In this article, we will analyze the previously existing procedure for regulating the demolition of the OKS, dwell on the newly established demolition rules, including the features of the demolition of unauthorized buildings and objects located in areas with special conditions use of territories (hereinafter - ZOUIT).
Regulation of the demolition of the OKS before the introduction of a new head of the RF Civil Code
Legal regulation of the demolition of the OKS before making recent changes was extremely fragmentary, allowing us to talk about the existence of a gap in the law in the area under consideration.
At the same time, the main issue was the need to obtain permits for demolition.
From the literal interpretation of the provisions of urban planning legislation, it follows that the demolition of buildings and structures is not directly classified as 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. So, for example, the Supreme Court of the Russian Federation refused to bring an organization that carried out the demolition of 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 OKS without this permission.
In its decision on the case, the Supreme Court of the Russian Federation reflected that the work carried out by the company on the dismantling (demolition) of a non-residential building does not belong to construction and, therefore, does not require a building permit. At the same time, evidence that the dismantling (demolition) of a non-residential building was carried out at the initial stage of construction or as part of the reconstruction of the facility capital construction, the supervisory authority that asked to hold the organization accountable is not provided.
Thus, a construction permit for the demolition of the OKS is required only if the demolition of objects is carried out as part of the construction of the OKS, 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 disputable, since in fact the demolition (dismantling) of objects can be no less complex and dangerous than the construction or reconstruction work itself.
Wherein preparatory work for demolition were reflected in an independent section of design documentation for construction - a 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 Organization Project" (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 permissions from state bodies of the constituent entities of the Russian Federation or local governments for the demolition of the OKS.
Such rules were established, for example, by the earlier Decree of the Government of Moscow dated December 7, 2004 No. 857-PP "On approval of the Rules for the preparation and production earthworks, arrangement and content construction sites in the city of Moscow". At the same time, unauthorized demolition of buildings and structures in Moscow provides for administrative liability under Part 2 of Article 8.18 of the Moscow 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 April 16, 2015 No. D23i-1663. As reflected by the Ministry of Economic Development in this letter, the legislation of the constituent entities of the Russian Federation provides that the basis for the demolition of the OKS 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 approval by the local government of the decision on demolition is determined by the legislation of the constituent entity of the Russian Federation, in particular, such documents include: the decision of the owner on the demolition, the project for the organization of work, copies of contractor agreements for the implementation of demolition work.
It should be noted that the regional acts dedicated to the demolition of the OKS are of a single nature.
Thus, until now, the federal legislation has not established the rules for the demolition of the OKS, the regional legislation also did not provide for a uniform and detailed regulation.
The existing legal vacuum, however, was filled after the entry into force of Chapter 6.4 of the Civil Code of the Russian Federation.
New rules for the demolition of OKS: 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 the decision of the owner or, in cases established by law, the decision of the court or local government.
For the purpose of demolition of the OKS (if the demolition is not carried out for the purpose of constructing a new facility), the developer or technical customer ensure the preparation of a project for the organization of demolition work as an independent document based on the results and materials of the site survey. Preparation work this document must 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 organization of work will be established by the Decree of the Government of the Russian Federation. Note that in the case of demolition at the expense of budget funds budget is also subject to development.
The development of a work organization project is not required for the demolition of the following objects: garage; a residential building, a garden house, outbuildings located on a garden plot; 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 may be a developer or an individual entrepreneur, or a legal entity that has entered into an agreement building contract for demolition.
The person carrying out the demolition ensures compliance with the requirements of the project for the organization of work on the demolition of the capital construction object, technical regulations, safety precautions in the process of performing work on the demolition of the capital construction object and is responsible for the quality of the work performed.
Thus, urban planning legislation now assigns a specific person who ensures compliance with all mandatory building codes and rules, and also establishes the possibility of bringing him to responsibility for violation of these rules.
Another extremely important innovation aimed at ensuring the safety of demolition work is the requirement that only individual entrepreneurs or legal entities that are members of self-regulatory organizations in the field of construction perform work under construction contracts if the amount of obligations under such an agreement does not exceed one million rubles).
Also, for the performance of demolition work, persons exempted from mandatory membership in the SRO may not be members of the SRO when performing work on engineering surveys, design, construction, in particular: state unitary enterprises, municipal unitary enterprises, state-owned enterprises, commercial organizations with a state participation share of more than 50% in the event of the conclusion of work contracts with public entities and legal entities created by them.
The demolition of the OKS is carried out in accordance with the project for the organization of demolition work after the facility is disconnected from the engineering and technical support networks in accordance with the disconnection conditions issued by organizations operating the relevant network engineering. Disabling the object is confirmed by an act signed by the network organization.
To resolve controversial issues of interaction with state bodies during the demolition of the CCS, the procedure for notifying the start of work and its completion, as well as providing the authorized body with a project for the organization of demolition work, is legally established.
So, in order to demolish the OKS, the developer or technical customer, no later than seven working days before the start of work, sends to the local government body of the settlement, urban district, municipal district(in relation to the inter-settlement territory) at the location of the object, notification of the planned demolition of the OKS.
The notification of the planned demolition of the facility shall be accompanied by the results and materials of the survey of the OKS, as well as a project for the organization of demolition work. In case of non-submission of these documents, the authorized body requests them independently.
The notice and the documents attached to it shall be placed in information system ensuring urban planning activities. The local self-government body also notifies the body of regional state construction supervision of the placement of these documents.
After the completion of the demolition works, the developer or technical customer sends a notification of the completion of the demolition, which is 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 the 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" is posted on the official website for the publication of draft regulatory legal acts.
We also note the rule established for the transitional period: if the demolition work of the construction site, not related to the construction or reconstruction of the facility, was started before August 4, 2018, the development of a project for the organization of demolition work and the notification of the commencement of demolition work of the facility are not required .
Features of the demolition of unauthorized buildings and objects within the boundaries of ZOUIT
Since August 4, 2018, Article 222 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), which defines the signs of unauthorized construction and the consequences of unauthorized construction, has undergone a significant revision. The content of these changes, which radically change the legislator's approach to unauthorized construction and actually introduce the figure of a conscientious developer of unauthorized construction, deserves analysis in a separate article.
In this article, we will focus on the procedural aspects of the demolition of unauthorized buildings that were not previously established by law, 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 the local government (hereinafter also - 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, within twenty working days from the date of receipt from the supervisory authorities of information about the identification of an unauthorized structure, the MHI is obliged to decide on the demolition of the unauthorized structure or its bringing into compliance with the established requirements, in cases where such a right is granted to it by the Civil Code of the Russian Federation, or go to court with a claim for the demolition of unauthorized buildings.
In the event that, according to the results of the analysis received from supervisory authority documents, signs of unauthorized construction have not been identified, the CHI sends a notification about this to the supervisory authority.
