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Citizens of the Russian Federation have a constitutional right to housing (Article 40 of the Constitution of the Russian Federation). The state creates the legal prerequisites for the implementation of this right of citizens. The housing mortgage lending system has been developed in the Russian Federation. Thus, in accordance with Decree of the Government of the Russian Federation of January 11, 2000 No. 28 “On measures to develop the housing mortgage lending system in the Russian Federation,” it is proposed to stimulate investment in construction by providing developers with bank loans for housing construction.

In accordance with Decree of the Government of the Russian Federation of August 3, 1996 N 937 “On the provision of free subsidies for the construction or purchase of housing to citizens of the Russian Federation in need of improved housing conditions” by state bodies and local governments from the relevant budget for certain categories of citizens ( military personnel, rescuers, etc.) a free subsidy is provided for the construction or purchase of housing.

In situations where living space becomes uninhabitable State authorities and local governments are obliged to take measures to provide citizens with housing at the expense of their respective budgets. This is especially important due to the fact that further living in a faulty residential building becomes impossible, since there is a threat of harm to the life and health of citizens.

In such cases, the issue of solving their housing problem is not an easy task for those citizens to whom the occupied premises were provided on social rental terms.

State policy to support this in such cases can be implemented on the basis of Art. 51 of the Housing Code of the Russian Federation.

In accordance with this article of the Housing Code of the Russian Federation, citizens living in premises that do not meet the requirements established for residential premises are recognized as needing residential premises, and they are provided with another premises on social rental terms

However, this rule of law often has different interpretations and is not always uniformly understood by public authorities and citizens.

In the situation under consideration, a legal analysis of Article 51 of the RF LC in conjunction with the provisions of other regulations is necessary.

Grounds and procedure for declaring a residential premises unfit for habitation.
This point (legal fact) is the basis for the emergence of legal relations related to the provision of housing.

The procedure for recognizing residential premises as unfit for habitation is established by Decree of the Government of the Russian Federation of January 28, 2006 No. 47 “On approval of the provisions on recognizing premises as residential premises, residential premises unsuitable for habitation and an apartment building as unsafe and subject to demolition.” Residential buildings (residential premises) that are in dilapidated or disrepair, or in which the harmful effects of environmental factors have been identified, are considered unsuitable for living.

The criteria and technical conditions for classifying residential buildings (residential premises) as dilapidated or in disrepair are approved by the Federal Agency for Construction and Housing and Communal Services (Resolution of the Government of the Russian Federation of June 16, 2004 N 286 “On approval of the regulations on the Federal Agency for Construction and Housing -municipal services"; Decree of the Government of the Russian Federation of April 8, 2004 N 196 "Issues of the Federal Agency for Construction and Housing and Communal Services").

So, for example, in accordance with the Resolution of the State Committee of the Russian Federation for Construction and Housing and Communal Sector dated February 20, 2004 N 10 “On approval of criteria and technical conditions for classifying residential buildings (residential premises) as dilapidated or emergency” as unsuitable for residences include residential buildings in disrepair, dilapidated residential buildings, residential buildings located in hazardous areas of coal dumps, landslides, etc. In this case, a residential building is recognized as being in emergency condition if a threat is created to the safety of living of citizens. A residential building with physical wear and tear is recognized as dilapidated, in which its strength and deformation characteristics are equal to or lower than the maximum permissible characteristics.

The law establishes that residential premises in terms of area, layout, illumination, insolation, noise level, air exchange, vibration must comply with sanitary rules in order to ensure safe living conditions (Article 23 of the Federal Law of March 30, 1999 "On the Sanitary and Epidemiological Welfare of the Population ").
Checking in residential premises unsuitable for habitation according to sanitary and epidemiological indicators, is not allowed, and the maintenance of residential premises must comply with sanitary rules and standards, which are approved by the chief sanitary doctor of the Russian Federation in SANPIN 2.2.1/2.1.1.1278-03.

By decision of the interdepartmental commission, residential buildings (residential premises) are declared unfit for habitation. The commission, after examining documents indicating the technical condition of a residential building (premises) and living conditions in it, may decide that the residential building (premises) is suitable for living in, or is suitable for living after major repairs, or that the residential building (premises) is suitable for living in. ) is unsuitable for habitation.

If a residential building or premises are recognized as unfit for habitation due to an emergency condition or the harmful effects of environmental factors that pose a particular danger to the life and health of citizens, the local government authority issues an order for the immediate eviction of citizens.

Thus, The basis for declaring a residential premises unfit for habitation is the decision of the interdepartmental commission to recognize the residential building (premises) as unfit for habitation.

Eviction of citizens from residential premises provided under a social tenancy agreement is carried out in court with the provision of another comfortable residential premises under the terms of a social tenancy agreement, if the previously occupied residential premises are recognized as unsuitable for habitation. At the same time, the residential premises provided to citizens must be well-equipped in relation to the conditions of the corresponding populated area, equivalent in total area to the previously occupied residential premises, meet established requirements and be located within the boundaries of the populated area.

The eviction of citizens from residential premises recognized as unsuitable for living and moving into residential premises of the municipal housing stock must be carried out taking into account the established norm of provision, since only in this case the citizen ceases to be in need of residential premises. If, after declaring a residential premises unsuitable for living, citizens are moved into other residential premises without taking into account the provision norm, then citizens may remain in need of residential premises and must be registered with the local government body. However, the subsequent provision of residential premises on the grounds that the total living space per family member is less than the registration norm (Part 1, Article 51 of the RF Housing Code) is carried out in order of priority, based on the time of registration of citizens (Part 1, Article 57 of the RF Housing Code)

Today, despite the massive construction of new multi-storey buildings, a significant part of the housing stock consists of houses that were built 50-70 years ago. Such buildings are often uninhabitable. Unsatisfactory living conditions, for example, leaking ceilings, cracks in the walls, dirty basements, cause great discomfort to those living in such houses. They ask the question: how to recognize a house as unsafe? We will try to answer it in more detail in the article.

Not all old houses can be renovated. Some of them demolish and build new buildings on the vacant land. Let's consider the procedure for declaring a house unsafe for further demolition.

Ways to improve living conditions

There are several ways to improve living conditions:

• Participation in the state program. According to it, all unsafe houses are demolished in order of priority, and their residents are given ownership of new property. But not everything is as simple as it might seem at first glance. Some residents have been waiting for decades for demolition or reconstruction. This method is only relevant if the nearest date for accepting participation in the program has been set. You must first find out whether a particular house is on the list of participants in the program.
• Contacting local authorities. They can decide the fate of the building and redistribute its inhabitants. All these procedures are performed at the expense of the organs themselves.
• Claim to the judiciary. It is best to use it in extreme cases, for example, if the listed methods do not work. In most cases, by court decision, the owner is provided with real estate, the area and number of rooms of which correspond to the old housing.

Required package of documents

To recognize a house as unsafe, you must prepare the following package of documents in advance:

1. An application filled out by hand in the prescribed form. In order to draw up this document correctly, you can contact a lawyer. This is especially true for those people who do not have experience and sufficient knowledge in this area.
2. Expertise. Independent experts evaluate the property, based on the results of which they make a decision on its condition.
3. An act drawn up by the state housing inspection. It confirms that the building is unsafe and needs to be demolished.
4. Technical certificate.
5. Documents confirming ownership.

The procedure is as follows: a package of documents is drawn up and submitted to the interdepartmental commission. After submitting the papers, you must wait for the decision of the government agency. As a rule, it is issued within 30 days.

If the commission recognizes the house as unsafe, local authorities will also draw up a special document. Next, a decision is made on the demolition or reconstruction of the building.

Recognition of a house as unsafe for reconstruction

Only those types of emergency buildings that are classified as architectural monuments are subject to reconstruction. According to the legislation of the Russian Federation, demolition of this type of real estate is prohibited. Reconstruction must be carried out without fail. The residents of the house themselves are responsible for the procedure.

