Zhk rf burden of maintaining common property.
ST 39 LCD RF.
1. Owners of premises in an apartment building bear the burden of maintenance costs
common property in an apartment building.
2. The share of mandatory expenses for the maintenance of common property in an apartment building,
the burden of which the owner of the premises in such a house bears is determined by the share in the general right
ownership of the common property in such a house of the specified owner.
3. The rules for maintaining common property in an apartment building are established
The Government of the Russian Federation.
4. In accordance with the principles established by the Government of the Russian Federation,
executive authorities of the constituent entities of the Russian Federation establish lists
energy conservation and energy efficiency measures in relation to
common property of owners of premises in an apartment building to be held
at the same time and (or) regularly.
Commentary on Art. 39 of the Housing Code of the Russian Federation
1, 2. The determination of shares in the right of common ownership of common property in an apartment building is associated with the costs of maintaining this property. The burden of expenses is borne by the owner or co-owners of a particular apartment.
The burden of expenses should be allocated taking into account:
a) types of common property in an apartment building;
b) the types and volumes of work, the distribution of their performance over time periods (weekly cleaning work in the entrances, maintenance over half-year of common areas, etc.);
c) the cost of work on the basis of tariffs established by state bodies, prices, agreements of the parties under contractual agreements;
d) preliminary agreement with specialized contractors, individual entrepreneurs on the performance of work and the provision of services.
3. The rules for the maintenance of common property in an apartment building are established on the basis of the norms and technical requirements for the maintenance of residential premises in the Russian Federation.
1. The owners of premises in an apartment building shall bear the burden of the costs of maintaining common property in the apartment building.
2. The share of mandatory expenses for the maintenance of common property in an apartment building, the burden of which is borne by the owner of the premises in such a house, is determined by the share in the right of common ownership of the common property in such a house of the indicated owner.
3. The rules for the maintenance of common property in an apartment building are established by the Government of the Russian Federation.
4. In accordance with the principles established by the Government of the Russian Federation, executive bodies of constituent entities of the Russian Federation establish lists of measures for energy conservation and energy efficiency in relation to the common property of owners of premises in an apartment building, subject to a one-time and (or) regular basis.
Commentary on Article 39 of the LC RF
This article defines the procedure for the maintenance of common property in an apartment building. The maintenance of common property is carried out at the expense of the owners of residential premises in an apartment building (Clause 1, Article 39 of the LC RF). The share of the obligatory expenses of the owner for the maintenance of the common property in accordance with paragraph 2 of Art. 39 is proportional to his share in the common ownership of this property. The owner has the right to make large expenses for the maintenance of the common property. The procedure for maintaining common property in an apartment building, the rules for its operation in accordance with paragraph 3 of the commented article, are determined by a resolution of the Government of the Russian Federation.
Another comment on article 39 of the Housing Code of the Russian Federation
1. Owners of residential premises in apartment buildings as participants in common shared ownership of the common property of a house have not only rights to this property, but also bear responsibilities for its maintenance and operation.
The owner bears the burden of maintaining the property belonging to him, unless otherwise provided by law or contract (Article 210 of the Civil Code). Maintenance and repair of premises in an apartment building are carried out at the expense of their owners. In addition, the owners of the premises in the apartment building are involved in the costs associated with the maintenance, repair of the common property of the apartment building and the maintenance of the adjoining territory, commensurate with the area occupied by them in this house.
2. The Rules for the maintenance of common property in an apartment building approved by Decree of the Government of the Russian Federation of August 13, 2006 N 491 regulate relations for the maintenance, operation and repair of common property in an apartment building.
The owners of premises in an apartment building are obliged to bear the burden of the costs of maintaining the common property in proportion to their shares in the right of common ownership of this property by making:
a) fees for the maintenance and repair of residential premises in an apartment building - in the case of the management of an apartment building by the managing organization or directly by the owners of the premises;
b) mandatory payments and contributions of the owners of premises that are members of a partnership of homeowners, housing, housing and construction cooperatives or other specialized consumer cooperatives. At the same time, the owners of the premises, who are not members of these organizations, pay a fee for the maintenance and repair of the premises in accordance with Part 6 of Art. 155 LCD RF.
Payment for the maintenance and repair of residential premises is established in the amount that ensures the maintenance of the common property in accordance with the requirements of the legislation of the Russian Federation, including the payment of the costs of the maintenance and repair of the internal engineering networks of electricity, heat, gas and water supply, water disposal, including debt collection from owners premises that do not properly fulfill their obligations to pay for residential premises and utilities.
The obligation to pay the owners of premises in an apartment building services for the maintenance of common property is expressed in their respective payments. The total amount of mandatory payments for the maintenance and repair of common property is established on the basis of uniform rules and norms and provides reimbursement of costs for maintenance, current and preventive maintenance, as well as for overhaul of common property. The amount of obligatory payments of each owner of a room in an apartment building for the maintenance and repair of common property is proportional to his share in the right of common ownership of the common property in the apartment building.