The demolition of an unauthorized structure or its bringing into conformity with the established requirements is carried out by the person who created the unauthorized structure, and in the absence of information about such a person, the owner of the land plot on which the unauthorized structure was created, within the time period established by the relevant court decision or decision of the local government.
Note that the unfulfilled obligations for the demolition or reconstruction of unauthorized buildings 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 approved MLA project documentation providing for bringing the unauthorized construction in accordance with the established requirements.
In case of non-fulfillment of these obligations within the time limits specified by the demolition decision, the CHI notifies the body exercising the powers of the owner in relation to publicly owned plots, or applies to the court with a claim for the seizure of a 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 into compliance with the established requirements is carried out by the CHI itself at the expense of the budget with reimbursement of expenses at the expense of the funds of the right holders of the building.
The OMS carries out the demolition of the building on its own, if the right holders of the building or land plot are not identified, or if the right holders did not take actions to demolish or reconstruct the building within 6 months from the date of 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 MLA in the event that the right holders 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 buildings.
Changes no less dramatic than changes in the field of unauthorized construction, since August 4, 2018, have affected legal regulation 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 OKS located within the boundaries of the ZOUIT.
OKS that fell within the boundaries of the ZOUIT, according to general rule are subject to demolition if the regime of the specified zone does not allow the placement of such objects.
The demolition of the OKS or its bringing into conformity with the established requirements is carried out by the decision of the owner or on the basis of an agreement on indemnification. The specified agreement on indemnification of losses is concluded by the owner of the OKS with the owner of the building or structure, in connection with the placement of which the ZOUIT is established.
In case of failure to reach an agreement on compensation for losses, the demolition of the object or its bringing into conformity with the established requirements is carried out solely on the basis of a court decision. At the same time, in the event that the establishment of a POUIT leads to the impossibility of using an object, the owners of the objects in connection with the placement of which the PPO was 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 the legislation, indeed, fill the previously existing gap in the field of demolition of the ACS, establishing both general principles and rules of regulation, and special rules for the demolition of unauthorized buildings and objects within the boundaries of the ZOUIT.
At the same time, the legislator's approach to establishing a notification, rather than a permissive, procedure for the demolition of objects seems to be not entirely unambiguous, given that special types of responsibility of the person carrying out the demolition for violation of the rules and safety requirements are not defined.
It seems that the introduction of the notification system for the demolition of the construction works is connected with the general legislative trend aimed at reducing the number of permitting procedures in construction. At the same time, practice will show whether the new procedures will ensure the safety of the demolition of the OKS.
Case No. 2a-400/2016
Received Seversky city court (Tomsk region)
Motivated
solution made 17.08.2015
IN THE NAME OF THE RUSSIAN FEDERATION
08/13/2015 Sysert District Court Sverdlovsk region as part of the presiding judge Torichnaya M.V., with the participation of the representative of the applicant Z.Ya., the interested person D., with the secretary T., having considered in open court a civil case No. the bailiff of the Sysert district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region illegal,
SET UP:
Z. applied to the court to recognize the inaction of the bailiff-executor of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as unlawful, indicating that the bailiff, the executor of the Sysertsky district department of bailiffs of the UFSSP for the Sverdlovsk region B., on the basis of a writ of execution for case No. 40817810604900317040, issued by the Sysert District Court, DD.MM.YYYY, enforcement proceedings No. 40817810604900317040 were initiated to remove obstacles to the use of a land plot located at the address: in relation to D. (hereinafter referred to as the “Debtor”) in favor of Z. (hereinafter referred to as text - "Applicant").
At the time of filing the complaint, execution within the framework of this proceeding had not been completed, obstacles to the use of the land plot by the demolition of the unauthorized construction of an annex to the store "" by "Debtor" were not eliminated. The bailiff does not provide the "Applicant" with information on the progress of activities carried out as part of the enforcement proceedings.
Three years have passed since the initiation of enforcement proceedings, but 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 period for fulfilling the requirements of the executive document and more actively apply administrative measures to the debtor.
According to paragraph 3.8. of the said Letter, if the debtor in enforcement proceedings is a citizen, the bailiff shall issue a ruling on a temporary restriction on the debtor's departure from the Russian Federation.
According to paragraph 3.9. specified Letter bailiff applies all measures aimed at fulfillment of non-property requirements contained in the executive document, in accordance with Article. (as amended on 12/02/2019) > "> (as amended and supplemented, effective from 01/01/2020) > Chapter 13. Fulfillment of non-property requirements contained in executive documents > Article 105. General terms fulfillment of the requirements contained in the enforcement documents for the debtor to perform certain actions (refrain from performing certain actions)" target="_blank"> 105 FZ "On Enforcement Proceedings".
According to paragraph 3.10 of the said Letter, for the purpose of forced demolition of a structure, building or structure or their individual structures, the bailiff has the right to engage the appropriate 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 that coercive measures have been applied in full in accordance with the provisions of Art. 105 of the Law applies with 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 describes in chronological order the actions taken to fulfill the requirements of the executive document.
The involvement of the relevant specialized organization to fulfill these requirements at the expense of the federal budget is carried out in accordance with the provisions of the Federal Law of 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" and the indication of the FSSP Russia dated January 31, 2011 N 12/08-1872-VM.
In accordance with paragraph 4.5. Letters, enforcement of the requirement for the demolition of an unauthorized building, building or structure or their individual structures, is made with the participation of witnesses (if necessary - with the assistance of employees of the internal affairs bodies) with the preparation of an appropriate act on the demolition of the 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 as part of the enforcement proceedings were ineffective and did not lead to the independent demolition of the building by the debtor, the bailiff had to attract a specialized organization to carry out the forced demolition of the unauthorized building.
It should be noted that the enforcement of the enforcement document by the "Applicant" independently with the subsequent collection of expenses from the "Debtor" can only be carried out if the recoverer makes such a decision, based on the information obtained in the framework of the enforcement proceedings, indicating financial situation"Debtor", which will further ensure the collection from him of the costs of the demolition of the unauthorized building (clause 4.1. of the said Letter).
In our case, the “Applicant” did not make a decision on the independent demolition of the unauthorized building with the subsequent attribution of costs to the “Debtor”, which means that the bailiff must take measures within the framework of enforcement proceedings aimed at the execution by the “Debtor” of the executive document and the elimination of obstacles to the use of land site until its execution.
In addition, the "Applicant" assumes that the use of the object to be demolished continues.
According to paragraph 6.1. of the said Letter, in the event that the fact of exploitation of the capital construction object to be demolished is established, the bailiff draws up an act on the commission of enforcement actions, in which he indicates these circumstances, and also hands over to the persons who operate the object to be demolished, demands to stop these actions.
In the case of re-establishing the fact of operation of the object to be demolished by the same persons, the bailiff takes measures to bring them to administrative responsibility in accordance with Art. . Code of Administrative Offenses of the Russian Federation.
