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Lecture notes, cheat sheets
Housing law. Ownership and other real rights to residential premises (lecture notes)
Directory / Lecture notes, cheat sheets Table of contents (expand) Topic 6. Ownership and other real rights to residential premises 6.1. Rights and obligations of the owner of the dwelling and other citizens living in the premises belonging to him Proclaimed in Art. 40 of the Constitution, the right of citizens to housing is realized in various ways. Until recently, citizens met their housing needs to a large extent at the expense of housing received for use from state and public housing funds, although a considerable part of the population solved their housing problem at the expense of their own individual housing stock. In connection with the implementation of the transition to a market economy at the present stage, the problem of changing the structure of the housing stock by forms of ownership is being solved, aimed at developing private ownership of real estate in the housing sector and expanding the housing market. Based on this, individual housing construction is considered as the most important form of building up the housing stock, and the use of individual housing stock is considered as the most important way to meet the housing needs of citizens. It should be noted that with regard to private ownership of residential premises, unless otherwise provided by law, the general provision is currently applied, according to which the quantity and value of property owned by citizens and legal entities is not limited (clause 2 of article 213 of the Civil Code ). A significant expansion of the private housing stock, in addition to the development of individual housing construction, which was previously carried out in Russia in significant volumes, was facilitated by the past processes of privatization of state, municipal and public housing, the transfer of cooperative housing to private ownership of citizens, as well as the transition to mass construction of housing for sale . The new situation that has developed in the housing sector is reflected in the LCD, in which a special section is devoted to the right of ownership and other real rights to residential premises, preceding the section on residential premises provided under a social contract of employment (Section II). This section primarily regulates the rights and obligations of the owner of the dwelling, as well as other citizens living in the premises belonging to him. The owner of the residential premises shall exercise the rights of possession, use and disposal of the residential premises belonging to him on the right of ownership in accordance with its purpose and the limits of its use established by the LCD. At the same time, according to part 2 of Art. 30 of the LC, the owner has the right to provide the residential premises belonging to him for the possession and (or) use of any citizen or legal entity. Article 288 of the Civil Code provides that a citizen - the owner of a dwelling may use it for personal residence, as well as for the residence of members of his family. Residential premises may be leased by their owners for residence to other persons on the basis of an agreement. The obligations of the owner include, unless otherwise provided by federal law or an agreement, the burden of maintaining the residential premises belonging to him and, if this premises is an apartment, the common property of the owners of premises in the corresponding apartment building, and the owner of a room in a communal apartment also bears the burden of maintaining the common property of the owners rooms in this apartment. The owner of a dwelling is obliged to maintain this premises in proper condition, preventing mismanagement of it, to observe the rights and legitimate interests of neighbors, the rules for the use of residential premises, the rules for maintaining the common property of owners of premises in an apartment building (Article 30 of the LCD). Family members of the owner of a dwelling have the right to use this dwelling on an equal footing with the owner, unless otherwise established by an agreement between the owner and members of his family. The LCD (part 1, article 31) defines the circle of persons who are recognized as family members of the owner of the dwelling. These include the spouse living together with the owner in the living quarters belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner's family if they are moved in by the owner as members of his family. For the first time in housing legislation, the obligations of a family member of the owner of a dwelling are defined (parts 2-3 of article 31 of the LC). They are obliged, first of all, to use this dwelling for its intended purpose, to ensure its safety. In addition, capable members of the owner's family shall be jointly and severally liable for the obligations arising from the use of this dwelling, unless otherwise established by agreement between the owner and members of his family. The Law on Amendments to the Civil Code amended paragraph 2 of Art. 292 of the Civil Code, according to which the transfer of ownership of a residential building or apartment to another person is the basis for terminating the right to use the residential premises by family members of the former owner, unless otherwise provided by law. This new provision in the legislation cannot be assessed unambiguously. On the one hand, it allows the owners of residential premises to more freely dispose of the latter, since the subsequent eviction of the owner's family members from these premises does not require their consent when applying the above rule. In addition, it guarantees to a greater extent the observance of the interests of the purchasers of residential premises. However, on the other hand, such a change in the legislation worsens the situation of capable family members of the owner of the dwelling (his spouse, adult children, etc.), since from a legal point of view there is no need to agree with them on the alienation of the dwelling they use. At the same time, the alienation of a dwelling in which family members of the owner of this dwelling under guardianship or guardianship or minor members of the owner’s family left without parental care (of which the guardianship and guardianship body is aware) live, if the rights or legally protected interests of these persons, is allowed with the consent of the body of guardianship and guardianship (paragraph 4 of article 292 of the Civil Code). As provided by paragraph 3 of Art. 292 of the Civil Code, family members of the owner of the dwelling may demand the elimination of violations of their rights to the dwelling from any person, including the owner of the dwelling. Differently than in the previous legislation, the issue of the rights of former family members of the owner of the dwelling is resolved. In accordance with Part 4 of Art. 31ЖК in the event of termination of family relations with the owner of the dwelling, the right to use this dwelling for the former family member of its owner is not retained, unless otherwise established by agreement