Guidelines for the execution of court decisions on the demolition of unauthorized buildings. Execution of a court decision on the demolition of an illegally erected building
Hello Tatiana!
The bailiff-executor, upon receipt of an executive document on the demolition of an unauthorized building, is obliged to perform the following actions:
3. Organization of execution of a court decision on the demolition of an unauthorized structure
3.1. According to Art. 30 of the Law, the bailiff initiates enforcement proceedings on the basis of a writ of execution at the request of the claimant or his representative, if the deadline for the submission of the executive document for execution has not expired and this document complies with the requirements provided for in Art. 13 of the Law.
3.2. When the execution of a judicial act is imposed on a representative of the government, a civil servant, a municipal employee, as well as an employee of a state or municipal institution, a commercial or other organization, the bailiff warns these persons about criminal liability under Art. 315 of the Criminal Code of the Russian Federation, for non-execution of a judicial act, as well as obstruction of its execution.
If there are signs of corpus delicti under Art. 315 of the Criminal Code of the Russian Federation, the bailiff draws up a report on the detection of signs of corpus delicti, which is registered in the manner prescribed by order of the Ministry of Justice of Russia dated 02.05.2006 No. 139.
3.3. Simultaneously with the initiation of enforcement proceedings, the bailiff takes measures aimed at prohibiting the commission of registration actions both in relation to the structure to be demolished and the land plot on which it is located.
3.4. After the expiry of the period for voluntary execution, the bailiff-executor shall exit at the place of execution of the enforcement actions to establish the fact of execution or non-performance by the debtor of the requirements of the enforcement document.
3.5. In case of non-fulfillment by the debtor of the requirements contained in the court order, within the period established for voluntary execution, as well as non-fulfillment by him of the court order, subject to immediate execution, within 24 hours from the date of receipt of a copy of the court ruling bailiff to initiate enforcement proceedings bailiff issues a resolution on the collection of the performance fee, sets a new deadline for the debtor for performance and warns him that after the specified time period, compulsory execution will be carried out.
In addition, the bailiff-executor draws up and submits to the materials of enforcement proceedings a plan-diagram of the land plot on which the objects to be demolished are located, indicating the number of entrances / entrances to the specified land plot, other objects located within its boundaries, as well as photographs of the subject demolition of objects.
After issuing a decision on the collection of the enforcement fee, the bailiff-executor checks the property status of the debtor, including in order to establish the possibility of collecting from him in the future administrative fines and costs of enforcement actions.
At the same time, bringing the debtor to administrative responsibility is carried out after the bailiff-executor makes a decision to collect the performance fee, regardless of its actual collection.
In addition, the bailiff-executor sends a letter to the claimant with a proposal to apply to the court with a statement on the execution of the judgment on his own in the manner of Art. 206 Code of Civil Procedure of the Russian Federation.
3.6. If the debtor has not complied with the requirements contained in the writ of execution, without good reason within the newly established deadline, the bailiff draws up a protocol on an administrative offense, taking into account the requirements of Art. 28.2 of the Administrative Code of the Russian Federation.
The bailiff-executor has the right each time to establish a reasonable time for the debtor to fulfill the demolition requirements contained in the executive document, and if the debtor fails to fulfill these requirements without good reason, draw up a protocol on each administrative offense under Art. 17.15 of the Administrative Code of the Russian Federation, and transfer it for consideration to the officials of the FSSP of Russia, specified in Art. 23.68 Administrative Code of the Russian Federation.
In the event of prolonged non-execution by the debtor of the court decision, it is recommended that the bailiff-executor revise downward the deadline for fulfilling the requirements of the executive document and more actively apply administrative measures to the debtor.
3.7. If the debtor in the enforcement proceedings is a citizen, the bailiff-executor shall issue a resolution on a temporary restriction on the debtor's departure from the Russian Federation.
If the debtor in the enforcement proceedings is a legal entity, the bailiff-executor in the presence of an unpaid enforcement fee or imposed earlier in accordance with Art. 17.15 of the Code of Administrative Offenses of the Russian Federation of a fine has the right to apply to the court with an application for a temporary restriction on leaving the Russian Federation for an official of the debtor.
3.8. The bailiff applies all measures aimed at fulfilling the requirements of a non-property nature contained in the executive document, in accordance with Art. 105 of the Law.
If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff, who, after checking the materials of the enforcement proceedings, addresses with a memorandum addressed to the head of the relevant territorial body, in which he sets out the essence of the requirements of the executive document of a non-property nature, and also, in chronological order, describes the actions taken to fulfill the requirements of the executive document.
The allocation of funds to pay the costs of performing enforcement actions to comply with non-property requirements, including the demolition of unauthorized buildings and / or the development of design estimates, is carried out in accordance with the letter of the FSSP of Russia dated January 31, 2011 No. 12 / 08-1872 -VM, which, among other things, established requirements for design and estimate documentation.
Thus, I recommend that you familiarize yourself with the materials of the enforcement proceedings for the presence / absence of the above actions, which the bailiff was obliged to carry out from the moment he received the enforcement document. If executed, you will receive information on the progress of enforcement actions in enforcement proceedings. If they are absent, you have grounds for filing demands for the actions (inaction) of the bailiff in court by filing an administrative claim and / or a complaint in the order of subordination (to a higher official).
Request: On challenging the decision of the bailiff-executor on the recovery of costs for the performance of enforcement actions.Sections:
;
Circumstances: The applicant believed that the cost of the demolition work carried out in the disputed structure was overstated, and the act of acceptance of the work performed was not true.
We draw your attention to the fact that this decision could be appealed in a higher court and canceled
OMSK REGIONAL COURT
Presiding: Loseva T.The.
The Judicial Collegium for Administrative Cases of the Omsk Regional Court composed of:
presiding over N.F. Latyshenko,
judges of the regional court Ivolgina N.V., Starostina G.G.,
under secretary M.,
considered at the hearing on May 27, 2015 the case on the appeal of O.Yu.V., the representative of the Federal Bailiff Service of Russia in the Omsk Region E., against the decision of the Pervomayskiy District Court of Omsk dated February 2, 2015, by which the decision of the bailiff-executor of the PCB on Sovetskiy AO of the city of Omsk UFFSP of Russia in the Omsk region<...>from<...>... on the recovery of expenses for the execution of enforcement actions for enforcement proceedings N<...>with G.N. in favor of O.Yu.V. in total<...>rubles was declared illegal.
After hearing the report of the judge of the regional court Latyshenko N.F., the judicial board
Installed:
G.N. applied to the court with a statement on the recognition of illegal the decision of the bailiff-executor of the PCB in the Soviet AO of the city of Omsk of the Federal Federal Security Service of Russia in the Omsk region to recover the costs of enforcement actions.
In support of the claims, she pointed out that the contested decision from<...>year issued within the framework of enforcement proceedings N<...>, instituted against her, the subject of execution is the demolition of an unauthorized building in the form of a capital construction object - the second floor and the attic, built over an apartment building located at:<...>, by bringing the house in this part to its original condition.
<...>of the year from the employees of the OSB for the CAO of the city of Omsk, the Federal Bailiff Service of the Russian Federation for the Omsk Region received a local estimate for the amount<...>rubles, which is a calculation of work on the demolition of the second floor and the attic, built on over an apartment building located at the specified address, without performing work to bring the house to its original state. At the same time, the document did not have an indication of the number, date, performer of this calculation and the person, until now has not been approved, a second estimate for bringing the building to its original state has not been drawn up.
Since she could not voluntarily fulfill the requirements of the executive document, the employees of the PCB in the CAO of the city of Omsk of the Federal Bailiff Service of the Russian Federation in the Omsk Region carried out its enforcement by offering the recoverer to fulfill the requirements of the executive document on their own and at their own expense, followed by the collection of costs from the debtor. Subsequently, a work contract was concluded between the claimant and the contractor, a local estimate was drawn up, approved by the Siberian Center for Pricing in Construction, Industry and Energy CJSC.<...>year to the bailiff-executor, the recoverer provided an act of acceptance of the work performed and an act of transfer of funds in the amount of<...>rubles as confirmation of the actually incurred costs associated with the fulfillment of these requirements.
I thought the cost of the work performed on the demolition of the building was overstated, and the act of acceptance of the work performed from<...>year does not correspond to reality, since as of<...>for a year the demolition work was not carried out.
