centralized utility networks, one- and two-story buildings may not have running water or sewerage latrines.
13. Engineering systems (ventilation, heating, water supply, drainage, elevators, etc.), equipment and mechanisms located in residential premises, as well as those included in the common property of premises owners in an apartment building, must comply with sanitary and epidemiological safety requirements. The design of the ventilation system of residential premises must exclude the flow of air from one apartment to another. It is not allowed to combine ventilation ducts of kitchens and sanitary facilities (auxiliary premises) with living rooms.
The air exchange rate in all ventilated residential premises must comply with the standards established in current regulatory legal acts.
14. Engineering systems (ventilation, heating, water supply, drainage, elevators, etc.) located in residential premises, as well as those included in the common property of the owners of premises in an apartment building, must be placed and installed in accordance with the safety requirements established in current regulatory legal acts, and instructions from equipment manufacturers, as well as hygienic standards, including those regarding the permissible level of noise and vibration created by these engineering systems.
15. External enclosing structures of residential premises, which are part of the common property of the owners of premises in an apartment building, must have thermal insulation that ensures in the cold season the relative humidity in the inter-apartment corridor and living rooms is not more than 60 percent, the temperature of heated premises is not less than +18 degrees Celsius Celsius, as well as insulation from the penetration of external cold air, vapor barrier from the diffusion of water vapor from the room, ensuring the absence of moisture condensation on the internal surfaces of non-transparent enclosing structures and preventing the accumulation of excess moisture in the structures of a residential building.
16. Residential premises, as well as premises that are part of the common property of premises owners in an apartment building, must be protected from the penetration of rain, melt and ground water and possible domestic water leaks from engineering systems using structural means and technical devices.
17. Access to residential premises located in an apartment building above the fifth floor, with the exception of the attic floor, must be via an elevator.
18. The permissible height of an operating residential building and the floor area within the fire compartment, which is part of the common property of the owners of premises in an apartment building, must correspond to the class of structural fire hazard of the building and the degree of its fire resistance established in the current regulatory legal acts, and ensure the fire safety of the residential building premises and the residential building as a whole.
19. In a reconstructed residential building, when the location of sanitary facilities changes, measures must be taken to provide hydro, noise and vibration insulation, provide them with ventilation systems, and, if necessary, the floors on which the equipment of the sanitary facilities are installed must be strengthened.
20. The space-planning solution of residential premises and their location in an apartment building, the minimum area of rooms and premises for auxiliary use intended to satisfy citizens’ household and other needs related to their living in residential premises (except for the hallway and corridor), must provide the possibility of accommodation the necessary set of furniture and functional equipment, taking into account ergonomic requirements.
21. In residential premises, the required insolation must be provided for one-, two- and three-room apartments - in at least one room, for four-, five- and six-room apartments - in at least 2 rooms. The duration of insolation in the autumn-winter period of the year in residential premises for the central, northern and southern zones must meet the relevant sanitary standards. The natural light factor in rooms and kitchens should be at least 0.5 percent in the middle of the living space.
22. The height (from floor to ceiling) of rooms and kitchen (kitchen-dining room) in climatic regions IA, IB, IG, ID and IVa must be at least 2.7 m, and in other climatic regions - at least 2.5 m The height of interior corridors, halls, hallways, and mezzanines must be at least 2.1 m.
23. The floor level of a living space located on the ground floor must be higher than the planning level of the ground.
Placing residential premises in the basement and ground floors is not permitted.
24. Placing a restroom, bathroom (shower) and kitchen above the rooms is not allowed. Placing a restroom and bath (shower) on the upper level above the kitchen is allowed in apartments located on 2 levels.
25. Rooms and kitchens in residential premises must have direct natural light.
Other auxiliary premises intended to satisfy citizens’ household and other needs, as well as premises that are part of the common property of the owners of premises in an apartment building (corridors, lobbies, halls, etc.) may not have natural lighting. The ratio of the area of light openings to the floor area of rooms and kitchens should be taken taking into account the lighting characteristics of windows and shading by opposing buildings, but not more than 1: 5.5 and not less than 1: 8, and for upper floors with light openings in the plane of inclined enclosing structures - not less than 1:10.