Thus, the “Applicant” believes that the bailiff did not take the necessary actions aimed at the execution of the executive document, namely, the demolition of the unauthorized addition, which creates obstacles to the use of the land plot located at: No. 40817810604900317040 within three years from the moment of initiation executive production.
He asked to declare illegal the inaction of the bailiff-executor of the Sysert district department of bailiffs of the Office of the Federal Bailiff Service for the Sverdlovsk Region on enforcement proceedings No. 40817810604900317040 initiated on August 29, 2012; to oblige the Sysertsky District Department of Bailiffs of the Office of the Federal Bailiff Service for the Sverdlovsk Region to provide a full report on the activities carried out during the enforcement proceedings.
Applicant Z. did not appear at the hearing. He sent a representative to the court.
At the hearing, the representative of the applicant, Z. Ya., supported the stated requirements in full, additionally explained to the court that the decision had not yet been executed, which violates the rights of the plaintiff.
The interested person D. at the court session objected to the stated requirements, explained that the bailiff had done a lot of actions, an unenforceable decision had simply been made. The bailiffs repeatedly went to the site and made sure that technically the decision could not be executed.
Provided a review to the court, indicating that the bailiffs have objective reasons that prevent the execution of the decision of Sysertsky district court from DD.MM.YYYY
One part of the reasons is organizational and technical. The design of the building does not allow demolishing part of it at a distance of 1 meter from the border of the land, as required by the court decision. The dismantling of the load-bearing wall will cause the destruction of the entire building. In the city, such an action would be tantamount to an act of terrorism. In addition to other dangers, there is a real possibility of destruction of infrastructure facilities located in the immediate vicinity of the building. These are power lines, gas pipelines, communication lines. Among the communication lines there is one, of federal importance, which is supervised by the FSB.
Provoking bailiffs to action, Z. pushes them to commit a big misfortune. Declaring the need to involve a specialized organization, he, unknowingly or consciously, creates a picture of the simplicity of the execution of a court decision. There is no such specialized organization. The participation of several organizations is required. Design, including. The role of the authorities of the city, where Z. intends to carry out a destructive process, is not indicated in any way.
Another reason is legal. The court decision ordered to demolish a part of the unauthorized building, determined by the annex. My building cannot be defined as unauthorized construction. During its construction, the law was observed. Registration rules are also observed. This is confirmed by the evidence of state registration ownership of the said building, issued to the interested person by Rosreestr on the basis of documents certifying compliance with the law.
Indicates that there are no structures in the building that can be identified by an extension. Structurally, the building is an integral two-level structure.
All of the above is known to Z. He recognizes the impossibility of executing the judgment. His repeated statements, including in the Sysert District Court, are supporting facts.
Z.'s claims against the bailiffs are groundless. It is impossible to define non-fulfillment of the impossible by inaction. Impossible, within the law and technical potential. The procedure for the execution of court proceedings is observed strictly in accordance with the law.
The bailiff did not appear at the hearing. The reason for the absence is not known. The time and place of the hearing of the case were duly notified.
Taking into account the opinions of the persons involved in the case, and on the basis of Art. of the Code of Civil Procedure of the Russian Federation, the court decided to consider the case at this appearance.
Having listened to the explanations of the representative of the applicant, the person concerned, having examined the materials of the case, the court comes to the following.
According to Art. of the Code of Civil Procedure of the Russian Federation, an application for challenging the decisions of an official of the bailiff service, his actions (inaction) is 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, organization to challenge in court a decision, action (inaction) of a state authority, local government, 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 (omissions) of state authorities, local governments, officials, state or municipal employees disputed in civil proceedings include collective and sole decisions and actions (omissions), as a result of which: the rights and freedoms of a citizen are violated; obstacles have been created to the exercise by a citizen of his rights and freedoms; a citizen has been illegally assigned any duty or has been illegally held accountable.
According to Part 1 of Art. 121 of the Federal Law "On Enforcement Proceedings" of the decision of the bailiff and other officials of the bailiff service, their actions (inaction) on the execution of the executive document can be appealed by the parties to enforcement proceedings, other persons whose rights and interests are violated by such actions (inaction) , in order of subordination and challenged in court.
In accordance with Art. 122 of the Federal Law "On Enforcement Proceedings", a complaint against a decision of an official of the bailiff service, his actions (inaction) is filed within ten days from the date of the decision by the bailiff or other official, the commission of an action, the establishment of the fact of his inaction or refusal to challenge . A person who is not notified of the time and place of the actions, the complaint is filed within ten days from the date when this person knew or should have known about the issuance of the decision, the commission of actions (inaction).
Similar provisions are contained in Part 2 of Art. of the Code of Civil Procedure of the Russian Federation, according to which, an application for challenging the decisions of an official of the bailiff service, his actions (inaction) is filed with the court in the area of \u200b\u200bits 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 recoverer, debtor or persons whose rights and interests are violated by such a decision, actions (inaction) became aware of the violation of their rights and interests.
On the basis of writ of execution No. 40817810604900317040 dated DD.MM.YYYY, issued by the Sysertsky District Court, bailiff B. initiated enforcement proceedings No. 40817810604900317040 against debtor D. in favor of claimant Z., subject of execution: to remove the obstacle to the use of land No. 40817810604900317040 in, which is confirmed by the decision to initiate enforcement proceedings from DD.MM.YYYY.
In accordance with Parts 1 and 2 of Article 14 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”, decisions on enforcement proceedings taken by the bailiff-executor, the chief bailiff of the Russian Federation, the chief judicial the bailiff of the subject 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 sending (presenting) the executive document for execution, are drawn up by the decisions of the official of the bailiff service.
From the materials of enforcement proceedings submitted to the court, it can be seen that so far the requirements of the enforcement document have not been fulfilled.
In the course of the enforcement proceedings, the following executive actions were carried out: demands were sent to D. for the execution of the court decision and to provide the bailiff-executor with supporting documents: DD.MM.YYYY
The act of performing enforcement actions dated DD.MM.YYYY established that the court decision by the debtor D. was not executed.
Due to the fact that the court decision was not executed by the debtor D., Z. was asked 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 land plots No. 40817810604900317040 and No. 40817810604900317040 on c and release from the said building land plot No. 40817810604900317040 on st.k., cadastral number No. 40817810604900317040, bring this section to its original state. These costs will be charged to D.
DD.MM.YYYY D. again demanded the execution of the court decision.
DD.MM.YYYY on the basis of the act of performing enforcement actions, it was established that the decision of the court D. was not executed. DD.MM.YYYY the recoverer Z. was again offered to execute the court decision, with the assignment of the costs of execution to the debtor D.
DD.MM.YYYY D. again demanded the execution of the court decision.
DD.MM.YYYY D. was charged a performance fee in the amount of
DD.MM.YYYY the bailiff applied to the court to terminate the enforcement proceedings due to newly discovered circumstances (providing a certificate of state registration of ownership of real estate, namely a land plot located at: , cadastral number No. 40817810604900317040 .