between the owner and the former member of his family. If the former family member of the owner of the dwelling has no grounds for acquiring or exercising the right to use another dwelling, and also if his property status and other noteworthy circumstances do not allow him to provide himself with another dwelling, the right to use the dwelling owned by the specified owner may be reserved for a former member of his family for a specified period on the basis of a court decision. At the same time, the court has the right to oblige the owner of the residential premises to provide the former spouse and other members of his family with other residential premises, in whose favor the owner fulfills maintenance obligations, at their request. Upon the expiration of the term for the use of residential premises, established by a court decision, taken subject to the above conditions, the corresponding right to use the residential premises of a former member of the owner's family is terminated unless otherwise agreed between the owner and this citizen. Before the expiration of the specified period, the right to use the living quarters of the former family member of the owner shall be terminated simultaneously with the termination of the ownership right to this living quarters of this owner or, if the circumstances that served as the basis for the preservation of such a right have disappeared, on the basis of a court decision. In accordance with Art. 19 of the Law on the introduction of the LCD, the provisions of Part 4 of Art. 31 of the LC does not apply to former family members of the owner of the privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it, unless otherwise provided by law or contract. A citizen who uses residential premises on the basis of an agreement with the owner has rights, bears duties and responsibilities in accordance with the terms of such an agreement (part 7 of article 31 of the LC). The LCD regulates in more detail the relations to ensure the housing rights of the owner of a dwelling, arising from the withdrawal of a land plot for state or municipal needs. Article 32 of the LC provides that residential premises in such cases may be withdrawn from the owner by way of redemption. The redemption of a part of a dwelling is allowed only with the consent of the owner. Depending on for whose needs the land plot is withdrawn, the purchase of residential premises is carried out by the Russian Federation, the relevant subject of the Russian Federation or a municipality. Since the presence of a decision of a state authority on the withdrawal of residential premises burdens the residential premises, this decision is subject to state registration with the body that carries out state registration of rights to real estate and transactions with it. The owner of the residential premises not later than one year before the forthcoming withdrawal of this premises must be notified in writing of the decision to withdraw the residential premises belonging to him, of the date of state registration of such a decision upon the application of the body that made the decision to withdraw. Redemption of a dwelling before the expiration of a year from the date of receipt by the owner of such notification is allowed only with the consent of the owner. The redemption price of a dwelling, the terms and other conditions for the redemption are determined by an agreement with the owner of the dwelling. The agreement includes the obligation of the Russian Federation, a subject of the Russian Federation or a municipality to pay the redemption price for the withdrawn residential premises. When determining the redemption price, it includes the market value of the dwelling, as well as all losses caused to the owner by the withdrawal of the dwelling, including losses that he incurs in connection with a change in the place of residence, temporary use of another dwelling before acquiring ownership of another dwelling (in if the above agreement does not provide for the preservation of the right to use the confiscated residential premises until the acquisition of ownership of another residential premises), moving, searching for another residential premises to acquire ownership of it, registration of ownership rights to another residential premises, early termination of one's obligations to third parties including lost profits. By agreement with the owner, he may be provided with another dwelling in exchange for the withdrawn dwelling, offsetting its value in the redemption price. If the owner does not agree with the decision to withdraw the dwelling or no agreement has been reached with him on the redemption price or other conditions for the redemption, the state authority or local self-government body that made such a decision may file a claim with the court for the redemption of the residential premises, which may be filed within two years from the date of sending the notification to the owner of the residential building. For the first time, the LCD regulates issues related to the demolition of an emergency apartment building. According to part 10 of Art. 32 of the LCD, the recognition in the established manner of an apartment building as emergency and subject to demolition is the basis for the presentation by the body that made the relevant decision to the owners of the premises in the indicated building of the requirement for its demolition within a reasonable time. In the event that these owners did not carry out the demolition of the specified house within the prescribed period, the land plot on which the house is located is subject to withdrawal for municipal needs and, accordingly, each dwelling in an apartment building is subject to withdrawal, with the exception of residential premises owned by the municipality , in compliance with all the above rules, except for the rule on notifying the owner of the dwelling about the decision made and its state registration (part 10 of article 32 of the LC). In addition to other issues related to the use of residential premises that make up the private housing stock, the LCD regulates such an issue as the use of residential premises provided under a testamentary refusal (Article 33). The LCD also contains a rule on the use of residential premises on the basis of a life-long maintenance agreement with a dependent (Article 34). In the event that a citizen using residential premises on the basis of a court decision on the preservation of the right to use this premises, taken subject to the provisions of Part 4 of Art. 31 of the LCD, or on the basis of a testamentary refusal, uses this dwelling for other purposes, systematically violates the rights and legitimate interests of neighbors or mismanages the dwelling, allowing it to be destroyed, the owner of the dwelling has the right to warn this citizen about the need to eliminate the violations, and if they entail the destruction of the dwelling, also have the right to appoint him a reasonable period for the repair of the dwelling house. If this citizen, after warning the owner of the dwelling, continues to violate the rights and legitimate interests of neighbors, use the dwelling for other purposes or without good reason does not carry out the necessary repairs, such a citizen, at the request of the owner of the dwelling, is subject to eviction on the basis of a court decision. 