Topic 1. The concept of housing law

1.1. Subject of regulation of housing law

Housing law is a set of legal norms governing housing relations. In Russia, the emergence of housing law as a relatively new legal entity (80s of the XNUMXth century) was primarily due to the need for an integrated approach to solving issues related to providing citizens with housing.

For the first time, a circle of housing relations has been defined in the LCD. According to Part 1 of Art. 4 housing legislation regulates relations regarding:

1) the emergence, implementation, change, termination of the right to own, use, dispose of residential premises of the state and municipal housing stock;

2) use of residential premises of private housing stock;

3) use of the common property of the owners of premises;

4) attribution of premises to the number of residential premises and their exclusion from the housing stock;

5) accounting of the housing stock;

6) maintenance and repair of residential premises;

7) reconstruction and redevelopment of residential premises;

8) management of apartment buildings;

9) the creation and operation of housing and housing-construction cooperatives, associations of homeowners, the rights and obligations of their members;

10) provision of public services;

11) making payments for housing and utilities;

12) control over the use and safety of the housing stock, compliance of residential premises with established sanitary and technical rules and regulations, and other requirements of the legislation.

Participants in housing relations are citizens, legal entities, the Russian Federation, constituent entities of the Russian Federation, municipalities. The provisions of the LCD apply to housing relations with the participation of foreign citizens, stateless persons, foreign legal entities, unless otherwise provided by the LCD or other federal law (part 2 of article 4 of the LCD).

The peculiarity of housing law lies in the fact that it regulates, on the one hand, organizational relations that develop on the basis of power and subordination (in particular, housing management, accounting for citizens in need of housing and distribution of residential premises), and on the other hand, relations , for which the equality of their subjects is characteristic (relations associated with the use of residential premises).

1.2. The right of citizens to housing

Article 40 of the Constitution proclaims the right of every citizen of the Russian Federation to housing. Through the implementation of this right, the satisfaction of the vital human need for housing is ensured.

According to the Universal Declaration of Human Rights of 10 December 1948, "everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, medical care and necessary social services" (Article 25).

According to the International Covenant on Economic, Social and Cultural Rights of December 16, 1966 (to which the Russian Federation is a party as the successor of the USSR), “the States Parties to this Covenant recognize the right of everyone to a decent standard of living for himself and his family, including adequate food clothing and housing, and to the continuous improvement of living conditions. The participating States will take appropriate measures to ensure the exercise of this right, recognizing the great importance in this respect of international cooperation based on free consent" (art. 11).

The constitutional norm on the right of citizens to housing appeared in Russia relatively recently. This right was first enshrined in the Constitution of the USSR in 1977, and then was reflected in the Constitution of the RSFSR and the Constitution, as well as in codified and other housing laws (Fundamentals of housing legislation of the USSR and union republics of 1981; Housing Code of the RSFSR, Federal Law of 12.01.1996 .9 No. XNUMX-FZ “On Amendments and Additions to the Law of the Russian Federation “On the Fundamentals of Federal Housing Policy””).

In part 1 of Art. 40 of the Constitution, the provision on the right to housing ("everyone has the right to housing") contains a guarantee of the protection of this right: "No one may be arbitrarily deprived of housing." Part 2 Art. 40 of the Constitution provides that state authorities and local self-government bodies encourage housing construction, create conditions for the exercise of the right to housing. It should be noted that in connection with the transition to a market economy, the approach to the issue of ways to provide housing for Russian citizens has changed. If earlier they received a significant part of the residential premises from the state, departmental and public housing stock, now the need for housing should be mainly met through individual housing construction, the acquisition of residential premises at their own expense in the housing market or commercial rental of residential premises. Free of charge or for an affordable fee from state, municipal and other housing funds, in accordance with the norms established by law, housing should be provided only to the poor and other citizens specified in the law (part 3 of article 40 of the Constitution). "Other citizens specified in the law" include military personnel, participants in the Great Patriotic War and persons equated to them, persons affected by emergency circumstances (including victims of earthquakes, floods, etc., refugees, forced migrants), and some other categories of citizens.

By enshrining the right to housing in the Constitution, the state assumes responsibility for ensuring and protecting this human right, which means the opportunity for everyone to have a home and, in necessary cases, enjoy the protection of the state from its arbitrary deprivation.

The JK specifies the provisions of the Constitution on ensuring conditions for the exercise of the right to housing. According to Art. 2 of the LCD, state authorities and local governments, within their competence, provide conditions for citizens to exercise their right to housing, including:

1) promote the development of the real estate market in the housing sector in order to create the necessary conditions to meet the needs of citizens in housing;

2) use budgetary funds and other sources of funds not prohibited by law to improve the living conditions of citizens, including by providing subsidies in the prescribed manner for the acquisition or construction of residential premises;

3) in accordance with the established procedure, provide citizens with residential premises under social tenancy agreements or contracts for the rental of residential premises of the state or municipal housing stock;

4) stimulate housing construction;

5) ensure the protection of the rights and legitimate interests of citizens who purchase residential premises and use them legally, consumers of public utilities, as well as services related to the maintenance of the housing stock;

6) provide control over the implementation of housing legislation, the use and preservation of the housing stock, the compliance of residential premises with established sanitary and technical rules and regulations, and other requirements of the legislation;

7) provide control over compliance with the requirements established by law in the implementation of housing construction.

In Russian legislation, the concept of "dwelling" is not fully disclosed, which causes controversy in practice. The term "dwelling" usually refers to a special structure or room specially designed for human habitation: a residential building, an apartment, a room, together with the corresponding ancillary premises (kitchen, corridor, bathroom, hallway, etc.), as well as other objects of a residential building used during its operation (elevator and elevator facilities, other engineering equipment).

An analysis of the norms contained in the Constitution and federal legislation shows that at this stage in the development of housing relations, the right to housing can be exercised in the following ways:

1) by providing residential premises under a social tenancy agreement in houses that make up the housing fund for social use. According to the Constitution, only a limited circle of persons has such a right.

In accordance with Art. 49 of the LCD, under a social tenancy agreement, residential premises of the state or municipal housing stock are provided.

Low-income citizens who, on the grounds established by the LCD, are recognized as in need of residential premises provided under social rental agreements, in accordance with the procedure established by the LCD under social rental agreements, are provided with residential premises of the municipal housing stock.

Residential premises of the housing stock of the Russian Federation or the housing stock of a constituent entity of the Russian Federation under social tenancy agreements are provided to other categories of citizens defined by the federal law or the law of the constituent entity of the Russian Federation, recognized on the grounds established by the LC and (or) federal law or the law of the constituent entity of the Russian Federation as in need of residential premises. These residential premises are provided in accordance with the procedure established by the LCD, unless otherwise provided by the specified federal law or the law of the subject of the Russian Federation.

The above-mentioned categories of citizens may be provided under social rental agreements with residential premises of the municipal housing stock by local governments if they are vested in the manner prescribed by law with state powers to provide these categories of citizens with residential premises. These residential premises are provided in accordance with the procedure established by the LCD, unless otherwise provided by federal law or the law of a constituent entity of the Russian Federation.

Residential premises under social tenancy agreements are not provided to foreign citizens, stateless persons, unless otherwise provided by an international treaty of the Russian Federation;

2) by transferring residential premises for use in accordance with a so-called commercial lease agreement (the wording "commercial lease", corresponding to the economic essence of this type of lease, is not applied in the current legislation (Chapter 35 of the Civil Code), but the general wording "renting residential premises" is used ", extending to this type of hiring, but as a type of hiring a dwelling, social hiring is singled out). Under this agreement, housing from the state, municipal and private housing stock can be rented out on conditions that differ significantly from a social rental agreement. The circle of citizens who have the right to conclude such an agreement is not limited.

