New buildings with a closed courtyard. The prosecutor's office explains the installation of fences on the territory of apartment buildings. It’s worth knowing these landscaping standards

The prosecutor's office explains:

At the moment, the issue of restricting entry into the territory of apartment buildings has been brought under the control of the prosecutor's office due to the increasing number of cases of illegal installation of fences.

Many people install barriers without receiving official permission from the state fire inspection service, which is the main limiter in this matter.

In the event of an emergency (for example, a fire in a house) in an area illegally fenced with a barrier, special fire equipment will easily demolish the arrow on the route of the call, while residents will not receive compensation for the funds spent on installation (about 50 thousand rubles), since they acted without permission. And if a firefighter’s vehicle suffers body damage as a result of a ramming attack, then a claim may be filed against the initiators of the barrier installation for compensation for material damage.

According to Art. 36 of the Housing Code of the Russian Federation and Art. 16 of the Federal Law of December 29, 2004. No. 189-FZ “On the entry into force of the Housing Code of the Russian Federation”, the land plot on which an apartment building and other real estate objects included in such a building are located is the common shared property of the owners of the premises in the apartment building. The procedure for registering ownership of a land plot is established by paragraphs 2-5 of Art. 16 of the Federal Law of December 29, 2004. No. 189-FZ “On the implementation of the Housing Code of the Russian Federation.” The decision to form a land plot under the house is made by the owners of the premises at a general meeting. By decision of the general meeting of owners of premises in an apartment building, any person authorized by the said meeting has the right to apply to local government bodies with an application for the formation of the land plot on which the apartment building is located.

According to Art. 26 of the Land Code of the Russian Federation, ownership of a land plot is certified by documents in accordance with the Federal Law of July 21, 1997. No. 122-FZ “On state registration of rights to real estate and transactions with it.”

In accordance with clause 1.5 of the Traffic Rules, it is prohibited to

install road signs, traffic lights, and other traffic control devices (including barriers) that create

obstacles to movement. The installation of a barrier must be permitted by the city administration in agreement with the state fire inspection service, the State Traffic Safety Inspectorate, and the public utility service.

Entry into the local area of ​​vehicles of owners of premises in an apartment building and other persons is carried out in the manner established by the general meeting. This point must be included in the decision, as required by paragraph 6 of Moscow Government Resolution No. 428 “On the procedure for installing fences in local areas in the city of Moscow.”

The decision of the general meeting shall indicate information about the person authorized to represent the interests of the owners of premises in an apartment building on issues related to the installation of fencing devices.

According to Part 3 of Article 12 of the Moscow City Law “On Land Use in the City of Moscow” dated December 19, 2007 No. 48, the boundaries of land plots of apartment buildings are established on the basis of territory surveying projects. The decision to prepare territorial planning projects, including a land surveying project, is made by the Committee on Architecture and Urban Planning of the city of Moscow. The owners of premises in an apartment building have the right to own and use this land plot to the extent necessary for their operation of the apartment building, as well as the objects that are part of the common property in such a building.

In accordance with the resolution of the Moscow government dated November 2, 2012 No. 614-1111, issues of the release of land plots from illegally placed objects on them that are not capital construction projects, including illegally installed fences, are carried out by permanent District Commissions for the suppression of unauthorized construction. Based on the decision of the district commission, the prefecture of the administrative district takes measures for the demolition and dismantling of non-permanent objects (fences, barriers).

By virtue of clause 2, part 2, article 44 of the Housing Code of the Russian Federation, the competence of the general meeting of owners of premises in an apartment building includes: making decisions on the limits of use of the land plot on which the apartment building is located, including the introduction of restrictions on its use. According to Part 1 of Article 46 of the Housing Code of the Russian Federation, decisions of the general meeting of owners of premises in an apartment building on issues put to vote are adopted by a majority vote of the total number of votes of the owners of premises in an apartment building participating in this meeting, with the exception of those provided for in paragraphs 1 - 3.1 of the part. 2 of Article 44 of this Code of decisions that are adopted by a majority of at least two-thirds of the total number of votes of the owners of premises in an apartment building.

Thus, since installing a barrier in the courtyard of a house relates to the use of a land plot, including restricting the use of this site, the general meeting of owners of premises in an apartment building (meeting of HOA members) has the right to decide to install a barrier in the courtyard of the house. However, such a decision must not be made by a simple majority of votes, but at least two-thirds of the total number of votes of the owners must vote for it, that is, a qualified majority.

In accordance with Part 5 of Article 46 of the Housing Code of the Russian Federation, the decision of the general meeting of owners of premises in an apartment building, adopted in the manner established by this Code, on issues within the competence of such a meeting, is mandatory for all owners of premises in an apartment building, including those owners who did not participate in the voting.