In addition, she pointed out that as of the day of filing this application, the opportunity to familiarize himself with the documents specified in the contested decision, and to take copies of OSB from them in the CAO of the city of Omsk, was not provided by the FSSP RF for the Omsk region.
Based on the foregoing, I requested the resolution of the SPI OSB for the CAO of the city of Omsk of the UFSSP RF for the Omsk region<...>from<...>year of recovery from G.N. costs of enforcement actions in the amount<...>rubles to be declared illegal and canceled.
Applicant G.N. did not participate in the hearing.
Representative G.N. - U. in the court session upheld the statement. The court explained that the estimate presented in the materials of enforcement proceedings should be assessed critically, since the incorrect calculation of the demolition of the capital structure was applied, the amount of work for the demolition of the structure was incorrectly determined, the volume of work and labor costs were overestimated. The demolition of the structure is calculated for twenty days, while the actual demolition was carried out in four days. The debtor ordered a new local estimate calculation, as a result, the cost of the work turned out to be much lower.
Representative G.N. - G.G. supported the above arguments.
Deputy Head of the Department of the Bailiffs Service for the Northern Administrative District of the city of Omsk, UFSSP for the Omsk Region<...>pointed out the groundlessness of the stated requirements, asked to refuse them. He pointed out that the scope of work was checked by the customer, the estimate was approved by a specialized organization.
Representative of the UFSSP for the Omsk region<...>did not agree with the statement. She explained to the court that the bailiff had no reason to doubt the local estimate presented by the claimant. The construction was a capital structure, the scope of work was determined according to the project. Indicated that the debtor missed the deadline for appealing the decision from<...>of the year.
Recoverer O.Yew.The. did not take part in the hearing.
Representatives O.Yu.V. - J., O. L. at the hearing they did not agree with the arguments of the statement, they indicated that the decision made by the bailiff-executor was lawful and well-grounded.
Interested party<...>the court explained that the scope of work was determined on the basis of the project documentation, which was provided by the customer O.Yew.The.
Representative of CJSC "Siberian Pricing Center in Construction, Industry and Energy"<...>in the previous court session, she explained that the initial estimate was drawn up without project documentation on the basis of the volume and type of work indicated<...>When contacting<...>year G.G., having revealed that earlier the estimate for these works had already been carried out, they requested design documentation in accordance with which they made a local estimate.
The court ruled the above decision.
The appeal and additions to it O.Yew.The. asks the court to cancel the decision, to accept a new one. Indicates that the court did not give an assessment of the estimate presented by him, prepared by the Siberian Center for Pricing in Construction, Industry and Energy CJSC, according to which the volume of construction work is<...>cub. m. With the presented estimate G.N. he does not agree, believes that the court unreasonably established the volume of construction work in the amount of<...>cub. m, it is not established on the basis of which project documentation the estimate presented by it was drawn up, the testimony of a specialist was not taken into account<...>Also not taken into account is the long period of non-execution by the defendant of the court decision, incurring costs associated with the trial and the execution of the court decision. Believes that the cancellation of the contested decision by the court without resolving the issue of the cost of work will entail the emergence of a new dispute.
Representative of the Federal Bailiff Service of Russia in the Omsk Region<...>asks the court to cancel the decision, to accept a new one. Indicates that the amount of the expenses incurred by the recoverer aimed at organizing and carrying out enforcement actions related to the performance of work on the demolition of the unauthorized building has not been documented by the debtor, as well as the fact that the work on the execution of the court decision by the debtor has not been performed. Believes that the cited by G.N. the arguments do not constitute a legal basis for the recognition of the decision on the recovery of expenses for the performance of enforcement actions not complying with the provisions of the Federal Law "On Enforcement Proceedings". Indicates that no proper and indisputable evidence of the violation of the debtor's rights by the contested decision, as well as the existence of a real opportunity to execute the court decision on its own, has not been presented.
In the response to the appeal, G.N. considers the decision to be lawful and justified, and the appeals not subject to satisfaction, also supports the arguments set out earlier.
The persons participating in the case are duly notified of the time and place of the consideration of the case on appeal (l.d.<...>).
G.N., her representative G.G., representative O.Yu.B. - O.L., representative of the UFSSP in the Omsk region<...>took part in the hearing. Other participants in the process did not appear at the hearing, the court did not inform the court about the reasons for failure to appear, and therefore, the judicial board, guided by part 3 of Article 167, part 1 of Article 327 of the Code of Civil Procedure of the Russian Federation, considered it possible to consider the case in their absence.
Having checked the materials of the case, having discussed the arguments of the complaint, having heard the indicated persons, the judicial board finds no grounds for canceling the contested judgment.
In accordance with Part 2 of Article 105 of the Federal Law "On Enforcement Proceedings", if the debtor fails to comply with the requirements contained in the enforcement document, without good reason, within the newly established period, the bailiff draws up a protocol on an administrative offense against the debtor in accordance with the Code of the Russian Federation on Administrative offenses and sets a new deadline for enforcement. If the participation of the debtor is not necessary for the fulfillment of these requirements, then the bailiff will organize the execution in accordance with the rights granted to him by this Federal Law.
At the same time, clause 7 of part 3 of Art. 68 of the Federal Law "On Enforcement Proceedings" provides for the possibility of the bailiff-executor of enforcement measures, namely the commission on behalf and at the expense of the debtor of the action specified in the enforcement document, if this action can be performed without the personal participation of the debtor.
As established by the court and follows from the materials of the case,<...>year on the basis of a writ of execution N<...>from<...> <...>in relation to G.N. enforcement proceedings were initiated N<...>, the subject of execution is to oblige G.N. independently or at their own expense, carry out the demolition of an unauthorized building in the form of a capital construction object - the second floor and the attic, built on over an apartment building located at:<...>, by bringing the house in this part to its original state (l.d.<...>).
Based on the materials of the case, G.N. no measures were taken to demolish this building on their own and at their own expense (l.d.<...>), which was also not contested by the parties in the case.<...>from<...>year recoverer O.Yew.The. in connection with his consent, it was instructed to carry out the demolition of the indicated unauthorized building with the subsequent reimbursement of the money spent from the debtor (l.d.<...>).
Based on the materials of the case, the demolition of an unauthorized building in the form of a capital construction object - the second floor and the attic, built on over an apartment building located at:<...>on<...>year was carried out (l.d.<...>).
In support of the costs incurred in connection with the performance of demolition work, O.Yu.V. the bailiff-executor was presented with a local estimate, approved by CJSC "Siberian Center for Pricing in Construction, Industry and Energy"<...>years in the amount<...>rubles (l.d.<...>), local estimate, approved by LLC PSF "Zhilstroyservis" in the amount of<...>rubles (l.d.<...>), the act of acceptance of works from<...>year, signed between O.Yew.The. and<...>for the amount<...>rubles, the act of acceptance and transfer of funds from<...>year (l.d.<...>).
<...>year bailiff-executor of the PCB in the Soviet AO of the city of Omsk of the Federal Bailiff Service of Russia in the Omsk Region<...>a decision was made to recover from G.N. costs of enforcement actions in the amount<...>rubles, in particular, on the basis of an act of acceptance of work performed and an act of transfer of funds (l.d.<...>).
Pointing to the overestimation of the costs indicated in the recoverer's calculation, G.N. went to court.
In accordance with Part 1, Clause 6, Part 2, Art. 116 of the Federal Law "On Enforcement Proceedings", the costs of performing enforcement actions are the funds of the federal budget, the claimant and other persons participating in the enforcement proceedings, spent on organizing and carrying out enforcement actions and the application of enforcement measures.
The expenses for the execution of enforcement actions include the funds spent on the performance of the necessary actions in the process of executing the enforcement document.
By virtue of paragraphs 1 and 3 of Article 117 of the said law, the expenses for the performance of enforcement actions are reimbursed to the federal budget, the claimant and the persons who incurred these expenses at the expense of the debtor. The collection from the debtor of expenses for the performance of enforcement actions, their attribution to the account of the federal budget in the cases provided for by this Federal Law, as well as reimbursement of expenses to the person who incurred them, are made on the basis of a resolution of the bailiff, approved by the senior bailiff or his deputy.
