Possible options for the execution of judicial acts on the demolition of unauthorized buildings without the involvement of federal budget funds. Drawing up estimates for the dismantling (dismantling, demolition) of a building, house, engineering networks The procedure for a bailiff

Dismantling work on writ of execution.

Do you need to demolish a building by court order?

Our organization has extensive experience in the implementation of these works.

In 2016, we carried out dismantling work at 8 facilities in accordance with writ of execution. Among them:

demolition strip foundations for a fence mounted on the plaintiff's territory
demolition of bathhouses and outbuildings built in violation of the requirements of SNiP (according to the results of the examination)
demolition of an illegally built car wash on the territory of the North-West Administrative District of Moscow
demolition of a suburban brick house built on arbitrarily occupied territory
dismantling the foundation of a house installed on a common area in SNT.
As a rule, the defendant is in no hurry to comply with the court decision on the demolition of buildings and in every possible way prevents the demolition. Waiting for his “conscience to wake up” and he will still do it on his own is futile.

So, we have a court decision on the demolition of an illegal building.

It all depends on the specific requirements specified in the writ of execution.

If the IL contains a requirement - To oblige Ivanov I.V. to dismantle (demolish) an illegally installed building, THEN

The SPI issues a decision on the initiation of an IP and sends it to the debtor and the obligatory setting of deadlines for voluntary execution. Simultaneously with this, the SPI notifies the debtor that in case of failure to fulfill the requirements of the SPI within the established time limits, dismantling can be carried out by the involved organization, with the debtor being charged the costs.

p. st. 68 Federal Law on IP

7) performance on behalf and at the expense of the debtor of the action specified in the executive document, if this action can be performed without the personal participation of the debtor;

In order for the PIE to act in accordance with paragraph 7, he, first, must resolve this issue with the creditor, as a rule, if the creditor is ready to pre-finance the dismantling work, then the PIE can attract an organization capable of performing them, subsequently the funds can be recovered from the debtor .

In principle, the procedure is not much different from the usual "scheduled" dismantling, but there are nuances:

We draw up a contract for dismantling work and draw up an estimate.
Payment for dismantling and removal of construction debris (if necessary).
The customer ensures the presence of a bailiff on the site at the time of the dismantling procedure. You may also need a "district officer". It is better if you notify him in advance about your plans.
In the case of a centralized gas supply, the presence of a gas service employee is necessary to disconnect the building from the gas supply.
The same is true with electricity. Take care of this in advance.
After the demolition is completed, a tripartite act on the completion of the dismantling procedure is signed.
If you have any other questions - call, we will be happy to answer them ....

Sincerely,

Solution from February 18, 2016

Case No. 2a-400/2016

Received Seversky city court (Tomsk region)