If the decision is made on an issue within the competence of the general meeting, that is, to install a barrier in the courtyard of the house, and in compliance with the requirements provided for by the Housing Code of the Russian Federation, then it also applies to the owner who did not take part in the vote or voted against the decision to installing a barrier. Consequently, this owner is obliged to pay for the installation of a barrier in the courtyard of the house.

If a decision is made in violation of the requirements stipulated by the Housing Code of the Russian Federation, that is, adopted by a simple majority of votes and not a qualified one (at least two-thirds of the votes), the owner who voted against such a decision has the right to appeal it in court.

In the event that subsequently one of the owners of the premises in this apartment building sold the apartment, the new owner is not subject to the decision of the general meeting of owners of the apartment building (general meeting of HOA members) regarding the payment of funds used to install the barrier in the yard Houses. These costs must be borne by the previous owner. The new owner may only be obligated to pay for the production of keys to the barrier if the previous owner did not give them to him.

If the chairman of the house council (chairman of the HOA) refuses to hand over the keys to the barrier to the new owner, the new owner has the right to demand that the keys to the barrier be transferred to him in court on the basis of Article 304 of the Civil Code of the Russian Federation. In accordance with this article, the owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.

To summarize the above:

1. The first stage is a mandatory meeting of apartment owners, at which the issue of limiting entry into the yard by installing a barrier will be considered. If such a resolution is adopted by an overwhelming majority (preferably at least 70%) of the votes, then a protocol is drawn up. It is submitted to the relevant authorities.

If the local area is still communal property, a decision must be made on the formation of the site and its cadastral registration, and this requires the consent of all residents. But the decisions of full owners have great power.

2. A corresponding application, minutes of the meeting of tenants-owners and technical documentation, that is, a fencing project, are submitted to the municipal council of deputies. The council makes a decision no longer than a month (this is separately stipulated by law) and notifies the person who submitted the application about its decision no later than five days after the verdict is issued.

3. The decision will not necessarily be positive. A refusal, according to a government decree, can be obtained if round-the-clock unhindered passage and free movement of fire, gas, other emergency services and ambulance vehicles in the yard are not provided.

It is worth noting separately that barriers are dismantled if they interfere with territory improvement, construction (reconstruction) or major repairs carried out at the expense of the Moscow city budget. Dismantling will be announced in advance. In this case, the owners’ costs for the purchase and installation of the fencing device will be compensated. The amount of compensation is determined based on the independent assessment report.

According to Part 8 of Article 20.4 of the Code of the Russian Federation on Administrative Offenses: “8. Violation of fire safety requirements for the provision of passages, passages and entrances to buildings, structures and structures - entails the imposition of an administrative fine on citizens in the amount of one thousand five hundred to two thousand rubles; for officials - from seven thousand to ten thousand rubles; for legal entities - from one hundred twenty thousand to one hundred fifty thousand rubles.”

SNiP 2.07.01-89 states that “when designing driveways and pedestrian paths, it is necessary to ensure the passage of fire engines to residential and public buildings.”

According to the Code of Administrative Offenses of the City of Moscow (Article 6.5), liability is provided for restricting access to a free site. The maximum sanction for this violation in relation to legal entities is 20 thousand rubles.

Every year, in the courtyards of Moscow high-rise buildings, several hundred people fall under the wheels of cars. One of the solutions to the problem is the proper organization of the yard space. The portal site looked into which new buildings in the Moscow region have the safety of residents above all else.

There are three main approaches to organizing traffic on the territory of residential complexes:

Complete ban on car traffic
- partial ban or delimitation of traffic flows and pedestrian areas,
- movement without restrictions (most courtyards in residential areas of Moscow).

Each of these options is determined at the design stage of a residential complex, as it requires a certain zoning of the territory. The developer makes the appropriate decision; urban planning regulations do not regulate this issue. SNIPs only regulate the width of automobile passages, pedestrian sidewalks, and the distance of the roadway from buildings and infrastructure facilities. “Depending on the number of parking spaces provided, sanitary standards regulate the distance between the windows and organized parking, so it is impossible to legally completely occupy the yard with parking spaces,” explains Natalya Sahakyants, commercial director of the Rose Group.

“Regardless of the real estate segment, the developer is obliged to ensure safe living. Even at the design stage, it is necessary to provide for the creation of a comfortable environment and find a compromise solution between car owners and other residents."

Larisa Shvetsova, “River Park”

One of the trends in recent years has been the practice of erecting a stylobate part of the building, which becomes an area for pedestrians and cyclists. “In this way, cars remain within the parking lot without disturbing those walking along the landscaped podium,” says Anna Merkulova, General Director of Mosproekt-3 OJSC. Also today there are projects where parking is organized on the back side of the house, that is, in fact, there is no roadway in the yard, therefore, upon leaving the entrance, the child will immediately find himself in the yard and will be able to walk to the playground without risk. This is how the courtyard in the Yuzhny quarter is organized. In addition, the entrances in the buildings can have exits on two sides: the internal entrance is intended exclusively for everyday use by residents and opens into a “yard without cars”, and the second, external one, is aimed at situations when you need to use transport.