Satisfying the applicant's claims, the first-instance court rightly proceeded from the fact that O.Yew.V. an estimate of reliable costs for the demolition of an unauthorized building in the form of a capital construction object - the second floor and the attic, built on over an apartment building located at:<...>, does not confirm.
The local estimate compiled by CJSC "Siberian Center for Pricing in Construction, Industry and Energy" presented in the case file in the amount of<...>rubles (l.d.<...>) was unreasonable, since, based on the explanations of the head of the estimated pricing department of ZAO Siberian Center for Pricing in Construction, Industry and Energy, attracted as a specialist<...>, who signed the specified estimate, it follows that the estimate was drawn up without submitting the design and technical documentation of the object to be demolished, as well as a study of the volume of work performed. Only the calculations of the cost of work, funds for labor remuneration and labor intensity were subject to verification based solely on the ones provided by the customer<...>information (l.d.<...>).
The debtor presented a local estimate from<...>year of CJSC "Siberian Pricing Center in Construction, Industry and Energy" in the amount of<...>ruble (l.d.<...>), as follows from the explanations<...>, the estimate was drawn up on the basis of project documentation, which explains the difference in the cost of work.
Thus, given that the amount incurred by O.Yew.The. the costs of demolishing the unauthorized building did not have sufficient confirmation, the court correctly recognized the decision of the bailiff-executor from<...>years on the recovery of costs of enforcement actions from the debtor in the amount of<...>rubles ruled illegally.
Discrepancies in the form of a residential - non-residential building, as indicated by the representative of O.Yu.V., the Federal Bailiff Service of Russia in the Omsk Region, in any case, about the reliability of the estimate for the amount<...>, as well as estimates for the amount<...>rubles exceeding the estimate from<...>years four times does not testify.
Furthermore, in accordance with Art. 61 of the Federal Law "On Enforcement Proceedings", the bailiff-executor, as a person who does not have special knowledge, provides for the opportunity, on his own initiative, to involve a specialist (specialists) in enforcement proceedings in order to obtain qualified assistance in resolving issues requiring special knowledge, in particular for assessment of the scope of work on the demolition of the object and the costs incurred by the recoverer.
Meanwhile, the bailiff did not use this right, in connection with which the recoverer O.Yew.M. the documents were accepted without a corresponding check and assessment of the information reflected in them.
The argument of the complaint O.Yew.The. that the court, when making the decision, took into account the local estimate provided by G.N., is not taken into account by the judicial board, since this document was accepted by the court only as one of the evidence in the case when recognizing the decision of the bailiff from<...>year to recover the costs of enforcement actions from the debtor unlawful.
The indication of complaints about the length of time the defendant failed to comply with the court decision, the costs incurred by the recoverer related to the trial and the execution of the court decision, does not have legal significance in the framework of the case under consideration.
Proceeding from the subject of the dispute and the stated requirements, the court of first instance had no grounds to raise the issue of conducting an examination, as well as attracting a specialist, as indicated in the complaint by O.Yu.V. The results of the examination of the volume and cost of the work performed, the need for which was pointed out by O.Yu.V., in the case under consideration, did not have legal significance for resolving the issue of whether the contested decision of the bailiff-executor was illegal, since the said decision was based on an unconfirmed report on the costs of fulfilling the requirements of the executive document, which predetermined its illegality.
The judicial board notes that the recognition of the decision of the bailiff-executor from<...>year on recovering the costs of enforcement actions from the debtor illegal is not an obstacle for the recoverer to reimburse the debtor in the future for the costs incurred by him in the implementation of the court decision.
At the same time, a bailiff who does not have the necessary special knowledge to evaluate such a report is obliged to involve a specialist in the enforcement proceedings, which is permitted by law and is aimed at protecting the rights and legitimate interests of the parties to the enforcement proceedings.
Regarding the arguments of the representative of the Federal Bailiff Service of Russia in the Omsk region about the passage of G.N. the deadline for filing an application with the court challenging the decision of the bailiff-executor from<...>of the year, a copy of which she received<...>years, while the application was filed with the court<...>years, and the incorrect application by the court of Part 2 of Article 15 of the Federal Law "On Enforcement Proceedings", the judicial board agrees with them.
Part 2 of Article 15 of the Federal Law "On Enforcement Proceedings", according to which the terms are calculated in years, months and days. The terms calculated in days do not include non-working days, regulates the calculation of time limits in enforcement proceedings, and not procedural time limits for filing an application with the court or in the order of subordination.
At the same time, the court correctly took into account that the bailiff-executor did not provide the opportunity for G.N. in obtaining copies of documents that served as the basis for the issuance of the contested decision of the bailiff, which in essence was a valid reason for missing the deadline.
References of the representative of the Federal Bailiff Service of Russia in the Omsk Region to the fact that G.N. the copies of documents requested by her did not interfere with going to court, and then getting acquainted with the documents and, if necessary, clarifying the requirements, they are not recognized as sound. According to the general rules established by clauses 4, 5 h. 2, Art. 131 of the Code of Civil Procedure of the Russian Federation, the statement of claim must indicate what is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his claims, as well as the circumstances on which the plaintiff bases his claims, and the evidence confirming these circumstances. The postponement of the procedure for obtaining copies of documents in court, given that the bailiff is obliged to provide the debtor with an opportunity to familiarize himself with them and make copies does not meet the requirements of civil proceedings, creates objective obstacles to the exercise of the right to appeal to court.
Under the aforementioned circumstances, the panel of judges sees no grounds for interfering with the contested court decision on the grounds of the complaints.
The case was considered by the court in compliance with the norms of procedural law, all the evidence presented, the objections of the persons participating in the case, their explanations in accordance with Art. 67 of the Code of Civil Procedure of the Russian Federation was given a proper assessment.
Violations or incorrect application by the court of the norms of substantive or procedural law, which could lead to the adoption of an incorrect judicial act, the judicial board does not see.
Guided by Art. Art. 328, 329 Code of Civil Procedure of the Russian Federation, judicial board
Motivated
solution manufactured on 08/17/2015
IN THE NAME OF THE RUSSIAN FEDERATION
08/13/2015 Sysertskiy District Court of the Sverdlovsk Region, composed of the presiding judge M.V. Torichnaya, with the participation of the applicant's representative Z.Ya., the interested person D., with the secretary T., having examined civil case no. 2-1272 / 2015 in open court at the request of Z. on the recognition of the inaction of the bailiff-executor of the Sysertsky district department of the Office of the Federal Bailiffs Service in the Sverdlovsk Region illegal,
INSTALLED:
Z. appealed to the court with a statement recognizing the inaction of the bailiff of the Sysertsky district department of the Office of the Federal Bailiffs Service in the Sverdlovsk Region as illegal, indicating that the bailiff was the bailiff of the Sysertsky District Department of Bailiffs of the UFSSP for the Sverdlovsk Region B., on the basis of a writ of execution on case No. 40817810604900317040, issued by the Sysertskiy District Court, DD.MM.YYYY, enforcement proceedings No. 40817810604900317040 were initiated to remove obstacles to the use of the land plot located at the following address: regarding D. (hereinafter referred to as the "Debtor") in favor of Z. (hereinafter referred to as text - "Applicant").
At the time of filing the complaint, the execution within the framework of this proceeding had not been carried out, the obstacles to the use of the land plot by demolishing the unauthorized building of the annex to the store "" by the "Debtor" were not removed. The bailiff-executor does not provide the "Applicant" with information about the progress of measures carried out within the framework of enforcement proceedings.
Three years have passed since the initiation of the enforcement proceedings, but the execution has not yet been carried out.
In the event of a prolonged non-execution by the debtor of the court decision, the bailiff is recommended to revise downward the term for fulfilling the requirements of the executive document and to more actively apply administrative measures to the debtor.
According to clause 3.8. of the specified Letter, if the debtor in the enforcement proceedings is a citizen, the bailiff-executor shall issue a resolution on a temporary restriction on the debtor's departure from the Russian Federation.
According to clause 3.9. of the said Letter, the bailiff applies all measures aimed at fulfilling the requirements of a non-property nature contained in the executive document, in accordance with Art. (as amended on 02.12.2019)> "> (with amendments and additions, entered into force on 01.01.2020)> Chapter 13. Fulfillment of non-property requirements contained in executive documents> Article 105. General conditions for the fulfillment of those contained in executive documents requirements for the debtor to perform certain actions (refrain from performing certain actions) "target =" _blank "> 105 Federal Law" On enforcement proceedings ".
