Topic 3. Objects of housing law

3.1. Living spaces

For housing law, the concept of "residential premises" is of great importance, the definition of which is important for the correct application of laws and other regulatory legal acts regulating housing relations.

The concept of “residential premises” is used in legislation in different senses:

1) as a generic concept, covering all types of residential premises (apartments, residential buildings, etc.), which may be the object of a residential rental agreement (see, for example, Article 673 of the Civil Code);

2) to designate a part of a residential building (apartment, room in an apartment building);

3) as an accounting category along with a residential building.

Residential premises in the first broader sense are indicated by the legislator as objects of housing rights and are divided into the following types:

1) a residential building (except for an apartment building), part of a residential building;

2) an apartment, part of an apartment;

3) room.

According to the legislator's definition, a residential building is an individually defined building, which consists of rooms, as well as auxiliary premises, designed to meet citizens' domestic and other needs associated with their living in such a building. From a legal point of view, the building is a residential building from the moment when the construction of the house is completed, it is accepted for operation by the acceptance committee and registered in the prescribed manner precisely as a residential building by authorized special organizations that carry out state accounting of the housing stock - the Bureau of Technical Inventory ( BTI), etc.

An apartment is a structurally separate room in an apartment building that provides direct access to the common areas in such a house and consists of one or more rooms, as well as auxiliary premises, designed to meet citizens' domestic and other needs associated with their living in such a building. separate room.

A room is a part of a residential building or apartment intended for use as a place of direct residence of citizens in a residential building or apartment (Article 16ZhK).

Among the houses there are buildings of a mixed type, in which, along with residential premises, there are also non-residential premises: administrative, medical, utility, etc. Residential premises located in such houses are part of the housing stock.

The LCD (Article 15) contains provisions relating to the general concept of "residential premises". So, in it, a dwelling is understood as an isolated premise, which is real estate and is suitable for permanent residence of citizens, that is, it meets the established sanitary and technical rules and regulations, and other requirements of the law. The procedure for recognizing the premises as residential and the requirements that the residential premises must meet are established by the Government of the Russian Federation in accordance with the Housing Code and other federal laws.

A dwelling may be declared unfit for habitation on the grounds and in the manner established by the Government of the Russian Federation.

To characterize a dwelling, it is important to allocate a common (useful) and living area inside the premises. The total area of ​​a dwelling consists of the sum of the area of ​​all parts of such a dwelling, including the area of ​​premises for auxiliary use, intended to meet citizens' domestic and other needs associated with their living in a dwelling, with the exception of balconies, loggias, verandas and terraces (part 5 of Art. .15 LCD). Living space includes only the area of ​​all living rooms, including the area of ​​sleeping and dining rooms, rooms for games, study and recreation.

The definition of the term "residential premises" is important for resolving the issue of the subject of the contract for the lease of residential premises. According to paragraph 1 of Art. 673 GKi art. 62 of the LCD, such an object can only be an isolated residential area suitable for permanent residence (apartment, residential building, part of a residential building or apartment). Non-isolated residential premises, premises for auxiliary use, as well as common property in an apartment building (part 2 of article 62 of the LCD) cannot be an independent subject of a lease agreement.

Based on the norm of Part 1 of Art. 19 of the Housing Code, the housing stock includes not only residential premises intended for permanent residence, but in general all premises suitable for living located on the territory of the Russian Federation. Accordingly, residential premises can be divided into two types:

1) intended for permanent residence, i.e. designed for a long period of use;

2) of a temporary nature, which must be used by persons living in them for a limited period of time.

The main object of housing relations are residential premises for permanent use. This type of residential premises makes up the majority of premises included in the housing stock. At the same time, some residential premises are intended for temporary use as such, for example, residential premises in dormitories, houses of the mobile fund, hotels, office premises, etc.

Residential premises are also classified depending on the grounds for their being in the use of citizens. On this basis, they differ:

1) residential premises owned by citizens;

2) residential premises provided under a social tenancy agreement;

3) specialized living quarters;

4) residential premises provided under a commercial lease agreement;

5) living quarters in houses of housing and housing cooperatives;

6) residential premises provided to citizens on other grounds.

In practice, the question often arises whether such premises (structures) as prefabricated houses, change houses, wagons, etc. should be classified as residential premises. Currently, such structures and buildings are not included in the housing stock.