For them, such a decision is quite ambiguous. The reconstruction puts an end to the resettlement of residents in other, more modern houses. In addition, the residents themselves must be responsible for carrying out the reconstruction procedure. This is a huge responsibility.

The assessment of cultural monuments is carried out by special organizations that have a license to carry out this type of activity. This affects the cost of services.

As for the necessary documents, their list differs little from what was presented above. In any case, it is better to find out the exact list in advance.

When is a house deemed uninhabitable?

A house is considered unfit for habitation in the following cases:

1. The building does not meet hygienic and other requirements. For example, in the house there is an increased content of substances harmful to the body in the air or strong electromagnetic fields.
2. Significant damage to the foundation, walls or roof of a building. These include cracks, holes, etc.
3. Damage to real estate due to an accident, accident, or natural disaster.
4. Increased noise level in bedrooms. This is especially true for residents of large cities, where houses are located directly next to the roadway.
5. Repairing the building is impossible or will result in unnecessary losses.

In such cases, the property is considered unsafe. His future fate is being decided.

However, there are cases when a building cannot be considered unfit for habitation. These include the following points:

• Lack of a central sewerage and water supply system in houses with 1-2 floors.
• Deviation of the parameters of residential premises from those established at the legislative level.
• No elevator or single garbage chute.

In such cases, housing cannot be recognized as unsafe. There is no resettlement of residents.

Expertise

Real estate appraisal is a very important stage, based on the results of which an examination is compiled. The procedure itself is carried out by independent experts, who must have a license to carry out their professional activities.

The basis for drawing up the examination is the percentage of wear and tear of the building. An insufficient indicator may cause refusal to compile an examination. The optimal value is 70 percent and above.

As mentioned above, the assessment of cultural monuments is a rather complex and responsible procedure. It requires the master to have a special license.

You can find out about the appraisers' decision from the regional administration. The head of registration owns a complete list of all apartments and houses participating in the program. You can find out about the fate of your home from the administration.

The procedure for recognizing a house as unsafe is quite complicated. The information presented in this article may not be sufficient to fully understand the topic. To learn more about how to recognize housing as unsafe, watch the following video:

So, an impressive part of the housing stock of the Russian Federation is old buildings that need demolition or reconstruction. In order to recognize your home as unsafe and carry out overcrowding of citizens, you must submit a package of documents. The waiting time after submitting papers is 30 days. Government authorities may reject the application, which happens quite often.

Consequences of recognizing individual residential premises as unsuitable for permanent residence (Zubova Yu.)

Date of article publication: 07/03/2014

Moving from housing recognized as unsafe to a new one is always an important event for owners and tenants, usually associated with numerous proceedings with local authorities. Of course, it would be ideal to reach an agreement peacefully, avoiding litigation, but, unfortunately, in practice, a large number of problems arise related to this process, which are resolved only in the courts.

When considering the consequences of declaring residential premises unsuitable for permanent residence, it is worth paying special attention to certain issues.
In particular, taking into account the Regulations on recognizing residential premises as unsuitable for habitation and an apartment building as unsafe and subject to demolition or reconstruction, approved by Decree of the Government of the Russian Federation of January 28, 2006 N 47, it is obvious that residential premises of a municipal (state) ) housing stock, as well as residential premises owned by citizens. In addition, it should be noted that neither the mentioned Regulations, nor the Housing Code of the Russian Federation, nor any other regulations stipulate that a mandatory condition for the emergency provision of housing to citizens whose residential premises are recognized in the prescribed manner as unsuitable for habitation is registration of citizens at the time of occurrence of circumstances that made the residential premises unsuitable for habitation.
It follows from this that the subjects of this category of cases can be both owners of residential premises and tenants, whether or not registered as those in need of improved housing conditions. In addition, one of the parties in the consideration of this category of cases is always a state authority or local government.
It would seem that everything is simple: the premises are recognized as unsuitable for habitation, state authorities and local governments are obliged to take measures to provide citizens with housing at the expense of the appropriate budgets or compensate for the cost of the lost premises, but this is precisely where many questions arise. It would be ideal, avoiding litigation, to peacefully agree on the eviction of citizens to new residential premises, but, unfortunately, in practice, a large number of problems arise related to the uncertainty in the wording of the legislation and, consequently, confusion in the interpretation of the law by both plaintiffs and defendants, citizens' dissatisfaction with the conditions and area of ​​newly provided residential premises, and so on.
Let’s try to understand and analyze the most common disputes in judicial practice related to the consequences of declaring residential premises unsuitable for permanent residence.
Protection of the rights of owners whose premises are duly recognized as unsuitable for permanent residence is carried out in accordance with Article 32 of the Housing Code of the Russian Federation.

Let's look at some examples from judicial practice that clearly demonstrate this procedure for resolving disputes.
Thus, the court considered the case on the claim of Ch., who are co-owners of a two-room apartment. The residential building in which the apartment is located is recognized as unsafe and subject to demolition and is included in the list of houses in the regional targeted program. The administration of the city of Zhigulevsk offered the owners a one-room apartment, which the plaintiffs refused because they believe that they should be provided with equivalent living space to the one previously occupied in accordance with Article 89 of the Housing Code of the Russian Federation.
The court refused to satisfy the owners' demands to provide them with an apartment of equal size and number of rooms, since in accordance with Article 32 of the Housing Code of the Russian Federation, residential premises are provided to the owner in exchange for the occupied one under an agreement concluded with the authorities that made the decision to recognize the house as unsafe and subject to demolition. Meanwhile, during the trial it was established that the parties did not reach an agreement to provide the plaintiffs with a two-room apartment instead of the residential premises they owned, while the law does not provide for the obligation of the local government body to provide the plaintiffs with another residential premises in return for the seized one.

Thus, it is obvious that the legislator provided for the obligation of the authorities only to pay the redemption price of the seized residential premises in accordance with Article 32 of the Housing Code of the Russian Federation, or by agreement with the owner, he may be provided with other residential premises, the cost of which is included in the redemption price, but did not oblige the authority shall provide, in place of the premises declared unsuitable, a new premises under a social tenancy agreement. But there are exceptions to this rule. If, for example, a citizen proves his low-income status and the need for social housing, then the court, as follows from practice, will oblige the local government to provide new housing out of turn.
Thus, on April 11, 2011, the Leninsky District Court of the city of Samara decided to oblige the Property Management Department of the Samara City District to provide B.A.N. residential premises for a family of three, with an area not less than the provision norm. At the same time, the court found that B.A.N is the owner of a room in a communal apartment, his wife and son are registered and live in it with him. In 2000, the plaintiff was registered as needing housing as a family of 3 people. In 2006, a fire occurred in the house where the plaintiff’s residential premises were located; by order of the Deputy Head of the Samara City District dated 04/12/2010, the specified premises were declared unfit for habitation, and the residential building was declared unsafe and subject to demolition. The court found that the owner and his family members do not have any other housing to live in, and the defendant did not take any measures to resettle or provide other comfortable living quarters. In the presence of these circumstances, the court satisfied the plaintiff’s demands to provide residential premises to the plaintiff’s family on the basis of a social tenancy agreement according to the provision norm. At the same time, the court did not take into account the defendant’s reference to Article 32 of the Housing Code of the Russian Federation, since in this case the plaintiff has the right to be provided with housing in accordance with Article 57 of the Housing Code of the Russian Federation, and the defendant, if necessary, is not deprived of the right to demand from the owner of the residential premises the fulfillment of obligations that assigned to him by Article 32 of the RF Housing Code.