35 LCD). Currently, the issue of protecting the rights of persons acquiring residential premises under purchase and sale agreements and other transactions is recognized as relevant. As you know, the acquisition of residential premises is associated with a certain risk, since after registration of ownership, there may be grounds for recognizing the contract on the alienation of residential premises as invalid. In this case, the general provisions of civil law on the inadmissibility of claiming property from a bona fide purchaser should be applied. In accordance with Art. 302 of the Civil Code, if property was acquired for compensation from a person who did not have the right to alienate it, which the acquirer did not know and could not know (a bona fide purchaser), then the owner has the right to claim this property from the acquirer only in cases where the property is lost by the owner or person, to whom the property was transferred by the owner into possession, or stolen from one or the other, or left their possession in another way against their will. Obviously, the first two of these grounds for claiming property from a bona fide purchaser are not applicable to residential premises, since the latter cannot be lost or stolen. As for the disposal of a dwelling from the possession of the owner or the person to whom this premises was transferred by the owner into possession, against their will, the existence of such a ground is possible, for example, in the case of the sale of an apartment under a false power of attorney with subsequent state registration of ownership of it on another person. If property, including residential premises, was acquired free of charge, for example, under a donation agreement, from a person who did not have the right to alienate it, the owner has the right to claim the property in all cases. Thus, as a general rule, residential premises cannot be claimed from a bona fide purchaser. However, for many years, judicial practice in Russia has developed in a different way. Having found the grounds for recognizing the transaction for the alienation of residential premises as invalid, the courts automatically applied the norms of civil law on the consequences of recognizing transactions as invalid and obligated bona fide purchasers to return residential premises to their former owners. As a result, a very fertile ground was created for sellers to abuse the sale of residential premises, the legitimate interests of bona fide purchasers were significantly violated, and there was a well-founded feeling of uncertainty and fear among the purchasers of housing, since in many cases they could not know for sure whether there are grounds for subsequently recognizing the transaction concluded by them as invalid. The existing abnormal situation in the housing market was partially eliminated by the Resolution of the Constitutional Court of the Russian Federation of April 21.04.2003, 6 No. 1-P "On the case of checking the constitutionality of the provisions of paragraphs 2 and 167 of Article 6 of the Civil Code of the Russian Federation in connection with complaints from citizens O. M. Marinicheva, A V. Nemirovskaya, Z. A. Sklyanova, PM Sklyanova and V. M. Shiryaev" (hereinafter referred to as Resolution No. 167-P). As stated in this Decree, according to Art. 1 of the Civil Code, an invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and is invalid from the moment it is made (clause 2); if the transaction is invalid, each of the parties is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including when the received is expressed in the use of property, work performed or service provided), to reimburse its value in money - if other consequences the invalidity of the transaction is not provided for by law (clause XNUMX). These provisions were applied by the courts of general jurisdiction when considering cases on claims to invalidate transactions concluded by the applicants for the sale of residential premises. However, in Resolution No. 6-P, the Constitutional Court of the Russian Federation draws attention to the following circumstances. The Constitution guarantees freedom of economic activity, the right of everyone to own property, own, use and dispose of it, both individually and jointly with other persons, as well as the recognition and protection of property, its protection by law (Article 8 and Parts 1 and 2 of Art. 35). These rights, as follows from Art. 1, 2, 15 (part 4), 17 (parts 1 and 2), 19 (parts 1 and 2), 45 (part 1) and 46 of the Constitution are guaranteed as fundamental and inalienable human rights and freedoms and citizen and are implemented on the basis of general legal principles of legal equality, inviolability of property and freedom of contract, presupposing equality, autonomy of will and property independence of participants in civil law relations, the inadmissibility of arbitrary interference by anyone in private affairs, the need for the unhindered exercise of civil rights, ensuring the restoration of violated rights , their judicial protection, which are also proclaimed among the main principles of civil legislation (Resolution of the Constitutional Court of the Russian Federation dated April 01.04.2003, 4 No. 2-P “In the case of verifying the constitutionality of the provisions of paragraph 7 of Article XNUMX of the Federal Law “On Auditing” in connection with a complaint from a citizen I. V. Vystavkina"). Within the meaning of Art. 35 (part 2) of the Constitution in conjunction with Art. 8, 34, 45, 46 and 55 (part 1), the rights of possession, use and disposal of property are provided not only to owners, but also to other participants in civil circulation. In cases where property rights to a disputed thing, which have arisen on the grounds provided for by law, have other than the owner, persons - owners and users of the thing, these persons must be guaranteed state protection of their rights. These property rights include the rights of a bona fide purchaser. However, by virtue of Art. 15 (part 2), 17 (part 3), 19 (parts 1 and 2) and 55 (parts 1 and 3) of the Constitution and based on the general legal principle of justice, the protection of property rights and other property rights, as well as rights and obligations of the parties in the contract should be carried out on the basis of proportionality and proportionality in order to ensure a balance of rights and legitimate interests of all participants in civil circulation - owners, parties to the contract, third parties. At the same time, possible restrictions by federal law on the rights of possession, use and disposal of property, freedom of entrepreneurial activity and freedom of contracts must also meet the requirements of fairness, be adequate, proportional, proportionate, be of a general and abstract nature, not be retroactive and not affect the essence of these constitutional rights. , i.e. not limit the scope and application of the main content of the relevant constitutional