dated February 18, 2016 in case No. 2a-400/2016
Seversky city court of the Tomsk region, consisting of:
presiding judge Kolomina E.GN
under Secretary Ovsyannikova S.N.
with the participation of the administrative plaintiff G.,
representative of the administrative plaintiff T.,
administrative defendant bailiff of the Department bailiffs in Seversk Federal Service bailiffs of Russia in the Tomsk region B., representative of the administrative defendant of the Office of the Federal Bailiffs Service of Russia in the Tomsk region Yu.,
representative of the interested person of the Prosecutor of ZATO city of Seversk M.,
having considered in an off-site open court session in the courtroom in the building of justices of the peace at [address] an administrative case based on an administrative statement of claim by G. on recognizing as illegal the decision of the bailiff-executor of the Bailiffs Department for the city of Seversk of the Office of the Federal Bailiffs Service of Russia for the Tomsk Region M dated 06/23/2015 on the recovery of expenses for the commission of enforcement actions,
Installed:
G. went to court with the said administrative statement of claim, in which he asks to invalidate the decision of the bailiff of the Bailiffs Department for the city of Seversk of the Office of the Federal Bailiffs Service of Russia for the Tomsk Region (hereinafter the bailiff of the Bailiffs Department for the city of Seversk Federal Bailiff Service of Russia for the Tomsk Region) M. dated 06/23/2015 to recover from him the costs of enforcement actions in the amount of 102,534.65 rubles, to restore the deadline for filing an application, to recover the costs incurred by him for paying for the services of representatives in the amount of 25,000 rubles.
In support of the administrative claims, he indicated that, based on the results of consideration of the materials of enforcement proceedings dated 01.10.2012 No. **, initiated on the basis of a writ of execution - writ of execution No. ** dated 07.10.2012, issued by **, the bailiff of the Bailiffs Department for Seversk UFSSP of Russia for the Tomsk Region M. by a resolution dated 06/23/2015 collected from him the costs of enforcement actions in the amount of 102,534.65 rubles. He does not agree with the said decision, considers it to be issued unlawfully and unreasonably, since it violates his lawful rights and interests, deprives him of his property - Money. Earlier, a decision was issued on March 25, 2014 on the recovery of expenses from him for the performance of enforcement actions in the amount of 139,856.49 rubles, which he challenged in judicial order. By decision ** dated 06/02/2013, he was denied the satisfaction of the application. The appellate ruling ** the above decision was canceled, the decision of the bailiff-performer was declared illegal. The decision challenged by him in this administrative statement of claim is similar to the one challenged by him earlier. To justify the costs of demolishing the unauthorized extension, the bailiff again refers to local estimate No. **, in which the amount is simply reduced, determined to be recovered in the amount of 102,534.65 rubles. No documents in support of the specified size of the bailiff-executor is not submitted. From the presented budget documentation for the demolition of the extension and the calculation, it is not clear what characteristics of the building and its linear dimensions were taken into account when compiling it. At the same time, the volume of the walls of the building to be demolished, the remoteness of the building from the solid domestic waste landfill, the presence (absence) of heating in the building during its dismantling, and the volume of construction waste were also determined incorrectly. Prices were applied for dismantling buildings by the method of collapse of brick unheated structures, while the walls of the garage consist not only of bricks, but also of foam concrete blocks. The foundation cannot be dismantled, as it is a monolithic slab. LLC "**" performed the following demolition work: facade wall - completely; end walls - partially (the remains of the walls are recorded in the photograph after the completion of work); The scope of work according to the estimate does not correspond to the volumes actually performed. There is no conclusion in the local estimate calculation No. ** independent expertise checking the budget; there is no list and scope of work to be performed, agreed upon by the customer and the contractor. In addition, the estimate includes work on the removal of property, namely building materials, from which the building was erected, these materials are his property, in connection with which third parties did not have the right to dispose of the said property, dispose of it. There was no need for the bailiff-executor to demolish the extension forcibly, since he took steps to voluntarily enforce the court decision. The work on dismantling the canopy was partially completed, namely, prof. flooring, plastic five-chamber windows**, hinged framed gates, insulated with shut-off valves, two locks, hinges, four sectional, with a gate, a window unit, upper hinge details on the gate. However, the dismantling of the gate was carried out without retaining the hinges, the dismantling of the framing of the extension gate with welded hinges was not performed, and the extension was not dismantled mechanically. According to the local estimate report made by "**", the cost of dismantling the remaining part of the building is 24,008.08 rubles, and therefore the calculation presented by the bailiff exceeds the necessary costs many times over.