26. In a residential building, permissible sound pressure levels in octave frequency bands, equivalent and maximum sound and penetrating noise levels must correspond to the values established in current regulatory legal acts, and not exceed the maximum permissible sound level in rooms and apartments during the daytime of 55 dB , at night – 45 dB. At the same time, the permissible noise levels created in residential premises by ventilation systems and other engineering and technological equipment must be 5 dBA lower than the specified levels during the day and night.
Inter-apartment walls and partitions must have an airborne noise insulation index of at least 50 dB.
27. In residential premises, permissible levels of vibration from internal and external sources during the day and at night must correspond to the values established in current regulatory legal acts.
28. In residential premises, the permissible level of infrasound must correspond to the values established in current regulations.
29. In a residential area, the intensity of electromagnetic radiation in the radio frequency range from stationary transmitting radio engineering objects (30 kHz - 300 GHz) should not exceed the permissible values established in current regulations.
30. In a living room at a distance of 0.2 m from walls and windows and at a height of 0.5 - 1.8 m from the floor, the electric field strength of an industrial frequency of 50 Hz and the magnetic field induction of an industrial frequency of 50 Hz should not exceed 0.5, respectively kV/m and 10 µT.
31. Inside a residential premises, the equivalent radiation dose rate should not exceed the dose rate permissible for open areas by more than 0.3 μSv/h, and the average annual equivalent equilibrium volumetric activity of radon in the air of operated premises should not exceed 200 Bq/cubic meter.
m. 32. The concentration of harmful substances in the air of a residential premises should not exceed the maximum permissible concentrations for the atmospheric air of populated areas established in the current regulatory legal acts. At the same time, the assessment of the compliance of a residential premises with the requirements that it must meet is carried out according to the maximum permissible concentrations of the most hygienically significant substances that pollute the indoor air, such as nitrogen oxide, ammonia, acetaldehyde, benzene, butyl acetate, distylamine, 1,2-dichloroethane , xylene, mercury, lead and its inorganic compounds, hydrogen sulfide, styrene, toluene, carbon monoxide, phenol, formaldehyde, dimethyl phthalate, ethyl acetate and ethylbenzene.
Apartment owners have common property
GZHI filed an appeal, pointing out that the land plot, although it belongs to the common property of the apartment building, is not a common premises. Therefore, the presence of such a plot cannot be a sign that the house is an apartment building. A residential building consisting of two apartments with separate exits to a land plot without direct access to common areas is not multi-apartment. The disputed house has the characteristics of a residential building of a blocked development in accordance with Art. 49 Civil Code of the Russian Federation.
The Court of Appeal, repeating the arguments of its colleagues and fully agreeing with them, also added that
- The disputed building is recognized as an apartment building due to the presence of common property in it: a single roof and a single solid facade, a common foundation, one plot of land, and intra-building utilities for energy supply.
- The presence of common property entails the possibility of managing it by a specialized organization.
- The technical passport of the house indicates the presence of attic floors; accordingly, the house has an attic, which is a room intended to serve more than one apartment, and is part of the common property of the owners of the premises.
The Court of Appeal confirmed the legality of recognizing the building as an apartment building and, therefore, the illegality of the refusal of the State Housing Authority to make changes to the register of licenses according to the application of the management organization. The dispute moved to the cassation court, which completely agreed with the previous decisions. The Supreme Court of the Russian Federation, to which the State Housing Inspectorate appealed, refused to consider the complaint, having found no grounds for this.
As a result, the house was recognized as an apartment building, and the State Housing Authority was obliged to make changes to the register of licenses of the region in accordance with the results of an open competition for the selection of management entities.
On the extension of the contract with the management company, concluded based on the results of an open competition
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The procedure for declaring residential premises unfit for habitation
In conditions where the building is in fact unsuitable for living, but, nevertheless, it has not yet been officially approved, citizens need to initiate an inspection.
So, you can apply to have a building declared unfit for habitation.:
- the owner of such a building;
- tenant of the building under a lease agreement;
- an organization that is authorized to conduct relevant inspections (for example, Rospotrebnadzor or a housing inspection).