Recently, more and more so-called “yards without cars” have appeared, where passage through the courtyards is possible only for emergency services and is completely prohibited for residents, guests, etc. This method of organizing space obliges developers to build parking - above ground or underground, which leads to an increase in the cost per square meter. Accordingly, “courtyards without cars” were initially characteristic of luxury new buildings, then they penetrated into the business class, and today they are also found in comfort class projects. “The higher the class of housing, the more attentive the developer is to the details, including the safety and comfort of the residents’ stay in the yard,” says Igor Rozhkov, director of the technical customer department of Tekta Group.

According to Natalya Sahakyants, traditionally in the elite segment, transport logistics are thought out in more detail. As a rule, such projects provide underground parking, which immediately regulates the organization of traffic in the yard. However, recently there has been a more attentive approach to solving this aspect of improvement in comfort-class projects. “Due to the fact that objects in this segment often have large-scale construction, the problem of car storage becomes extremely urgent,” explains Natalya. “The idea of ​​a “yard without cars” is one of the solutions to this problem, which involves not only clearing the territory of cars, but also finding places to park them.”

But for the “economy” segment, an enclosed yard still remains more of an additional option than a standard practice. At the same time, as Elena Popova, head of the sector of architectural teams of the BRT RUS bureau (part of the Inteko Group of Companies), said, even in economy class projects, the entire territory of the complex can be closed, and entry is carried out using passes. The developer himself makes the decision to implement such a concept. Another question is whether future residents need this.

“There are very frequent examples when the developer initially planned a courtyard without cars, but in practice, after commissioning, residents still agree to open the courtyard for entry and parking, even if there are unsold spaces in the underground parking lot.”

Grigory Altukhov, FSK "Leader"

First Deputy General Director of the NDV-Real Estate company Yana Sosoreva believes that for the mass market, especially in the “economy” segment, the “yard without cars” concept is more difficult to implement, since it presupposes the presence of a sufficient number of underground parking, while how buyers of economy-class housing do not always plan such a purchase, preferring to park in the courtyards.

Of course, for most clients, the presence of such a concept in the project is not the main criterion when choosing future housing. According to Maria Litinetskaya, general director of the Metrium Group company, first of all, people pay attention to the purchase budget, location and transport accessibility of the property, and then they evaluate other characteristics. However, other things being equal, the choice is still made in favor of new buildings, where the concept of a “yard without cars” is implemented. For residents of the complex, this option ensures safety (especially for married couples with children), good ecology at the local level, and the absence of traffic jams, which usually form due to cars blocking each other.

Director of the Project Management of Sapsan Group of Companies Dmitry Ivanov is confident that in the coming years, developers, having assessed the positive experience, will begin to more confidently implement projects in which the courtyard is completely closed to motor vehicles, and the number of “yards without cars” will increase significantly.

“Restricting entry is the only clear solution to the problem today. The rest is just half measures. If you allow cars to enter the yard, then there will definitely be someone who will “rush” around the yard at speed, drive onto pedestrian paths, park the car on the lawn, and so on.”

Dmitry Ivanov, Sapsan Group of Companies

Considering that the essence of the concept of closed courtyards is to limit the movement of personal vehicles through the courtyard area, while maintaining the possibility for special equipment to enter, access control is ensured using a barrier. However, in addition to installing a barrier, residents need to hire a security guard who will be constantly present on site and clear the passage. Otherwise, the barrier will be illegal. As an option, you can simply indicate the concierge’s mobile phone number on the barrier.

By the way, parking or transit traffic in the yard can be prohibited not only by the will of the developer, but also by the will of the HOA or management company. To do this, it is necessary to hold a meeting of the owners of the premises of an apartment building, as a result of which 51% of the owners or more will vote for the installation of a barrier in the yard.

As Dmitry Panteleimonov, director of the marketing and sales department of Leader Group Group of Companies, said, there are few projects in the Moscow region that implement the “yard without cars” concept. As a rule, pedestrian paths and spaces for sports and recreation are planned everywhere, but courtyards are rarely completely closed to motorists. “To completely deprive car owners is, in my opinion, wrong. Everyone should be comfortable, especially considering the fact that most home buyers in the Moscow region have at least one car per family,” says Dmitry.

Indeed, where the yard cannot be completely closed for some reason, it is possible to clearly demarcate the roadway and pedestrian areas. For example, separate pedestrian paths from automobile paths with a hedge. This will protect passersby and give the entire complex a fresher look due to more greenery, which is not only aesthetically pleasing to the eye, but also reduces the negative effect of harmful automobile exhaust.