By the decision of the judge ** dated February 8, 2016, it was refused to accept for production an administrative statement of claim regarding the recognition of illegal withholding of funds in the amount of 109,449.75 rubles. (case sheet 94).
On 02/08/2016, by definition ** dated 02/08/2016, the Office of the Federal Bailiffs Service of Russia for the Tomsk Region was involved in the case as the second administrative defendant (case sheet 98).
The administrative plaintiff G. at the court session supported the administrative claims on the grounds set forth in the administrative statement, additionally explained that the decision to demolish the building, issued by the court in 2012, was not executed by him within five days, because, trying to save it, he filed an application for a stay of execution of the judgment. When he was convinced that there was no way to save the building from demolition, he signed an agreement with a contractor and began to dismantle the building in stages. Since it did not meet the deadlines set for the demolition, the bailiff-executor issued a decision on forced demolition. In the local estimate calculation of the UFSSP, it is indicated that the demolition of a two-story brick garage was carried out, although three walls were actually demolished. He believes that the bailiffs carried out the demolition of the building on purpose. The scope of work in the local estimate of the bailiff does not correspond to reality. The unlawfulness of the decision of the bailiff-executor lies in the fact that it repeatedly overestimates the cost of work, as well as incorrectly applied prices. The statement should be drawn up upon the fact of work with measuring the thickness of the walls, indicating the materials used, the mechanisms used. The estimate of the bailiff does not correspond to the work that was actually done. The cost of work in the estimate is calculated for a building with a basement, which cannot be applied, since there was no basement. The demolished structure was made of combined materials - hollow bricks, foam blocks, while a defective statement was to be drawn up reflecting the materials of the structure, volumes, tonnage, and complexity of work. In addition, he asked to recover expenses for the services of representative T. in the amount of 15,000 rubles, from the collection of expenses for representative A. in the amount of 10,000 rubles. refused.
At the court session, the representative of the administrative plaintiff T., acting on the basis of an order dated February 5, 2016 No. **, who presented certificate No. ** dated June 18, 2015 (case sheet 93), supported the position of her principal, additionally explained that despite the fact that G. did not execute the court decision in a timely manner, there was no need for the bailiff-executor to forcibly demolish the extension, since G. independently proceeded to execute the court decision.
The administrative defendant, the bailiff of the Department of Bailiffs for the city of Seversk, the Federal Bailiff Service of Russia for the Tomsk Region, B. did not recognize the administrative claims, submitted written objections, in which she indicated that G. had missed the deadline for applying to the court (case file 115- 116), further explained that at present the bailiff M., whose actions are being disputed, has resigned, the enforcement proceedings against G. were transferred to her under the act of acceptance and transfer. Due to the fact that the debtor was repeatedly set a deadline for the voluntary execution of the decision, which G. was not executed, the bailiff issued a decision to demolish the building at the expense of federal budget. The actions of the bailiff-executor were reasonable and legal in accordance with the algorithm of action during the demolition of the UFSSP building. The calculation of the cost of the demolition of the structure is compiled by the Office of the FSSP. In this case, the FSSP Department made a calculation with which G. was familiarized. The bailiff cannot challenge the estimate, does not calculate it, and therefore cannot provide evidence confirming the correctness of the calculation of the recoverable amounts. She explained that the indexes for the types of work for the 4th quarter of 2013 were applied in accordance with the changes made to the local budget report No. **. The actual unheated building was dismantled, the volume of garbage removed after the dismantling of the building amounted to 51.2258 tons, the distance of the solid waste landfill from the building was up to 5 km. Documents confirming the total volume of the building to be demolished, the characteristics of the building and its linear dimensions, which were taken into account when compiling the local estimate calculation, are currently not available to the Federal Bailiff Service for the Tomsk Region. The costs of dismantling (dismantling) the structures of buildings and structures are determined according to the collection ** "**"; the costs of loading and removing construction waste and materials obtained during the dismantling of structural elements of buildings and structures are determined according to the collection Federal estimated prices for the transportation of goods.