According to clause 3.10 of the said Letter, in order to forcibly demolish a structure, building or structure or their individual structures, the bailiff has the right to involve the relevant specialized organization in accordance with the provisions of the Federal Law "On Enforcement Proceedings".
If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff about this, who, after checking the materials of the enforcement proceedings and establishing the fact of the application in full of enforcement measures in accordance with the provisions of Art. 105 of the Law applies to a memorandum addressed to the head of the relevant territorial body, which sets out the essence of the requirements of the executive document of a non-property nature, and also in chronological order describes the actions taken to fulfill the requirements of the executive document.
The involvement of an appropriate specialized organization for the fulfillment of these requirements at the expense of the federal budget is carried out in accordance with the provisions of the Federal Law of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" and an indication of the FSSP Russia from 31.01.2011 N 12 / 08-1872-VM.
In accordance with clause 4.5. Letters, compulsory execution of the requirement for the demolition of an unauthorizedly erected structure, building or structure or their individual structures, is carried out with the participation of attesting witnesses (if necessary, with the assistance of officers of the internal affairs bodies) with the preparation of an appropriate act on the demolition of a structure, building or structure or their individual structures and inventory of property in accordance with the provisions of Art. 107 of the Law.
Thus, since the measures taken within the framework of the enforcement proceedings were ineffective and did not lead to the independent demolition of the building by the debtor, the bailiff had to involve a specialized organization to carry out the forced demolition of the unauthorized building.
It should be noted that the compulsory execution of the executive document by the "Applicant" independently with the subsequent recovery of expenses from the "Debtor" can be carried out only if the claimant makes such a decision, on the basis of information obtained within the framework of enforcement proceedings, indicating the financial situation of the "Debtor" ", Which will ensure further recovery from him of the costs of the demolition of the unauthorized building (clause 4.1. Of the above Letter).
In our case, the "Applicant" did not make a decision on the independent demolition of the unauthorized building with the subsequent attribution of expenses to the "Debtor", which means that the bailiff must take measures within the framework of enforcement proceedings aimed at the execution of the executive document by the "Debtor" and the elimination of obstacles to the use of land site up to its execution.
In addition, the "Claimant" assumes that the use of the subject to be demolished continues.
According to clause 6.1. of the specified Letter, in case of establishing the fact of operation of the object of capital construction to be demolished, the bailiff-executor draws up an act on the performance of enforcement actions, in which he indicates these circumstances, and also hands over the persons operating the object to be demolished with the requirements to terminate these actions.
In the event of re-establishment of the fact of operation of the object to be demolished by the same persons, the bailiff-executor takes measures to bring them to administrative responsibility in accordance with Art. ... Administrative Code of the Russian Federation.
Thus, the "Applicant" believes that the bailiff-executor did not take the necessary actions aimed at the execution of the writ of execution, namely the demolition of the unauthorizedly erected annex, which creates obstacles to the use of the land plot located at the address: No. 40817810604900317040 within three years from the moment of initiation enforcement proceedings.
He asked to declare illegal the inaction of the bailiff-executive of the Sysertsky district department of bailiffs of the Office of the Federal Service of Bailiffs in the Sverdlovsk Region on enforcement proceedings No. 40817810604900317040 initiated on August 29, 2012; oblige the Sysertsky district department of bailiffs of the Office of the Federal Bailiffs Service in the Sverdlovsk Region to provide a full report on the measures taken during the enforcement proceedings.
Applicant Z. did not appear at the hearing. Sent his representative to the court.
At the hearing the applicant's representative Z. Ya. Supported the stated requirements in full, additionally explained to the court that the decision had not yet been executed, which violated the rights of the plaintiff.
Interested person D. at the hearing objected to the stated requirements, explained that the bailiff had done a lot of actions, just an unenforceable decision was made. The bailiffs repeatedly went to the site and were convinced that the technical decision would not be fulfilled.
He submitted a response to the court, indicating that the bailiffs have objective reasons that prevent the execution of the decision of the Sysert District Court from DD.MM.YYYY g.
One part of the reasons is organizational and technical. The construction of the building does not allow to demolish its part at a distance of 1 meter from the border of the land plot, as required by a court decision. Dismantling the load-bearing wall will cause the destruction of the entire building. In the city, such an action will be equal to a terrorist act. In addition to other dangers, there is a real likelihood of destruction of infrastructure facilities in the immediate vicinity of the building. These are power transmission lines, gas pipelines, communication lines. Among the communication lines there is one of federal significance, which is supervised by the FSB.
By provoking the bailiffs to action, Z. pushes them to commit a great misfortune. Declaring the need to involve a specialized organization, he, through ignorance or consciously, creates a picture of the simplicity of the execution of the court decision. There are no such specialized organizations. The participation of several organizations is required. Design, including. The role of the city authorities, where Z. intends to commit a destructive process, is not indicated in any way.
Another reason is legal. The court decision indicated to demolish part of the unauthorized building, determined by the annex. My building cannot be defined by an unauthorized building. Legal order was observed during its construction. Registration rules are also followed. This is confirmed by a certificate of state registration of ownership of the said building, issued to the interested person by Rosreestr on the basis of documents certifying compliance with the legal order.
Indicates that the building has no structures that can be identified by an annex. structurally, the building is an integral two-level structure.
Everything indicated is known to Z. He admits the impossibility of enforcing the judgment. His repeated statements, including in the Sysert District Court, are corroborating facts.
Z.'s claims to the bailiffs are groundless. It is impossible to determine the failure to perform the impossible by inaction. Impossible, within the framework of law and technical potential. The procedure for the execution of court proceedings was observed strictly in accordance with the law.
The bailiff - the executor did not appear at the hearing. The reason for the failure to appear is not known. The time and place of the hearing were duly notified.
Taking into account the opinions of the persons participating in the case, and on the basis of Art. Of the Civil Procedure Code of the Russian Federation, the court decided to consider the case with this attendance.
After listening to the explanations of the applicant's representative, the interested person, having examined the case materials, the court comes to the following.
According to Art. Of the Civil Procedure Code of the Russian Federation, an application for challenging the decisions of an official of the bailiff service, his actions (inaction) shall be considered in the manner prescribed by Chapters 23 and 25 of this Code, with the exceptions and additions provided for by this article.
Part 1 of Article 254 of the Civil Procedure Code of the Russian Federation provides for the right of a citizen, an organization to challenge in court the decision, action (inaction) of a government body, local government body, official, state or municipal employee if they believe that their rights and freedoms have been violated.
In accordance with Article 255 of the Civil Procedure Code of the Russian Federation, decisions, actions (inaction) of state authorities, local self-government bodies, officials, state or municipal employees, contested in civil proceedings, include collegial and individual decisions and actions (inaction), as a result of which: the rights and freedoms of a citizen are violated; created obstacles to the exercise by a citizen of his rights and freedoms; a citizen has been unlawfully assigned any duty or has been unlawfully held accountable.
According to Part 1 of Art. 121 of the Federal Law "On Enforcement Proceedings", decisions of the bailiff-executor and other officials of the bailiff service, their actions (inaction) on the execution of the enforcement document may be appealed by the parties to the enforcement proceedings, other persons whose rights and interests are violated by such actions (inaction) , in the order of subordination and contested in court.
In accordance with Art. 122 of the Federal Law "On Enforcement Proceedings", a complaint against the decision of an official of the bailiff service, his actions (inaction) is filed within ten days from the date the bailiff or other official makes a decision, the commission of an action, the establishment of the fact of his inaction or refusal to challenge ... A person who has not been notified of the time and place of the commission of actions, the complaint is filed within ten days from the day when this person learned or should have learned about the issuance of a decision, the commission of actions (inaction).
Similar provisions are contained in Part 2 of Art. Of the Civil Procedure Code of the Russian Federation, according to which, an application for challenging the decisions of an official of the bailiff service, his actions (inaction) is submitted to the court in the area of activity of which the specified official performs his duties, within ten days from the date of the decision, the commission of actions or from the day when the claimant, the debtor or persons whose rights and interests are violated by such a resolution, actions (inaction), became aware of the violation of their rights and interests.