But that's not all. As can be seen from the provided judicial practice, the plaintiff was previously registered as a person in need of housing, but what if the loss of the house occurred due to a fire, for example, and the owner was not previously registered as a person in need, since Was this not necessary? The answer to this question is given by the Determination of the Constitutional Court of the Russian Federation dated March 5, 2009 N 376-O-P “On the complaint of citizen Roman Vladimirovich Alekseev about the violation of his constitutional rights by paragraph 1 of part 2 of Article 57 of the Housing Code of the Russian Federation,” according to which the possibility is not excluded provision of residential premises to low-income citizens who lost their residential premises as a result of a fire under social tenancy agreements in an extraordinary manner, if at the time of loss of housing they were not registered as needing residential premises.
As for tenants, the issues of providing them with residential premises are resolved in accordance with Article 86 of the Housing Code of the Russian Federation, taking into account Article 89 of the Housing Code of the Russian Federation, by virtue of which the residential premises must be comfortable in relation to the conditions of the corresponding settlement, equivalent in total area to the previously occupied residential premises , meet established requirements and be located within the boundaries of a given locality.
For example, the court assessed the eviction of defendants X. into residential premises located at the address:<...>, since during the trial it was established that the defendants’ family has minor children, and in the village of Ozerny (the area where the apartment provided is located) it is only planned to build a general medical outpatient clinic, in addition, in schools that are located near the specified village, the maximum limit has been exceeded number of students.

The court also refused to satisfy the claims filed against S.’s family for eviction, since the court found that S.M.V. is a disabled person of the first group, can only move on crutches, is under the supervision of a neurologist, therefore, the defendant needs constant medical supervision. However, as follows from the case materials, there are no medical institutions or pharmacies near the location of the provided residential premises, which are extremely necessary for S.M.V.
Here it is necessary to pay special attention to the fact that even if the tenants of residential premises recognized as unsuitable for permanent residence were previously registered as those in need of improved housing conditions, this does not mean that the residential premises newly provided to them under a social tenancy agreement will comply with provision standards. This conclusion can be drawn from the analysis of the Determination of the Constitutional Court of the Russian Federation dated November 3, 2009 N 1368-О-О “On the refusal to accept for consideration complaints from citizens Maria Vasilyevna Artyukina and others about violation of their constitutional rights by part 3 of article 6, part 2 of article 57 and part 1 of Article 89 of the Housing Code of the Russian Federation", according to which the priority nature of providing other residential premises to citizens relocated from residential premises that are recognized as unsuitable for habitation determines the exclusively compensatory nature of such provision, since it is obvious that the goal of the legislator in this case was not improving housing conditions in terms of quantitative indicators, and maintaining at least the existing supply of housing for citizens while simultaneously improving living conditions from a safety point of view. That is, citizens who were previously registered as needing residential premises are not removed from such registration unless this is no longer necessary. It also follows that if several families live in an apartment at the same time, this does not mean that they will all automatically receive separate living quarters.

For example, the demands of the Property Management Department of the Samara Urban District for the eviction of the Kh. family with the provision of another comfortable living space were only partially satisfied, and the defendants’ demands for the provision of residential space according to the standard of provision out of turn were also partially satisfied. The court found that, on the basis of a social tenancy agreement, the defendant family lived in a one-room apartment with a total area of ​​31.7 square meters. m. The apartment building in which the apartment is located is recognized as unsafe and subject to demolition. The Samara City District Property Management Department offered the defendants equivalent housing for relocation. The defendants refused this proposal, citing the fact that at present there are actually two families registered in the apartment (the marriage between the spouses of Kh. has been dissolved, one family is Kh.S.V. with children, and the second family is Kh.Kh. .A. and members of his family), therefore, they need to be provided with two apartments according to the provision rate. The defendants asked to provide H.H.A. and H.S.V. with children, separate living quarters according to the provision norm. At the same time, the court established that by order of the First Deputy Head of the Samara City District dated December 14, 2001, the family of Kh.S.V. with a composition of five people (she, her ex-husband Kh.H.A. and three children) were registered as those in need of residential premises of the municipal housing stock under social tenancy agreements due to the provision of a total living area per family member less than the registered one norms. Taking into account the above, the court came to the conclusion that the defendants, whom the plaintiff is asking to evict from the residential premises, must be provided with residential premises according to the norm for provision in an extraordinary manner, and not with equivalent residential premises, which were offered by the Department of Property Management of the city. Samara. At the same time, the court refused to satisfy the defendants’ demands in terms of providing them with two apartments in connection with the termination of the marriage between the spouses, since during the trial it was established that the defendants X. were recognized as in need of improved housing conditions consisting of five people, including former spouses H.H.A., S.V.
Analyzing judicial practice, it becomes clear that in most cases residential premises are provided equal to those previously occupied, and citizens who are registered as needing improved housing conditions still remain in the queue for the provision of residential premises already at the rate of provision. In this situation, it would be more expedient to immediately provide premises in court, taking into account these standards, but, unfortunately, within the framework of property owned by state and municipal property, this is not possible. Although there are also cases when the premises are provided according to the provision norm, but are, in turn, smaller in area than previously occupied.
Thus, in her appeal to the court, the plaintiff indicated that she and her family occupied a living space consisting of three rooms, provided under a social tenancy agreement. The apartment building in which the apartment is located was recognized as unsafe and subject to demolition; partial resettlement of citizens was carried out in 2008 - 2010. Currently, the specified house does not exist, but the plaintiff has not yet been provided with living quarters. The plaintiff asked to oblige the defendant to provide her with residential premises consisting of three rooms, equivalent in area to the previously occupied residential premises. The court partially satisfied the claims and ordered the defendant to provide the plaintiff with comfortable living quarters under a social tenancy agreement no less than the norm for provision within the boundaries of the Chapaevsk urban district, since it established that three living rooms in the apartment were provided by S.G.G. and members of her family (husband, daughter K.S.V., son S.R.V.), however, everyone living in the specified premises was deregistered (the plaintiff’s father died, the employer S.G.G. and her son S. .R.V. moved to another permanent place of residence). Thus, at the time of the demolition of the house, only the plaintiff was registered in a residential area unsuitable for habitation. The court considered that the plaintiff did not have the right to demand equivalent residential premises to the previously occupied premises, since the residential premises, recognized as unsuitable, consisting of three rooms with a total area of ​​68.3 square meters. m, previously provided for a family of four people; in relation to three of them, the social tenancy agreement was actually terminated.

Summarizing all of the above, we can come to the following conclusions.
The legal consequences of declaring a residential premises unsuitable for permanent residence are different for owners and tenants. Moreover, in this case, tenants find themselves in the most advantageous position, having the opportunity, out of turn, to receive new residential premises under a social tenancy agreement, equivalent to the previously occupied one, and in some cases - according to the provision standards, if citizens were previously registered as those in need of improvement living conditions (or received such a right during the recognition of a residential premises as unsuitable for permanent residence), and the body providing this premises has such an opportunity. As for the owners of residential premises recognized in accordance with the established procedure as unsuitable for permanent residence, then, in accordance with the Housing Code of the Russian Federation, they must demolish the residential building at their own expense, and if this does not happen, then receive the redemption value of the previously occupied residential premises in connection with the seizure land plot for state or municipal needs. If the body that made the decision to recognize the house as unsafe and subject to demolition has such an opportunity, then, by agreement with the owner, the latter can receive new housing in return for the housing declared unsuitable, but no provision standards are taken into account, as well as the area previously occupied premises. But, as can be seen from judicial practice, there are examples when owners also receive residential premises in exchange for those recognized as unsuitable if they were previously registered as needy or can prove their need for social housing and low income.
Unfortunately, we have to admit the fact that the legislation in the field of recognizing residential premises as unsuitable for permanent residence has not yet been sufficiently developed, and, despite the fact that some work is being done to improve it, many issues still remain unresolved. There is an urgent need to systematize legislative acts on this topic, as well as to clearly regulate the consequences of recognizing residential premises as unsuitable for permanent residence for owners.

To begin with, we point out that the general issues of providing housing to citizens (including the disabled) are analyzed in sufficient detail in the Determination of the Constitutional Court of the Russian Federation dated April 12, 2011 No. 551-О-О (published in the "Bulletin of the Constitutional Court of the Russian Federation", No. 6, 2011) .

We strongly recommend that anyone interested in the problem of improving living conditions refer to this definition.

This article is divided into paragraphs for ease of perception; in addition, throughout the text of the article there are links to its paragraphs.

