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Art. 36 LCD with comments. Ownership of common property of owners of premises in an apartment building

In Art. 36 LCD of the Russian Federation the list of the objects concerning to the general property of owners of the areas of an apartment house is established. Normally, the order of their use and disposal is determined. Let's consider this topic in detail.

Housing Code of the Russian Federation: Art. 36

The ownership of the common property of the apartment building belongs to the owners of apartments in this building. It includes:

  • Areas that are not included in the apartments and are used to serve more than one room in the house. These include staircases, inter-apartment areas, elevators, corridors, cellars, technical floors, attics in which engineering communications are present , and other equipment.

  • Other areas in the house that do not belong to individual owners and are intended to meet social needs. These include facilities for the organization of cultural development, leisure, children's creativity, sports and physical education and so on.
  • Roofs, enclosing structures, sanitary, electrical, mechanical and other equipment that is in the house.
  • The land, within which the building is located, with elements of landscaping, gardening and other objects. The boundaries of the allotment are determined in accordance with the requirements of the Land Code and the Town Planning Code.

The order of use and disposal

It is defined by point 2 of Art. 36 LCD of the Russian Federation. In accordance with the norm, the subjects that own the apartments in the house are in possession and use of common property, and also dispose of it within the limits determined by the Code. Reducing its size is allowed with the consent of all tenants through reconstruction. This provision is defined in paragraph 3 of Art. 36 LCD of the Russian Federation. General objects may be transferred to the use of other persons, if this does not infringe the interests and rights of legal entities and citizens. The decision on this is taken by the owners at the general meeting.

Land plot

The allotment on which the apartment house is located, in accordance with paragraph 5 of Art. 36 The LCD of the RF can not be burdened with limited use by other persons. In practice, it may be necessary to ensure that third-party subjects have access to facilities that existed before the date of the introduction of the Code.
In such cases Art. 36 ZhK RF does not allow a ban on the encumbrance of the site. A new restriction is established by an agreement between the person requesting it and the owners of the apartments in the house. Disputes concerning the encumbrance of the site, including its conditions, are resolved in court.

An Important Moment

In accordance with Art. 36 ZhK RF, with the destruction, accidental death, demolition of the apartment building, the owners of the premises retain their share of the site on which the building is located, with elements of improvement, green spaces, and other facilities intended for operation and maintenance of the house. They are determined in proportion to parts of the total property. Subjects can use, own and dispose of objects according to the rules established in the Civil Code.

Art. 36 LCD with comments

In this rule, relations relating to the ownership of common property in an apartment building, the premises of which belong to different entities, including public entities, are regulated. Issues related to this sphere are regulated in all structures of this type equally. In this case, the nature of the application of the rules does not depend on the number of owners of premises in the building, the presence / absence of the HOA or other organization.

Definitions

Key concepts are established in the Regulations. Paragraph 6 of this document provides for rules for recognizing premises that are inhabited, unfit for habitation, as well as an apartment building subject to demolition due to accidents. The regulation is approved by the governmental Decree No.47.
In accordance with this paragraph as a multi-apartment building is a set of 2 or more apartments with equipped separate outlets. This Regulation may apply to both the land plot that is adjacent to the structure and to the common use area. The building contains objects of common property of apartment owners in accordance with the legislation.

List of objects

It is advisable to consider Art. 36 LCD of the Russian Federation with comments from the Rules of the maintenance of property of an apartment house. They have a more complete list of objects. In accordance with the Rules for the property specified in Part 1 of Art. 36 LCDs of the RF include rooms that are not included in the apartments and are necessary for maintenance / general use. This category includes:

  • Elevators;
  • Corridors;
  • Elevator and other mines;
  • Stairs and inter-apartment areas;
  • Attics;
  • Wheelchair;
  • Technical floors (including those built at the expense of the owners), sites for the TS and garages, workshops and those. Cellars.

In these rooms, according to paragraph 1 of Art. 36 LCD RF, there must be engineering communications, other equipment, through which more than one non-residential / living space in the house is serviced. The latter, in particular, include elevators, boiler units, boiler rooms and so on.
The general property also includes:

  • Roofs.
  • Enclosing structures of the bearing type. Among them, among other things, foundations, walls, columns, slabs, balconies and so on.
  • Enclosures of non-bearing type. These include, in particular, the doors and windows of premises for common use, parapets, railings and so on.
  • Sanitary, mechanical, electrical and other equipment located in a house outside or inside the premises, through which more than one residential / non-residential area is serviced.
  • The site, within the boundaries of which the building is located, with elements of landscaping and greenery.
  • Other facilities used to provide operation, maintenance of the apartment building, including heat points, transformer substations, sports and children's playgrounds in the adjacent territory.

Additionally

The common property also includes engineering in-house hot and cold water supply systems, gas networks, including:

  • Stations and branches from them to the first switching equipment.
  • Collective metering devices.
  • The first shut-off and control valves on the outlets of the intra-apartment races.
  • Plumbing, electrical, mechanical and other equipment.