It should be noted that the norms of the Civil Code, in contrast to the previously existing JK RSFSR and the Law of the Russian Federation dated December 24.12.1992, 4218 No. 1-XNUMX "On the Fundamentals of the Federal Housing Policy", do not provide for the conclusion between citizens and entities providing residential premises for use, lease agreements. Such agreements can only be concluded between the said entities and legal entities, which then transfer the residential premises rented by them for the use of citizens, usually their employees;

3) by building or acquiring residential premises in houses of various housing stocks at their own expense. In this case, it is necessary to take into account the general norm of paragraph 2 of Art. 213 of the Civil Code, according to which the quantity and value of property owned by citizens are not limited, except in cases where such restrictions are established by law for the purposes provided for in paragraph 2 of Art. 1 of the Civil Code (protection of the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, etc.). Since such restrictions are not provided for by law with regard to residential premises, a citizen may own any number of residential premises without establishing any limits on their area and value.

Citizens in many cases solve their housing problems through individual or cooperative housing construction, as well as the conclusion of civil law transactions: purchase and sale, exchange, donation, acquisition of housing by inheritance or through a housing cooperative. The Constitution (Part 2, Article 40) instructs state authorities and local governments to encourage housing construction and create other conditions for the exercise of citizens' right to housing.

The right to housing has a complex content and can be reduced to the following main legal possibilities:

1) the possibility of acquiring a dwelling by a citizen in need of it into ownership or obtaining it by the above methods for use;

2) the possibility of stable use of the occupied living quarters, free from outside illegal intrusion;

3) the possibility of using the residential premises not only for the residence of the citizen - the tenant of this premises and members of his family, but also for the transfer of the residential premises, subject to certain conditions, for residence to other citizens on the basis of a sublease agreement or as temporary residents;

4) ensuring in residential buildings (residential premises) a healthy living environment, a living environment worthy of a civilized person;

5) ensuring the protection of citizens from arbitrary deprivation of housing.

This shows that the constitutional right to housing is not identical in its content to the subjective right to living space, since, in addition to the ability to use housing, it includes other possibilities.

As one of the fundamental human rights, a citizen's right to housing arises from the moment of his birth (Part 2, Article 17 of the Constitution). This property of this right is manifested in the fact that, according to Part 1 of Art. 69 of the LCD, family members of the tenant of housing under a social tenancy agreement, who have equal rights with the tenant, include his minor children living together with him. With regard to the commercial rental of residential premises, minor children of the tenant may be part of citizens permanently residing with him and also have equal rights with him to use residential premises (paragraph 2 of article 677 of the Civil Code).

The right to housing has the property of inalienability (Part 2, Article 17 of the Constitution), in connection with which no one can be deprived of it or limited in its scope, except in cases expressly specified in the law. According to part 3 of Art. 55 of the Constitution, the rights and freedoms of a person and a citizen may be limited by federal law only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state. As for the right to housing, even in the event of a state of emergency, it is in accordance with Part 3 of Art. 56 of the Constitution is not subject to restriction.

The inalienability of the right to housing has found its concrete expression in Part 4 of Art. 3 of the LC, according to which no one can be evicted from the dwelling or restricted in the right to use the dwelling, including the right to receive public services, except on the grounds and in the manner provided for by the LC, other federal laws.

The housing rights of citizens are protected by law. Actions that hinder the exercise of the right to housing are prohibited.

The constitutional right of a citizen of Russia to housing corresponds to the obligation of the state to ensure the implementation of this right, which is specified in a number of duties that are narrower in content. The latter, in particular, include the obligations of the state, municipal bodies related to the provision of housing to low-income and other categories of citizens specified in the law and their use of these premises; with the expansion of state and municipal housing stock, assistance in the development of private housing stock and other forms of providing citizens with housing; ensuring the correct distribution of public housing stock; guaranteeing sustainable, stable exercise of the right to use housing.

Specific provisions relating to the realization of the right to housing are contained in the norms of the LC, in particular, defining the interests of citizens to be taken into account when providing housing under a social tenancy agreement (Article 58), and the requirements for housing provided under such an agreement ( article 62).

Of great importance is the allocation of a special "housing fund for social use" as part of the housing stock - a set of state and municipal housing funds provided to citizens under social rental agreements (clause 1, part 3, article 19 of the LC, part 1, article 672 of the Civil Code) . In addition, if it was not initially established who was provided with housing from this housing stock, then the Constitution introduced changes to the procedure and conditions for providing citizens with housing at the expense of state, municipal and other housing funds, according to which housing from these funds is provided free of charge or for an affordable fee only to the poor and other citizens specified in the law.

According to Part 1 of Art. 27 of the Constitution, everyone who is legally located on the territory of the Russian Federation has the right to move freely, choose a place of stay and residence. When interpreting this constitutional norm, it should be borne in mind that the place of residence in the law is understood as both the place where a citizen lives permanently and the place where a citizen lives predominantly, i.e. more than in other places (part 1 of Art. 20 of the Civil Code), therefore, this rule applies to both forms of residence.

For a long time in Russia there was the institution of registration, which limited the freedom of citizens to choose their place of residence, since living in residential premises was allowed only if they had a registration, and obtaining the latter required compliance with a number of conditions, which often turned into an insurmountable obstacle for persons wishing to live in a given residential premises. Such obstacles included, for example, the need to comply with the established norm of living space per person, the violation of which was considered as an artificial creation of citizens' need for improved housing conditions.

Law of the Russian Federation of June 25.06.1993, 5242 No. 1-17.07.1995 "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation" instead of registration, registration of citizens of Russia was introduced. In accordance with this Law, the Rules for the registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation were adopted (approved by Decree of the Government of the Russian Federation of July 713, 02.02.1998 No. 4). At the same time, an attempt was initially made to introduce restrictions for registration, similar to the restrictions previously established for registration, however, by the Decree of the Constitutional Court of the Russian Federation of 10. have lost their power. In this Resolution, the Constitutional Court of the Russian Federation indicated that by the Law of the Russian Federation "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation", the Government of the Russian Federation is authorized to develop only the procedure for registering and deregistering citizens, but it is not granted the right to establish the grounds for refusal of registration.

However, recently there have been more cases of registration in residential buildings owned by citizens by right of ownership, outsiders for these citizens, in connection with which the question is again raised about the need to introduce restrictions on registration, depending on the size of the living area. But the solution to this problem can only be a federal law that allows, in accordance with the norm of the Constitution, in certain cases, the restriction of the rights and freedoms of Russian citizens (part 3, article 1 of the LC). A specific way to resolve it could be to introduce an appropriate addition to the Law of the Russian Federation "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation." At the same time, great care is needed when introducing such restrictions on registration, so that they do not unduly infringe on the interests of citizens.

1.3. Housing rights and obligations of citizens

Citizens, at their own discretion and in their own interests, exercise their housing rights, including dispose of them. They are free to establish and exercise their housing rights by virtue of an agreement and (or) other grounds provided for by housing legislation. The exercise by citizens of their housing rights and the fulfillment by them of their obligations arising from housing relations must not violate the rights, freedoms and legitimate interests of other citizens.

Citizens legally staying on the territory of the Russian Federation have the right to freely choose residential premises for living as owners, tenants or on other grounds provided for by law.

Restriction of the right of citizens to freedom of choice of residential premises for living is allowed only on the basis of the LCD, another federal law (parts 2-5, article 1 of the LCD).

Housing rights and obligations arise from the grounds provided for by the Housing Code, other federal laws and other regulatory legal acts of the Russian Federation, as well as from the actions of participants in housing relations, which, although not provided for by such acts, but by virtue of the general principles and meaning of housing legislation give rise to housing rights and responsibilities.

In accordance with this, housing rights and obligations arise:

1) from agreements and other transactions provided for by federal law, as well as from agreements and other transactions, although not provided for by federal law, but not contradicting it;

2) from acts of state bodies and local self-government bodies, which are provided for by housing legislation as the basis for the emergence of housing rights and obligations;

3) from a court decision that established housing rights and obligations;

4) as a result of the acquisition of residential premises on the grounds permitted by federal law;

5) as a result of membership in housing and housing cooperatives;

6) due to the actions of participants in housing relations or the occurrence of events with which the federal law or other regulatory legal act connects the emergence of housing rights and obligations.