On the basis of the writ of execution No. 40817810604900317040 from DD.MM.YYYY, issued by the Sysert District Court, the bailiff B. initiated enforcement proceedings No. 40817810604900317040 against debtor D. in favor of the claimant Z. 40817810604900317040 on in, which is confirmed by the decision to initiate enforcement proceedings from DD.MM.YYYY.
In accordance with Part 1.2 of Article 14 of the Federal Law of October 2, 2007 N 229-FZ "On Enforcement Proceedings", decisions on enforcement proceedings made by the bailiff, the chief bailiff of the Russian Federation, by the bailiff of the constituent entity of the Russian Federation, the senior bailiff and their deputies (hereinafter also referred to as the official of the bailiff service) from the date of the direction (presentation) of the executive document for execution, are drawn up by decisions of the official of the bailiff service.
From the materials of the enforcement proceedings presented to the court, it is clear that until now the requirements of the enforcement document have not been fulfilled.
In the course of the enforcement proceedings, the following enforcement actions were carried out: requirements were sent to D. to enforce the court decision and provide the bailiff-executor with supporting documents: DD.MM.YYYY
The act of performing performance actions from DD.MM.YYYY established that the court's decision by the debtor D. was not executed.
Due to the fact that the decision of the court by the debtor D. was not executed by Z. it was proposed to find a specialized organization and carry out the demolition of the unauthorized building "" at a distance of at least 1 meter from the border of land plots No. 40817810604900317040 and No. plot No. 40817810604900317040 on the street K., cadastral number No. 40817810604900317040, bring this plot to its original state. These costs will be collected from D.
DD.MM.YYYY D. again the requirement for the execution of the court decision was put forward.
DD.MM.YYYY on the basis of the act of performing the actions found that the court decision D. was not executed. DD.MM.YYYY recoverer Z. was again asked to enforce the court decision, with the attribution of enforcement costs to the debtor D.
DD.MM.YYYY D. again demands for the execution of the court decision.
DD.MM.YYYY D. was charged an execution fee in the amount of
DD.MM.YYYY the bailiff applied to the court with a statement to terminate enforcement proceedings due to newly discovered circumstances (provision of a certificate of state registration of ownership of real estate, namely a land plot located at: cadastral number No. 40817810604900317040 ...
The definition of the Sysert District Court from DD.MM.YYYY in satisfaction of the application of the bailiff-executor of the FSSP department for K. to terminate enforcement proceedings № 40817810604900317040 initiated DD.MM.YYYY was denied.
By the appeal determination of the Sverdlovsk Regional Court from DD.MM.YYYY, the determination of the Sysert District Court was left unchanged, D.'s private complaint was dismissed.
Also in the materials of the enforcement proceedings is Z.'s complaint to the Office of the Federal Bailiffs Service in the Sverdlovsk Region against the actions of the bailiff. However, the materials of the enforcement proceedings do not contain a procedural decision on this complaint.
The materials of the enforcement proceedings do not contain other documents confirming the execution by the bailiff-executor of actions aimed at the execution of the court decision.
Thus, the court found that since DD.MM.YYYY year, that is, for more than a year the bailiff-executor did not commit any actions aimed at the execution of the court decision.
In accordance with Article 2 of Federal Law No. 229-FZ "On Enforcement Proceedings", the tasks of enforcement proceedings are the correct and timely execution of judicial acts, acts of other bodies and officials, and in cases stipulated by the legislation of the Russian Federation, the execution of other documents in order to protect violated rights, freedoms and legitimate interests of citizens and organizations.
The compulsory execution of judicial acts is assigned to the corresponding services of bailiffs, the direct implementation of functions for the execution of judicial acts is assigned to the bailiffs-executors (Article 5 of Federal Law N 229-FZ).
According to Articles 12, 13 of the Federal Law of July 21, 1997 N 118-FZ "On Bailiffs," a bailiff in the process of compulsory execution of judicial acts is obliged to take measures for the timely, complete and correct execution of executive documents.
In accordance with Art. 105 of the Federal Law "On Enforcement Proceedings", in cases of non-fulfillment by the debtor of the requirements contained in the enforcement document within the period established for voluntary execution, as well as non-fulfillment by him of the executive document subject to immediate execution, within 24 hours from the date of receipt of a copy of the bailiff's order - the executor on the initiation of enforcement proceedings, the bailiff-executor issues a resolution on the collection of the enforcement fee and sets a new deadline for the debtor for execution. If the debtor fails to comply with the requirements contained in the enforcement document, without good reason, within the newly established period, the bailiff shall draw up a protocol on an administrative offense against the debtor in accordance with the Code of the Russian Federation on Administrative Offenses and establish a new deadline for execution. If the participation of the debtor is not necessary for the fulfillment of these requirements, then the bailiff-executor shall organize the execution in accordance with the rights granted to him by this Federal Law.
By virtue of part 2 of Article 68 of the said Law, enforcement measures are applied by the bailiff-executor after the initiation of enforcement proceedings. If, in accordance with this Federal Law, a period is established for the voluntary fulfillment of the requirements contained in the executive document, then the enforcement measures are applied after the expiration of such a period.
Thus, Article 107 of Federal Law N 229-FZ defines the specifics of the execution of the requirement contained in the executive document to vacate a land plot, to demolish a structure, building or structure or their individual structures.
In accordance with part 8 of this article, for the purpose of compulsory release of a land plot or demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve an appropriate specialized organization.
In accordance with part 9 of Article 107 of Federal Law N 229-FZ, in order to ensure forced eviction and release of non-residential premises, land or demolition of a structure, building or structure or their individual structures, the bailiff may propose to the recoverer to incur the costs of applying enforcement measures with their subsequent reimbursement at the expense of the debtor.
In addition, the Federal Bailiff Service of the Russian Federation of March 31, 2014 developed and approved "Methodological recommendations for the execution of judicial acts on the demolition of unauthorized buildings" (previously existing Methodological recommendations were no longer valid due to the publication of these).
According to clause 2.4 of the Methodological Recommendations, its scope can be applied when fulfilling the requirements of executive documents on the release of land plots by demolishing buildings or their individual parts, on the demolition of individual elements of buildings and structures (floors, superstructures, extensions) and other executive documents of a similar nature.
In this case, the demolition of a structure, building or structure located on a land plot or their individual structures is carried out if this is indicated in the executive document, in accordance with the provisions of Article 107 of the Law.
For the purpose of the forced demolition of a structure, building or structure or their individual structures, the bailiff-executor has the right to involve the relevant specialized organization in accordance with the provisions of the Law.
If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff, who, after checking the materials of the enforcement proceedings and establishing the fact of the application of enforcement measures in full in accordance with the provisions of Article 105 of the Law, applies a memorandum to the name of the head of the relevant territorial body, which sets out the essence of the requirements of the executive document of a non-property nature, and also in chronological order describes the actions taken to fulfill the requirements of the executive document.
The costs of demolishing an unauthorized structure are related to the costs of enforcement actions and are subject to reimbursement at the expense of the debtor in accordance with Chapter 16 of the Law "On Enforcement Proceedings".
The sequence of actions of employees of the territorial bodies of the FSSP of Russia to reimburse the costs of performing enforcement actions is determined by the Methodological Recommendations for organizing work to reimburse the costs of performing enforcement actions from DD.MM.YYYY N 01-10 (clause 4.6).
Moreover, taking into account the specifics of the subject of execution, the Methodological Recommendations prescribe when fulfilling the requirements of executive documents on the demolition of unauthorized buildings, to be guided by internal indicator indicators characterizing the level of effectiveness of the measures taken, established by the letter of the FSSP of Russia from DD.MM.YYYY N 12 / 01-28214 -THE.
Methodological recommendations on the execution of judicial acts on the demolition of unauthorizedly erected buildings explain the procedure for actions of both territorial divisions and the UFSSP of the constituent entities of the Russian Federation in the execution of the requirements of the writ of execution of this category.
If the requirements of the writ of execution were fulfilled in the manner prescribed by Article 107 of the Federal Law "On Enforcement Proceedings" and the above Methodological Recommendations, the tasks of the enforcement proceedings for the period from the date of initiation of the enforcement proceedings would have been completed in a timely manner and correctly.
The requirement of the writ of execution does not impose the obligation to demolish the unauthorized structure on the service of bailiffs and indicates the demolition of buildings at the expense of the debtors. However, this circumstance does not relieve the officials of the unit from fulfilling the duties assigned to them by law and job descriptions.