When deciding whether to classify residential premises as suitable for habitation, the degree of physical deterioration of the building (premises), the safety of its structures, the location of the building, the level of improvement, etc. are taken into account. In particular, barracks, emergency houses are recognized as unsuitable for permanent residence ( houses threatening collapse), as well as stone and wooden houses with physical wear and tear, respectively, over 70 and 65%. Unsuitable also include residential buildings located within the sanitary protection, fire and explosion hazardous zones of industrial enterprises; in hazardous areas of landslides, mudflows and snow avalanches that could threaten the development and operation of buildings; in areas flooded annually by flood waters.

The decision to recognize a residential building or premises unsuitable for permanent residence, regardless of its ownership, is within the competence of the administration of the district, city, district in the city. When making such a decision, the conclusions of the sanitary-epidemiological, construction and other organizations, fire safety authorities and other materials are taken into account.

According to their functional purpose, the largest part of the state and municipal housing stock is made up of residential premises for social use. In accordance with paragraph 1 h. 3 Article. 19 LCD housing fund for social use - a set of state and municipal housing funds provided to citizens under social rental contracts. It includes residential buildings, apartments, rooms in communal apartments and other residential premises provided within the norm of living space.

3.2. The concept of housing stock and its types

According to Art. 19 LCD, the housing stock is the totality of all residential premises located on the territory of the Russian Federation.

Depending on the form of ownership, the housing stock is divided into:

1) for private housing stock - a set of residential premises owned by citizens and owned by legal entities;

2) state housing stock - a set of residential premises owned by the Russian Federation (housing fund of the Russian Federation) and residential premises owned by the constituent entities of the Russian Federation (housing fund of the constituent entities of the Russian Federation);

3) municipal housing stock - a set of residential premises owned by the right of ownership to municipalities.

Depending on the purpose of use, the housing stock is divided into:

1) for the housing fund of social use - the totality of state and municipal housing funds provided to citizens under social rental contracts;

2) specialized housing stock - a set of certain categories of citizens intended for residence and provided according to the rules of Sec. GUZhK residential premises of state and municipal housing funds;

3) individual housing stock - a set of residential premises of a private housing stock that are used by citizens - owners of such premises for their residence, residence of members of their family and (or) residence of other citizens on the basis of free use, as well as legal entities - owners of such premises for residence citizens under the specified conditions of use;

4) housing fund for commercial use - a set of residential premises that are used by the owners of such premises for the residence of citizens on the terms of paid use, provided to citizens under other agreements, provided by the owners of such premises to persons for possession and (or) use.

The law does not prohibit the transfer of residential premises from one housing stock to another, but such a transfer should not violate the rights of citizens. In view of the foregoing, the norm of Art. 675 of the Civil Code, according to which the transfer of ownership of the residential premises occupied under a rental agreement does not entail the termination or amendment of the residential premises rental agreement. In this case, the new owner becomes the landlord on the terms of the previously concluded lease agreement.

3.3. Changes in the legal regime of premises

According to p. Zet. 288 of the Civil Code, placement in residential buildings of industrial production is not allowed. Placement by the owner in the residential premises belonging to him of enterprises, institutions, organizations is allowed only after the transfer of such premises to non-residential. The transfer of premises from residential to non-residential is carried out in the manner determined by housing legislation. When interpreting these provisions of the law, it is necessary to take into account the above norm of the law, which prohibits the use of premises in residential buildings for the needs of an industrial nature, from which it follows that in an apartment building after the transfer of residential premises to non-residential premises, only organizations that are not engaged in industrial production can be located in this premises.

Currently, the procedure for transferring residential premises to non-residential premises and non-residential premises to residential premises is determined by Ch. 3 LCD. According to Part 1 of Art. 22 of the LCD and both translations are allowed subject to compliance with the requirements of the LCD and the legislation on urban planning. The transfer of residential premises to non-residential premises is not allowed if access to the transferred premises is impossible without the use of premises providing access to residential premises, or there is no technical possibility to equip such access to this premises, if the transferred premises is part of the residential premises or is used by the owner of this premises or another a citizen as a place of permanent residence, as well as if the ownership of the transferred premises is encumbered with the rights of any persons.

The transfer of an apartment in an apartment building to a non-residential premises is allowed only in cases where such an apartment is located on the first floor of the specified building or above the first floor, but the premises located directly under the apartment being transferred to a non-residential premises are not residential (parts 2 and 3 of Art. .22 LCD).