The main housing right of citizens is the right to use a dwelling as an owner, tenant (subtenant), members of their family, temporary resident. At the same time, the law establishes the right of certain categories of persons to provide residential premises for use by other citizens.

According to Art. 11 of the LCD, protection of violated housing rights is carried out by the court in accordance with the jurisdiction of cases established by procedural legislation. Protection of housing rights in the administrative order is carried out only in cases provided for by the LCD, other federal law. An administrative decision may be challenged in court.

Protection of housing rights is carried out by:

▪ recognition of housing law;

▪ restoring the situation that existed before the violation of housing rights and suppressing actions that violate this right or create a threat of its violation;

▪ recognition by the court as invalid in whole or in part of a normative legal act of a state body or local government body that violates housing rights and contradicts the Housing Code or a federal law adopted in accordance with the Housing Code, another normative legal act that is greater than the specified normative legal act of the state body or body local government, legal force;

▪ non-application of such a normative legal act by the court;

▪ termination or change of housing legal relationship;

▪ other methods provided for by the Housing Code and other federal laws.

One of the main housing obligations of citizens is the use of residential premises for their intended purpose. As stated in Art. 17 residential complex, residential premises are intended for citizens. It is allowed to use a dwelling for the implementation of professional activities or individual entrepreneurial activities by citizens legally residing in it, if this does not violate the rights and legitimate interests of other citizens, as well as the requirements that the dwelling must meet.

According to the housing legislation (part 3 of article 17 of the LC), it is not allowed to place industrial production in residential premises. Civil legislation (clause 3 of article 288 of the Civil Code) prohibits placing industrial production in residential buildings, from which it follows that it is unacceptable to provide non-residential premises located in residential buildings for the needs of an industrial nature.

The use of residential premises is carried out taking into account the observance of the rights and legitimate interests of citizens living in this premises, neighbors, fire safety requirements, sanitary and hygienic, environmental and other legal requirements, as well as in accordance with the rules for the use of residential premises approved by the Government of the Russian Federation.

The duties of persons using residential premises also include ensuring the safety of the residential premises and maintaining it in proper condition (part 4 of article 30, paragraphs 2-3 of part 3 of article 67 of the LC, part 1 of article 678 of the Civil Code).

Article 20 of the LC provides for state control over the use and preservation of the housing stock, regardless of its form of ownership, as well as the compliance of residential premises and utilities with established requirements. This control is carried out by authorized federal executive bodies, state authorities of the constituent entities of the Russian Federation in accordance with the federal law and other regulatory legal acts of the Russian Federation.

Unlike the previous legislation, the Civil Code provided for the responsibility of owners for the use of residential premises for other purposes or in violation of the rights and freedoms of neighbors. According to Art. 293 of the Civil Code, if the owner of a dwelling uses it for other purposes or systematically violates the rights and interests of neighbors, the local government may warn the owner of the need to eliminate the violations. In cases where, despite the warning, the owner continues to violate the rights and interests of neighbors or use the residential premises for other purposes, the court, at the request of the local government, may decide to sell such residential premises at public auction with payment to the owner of the proceeds from the sale for deducting the costs of enforcement of the judgment.

The law also provided, as a last resort, the possibility of a similar termination of the owner's right to a dwelling in cases of mismanagement of the dwelling, entailing its destruction. This measure can be applied in court after assigning a reasonable period to the owner to repair the premises.

The responsibilities of homeowners may include their insurance. Such insurance can be carried out in order to guarantee compensation for losses associated with the loss (destruction) or damage to residential premises, in accordance with the law (Article 21 of the LC RF).

1.4. Assistance of the state and local self-government bodies to citizens in exercising the right to housing

Currently, measures aimed at solving the housing problem in Russia are being implemented within the framework of the federal target program “Housing” for 2002-2010, approved by Decree of the Government of the Russian Federation dated September 17.09.2001, 675 No. XNUMX.

The main goal of the program is a comprehensive solution to the problem of transition to sustainable functioning and development of the housing sector, ensuring the availability of housing for citizens, safe and comfortable living conditions in it.

The main tasks at the present stage are:

▪ creating conditions for the development of the housing and housing and communal services sectors of the economy and increasing the level of housing provision for the population by increasing the volume of housing construction and developing financial and credit institutions of the housing market;

▪ creating conditions for bringing the housing stock and communal infrastructure into compliance with quality standards that ensure comfortable living conditions;

▪ ensuring the availability of housing and utilities in accordance with the effective demand of citizens and standards for the provision of residential premises.

As indicated in this program, the new legal conditions create the basis for the implementation of the goals set in practice and require large-scale coordinated actions at all levels of state power and local self-government and the implementation of measures of a regulatory, administrative, organizational, budgetary and financial nature.

The severity of problems in the housing sector and the importance of their solution for the socio-economic development of the Russian Federation require the implementation of a set of measures within the framework of the priority national project "Affordable and Comfortable Housing for the Citizens of Russia".

The inclusion of the task of forming an affordable housing market and ensuring comfortable living conditions among the priority national projects, along with the development of education and healthcare, determines the social orientation of a new stage of economic transformation in the country. A real opportunity to earn decent housing for significant groups of the population will contribute to the revitalization of their economic activity, and a clear definition of the groups to which society is obliged to meet their housing needs will help overcome the dependency attitudes of a significant part of the country's population.

As a result of the implementation of the priority national project "Affordable and comfortable housing for the citizens of Russia", a model for providing housing for the main groups of the population should be formed, significant results have been achieved in improving the living conditions of citizens of the Russian Federation.

The second phase of the program implementation (2006-2010) provides for the continuation of reforms in the housing sector, as well as the implementation of a set of measures within the framework of the priority national project "Affordable and Comfortable Housing for the Citizens of Russia".

Citizens in the construction or purchase of housing have the right to receive compensation (subsidies), preferential loans, loans in the prescribed manner. Decree of the President of the Russian Federation of December 24.12.1993, 2281 No. XNUMX "On the development and implementation of off-budget forms of investment in the housing sector", in particular, provides for measures to organize a mortgage and other system of lending to the population in the construction, reconstruction and acquisition of housing at the federal, regional and local levels, in including the formation of regional and local funds for the development of housing construction to use the funds of these funds for the construction of social housing, the payment of compensation (subsidies) to the poor and other groups of the population to pay for the construction, purchase and maintenance of housing. This Decree instructed the Government of the Russian Federation, together with the Central Bank of the Russian Federation, to approve the Regulation on housing loans, and also provided for the creation of a special state body - the Federal Agency for Housing Mortgage Lending (currently there is an OJSC "Agency for Housing Mortgage Lending" and similar OJSCs have been created in the constituent entities of RF).

To implement the planned measures, the President of the Russian Federation in June 1994 simultaneously issued three decrees, the purpose of which was to assist citizens in the construction (reconstruction) and purchase of housing, to expand the funds of the population and other non-budgetary sources of financing in the housing sector and protect them from inflation, and also creating conditions for providing citizens of the Russian Federation with housing.

Decree of the President of the Russian Federation No. 10.06.1994 of June 1180, XNUMX "On Housing Loans" defines the general procedure for providing credit and financial support to the population in solving the housing problem when citizens use their own funds. The Regulation on Housing Loans approved by this Decree establishes the procedure for granting loans by banks in the territory of the Russian Federation to legal entities and individuals for the construction (reconstruction) of housing, the improvement of land plots, as well as for the purchase of housing, subject to a pledge of real estate (mortgage).

In accordance with this Regulation, when lending to construction (reconstruction) or the purchase of housing, the bank can provide three types of housing loans:

1) a short-term or long-term loan provided to legal entities and individuals for the acquisition and development of land for future housing construction (land loan);

2) a short-term loan for the construction (reconstruction) of housing, provided to legal entities and individuals to finance construction work (construction loan);

3) a long-term loan provided to individuals and legal entities for the purchase of housing (a loan for the purchase of housing).

The Regulation defines the basic principles that must be observed when providing housing loans: targeted use, security, urgency, payment, repayment of the loan.