From the content of Article 107 of the Federal Law "On Enforcement Proceedings" it follows that this article of the Law regulates precisely the fulfillment of the requirements of the writ of execution on the demolition of an unauthorized structure, on the release of the land plot, on the obligation of the debtor to vacate the land plot. In parts 3, 4 of Article 107 of the Law, a list of actions is clearly given, which includes the release of the land plot specified in the executive document from movable and immovable property. It is indicated that the demolition of a structure, building or structure or their individual structures includes the disassembly, dismantling or destruction of the structure, building or structure specified in the executive document, or their individual structures, regardless of the type, purpose and degree of completion, as well as the removal of construction waste ...
The fulfillment of the requirements of the writ of execution of the specified category is not made dependent, at whose expense the demolition of buildings or the release of the land plot must be carried out. The levers specified in Article 107 of the Law "On Enforcement Proceedings", in the Methodological Recommendations, shall be applied in the event of failure by the debtor to voluntarily fulfill the requirements of the writ of execution.
Thus, in order to execute the executive document containing the requirement to oblige the debtor at his own expense to demolish the buildings indicated in the writ of execution and vacate the land plot occupied by unauthorized buildings, the bailiff was obliged to be guided precisely by the provisions of Articles 68, 107 of Federal Law N 229- Federal Law, and, accordingly, take measures to free the land plot from buildings, draw up an act based on the results of the relevant actions.
According to the materials of the enforcement proceedings, the bailiff-executor repeatedly made demands to the debtor to enforce the court decision, in addition, there is no information about the direction of these requirements to the debtor in the materials of the enforcement proceedings. It also follows from the materials of the case that the decision to collect the enforcement fee from D. in connection with the non-execution of the enforcement document within the time limit established by law was issued once. To administrative responsibility under Art. RF for failure to comply with the requirements of the executive document without good reason D. was not involved by the bailiff-executor. No other actions aimed at the enforcement of the court decision were taken within the framework of the enforcement proceedings.
At the same time, in accordance with Art. 64 of the Federal Law "On Enforcement Proceedings", enforcement actions are actions performed by a bailiff in accordance with this Federal Law aimed at creating conditions for the application of enforcement measures, as well as forcing the debtor to full, correct and timely fulfillment of the requirements contained in executive document.
The provisions of the Federal Law "On Enforcement Proceedings" provide the bailiff-executor the right to apply such enforcement measures as the commission by the bailiff-executor on behalf and at the expense of the debtor of the action specified in the executive document, including the demolition of an unauthorized building, in the event that if such an action can be performed without the personal participation of the debtor.
As follows from the case materials, the bailiff-executor did not provide evidence of the impossibility of executing the enforcement document without the personal participation of the debtor, with the subsequent collection from him of the enforcement fee and the costs of performing enforcement actions in accordance with paragraphs. 7 p. 3 art. 68 of the Federal Law "On Enforcement Proceedings". Also, there is no information in the case about the adoption by the bailiff-executor of any measures aimed at committing on behalf and at the expense of the debtor of the action specified in the court order.
Developed by the Federal Bailiff Service of the Russian Federation, the Methodological Recommendations for the Execution of Judicial Acts on the Demolition of Unauthorizedly Erected Buildings also provide for the application by the bailiff-executor to the debtor of all measures aimed at fulfilling the requirements of the executive document, in particular, the issuance of an order on a temporary restriction on the debtor's departure from the Russian Federation, as well as the organization of the execution of the court decision without the participation of the debtor at the expense of the federal budget, with the subsequent reimbursement by the debtor of the costs of demolishing the structure.
The inaction of the bailiff-executor led to a delay in the execution of the court decision, which violated Art. Of the Russian Federation the right to judicial protection, including the right to the execution of a judicial act within a reasonable time.
Thus, given that the bailiff-executor for a long time did not take effective and sufficient measures for the real and timely execution of the requirements of the executive document, the court comes to the conclusion that the inaction of the bailiff-executor is unlawful, expressed in prolonged non-fulfillment of the requirements contained in the executive order. the sheet of the Sysert District Court of the Sverdlovsk Region.
D.'s arguments that the bailiff-executor has objective reasons that impede the execution of the court decision, such as the impossibility to demolish part of the building due to its design, namely, the demolition of the load-bearing wall will cause the entire building to collapse, as well as the fact that that at present there is no annex as an object, but there is a single building for which a certificate of state registration of rights has been received, are rejected by the court, since they have no legal significance for the case and justify the inaction of the bailiff.
Based on the foregoing, in accordance with Art. Art. - Civil Procedure Code of the Russian Federation, court
DECIDED:
Z.'s application to declare the inaction of the bailiff-executor of the Sysertsky district department of the Office of the Federal Bailiffs Service in the Sverdlovsk Region illegal, to satisfy.
To recognize the inaction of the bailiff-executive of the Sysertsky district department of the Office of the Federal Bailiff Service in the Sverdlovsk Region illegal.
To oblige the bailiff-executive of the Sysertsky district department of the Office of the Federal Bailiff Service in the Sverdlovsk Region to eliminate the violations.
The decision can be appealed on appeal to the judicial collegium for civil cases of the Sverdlovsk Regional Court within a month from the date of the final decision of the court, by filing an appeal through the Sysert District Court.
Judge: M. V. Torichnaya
Court:
Sysert District Court (Sverdlovsk Region)In this article, we will analyze the previously existing procedure for regulating the demolition of ACS, dwell on the newly established demolition rules, including the features of the demolition of unauthorized buildings and objects located in zones with special conditions for the use of territories (hereinafter - ZOUIT).
Regulation of the demolition of OKS before the introduction of a new chapter of the Civil Code of the Russian Federation
The legal regulation of the demolition of ACS before the latest changes was extremely fragmented, which made it possible to speak of a gap in the law in this area.
At the same time, the main issue was the need to obtain permits for demolition.
From the literal interpretation of the provisions of town planning legislation, it follows that work on the demolition of buildings, structures is not directly attributed to construction or reconstruction work, for the implementation of which, within the meaning of Art. 51 of the Civil Code of the Russian Federation, it is necessary to obtain a building permit.
A similar position is reflected in judicial practice. For example, the Supreme Court of the Russian Federation refused to bring an organization that demolished a building without a building permit to administrative responsibility under Part 1 of Art. 9.5 of the Code of Administrative Offenses of the Russian Federation, which establishes responsibility for the construction, reconstruction of the ACS without this permission.
In its ruling on the case, the Supreme Court of the Russian Federation reflected that the work carried out by the company to dismantle (demolish) a non-residential building does not apply to construction and, therefore, does not require a building permit. At the same time, there was no evidence that the work on dismantling (demolition) of a non-residential building was carried out at the initial stage of construction or as part of work on the reconstruction of a capital construction facility, the supervisory authority that asked to bring the organization to justice was not presented.
Thus, a construction permit for the production of work on the demolition of the ACS is required only if the demolition of objects is carried out as part of the construction of the ACS, that is, their creation, including at the site of the demolished objects (Clause 13, Article 1 of the Civil Code of the Russian Federation ).
This position seems to be controversial, since, in fact, work on the demolition (dismantling) of objects can be no less difficult and dangerous than the work on construction and reconstruction itself.
At the same time, preparatory work for the demolition was reflected in an independent section of the project documentation for construction - the project for organizing work on the demolition of capital construction objects, their parts (from July 1, 2019, taking into account changes in the requirements for the content of project documentation, demolition work is included in a single section " construction "(POS)).
At the same time, at the level of regional legislation, a number of acts were in force that established the obligation to obtain certain other permits from state bodies of the constituent entities of the Russian Federation or local self-government bodies for the demolition of ACS.
Such rules were established, for example, by the previously effective Decree of the Moscow Government dated 07.12.2004 No. 857-PP "On approval of the Rules for the preparation and production of earthworks, arrangement and maintenance of construction sites in the city of Moscow." At the same time, for unauthorized demolition of buildings and structures in Moscow, administrative liability is provided for under Part 2 of Art. 8.18 of the Moscow City Code of Administrative Offenses.
The position on the permissive nature of demolition actions was also reflected in the letter of the Ministry of Economic Development of Russia dated 04.16.2015 No. D23i-1663. As reflected by the Ministry of Economic Development and Trade in this letter, the legislation of the constituent entities of the Russian Federation provides that the basis for the demolition of the ACS is the order of the local government, which, among other things, determines the procedure and timing for the demolition of such an object.