norms. The very possibility of restrictions, as well as their nature, should be determined by the need to protect constitutionally significant values, namely the foundations of the constitutional order, morality, health, rights and legitimate interests of others, ensuring the defense of the country and the security of the state. This provision corresponds to the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, according to which the right of every natural and legal person to respect for his property and its protection (and the resulting freedom to use property) does not infringe on the right of the state to ensure compliance with such laws as it deems necessary to control the use of property in accordance with the general interest (Article 1 of Protocol No. 1). The constitutional principles of freedom of economic activity and free movement of goods, services and financial resources presuppose the existence of appropriate guarantees of stability, predictability and reliability of civil circulation, which would not contradict the individual, collective and public rights and legitimate interests of its participants. Therefore, in accordance with Art. 71 (clauses "c" and "o") and 76 of the Constitution regulate the grounds for the emergence and termination of property rights and other property rights, contractual and other obligations, grounds and consequences for the invalidity of transactions, the federal legislator should provide for such methods and mechanisms for the implementation of property rights, which would provide protection not only to owners, but also to bona fide purchasers as participants in civil transactions. Otherwise, for a wide range of bona fide purchasers who show goodwill, reasonable diligence and caution when concluding a transaction, there will be a risk of unlawful loss of property that can be claimed from them in the order of restitution. Such insecurity conflicts with the constitutional principles of freedom of economic activity and freedom of contracts, destabilizes civil circulation, undermines the trust of its participants in each other, which is incompatible with the foundations of the constitutional system of the Russian Federation as a rule of law state in which a person, his rights and freedoms are the highest value. and their recognition, observance and protection is the duty of the state. According to the Civil Code, a person who believes that his property rights have been violated has the right to apply to the court both with a claim for the recognition of the relevant transaction as invalid (Articles 166-181), and with a claim for the recovery of property from someone else's illegal possession (Articles 301-302 ). Meanwhile, as follows from the materials of the present case, the norms fixing these methods of protecting violated rights, including Art. 167 and 302 of the Civil Code, are interpreted and applied by the courts of general jurisdiction ambiguously, contradictory, which leads to a conflict of constitutional rights, which are realized on their basis by the owner and a bona fide purchaser. From Art. 120 (part 2) of the Constitution in conjunction with its art. 76 (parts 3, 5 and 6), 118, 125, 126 and 127 it follows that the courts of general jurisdiction and arbitration courts independently decide which rules are to be applied in a particular case. At the same time, judicial practice must ensure the constitutional interpretation of the normative provisions to be applied. Therefore, in cases where ambiguity and inconsistency in the interpretation and application of legal norms leads to a conflict of constitutional rights implemented on their basis, the issue of eliminating such a contradiction acquires a constitutional aspect and, therefore, falls within the competence of the Constitutional Court of the Russian Federation, which, assessing as a literal sense of the normative act in question, as well as the meaning given to it by the established law enforcement practice, as well as based on its place in the system of legal acts (Part 2, Article 74 of the Federal Constitutional Law of July 21.07.1994, 1 No. XNUMX-FKZ "On the Constitutional Court of the Russian Federation") , provides in these cases the identification of the constitutional meaning of the law in force. The Civil Code provides that the owner has the right to reclaim his property from someone else's illegal possession (Article 301). According to paragraph 1 of Art. 302 if the property was acquired for compensation from a person who did not have the right to alienate it, which the acquirer did not know and could not know (a bona fide purchaser), then the owner has the right to claim this property from the acquirer in the event that the property was lost by the owner or the person to whom the property was transferred by the owner into possession, or stolen from one or the other, or left their possession in another way against their will. Within the meaning of these legal provisions, the court must establish that the property was removed from the possession of the owner or from the possession of the person to whom it was transferred by the owner into possession, due to the indicated circumstances, and also that the acquirer acquired the property for compensation and that he did not know and could not know about that the property was acquired from a person who did not have the right to alienate it; at the same time, the acquirer cannot be recognized as bona fide if, by the time the onerous transaction was made, there were claims of third parties in respect of the disputed property, of which he was aware, and if such claims were later recognized legitimate in the prescribed manner. When, under a reimbursable contract, property was acquired from a person who did not have the right to alienate it, the owner has the right to apply to the court in accordance with Art. 302 of the Civil Code with a claim for the recovery of property from the illegal possession of the person who acquired this property (vindication claim). If, in such a situation, the owner filed a claim for the recognition of the sale and purchase transaction as invalid and for the application of the consequences of its invalidity in the form of the return of the property transferred to the buyer, and when resolving this dispute, the court establishes that the buyer is a bona fide purchaser, in satisfaction of the claims in accordance with Art. 167 of the Civil Code should be refused. In accordance with paragraph 1 of Art. According to Art. 166 of the Civil Code, it is considered invalid from the moment of its commission and does not give rise to the legal consequences for which it was concluded, including the transfer of the title of the owner to the acquirer; at the same time, as a general rule, the application of the consequences of the invalidity of the transaction in the form of bilateral restitution is not made dependent on the good faith of the parties. However, from Art. 168 of the Civil Code, according to which a transaction that does not comply with the requirements of the law is void, if the law does not establish that such a transaction is voidable, or does not provide for other consequences