The Mosproekt-3 company succeeded in positioning the buildings in such a way that pedestrian and traffic flows do not intersect in their project in the village of Severny on Dmitrovskoye Shosse. The successful concept of planting residential buildings has formed two closed circuits, which are connected by a pedestrian alley, a kindergarten and sports grounds, while car traffic is allowed on the territory. “We deliberately moved all parking spaces closer to roads and highways, provided indoor multi-level parking, and distributed all parking spaces along the outer contour of the development. And the courtyard was left without cars,” explains Anna Merkulova.

In the Central Residential Complex “New Vatutinki” microdistrict, the developer also clearly delineated pedestrian zones and car parking zones. Therefore, despite the fact that motorists leave vehicles in the yard, parents do not have to worry about their child getting hit by a car. “In the future, we may also restrict entry into the courtyards. However, there is no such need for now. And to prevent cars from parking on playgrounds, as often happens, we installed special fences,” says Alexander Zubets, General Director of New Vatutinki LLC.

In the UP-quarter “Western Kuntsevo”, not the entire territory, but only the central boulevard, has been made free of traffic, but since it runs through the entire complex, there is enough space for a calm and safe holiday for everyone - both children and adults. Alternating with each other, the boulevard has children's and sports grounds, recreation areas for adults, and separate sections of bicycle paths.

In the Shuvalovsky residential complex, part of the territory is freed from cars: the parking lot is located underground, and above it there is a boulevard where residents of the complex can walk. Each building also has its own indoor courtyard with children's and sports grounds, while the entire territory of the complex is open to cars.

In the Dominion residential complex, the courtyards are also closed from cars. But the complex itself is completely fenced, and only residents can drive inside it.

General Director of the Domus Finance company, Evgeniy Sandler, advises that in order to find the “golden mean”, projects should include parking spaces within walking distance, design the roadway along the outside of the houses, place children’s playgrounds in the inner part of the yard, clearly define the zoning of active recreation and relaxation areas .

What is a local area, who owns it and how is privatization carried out?

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What features of such a site should residents of multi-apartment and private sites know? What landscaping work is required and who is required to carry it out?

We will answer these and other questions based on the standards relevant in 2019. The composition and area of ​​the adjacent plot are determined by developers when designing the house.

But, as practice shows, instead of public gardens or sports grounds, shopping centers are often built or parking spaces are equipped.

Let's figure out whether apartment owners have any rights, and can they lay claim to this territory?

What to do if there is no place for children to play, no benches to rest, and no place to park a vehicle? What does the law say about this?

General points

Let's define what a local area is and why it is allocated.

After all, if the developers have not created a site for construction, the building will be considered unauthorized and subject to demolition ().

What it is

The adjacent territory of apartment buildings is the land plot adjacent to the house.

Persons who live in a house as an owner must maintain the local area in accordance with.

The adjacent territory is allocated for the construction of a house on it. Land is alienated by economic entities in accordance with.

In the future, citizens can raise the issue of privatization of the site or. The territory is inseparable from the house; it cannot be legally autonomous without construction.

What is its purpose

All owners of apartments and private houses should be aware of the role of the local area. You need to understand who is responsible for its improvement and cleaning.

Subjects can establish their own regulations, but based on the general formula for calculating the territory.

The following documents are also relevant:

1. Regulations according to SNiP.
2. SanPiN of the Russian Federation.

What is considered the local area of ​​an apartment building?

All multi-storey residential buildings are documented to be connected to the land where they are located (this also applies to the land that is nearby). Plots are registered and assigned a cadastral number.

The local area is considered to be:

• ground under the building;
• elements of arrangement and landscaping;
• sports and children's playground;
• car parking;
• fire passage;
• boiler room;
• transformer substation;
• other infrastructure facilities.

How to find out your boundaries

How many meters from the house is considered the property of the residents? Some are sure that the local area should be 3-6 meters.

The boundaries of the site and its area are written in.

This information is open - anyone can review it on the Rossreestr website by entering the minimum data.

According to the general formula, the area of ​​the plot cannot be less than the area of ​​the apartment building. When determining the size of the local area, the following are taken into account:

• area of ​​the site allocated for construction;
• number of floors of the house;
• density of houses on the street;
• number of roads, etc.

Taking into account the recorded parameters, a cost estimate will be drawn up. What are needed when maintaining a site.

If the site is not officially assigned to an apartment building. Then cleaning and beautification falls on the shoulders of the local administration.

The following land surveying principles are adhered to:

Who does it belong to?

The land plot on which the building, built before 2005, stands, was alienated to residents free of charge during privatization. There was no need to obtain permission from a government official.

A later acquisition may be of the following type:

If an accident occurs, the judge will order the company that maintains the territory to pay damages.