1 . The residential premises must comply with the requirements of Section II of the Regulations on recognizing premises as residential premises, residential premises unsuitable for habitation and an apartment building as unsafe and subject to demolition or reconstruction (approved by Decree of the Government of the Russian Federation of January 28, 2006 No. 47).

This provision provides (clause 33) that the basis for declaring a residential premises unfit for habitation is the presence of identified harmful factors in the human environment, which do not allow ensuring the safety of life and health of citizens due to:

Deterioration due to physical wear and tear during the operation of the building as a whole or its individual parts of the operational characteristics, leading to a decrease in the reliability of the building, the strength and stability of building structures and foundations to an unacceptable level;

Changes in the environment and microclimate parameters of residential premises that do not allow compliance with the necessary sanitary and epidemiological requirements and hygienic standards in terms of the content of chemical and biological substances potentially hazardous to humans, atmospheric air quality, background radiation levels and physical factors of the presence of sources of noise, vibration, electromagnetic fields.

This provision also provides (clause 34) that residential premises located in prefabricated, brick and stone houses, as well as in wooden houses and houses made from local materials, with deformations of foundations, walls, load-bearing structures and a significant degree of biological damage to wooden elements structures that indicate the exhaustion of their load-bearing capacity and the danger of collapse are unsuitable for habitation due to the recognition of an apartment building as unsafe and subject to demolition or reconstruction.

Consequently, residential premises with a significant percentage of physical wear and tear, with deformed and/or damaged foundations and/or walls are unsuitable for living (and an apartment building is in disrepair).

2 . Let us present some indicators indicating the unsuitability (unsafety) of a residential premises (apartment building).

So, according to clause 2.3. Regulations on the assessment of the unsuitability of residential buildings and residential premises of the state and public housing stock for permanent residence, which was approved by Order of the Ministry of Communal Resources of the RSFSR dated November 5, 1985 No. 529 (hereinafter referred to as the 1985 Regulations) barracks, which should be considered one-, a two-story residential building intended for temporary residence, with a common kitchen and sanitary facilities, usually wooden, designed for a short service life - 10 - 20 years.

In addition, according to clause 2.2. The 1985 regulations define residential buildings unsuitable for permanent residence as wooden houses and houses with walls made of local materials, as well as attics with physical wear and tear of over 65%, as well as stone houses with physical wear and tear of over 70%.

It should also be taken into account that according to the Resolution of the USSR Council of Ministers of October 22, 1990 No. 1072 “On uniform rates of depreciation charges for the complete restoration of fixed assets of the national economy of the USSR”, that for residential buildings with wooden, cobblestone walls, the wear rate is set at 2% per year.

Consequently, the wear and tear (according to standards) of a wooden house over fifty years will be 100%.

This means that if a citizen owns a wooden residential building built about 40-50 years ago, then there is a very high probability that such a house is unsuitable for living due to wear and tear of the load-bearing structures and their loss of load-bearing capacity.

3 . It is necessary to take into account that as a result of the assessment (research) of residential premises one of the following decisions may be made:

Based on this, a citizen (especially a homeowner) needs to ensure that the residential premises he owns are recognized as unfit for habitation and at the same time not subject to repair (reconstruction) - clause 1 of part 2 of article 57 of the Housing Code of the Russian Federation.

A residential premises unsuitable for habitation is not subject to repair and reconstruction if a major renovation of the residential premises is economically and technologically inexpedient, i.e. if the repair of such premises involves changing the walls and foundation.

In other words, if a residential premises requires such repairs, which essentially means the construction of new housing, then such premises are recognized as not subject to repair (reconstruction).

The question of whether a residential premises is subject to repair (whether such repairs are advisable) is usually resolved in court when challenging the decision of the interdepartmental commission (more on this below) during a construction examination.

If the residential premises are recognized as not meeting the established requirements, but it is recognized that repair of such premises is possible, then in such a situation the owner of the residential premises does not receive any opportunities, he does not have the right to priority improvement of living conditions. After all, according to Art. 210 of the Civil Code of the Russian Federation, it is the owner who bears the burden of maintaining the property he owns (including repairs).

If the residential premises are recognized as not meeting the established requirements, but it is recognized that repairs to such premises are possible, then in such a situation the tenant of the residential premises under a social tenancy agreement has the right to count only on temporary relocation in connection with major repairs or reconstruction of the house - Art. 88 of the Housing Code of the Russian Federation (if the landlord (municipal entity) will still carry out such repairs (such reconstruction).

According to clause 7 of the Regulations on the recognition of premises as residential premises, residential premises unsuitable for habitation and an apartment building in disrepair and subject to demolition or reconstruction (hereinafter referred to as the Regulations), recognition of premises as suitable (unsuitable) for habitation of citizens, as well as an apartment building in disrepair and subject to demolition or reconstruction carried out by an interdepartmental commission created for these purposes.

According to clauses 7 and 8 of the Regulations, residential premises that are in municipal ownership and residential premises that are privately owned by citizens are recognized as suitable (unsuitable) for living by an interdepartmental commission created by the administration of the municipality on whose territory the residential premises are located.

At the same time, in accordance with clause 8 of the Regulations, the local government body, if there is an application from the owner of the premises, makes a decision to recognize private residential premises located on the relevant territory as suitable (unsuitable) for citizens to live on the basis of the corresponding conclusion of the commission.

Thus, you must first contact the administration of the municipality with an application to create an interdepartmental commission and for this commission to conduct an assessment (inspection) of the residential premises to resolve the issue of its suitability (unsuitability) for living.

This application must be accompanied by copies of the following documents:

Document of title for residential premises (certificate of ownership, certificate of inheritance, privatization agreement, registered BTI, social tenancy agreement or warrant),

Conclusion of a design and survey organization based on the results of an examination of the elements of enclosing and load-bearing structures of a residential premises,

Applications, photographs of the house, letters, complaints from citizens about unsatisfactory living conditions - at the discretion of the applicant.

If the applicant does not attach the conclusion of the design and survey organization and/or the title document for housing (provided that the rights to housing are not registered in the register of real estate rights), then the application is returned to the citizen without consideration.

To obtain a conclusion from a design and survey organization, you must contact any organization that has permission to carry out design work and work on technical inspection of buildings and structures (issued in the prescribed manner - see Article 47 and Article 55.8 of the Town Planning Code of the Russian Federation) with a request to carry out inspection of elements of enclosing and load-bearing structures of a residential building.

The result of such a survey will be the conclusion of the design and survey organization, which should be attached to your application.

Within 30 days from the date of submission of the application (with annex), an interdepartmental commission to assess the residential premises must be created by the local administration.

In case of inaction of the local administration and/or interdepartmental commission, a complaint is submitted to the prosecutor's office or to the court (in the manner established by the Code of Administrative Proceedings of the Russian Federation).

Based on the results of consideration of a citizen’s application, the municipal administration is obliged to create an interdepartmental commission.

According to clause 42 of the Regulations, the commission, on the basis of an application from the owner of the premises or an application from a citizen (tenant), assesses the compliance of the premises with the requirements established in these Regulations and recognizes the residential premises as suitable (unsuitable) for habitation, and also recognizes the apartment building as unsafe and subject to demolition or reconstruction.

When assessing the compliance of a premises in operation with the requirements established in these Regulations, its actual condition is checked.

At the same time, an assessment is made of the degree and category of the technical condition of building structures and a residential building as a whole, the degree of its fire resistance, conditions for ensuring the evacuation of residents in the event of a fire, sanitary and epidemiological requirements and hygienic standards, the content of chemical and biological substances potentially hazardous to humans, the quality of the atmospheric air, the level of background radiation and physical factors of sources of noise, vibration, the presence of electromagnetic fields, microclimate parameters of the room, as well as the location of the living space (clause 43 of the Regulations).