The main documents that determine the relationship between the bank and the borrower when granting a loan are a loan agreement and a pledge (mortgage) agreement.

Decree of the Government of the Russian Federation of 11.01.2000 No. 28 "On Measures to Develop the System of Mortgage Lending in the Russian Federation" approved the Concept for the Development of the System of Mortgage Lending in the Russian Federation, in accordance with which the formation of a system of mortgage lending was recognized as one of the priority areas of the state housing politicians. The concept includes a detailed description of the formation of a system of long-term mortgage lending, as well as the organizational and economic mechanism for attracting credit resources in this area. In particular, it provides that:

▪ long-term mortgage housing loans are provided for a period of three years or more (optimally at this stage 10-15 years);

▪ the loan amount is no more than 60-70% of the market value of the property being purchased, which is the subject of collateral;

▪ the borrower is required to make a down payment to pay for housing, usually in the amount of 30-40% of its cost from his own funds;

▪ the loan and interest on it are paid in the form of monthly payments;

▪ the monthly loan payment should not exceed 30-35% of the borrower’s total income for the corresponding billing period. When assessing the likelihood of loan repayment, the lender uses officially confirmed information about the borrower’s current income;

▪ the borrower and all adult members of his family give notarized consent to the release of the residential premises purchased with loan funds and mortgaged in the event of foreclosure.

Decree of the President of the Russian Federation of June 10.06.1994, 1182 No. XNUMX "On the issue and circulation of housing certificates" establishes that legal entities that have the rights of a customer in the construction of residential buildings, a land plot allocated in accordance with the established procedure for housing construction and project documentation for housing construction, have the right attract financial resources from citizens of the Russian Federation using housing certificates.

According to the Regulations on the issue and circulation of housing certificates, approved by this Decree, housing certificates are a special type of bonds with an indexed nominal value, certifying the right of their owner to purchase an apartment (apartments) subject to the purchase of a package of housing certificates, as well as to receive from the issuer upon request indexed face value of the housing certificate.

Housing certificates are issued and circulated in accordance with the rules established by the legislation of the Russian Federation for the issuance and circulation of securities, taking into account the requirements stipulated by the above Regulation.

An important feature of housing certificates is that only such housing certificates are allowed for issue and circulation on the territory of the Russian Federation, the prospectus of which has passed state registration with the Ministry of Finance of Russia or its local authorities and the issues have received a state registration number in the prescribed manner. In case of violation of this requirement, the issuance of housing certificates is illegal and invalid.

The regulation defines the procedure for registering a prospectus for the issue of housing certificates, the grounds for refusal in it, as well as the procedure for making transactions with housing certificates.

The issuer of housing certificates bears on its own behalf obligations under them to the owners of housing certificates.

In addition, at present, housing certificates are issued in accordance with the subprogram "Fulfillment of state obligations to provide housing for categories of citizens established by federal legislation" of the federal target program "Housing" for 2002-2010, approved by Decree of the Government of the Russian Federation of December 31.12.2005, 865 No. XNUMX . Its purpose is to provide housing for military personnel, employees of internal affairs bodies subject to dismissal from military service (service), and persons equated to them, as well as other categories of citizens defined by this subprogram. To this end, the subprogram provides for the use of federal budget funds to provide citizens of the categories provided for in it with subsidies for the purchase of housing. Participation in this subprogram is voluntary. The effect of this subprogram applies to military personnel, employees of internal affairs bodies and other categories of persons established in it serving in the relevant state bodies and institutions, the total duration of service of which in calendar terms is 10 years or more (with some exceptions). To exercise their right to receive a subsidy, the above persons, as well as other categories of citizens specified in the subprogram, receive state housing certificates, the issuance and sale of which is currently carried out in accordance with the Rules approved by Decree of the Government of the Russian Federation of March 21.03.2006, 153 No. XNUMX. The received certificate is handed over by its owner to the bank to conclude a bank account agreement and open a bank account intended for crediting the subsidy. Personal or borrowed (credit) funds of a citizen participating in the subprogram may also be credited to this account. The selection of banks participating in the implementation of the subprogram is carried out on a competitive basis. The terms of the competition are determined by the state customer of the subprogram in agreement with the Ministry of Finance of Russia. Citizens - participants of the subprogram can purchase on the housing market from individuals and (or) legal entities (one or more) residential premises (residential premises), including an individual residential building (part of the house), that meets the established sanitary and technical requirements, landscaped in relation to conditions of the settlement chosen for permanent residence, including in rural areas (including outbuildings), both at the expense of a subsidy and with additional involvement of own or borrowed (credit) funds. The owner of the certificate, after the conclusion of the bank account agreement, during the period of its validity, determined depending on the validity period of the certificate, submits a bank account agreement, an agreement for housing and a certificate (s) of state registration of ownership rights to the bank at the place of purchase of housing to pay for the purchased housing to the dwelling(s).

In addition to the above-mentioned subprogram, the Federal Law of August 20.08.2004, 117 No. 1-FZ “On the savings and mortgage system of housing for military personnel” is in force, according to which officers who entered into the first contract for military service after January 2005, 1, warrant officers and midshipmen , whose total duration of military service under the contract will be three years starting from January 2005, 1, as well as sergeants and foremen, soldiers and sailors who entered into a second contract for military service no earlier than January 2005, XNUMX and who have expressed their desire to do so, are participants in the savings and mortgage system, according to which a personal savings account is opened for each military personnel. Housing savings accounted for in this account are formed from the following sources:

1) savings contributions from the federal budget;

2) income from investing savings for housing;

3) other receipts not prohibited by the legislation of the Russian Federation. The right to use savings accounted for in a personal savings account arises in the presence of circumstances provided for in Art. 10 of this Federal Law (total duration of military service is 20 years or more; dismissal of a military personnel whose total duration of service is ten years or more on the grounds specified in the above-mentioned Federal Law, etc.). In addition, each participant in the savings-mortgage system, no less than three years after his inclusion in the savings-mortgage system, has the right to conclude a targeted housing loan agreement with the authorized federal body for the purposes of:

1) acquisition of residential premises secured by the acquired residential premises;

2) repayment of the down payment upon receipt of a mortgage credit (loan) and (or) repayment of obligations under such credit (loan). Targeted housing loan is provided for the period of the participant of the accumulative-mortgage system of military service and is interest-free for this period. However, the size of a targeted housing loan cannot exceed the actual amount of funds accumulated by the time it is granted in the personal savings account of a serviceman.

Decree of the President of the Russian Federation of June 10.06.1994, 1181 No. XNUMX "On Measures to Ensure the Completion of Unfinished Residential Buildings" is aimed at reducing the cost of maintaining unfinished residential buildings and ensuring their completion and commissioning. This Decree approved the Regulations on the procedure for the transfer for the completion of construction and the sale of unfinished residential buildings, in accordance with which the organization and holding of investment or commercial competitions for the transfer for completion of construction and the sale of unfinished construction due to the lack of financing of residential buildings, consisting of federal property, including those under the jurisdiction of enterprises and the operational management of institutions financed from the federal budget, with the exception of facilities for youth residential complexes.