By the determination of the Sysert District Court dated DD.MM.YYYY, the application of the bailiff-executor of the UFSSP department for K. to terminate enforcement proceedings No. 40817810604900317040 initiated by DD.MM.YYYY was denied.
By the appeal ruling of the Sverdlovsk Regional Court dated DD.MM.YYYY, the ruling of the Sysertsky District Court was left unchanged, D.'s private complaint was not satisfied.
Also in the materials of the enforcement proceedings is Z.'s complaint to the Office of the Federal Bailiff Service for the Sverdlovsk Region on the actions of the bailiff. However, the materials of the enforcement proceedings do not contain a procedural decision on this complaint.
The materials of enforcement proceedings do not contain other documents confirming the performance by the bailiff-executor of actions aimed at the execution of the court decision.
Thus, the court found that since DD.MM.YYYY, that is, for more than a year, the bailiff-executor did not take any actions aimed at executing the court decision.
In accordance with Article 2 of Federal Law N 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 provided for 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.
Enforcement of judicial acts is assigned to the relevant services of bailiffs, the direct implementation of functions for the execution of judicial acts is assigned to bailiffs (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", the bailiff in the process of enforcement of judicial acts is obliged to take measures for the timely, complete and correct execution of enforcement 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 executive document, within the period established for voluntary execution, as well as non-execution of the executive document subject to immediate execution, within 24 hours from the date of receipt of a copy of the bailiff's decision - executor to initiate enforcement proceedings, the bailiff shall issue a ruling on the collection of the performance fee and set the debtor a new deadline for execution. If the debtor fails to fulfill the requirements contained in the executive document, without good reason within the newly established period, the bailiff draws up a protocol on an administrative offense against the debtor in accordance with the Code of Administrative Offenses of the Russian Federation and sets a new deadline for execution. 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.
By virtue of part 2 of article 68 of the said Law, enforcement measures are applied by the bailiff 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 enforcement measures are applied after the expiration of such 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.
According to part 8 of this article, in order to forcibly vacate a land plot or demolish a building, building or structure or their individual structures, the bailiff has the right to attract 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 non-residential premises, a land plot or the demolition of a structure, building or structure or their individual structures, the bailiff may offer 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 effective Methodological recommendations became invalid 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 the structure, building or structure located on the 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.
In order to forcibly demolish a building, building or structure or their individual structures, the bailiff has the right to engage the appropriate 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 about this, who, after checking the materials of the enforcement proceedings and establishing the fact that coercive measures have been applied in full in accordance with the provisions of Article 105 of the Law, applies with 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 describes in chronological order the actions taken to fulfill the requirements of the executive document.
The costs of demolition of unauthorized buildings 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 on reimbursement of expenses for the performance of enforcement actions is determined by the Methodological recommendations for organizing work on the reimbursement of expenses for the performance of enforcement actions dated DD.MM.YYYY N 01-10 (clause 4.6).
Moreover, taking into account the specifics of the subject of execution, the Guidelines 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 Federal Bailiff Service of Russia dated DD.MM.YYYY N 12 / 01-28214 -TI.
Guidelines for the execution of judicial acts on the demolition of unauthorized buildings explain the procedure for both territorial divisions and the Federal Bailiff Service of the constituent entities of the Russian Federation when fulfilling the requirements of a writ of execution of this category.
If the requirements of the writ of execution are fulfilled in the manner prescribed by Article 107 of the Federal Law "On Enforcement Proceedings" and the specified Methodological Recommendations, the tasks of enforcement proceedings for the period from the date of initiation of enforcement proceedings would be completed in a timely and correct manner.
The requirement of a writ of execution does not place the obligation to demolish the unauthorized structure to the service of bailiffs and indicates the demolition of buildings at the expense of debtors. However, this circumstance does not relieve the officials of the unit from the fulfillment of the duties assigned to them by law and job description responsibilities.
It follows from the content of Article 107 of the Federal Law "On Enforcement Proceedings" that this article of the Law regulates precisely the execution of the requirements of a writ of execution on the demolition of an unauthorized structure, on the release of a land plot, and on the debtor's obligation to release a 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 not movable property. It is indicated that the demolition of a structure, building or structure or their individual structures includes the dismantling, 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 debris .
Fulfillment of the requirements of the writ of execution of this category is not made dependent on whose expense the demolition of buildings or the release of the land plot should be carried out. Specified in Article 107 of the Law "On Enforcement Proceedings", in methodological recommendations, the levers are subject to application, in case of non-execution by the debtor voluntarily within the established time limits of 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 from buildings, draw up an act based on the results of the relevant actions.
According to the materials of the enforcement proceedings, the bailiff repeatedly made demands to the debtor for the execution of 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 failure to execute the enforcement document within the time period 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 in the bailiff. No other actions aimed at enforcement of the court decision were taken within the framework of enforcement proceedings.
However, 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 complete, correct and timely fulfill the requirements contained in executive document.
The provisions of the Federal Law "On Enforcement Proceedings" give the bailiff the right to apply such enforcement measures as the commission of the bailiff 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 committed without the personal participation of the debtor.
As follows from the case file, the bailiff did not provide evidence of the impossibility of executing a writ of execution without the personal participation of the debtor, followed by the collection of a performance fee and expenses from him for 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 of any measures aimed at committing on behalf and at the expense of the debtor the action specified in the executive document.
The Guidelines for the execution of judicial acts on the demolition of unauthorized buildings, developed by the Federal Bailiffs Service of the Russian Federation, also provide for, in the event that the debtor fails to comply with the court decision, the bailiff will apply to the debtor all measures aimed at fulfilling the requirements of the executive document, in particular, issuing a decision on temporary restriction on the debtor's departure from the Russian Federation, as well as the organization of the execution of a court decision without the participation of the debtor at the expense of the federal budget, with subsequent reimbursement by the debtor of the costs of demolishing the building.
The inaction of the bailiff-performer led to a delay in the execution of the court decision, which violated the guarantee to the recoverer of Art. Russian Federation the right to judicial protection, including the right to the execution of a judicial act within a reasonable time.
Thus, considering that the bailiff 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 concludes that the inaction of the bailiff, expressed in the long-term failure to comply with the requirements contained in the executive document, is illegal. sheet of the Sysertsky district court of the Sverdlovsk region.
D.'s arguments that the bailiff-executor has objective reasons that prevent the execution of the court decision, such as the inability to demolish part of the building due to its design, namely, the demolition of the load-bearing wall will cause the collapse of the entire building, 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, the court rejects, 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
I DECIDED:
Z.'s application to recognize the inaction of the bailiff-executor of the Sysert district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal, to be satisfied.
Recognize the inaction of the bailiff-executor of the Sysert district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal.
Oblige the bailiff-executor of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region to eliminate the violations committed.