As a result of its work, the commission makes one of the following decisions::

On the compliance of the premises with the requirements for residential premises and its suitability for habitation;

On identifying the grounds for recognizing the premises as subject to major repairs, reconstruction or redevelopment (if necessary, with a feasibility study) in order to bring the characteristics of the residential premises lost during operation into compliance with the requirements established in these Regulations;

On identifying the grounds for declaring the premises unfit for habitation;

On identifying the grounds for recognizing an apartment building as unsafe and subject to reconstruction;

On identifying the grounds for recognizing an apartment building as unsafe and subject to demolition;

On the absence of grounds for recognizing an apartment building as unsafe and subject to demolition or reconstruction.

The decision of the commission is made by a majority vote of the commission members and is drawn up in the form of a conclusion in 3 copies indicating the relevant grounds for the decision.

If the number of votes “for” and “against” when making a decision is equal, the vote of the chairman of the commission is decisive. In case of disagreement with the decision made, the commission members have the right to express their dissenting opinion in writing and attach it to the conclusion.

Thus, as a result of examining the actual condition of the residential premises (with a mandatory on-site visit), the commission issues a conclusion recognizing the premises as suitable (unsuitable) for permanent residence.

If you disagree with the conclusions contained in the commission’s conclusion, this conclusion should be challenged in court (in accordance with the Code of Administrative Proceedings of the Russian Federation). The period for challenging is three months from the date of adoption of the conclusion (Part 1 of Article 219 of the CAS RF).

To substantiate the erroneous conclusions of the interdepartmental commission, it is necessary to petition the court to conduct a construction examination.

To confirm the unsuitability of the residential premises and to confirm that the housing is not subject to repair (reconstruction) before the expert in the petition it is necessary to formulate approximately the following questions:

What is the technical condition of the residential premises located at: (specify address).

Is it technically possible to carry out major repairs, as well as reconstruction of a residential premises located at: (specify address).

Is it economically feasible to carry out major repairs and reconstruction of residential premises located at: (specify address).

If the examination shows that the residential premises are unsuitable for habitation and that the repair (reconstruction) of the premises (house) is impractical, then the conclusion of the interdepartmental commission will be declared illegal.

The further procedure will depend on whether the citizen is the owner of the apartment (house) or lives in it under a social tenancy agreement.

It should be emphasized that the residential premises must be declared unfit for habitation according to the conclusion of the interdepartmental commission or by a court decision.

Moreover, the residential premises must be recognized not just as unfit for habitation, but as unfit for habitation and, at the same time, not subject to repair or reconstruction (clause 1 of part 2 of article 57 of the Housing Code of the Russian Federation).

Thus, we proceed from the fact that the citizen has the relevant documents (conclusion of an interdepartmental commission/court decision), according to which the residential premises are recognized as unfit for habitation and, at the same time, not subject to repair or reconstruction.

Taking into account the above, we will indicate an approximate plan (stages) of actions for obtaining residential premises.

5.1 . It is necessary to register as a person in need of improved housing conditions with the administration of the municipality in which the citizen lives.

5.1.1 . To implement the stage specified in clause 5.1. of this article, you must first obtain low-income status - Art. 49 Housing Code of the Russian Federation.

The necessity of the steps specified in paragraphs 5.1. and 5.1.1.

Providing residential premises under a social tenancy agreement out of turn in accordance with Art. 57 of the Housing Code of the Russian Federation (LC RF) is possible only if a citizen is recognized as low-income and in need of housing.

In other words, in order to provide residential premises under a social tenancy agreement from the municipal housing stock, the following conditions must be present: confirmation of the citizen’s right to use residential premises that have fallen into disrepair; recognition of a citizen as needing housing; recognition of a citizen as low-income.

This approach has also been established in judicial practice (see REVIEW OF JUDICIAL PRACTICE of the Supreme Court of the Chuvash Republic in civil cases for the 4th quarter of 2014 http://gov.cap.ru/SiteMap.aspx?gov_id=47&id=1812973).

The Constitutional Court of the Russian Federation makes similar conclusions.

For a number of cases provided for in Part 2 of Article 57 of this Code, including in the case of recognition of residential premises in the prescribed manner as unfit for habitation and not subject to repair and reconstruction, the legislator has provided for the possibility of providing citizens with residential premises under social tenancy agreements in an extraordinary manner, but with subject to compliance with the general requirements of housing legislation in relation to the provision of residential premises under social tenancy agreements and confirmation of the objective need for residential premises (Part 2 of Article 49, Part 1 of Article 52 of the Housing Code of the Russian Federation).

Such legislative regulation, as noted by the Constitutional Court of the Russian Federation in its Determination No. 376-O-P of March 5, 2009, is consistent with Article 40 (Part 3) of the Constitution of the Russian Federation, which obliges the state to provide additional guarantees of housing rights by providing housing for free or for an affordable fee from state, municipal and other housing funds in accordance with the norms established by law, not to anyone, but only to low-income people and other citizens specified in the law who need housing.

The above conclusions are contained in the Determination of the Constitutional Court of the Russian Federation dated September 29, 2016 N 2092-O.

It should be noted that a citizen does not need to go through the stages outlined in paragraphs 5.1 and 5.1.1 if he is registered as needing improved housing conditions before March 1, 2005.

Thus, according to paragraph 6 of the “Review of the practice of consideration by courts in 2013 - 2014 of cases on disputes related to ensuring the right of low-income citizens to be registered as those in need of residential premises provided under social tenancy agreements from the municipal housing stock” (approved by the Presidium Supreme Court of the Russian Federation on December 23, 2015) citizens who were registered as needing improved housing conditions before March 1, 2005 for the purpose of subsequently providing them with residential premises under social tenancy agreements cannot be deregistered due to the fact that they do not belong to to low-income citizens.

Consequently, such a citizen can directly proceed to the implementation of the stage specified in clause 5.2. of this article.

Implementation of the stage specified in clause 5.1.1.

According to Part 2 of Art. 49 of the Housing Code of the Russian Federation, low-income citizens recognized on the grounds established by this Code as needing residential premises provided under social tenancy agreements are provided with residential premises of the municipal housing stock under social tenancy agreements in the manner established by this Code. For the purposes of this Code, low-income citizens are citizens if they are recognized as such by a local government body in the manner established by the law of the relevant constituent entity of the Russian Federation, taking into account the income per family member and the value of property owned by family members and subject to taxation.

A citizen is recognized as low-income by the administration of the municipality in which he lives.

Citizens are recognized as low-income for the purpose of providing residential premises of the municipal housing stock under social tenancy agreements if the amount of income per each member of their family is insufficient to accumulate the funds necessary to purchase residential premises at the average market value of housing in a given municipality for a period of time , established by the local government.

Recognition of a citizen as low-income is carried out by a local government body on the basis of a personal application from the citizen, with the provision of information about the amount of income of the applicant and his family members, as well as a list of movable and immovable property subject to taxation and owned by the applicant and his family members.

To make a decision on recognizing a citizen as low-income, the local government body compares the amount of possible monetary savings of the applicant and his family members for a certain period of accumulation and the average market value of residential premises according to the norm for providing residential space under a social tenancy agreement.

With an application for recognition as low-income for the purpose of providing residential premises of the municipal housing stock under social tenancy agreements, they must submit following documents:

a) documents on family composition (certificate of marriage (divorce), birth certificates of children (minors), court and other decisions);

b) a copy of the apartment card (house management) or house register;

c) a copy of the financial personal account (house management - accounting);

d) title documents for residential premises occupied by the applicant and members of his family (copy of: warrant, registration certificate, ownership of residential premises or social tenancy agreement);

e) a certificate from the technical inventory and technical accounting authorities confirming the presence or absence of real estate property by the applicant and cohabiting family members;

f) a certificate of salary from the place of work for 12 months (personal income tax form-2), the amount of the pension received, scholarships and other documents confirming the amount of income of the applicant and his family members; for individual entrepreneurs - tax returns on income for the billing period ( one calendar year immediately preceding the month of filing the application) with a stamp of acceptance by the tax authority;

g) documents confirming the place of work (study) of the applicant and his family members (a certified copy of the work record book, a certificate from an educational institution, etc.), or a certificate from the employment center;

h) documents confirming information about the value of taxable movable and immovable property owned by the applicant and his family members;

i) a certificate from the traffic police department about the presence or absence of a vehicle from the applicant and his family members. If the applicant and/or his family members own a vehicle, provide the estimated value of this vehicle.