The representative of the administrative defendant of the Federal Bailiff Service of Russia for the Tomsk Region Yu., acting on the basis of a power of attorney dated 02.02.2016 No. ** for a period of three years, did not agree with the administrative claims at the court session, explained that the debtor had repeatedly been given a deadline for voluntary execution of the court decision, decisions were made on the obligation to fulfill the requirements of the executive document, which, in voluntary the debtor did not fulfill within five days, in connection with which, on 07/09/2013, an estimate was drawn up with a visit to the site of a specialist in the logistics department of the Office to assess the structure. After that, a state contract was concluded in the amount of 216,000 rubles. The demolition itself was carried out in the period from 11/21/2013 to 11/28/2013 by the contractor LLC "**". During the demolition, it was found that part of the dismantling work had already been done by the debtor, so the contract price was reduced. On 12/09/2013, an act of acceptance of the work performed was signed by the contractor LLC "**" and. head of the FSSP Department in the amount of 139,000 rubles, an estimate was drawn up under a state contract. Due to the fact that the court of appeal found that the building was dismantled without heating, changes were made to the local estimate. The disputed order of the bailiff-performer on the recovery of expenses was issued in connection with the introduction of changes in the local budget calculation.
The representative of the interested person of the public prosecutor of ZATO of the city of Seversk M. did not agree with the administrative claims at the court session, she asked to refuse to satisfy them in full. She explained that the decision ** had not been executed by the debtor G. for a long time, in connection with which the bailiff-executor carried out executive actions to demolish the annex, which had been arbitrarily erected by the debtor. The contested decision issued by the bailiff-performer on the basis of local estimates, approved and.about. head of the UFSSP of Russia in the Tomsk region, which was subsequently amended. This calculation and changes in it considered lawful and justified.
Having heard the explanations of the administrative plaintiff G., the representative of the administrative plaintiff T., the administrative defendant of the bailiff-executor of the Bailiffs Department for the city of Seversk of the Federal Bailiff Service of Russia for the Tomsk Region B., the representative of the administrative defendant of the Federal Bailiff Service of Russia for the Tomsk Region Yu., the representative of the interested person of the ZATO prosecutor Mr. Seversk M., having studied the written materials of the case and enforcement proceedings, the court comes to the following conclusions.
In accordance with Art. 360 of the Code of Administrative Procedure Russian Federation(hereinafter CAS RF) decisions of the chief bailiff of the Russian Federation, the chief bailiff of the constituent entity (the chief bailiff of the constituent entities) of the Russian Federation, the senior bailiff, their deputies, the bailiff-executor, their actions (inaction) may be challenged in court in the manner, established by Chapter 22 of this Code.
Part 1 of Art. 218 of the CAS of the Russian Federation provides that a citizen, organization, other persons may apply to the court to challenge decisions, actions (inaction) of a state authority, local government, other body, organization, endowed with certain state or other public powers (including decisions, actions (inaction) of a qualification board of judges, an examination commission), an official, a state or municipal employee (hereinafter referred to as a body, organization, person vested with state or other public powers), if it is believed that their rights, freedoms and legitimate interests have been violated or contested , obstacles have been created to the exercise of their rights, freedoms and legitimate interests, or any obligations have been unlawfully imposed on them. A citizen, organization, other persons may apply directly to the court or challenge the decisions, actions (inaction) of a body, organization, person endowed with state or other public powers, to a higher authority, organization, to a higher subordinate person, or use other out-of-court dispute resolution procedures.
Within the meaning of Art. 226 of the CAS RF, in order to recognize the actions (inaction) of the bailiff as illegal, the court must establish the existence of two conditions: the contested actions (inaction) do not comply with the law or other regulatory legal act; the disputed actions (inaction) violate the rights and freedoms of the applicant.
In accordance with ch. 1, 11, 12, 17 st. thirty federal law dated 02.10.2007 No. 229-FZ “On enforcement proceedings» the bailiff initiates enforcement proceedings on the basis of a writ of execution at the request of the claimant, unless otherwise provided by this Federal Law.
If the executive document first entered the bailiff service, then the bailiff in the decision to initiate enforcement proceedings sets a deadline for the voluntary execution by the debtor of the requirements contained in the executive document and warns the debtor about the enforcement of these requirements after the expiration of the period for voluntary execution with recovery from him performance fee and expenses for the performance of enforcement actions, provided for by Art. 112 and 116 of this Federal Law.
According to Part 1 of Art. 64 of the Federal Law of 02.10.2007 No. 229-ФЗ “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 fulfillment of the requirements contained in the executive document. At the same time, by virtue of clause 4 of this article of the law, the bailiff has the right to give instructions to individuals and legal entities to fulfill the requirements contained in executive documents.