The owner of the premises in the apartment building must timely pay a fee for maintenance, maintenance, repair of common property and utilities. The deadline for making these payments is established by the management agreement or the partnership of homeowners, as well as by the housing cooperative.
3. The owners of premises in an apartment building shall be obligated to bear the costs of maintaining and repairing common property in the apartment building if they do not use the premises they own (do not live in residential premises, do not rent, for rent).
The actual non-use of common property by the owner of the premises (for example, elevators) is also not a basis for exemption from participation in such expenses. Judicial practice is based on the fact that the current legislation does not establish the relationship between the personal use by the owner of the common property of an apartment building by separate objects of the common property and the obligation to bear the burden of maintaining the common property of the apartment building (Resolution of the First Arbitration Court of Appeal of January 21, 2011 in case No. A38-37 / 2010).
The absence of contractual relations between the parties is not a reason for exempting the owner from the obligation established by law to bear the costs of maintaining common property and should not be an obstacle for the management company to exercise the right to receive appropriate payments (Definition of the Supreme Arbitration Court of the Russian Federation of October 29, 2010 No. VAS-14046 / 10 in the case N A46-23660 / 2009).
4. In addition, the owners of premises in an apartment building have a constitutional obligation to pay the established taxes and fees (Article 57 of the Constitution of the Russian Federation). Citizens who own residential premises in an apartment building pay property tax on individuals. Landlords renting or renting their premises for profit must pay income tax. Legal entities - owners of premises in an apartment building pay property tax on enterprises. The above list of taxes payable by the owners of the premises in the apartment building is not exhaustive, and the owners of the premises are obligated to pay other taxes established by law.
The owner bears the burden of maintaining his property, unless otherwise provided by law or contract.
Commentary on Art. 210 Civil Code
1. The burden of maintaining property imposed on the owner should be understood as the duty of the owner to maintain the property in good condition, safe and suitable for operation in accordance with the purpose of the property. The degree of owner’s care and diligence in fulfilling this obligation, and in some cases, specific measures of custody of property can be provided for in technical standards and regulations, rules for the operation of certain types of property, rules for certain types of activities. In the absence of normative regulation of this kind in the event of a dispute about whether the owner has fulfilled his obligation to bear the burden of maintaining the property properly, this issue should be resolved in relation to a specific case, taking into account the peculiarities of both the property itself and the ways of introducing it into economic circulation.
In accordance with paragraphs. 3 and 4 of Art. 30 of the RF Housing Code, the owner of the living quarters bears the burden of maintaining the given premises and, if the premises is an apartment, the common property of the owners of the premises in the respective apartment building, and the owner of the room in the communal apartment also bears the burdens of maintaining the common property of the owners of the rooms in the apartment, unless otherwise provided federal law or contract. The owner is obliged to maintain this premises in good condition, avoiding the mismanagement of it, to observe the rights and legitimate interests of neighbors, the rules for the use of residential premises, as well as the rules for the maintenance of common property of owners of premises in an apartment building.
2. The obligation to bear the burden of maintaining property should be understood in two ways. Firstly, its consolidation in the commented article 210 of the Civil Code of the Russian Federation does not allow the owner to demand its performance by anyone, unless such an obligation of other persons is provided for by law or contract. Examples of the distribution of the property maintenance burden other than that established by the commented article are, in particular, the rules of Art. , and on the obligations of the parties to the lease for the maintenance of the leased property, Art. , and Art. 67 LCD RF on the obligations of the tenant of a residential building, etc.
Secondly, the commented article acts in the interests of an abstract unlimited circle of persons or (in some cases) in the state or public interests, since it obliges the owner to maintain the property in proper condition in cases where it is necessary to prevent harm to life and health, property of the owner surrounding persons, public infrastructure and public safety. Even things that are not endowed with technical complexity and special properties, in the case of their careless, irresponsible operation, lack of necessary care for them, can be an obstacle in the economic activities of other people, the cause of harmful consequences. Such an opportunity increases many times when things are used irresponsibly, carelessly, unqualifiedly, which, due to their technical properties, requires special zeal (for example, sources of increased danger), or when an item with potentially harmful properties is left in an ownerless state, the safety of which should be constantly around supported by the owner or the person to whom the owner has delegated such an obligation. The proper incurrence by the owners of the burden of maintaining their property in such particularly significant situations, the legislator stimulates a number of measures. These include, in particular, the establishment of increased grounds for civil liability for harm caused by activities,. In addition, the law establishes cases where the owner must fulfill his obligations to maintain the property under the threat of losing the right to own property. An example of such sanctions is and. Despite the fact that, as a general rule of law, it does not matter how and how actively the owner uses the property in economic circulation (in particular), in these cases, proper care of the most important objects of rights for turnover acts as a condition for maintaining the title.