Implementation of the stage specified in clause 5.1.

To obtain housing under a social tenancy agreement, you must register as someone in need of improved housing conditions. Such records are maintained by the administration of the municipality in which the citizen lives.

At the same time, the Housing Code of the Russian Federation provides for a number of grounds, in the presence of which the administration is obliged to register a citizen as in need of improved housing conditions. These grounds are enshrined in Part 1 of Art. 51 Housing Code of the Russian Federation.

You can register according to one of those specified in Part 1 of Art. 51 of the Housing Code of the Russian Federation grounds.

It seems to us that the easiest way is to register as a person in need of residential premises in accordance with clause 2, part 1, art. 51 Housing Code of the Russian Federation.

To do this, you must first implement stage 5.1.1., i.e., obtain the status of a low-income person.

In addition, in order to register as a person in need of improved housing conditions in accordance with clause 2, part 1, art. 51 of the Housing Code of the Russian Federation, it is necessary that the total area of ​​residential premises (apartment) per one family member (registered/living in this residential premises) be less than the accounting norm.

In other words, if the total area of ​​the premises you occupy is divided by the number of citizens registered there, and this figure turns out to be less than the accounting norm (which is approved separately in each municipality), then you fall under clause 2 of part 1 of Art. 51 Housing Code of the Russian Federation.

However, it should be taken into account that if a citizen and (or) members of his family have several residential premises occupied under social tenancy agreements, rental agreements for residential premises of the housing stock for social use and (or) owned by them, determining the level of provision with the total living area premises is carried out based on the total total area of ​​​​all specified residential premises (Part 2 of Article 51 of the Housing Code of the Russian Federation).

It is important to note that when calculating the area per each family member living in an apartment, only the area of ​​suitable residential premises is taken into account.

At the same time, the accounting norm in each municipality is different and is established by local authorities.

Thus, to implement stage 5.1. it is necessary to obtain low-income status (based on the average per capita family income), and also submit documents to the administration (copies: certificate of ownership, BTI passport for the apartment, apartment card, documents on the unsuitability of the apartment for habitation) confirming that the total area of ​​the apartment, which per one family member living in it, less than the accounting norm.

Let us emphasize once again that when calculating the area per family member, the area of ​​unsuitable residential premises is not taken into account.

If a local government body refuses to recognize a citizen as needing improved housing conditions, this refusal must be appealed through a lawsuit (in accordance with the Civil Procedure Code of the Russian Federation) or a complaint about the actions of the administration to the prosecutor's office.

In Part 1 of Art. 51 of the Housing Code of the Russian Federation also indicates other cases when a citizen has the right to register as a person in need of improved housing conditions.

So, for example, according to clause 4, part 1, art. 51 of the Housing Code of the Russian Federation, a citizen will have the right to register, subject to the following conditions:

A citizen must suffer from one of the diseases specified in the list approved by Decree of the Government of the Russian Federation of June 16, 2006 No. 378,

Persons living in the residential premises must not have any other residential premises,

The living space must be occupied by several families (more than one).

Based on this, we emphasize once again that in most cases it is easiest to register as a person in need of residential premises in accordance with clause 2, part 1, art. 51 Residential Complex of the Russian Federation

5.2 . Next, you need to contact the administration of the municipality in which the citizen lives with an application for the provision of residential premises out of turn on the basis of paragraph 1 of part 2 of Article 57 of the Housing Code of the Russian Federation.

Implementation of the stage specified in clause 5.2.

The application to the authorized local government body must be accompanied by (copies):

a) certificate of ownership of the apartment (or other title document confirming the ownership of housing),

b) apartment card,

c) certificate from the technical inventory authority (BTI passport),

d) conclusion of an interdepartmental commission/court decision, according to which the residential premises are recognized as unfit for habitation and at the same time not subject to repair or reconstruction,

e) decision to recognize a person in need of improved housing conditions.

The period for consideration of the application is 30 days (Part 1, Article 12 of the Federal Law of May 2, 2006 No. 59-FZ “On the procedure for considering applications from citizens of the Russian Federation”)

Based on clause 1, part 2, art. 57 of the Housing Code of the Russian Federation, the administration is obliged to provide a citizen with residential premises out of turn.

We emphasize that residential premises are provided by the local government on the terms of a social rental agreement.

At the same time, the fact that a citizen was not registered as needing residential premises before the apartment was declared unfit for habitation and was registered only after the apartment was declared unsuitable does not exclude the possibility of providing residential premises in an extraordinary manner (Decision of the Constitutional Court of the Russian Federation dated 05.03. 2009 No. 376-O-P).

5.3 . In case of refusal to provide housing out of turn (or in case of inaction of the administration), the next stage begins, namely: appealing the refusal of the local administration to provide housing out of turn in accordance with the civil procedure code of the Russian Federation (a complaint to the prosecutor's office is also possible).

Implementation of the stage specified in clause 5.3.

It is necessary to submit a statement of claim to the court, which must comply with the requirements of Art. 131 and art. 132 Code of Civil Procedure of the Russian Federation.

The claim is filed in the district (city) court at the location of the local administration.

To recognize as illegal the refusal (of the authorized local government body) to provide, out of turn (to the plaintiff), comfortable residential premises under the terms of a social tenancy agreement,

Oblige (the authorized local government body) to immediately provide (the plaintiff) for a family of (number of people) comfortable residential premises under the terms of a social rental agreement in (where) with a total area of ​​at least (area, based on the provision norm).

In this case, the statement of claim must indicate:

Name of the court to which the application is filed;

The name of the person filing the complaint, his place of residence, as well as the name of the representative and his address, if the application is submitted by a representative;

Name of the defendant, his location;

What decisions, actions (inaction) should be recognized as illegal, what rights and freedoms of a person are violated by these decisions, actions (inaction);

The circumstances on which the claims are based and evidence supporting these circumstances;

List of documents attached to the application.

Copies of the following documents must be attached to the application (approximate list):

A copy of the statement of claim;

Power of attorney or other document certifying the authority of the applicant’s representative;

Information confirming the fact that the contested decisions were made, the commission of the contested actions or inactions;

Certificate of ownership of the apartment (or other title document confirming the ownership of housing);

Conclusion of the interdepartmental commission/court decision, according to which the residential premises are recognized as unfit for habitation and at the same time not subject to repair or reconstruction;

The decision to recognize someone in need of improved housing conditions;

Apartment card

Certificate from the technical inventory authority (BTI passport).

When filing a statement of claim in court, you must pay the state fee and the original receipt for its payment must be attached to the statement of claim.

When appealing the administration’s refusal to provide residential premises without a waiting list, the following legal positions should be taken into account:

The absence in the legislation of an indication of the period during which housing must be provided to citizens who have the right to receive it out of turn indicates that housing for this category of citizens must be provided immediately after the corresponding right arises - the right to receive housing out of turn, and not in any order (Decision of the Kemerovo Regional Court dated December 23, 2011 in case No. 33-14308).

Provisions of paragraph 1, part 2, art. 57 of the Housing Code of the Russian Federation do not make the right to priority provision of housing dependent on the presence or absence of other persons entitled to receive living space out of turn, on the provision of housing for other people on the waiting list, on the time of registration as those in need of improved housing conditions, on inclusion in list of citizens entitled to receive housing out of turn. Nor does it contain any instructions on the provision of housing in the order of priority for persons of equal categories.

In addition, the provisions of Part 2 of Article 57 of the Housing Code of the Russian Federation do not contain an indication of a specific period for the provision of residential premises to this category of citizens under a social tenancy agreement, who have the right to its extraordinary provision, and therefore the implementation of such a right must take place immediately after its occurrence ( Appeal ruling of the Tula Regional Court dated November 1, 2012 in case No. 33-2911).