The list of documents required for the approval of a demolition decision by a local government body is determined by the legislation of the constituent entity of the Russian Federation, in particular, such documents include: the owner's decision to demolish, a work organization project, copies of work contracts for demolition work.
It should be noted that the regional acts on the demolition of the ACS are of a single nature.
Thus, until now, federal legislation did not establish the rules for demolishing ACS; regional legislation also did not provide for uniform and detailed regulation.
The existing legal vacuum, however, was filled after the introduction of Chapter 6.4 of the Civil Code of the Russian Federation.
New rules for demolition of ACS: general provisions
According to paragraph 1 of Art. 55.30 of the Civil Code of the Russian Federation, the grounds for the demolition of an object may be a decision of the owner or, in cases established by law, a decision of a court or local government body.
For the purpose of demolishing the construction site (if the demolition is not carried out for the purpose of building a new facility), the developer or technical customer shall ensure the preparation of a project for organizing demolition work as an independent document based on the results and materials of the survey of the facility. The preparation of this document should be carried out by a person included in the national register of specialists in the field of architectural and construction design.
Requirements for the project of the organization of work will be established by the Decree of the Government of the Russian Federation. Note that in the case of the demolition at the expense of budgetary funds, the estimate is also subject to development.
Development of a work organization project is not required for the demolition of the following objects: garage; a dwelling house, a garden house, outbuildings located on a garden plot; objects of individual housing construction; non-capital and auxiliary buildings.
The Civil Code of the Russian Federation introduces the concept of a person carrying out the demolition of an object, by analogy with the concept of a person carrying out construction. Such a person can be a developer or an individual entrepreneur, or a legal entity that has entered into a construction contract for the implementation of the demolition.
The person carrying out the demolition ensures compliance with the requirements of the project for organizing the demolition of the capital construction facility, technical regulations, safety measures in the process of carrying out the demolition of the capital construction facility and is responsible for the quality of the work performed.
Thus, urban planning legislation now fixes a specific person who ensures compliance with all mandatory building codes and regulations, and also establishes the possibility of holding him accountable for violation of these standards.
Another extremely important innovation aimed at ensuring the safety of demolition work is the requirement to perform work under work contracts for the implementation of demolition only by individual entrepreneurs or legal entities that are members of self-regulatory organizations in the field of construction (with the exception of cases of work performed under a work contract, if the amount of obligations under such an agreement does not exceed one million rubles).
Also, to carry out demolition work, persons who are exempt from compulsory SRO membership when performing work on engineering surveys, design, construction may not be members of the SRO, in particular: GUPs, municipal unitary enterprises, state-owned enterprises, commercial organizations with a state share of more than 50% in in the event of the conclusion of construction contracts with public entities and legal entities created by them.
The demolition of the ACS is carried out in accordance with the project for organizing demolition work after the facility is disconnected from the utility networks in accordance with the disconnection conditions issued by the organizations operating the corresponding utility networks. The disconnection of the object is confirmed by an act signed by the network organization.
To resolve controversial issues of interaction with government agencies in the implementation of the demolition of ACS, the legislation establishes a procedure for notifying the start of work and its completion, as well as providing the authorized body with a project for organizing demolition work.
So, in order to demolish the ACS, the developer or technical customer, no later than seven working days before the start of the work, sends a notification of the planned demolition of the ACS to the local government of the settlement, urban district, municipal district (in relation to the inter-settlement area) at the location of the object.
The notification of the planned demolition of the facility is accompanied by the results and materials of the ACS survey, as well as a project for organizing demolition work. In case of failure to provide these documents, the authorized body requests them independently.
The notice and the documents attached to it are subject to placement in the information system for ensuring urban planning activities. The local government body also notifies the regional state construction supervision body about the placement of these documents.
After the completion of the demolition work, the developer or technical customer sends a notice of the completion of the demolition, also subject to publication in public sources.
The forms of these notifications must be approved by the Ministry of Construction of Russia. At the moment, a draft order of the Ministry of Construction of Russia "On Approval of Forms for Notification of the Planned Demolition of a Capital Construction Object and Notification of the Completion of the Demolition of a Capital Construction Object" has been posted on the official website for publishing draft regulatory legal acts.
We also note the rule established for the transition period: if work on the demolition of the ACS, not related to the construction or reconstruction of the facility, started before August 4, 2018, the development of a project for organizing demolition work and sending a notification about the start of demolition work are not required ...
Features of the demolition of unauthorized buildings and objects within the boundaries of the ZOUIT
Since August 4, 2018, Article 222 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) has undergone significant revision, which defines the signs of unauthorized construction and the consequences of unauthorized construction. The content of these changes, radically changing the legislator's approach to unauthorized construction and actually introducing the figure of a bona fide builder of unauthorized construction, deserve analysis in a separate article.
In this article, we will focus on the previously not legally established procedural aspects of the demolition of unauthorized buildings, taking into account the latest changes in the Civil Code of the Russian Federation.
The demolition of unauthorized buildings is carried out on the basis of a court decision or, in cases specified in paragraph 4 of Art. 222 of the Civil Code of the Russian Federation, by decision of a local government body (hereinafter also referred to as OMS).
Article 55.32 of the Civil Code of the Russian Federation establishes the procedure for making a decision on the demolition of an unauthorized building.
So, the OMS, within twenty working days from the date of receipt from the supervisory authorities of information on the identification of an unauthorized building, is obliged to make a decision on the demolition of an unauthorized building or its bringing in accordance with the established requirements, in cases where such a right is granted to him by the Civil Code of the Russian Federation, or go to court with a claim for the demolition of an unauthorized building.
If, according to the results of the analysis of documents received from the supervisory authority, signs of unauthorized construction are not identified, the OMS sends a notification of this to the supervisory authority.
The demolition of the unauthorized building or its bringing in accordance with the established requirements shall be carried out by the person who created the unauthorized building, and in the absence of information about such a person, by the rightholder of the land plot on which the unauthorized building was created, within the period established by the relevant court decision or the decision of the local self-government body.
Note that the unfulfilled obligations for the demolition or reconstruction of an unauthorized building are transferred to the new owner of the land plot, the transfer of rights to the land plot.
These persons are obliged to carry out the demolition of the building or its reconstruction in accordance with the design documentation approved by the OMC, providing for the bringing of the unauthorized construction in accordance with the established requirements.
In case of failure to fulfill these obligations within the time limits specified in the demolition decision, the OMS notifies the body exercising the owner's powers in relation to the plots in public ownership, or goes to court with a claim to seize the privately owned land plot.
Finally, the Civil Code of the Russian Federation establishes a list of cases when the demolition of a building or its bringing in accordance with the established requirements is carried out by the OMS itself at the expense of the budget with reimbursement of expenses at the expense of the rightholders of the building.
The OMS carries out the demolition of the building on its own, if the rightholders of the building or the land plot have not been identified, or if the rightholders did not take action to demolish or reconstruct the building within 6 months from the date of the expiration of the established period, and the rights to the land plot were not transferred to third parties.
In addition, the demolition is carried out by the OMS if the rightholders have not demolished or reconstructed an object located on an indivisible land plot, on which other buildings and structures are also located, which are not unauthorized constructions.
Changes, no less dramatic than changes in the field of unauthorized construction, since August 4, 2018 have affected the legal regulation of zones with special conditions for the use of the territory. Taking into account these changes, the Civil Code of the Russian Federation provides for correlating special rules for the demolition of ACS located within the boundaries of the ZOUIT.
As a general rule, ACS that fall within the boundaries of the ZOUIT are subject to demolition if the regime of the specified zone does not allow the placement of such objects.
The demolition of the ACS or its bringing in accordance with the established requirements is carried out by the decision of the owner or on the basis of an agreement on compensation for losses. The specified agreement on compensation for losses is concluded by the owner of the ACS with the copyright holder of the building or structure, in connection with the location of which the ZOUIT was established.
In case of failure to reach an agreement on compensation for losses, the demolition of the object or its bringing in accordance with the established requirements is carried out solely on the basis of a court decision. At the same time, if the establishment of a ZOUIT leads to the impossibility of using the object, the rightholders of the objects, in connection with the placement of which ZOUIT were created, public entities are obliged to redeem such a capital construction object.