Thus, the list of works necessary to fulfill the requirements of the executive document is determined by the bailiff.
By virtue of h. 1 Article. 116, p. b, part 2, art. 116 of the Federal Law “On Enforcement Proceedings”, the costs of enforcement actions are the funds of the federal budget, the recoverer and other persons involved in enforcement proceedings, spent on organizing and conducting enforcement actions and applying enforcement measures. The expenses for the commission of enforcement actions include the funds spent on the commission necessary action in the process of execution of the executive document.
Part 3 of Art. 117 of the Federal Law "On Enforcement Proceedings" provides that the collection of expenses from the debtor for the performance of enforcement actions, their transfer to the federal budget in the cases provided for by this Federal Law, as well as the reimbursement of expenses to the person who incurred them, are made on the basis of a decision of the bailiff -performer approved by the senior bailiff or his deputy.
Based on the foregoing, the bailiff recovers from the debtor the costs incurred in connection with the commission of actions that are aimed at fulfilling the requirements of the executive document.
It was established at the court session and was not disputed by the persons participating in the case that on 01.10.2012 the bailiff-executor of the OSB for the city of Seversk of the UFSSP of Russia for the Tomsk region M. initiated enforcement proceedings No. ** on the basis of a writ of execution No. ** dated 07.09.2012 issued by **, on the obligation of G. to demolish a 2-storey unauthorized building to a previously built garage at [address] on a public land plot with an area of ** sq.m and a shed on a public land plot of ** sq.m. The recoverer in this enforcement proceeding is the public prosecutor of the closed city of Seversk. By this decision, the bailiff M. set the debtor G. a period for voluntary fulfillment of the requirements contained in the executive document, 5 days (ld 164, 177).
As follows from the case file and is confirmed by the explanations of the parties, the bailiff G. repeatedly set a new deadline for fulfilling the requirements of the executive document, the latter was warned that if the bailiff organizes execution in accordance with the rules provided to him by the legislation on enforcement proceedings, the costs of enforcement actions will be reimbursed to the federal budget, the recoverer or persons who have incurred such costs, at the expense of the debtor, however, G. did not fulfill the requirements of the executive document within the time limits established by the bailiff.
From the explanations of the administrative plaintiff G., given at the court session, it follows that during the year he did not execute the court decision due to the fact that he intended to save the building from demolition, for which he repeatedly applied to the court with applications for a deferment of the execution of the court decision .
On March 27, 2014, the bailiff M. issued a decision by which the enforcement proceedings against G. No. ** ended, in connection with the actual execution of the executive document (ld 162-163).
On 06/23/2015, bailiff M., on the basis of a writ of execution dated 06/23/2015, issued by the Department of Bailiffs for the city of Seversk, Federal Bailiff Service of Russia for the Tomsk Region, initiated enforcement proceedings against G. for the recovery of expenses for enforcement actions (l.d 152).
According to clause 3.1.7 of the Guidelines for organizing work to reimburse the costs of enforcement actions (approved by the Federal Bailiff Service of Russia on July 24, 2013 No. 01-10), a document confirming the occurrence of expenses for the demolition of an illegally erected structure, troubleshooting, etc. , is an act of work performed, signed by the parties government contract(agreement) for the provision of services for the demolition of an illegally erected structure, troubleshooting, etc.
The court established that the specialists of the logistics department compiled a local estimate No. **, which determined the cost of the demolition of unauthorized buildings in the amount of 216,614.82 rubles. (case file 171-176).
As seen from the case file, on 11/08/2013 between the Federal Bailiff Service for the Tomsk Region and OOO "**" signed State Contract No. ** for the demolition of unauthorized buildings: two-storey garage and a canopy on a land plot of common use at [address] within the framework of enforcement proceedings dated 01.10.2012 No. **, under the terms of which total cost of the contract is 216,614.82 rubles, general term contract 38 days (from 11/08/2013 to 12/01/2013), the payment period for the work performed is from 12/07/2013 to 12/17/2013 (case sheet 165-170).
It also follows from the materials of the case that the Federal Bailiff Service of Russia for the Tomsk Region made changes to the local estimate calculation No. **, according to which the cost of demolition of unauthorized buildings was determined in the amount of 102,534.65 rubles. (case file 153-154).
The act of acceptance of the work performed under contract No. ** dated 03.10.2013 (case sheet 33-34) confirms and is not disputed by the administrative defendants that the debtor G. independently performed part of the work to dismantle the building, including dismantling the canopy, windows , doors, removed materials remaining after the implementation of these types of work.