In connection with the deteriorating demographic situation in the country, considerable attention has recently been paid to ensuring an increase in the birth rate, which requires, in particular, the creation of normal living conditions for young families. Relevant activities continue to be carried out within the framework of the subprogram "Providing housing for young families" of the federal target program "Housing" for 2002-2010, the second stage of implementation of which (2006-2010) began on January 1, 2006. In accordance with this subprogram, young families Those recognized as in need of housing are provided subsidies from the budget for the purchase of housing, including the repayment of the down payment when obtaining a mortgage loan or loan for the purchase of housing or the construction of an individual residential house. A participant in the subprogram can be a young family, the age of the spouses of which does not exceed 30 years, or an incomplete family consisting of one young parent, whose age does not exceed 30 years, and one or more children and in need of improved living conditions. The amount of the subsidy is at least 35% of the average cost of housing, determined in accordance with the requirements of the subprogram (including 10% from the federal budget and at least 25% from the budgets of the constituent entities of the Russian Federation and local budgets), - for young families without children, as well as at least 40% of the average cost of housing, determined in accordance with the requirements of the subprogram (including 10% - at the expense of the federal budget and at least 30% - at the expense of the budgets of the constituent entities of the Russian Federation and local budgets), - for young families with one or more children. In addition, the constituent entities of the Russian Federation participating in the implementation of the subprogram additionally provide a young family participating in the subprogram with a subsidy in the amount of at least 5% of the average cost of housing at the birth (adoption) of one child for the purpose of repaying part of the mortgage housing loan or loan or compensating the young family's own funds for the purchase of housing or the construction of individual housing. The condition for receiving a subsidy is that a young family has additional funds - its own funds or funds from a mortgage housing loan or loan necessary to pay for the purchased housing. As the insurance system for housing mortgage loans develops, the possibility of supporting young families from the federal budget, the budgets of the constituent entities of the Russian Federation and local budgets in paying insurance premiums for this type of voluntary insurance will be additionally considered, which will reduce the amount of the down payment when young families receive mortgage loans up to 5-10% of the cost of housing. The procedure for granting subsidies to young families for the purchase of housing, including the payment of a down payment when obtaining a mortgage housing loan or loan, is established by the Government of the Russian Federation.

An important step towards solving the housing problem was the adoption of a legislative package consisting of 26 federal laws regulating housing and related relations, which were signed by the President of the Russian Federation in August and December 2004. These laws include the ZhK, the Town Planning Code, the Federal Law "On the accumulative-mortgage system of housing provision for military personnel", the Law on Credit Histories, the Law on Participation in Shared Construction, the Law on Cooperatives, Federal Law No. 30.12.2004-FZ of December 210, XNUMX "On the Basics of Tariff Regulation of Public Utilities Organizations" and a number of other federal laws. They regulate a very wide range of issues related to the problem of providing citizens with housing; while taking into account the changes that have occurred in the socio-economic sphere of life in our country in recent years.

The constituent entities of the Russian Federation also adopt their own laws and other regulatory legal acts that provide for the payment of compensation (subsidies) to citizens for the construction and purchase of housing and other types of state assistance and assistance to them in the housing sector. State authorities and local self-government bodies provide assistance and support to citizens both in direct and indirect forms.

Direct budgetary support for citizens and legal entities (housing, housing construction cooperatives, homeowners associations, other associations of owners) is carried out by public authorities in order to improve the living conditions of citizens by:

1) targeted assistance to citizens in the acquisition and construction of housing;

2) financing the construction of state and municipal housing provided to those in need of housing;

3) allocation of subsidies for the maintenance, maintenance, repair, operation of the housing stock, as well as the provision of public services.

Indirect forms of state incentives contribute to the creation of economic conditions that determine the effective development of the housing market, which encourages investment of funds of citizens and legal entities in the housing sector.

Measures aimed at increasing these investments include the provision of incentives for commercial banks that issue long-term mortgage loans to citizens for the purchase of housing, the issuance of municipal housing loans, and other forms of incentives.

By providing assistance to citizens in solving the housing problem, the state and local governments create the necessary conditions for housing construction. Of great importance in this case is the regulation of the procedure for providing land plots for such construction. As provided for in Part 1 of Art. 35 of the Town Planning Code, as a result of town planning zoning, residential zones may be determined, which may include areas for residential buildings:

1) individual;

2) low-rise;

3) mid-rise;

4) multi-storey;

5) other types. Residential buildings may also be included in the list of capital construction projects permitted for placement in public and business zones (Parts 2 and 6 of Article 35).

The current land legislation contains norms that ensure the provision of land plots for housing construction. In particular, paragraph 4 of Art. 28 of the Land Code provides for the inadmissibility of refusal to provide citizens and legal entities with state or municipally owned land plots for construction, except for the following cases:

▪ withdrawal of land plots from circulation;

▪ the ban on the privatization of land plots established by federal law;

▪ reservation of land plots for state or municipal needs.

It is not allowed to refuse to grant the ownership of citizens and legal entities of land plots that are limited in circulation and are in state or municipal ownership, if federal law allows them to be transferred to the ownership of citizens and legal entities.

In accordance with the Federal Law of December 29.12.2004, 191 No. 30.1-FZ "On the Enactment of the Town Planning Code of the Russian Federation", the LC was supplemented by Art. XNUMX, according to which separate plots for housing construction are provided in two forms: ownership or lease. At the same time, the provision of land plots for this purpose is simplified, since no prior approval of the location of the facility is required.

When a land plot is provided for housing construction on it, an auction is mandatory for the sale of the land plot or for the sale of the right to conclude a lease agreement for the land plot. The procedure for holding such an auction is determined by Art. 38.1 included in the LC by the same Federal Law. A direct contract for the sale or lease of a land plot with a person who submitted an application for its provision is concluded only if the auction is declared invalid on the grounds that less than two participants participated in it. The holding of these auctions to a greater extent will ensure the proper use of land plots provided for housing construction.

A stimulating effect on the provision of land plots for housing construction is intended to be provided by a new norm included in the BC by Federal Law No. 20.08.2004-FZ of 111. the budget in full receives income from the sale and lease of state-owned land plots located within the boundaries of municipalities and intended for housing construction (paragraph 60 of this article).

As a general rule, the preparation of project documentation is necessary for the implementation of construction. However, in accordance with Part 3 of Art. 48 of the Town Planning Code, the preparation of such documentation is not required during the construction, reconstruction, overhaul of individual housing construction objects (detached residential buildings with no more than three floors, intended for one family). The developer, on his own initiative, has the right to ensure the preparation of project documentation in relation to the objects of individual housing construction. Construction, reconstruction of housing construction objects, as well as their overhaul, if during its implementation the structural and other characteristics of the reliability and safety of such objects are affected, is carried out on the basis of a building permit (part 2 of article 51).

To issue a building permit, it is necessary to submit a town-planning plan for the land plot. It should be noted that in the event that an individual or legal entity applies to a local government with an application for the issuance of an urban planning plan for a land plot, it is not required to carry out the procedures provided for in Parts 1-16 of Art. 46 of the Town Planning Code. In such cases, the local self-government body provides the applicant with a town-planning plan of the land plot without charging a fee (part 17 of article 46).

A limited range of documents is attached to an application for issuing a building permit for the purposes of construction, reconstruction, overhaul of an individual housing construction facility. Such documents are:

1) title documents for the land plot;

2) town-planning plan of the land plot;

3) a scheme of the planning organization of the land plot with the designation of the location of the individual housing construction object (part 9 of article 51).

As well as the provision of an urban planning plan for a land plot at the request of an individual or legal entity, the issuance of a building permit is carried out without charging a fee (part 15 of article 51).

A building permit is issued for a period stipulated by the project for organizing the construction of a capital construction facility. A permit for individual housing construction is issued for ten years (part 19 of article 51).

The presence in the new urban planning legislation of the above norms simplifies the solution of administrative issues related to the implementation of construction, reconstruction, overhaul of housing construction facilities, and reduces the cost of solving these issues.

The increasing spread of housing sales in installments with long payment terms has given rise to the problem of reimbursement of funds invested in housing construction. One way to solve this problem is to issue mortgage-backed securities. The first specific law passed in this area was the Mortgage-Backed Securities Act. In accordance with Art. 2 of the Law, two types of mortgage-backed securities were issued:

1) mortgage-backed bonds;

2) mortgage participation certificates. Federal Law No. 29.12.2004-FZ dated December 193, XNUMX “On Amendments to the Federal Law “On Mortgage-Based Securities”” specifically identifies this type of securities as mortgage-backed housing bonds, which are a type of mortgage-backed bonds.

A mortgage-backed housing bond is a mortgage-backed bond that includes only claims secured by a pledge of residential premises. Relations arising in connection with the issue of these bonds are subject to the general rules governing relations arising in connection with the issue of mortgage-backed bonds, with the exceptions provided for by the Law.