There are certain restrictions on the transfer of non-residential premises to residential. In accordance with Part 4 of Art. 22 of the LCD, this transfer is not allowed if the non-residential premises do not meet the established requirements or it is not possible to ensure the compliance of such premises with the established requirements, or if the ownership of such premises is encumbered with the rights of any persons.

The transfer of residential premises to non-residential premises and non-residential premises to residential premises is carried out by the local government. In the LCD, this body is called the body that transfers the premises.

For such a transfer, the owner of the relevant premises or a person authorized by him shall submit to the body carrying out the transfer of the premises at the location of this premises:

1) an application for the transfer of premises;

2) title documents for the transferred premises (originals or notarized copies);

3) plan of the transferred premises with its technical description (if the transferred premises is residential, the technical passport of such premises);

4) floor plan of the house in which the transferred premises are located;

5) a project prepared and executed in accordance with the established procedure for the reconstruction and (or) redevelopment of the transferred premises (if the reconstruction and (or) redevelopment is required to ensure the use of such premises as residential or non-residential premises).

The body transferring the premises is not entitled to require the submission of any other documents other than those listed above (part 3 of article 23 of the LC).

The decision to transfer or refuse to transfer the premises is made by the body transferring the premises no later than 45 days from the date of submission of the specified documents to this body.

The body transferring the premises, no later than three working days from the date of the decision to transfer the premises or to refuse to do so, issues or sends to the address indicated in the application to the applicant a document confirming the adoption of one of these decisions. The form and content of such a document are established by the Government of the Russian Federation. The body that transfers the premises, simultaneously with the issuance or sending of this document to the applicant, informs the owners of the premises adjacent to the premises in respect of which the decision was made about the adoption of the said decision (part 5 of article 23 of the LC).

If it is necessary to carry out reorganization and (or) redevelopment of the transferred premises, and (or) other work to ensure the use of such premises as residential or non-residential premises, this document must contain a requirement for their implementation, a list of other works, if necessary.

The document confirming the decision to transfer the premises confirms the completion of the transfer of the premises and is the basis for the use of the premises as a residential or non-residential premises, if such use does not require its reconstruction, and (or) redevelopment, and (or) other works.

If the use of the premises as a residential or non-residential premises requires its reorganization and (or) redevelopment, as well as other work, the specified document is the basis for the relevant reorganization and (or) redevelopment, taking into account the reconstruction and (or) redevelopment project submitted by the applicant in accordance with paragraph. 5 h. 2 Article. 23 of the LCD, and (or) other works, taking into account the list of such works specified in the stipulated part 5 of Art. 23 LCD document.

Completion of the said reorganization and (or) redevelopment, as well as other works, is confirmed by the act of the acceptance committee formed by the body that transfers the premises. The act of the acceptance committee, confirming the completion of the reorganization and (or) redevelopment, must be sent by the body that transfers the premises to the organization (body) for recording real estate objects. This act confirms the completion of the transfer of the premises and is the basis for the use of the transferred premises as residential or non-residential premises.

According to Art. 24 of the LCD, a refusal to transfer residential premises to non-residential premises or non-residential premises to residential premises is allowed in the event of:

1) failure to submit certain Part 2 of Art. 23 LCD documents;

2) submission of documents to the wrong body;

3) non-compliance with the conditions for the transfer of premises, provided for in Art. 22 LCD;

4) non-compliance of the project for the reconstruction and (or) redevelopment of the residential premises with the requirements of the legislation.

The decision to refuse to transfer the premises is issued or sent to the applicant no later than three working days from the date of such a decision and may be challenged by the applicant in court.

3.4. Refurbishment and redevelopment of residential premises

Along with the change in the legal regime of premises, the LCD for the first time regulated in detail the provisions related to the reorganization and redevelopment of residential premises (Chapter 4). Thus, the LCD defines both the reconstruction and redevelopment of residential premises. In accordance with Part 1 of Art. 25 ZhK conversion of a dwelling is the installation, replacement or transfer of engineering networks, sanitary, electrical or other equipment that requires changes to the technical passport of the dwelling. The redevelopment of a dwelling is understood as a change in its configuration, which also requires an amendment to the technical passport of the dwelling (part 2 of article 25 of the LCD).

According to Art. 26 of the LCD, the reconstruction and (or) redevelopment of the residential premises are carried out in compliance with the requirements of the law in agreement with the local government (referred to in the LCD as the body that carries out the approval) based on the decision made by it.