of the violation, it follows that the general provisions on the consequences of the invalidity of the transaction do not apply to a transaction made in violation of the law if the law itself provides for other consequences of such a violation. Since a bona fide acquisition within the meaning of Art. 302 of the Civil Code is possible only when the property is acquired not directly from the owner, but from a person who did not have the right to alienate this property, the consequence of a transaction made with such a violation is not bilateral restitution, but the return of property from illegal possession (vindication). Consequently, the rights of a person who considers himself the owner of the property are not subject to protection by satisfying a claim against a bona fide purchaser using the legal mechanism established by paragraphs 1 and 2 of Art. 167 GK. Such protection is possible only by satisfying the vindication claim, if there are those provided for in Art. 302 of the Civil Code of the grounds that give the right to claim property from a bona fide purchaser (gratuitous acquisition of property by a bona fide purchaser, disposal of property from the owner's possession against his will, etc.). Another interpretation of the provisions of paragraphs 1 and 2 of Art. 167 of the Civil Code would mean that the owner has the opportunity to resort to such a method of protection as the recognition of all completed transactions for the alienation of his property as invalid, that is, to demand the return of what was received in kind, not only when it comes to one (first) transaction made with violation law, but also when the disputed property was acquired by a bona fide purchaser on the basis of subsequent (second, third, fourth, etc.) transactions. This would violate the guarantees arising from the Constitution established by the legislator for the protection of the rights and legitimate interests of a bona fide purchaser. Thus, contained in paragraphs 1 and 2 of Art. 167 of the Civil Code, general provisions on the consequences of the invalidity of a transaction in terms of the obligation of each party to return to the other everything received under the transaction, in their constitutional and legal sense in normative unity with Art. 166 and 302 of the Civil Code - cannot be applied to a bona fide purchaser, unless it is directly stipulated by law, and therefore do not contradict the Constitution. The named legal regulation meets the objectives of ensuring the stability of civil circulation, the rights and legitimate interests of all its participants, as well as protecting the moral foundations of society, and therefore cannot be considered as an excessive restriction of the right of the owner of property received by a bona fide purchaser, since the owner has the right to vindicate it from a bona fide purchaser. the acquirer on the grounds provided for in paragraphs 1 and 2 of Art. 302 GK. In addition, the owner who has lost property has other means of protecting his rights provided for by civil law. Taking into account the above circumstances, the Constitutional Court of the Russian Federation recognized as not contradicting the Constitution contained in clauses 1 and 2 of Art. 167 of the Civil Code, general provisions on the consequences of the invalidity of a transaction in terms of the obligation of each party to return to the other everything received under the transaction, since these provisions are, in their constitutional and legal sense, in normative unity with Art. 302 of the Civil Code - cannot be applied to a bona fide purchaser, unless this is directly stipulated by law. At the same time, he pointed out that the constitutional and legal meaning of the provisions of paragraphs 1 and 2 of Art. 167 of the Civil Code, identified in Decree No. 6-P, is generally binding and excludes any other interpretation in law enforcement practice. With regard to the above Decree No. 6-P, it should be noted that it does not completely solve the problem associated with the recovery of acquired residential premises from persons who acted in good faith and with reasonable care when acquiring them, since the norms of Art. 302 of the Civil Code, which, in the opinion of the Constitutional Court of the Russian Federation, in accordance with the constitutional and legal meaning of these norms and norms of paragraphs 1 and 2 of Art. 167 of the Constitution should be applied in such cases, they are applicable, as the Constitutional Court of the Russian Federation itself notes in Resolution No. 6-P, only when it comes to acquiring property not from the owner of this property, but from another person. Consequently, all cases where property, including residential premises, were acquired from its owner remain outside the scope of Decree No. 6-P. Meanwhile, in the overwhelming majority of cases, residential premises are purchased from their owners, which means that the majority of purchasers of residential premises are still under the threat of recognition of their transactions as invalid and the application of restitution. A way out of this situation can be found by introducing amendments to the Civil Code aimed at limiting the recognition of transactions as invalid in cases where the acquirer of the property acted in good faith. If, in the presence of this circumstance, the transactions were not recognized as invalid, the very question of the admissibility of applying in such cases the provisions of Art. 167 of the Civil Code of the consequences of the invalidity of transactions. Taking into account the possibility that real estate, primarily residential premises, could be acquired from a person who did not have the right to alienate it, by a bona fide purchaser, i.e. by a person who did not and could not know about this circumstance, the legislator adopted Federal Law of December 30.12.2004, 217 No. 223-FZ “On Amendments to Article 2 of Part One of the Civil Code of the Russian Federation and the Federal Law “On State Registration of Rights to Real Estate and Transactions with It”.” In accordance with this law, paragraph 223 of Art. 1 of the Civil Code is supplemented with the following paragraph: “Real estate is recognized as belonging to a bona fide acquirer (clause 302 of Article 302) on the right of ownership from the moment of such registration, with the exception of the cases provided for in Article 223 of this Code when the owner has the right to claim such property from a bona fide acquirer.” However, such an addition is in conflict with the general meaning of Art. XNUMX of the Civil Code, which talks about the moment the acquirer’s ownership rights arise under an agreement in relation to the normal situation when the acquirer of property under an agreement actually acquires ownership rights to this property, and does not talk about all cases of such acquisition of property when the ownership rights to the latter both it arises and it does not arise. In addition, the above rule, in the wording in which it is set out, is capable of causing a false impression that, in itself, the registration of ownership of real estate for its acquirer does not yet mean recognition of the