According to the new rule included in par. 2 hours 3 tbsp. 3 of the Law on Mortgage Securities Federal Law No. 29.12.2004-FZ of December 193, 80, mortgage coverage of mortgage-backed housing bonds cannot include claims secured by a pledge of immovable property whose construction has not been completed. This rule increases the reliability of mortgage coverage for housing bonds with such coverage and protects the interests of purchasers of this type of mortgage-backed securities. The amount (amount) of mortgage-backed claims constituting the mortgage coverage of bonds cannot be less than 1% of the total nominal value of bonds (Part 13, Article XNUMX).

The issue of mortgage-backed bonds can only be carried out by mortgage agents and credit institutions. In accordance with paragraph 2 of Art. 102 of the Civil Code, a joint-stock company has the right to issue bonds in an amount not exceeding the amount of the authorized capital or the amount of security provided for these purposes by third parties after full payment of the authorized capital. In the absence of collateral, the issue of bonds is permitted no earlier than the third year of existence of the joint-stock company and subject to proper approval by this time of two annual balance sheets of the company. However, Federal Law No. 29.12.2004-FZ dated December 192, 2 “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law “On Mortgage-Based Securities”” introduced an addition to this paragraph, according to which the specified restrictions on the issue of bonds do not apply to issue of mortgage-backed bonds. In a similar way, this Federal Law supplemented paragraph 31 of Art. 08.02.1998 of the Federal Law of 14/XNUMX/XNUMX No. XNUMX-FZ “On Limited Liability Companies”.

A mortgage agent is a specialized commercial organization that complies with the established Art. 8 of the Law on Mortgage Securities to requirements, the exclusive subject of activity of which is the acquisition of rights of claim on mortgage-backed credits (loans) and (or) mortgages, and which, in accordance with the Law, has been granted the right to issue mortgage-backed bonds.

The activity envisaged by the law can be carried out only by a mortgage agent in the form of a joint-stock company (paragraph 4, part 1, article 8 of the Mortgage Securities Law).

Mortgage-backed bonds can be issued both in documentary and non-documentary form. They must secure the right of their owners to receive interest, the amount of which is determined by the decision to issue mortgage-backed bonds (Part 1, Article 10). Interest on mortgage-backed bonds must be paid at least once a year (Part 2, Article 10).

A mortgage participation certificate is a registered security that certifies the share of its owner in the right of common ownership of mortgage coverage, the right to demand from the person who issued it proper trust management of mortgage coverage, the right to receive funds received in fulfillment of obligations, the claims for which constitute mortgage coverage , as well as other rights provided for by Art. 2.

Issuance of mortgage participation certificates can be carried out only by commercial organizations that have licenses to manage investment funds, mutual investment funds and non-state pension funds, as well as credit organizations (part 1 of article 17).

The issuance of mortgage participation certificates is the basis for the emergence of a common share ownership of the owners of these certificates for the mortgage coverage under which they are issued, and the establishment of trust management of such mortgage coverage. Common shared ownership of mortgage coverage arises simultaneously with the establishment of trust management of this mortgage coverage (Part 2, Article 17).

The law establishes a special regime of common shared ownership of holders of mortgage certificates of participation, according to which the division of property constituting mortgage coverage and the separation of a share in kind from it are not allowed. In addition, a condition of the contract of trust management of mortgage coverage is the refusal of an individual or legal entity from exercising the pre-emptive right to acquire a share in the right of common shared ownership of the property constituting the mortgage coverage. In this case, the corresponding right is terminated (part 2 of article 18).

Each mortgage participation certificate certifies the same scope of rights, including the same share in the common ownership of the mortgage coverage. Such a certificate is a non-documentary security having no par value. Mortgage participation certificates are freely circulating, including through trade organizers on the securities market.

The issue of mortgage-backed securities provides additional attraction of funds from individuals and legal entities to housing construction and thereby contributes to solving the housing problem.

Housing construction is expensive and therefore in many cases is carried out using borrowed funds. At the same time, lenders must be confident that the borrower will properly fulfill its obligations. To a certain extent, the Credit History Law adopted in 2004 should help create such confidence. According to paragraph 1 of Art. 3, credit history means information, the composition of which is determined by this Law and which characterizes the borrower’s fulfillment of its obligations under loan (credit) agreements and is stored in the credit history bureau. Credit history consists of three parts:

1) title;

2) main;

3) additional (closed).

The title part contains information about the subject of the credit history - the borrower (individual or legal entity).

The main part contains those specified in Art. 4 information about the borrower and information regarding the obligation of the borrower (for each credit history entry). Here, in particular, there should be information about the amount of the borrower's obligation as of the date of conclusion of the loan (credit) agreement, the term for fulfilling the obligation in full, the term for paying interest in accordance with the loan (credit) agreement, the date and amount of the actual fulfillment of the borrower's obligations in full and (or) incomplete amounts, on the repayment of a loan (credit) at the expense of collateral in the event that the borrower fails to fulfill its obligations under the agreement; on the facts of consideration by the court of disputes under a loan (credit) agreement and the content of the operative parts of judicial acts that have entered into force, with the exception of the information specified in the additional (closed) part of the credit history.

The additional (closed) part of the credit history contains information regarding the source of the formation of the credit history and its users.

The Credit History Bureau is a legal entity registered in accordance with the legislation of the Russian Federation and providing, in accordance with the Law on Credit Histories, services for the formation, processing and storage of credit histories, as well as for the provision of credit reports and related services. A mandatory requirement for a credit history bureau is that it has a license to carry out activities for the technical protection of confidential information. The federal executive body authorized to exercise the functions of control and supervision over the activities of credit history bureaus (currently the Federal Financial Markets Service) maintains the state register of credit history bureaus. The grounds for refusing to make an entry about a legal entity in this register are provided for in Part 7 of Art. fifteen.

The source of the formation of a credit history is an organization that is a lender (creditor) under a loan (credit) agreement and submits information included in the credit history to the credit history bureau. This information is provided on the basis of an agreement on the provision of information services (part 1, article 5). The source of credit history formation provides information to the credit history bureaus only if there is a written or otherwise documented consent of the borrower. The borrower's consent to submit information to the credit bureau can be obtained in any form that makes it possible to unequivocally determine whether such consent has been obtained (part 4, article 5).

In accordance with Part 3 of Art. 5 credit institutions are required to provide all available information as defined in art. 4, in relation to all borrowers who have agreed to submit it, in the above order, to at least one credit history bureau included in the state register of credit history bureaus.

An individual entrepreneur or a legal entity that has received a written or otherwise documented consent of the subject of the credit history to receive a credit report for concluding a loan (credit) agreement can act as a user of a credit history. A credit report is a document that contains information that is part of a credit history, and which the credit history bureau provides at the request of the user of the credit history and other persons entitled to receive this information in accordance with the Credit History Law. At the same time, the user of the credit history is not provided with information constituting its additional (closed) part. The credit report is provided to the user of the credit history on the basis of an agreement with the credit bureau on the provision of information services.

In addition to the user of the credit history, the credit report can be provided, upon his request, to the subject of the credit history itself for familiarization with it. In addition, the title part of the credit report is submitted to the Central Catalog of Credit Histories. An additional (closed) part of the credit history is submitted to the court (judge) in a criminal case that is in its proceedings, and if the prosecutor agrees, to the preliminary investigation bodies in an initiated criminal case that is in their proceedings.

The central catalog of credit histories is created by the Bank of Russia. This catalog stores information that makes up the title parts of credit histories maintained by credit history bureaus on the territory of the Russian Federation, information about which credit history bureaus store credit histories corresponding to the specified title parts, as well as codes of subjects of credit histories or information that allows you to determine the correctness presented (entered, contained in the request) code of the subject of the credit history. The central catalog of credit histories provides information about the credit history bureau, which stores (stores) the credit history (credit histories) of the subject of the credit history, this subject of the credit history (credit histories) and users of the credit history (credit histories) in the form and in in the manner established by the Bank of Russia, free of charge.