The lack of adequate funding is not a basis for refusing a claim, since this violates the plaintiffs’ guaranteed right to priority provision of residential premises and prevents the implementation of this right (Appeal ruling of the Kemerovo Regional Court dated 10/09/2012 No. 33-9899 Appeal ruling of the Kirov Regional Court dated 15.03. 2012 in case No. 33-752).

A public authority does not have the right to refer to the lack of funds or other resources (such as housing) as a justification for non-execution of a court decision (ECHR Ruling of 15.01.2009 in the case “Burdov v. Russian Federation” (No. 2), complaint No. 33509 /04, § 70).

The federal legislator does not connect the possibility of recognizing a citizen as needing to obtain residential premises with the specific right under which he owns (or previously owned) residential premises, and therefore, within the meaning of the above provisions, both the tenant under a social tenancy agreement and the owner can be recognized as needy residential premises (Determination of the Constitutional Court of the Russian Federation dated March 5, 2009 No. 376-O-P “On the complaint of citizen Roman Vladimirovich Alekseev about the violation of his constitutional rights by paragraph 1 of part 2 of Article 57 of the Housing Code of the Russian Federation”).

5.4 . Execution of a court decision obliging a local government body to provide residential premises out of turn.

Implementation of the stage specified in clause 5.4.

If the court satisfies the claims, i.e. makes a decision obliging the administration to provide the citizen with residential premises, and such a decision enters into legal force, then it is necessary to obtain a writ of execution from the court of first instance (which made the decision on the merits) for the forced execution of the court order. act.

After receiving the writ of execution, you must present it to the bailiff service at the location of the local administration for enforcement.

The enforcement procedure is regulated by Federal Law dated October 2, 2007 No. 229-FZ “On Enforcement Proceedings”.

According to Part 1 of Art. 30 of the Federal Law “On Enforcement Proceedings”, the bailiff initiates enforcement proceedings on the basis of a writ of execution at the request of the claimant.

According to Part 7 of Art. 30 of the Federal Law “On Enforcement Proceedings”, the claimant’s application and the writ of execution are transferred to the bailiff within three days from the date of their receipt by the bailiff department.

According to Part 8 of Art. 30 of the Federal Law “On Enforcement Proceedings”, the bailiff, within three days from the date of receipt of the enforcement document, issues a resolution to initiate enforcement proceedings or to refuse to initiate enforcement proceedings.

Thus, the decision to initiate enforcement proceedings by the bailiff must be made 6 working days after the receipt of the claimant’s application and the writ of execution by the bailiff department.

Moreover, according to Part 11 of Art. 30 of the Federal Law “On Enforcement Proceedings”, the bailiff in the resolution on the initiation of enforcement proceedings establishes a period for the voluntary execution by the debtor of the requirements contained in the executive document and warns the debtor about the forced execution of these requirements after the expiration of the period for voluntary execution with the collection of an enforcement fee from him and expenses for carrying out enforcement actions.

According to Part 12 of Art. 30 of the Federal Law “On Enforcement Proceedings” the period for voluntary execution is five days from the date the debtor receives the resolution to initiate enforcement proceedings.

According to Part 1 of Art. 105 of the Federal Law “On Enforcement Proceedings”, in cases of failure by the debtor to fulfill the requirements contained in the executive document within the period established for voluntary execution, the bailiff issues a resolution to collect the enforcement fee and sets the debtor a new deadline for execution.

According to Part 2 of Art. 105 of the Federal Law “On Enforcement Proceedings”, if the debtor fails to fulfill the requirements contained in the executive document, without good reason, within the newly established period, the bailiff draws up a protocol on the administrative offense against the debtor in accordance with the Code of the Russian Federation on Administrative Offenses and sets a new deadline for execution.

Consequently, if the debtor (local administration) does not comply with the court decision within the period newly established by the bailiffs, then the citizen has the right to contact the appropriate unit of the bailiff service (or the prosecutor’s office) with a complaint about the local government body’s failure to comply with the judicial act.

Moreover, the current legislation provides for administrative and criminal liability for failure to comply with a court decision (Article 17.14 of the Code of Administrative Offenses of the Russian Federation, Article 315 of the Criminal Code of the Russian Federation).

This means that when appealing to bailiffs regarding the administration’s failure to comply with a court decision, it is permissible to ask that the perpetrators be held accountable as established by law.

5.4.1 . In some cases, a citizen will have to resist granting a deferment of execution of a court decision.

The administration of a municipality, in order to evade the execution of a court decision on the provision of residential premises, may apply to the court with applications to grant a deferment of the execution of the court decision.

In this case, it is necessary to submit a response to such a statement to the court, in which you oppose the granting of a deferment to the local administration of the execution of the court decision.

It should be emphasized that the court can grant a deferment of execution of a decision only if two necessary conditions are met: 1) the presence of exceptional circumstances that complicate its execution and prevent the execution of enforcement actions 2) the deferment of execution of a court decision must meet the requirement of fairness and should not upset the balance interests of the claimant and the debtor (i.e., when deciding on the issue of deferment and installment execution of a court decision, the court must take into account not only the interests of the debtor, but also the claimant).

At the same time, the lack of funding, the lack of targeted funds in the budget of the municipality does not apply to exceptional circumstances that complicate the execution of a court decision and/or prevent the performance of enforcement actions, which has been repeatedly confirmed in judicial practice.

Attention should be paid to the position of the European Court of Human Rights, according to which a state body does not have the right to refer to the lack of funds or other resources (such as housing) as a justification for non-execution of a court decision (ECHR Ruling of January 15, 2009 in the case of Burdov ) v. Russian Federation" (No. 2), complaint No. 33509/04, § 70).

The Appeal Determination of the Lipetsk Regional Court dated June 13, 2012 in case No. 33-1322a/2012 states that the lack of funds in the budget cannot be the basis for granting a deferment of execution of the decision.

The appeal ruling of the Novgorod Regional Court dated May 30, 2012 in case No. 2-737-33-811 also emphasizes that the difficult financial situation of the debtor, in itself, is not the basis for a long-term non-execution of a judicial act and thereby a violation of the rights of the claimant.

The Decree of the Orenburg Regional Court dated February 13, 2013 in case No. 33-1250/13 states that the lack of sufficient funds to purchase housing cannot be a basis for granting a deferment of execution of a decision, since, within the meaning of the law, when granting a deferment of execution of a court decision, the court must take into account not only the interests of the debtor, but also the claimant, since in this case the housing rights of the plaintiff are violated.

Thus, the lack of budgetary funds in the budget of a municipality is not an exceptional circumstance of an objective nature that prevents the execution of a judicial act.

Moreover, judicial practice emphasizes that since the reason for the plaintiff’s appeal to the court was the defendant’s failure to fulfill the obligation to provide residential premises in an extraordinary manner, delaying the execution of the court decision in such a situation will entail a further violation of the rights and legitimate interests of the plaintiff and her family members (Appeal ruling Lipetsk Regional Court dated June 13, 2012 in case No. 33-1322a/2012).

5.4.2 . In the event of a prolonged failure by the administration to comply with a court decision, a citizen may try to change the method of execution of the decision imposing on the local government body the obligation to provide residential premises.

If a court decision on the provision of residential premises is not implemented for a long time and if holding municipal officials accountable for failure to comply with a judicial act does not bring results, then it is possible to try to change the method of executing the decision imposing the obligation on the local government body to provide residential premises.

Thus, in paragraph 20 of the Review of judicial practice in civil cases of the Primorsky Regional Court for the second half of 2014 (approved at a meeting of the Presidium of the Primorsky Regional Court on 02.16.15 http://kraevoy.prm.sudrf.ru/modules.php?name= docum_sud&id=541) it was concluded that the law does not exclude the possibility of changing the method of execution of the decision to impose on the local government the obligation to provide residential premises on social rental terms.

In doing so, the court considered the following situation.