ownership of this property by its new owner, since it is possible that the owner has the right claim such property from the acquirer. In reality, the registration of property, including immovable property, for its acquirer in all cases means that it is recognized as belonging to this person. In order for the right of ownership not to be recognized as belonging to the person in whose name it is registered, it is necessary to have a court decision that has entered into force on recognizing the certificate of state registration of his right of ownership issued to this person as invalid. Federal Law No. 30.12.2004-FZ of December 217, 31.1, supplemented the Law on Registration of Rights to Real Estate with Art. XNUMX as follows: "Article 31.1. Grounds for the payment by the Russian Federation of compensation for the loss of ownership of the acquired premises 1. The owner of a dwelling who is not entitled to claim it from a bona fide purchaser, as well as a bona fide purchaser from whom the dwelling was claimed, shall have the right to a one-time compensation at the expense of the treasury of the Russian Federation. 2. The compensation provided for in paragraph 1 of this article shall be paid if, for reasons beyond the control of the said persons, in accordance with a court decision that has entered into legal force to compensate them for the damage caused as a result of the loss of the property specified in this article, recovery under an executive document was not made within one year from the date of the beginning of the calculation of the period for presenting this document for execution. The amount of this compensation is calculated from the amount constituting the real damage, but cannot exceed one million rubles. 3. The procedure for payment by the Russian Federation of the compensation provided for by paragraph 1 of this article shall be established by the Government of the Russian Federation." The same Federal Law of December 30.12.2004, 217 No. 33-FZ Art. 9 of the Law on registration of rights to real estate is supplemented by paragraph XNUMX of the following content: "9. The provisions provided for by Article 33.1 of this Federal Law on the payment by the Russian Federation of compensation for the loss of ownership of the acquired premises shall apply if the state registration of the right of ownership of a bona fide purchaser to the residential premises was carried out after January 1, 2005", i.e. after the entry Law on registration of rights to real estate in force. From the content of the new Art. 33.1 of the Law, it is clear that the state assumes the obligation to compensate for the damage caused by the loss of residential premises to the owner, in cases where this loss occurred not through the fault of the owner himself, but through the fault of the person who alienated this residential premises without the consent of the owner. The state has imposed a similar obligation on itself in relation to bona fide purchasers who have lost their living quarters. In this case, the damage shall be compensated within the limits of the amount indicated in the above article and only in cases where it is impossible to collect it for a long period of time according to an earlier court decision. 6.2. Common property of owners of premises in an apartment building. General meeting of such owners Considerable attention in the LCD is paid to the regulation of relations arising from the common property of the owners of the premises of an apartment building (Chapter 6). The issues of regulation of these relations have become relevant in connection with the privatization of the majority of residential premises located in apartment buildings. In Art. 36 of the LCD defines the range of objects that make up the common property of the owners of premises in an apartment building. Such property includes premises in this house that are not part of apartments and are intended to serve more than one room in an apartment building, including inter-apartment landings, stairs, elevators, elevator and other shafts, corridors, technical floors, attics, basements, where there are utilities, other equipment serving more than one room in such a house (technical basements), as well as roofs enclosing load-bearing and non-bearing structures of the specified house, mechanical, electrical, sanitary and other equipment located in this house outside or inside premises and serving more than one premises, the land plot on which this house is located, with landscaping and landscaping elements and other objects intended for maintenance, operation and improvement of such a house, located on the specified land plot. In accordance with Part 1 of Art. 36 LCD common property in an apartment building belongs to the owners of premises in such a house on the basis of common shared ownership. As specifically stated in Art. 16 of the Law on the Introduction of the Residential Complex, in the existing development of settlements, the common shared property of the owners of premises in an apartment building is the land plot on which the apartment building and other real estate objects that are part of such a house are located. Part 2 of this article provides that the land plot on which these objects are located, which was formed before the entry into force of the LCD and in respect of which the state cadastral registration was carried out, passes free of charge into the common shared ownership of the owners of premises in an apartment building. In the event that the land plot on which the apartment building and other real estate objects included in such a house are located was not formed before the entry into force of the LCD, on the basis of a decision of the general meeting of owners of premises in an apartment building, any person authorized by the specified meeting has the right to apply to the authorities state authorities or local governments with a statement on the formation of a land plot on which an apartment building is located. The formation of the land plot on which the apartment building is located is carried out by state authorities or local governments. It follows from the above norm that citizens who are owners of premises in an apartment building should not bear the costs associated with the formation of the specified land plot. From the moment the land plot is formed and its state cadastral registration is carried out, the land plot on which the apartment building and other real estate objects that are part of such a house are located, passes free of charge into the common shared ownership of the owners of premises in the apartment building. Apartment buildings and other real estate objects that are part of such buildings, built or reconstructed after the commissioning of the residential complex, are accepted by the acceptance committee only when establishing the size and boundaries of the land plots on which such apartment buildings are located. According to part 3 of Art. 36 of the LCD, a reduction in the size of common property in an apartment building is possible only with the consent of all owners of premises in this house through its reconstruction. The owners of premises in an apartment