What is meant by site maintenance? — Providing repairs to structures and buildings located in the local area.

It is also worth remembering that apartment owners do not have the right to restrict access to the building adjacent to the maintenance specialist.

Is privatization possible?

What methods of privatization are available today? — You can create a condominium association and document the transfer of ownership of the site.

A condominium association is a legal entity, a non-profit company, that is created by residents to manage the house.

This way you can improve the quality of housing and communal services and the proper use of common property.

The transfer of real estate into the ownership of condominiums is carried out as follows:

You will not be able to take back your territory, regardless of which authority you contact, unless you privatize the site.

If the residents are the rightful owners of the land around the house, then no one will build anything on the site without their permission.

If the land is registered as a property, it will be assigned to citizens in equal shares, but taking into account the occupied area.

Benefits of having owner rights:

1. After privatization, clear boundaries of the territory will be established, and the price of cleaning and landscaping can be adjusted.
2. You can arrange the area as you wish.
3. It will also be clear where the funds paid each month go.
4. There will be an opportunity to prevent the construction of some kind of building.
5. It is possible to prohibit the entry of cars of strangers, except for specialized ones - ambulance, fire, etc.

The land plot becomes the property free of charge. Disadvantages of privatization:

1. You'll have to pay.
2. On the site, citizens have the right to place only a children's playground, a sports ground, and a garage section for disabled residents.
3. Repair of objects in the local area is carried out at the expense of citizens.

landscaping

It is worth knowing the following landscaping standards:

1. Waste containers are installed.
2. They remove garbage and snow and ensure drainage of rainwater.
3. Painting and repairing fences and benches.
4. A recreation area and a children's playground are being built and renovated.
5. They are doing landscaping.
6. Provide safe accommodation.

Works also include:

• uprooting trees;
• garbage collection;
• arrangement of lawns, flower beds;
• application of fertilizer;
• making a fence.

Thanks to landscaping, you can give the site an aesthetic appearance. Often developers do not pay due attention to such events.

Leaving only mountains of construction waste on the territory. Landscaping is represented by a complex of works.

Aimed at giving the land a properly well-groomed appearance. The work is not planned by the owners or specialists of the management company.

Any landscaping work can begin after the area has been cleared of debris.

Trees that are already growing on the site cannot be cut down unless there is a special permit. If planting is carried out, choose trees that will not litter the area.

Female species of mulberries and poplars are not planted. Planned work is being carried out to eliminate and prevent pests.

When selecting plants, weather conditions are taken into account:

• if there are severe frosts in winter, you should choose frost-resistant trees;
• It is desirable that the plants are drought resistant.

Soil moisture, topography and composition are taken into account. Developers must carry out yard landscaping work only if this is provided for in the agreement.

Landscaping can be:

• on roofs;
• vertical;
• near the house.

The surface may have the following type of coating:

• hard or soft;
• lawn;
• combined type.

Install:

• steps;
• ramp;
• stairs;
• side stones.

When landscaping, it is important to consider whether there is access to water. The developer must take care of the water supply and residents are required to carry out timely repair work.

It is important to plant trees and place fences so that they do not interfere with the need for repairs.

If the landscaping is vertical, create a drainage system. It is worth taking care of lighting and other amenities. The fence can be made of brick, mesh, concrete, wood.

Decorations can be plants. Small fences are separating - they divide the territory into zones. For example, they protect the gazebo from the garden.

Asphalting

When considering the question of what is included in the maintenance of the local area of ​​an apartment building, you should not lose attention to the road surface.

Part of the local area must have a hard surface. It could be:

• concrete;
• asphalt.

They lay new asphalt or repair the old one. The work is carried out according to orders from utility workers or residents of the house.

Road work can be carried out by a specialized company employing qualified personnel.

Asphalting involves carrying out a set of works that are carried out after all documents have been agreed upon with customers.

The complexity of the coatings will depend on the category of the site. The work is carried out using various materials and technologies.

Specialized company:

• will remove the old layer of asphalt;
• prepare the surface;
• will lay a new layer;
• will remove debris after completion of work.

If the company has a good reputation, you can count on receiving a guarantee. In order for asphalt to last for a long time, high-quality materials must be used.

After installation, the seams must be treated with a special emulsion that has a bitumen base.

When drawing up an agreement with the company to which the work is entrusted, it is worth stipulating exactly what stages will be carried out.

Installation of a barrier

Often the recreation area near houses in the city center turns into parking for other people's cars, especially near markets.

As a result, residents face additional inconveniences. If the roads are through, you are guaranteed additional problems.

The air will be smoky. The streets near such houses are noisy. There are oil stains on the road surface. And children can get run over by a car.

In addition, residents have nowhere to park their vehicles. Is the situation familiar? There is a solution to this problem - install a barrier at the entrance to the yard.