The ruling of the cassation court recognized as erroneous the position of the judicial panel for civil cases on the impossibility of changing the procedure and method of execution of the court decision, which entrusted the local government with the obligation to provide R.’s family with comfortable living quarters under a social tenancy agreement with a total area of ​​at least 36.5 sq.m. within the territory of the city of Partizansk. According to the appellate court, changing the method of executing the decision from providing the plaintiff’s family with an apartment on social rental terms to collecting the cost of the apartment will lead to a change in the legal relations of the parties and the substance of the judicial act.

Meanwhile, the purpose of the institution of changing the method and procedure for executing a decision is to ensure the enforceability of a court decision in the presence of circumstances that complicate its execution or indicate the impossibility of its execution in the manner specified in the court decision, which follows from Art. 434 Code of Civil Procedure of the Russian Federation. The court decision to impose on the local government body the obligation to provide citizens with housing on social rental terms is aimed at protecting the housing rights of citizens and pursues the goal of their implementation in kind. The difficulty or impossibility for a local government body to provide a claimant with residential premises cannot deprive citizens of the right to exercise the right to obtain residential premises secured by a court decision in another way - by collecting money from this body for the independent acquisition of residential premises to fulfill the court decision. The collection of funds from the defendant for these purposes in favor of citizens does not change the essence of his obligation to provide the citizen with residential premises under a social tenancy agreement. A different approach to resolving this issue will result in the unenforceability of the court decision, which deprives it of the significance of an act of justice and will lead to the illusory nature of the right to judicial protection, which is unacceptable.

In canceling the appeal ruling, the Presidium of the Regional Court pointed to a significant violation of Part 1. 1 and 2 tbsp. 6 of the Federal Constitutional Law “On the Judicial System of the Russian Federation”, Art. 2 of the International Covenant on Civil and Political Rights, as well as paragraph 1 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In the case, the decision of the Partizan City Court to satisfy the application was upheld.

To summarize all of the above, once again We will highlight the recommended steps for obtaining residential premises under the terms of a social tenancy agreement(subject to the presence of documents recognizing the residential premises owned by the citizen as unfit for habitation and not subject to repair or reconstruction):

A) Obtain low-income status (Part 2 of Article 49 of the RF Housing Code).

B) Register as a person in need of improved housing conditions with the municipal administration.

C) Contact the administration of that municipality with an application for the provision of residential premises out of turn on the basis of paragraph 1 of part 2 of Article 57 of the Housing Code of the Russian Federation.

D) Appeal the refusal of the local administration to provide residential premises out of turn in court (a complaint to the prosecutor's office is also possible).

D) Execution of a court decision obliging a local government body to provide residential premises out of turn.

6.1 . If a citizen lives in residential premises under a social tenancy agreement (which is confirmed directly by the social tenancy agreement or a warrant), then the procedure for obtaining residential premises to replace unsuitable ones will be generally the same.

However, in this case, when contacting the authorized local government body, it is necessary to submit not a certificate of ownership of the residential premises, but a social tenancy agreement (or warrant).

Moreover, if the conclusion of the interdepartmental commission indicates that the residential premises are unfit for habitation, but there is no clause about the impossibility of repair (reconstruction) or there is a clause about the need (possibility) of repair (reconstruction), then the citizen has the right to demand from the authorized local government body (landlord) ) carrying out repairs to residential premises.

So, according to Part 2 of Art. 65 of the Housing Code of the Russian Federation, the landlord of residential premises (local administration) under a social tenancy agreement is obliged to: take part in the proper maintenance and repair of common property in the apartment building in which the rented residential premises are located, as well as carry out major repairs of residential premises.

Thus, if the conclusion of the interdepartmental commission indicates that the residential premises are unsuitable for habitation, but there is no clause about the impossibility of repairing (reconstructing) the housing, then the citizen has the right to demand from the local government body (landlord) to carry out repairs (reconstruction) of the residential premises (residential building) .

If a citizen is not satisfied with just the repairs, and he wants to get a comfortable living space instead of an unsuitable one for living, then in this case he should appeal in court the conclusion of the interdepartmental commission, which does not contain a clause about the impossibility of repairing (reconstructing) the housing.

6.2 . If a citizen lives in residential premises under a social tenancy agreement, then another option can be proposed to avoid the stage specified in clause 5.1. and 5.1.1. of this article, based on the legal position expressed in the Ruling of the Supreme Court of the Russian Federation dated November 18, 2014 No. 81-KG14-16.

So, there is no need to register as someone in need of improved housing conditions, and there is also no need to obtain the status of a low-income person if a citizen-tenant of a residential premises applies to the administration of the municipality with an application for obtaining residential premises in connection with the need to move from a dilapidated house (Article 85 of the Housing Code of the Russian Federation), and not in connection with the improvement of living conditions in accordance with Part 1 of Article 57 of the Housing Code of the Russian Federation.

In other words, if the local government body has recognized the house as unsafe and subject to demolition, then the local government body is responsible for relocating the residents of the said house by providing them with comfortable housing of a similar size.

According to Art. 85 of the Housing Code of the Russian Federation, citizens are evicted from residential premises with the provision of other comfortable residential premises under social tenancy agreements if the residential premises are declared unsuitable for habitation.

According to Art. 86 of the Housing Code of the Russian Federation, if the house in which the residential premises are located, occupied under a social tenancy agreement, is subject to demolition, citizens evicted from it by the state authority or local government body that made the decision to demolish such a house are provided with other comfortable residential premises under social tenancy agreements.

According to Art. 87 of the Housing Code of the Russian Federation, if residential premises occupied under a social tenancy agreement are subject to transfer to non-residential premises or are recognized as unfit for habitation, citizens evicted from such residential premises by the landlord are provided with another comfortable residential premises under a social tenancy agreement.

To obtain housing in accordance with Article 85 of the RF Housing Code, the status of someone in need of improved housing conditions is not required (unlike obtaining housing under Article 57 of the RF Housing Code).

However, in accordance with Article 85 of the Housing Code of the Russian Federation, housing is provided in the same area that the citizen occupied previously (i.e., there is no improvement in living conditions).

And in order Art. 57 of the Housing Code of the Russian Federation, housing conditions are improved (for this, the status of those in need of improved housing conditions is necessary), since in this case housing is provided according to the standards for each family member.

At the same time, the Ruling of the Supreme Court of the Russian Federation dated November 18, 2014 No. 81-KG14-16 states that the provision of other residential premises to citizens in connection with the demolition of a house is of a compensatory nature and guarantees them living conditions that should not be worsened in comparison with the previous ones with the simultaneous improving living conditions from a safety point of view.

As stated above, the obligation to provide the plaintiffs with housing is assigned to the defendant due to the impossibility of living in a dilapidated house, and not in connection with the improvement of living conditions in accordance with Part 1 of Article 57 of the Housing Code of the Russian Federation.

Thus, if the house in which the residential premises occupied under a social tenancy agreement is located is subject to demolition, citizens evicted from it by a state authority or local government body that decided to demolish such a house are provided with other comfortable residential premises under social tenancy agreements ( Article 86 of the RF Housing Code).

Consequently, in this case, the citizen must contact the administration of the municipality with a statement indicating that the residential premises are in municipal ownership, are unsuitable for living, cannot be repaired (reconstructed), and therefore are in disrepair and are subject to demolition, and Residents are subject to relocation.

In connection with the impossibility of living in a dilapidated house and in connection with the need to relocate from such a house, it is necessary to demand the provision of another comfortable living space of equivalent size, and also require the inclusion of a dilapidated house in the targeted program for relocation from dilapidated buildings.

The refusal (inaction) of the local administration must be appealed in court (see paragraph 5.3 of this article).

Let us emphasize once again that the option of action set out in clause 6.2. of this article can be used if a citizen lives in a residential premises under a social tenancy agreement and if the specified residential premises are recognized as unsuitable for habitation and not subject to reconstruction/repair.

Bartov A.A. - Head of the legal clinic MOSI.