building own, use and, within the limits established by the Housing Code and civil legislation, dispose of the common property in the apartment building. Although this property is common property, taking into account its nature and purpose and as an exception to the general rule, it is prohibited: 1) to allocate in kind his share in the right of common ownership of such property; 2) alienate one’s share in the specified right of common ownership, as well as perform other actions entailing the transfer of this share separately from the right of ownership of premises in an apartment building (Part 4 of Article 37 of the Housing Code). At the same time, by decision of the owners of premises in such a house, adopted at their general meeting, objects of common property can be transferred for use to other persons if this does not violate the rights and legitimate interests of citizens and legal entities. The land plot on which the apartment building is located may be encumbered with the right of limited use by other persons. It is not allowed to prohibit the encumbrance of a land plot if it is necessary to ensure access of other persons to objects that existed before the day the LCD was put into effect, i.e. before March 1, 2005. A new encumbrance of a land plot with the right of limited use is established by agreement between the person requiring the introduction of such an encumbrance of the land plot, and the owners of premises in an apartment building. Disputes on the establishment of encumbrance of a land plot with the right of limited use or on the conditions of the said encumbrance shall be settled in court. The LCD determines that the share in the right of common ownership of common property in an apartment building of the owner of the premises in this house is proportional to the size of the total area of this premises. However, in accordance with Art. 15 of the Law on the Introduction of the LCD, this rule applies, unless otherwise established by a decision of the general meeting of owners of premises or other agreement of all participants in shared ownership of common property in an apartment building adopted before its entry into force. A share in the right of common ownership of common property in an apartment building follows the fate of the ownership of premises in such a house. Upon the transfer of this right, the share of the new owner of the premises in the right of common ownership of common property in an apartment building is equal to the share of the previous owner (Article 37 of the LC). When acquiring ownership of premises in an apartment building, the acquirer receives a share in the right of common ownership of common property in such a house. The terms of the contract, by which the transfer of ownership of the premises in an apartment building is not accompanied by the transfer of a share in the specified right of common ownership, are void (part 2 of article 38 of the LC). Article 39 of the LC, which determines the procedure for maintaining common property in an apartment building, provides that the burden of expenses for the maintenance of this property is borne by the owners of the premises in the said building. The share of obligatory expenses for the maintenance of this property is determined by the share in the right of common ownership of it. The rules for maintaining common property in an apartment building are established by the Government of the Russian Federation. For the first time, the LCD includes norms that regulate relations arising in connection with a change in the boundaries of premises in an apartment building. According to Art. 40 of the LCD, the owner of premises in an apartment building, upon acquiring ownership of premises adjacent to the premises owned by him, has the right to combine these premises into one premises in the manner established by Ch. 4 LCD. The boundaries between adjacent premises may be changed or these premises may be divided into two or more premises without the consent of the owners of other premises, if such changes or division do not entail a change in the boundaries of other premises, the boundaries and size of common property in an apartment building or a change shares in the right of common ownership of common property in such a house. If the reconstruction, reorganization and (or) redevelopment of the premises is impossible without the addition of a part of the common property in an apartment building to them, the consent of all owners of the premises in this house must be obtained for such reconstruction, reorganization and (or) redevelopment of the premises. Separately, the LCD regulates the determination of shares in the right of common ownership of common property in a communal apartment. In accordance with Art. 41 of the LCD, the owner of a dwelling in a communal apartment owns a share in the right of common ownership of common property in such an apartment. This share is proportional to the share of the area owned by the owner of the dwelling in the communal apartment. The share of the owner of a dwelling in a communal apartment in the right of common ownership of the common property in an apartment building is proportional to the sum of the sizes of the total area of the specified room and determined in accordance with the share in the common ownership of the common property in the communal apartment of this owner of the area of the premises constituting the common property in this apartment (art. 42). When an owner sells a room belonging to him in a communal apartment, the other owners of the rooms in this communal apartment have the pre-emptive right to purchase the alienated room in the manner and on the terms established by the Civil Code. In accordance with Art. 43 LCD owners of rooms in a communal apartment bear the burden of maintaining the common property in this apartment. The share of mandatory expenses for the maintenance of this property, the burden of which is borne by the owner of a room in such an apartment, is determined by his share in the right of common ownership of common property in a communal apartment. The governing body of an apartment building is the general meeting of owners of premises in this building. Its competence includes: 1) making decisions on the reconstruction of an apartment building (including with its expansion or superstructure), the construction of outbuildings and other buildings, structures, the repair of common property in an apartment building; 2) making decisions on the limits of the use of the land plot on which the apartment building is located, including the introduction of restrictions on its use; 3) making decisions on the transfer for use of common property in an apartment building; 4) choice of a way to manage an apartment building; 5) other issues referred by the LCD to the competence of the general meeting of owners of premises in an apartment building (Article 44 of the LCD). In Art. 45 of the LCD determines the procedure for holding this general meeting. The owners of premises in an apartment building are required to hold an annual general meeting annually. The terms and procedure for holding the annual general meeting of