First of all, you need to submit an application to the appropriate authority, which, after an inspection, will issue a conclusion declaring the house unfit for habitation. Such an authority may be the housing inspection of the relevant constituent entity of the Russian Federation or a similar authority. The check should be carried out within a maximum of a month. Once the conclusion has been drawn up, its results must be communicated to the applicant within five days. After this, citizens will only have to wait for the resettlement procedure.
However, in practice this process is much more confusing and complex.
note
If a government agency makes a negative decision on an inspection, it can be appealed within three months from the date of the document.
In such circumstances it will be necessary to go to court. Citizens living in the relevant building have the right to organize their own commission, which will consist directly of residents, as well as employees of various authorities and engineers. The conclusion of such a commission regarding the recognition of a house as uninhabitable will become significant evidence in court.
In order for a building to be officially declared uninhabitable, it is necessary to have a commission conclusion, which will contain the following data:
information about the building: its type, area;- the percentage of wear that needs to be calculated by professional architects, engineers or designers;
- a document that will contain calculations for major repairs of a building in an emergency situation;
- conclusions about whether there is a real prospect of renovating the building.
On a note
The status of a house as an apartment building is important for the owners and, as in this case, for the municipality and management organization. If the house is multi-apartment, then questions arise about the method of managing it, carrying out current and major repairs of common property, forming a capital repair fund, recognizing the house as unsafe, and others.
As the courts indicated in the case considered, if a residential building with two or more apartments has common property: a roof, an attic, a basement, a plot of land, communications, then such a building is recognized as an apartment building, regardless of whether the apartments are equipped with exits to common premises.
What is the difference between emergency housing and uninhabitable housing?
Dilapidated housing.
Dilapidated condition of the building. Definition of the concept Dilapidated condition of a building is a condition in which the structures, foundation (building as a whole), as a result of high physical wear and tear, no longer meet the specified operational requirements (“Methodological recommendations for protecting the rights of participants in the reconstruction of residential buildings of various forms of ownership” (approved by the Order of the State Construction Committee of the Russian Federation dated 11/10/1998 N The definition of the concept of “dilapidated condition of a building” is also contained in the Methodological manual for the maintenance and repair of housing stock MKD 2-04.2004 (approved by the State Construction Committee of Russia; not officially published).
Olga Bregnova | Criminal procedural law | 03/23/2018 09:42 0 Comments
Recognizing the suitability of a home
The suitability of a house can only be determined by an expert with certain qualifications and special knowledge. The main direction of our company in relation to recognizing the suitability of a house is to draw up an appropriate conclusion to assess the compliance of a house in operation with established requirements based on checking its actual condition.
- Justification of the suitability of a house for living in the SNT gardening for changing the status from non-residential to residential for the purpose of registration at the dacha or for the purpose of approving a transaction for obtaining maternity capital;
- Recognition of the status of “residential and safe house” after the construction of a house without permission - self-building;
- Recognition of a dilapidated house as unsafe and unsuitable for habitation and unsafe residence for people for the purpose of resettlement for write-off with deregistration and subsequent demolition or major reconstruction;
We recommend reading: What is the difference between registration by place of residence and by place of stay
How to declare an apartment unfit for habitation
According to this provision, recognition of a premises as residential, suitable (unsuitable) for citizens to live in is carried out by an interdepartmental commission (hereinafter referred to as the commission) based on an assessment of the compliance of these premises with the requirements established in this document.
Recognition of a premises as a residential premises suitable (unsuitable) for citizens to live in, as well as an apartment building in disrepair and subject to demolition or reconstruction, is carried out by an interdepartmental commission created for these purposes, based on an assessment of the compliance of the premises and the house with the requirements established by the Resolution. The commission, on the basis of an application from the owner of the premises or an application from a citizen (tenant) or on the basis of the conclusion of state supervision (control) bodies on issues within their competence, assesses the compliance of the premises with the requirements established by the Resolution and recognizes the residential premises as suitable (unsuitable) for habitation, as well as recognizes an apartment building as unsafe and subject to demolition or reconstruction.