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 Sysertsky District Court.
Referee: Torichnaya M.V.
Demolition or relocation of a neighbor's illegal building is not an easy matter, which is why it is important to get the advice of our lawyer.
Claim for the demolition of buildings on the boundary of the plots to a neighbor. Of course, the construction of a neighbor or other persons on your land is a violation of your rights. However, not all lawsuits for the demolition of unauthorized buildings are brought by neighbors. Such a claim may be brought by the administration of the municipality against your building. Consider the grounds for filing a demolition claim, both against a neighbor, and bringing it to you by third parties or government agencies:
The absence of any legal claims to the land plot on which the construction is being carried out. In other words, the use of a land plot without legal grounds, and the land itself does not belong to you on more than one type of rights (property, other paid / gratuitous use). In such a situation, the legislator has provided for the possibility of protecting violated rights by means of (which can be studied by reference to the possibility of applying these provisions of the law).
ATTENTION: how to win litigation over land plots between neighbors and other persons - watch the video. Subscribe to the YouTube channel and a free consultation on land issues in the comments of the video will be held professionally and on time.
Disputes with neighbors and other owners of adjacent lands can be resolved without resorting to going to court, but sometimes it is impossible to achieve a peaceful solution to the problem. In court, you need to be consistent and present real evidence of unauthorized seizure of land or violation of the rights of neighbors.
If, nevertheless, you failed to agree in a pre-trial procedure on the organization and conduct of future and / or ongoing development by your neighbor, we can protect our rights only in court. Court proceedings will include the following steps:
Pre-trial preparation. This stage will include the preparation of the statement of claim itself, as well as the collection of evidence. As part of this dispute, you, as a person whose rights are violated, will need to prove the following circumstances, depending on the basis of the claim:
Trial. During this stage, the judge will need to establish the fact of violation of your rights. You, in turn, are obliged to provide evidence in support of your claims and statements. As such evidence, you can provide:
The conclusion of the cadastral engineer. In conclusion, the specialist must indicate the construction of the object on the borders (within the borders) of your site.
Construction and technical conclusion. In the specified conclusion, the specialist will determine whether the norms were violated during the construction of the object in terms of building the object. Moreover, the examiner must determine whether the object corresponds construction project, cocked in accordance with the requirements of building codes and law.
Judgment of the court and its execution. In the event of a court decision in your favor, your opponent still has to carry or transfer the substring. It is best to do this voluntarily. In the event that the defendant evades the execution of the judicial act, you can apply for the issuance of a writ of execution and present it to the competent authority. Bailiff with involvement third parties will execute the decision of the court, and the costs associated with its execution will be borne by the violator.
Sometimes the course of events takes a completely different turn and government authorities raise the issue of terminating ownership of your property - a building and a land plot under it. This moment is set for legislative level and it's called. As a rule, disputes arising against the background of such a problem arise from the determination of the value of the property that is subject to seizure. Estimates provided by government agencies are not always objective. Only a court can resolve such a dispute.
The chances of success are greatly increased if you use the services of our lawyer. Contact the experts who specialize in such cases. They will independently fill out a claim for dismantling the fence, tell you exactly how you need to act, realistically assess the likelihood of a positive outcome of the events and talk about how the procedure goes (for more details on this topic, follow the link).
According to the amendments to the civil legislation of 08/04/2018 that have entered into force, the demolition time for an unauthorized building ranges from 3 to 12 months, depending on the nature of the object. What to do if the defendant has not demolished the building within the time period established by the court?
In this case, the enforcement mechanism begins to work, which is handled by the Federal Bailiff Service. Using the services of an expert who constantly interacts with these structures, you significantly increase your chances of a positive outcome of the case:
And here it is very important to exercise control on the part of a specialist who can analyze the work of a bailiff for the legality of actions and timely eliminate errors and shortcomings in his work.
Civil law gives the debtor, the recoverer, as well as the bailiff the right to raise before the court the issue of postponing the execution of the court decision in the presence of circumstances that impede the execution of the court order. As a rule, in the case of the demolition of an unauthorized building, most often the applicant is the debtor, who for some reason cannot execute the court decision on time.
LAW: according to article 203 of the Civil Code of the Russian Federation, the court has the right to grant a deferment to the debtor based on his property status or other circumstances.
Granting a delay in the execution of a court decision directly affects the interests of the claimant and delays the protection of his rights. Therefore, the grounds for granting it must be exceptional. The applicant must provide evidence of the existence of circumstances that significantly impede the execution of the judgment. In turn, the recoverer may present to the court objections to the application for the postponement of the execution of the court decision on the demolition of unauthorized buildings. Then the court, after evaluating the arguments of both parties, comes to the following conclusions: whether the reasons for granting a delay are valid and justified, whether the granting of a delay meets the criteria of justice and whether the essence of the constitutional rights of participants in enforcement proceedings is affected. If the court establishes the existence of grounds for granting a deferment, a ruling is issued indicating the period for granting a deferment.
Thus, the procedure for the demolition of an unauthorized building is quite difficult and difficulties can arise at any stage. That is why, resorting to the help of professionals, you can greatly facilitate the resolution of this issue and say with confidence that you have used all the possibilities to achieve the desired goal.
In case of unauthorized seizure of a land plot by a person who does not have legal rights, real property owners can file a claim for the transfer of a fence or other capital structure. It is desirable to resolve such issues amicably, but if a peaceful outcome is unrealistic, it is worth going to court. Be sure to get the services of our lawyers who will tell you how to act in a particular situation.
By following our recommendations, you can bypass the passage of court instances and carry out construction without additional burdens in the form of litigation. In case a dispute arose between the shared owners of the site, you can resolve it by preparing. If such an agreement cannot be reached by the shared owners of the object, its only solution is what our lawyer can help you with today.
P.S.: if you have a problem - call our lawyer and we will try to resolve your issue: professionally, on favorable conditions and on time
Our new offer is free legal advice through an application on the site.
Judicial acts on the demolition of unauthorized buildings, although they occupy an insignificant share in the total number enforcement proceedings who are being executed, but from the point of view of social importance they play a very significant role.
This article was copied from https://www.site
S.Yu. GUSAKOV,
Head of the Department for Organization of Enforcement Proceedings of the Office of the Federal Bailiff Service of Russia for the Volgograd Region
Judicial acts on the demolition of unauthorized buildings, although they occupy an insignificant share in the total number of enforcement proceedings that are being executed, however, from the point of view of public importance, they play a very significant role.
This is due not only to the fact that the object of unauthorized construction is an object of increased danger, creating a threat to the life and health of citizens, but also to the fact that in last years funding from the federal budget for organizing the enforcement of such judicial acts has been significantly reduced.
From the point of view of creating legal certainty in the procedure for the execution of these judicial acts, some significant steps have been taken recently. For example, Federal Law No. 441-FZ of December 28, 2013 amended the wording of Art. 107 of the Federal Law of 02.10.2007 No. 229-ФЗ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings) precisely in terms of detailing the procedure for the forced demolition of unauthorized buildings.