owners of premises in an apartment building, as well as the procedure for notifying them of their decisions, are established by the general meeting of owners of premises in this building. The general meetings held in addition to the annual general meeting are extraordinary. The meeting may be convened at the initiative of any of these owners. The owner, on whose initiative a general meeting is convened, is obliged to inform the owners of premises in an apartment building about holding such a meeting no later than ten days before the date of its holding. Within the specified period, the notice of the general meeting must be sent to each owner of the premises in this house by registered mail, unless a decision of the general meeting of owners of the premises in this house provides for another way to send this message in writing, or handed to each owner of the premises against receipt or placed in premises of an apartment building, determined by such a decision and available to all owners of premises in this building. The general meeting of owners of premises in an apartment building is eligible if it was attended by the owners of premises in this building or their representatives with more than 50% of the votes of the total number of votes. In the absence of a quorum for holding the annual general meeting, a repeated general meeting must be held (part 3 of article 45 of the LC). The right to vote at the general meeting on the issues put to the vote belongs to the owners of the premises in this building. Direct voting may be carried out by the said persons either in person or through their representative. The representative of the owner of the premises in an apartment building at the general meeting acts in accordance with the powers based on the instructions of federal laws, acts of authorized state bodies or acts of local governments, or a power of attorney drawn up in writing for voting. Such a power of attorney must contain information about the represented owner of the premises in the relevant apartment building and his representative (name or title, place of residence or location, passport data) and must be drawn up in accordance with the requirements of clauses 4 and 5 of Art. 185 of the Civil Code or certified by a notary. The number of votes that each owner of premises in an apartment building has at a general meeting is proportional to his share in the common ownership of common property in this building (part 3 of article 48 of the LCD). Decisions of the general meeting of owners of premises in an apartment building on issues put to a vote are taken by a majority vote of the total number of votes of the owners of premises in such a building participating in this meeting, with the exception of those provided for in paragraphs 1 and 3 of part 2 of Art. 44 JK decisions that are taken by a majority of at least 2/3 of the votes. Decisions of the general meeting are documented in minutes in the manner prescribed by the general meeting of owners of premises in this house. The general meeting of owners of premises in an apartment building is not entitled to make decisions on issues not included in the agenda of this meeting, as well as change the agenda. The decisions adopted by the general meeting, as well as the voting results, are brought to the attention of the owners of the premises in this house by the owner, on whose initiative such a meeting was convened, by posting an appropriate message in the premises of the house, determined by the decision of the general meeting of owners in this house and accessible to the owners of the premises in it, no later than ten days from the date of adoption of these decisions. Minutes of general meetings of owners of premises in an apartment building and decisions of such owners on issues put to a vote are stored at the place or at the address determined by the decision of this meeting. The decision of the general meeting, adopted in accordance with the procedure established by the LCD, on issues within the competence of such a meeting, is binding on all owners of premises in an apartment building, including those who did not vote. The owner of the premises in an apartment building has the right to challenge in court a decision made by a general meeting in violation of the requirements of the LCD, if he did not take part in this meeting or voted against such a decision and if such a decision violated his rights and legitimate interests. An application for such a challenge may be filed with the court within six months from the day when the said owner knew or should have known about the decision. The court, taking into account all the circumstances of the case, has the right to uphold the disputed decision if its voting could not affect the voting results, the committed violations are not significant and the decision made did not cause losses to this owner. In an apartment building, all premises in which belong to one owner, decisions on issues related to the competence of the general meeting are taken by this owner alone and are drawn up in writing. In this case, only the provisions relating to the timing of the annual general meeting of owners of premises in an apartment building are applied (Article 46 of the LC). In connection with the employment of the owners of premises in an apartment building and other reasons, it is not always advisable to hold a general meeting with the presence of these owners. Given this, the legislator provided for the possibility of holding a general meeting in the form of absentee voting. In accordance with Art. 47 of the LCD, a decision of the general meeting of owners of premises in an apartment building can be made without holding a meeting (joint presence of owners of premises in this house to discuss agenda items and make decisions on issues put to a vote) by absentee voting - transfer to a place or address , which are indicated in the notice of the general meeting, in writing the decisions of the owners on the issues put to the vote. Those who took part in the general meeting, held in the form of absentee voting, are considered to be the owners of the premises in this house, whose decisions were received before the deadline for their acceptance. Author: Ivakin V.N. << Back: Features of purchasing housing in modern conditions (Use of mortgages when purchasing housing. Participation in shared construction of apartment buildings and other real estate. Privatization of residential premises by citizens) >> Forward: Social rental of residential premises (General provisions on the rental of residential premises. Grounds and procedure for the provision of residential premises under a social tenancy agreement. Social tenancy agreement for residential premises: basic provisions. Rights and obligations of the parties to a social tenancy agreement for residential premises. Amendment, termination and termination of a social tenancy agreement for residential premises. Law for the exchange of residential premises provided under social tenancy agreements. Sublease of residential premises provided under a social tenancy agreement. Temporary residents)
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