Finally, caused in connection with his renunciation of the right of ownership and, accordingly, the cessation of custody of this property until the acquisition of the right to it by another person or his death. This means that any things that can cause harm to others should be maintained by the owner in a state that prevents harmful consequences, even if he refuses to intend to exercise the powers of the owner, not to mention the much more common cases of interest of economic entities in their implementation.
Article 39 LCD of the Russian Federation with comments and changes of 2018-2019.
1. The owners of premises in an apartment building shall bear the burden of the costs of maintaining common property in the apartment building.
2. The share of mandatory expenses for the maintenance of common property in an apartment building, the burden of which is borne by the owner of the premises in such a house, is determined by the share in the right of common ownership of the common property in such a house of the indicated owner.
3. The rules for the maintenance of common property in an apartment building are established by the Government of the Russian Federation.
4. In accordance with the principles established by the Government of the Russian Federation, executive bodies of constituent entities of the Russian Federation establish lists of measures for energy conservation and energy efficiency in relation to the common property of owners of premises in an apartment building, subject to a one-time and (or) regular basis.
Commentary on Article 39 of the LC RF:
1. Participants in common ownership of common property in an apartment building - the owners of the premises in this building bear the burden of maintaining their inter-apartment staircases, corridors, roofs, basements and other common areas, non-apartment engineering equipment and adjoining territories (the list of common property is specified in part 1 of article 36 of this Code) in proportion to the size of the premises owned by them.
2. The size of the participation of the owner of the premises in the apartment building in mandatory expenses for the maintenance of the common property is determined by the size of his share in the right of common ownership of the said property. Although there is a mention of the share of mandatory expenses, which is determined by the share in the right of common ownership, but it is not specified. It seems possible to quantify the share in the form of a fraction or percent.
Maintenance of common property in an apartment building
Commentary on Article 39 of the LC RF:
1. Norm h. 1 comment. Art. lays on the owners of premises in an apartment building the burden of the costs of maintaining common property. The obligation to bear expenses applies to all owners of premises, regardless of their membership in a partnership of homeowners or a housing cooperative, membership in various categories of persons (individuals, legal entities, public entities), the chosen method of managing an apartment building. Meanwhile, the features of using residential and non-residential premises, as well as the specifics of the maintenance of common property suggest that the costs of its maintenance and repair may be fully or partially charged by the owner to other persons (see commentary to part 1 of article 154).
2. Legalization of the concept of the share of mandatory costs for the maintenance and repair of common property is due to the legal regime of common property and the need for the owners of the premises to bear the burden of its maintenance and repair. The size of the share of mandatory expenses, which under the previous legislation was referred to as the share of participation (Article 1 of the Federal Law "On Home Ownership Associations"), is made dependent on the size of the share of the owner of the premises in the right of common ownership of the common property. Mandatory expenses are targeted and should be used to maintain the proper condition of the common property.
3. Part 3 comments. Art. contains a reference norm identifying the competent authority that is authorized to establish the rules for the maintenance of common property in an apartment building. At present, relations on the maintenance of common property owned by the right of common shared ownership of the owner of premises in an apartment building are regulated by the Rules for the maintenance of common property in an apartment building, approved by Decree of the Government of the Russian Federation of August 13, 2006 N 491 (SZ RF. 2006. N 34 Art. 3680). In accordance with these Rules, the maintenance of common property is provided:
The owners of the premises - at their own expense;
Owners of residential premises - citizens eligible for subsidies to pay for residential premises and utilities - at their own expense using the subsidies provided to them;
The owners of residential premises - individuals who have received (received) in accordance with federal laws, laws of constituent entities of the Russian Federation and regulatory legal acts of local self-government bodies compensation for expenses (part of expenses) for the payment of residential premises and utilities or for cash payments provided as social measures support for citizens in paying for housing and utilities provided from the respective budgets - at their own expense using compensation for expenses payment of housing and utilities or related cash payments;
The owners of residential premises - citizens who have received (receiving) benefits for paying for residential premises and utilities, before amending federal laws and other regulatory legal acts regarding the replacement of the procedure for providing citizens with benefits for paying for residential premises and utilities.