Video: local area - a way to earn money or protection from invasion

Let's consider the legal nuances of installing the structure. You can simply make a decision at a general meeting, but this is not enough.

It is necessary to adhere to the conditions prescribed by law. The first thing that is required is to be the owner of a plot near an apartment building.

Once the BTI site has been completed and registered, the owners have the right to landscape the area to their liking.

This means that it will be possible to install a barrier without coordinating such actions with representatives of the traffic police and the Ministry of Emergency Situations.

If the traffic police make claims, they can be appealed in court. What to do with the Ministry of Emergency Situations? Just don’t impede the free access of specialists.

The nuances of installing a barrier in the local area and the ease of its use:

Regarding a private house

We have identified what features of the local area of ​​an apartment building. But what about property owners in the private sector? Let's consider the nuances.

How many meters according to the law

In legislative documents there is no such thing as the local area of ​​a private house. This expression usually means a plot of land that is necessary for the owner of the property for housekeeping and maintenance.

Such plots can be rented, as well as be a citizen, be in homeless use.

A fence is installed at the boundaries of the site. Lands that have a fence in the form of a fence are considered no man's land with municipal ownership.

Citizens who can justify the need for its use have the right to use the site.

For example, the territory is needed to ensure that the car leaves the garage. But the municipal site must not be closed off for use by others.

The area of ​​the adjacent plot of an apartment building is determined by a specific formula. But it does not apply to private buildings.

Limits are not established by law. The size of the territory will depend on how much land is privatized.

You can focus on the following conditions for determining the area of ​​a plot in the private sector:

A certificate of state registration of the land plot is provided to the authorized body. The answer will be given within a month.

Emerging nuances

Citizens have the right to declare that improvement is necessary if the site is the property of the municipality.

The improvement will be free of charge or carried out at the expense of residents or a sponsor. The administrative body has the right to carry out landscaping, but is not obliged.

It is important to take into account the interests of all residents during privatization. Often young families have children, transportation, and therefore think about meeting their needs.

But it is also important to take into account the needs of the elderly category of citizens who need to provide a place to walk.

It also happens, on the contrary, that the needs of children are not taken into account - the improvement is organized in such a way that children have nowhere to frolic. All rights holders must consider the needs of all families.

If space is being used unlawfully, it is worth raising the issue at a general meeting. Sometimes the case is also considered in court.

If new residents move in, they can make their proposal for the use of the territory. But they cannot make a claim regarding the way the site is used.

It is worth paying tax on the adjacent territory that is used by residents, if it is not rented and is subleased. In this situation, the landlord pays the tax.

If the land is privatized, the tax is paid by the residents of the apartment building. The amount of the tax payment is determined taking into account the cadastral value of the site, established by the appraiser.

According to the traffic police, the number of cars in Russia over the past 10 years has increased by more than 65% and exceeded 55 million. Thus, the problem of lack of parking spaces is becoming more and more acute. Quite often, not having the opportunity to park near an office, shopping center or even their own home, motorists leave their cars in the courtyards of neighboring houses. Wanting to protect their yard from uninvited guests, owners increasingly began to install barriers that restrict access to the territory of an apartment building.

In some cases, residents even agree on a special procedure for the entry and exit of cars, introducing various requirements and restrictions. But does the HOA have the right to block the barrier so that the owner who violates this order cannot get into the yard? The Supreme Court of the Russian Federation answered this question.

The crux of the matter

On June 9, 2013, at a general meeting, the owners of residential premises in an apartment building managed by HOA "N" decided to install automatic barriers with remote control and approve the Procedure for using the land plot. For example, the right to enter the territory of the house was granted exclusively to the owners (using personal vehicles). At the same time, the owner of the remote control for the barrier was prohibited from using it to enter other cars into the yard. Control over the entry of third-party vehicles into the territory was given to the dispatcher - entry into the yard was possible only with prior agreement with him. Blocking of an electronic device was provided as a sanction for violating this order.

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P., being the owner of an apartment in the said building, rented it out to other persons and, accordingly, gave them the barrier control panel. But since the tenants were not the owners of the premises, the HOA considered that the procedure for using the land plot approved by the general meeting had been violated, and blocked these remote controls.

On March 10, 2016, P. turned to the HOA, demanding to provide him with a remote control for the barrier, but was refused. He was offered to enter the yard by calling the dispatcher in advance. P. considered this decision to be a clear violation of his rights, since free access to his house was closed to him and parking of his car in the yard was limited. He regarded all this as the creation by the HOA of obstacles that prevented him from using and disposing of the property that belonged to him.