The recent state policy in the field of taxes and fees has contributed to the creation of more favorable conditions for housing construction. Federal Law No. 20.08.2004-FZ of August 104, 4 “On Amendments to Article XNUMX of the Law of the Russian Federation “On State Duty”” established a small amount of state duty paid for notarization of mortgage agreements in cases where such certification is provided for by law:

for the certification of agreements on the mortgage of residential premises as security for the repayment of a credit (loan) granted for the purchase or construction of a residential building, apartment - 200 rubles;

for the certification of agreements on the mortgage of other real estate - 0,3% of the amount of the agreement, but not more than 3000 rubles. (at the usual rate for notarial certification of contracts, which was 1,5% of the contract amount).

The same Federal Law abolished the payment of the state fee for the state registration of an agreement on the pledge of real estate (mortgage agreement) and for the issuance of a document on this registration, as well as for the provision of an extract from the register of state registration of a mortgage agreement.

After the Law of the Russian Federation "On the State Duty" became invalid from January 1, 2005 in accordance with Federal Law No. 02.11.2004-FZ of November 127, 4 "On Amendments to Parts One and Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation, and also on the invalidation of certain legislative acts (provisions of legislative acts) of the Russian Federation" the issue of the amount of state duty paid for the state registration of mortgage agreements, with the exception of mortgage agreements for ships and aircraft, as well as inland navigation vessels, was similarly resolved (subject to 1 paragraph 333.24 article 500 of the Tax Code). At the same time, for the state registration of a mortgage agreement, including making an entry in the Unified State Register of Rights to Real Estate and Transactions Therewith about mortgage as an encumbrance of rights to real estate, the state duty is paid by individuals - in the amount of 2000 rubles, organizations - in in the amount of 22 rubles. (signature 1, clause 333.33, article XNUMX of the Tax Code).

In accordance with the additions made to paragraph 2 of Art. 146 and paragraph 3 of Art. 149 of the Tax Code, transactions for the sale of land plots (shares in them), the sale of residential buildings, residential premises, as well as shares in them and the transfer of a share in the right to common property in an apartment building when selling apartments are not subject to value added tax (see Federal Law No. 20.08.2004-FZ of August 109, 146 "On Amendments to Articles 149 and 1 of Part Two of the Tax Code of the Russian Federation", which entered into force on January 2005, XNUMX).

Previously, services for the provision of residential premises in the housing stock of all forms of ownership were exempted from value added taxation (subclause 10, clause 2, article 149 of the Tax Code).

Significant tax benefits are provided for the purchase and sale of residential premises and land plots. So, in accordance with paragraph. 1 and 2 subp. 1 clause 1 art. 220 of the Tax Code (see Federal Law No. 20.08.2004-FZ of August 112, 220 “On Amendments to Articles 224 and 1 of Part Two of the Tax Code of the Russian Federation”), when determining the size of the tax base, the taxpayer has the right to receive property tax deductions in the amounts received by him in the tax period from the sale of residential houses, apartments, rooms, including privatized residential premises, land plots and shares in the specified property, which were owned by the taxpayer for less than three years (previously this period was five years), but not exceeding a total of XNUMX million rubles . When selling this property and shares in it that were owned by the taxpayer for three years or more, a property tax deduction is provided in the amount of the full amount received by the taxpayer upon their sale.

Instead of using the right to receive the specified property tax deduction, the taxpayer has the right to reduce the amount of his taxable income by the amount of actually incurred and documented expenses related to the receipt of these incomes.

The taxpayer has the right to receive a property tax deduction in the amount spent by him for new construction or the acquisition in the territory of the Russian Federation of a residential building, apartment, room or share (shares) in them, in the amount of actually incurred expenses, as well as in the amount directed to the repayment of interest on targeted loans (credits) received from credit and other organizations of the Russian Federation (and not only on mortgage loans received by the taxpayer in banks of the Russian Federation, as previously provided) and actually spent by him on new construction or the acquisition of a residential building, apartment, room in the territory of the Russian Federation or share(s) in them.

Acceptance for the deduction of expenses for the completion and finishing of the acquired house or the finishing of the acquired apartment, room is possible if the contract on the basis of which such an acquisition was made indicates the acquisition of an unfinished building, apartment, room (rights to an apartment, room) without finishes or shares (shares) in them.

The total amount of this property tax deduction cannot exceed 1 million rubles. excluding amounts aimed at repaying interest on targeted loans (credits) received from credit and other organizations of the Russian Federation and actually spent by him on new construction or the acquisition of a residential building, apartment, room or share (shares) in them on the territory of the Russian Federation.

It is not allowed to re-grant such a property tax deduction to a taxpayer.

If in the tax period the property tax deduction cannot be used in full, its balance can be transferred to subsequent tax periods until it is fully used (subclause 2, clause 1, article 220 of the Tax Code).

In accordance with Federal Law No. 20.08.2004-FZ of August 112, 2, from the amounts of savings on interest when taxpayers receive borrowed (credit) funds in excess of the amounts specified in paragraph 212 of Art. 35 of the Tax Code, for which an increased (5%) tax rate is established, excludes income in the form of material benefits received from savings on interest for the use by taxpayers of targeted loans (credits) received from credit and other organizations of the Russian Federation and actually spent by them on new construction, or acquisition on the territory of the Russian Federation of a residential building, apartment or share (s) in them, on the basis of documents confirming the intended use of such funds (paragraph 2, clause 224, article XNUMX of the Tax Code).

The same Federal Law Art. 224 of the Tax Code is supplemented by clause 5, establishing with respect to income in the form of interest on mortgage-backed bonds issued before January 1, 2007, as well as on income of founders of trust management of mortgage coverage received on the basis of the acquisition of mortgage participation certificates issued by the manager of mortgage coverage until January 1, 2007, a reduced tax rate (9%).

According to paragraph 18, part 2 of Art. 250 of the Tax Code, non-operating income taken into account when determining the tax base for calculating corporate income tax is the amount of accounts payable (obligations to creditors) written off due to the expiration of the limitation period or on other grounds, except for the cases provided for in subpara. 21 p. 1 art. 251 NK. However, Federal Law No. 20.08.2004-FZ of August 105, 250 "On Amendments to Articles 251 and 1 of Part Two of the Tax Code of the Russian Federation" supplemented this clause with an indication that its provisions do not apply to writing off accounts payable by a mortgage agent in the form of obligations to owners mortgage-backed bonds. In addition, paragraph 251 of Art. 29 of the Tax Code of the same Federal Law supplemented sub. XNUMX, according to which, when determining the specified tax base, income in the form of property, including cash, and (or) property rights received by a mortgage agent in connection with its statutory activities is not taken into account. Thus, mortgage agents, i.e. specialized commercial organizations, the exclusive subject of whose activity is the acquisition of rights of claim on credits (loans) secured by mortgages and mortgages, and which are granted the right to issue mortgage-backed bonds, as well as citizens selling and housing buyers are provided with significant tax benefits.

In accordance with the new wording of paragraph 4 of Art. 284 of the Tax Code establishes reduced tax rates that should be applied when determining the tax base for calculating corporate income tax on transactions with mortgage-backed securities. Thus, for income in the form of interest on mortgage-backed bonds issued after January 1, 2007, and income of founders of trust management of mortgage coverage received on the basis of the acquisition of mortgage participation certificates issued by the manager of mortgage coverage after January 1, 2007, a tax rate of 15% (with a general tax rate of 24%). For income in the form of interest on mortgage-backed bonds issued before January 1, 2007, and income of founders of trust management of mortgage coverage received on the basis of the acquisition of mortgage participation certificates issued by the manager of mortgage coverage before January 1, 2007, a tax rate of in the amount of 9% (see Federal Law No. 20.08.2004-FZ of August 107, 284 "On Amendments to Article XNUMX of Part Two of the Tax Code of the Russian Federation").

Federal Law No. 20.08.2004-FZ of August 116, 8 “On Amendments to Article 3 of the Law of the Russian Federation “On Payment for Land”” established a preferential tax rate for the tax on lands provided to individuals for individual housing construction or occupied by housing stock (state, municipal, public, cooperative, individual). The specified tax was levied on the entire area of ​​the land plot in the amount of 10% of the land tax rates established in cities and towns, but not less than XNUMX rubles. per sq. m.