Summing up the above, it should be noted that the adopted changes in legislation, indeed, fill the pre-existing gap in the field of demolition of ACS, establishing both general principles and rules of regulation, and special rules for the demolition of unauthorized buildings and objects within the boundaries of ZOUIT.
At the same time, the legislator's approach to establishing a notification rather than a permissive procedure for the demolition of objects seems not entirely unambiguous, given that special types of responsibility of the person carrying out the demolition for violation of safety rules and requirements have not been defined.
It seems that the introduction of a notification system for the demolition of ACS is associated with a general legislative trend aimed at reducing the number of licensing procedures in construction. At the same time, practice will show whether the new procedures will make it possible to ensure the safety of the demolition of the ACS.
Estimates for dismantling (dismantling, demolition) will be required in case of justification or reimbursement of costs for the deterioration of a building, house or engineering networks with a critical physical decrease in bearing capacity, in an emergency condition as a result of causing damage to an object, in case of obsolescence due to deviations of the main performance indicators from regulatory, in case of inconsistency of the object in relation to the existing concept of planning the territory, when deciding to demolish an unauthorized structure, release the site for building, etc.).
When determining the cash limit, it is necessary to take into account separately the following costs of the contractor carrying out dismantling work:
- fencing of the work area, followed by disassembly;
- dismantling (disassembling) of internal engineering communications at the facility;
- dismantling (dismantling) of external utilities (up to the first well);
- dismantling of large-sized engineering equipment located at the facility;
- dismantling of suitable building elements for reuse, with movement or removal to an intermediate warehouse (usually indicated by the customer);
- demolition or element-by-element disassembly of the aboveground part, depending on the structural elements of the facility, as well as the presence of other existing buildings (structures) in the work area, as a rule, this information is indicated in the dismantling organization project (DMP);
- dismantling (dismantling) of the underground part of the facility or other activities;
- cleaning of construction waste from the construction site (carrying on a stretcher or mechanized);
- loading of construction waste into vehicles (mechanized and manual);
- removal of construction waste to the landfill for receiving solid household waste (MSW);
- compensation of costs (purchase of coupons) for the disposal of construction waste;
- land reclamation (removal of waste and delivery of new soil, planting trees and shrubs).
! Remember: when calculating these costs, it is necessary to take into account the calculation of the returnable amounts or the profit that the contractor performing the dismantling work will receive, for example, from the delivery of metal structures to the points of their reception (these costs are indicated in the calculations with the sign "minus").
If it is necessary to vacate a building site, the costs of dismantling (dismantling, demolishing) a building, house or utility networks are taken into account in the consolidated estimate calculation in the first chapter "Preparing the construction site".
HEADING "QUESTION - ANSWER"
Landfill waste disposal costs - read ...
Question:
The customer refuses to pay the costs of the contractor for the disposal of construction waste at the landfill. In doing so, he refers to page 18 of the book by I.Yu. Nosenko "Estimated business in construction" volume 1, which contains the answer to the question of which chapter of the Consolidated estimate calculation should include the costs for the delivery of construction waste. Specifically, the answer says the following:
"The costs associated with the cleaning of construction waste during the construction of new structural elements, including the removal of waste and its delivery to a landfill, are overhead costs and are not subject to inclusion in the estimate documentation."
Is the customer right?
Answer:
The customer is wrong in this matter.
In clause 11 "Expenses for the improvement and maintenance of construction sites" of Section III "Expenses for organizing work on construction sites" of Appendix 6 "List of cost items for overhead costs in construction" to "Guidelines for determining the amount of overhead costs in construction" MDS 81-33.2004 information is provided that the overhead costs include the costs: “- for wages (with deductions for UST from labor costs) and other costs for cleaning and cleaning (with garbage disposal) of the construction site and the adjacent street strip, including sections roads and sidewalks, the arrangement of paths, bridges and other works related to the improvement of the territory of construction sites; ".
The costs of the contractor for the disposal of garbage disposed of at the landfill are not taken into account by the standards of overhead costs and must be paid separately. On this issue, there was an explanation of the Gosstroy of Russia, given below:
LETTER
State Committee of the Russian Federation
on construction and housing and communal complex (Gosstroy of Russia)
dated December 28, 1999 No. 10-466
The Department of Pricing and Estimated Rationing in Construction and Housing and Communal Services explains the question raised.
In accordance with clause 10 of the "Methodological Guidelines for Determining the Cost of Construction Products on the Territory of the Russian Federation MDS 81-1.99", adopted by the Resolution of the Gosstroy of Russia dated April 26, 1999, No. 31, the estimate documentation as part of the overhead costs includes the costs of cleaning and cleaning garbage from the construction site ... Accounting for the costs of disposal of unusable soil and garbage disposed of at the landfill is not provided for by the current regulatory documents.
Head of Department V.A. Stepanov
It should be noted that the above refers to the disposal of technological waste generated during construction and installation work during new construction, which, for example, includes brick waste and mortar residues during the production of brickwork.
If we are talking about construction waste generated during the dismantling of buildings or their parts, then the estimate documentation should take into account the costs of loading, unloading and transporting construction waste from the dismantling of buildings. In addition to these costs, the estimate documentation should take into account the costs of paying for services for the placement and disposal of waste at waste processing sites ("dumps").
If the work on dismantling buildings is a preparatory stage for further construction, then the indicated costs in the estimate documentation can be reflected in Chapter 1 of the consolidated estimate calculation "Preparation of the construction site" with the attribution of works on loading, unloading and transportation to construction and installation works ... Services for the placement and disposal of waste at landfills for waste processing are related to other costs and can be taken into account in chapter 1 or 9 of the consolidated estimate.
In the letter of the Ministry of Regional Development dated 03.05.2011 No. 11086-IP / 08, it is recommended to take into account the costs of placement and disposal of construction waste in Chapter 9 of the Consolidated Estimated Calculation.
"The costs of placement and disposal (disposal) of construction waste, contaminated soil and waste are determined by an estimate based on the data of section 8" List of environmental protection measures "of the project documentation, and if necessary, demolition (dismantling) of an object or part of a capital construction object is also descriptions of solutions for calling, decontamination and disposal of waste and contaminated soils, given in section 7 "Project for organizing work on the demolition or dismantling of capital construction facilities", and a certificate (calculation) of the enterprise on the cost of placement and disposal of construction waste and waste. The costs associated with payment for these services are determined by calculations and are accounted for in accordance with clause 4.85 of the Methodology for determining the cost of construction products on the territory of the Russian Federation MDS 81-35.2004 in chapter 9 "Other works and costs" (columns 7, 8) of the consolidated estimated cost construction. The costs of loading construction waste and materials unsuitable for further use, formed as a result of dismantling buildings, structures and equipment, into a vehicle and transporting it from a construction site to a storage site or to a landfill are determined according to the current tariffs and are taken into account in local estimates. "
(extract from the letter of the Ministry of Regional Development dated 03.05.2011 No. 11086-IP / 08)
A source: Consultations and clarifications №4 2016 (84).
Refund of the cost of materials (scrap metal) - read ...
Question:
Please explain how the return of the cost of materials in the local estimate from dismantling of metal structures during the reconstruction of buildings and structures should be taken into account. And is it also legitimate for the customer to demand that refundable amounts be included in the estimate documentation, if the scrap metal was disposed of at the landfill with the receipt of appropriate certificates, and not sold?
Answer:
In accordance with clause 4.12 of the Methodology for Determining the Cost of Construction Products on the Territory of the Russian Federation MDS 81-35.2004 in cases where, according to design solutions, structures are being developed or demolished buildings and structures, according to structures, materials and products suitable for reuse, following the result of local estimate calculations (estimates) for reference, the returnable amounts (amounts that reduce the amount of capital investments allocated by the customer) are given.
These amounts are not excluded from the total of local estimates and from the volume of work performed.
They are shown in a separate line under the name "including refundable amounts" and are determined on the basis of the nomenclature estimates and the number of structures, materials and products received for subsequent use, also given after the total. The cost of such structures, materials and products as part of the returnable amounts is determined at the price of possible sale minus the costs of bringing them into a fit for use condition and delivery to the place of storage.
If it is impossible to use or sell materials from disassembly, their cost in returnable amounts is not taken into account.