4. Part 4 comments. Art. contains a norm obliging executive bodies of the constituent entities of the Russian Federation to establish a list of measures for energy conservation and energy efficiency in relation to the common property of owners of premises in an apartment building. The specified norm echoes the rule enshrined in part 4 of Art. 12 of the Federal Law "On Energy Saving and on Improving Energy Efficiency and on Amending Certain Legislative Acts of the Russian Federation" (SZ RF. 2009. N 48. Article 5711), according to which, in order to increase the level of energy conservation in the housing stock and its energy efficiency the list of requirements for the maintenance of the common property of owners of premises in an apartment building includes requirements for measures to save energy and increase the energy efficiency of an apartment building. In accordance with the principles established by the Government of the Russian Federation, executive bodies of constituent entities of the Russian Federation approve a list of measures to save energy and increase energy efficiency in relation to the common property of owners of premises in an apartment building, subject to a one-time and (or) regular basis. The person responsible for the maintenance of the apartment building, or in the direct management of the apartment building, the owners of the premises in the apartment building are obliged to carry out energy saving and energy efficiency measures included in the approved list of energy saving and energy efficiency measures with respect to the common property of the owners of the premises in the apartment building, with the exception of the cases of carrying out the specified activities earlier and saving the results of their reference.
The owners of premises in an apartment building are required to bear the costs of these activities. In order to reduce the costs of these activities, owners of premises in an apartment building have the right to demand from the person responsible for the maintenance of the apartment building to take actions aimed at reducing the amount of energy resources used in the apartment building and (or) conclude this person an energy service agreement (contract) , providing a reduction in the amount of energy resources used in an apartment building. At the same time, the list of measures should be brought to the attention of the owners of the premises in the apartment building, the person responsible for the maintenance of the apartment building, by placing information in the entrances of the apartment building and (or) other premises related to common property owners of premises in an apartment building, as well as in other ways at the discretion of this organization. An approximate form of the list of such events is approved by the authorized federal executive body.
The person responsible for the maintenance of the apartment building is regularly (at least once a year) obliged to develop and inform the owners of the premises in the apartment building about energy saving measures.
5. The principles for the formation by the executive authorities of the constituent entities of the Russian Federation of a list of measures for energy conservation and energy efficiency in relation to the common property of owners of premises in apartment buildings are approved by the Government of the Russian Federation of August 23, 2010 N 646 (SZ RF. 2010. N 35. Art. 4578 ) According to the Decree, the list of measures to save energy and increase energy efficiency in relation to the common property of owners of premises in an apartment building is formed by executive authorities of the constituent entities of the Russian Federation based on the principles of
Formation of a list of activities;
Definition of the composition of events;
Ensuring the result of the implementation of measures;
Consideration of regional and other features of the implementation of measures.
In turn, these four basic principles include particular principles, namely:
principles for the formation of a list of activities, including:
The principle of accessibility of measures, according to which mandatory measures should be established taking into account the possibility of payment by the owners of the premises in apartment buildings along with the payment of other measures, the implementation of which is necessary for the maintenance of the apartment building in accordance with the requirements of the rules for the maintenance of common property in the apartment building,
The principle of minimizing the inconvenience of citizens, according to which mandatory measures should be established taking into account non-inconvenience to citizens of inconvenience associated with the implementation of measures,
The principle of periodicity of revision of obligatory measures, according to which obligatory measures should be reviewed, updated (with respect to measures carried out at a time) at least once every three years, supplemented and changed (with respect to measures carried out regularly) in accordance with the current level of development science and production and technological conditions for the implementation of activities;
principles for determining the composition of activities, including:
The principle of feasibility of measures, according to which mandatory measures should be established taking into account the technical feasibility and economic feasibility of their implementation in multi-apartment buildings belonging to a certain group (having, for example, similar design and technical parameters, level of improvement, heating and water supply schemes),
The principle of the timeliness of the implementation of measures, in accordance with which mandatory activities should be established with an indication of lump sum or periodicity,
The principle of payback (full or partial) of measures, according to which mandatory measures should be established taking into account the priority of measures for which the ratio of the cost of saved energy resources received within one year after the implementation of the measure to the cost of the measure is the highest, as well as measures the implementation cost of which is minimal;
principles for ensuring the result of the implementation of measures, including:
The principle of ensuring the comfort of citizens, according to which mandatory measures provide in self-use rooms and common areas in an apartment building established by the legislation of the Russian Federation, the quality parameters of public services and the requirements of sanitary norms and rules,
The principle of efficient and rational use of electric and thermal energy, gas, as well as hot and cold water in the implementation of measures, according to which measures ensure the minimization of losses and wasteful use of energy resources and water in the premises of general and independent use in an apartment building, as well as in premises for common house needs;
principles of accounting for regional and other features, including:
The principle of taking into account climatic and environmental conditions, according to which mandatory measures should be established taking into account the climatic and environmental features of the settlements in which the apartment buildings are located,
The principle of differentiation of measures based on the energy efficiency class of apartment buildings, according to which mandatory measures should be established taking into account energy efficiency classes defined for apartment buildings (applied after determining energy efficiency classes for apartment buildings),
The principle of differentiation of measures based on the technical parameters of multi-apartment buildings, according to which mandatory measures should be established common for all multi-apartment buildings and separately for groups of multi-apartment buildings with similar design and technical parameters, level of improvement, heating, water, electricity, gas and other signs.