According to the report of the Federal Bailiff Service of Russia for the Tomsk Region, submitted by the respondent to confirm the scope and list of works for the demolition of the structure, the actual volume of garbage removed after the dismantling of the building amounted to 51.2258 tons (previously 140 tons); remoteness of the solid waste landfill from the building up to 5 km (previously 15 km); the unheated building was dismantled.
Part 2 of Art. 62 of the RF CAS establishes that the obligation to prove the legality of the contested regulatory legal acts, decisions, actions (inaction) of bodies, organizations and officials vested with state or other public powers rests with the relevant body, organization and official. These bodies, organizations and officials are also required to confirm the facts to which they refer as the basis for their objections.
By virtue of ch. 9, 10 Art. 226 of the CAS RF, when considering an administrative case on contesting a decision, action (inaction) of a body, organization, person vested with state or other public powers, the court checks the legality of the decision, action (inaction) in the part that is disputed, and in relation to the person who is an administrative plaintiff, or persons in defense of whose rights, freedoms and legitimate interests an appropriate administrative statement of claim. When verifying the legality of a decision, action (inaction) of a body, organization, person vested with state or other public powers, the court is not bound by the grounds and arguments contained in the administrative statement of claim to recognize as illegal the decision, action (inaction) of the body, organization, person endowed with state or other public authority, and ascertains the circumstances referred to in chh. 9 and 10 of this article, in full. Unless otherwise provided by this Code, when considering an administrative case on contesting a decision, action (inaction) of a body, organization, person vested with state or other public powers, the court finds out whether the rights, freedoms and legitimate interests of the administrative plaintiff or persons in defense of the rights, freedoms and legitimate interests of which an appropriate administrative claim has been filed; whether the deadlines for applying to the court were observed; whether the requirements of normative legal acts that establish: the powers of a body, organization, person vested with state or other public powers to make a contested decision, commit a contested action (inaction) have been met; the procedure for making a contested decision, committing a disputed action (inaction) if such a procedure is established; grounds for making the disputed decision, committing the disputed action (inaction), if such grounds are provided for by regulatory legal acts; whether the content of the disputed decision, the contested action (inaction) performed corresponds to the normative legal acts regulating disputed relations. In the event that in administrative cases on contesting decisions, actions (inaction) of bodies, organizations, persons vested with state or other public powers, federal laws restrict the grounds for challenging such decisions, actions (inaction) (in particular, in relation to certain decisions, actions (inaction) of qualification boards of judges and examination commissions), the court finds out the circumstances specified in paragraphs. 1 and 2, “and “b” of paragraph 3 of part 9 of this article. If the grounds established by federal laws for challenging the action (inaction) of a body, organization, person vested with state or other public powers are not among these circumstances, the court checks these grounds.
According to part 11 of Art. 226 CAS RF the obligation to prove the circumstances specified in paragraphs. 1 and 2 h. 9 of this article, is assigned to the person who applied to the court, and the circumstances specified in paragraphs. 3 and 4, part 9 and part 10 of this article - on the body, organization, person endowed with state or other public powers and who made the contested decisions or committed the contested actions (inaction).
In violation of these norms, the administrative defendants, referring to the fact that the total volume of garbage removed after the dismantling of the building amounted to 51.2258 tons, the distance of the solid waste landfill from the building was up to 5 km, did not provide evidence of this, nor did they provide evidence that they reduced the amount of enforcement costs after it was established in November 2013 that part of the building had already been dismantled. There is no evidence that during the dismantling of the remaining walls of the structure, the tariff for their dismantling, applied to buildings without heating, was taken into account, since this is not seen from the submitted state contract No. ** and changes to the local estimate calculation No. **.
Reducing the cost of demolition work and determining for recovery from G. 102,534.65 rubles. in reimbursement for the costs of enforcement actions, the defendant did not indicate, including in the local estimate, what characteristics of the building and its linear dimensions were taken into account when compiling it, while the administrative plaintiff disputes these circumstances, and the obligation to prove these circumstances and legality actions to impose on the debtor the costs of enforcement actions lies with the administrative defendant.
The amendments to the local budget calculation No. ** (case sheet 153) indicate that a brick unheated building, including a basement, was dismantled, but no evidence was provided that the building with a basement was dismantled.