Court positions

As a result, P. filed a lawsuit demanding that the HOA be obliged to produce and hand over to him two working remote controls for the barrier and. However, the district court rejected the claim (decision of the Moskovsky District Court of St. Petersburg dated August 25, 2016 in case No. 2-5679/2016). The court recognized the HOA's position as justified, noting that the reason for blocking the remote controls was the use of the local area by persons who are not the owners of the apartments, which violated the procedure for using the land plot approved by the general meeting. Moreover, the court added, the decision of the general meeting of owners, which approved this procedure, was not declared invalid, and therefore is subject to application and is binding on all owners, including P.

He appealed this decision, but the appeal supported the position of the trial court ().

P. did not agree with this outcome of the case and therefore decided to file a cassation appeal with the Supreme Court of the Russian Federation, and it found grounds for canceling the acts of the lower courts (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 14, 2017 No. 78-KG17-80) .

The court recalled that the owners of premises in an apartment building own, by right of common shared ownership, common property, including the land plot on which the house is located, with elements of landscaping and landscaping, as well as other items intended for the maintenance, operation and improvement of the house and objects located on the specified land plot (,).

Thus, the RF Armed Forces explained, blocking the barrier control panels and, therefore, prohibiting P. from entering the local area is illegal. The HOA's decision violates the rights and legitimate interests of the plaintiff as the owner of the apartment to have unhindered access to the common property, as well as to park his car at any time of the day in any free space in the local area.

The court also drew attention to the fact that the current legislation does not provide for the possibility of blocking the owner’s access to the local area on the basis of a decision of the general meeting of owners as a sanction for violating the established procedure for using the land plot. The fact that the procedure approved by the general meeting of owners was not declared invalid is not an absolute basis for its application, the Supreme Court of the Russian Federation emphasized.

According to the cassation, the lower courts should have been guided by the rule according to which the court, having determined when resolving a civil case that a normative legal act does not correspond to a normative legal act that has greater legal force, must apply the norms of the act that has the greatest legal force (). This rule, the Court pointed out, applies not only to regulatory legal acts adopted by public authorities, but also to local regulatory acts, such as the Procedure for the Use of Land Plots approved by the general meeting of owners.

Taking this into account, the RF Supreme Court canceled the appealed acts and sent the case for a new trial.

Expert opinion

In the case considered, it was a violation of the rights of the owner. What about the tenants - does the HOA have the right to restrict their entry into the yard? And is it possible not to allow clients of companies located on the first floors of a residential building into the territory? The GARANT.RU portal asked these questions to experts and found out their opinion.

OPINION

Ivan Shevelkov, General Director of the Legal Center "Highest Instance":

“If the owner of a residential premises transfers part of his rights under a lease agreement, the tenant also receives the right to use the adjacent territory, which includes parking (,). Restricting the tenant’s right to use it will be illegal.

Regarding parking rights for clients of legal entities located on the first floors of residential buildings, it is worth noting the following. Any occupation of a parking space by persons who are not property owners, whose local area is used as parking, must be done with the consent of the home owners or not at all, since most often the number of such parking spaces is significantly limited."

OPINION

Alina Dmitrieva, legal consultant at My Family Lawyer:

“When deciding on parking on the territory of an apartment building by third parties, it is necessary to be guided by the provisions established by the general meeting of owners of premises in an apartment building. If a rental agreement for residential premises is concluded, then the persons specified in the agreement have the right to receive electronic keys to the barrier and enter the territory If the general meeting did not make a decision on the entry of third parties into the yard, then it is necessary to challenge the blocking of the remote control handed over by the owner of the apartment in a pre-trial manner.

It is important to note that if a legal entity receives clients at a registered address, then residents of an apartment building can only be prohibited from entering the territory of the building through a judicial procedure, since a legal entity that legally owns the premises has the same rights as apartment owners."

OPINION

Yuri Avanesov, leading lawyer of the European Legal Service:

“Often, apartment owners, for a fee or without it, transfer their barrier control panels to third parties so that they can use their parking spaces. Such actions are illegal, since the land plot belongs to the common property of the owners of premises in an apartment building, and, therefore, a decision is required for this general meeting ( , ).

In relation to parking for clients of companies located in the building, it is important to note that the owners do not have the right, by a general meeting, to prevent the owner or another person who legally owns non-residential premises from using the site, but they have the right not to allow third-party vehicles onto the site.”

OPINION

Konstantin Orlov, founder of the Domskaner online system:

“In order to legally restrict entry into the yard, the owners of an apartment building must, at a general meeting, decide on the Procedure for entering the territory. As a rule, this Procedure is prescribed in the general Regulations on the use of the local area. Accordingly, after the adoption of such a document, the owners receive remote controls for the barrier . To whom they will transfer them further (tenants, those who work in an office near the house), remains on the conscience of the owners themselves. The HOA has the right to block some remote controls if people start selling their parking spaces. Therefore, we recommend that owners indicate in the Entry Procedure "on the territory that no one has the right to entrust remote controls and transfer them to third parties. If such a document was not specifically adopted at a general meeting of residents, it is illegal to prohibit parking for clients of legal entities (beauty salons, veterinary clinics, etc.)."