In part 2 of Art. 26 establishes a list of documents that the owner of the dwelling or a person authorized by him must submit to the body that carries out the approval at the location of the rebuilt and (or) replanned dwelling:

1) an application for reorganization and (or) redevelopment in the form approved by the Government of the Russian Federation;

2) title documents for the rebuilt and (or) replanned residential premises (originals or notarized copies);

3) a project for the reorganization and (or) redevelopment of this residential premises prepared and executed in the prescribed manner;

4) its technical passport;

5) the consent in writing of all members of the tenant's family (including those temporarily absent) occupying the re-arranged and (or) re-planned residential premises on the basis of a social tenancy agreement (in the event that the applicant is the tenant of this premises authorized by the landlord to submit the documents provided for in this paragraph );

6) the conclusion of the body for the protection of monuments of architecture, history and culture on the admissibility of reorganization and (or) re-planning, if the re-arranged and (or) re-planned residential premises or the house in which it is located is a monument of architecture, history or culture.

The body carrying out the coordination is not entitled to require the submission of documents other than those specified above.

The decision to approve or refuse to approve must be made by the body that carries out the approval no later than 45 days from the date of submission of the necessary documents to this body.

The body carrying out the approval, no later than three working days from the date of the decision on approval, issues or sends to the address indicated in the application to the applicant a document confirming the adoption of such a decision. The form and content of this document are established by the Government of the Russian Federation. When giving consent to the reorganization and (or) redevelopment of a dwelling by the relevant body, the document issued by it is the basis for their implementation.

Refusal to agree on the reorganization and (or) redevelopment of residential premises is allowed in the following cases:

1) failure to submit certain Part 2 of Art. 26 LCD documents;

2) submission of documents to the wrong body;

3) non-compliance of the project for the reconstruction and (or) redevelopment of the residential premises with the requirements of the legislation.

The decision to refuse approval is issued or sent to the applicant no later than three working days from the date of such a decision and can be challenged in court (Article 27 of the LC).

As provided by Art. 28 of the LCD, the completion of the reconstruction and (or) redevelopment of the residential premises is confirmed by the act of the acceptance committee. This act must be sent by the body that carries out the coordination to the organization (body) for registering real estate objects.

Article 29 of the LC regulates in detail the consequences of unauthorized reorganization and (or) redevelopment of a dwelling. These actions are recognized as unauthorized if they are carried out in the absence of a document confirming the adoption by the relevant body of a decision on their approval (part 6 of article 26 of the LC), or in violation of the project submitted along with the application to the body that carries out the coordination (clause 3 of part 2 of article .26 LCD).

A person who has arbitrarily rearranged and (or) replanned a dwelling shall bear liability provided for by law.

The owner of a dwelling that has been arbitrarily rearranged and (or) replanned, or the tenant of such a dwelling under a social tenancy agreement, is obliged to bring such a dwelling to its previous state within a reasonable time and in the manner established by the body that carries out the coordination.

It should be noted that at present the legislator has taken a tougher stance than before regarding the unauthorized reorganization or redevelopment of residential premises. If previously it was allowed to subsequently coordinate such a reorganization or redevelopment with a local government and thereby their "legitimization", then in accordance with Part 4 of Art. 29 of the LCD residential premises can be kept in a rebuilt and (or) replanned state, provided that this does not violate the rights and legitimate interests of citizens or it does not pose a threat to their life or health, only on the basis of a court decision.

If the relevant residential premises are not restored to their previous state on time and in the manner that were established by the body that carries out the coordination, the court, at the claim of this body, provided that the decision provided for in Part 4 of Art. 29 JK, decides:

1) in relation to the owner - on the sale at public auction of such residential premises with the payment to the owner of the proceeds from its sale, minus the costs of the execution of the court decision, imposing on the new owner of this residential premises the obligation to bring the residential premises to their previous state;

2) in relation to the tenant of such residential premises under a social tenancy agreement - to terminate this agreement with the imposition of the same obligation on the owner of this premises, who was the landlord under the specified agreement.

For a new owner of a dwelling or for the owner of such a dwelling, who was a landlord under a contract of social rent of a dwelling, terminated by the court, a new term is set for bringing the said premises to its previous state. If it is not brought back to its previous state within a given period and in the manner previously established by the body that carries out the coordination, such a dwelling is subject to sale at public auction by a court decision issued at the suit of the body that carries out the coordination.

Author: Ivakin V.N.

<< Back: 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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