In the development of the provisions of the Law on Enforcement Proceedings, by letter of the Federal Bailiff Service of Russia dated March 31, 2014 No. 8, Methodological recommendations for the execution of court decisions on the demolition of unauthorized buildings were brought to the territorial authorities.
However, these documents provide that in the event of non-execution of the court decision by the debtor after the application of administrative liability measures, the issue of attracting the appropriate specialized organization to fulfill 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 No. system in the field of procurement of goods, works, services to meet state and municipal needs ”(hereinafter - Law No. 44-FZ) and indication of the Federal Bailiff Service of Russia dated January 31, 2011 No. 12 / 08-1872-VM.
At the same time, as already noted, the funds allocated from the federal budget to finance these executive actions are clearly not enough. In this regard, of particular relevance to practical activities acquire methods to ensure the execution of these judicial acts without attracting appropriate budgetary funding.
Possible options practical implementation these methods might look like this.
1. Fulfillment of the requirements of the executive document on the demolition of the unauthorized structure erected by the recoverer independently or by attracting the latter to third parties, followed by the recovery of the costs of enforcement actions from the debtor.
1.1. Financing by the recoverer of the costs of enforcement actions. The possibility of using this method of execution of a judicial act follows from the provisions of Part 1 of Art. 206 Code of Civil Procedure of the Russian Federation and Art. 174 APC RF.
This form is also expressly provided for in Part 8 of Art. 107 of the Law on Enforcement Proceedings, according to which, in order to ensure the forced demolition of a building, building or structure or their individual structures, the bailiff may offer the recoverer to incur the costs of applying enforcement measures with their subsequent reimbursement at the expense of the debtor.
However, in the course of the practical application of this rule, the question arises of how the claimant will exercise his right to finance these expenses in terms of who will be the recipient of the funds: a structural unit of the territorial body of the Federal Bailiff Service of Russia, in which enforcement proceedings are conducted, or directly by the person who will actually carry out demolition of unauthorized buildings?
Taking into account the fact that clause 3 of the Instruction on the procedure for accounting for funds received in temporary disposal structural divisions territorial bodies of the Federal Bailiff Service (approved by order of the Ministry of Justice of Russia No. 11, the Ministry of Finance of Russia No. 15n dated January 25, 2008) does not provide for the possibility of accounting for funds received as compensation for the costs of enforcement actions and the application of enforcement measures, settlements between the recoverer and the person , involved in the dismantling of the object, must be carried out directly, that is, bypassing the Bailiff Service.
1.2. Direct performance by the claimant of actions aimed at the demolition of an unauthorized structure. In judicial practice, disputes have repeatedly arisen about the legality of the participation of a claimant as a person directly carrying out actions to enforce a judicial act on the demolition of an unauthorized structure.
In almost all cases, such disputes ended in the recognition of such a method of executing a court decision as lawful.
For example, in one of the enforcement proceedings on the demolition of an unauthorized structure, the debtor applied to the court with a request to recognize as illegal the actions of a bailiff to attract a recoverer (JSC Russian Railways) in the manner prescribed by Part 8 of Art. 107 of the Law on Enforcement Proceedings, as a specialized organization directly carrying out actions to dismantle the structure. The debtor motivated his claims by the fact that, since Russian Railways acts as a party to the dispute, the said legal entity cannot act as a specialized organization that performs the functions provided for in Part 8 of Art. 107 of the Law on Enforcement Proceedings.
By the decision of the Krasnoselsky District Court of St. Petersburg dated May 10, 2017, the debtor's administrative claim was denied.
By the appeal ruling of the St. Petersburg City Court dated August 01, 2017 No. 33a16739/2017 in case No. 2a-2617/2017, the decision of the court of first instance was upheld, and the appeal was not satisfied.
In accepting the appeal ruling, the court explained that, since the debtor in the enforcement proceedings did not voluntarily execute the court’s decision to vacate the land plot, while the bailiff did not submit evidence of the impossibility of fulfilling the requirements of the executive document due to emergency circumstances, the bailiff lawfully and reasonably made a forced enforcement of a court decision by freeing the land plot from the debtor's movable property.
JSC "Russian Railways" has the technical ability to dismantle the fence of the land plot and the substation located on it, therefore, in this case, it is an appropriate specialized organization, reasonably attracted by the bailiff to enforce the court decision by freeing the land plot from the debtor's property.
From the point of view of legislative technique, the wording of Part 8 of Art. 107 of the Law on Enforcement Proceedings does not seem to be entirely successful and in practice may cause ambiguous conclusions when interpreting the term contained in it regarding an entity capable of being involved in the execution of a court decision. Part 8 Art. 107 of the Law on Enforcement Proceedings gives the bailiff the right to involve a specialized organization for the execution of a court decision. The term "organization" in the sense given to it by Part 1 of Art. 1 of the Law on Enforcement Proceedings, paragraph 1 of Art. 48 of the Civil Code of the Russian Federation, means nothing more than a legal entity.
Thus, if you follow the letter of the law, then only a legal entity can be involved in the forced demolition of a building within the framework of enforcement proceedings. In fact, this means the impossibility of attracting individual entrepreneurs as such, including those who have all the necessary permits to carry out such activities.
It seems that the wording used by the legislator in Part 8 of Art. 107 of the Law on Enforcement Proceedings is inaccurate and suggests the possibility of involving not only legal entities, but also individual entrepreneurs for the execution of a court decision.
2. Fulfillment of the requirements of the writ of execution on the demolition of the unauthorized structure with the preliminary recovery from the debtor in court of the costs of enforcement actions for the demolition of this unauthorized structure with the subsequent use of the collected funds to enforce the court decision.
The judicial practice of implementing this method of action is not numerous and is based on the application of the following algorithm of actions:
The bailiff or recoverer engages an appropriate specialist who assesses the cost of demolition of an unauthorized building;
On the basis of the submitted documents on the assessment of the cost of these works, the bailiff or the recoverer sends to the court that issued the writ of execution an application to change the method of execution of the court decision by collecting from the debtor funds in the amount necessary to fulfill the requirements for the demolition of the unauthorized structure;
Based on the ruling on changing the method of execution of the decision to demolish the unauthorized structure, the court issues a writ of execution to recover from the debtor in favor of the recoverer the necessary funds for organizing the relevant work.
For example, in the Interdistrict Department of Bailiffs for Special Enforcement Proceedings of the Federal Bailiff Service of Russia for the Volgograd Region, there was an enforcement proceeding on the obligation of a legal entity to demolish an object of unauthorized construction.
Despite the enforcement measures taken, the requirements contained in the executive document were not fulfilled by the debtor-organization. In this regard, the bailiff-performer on the basis of Article. 37 of the Law on Enforcement Proceedings applied to the court that issued the writ of execution with a request to change the method of execution of the court decision.