OPINION

Andrey Komissarov, head of the Komissarov and Partners bar association:

“The parking space itself cannot be a separate object of civil rights and, therefore, the subject of sale. The exception is cases when parts of buildings or structures (parking spaces) intended to accommodate vehicles are described in the manner established by the legislation on state cadastral registration Thus, the transfer of control panels to third parties must be qualified as an actual action necessary for the provision of a part of the common property for use, and cannot be limited by the HOA in the absence of abuse of rights on the part of the authorized person.

Prohibiting parking in the yard for clients of legal entities is possible by making an appropriate decision by the owners of an apartment building, provided that these clients occupy an area of ​​common property that is disproportionate to the share in the common property right, which creates an obstacle for other owners to use the property or otherwise violates their rights and legitimate interests. Residents have the right to resort to self-defense of their rights if they believe that their rights are being violated by the legal entity’s clients, but only if the self-defense is consistent with the method and nature of the violation.”

Those territories that are located in close proximity to apartment buildings represent property that belongs to all residents of this building at the same time.

But this article also says that some kind of act stating that this is the case should not be issued. Thus, the current legislation tells citizens that they can do whatever they want with this land, but within certain limits.

Another basis for ownership of this territory can be. It clearly states that such land plots and other immovable objects that are part of the house automatically become common property.

All residents of the house have rights to it. And decisions on any actions with it must be made by all residents by voting. It should accommodate the majority of residents living in the house.

Thus, based on all the provisions of the current legislation that were given above, we can confidently say that fencing the adjacent territory of an apartment building should be done.

How to fence the local area of ​​an apartment building?

As mentioned above, such a decision must be made by a certain meeting, which must consist of the vast majority of people living in a given house. At such a council, clear decisions must be made on how much land will be fenced off and what type of fencing will be installed.

The biggest controversy in such a situation usually arises around the cost of all work. The collection of funds also falls on the shoulders of the residents of the house.

Often, not all people want to invest in such projects and many of them do not even show up at meetings. This is why problems usually arise with raising money.

Usually, the required amount is divided equally between all residents, after which a collection is made. Many citizens will not want to give away their honestly earned money until they see a specific plan for how all the fencing work will be completed.

Such a plan should be drawn up under the full control of the residents' meeting to avoid problems in the future. But to directly draw up such a document, it is better to hire a specialist and include the cost of his services in the total amount that will be required to complete all the work.

Next, you need to coordinate the construction of the fence with some government services that such a construction may interfere with. This can be done by bringing a plan that was developed by the residents to a representative of each of the services listed below.

If approval is received, then the construction is considered legal. In addition, you need to ask each representative to sign and seal. This will serve as proof that the plan has been seen and approved.

If the case comes to court, then you can avoid a lot of problems if you have a plan in your hands, certified by the signature and seal of each service.

Types of barriers

The installation of barriers in the adjacent areas of an apartment building is divided into:

1. For structures that provide a complete ban on access to the territory.
2. For various structures that can provide a partial ban on access to the local area.
3. Structures that may block access to some part of the territory. This type of fencing is called target fencing.

Coordination

After preparation, the plan for all work must be agreed upon with such services as:

1. Ministry of Emergency Situations, namely with the local administration of this service.
2. The police represented by the leadership of the local department.
3. With the ambulance service that operates in the area.
4. With architectural and construction type inspection.

Important. All these services must carefully study the plan and then put their stamp and signature. Thus, they will show that they do not object to the construction of something like this.

If residents do not take this condition seriously and do not coordinate their actions with the above services, then one of them in the future may be offended and file a lawsuit in court.

If the residents fail to prove that the work was coordinated, then the judge will undoubtedly side with the plaintiff and decide to liquidate all previously completed work. In other words, everything that was built will be automatically demolished by court decision, and the money that was collected from the tenant will be thrown away.

As a result, we can conclude that no one prohibits residents from fencing the territory themselves and all their actions will be absolutely legal if they adhere to a certain procedure, which is prescribed above.

The services mentioned above can go to court not only because they are offended.

The fact is that they also have their own responsibilities and in order for them to be able to fulfill them fully in a fenced area, approval is required.

How to deal with illegal fencing?

If the fences of the courtyard area of ​​an apartment building were installed inconsistently, then this action is considered illegal. They are fighting this kind of thing very actively, and to deal with this kind of disgrace you need to:

To draw up an application, it is better to use the services of professionals, since legal literacy must be observed.

Conclusion

If you want to protect your apartment building from uninvited guests, then it is better to immediately comply with all the formalities, of which there are not many.

This will avoid many problems that may arise in the future.