From January 1, 2005, the relevant tax rates are directly established by the regulatory legal acts of the representative bodies of municipalities (the laws of the federal cities of Moscow and St. Petersburg) and cannot exceed 0,3% (with a total tax rate of 1,5%) of the cadastral value of land plots as of January 1 of the year that is a tax period in respect of land plots occupied by housing stock and engineering infrastructure facilities of the housing and communal complex (with the exception of the share in the right to a land plot attributable to an object that is not related to the housing stock and objects engineering infrastructure of the housing and communal complex) or provided for housing construction (Articles 390-391, 394 of the Tax Code).

1.5. Housing law principles

In the sphere of housing relations, as in any other area of ​​social relations regulated by law, the principle of legality operates. The application of this principle to housing relations has its own specifics. Thus, these relations are regulated not only by the Constitution and federal laws, like many other relations, but also by laws and other regulatory legal acts of the constituent entities of the Russian Federation. Therefore, in order to comply with this principle, it is necessary to comply with the requirements of not only federal legislation, but also the legislation of the constituent entities of the Russian Federation. In addition, in order to implement this principle, it is necessary that regional regulatory legal acts adopted on housing law do not contradict federal legislative acts. In the event of a discrepancy between the two, the norms of the federal law should be applied as having greater legal force.

There is also specificity in the nature of those relations that are subject to the principle of legality as a principle of housing law. Thus, it is very important to observe the rule of law when registering citizens in need of residential premises, providing housing on the terms of social employment, where violations are often encountered in practice. Similarly, it is unacceptable to violate housing standards when concluding, executing and terminating contracts of both social and commercial employment, as well as other rules related to the field of housing relations.

The principle of stability of the right to housing is expressed in ensuring the special stability of the use of housing. In this regard, the Constitution (Part 1, Article 40) provides for the inadmissibility of arbitrary deprivation of housing. According to part 4 of Art. 3 of the LCD, no one can be evicted from a dwelling or restricted in the right to use a dwelling, including the right to receive public services, except on the grounds and in the manner provided for by this Code, other federal laws. This principle has been further developed in the housing and civil legislation, which provides for a limited list of grounds for terminating the contract for the rental of residential premises at the request of the landlord and it is established that such termination of the contract is carried out in court (part 4 of article 83 of the LC, paragraph 2 of article 687 GK).

The next principle of housing law is the principle of accessibility to the use of housing, which is expressed in providing all citizens with a real opportunity to have housing and use it on various grounds: on the basis of ownership, under a social or commercial contract, etc. The implementation of this principle is ensured primarily through the provision assistance to citizens from the state, municipalities, enterprises, organizations, military units and formations in the acquisition or construction of housing. This assistance is provided in the form of assistance to citizens in obtaining bank loans, the direct provision of gratuitous subsidies, the establishment of tax incentives, and the issuance of housing securities. This principle is also implemented through the provision of residential premises for rent or on other grounds to poor citizens, military personnel and other categories of citizens specified in the law who need housing.

The principle of the inviolability of the home is aimed at ensuring such conditions for the use of residential premises that ensure the peace of citizens and limit the receipt of information about their private life without their consent. To achieve these goals, Art. 25 of the Constitution clearly states that no one has the right to enter a dwelling against the will of the persons living in it, except in cases established by federal law, or on the basis of a court decision. In relation to this norm, it is important to note that the prohibition of entry into a dwelling means not only the inadmissibility of entering the dwelling, but also the inadmissibility of obtaining information about what is happening in it (for example, by installing listening devices in a dwelling) without the consent of the citizens living in it . Illegal entry into a dwelling, committed against the will of the persons living in it, constitutes a crime (Article 139 of the Criminal Code).

According to part 3 of Art. 3 of the LCD, entry into a dwelling without the consent of citizens legally residing in it is allowed in cases and in the manner prescribed by federal law, only in order to save the lives of citizens and (or) their property, ensure their personal safety or public safety in emergency situations, natural disasters , catastrophes, mass riots or other circumstances of an emergency nature, as well as for the purpose of detaining persons suspected of committing crimes, suppressing committed crimes or establishing the circumstances of a committed crime or an accident.

1.6. Place of housing law in the system of law

In legal science, there are different opinions about the legal nature of housing law. According to a number of scholars (I. L. Braude, V. N. Litovkin and others), housing law is an institution, an integral part or sub-branch of civil law. This point of view was expressed mainly in the period before the adoption of separate housing legislation (Fundamentals of Housing Legislation of the USSR and the Union Republics; JK RSFSR) and is based on an understanding of housing law as a right that mainly regulates the use of residential premises. As for other legal norms, in particular those regulating the management of the housing stock and its operation, they are considered by the authors who adhere to such a position as norms regulating other, non-housing relations.

At the same time, from the content and meaning of the current housing legislation, it is obvious that housing law currently acts as a set of legal norms, which is not limited only to the regulation of the use of residential premises, but covers the entire range of issues related to the formation and use of the housing stock, including management issues character. Accordingly, there is a view according to which housing law is nothing more than a complex branch of law or legislation, which combines the norms and legal institutions of civil, administrative and other branches of law (S. M. Korneev, Yu. K. Tolstoy, P. I. Sedugin, P. V. Krasheninnikov).

The literature also suggests that housing law is an independent branch in the system of law (P.S. Nikityuk). This point of view, in our opinion, is correct. Without touching on the general theoretical question of the legitimacy of distinguishing the so-called complex branches of law, it should be noted that housing is such a specific and socially significant type of material good used by a person that the relations arising on this occasion are an independent object of legal regulation. The existence of housing law as a separate branch of law is also confirmed by what happened in the 80s. XNUMXth century isolation and codification of housing legislation, which is generally not characteristic of the so-called complex branches of law, even if their existence is recognized as real, although in legal science it also causes controversy.

At the same time, it should be noted that a feature of housing law as a branch of law, which largely causes non-recognition of its separate existence in the system of law, is that many of the norms of this law are adjacent to the norms of civil, administrative, land, financial law, since they others govern the same relationships. Meanwhile, housing and legal norms are not aimed at regulating managerial, property, credit and other relations as such, which is characteristic of the norms of the branches of law that specifically regulate these relations, but are aimed at ensuring that the specific needs of citizens in housing are met, that is, they regulate the relevant relations from a different point of view, from a different angle.

A specific feature of social relations regulated by the norms of housing law is that they arise in connection with a special material object - a dwelling (a residential building, an apartment, a room, etc.), specially designed for citizens to live.

Housing relations are also characterized by a special circle of subjects. Thus, their participants are, firstly, housing authorities, the functions of which are performed by the relevant state, municipal and other bodies, and housing maintenance organizations, and secondly, citizens acting as owners of residential premises, their tenants, subtenants, temporary residents etc.

Housing law as a branch of law has its own method of legal regulation. This method can be defined as imperative-diapositive. Thus, the norms establishing the general provisions of housing law, regulating the procedure for managing the housing stock, accounting for citizens in need of residential premises, etc., are characterized by the regulation of social relations through prescriptions of an authoritative nature. At the same time, relations arising in connection with the use of residential premises are regulated to a large extent by dispositive rules, i.e., allowing for the determination of their content depending on the discretion of the parties. Such, in particular, are the rules for hiring, sub-leasing residential premises, and residing in them for temporary residents.

Housing law, being a branch of law, has its own system, which consists of legal institutions that include legal norms that regulate the corresponding groups of homogeneous housing relations. The central institution of housing law is the institution of hiring residential premises, which applies to the use of a significant part of residential premises for the residence of citizens.

Author: Ivakin V.N.

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>> Forward: Sources of housing law (The concept of housing legislation. Types of sources of housing law. The importance of the Constitution for housing legislation. Federal laws and other regulatory legal acts as sources of housing law. Housing legislation of the constituent entities of the Russian Federation as a source of housing law. The significance of decisions of the Constitutional Court of the Russian Federation and the Plenum of the Supreme Court of the Russian Federation for the application of norms housing law)

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