By the decision of the Arbitration Court of the Volgograd Region dated November 10, 2017 in case No. A12-26231/2012, the stated requirements were satisfied; the method of execution of the judicial act was changed by collecting from the debtor-organization of funds in the amount of 227,987.80 rubles necessary to fulfill the requirements for the demolition of an unauthorized building.
Satisfying these requirements, the court emphasized that the change in the method of execution of the judicial act was due to the impossibility of its independent execution by the defendant, and the choice of a new method of execution corresponds to the goal of restoring violated rights. Because in Art. 324 of the Arbitration Procedure Code of the Russian Federation, as the basis for changing the method of execution of a judicial act, the presence of circumstances that impede its execution is indicated, then the very fact of the debtor’s continuing non-execution of a court decision on the demolition of an unauthorized structure is the basis for changing the method of execution of a judicial act.
On similar grounds, the ruling of the Arbitration Court Krasnoyarsk Territory dated August 18, 2015 in case No. A33-7596/2014, the claimant's claims to change the method of execution of the court decision on the demolition of the unauthorized structure were satisfied.
3. Engagement of a specialized organization for the forced demolition of an unauthorized structure erected on a gratuitous basis (without financing enforcement actions from the federal budget) with subsequent recovery of the costs incurred from the debtor in favor of a specialized organization.
The practical implementation of such a mechanism for the enforcement of a judicial act can be carried out in the following ways.
3.1. Appeal to the court with an application to change the method and procedure for the execution of a judicial act on the demolition of an unauthorized structure by admitting a third organization as a participant in enforcement proceedings. For example, the bailiff-executor of the Lazarevsky district department of bailiffs of the city of Sochi of the Federal Bailiff Service of Russia for the Krasnodar Territory had an enforcement proceeding on the demolition of an unauthorized building.
In connection with the long non-fulfillment of the requirements of the executive document by the debtor, the bailiff - the executor applied to the court to change the method of execution of this court decision.
By the decision of the Lazarevsky District Court of the city of Sochi, Krasnodar Territory dated 10/17/2017 in case No. 2-131/2016, the stated requirements were satisfied. The court changed the method and procedure for the execution of the original court decision on the demolition of the unauthorized structure, allowing a third party, who is not a party to the enforcement proceedings, to dismantle the unauthorized structure, followed by the recovery of the costs of enforcement actions from the debtor.
This procedure is quite applicable, however, this practice seems ambiguous, since in fact the court, by its definition, authorizes the participation of a specialized organization as a person facilitating the fulfillment of the requirements contained in the executive document (clause 3, article 48 of the Law on Enforcement Proceedings).
At the same time, the analysis of interrelated provisions of Part 8 of Art. 107, art. 61, paragraph 3 of Art. 48 of the Law on Enforcement Proceedings shows that the involvement of a specialized organization to participate in enforcement actions (enforcement measures) does not need judicial authorization and is within the exclusive competence of the bailiff.
The possibility of subsequent recovery of expenses for the commission of enforcement actions incurred by the organization involved in enforcement is provided for by the norms of Art. 117 of the Law on Enforcement Proceedings; in accordance with these standards, reimbursement of expenses to the person who incurred them is made on the basis of a decision of the bailiff approved by the senior bailiff or his deputy.
3.2. Conclusion with a specialized organization of a gratuitous (not providing for payment for work at the expense of budgetary funds) contract for the demolition of an unauthorized structure with the subsequent collection of expenses confirmed by the organization from the debtor.
The mechanism for implementing such a method of executing a court decision is as follows.
The territorial body of the FSSP of Russia places in regional funds mass media and (or) on its website an announcement of readiness to involve a specialized organization to participate in the enforcement of court decisions on the demolition of unauthorized buildings free of charge. In the announced information, it is specifically stipulated that the involvement of an organization in enforcement actions does not imply payment for work from the federal budget. With an organization that has expressed a desire to participate in enforcement actions and has the necessary permits for the implementation of this type of activity, the territorial body of the Federal Bailiff Service of Russia concludes an agreement for the demolition of an unauthorized structure.
In the agreement to be without fail should reflect:
The verbatim content of the operative part of the writ of execution, on the basis of which the forced demolition of the unauthorized structure takes place;
The condition that the contract is gratuitous (clause 2 of article 423 of the Civil Code of the Russian Federation) and does not provide for payment for work from the budget, however, does not exclude the possibility of recovering the costs incurred from the debtor in the manner established by the legislation of the Russian Federation;
The condition that the organization is responsible not only for the demolition of the object of unauthorized construction, but also for the cleaning (disposal) of construction debris left after the completion of the work. The specific method of demolition of the object and the method of cleaning up construction debris left after the completion of work are determined by the specialized organization independently based on the technical, technological and other conditions for the performance of work;
Start and completion dates for the demolition of the unauthorized structure.
It should be noted that the legality of the conclusion of such an agreement, as well as the content of its conditions, were the subject of control by the judicial authorities.
So, the debtor under the writ of execution on the demolition of an unauthorized structure went to court with a claim against the Federal Bailiff Service of Russia in the Volgograd Region for recognition invalid contract for the demolition of an unauthorized structure, concluded on 12/12/2016.
In support of the stated requirements, the debtor pointed out that this agreement is of a “sham” nature, since it was concluded free of charge, however, it contains a condition on the possible recovery of expenses from him for performing enforcement actions; he also pointed out that the contract was concluded for a purpose that was obviously contrary to the foundations of law and order and morality, and contrary to Law No. 44-FZ.
By the decision of the Voroshilovsky District Court of Volgograd dated 02.05.2017 in case No. 2-1247/2017, the debtor's claims were denied.
On the debtor’s argument that his rights were violated by the fact that he may be charged the costs associated with the dismantling of the unauthorized building in favor of a specialized organization, the court indicated that the costs of enforcement actions are reimbursed to persons who have incurred these costs at the expense of debtor by virtue of h. 1 Article. 117 of the Law on Enforcement Proceedings.
The debtor's arguments that the contract was concluded for a purpose that is obviously contrary to the fundamentals of law and order and morality, and contrary to Law No. 44-FZ, were also rejected by the court and indicated that the provisions of this regulatory legal act apply to relations aimed at ensuring state and municipal needs from the respective budgets. In the case under consideration, the contract was concluded free of charge, payment for the services of a specialized organization at the expense of the budget is not made, and therefore the provisions of Law No. 44-FZ do not apply to these legal relations.
By the appeal ruling of the Judicial Collegium for Civil Cases of the Volgograd Regional Court dated August 9, 2017 in case No. 33-13543/2017, the decision of the court of first instance was left unchanged, and the appeal was not satisfied.