The general use is made by electric networks consisting of:

  • Wiring-distribution cabinets and devices.
  • Protective, control equipment, control devices.
  • Lighting installations in common areas.
  • Floor cabinets and flaps.
  • Collective accounting devices.
  • Installation of smoke removal systems, fire alarm systems, including internal water pipes, passenger and freight elevators.
  • Automatic locking of access doors.
  • Networks from the external border to individual meters.
  • Other electrical equipment.

Specificity of the use of the site

As part of the common property there is an allotment within which the house is located, with elements of landscaping and green plantations. Meanwhile, the boundaries of the plots may in some cases not be established. On the second point of Art. 36 housing and communal services of the RF, within which the structures included in the common property are located, as well as residential buildings and other buildings are provided in shared ownership on terms and in the manner prescribed by law.

In Art. 16 of the Introductory Normative Act stipulates that in the existing building the site on which the objects are located is the property of the owners of the apartments. The allotment with buildings, structures, structures, elements of landscaping and planting on it, formed before the introduction of the Housing and Communal Services into operation, and in respect of which the cadastral registration was carried out, is transferred to the shared property free of charge. If no boundaries are established, any apartment owner in the house can apply to the local authority structure with a statement about their determination.

Cadastre accounting

From the moment of entering an entry in the register, the land plot acquires the status of a real estate and is included in the total property. The allotment passes free of charge to the share ownership of the apartment owners from the moment of putting it into the cadastral register. The reconstructed or newly constructed houses are put into operation when forming the plots on which they are located. In this case, the allotment is immediately included in the common property. According to paragraph 7 of the governmental resolution No. 491, state and municipal authorities ensure that land plots are recorded without payment from apartment owners.

Encumbrances

The plots in the boundaries of which are multi-apartment buildings are used not only by the owners, but also by other persons. In this regard, fencing and building of the territory, impeding the passage / passage, may lead to violation of the interests of outside organizations and citizens. In such areas there may be green spaces, playgrounds, driveways, other objects that are used by an unlimited circle of subjects.
Territories may be burdened with servitude. Restrictions that existed before the introduction of the LC, do not stop with the transfer of ownership of the site. If they are established after the entry into force of the legislation, then their conditions are determined by agreement. It is between the owners of the premises of the house and the subject requiring encumbrance for the plot. In the event of failure to reach an agreement, the dispute is resolved in court.

Specificity of ownership

As follows from Art. 36 ZhK RF, shares of common property belong to the owners of apartments. In the structure of the house there are 2 parts. One is the property of public entities, citizens and organizations, the other is the common property belonging to the owners of apartments. The latter is indivisible. Owners of apartments do not own an attic, a basement, a plot and other objects, as well as equipment separately. They act as masters of all common property in the aggregate.

Changing the composition of objects

The common property of the house can not be alienated. It does not participate in the turnover as an independent object. Individual items of property are not subject to alienation. They do not act as independent objects of law. Some elements can be attached to the premises during reconstruction (Part 3, Article 36 of the RF Housing Code). For example, part of the attic can complement the living quarters. In this case, the area of the latter increases. When reconstructed in such a situation, a new object is formed. The apartment acquires a large area, and the size of the attic, respectively, decreases. Due to the fact that these actions affect the common property, the consent of the owners of other premises is required. Such cases are covered by art. 36, 44, 46 LCD of the Russian Federation. The last two norms establish the procedure for holding meetings of owners of premises. After obtaining consent from other owners of apartments it is possible to carry out the reconstruction.

Transfer of objects to third parties

It is also carried out under the rules of art. 36, 44 ZhK RF at the general meeting. The decision on issues is taken by the majority of the total number of persons participating in the meeting. Exceptions are cases specified in Section 1.1 of part two of Article 44. At the same time, it is necessary to take into account that not all objects, due to their functional characteristics, can be transferred to outside parties even for use. In particular, inter-apartment areas, elevators, corridors, plumbing, mechanical, electrical and other equipment and other parts, the provision of which to other entities will prevent the realization of the rights of apartment owners in the house, should be included among them.
Objects whose exploitation by third parties do not violate the interests of the owners of premises can be transferred to the latter for use. For example, it could be a basement. However, it can not be distinguished as an independent property object. Part of the property can not be assigned a cadastral number. Regarding it, you can not conduct state registration. This is due to the indivisibility of common property.

Financial security

Owners of the premises of an apartment building can form a special monetary fund (Article 36.1 of the RF LC). Means out of it are intended for capital repairs of common property. The money is transferred to a special account opened in a credit institution. This fund is formed from contributions of owners for capital repairs, penalties paid in connection with improper performance of duties for the transfer of mandatory amounts, as well as from interest accrued by the credit structure for the use of funds. Financial management can be transferred to the HOA or other service organization. At the same time, it should be noted that these funds have a designated purpose and can not be spent in other than prescribed directions.

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