The further algorithm of actions is that on the basis of the concluded agreement, as well as the provisions of Articles 61, 107 of the Law on Enforcement Proceedings, the bailiff issues a decision to involve the specified organization to participate in enforcement actions. From this moment, the organization acquires the status of a specialist with all the ensuing legal consequences.
The proposed first three options for organizing work on the demolition of an unauthorized structure suggest the need to recover, within the framework of enforcement proceedings, the costs incurred for performing enforcement actions. In this regard, there is a need to ensure the collection of these costs by imposing an arrest (prohibition) on the property of the debtor.
In the legislation on enforcement proceedings, as well as in the Methodological recommendations for the execution of court decisions on the demolition of unauthorized buildings (approved by the Director of the Federal Bailiff Service of Russia on March 31, 2014), the issue of the possibility of applying interim (restrictive) measures in respect of the debtor's property at that stage of enforcement proceedings is not settled when a decision has not yet been issued to recover the costs of enforcement actions (i.e., within the framework of non-property claims).
However, this issue is resolved in law enforcement practice.
Thus, within the framework of enforcement proceedings on the demolition of an unauthorized structure, the debtor did not fulfill the requirements contained in the executive document, however, at the same time, he regularly voluntarily paid all property sanctions imposed on him in the form of a performance fee and administrative fines under Art. 17.15 Administrative Code of the Russian Federation. In this regard, the bailiff on 10/17/2016, within the framework of the said enforcement proceedings, issued a decision to prohibit the alienation of the land plot owned by the debtor, located outside the location of the object to be demolished.
By the decision of the Krasnoarmeisky District Court of Volgograd dated December 19, 2016 in case No. 2a-5228 / 2016, the said decision of the bailiff-executor was declared illegal.
As follows from the motivational part of this judicial act, the court concluded that the decision of the bailiff was illegal due to the fact that the land plot in respect of which the ban was established is not the subject of enforcement proceedings.
This decision was appealed by the bailiff-executor to the court of appeal.
By the appeal ruling of the Judicial Collegium for Administrative Cases of the Volgograd Regional Court dated April 20, 2017 in case No. 33a-6516/2017, the decision of the court of first instance was canceled, and the debtor was denied satisfaction of the stated requirements.
Revoking the decision of the court of first instance, the court of appeal noted that it follows from the disputed decision that it was issued in order to ensure the execution of the court decision, the arrest is expressed in a ban on registration actions. Under such circumstances, the court came to the conclusion that the arrest is a guarantee of ensuring the rights and legitimate interests of the recoverer and cannot be considered as violating the rights and legitimate interests of the debtor.
4. Fulfillment of the requirements of the executive document on the demolition of an unauthorized structure by organizing work on the forced demolition of this structure by local governments independently, on their own and by means.
It is known that in most cases, recoverers under executive documents are local governments or prosecutors who have applied to the court to protect the interests of the municipality in accordance with Art. 45 Code of Civil Procedure of the Russian Federation.
Unlike the Federal Bailiff Service, which does not have at its disposal the special equipment necessary for the direct execution of dismantling work, as well as the staff capable of carrying out work on such equipment, local governments, due to the wide range of powers entrusted to them, have the appropriate resources.
As a rule, local governments are the founders of various municipal unitary enterprises and municipal institutions whose functions include, among other things, the implementation of work closely related to both the construction and dismantling of buildings, structures, structures.
In a number municipalities municipal normative legal acts are specially adopted that determine the procedure for dismantling unauthorized construction objects in an administrative manner.
For example, Decree of the Administration of Volgograd No. 764 dated April 12, 2013 approved the Procedure for the Dismantling of Unauthorized Non-Stationary Facilities on the Territory of Volgograd, as well as the Regulations on Commissions for Resolving Issues on the Dismantling of Unauthorized Non-Stationary Facilities Installed on the Territory of Volgograd.
This document regulates the activities of the Volgograd administration, its structural divisions, organizations and institutions for the implementation of measures related to the dismantling of unauthorized non-stationary facilities, the installation of which does not require a building permit, located on land plots, state property on which it is not delimited, land plots that are in municipal ownership and located inside objects that are in municipal ownership.
At the same time, decisions on the dismantling of objects on the territory of Volgograd are made by commissions to resolve issues on the dismantling of unauthorized non-stationary objects on the territory of Volgograd, created in the administrations of the relevant districts of Volgograd, without applying to the judicial authorities.
The out-of-court procedure for the demolition of unauthorized construction sites was subject to scrutiny by both the prosecutor's office and the judiciary.
Thus, the deputy prosecutor of the Volgograd region appealed to the Arbitration Court of the Volgograd region with a statement to the administration of Volgograd to invalidate the decision of the administration of Volgograd dated 12.04.2013 No. 764 as inconsistent with Art. 35 of the Constitution of the Russian Federation, articles 11, 209 of the Civil Code of the Russian Federation, Art. 16 of the Federal Law of October 6, 2003 No. 131-FZ “On general principles organizations of local self-government in the Russian Federation”.
In substantiation of the stated requirements, the prosecutor's office pointed out that, since civil legislation is under the jurisdiction of the Russian Federation, the contested normative legal act adopted in excess of the competence of local governments, violates the rights of owners of non-stationary objects of movable property and constitutional guarantees for the protection of private property rights in the Russian Federation.
At the same time, by the decision of the Arbitration Court of the Volgograd Region dated September 2, 2013 in case No. A12-14507/2013, the claims were denied in full.
Decree of the Federal arbitration court of the Volga District dated November 21, 2013 in case No. A12-14507/2013, the said decision was left unchanged.
In general, such a position of the judiciary seems to be not only correct, but also consistent with the actual state of affairs related to the technical possibilities of carrying out actions to dismantle unauthorized construction sites.
In the development of such an initiative of individual local governments, taking into account the resources and capabilities they have, which were mentioned above, it seems more correct to generally withdraw from the jurisdiction of the Federal Bailiff Service of Russia the need to enforce judicial acts on the demolition of unauthorized buildings located on municipal lands. Local self-government bodies are completely self-sufficient public legal entities, not only in terms of having the appropriate power (administrative and administrative) powers, but also in terms of possessing the technical and human resources necessary to fulfill the requirement to demolish unauthorized buildings.
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1 According to the departmental statistical reporting The Federal Bailiff Service of Russia in the form No. 1-1 “Key indicators of the work of bailiffs-executors of the Federal Bailiff Service of Russia” for 2017, the share of enforcement proceedings for the demolition of unauthorized buildings in the total number of enforcement proceedings that were under execution amounted to 0.02%.
2 It should be recalled that members of a self-regulatory organization in the construction field can be both legal entities, and individual entrepreneurs(part 1 of article 55.6 Urban Planning Code RF). At the same time, legal entities and individual entrepreneurs who received all Required documents enjoy equal rights.
3 See Chapter 3 of Federal Law No. 131-FZ of October 6, 2003 “On the General Principles of Organization of Local Self-Government in the Russian Federation”.