Based on the foregoing, the court concludes that the administrative defendants did not provide evidence confirming the amount of expenses for enforcement actions in the amount of 102,534.65 rubles, with a calculation of these amounts to be recovered from G., while from of the local budget calculation No. **, compiled by OOO **, submitted by the administrative plaintiff, it follows that estimated cost demolition works amounted to 24,031.09 rubles.
The defendant's reference to the fact that the bailiff does not draw up a local estimate, and therefore cannot provide evidence of the amount of the amounts recovered, is not taken into account by the court, since it contradicts the provisions of Art. 62 of the CAS RF and the law "On Enforcement Proceedings".
Under such circumstances, taking into account the foregoing, G.’s administrative claims to invalidate the decision of the bailiff of the Bailiff’s Department for the city of Seversk of the Federal Bailiff Service of Russia for the Tomsk Region M. dated 06/23/2015 on the recovery of expenses for enforcement actions, as contradictory Federal Law of 02.10.2007 No. 229-FZ "On Enforcement Proceedings", are legal, reasonable and subject to satisfaction.
Considering the statement of the defendant's side about the missed deadline for applying to the court, the court comes to the following.
By virtue of h. 3 Article. 219 of the CAS RF, an administrative statement of claim for the recognition of illegal decisions, actions (inaction) of a bailiff may be filed with the court within ten days from the day when a citizen, organization, other person became aware of the violation of their rights, freedoms and legitimate interests.
The decision of the bailiff M. on the recovery from G. of the costs of enforcement actions in the amount of 102,534.65 rubles. issued on June 23, 2015 (case file 8-9).
The specified resolution was handed over to the debtor on 01/13/2016, which is confirmed by a mark on the specified resolution (case sheet 8-9).
On January 22, 2016, G. applied to the Seversky City Court of the Tomsk Region with an administrative statement of claim challenging the above decision (case file 2-7).
Under such circumstances, the court concludes that G. has not missed the deadline for filing the said administrative claim with the court.
With regard to G.'s claims to recover from the defendants the legal costs of paying for the services of a representative in the amount of 15,000 rubles, the court comes to the following.
By virtue of h. 1 Article. 103 of the CAS of the Russian Federation, court costs consist of a state fee and costs associated with the consideration of an administrative case.
In accordance with Art. 106 of the CAS RF, the costs associated with the consideration of an administrative case, among others, include the costs of paying for the services of representatives.
In accordance with Art. 112 of the CAS of the Russian Federation to the party in whose favor the court decision was made, at its written request, the court awards, on the other hand, the costs of paying for the services of a representative within reasonable limits.
As follows from paragraph 2 of the resolution of the Plenum Supreme Court RF dated January 21, 2016 No. 1 “On Certain Issues of the Application of the Legislation on Reimbursement of Costs Related to the Consideration of a Case” court costs include expenses incurred by persons participating in the case, including third parties, interested parties in an administrative case (Article 106 CAS RF).
Paragraphs 10, 11 of the said resolution stipulate that the person claiming the recovery of court costs must prove the fact of their incurring, as well as the connection between the costs incurred by the said person and the case being considered in court with his participation. When resolving the issue of the amount of amounts recovered in reimbursement of legal costs, the court does not have the right to reduce it arbitrarily, unless the other party raises an objection and does not provide evidence of the excessive costs recovered from it (part 4 of article 2 of the CAS RF).
At the present court session, the interests of the administrative plaintiff G. were represented by T., acting on the basis of an order dated 02/05/2016 No. **, presenting a certificate No. ** dated 06/18/2015 (case sheet 93).
At the hearing, it was established that G. incurred the costs of providing him legal services T. in the form of studying materials, drawing up an administrative statement of claim, representing his interests in court, to whom a remuneration of 15,000 rubles was paid, which is confirmed by a receipt for credit note No. ** dated January 21, 2016 (case sheet 81), agreement from the provision legal assistance dated 01/21/216, concluded between G. and lawyer T. (case sheet 82).
The obligation of the court to recover the costs of paying for the services of a representative, incurred by the person in whose favor the judicial act was adopted, from another person participating in the case, within reasonable limits, is one of the legal methods provided for by law, directed against unreasonable overstatement of the amount of payment for the services of a representative, and thereby - to implement the requirement of Article 17 (Part 3) of the Constitution of the Russian Federation, according to which the exercise of human and civil rights and freedoms must not violate the rights and freedoms of other persons.
As follows from paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 21, 2016 No. 1 “On some issues of the application of legislation on reimbursement of costs associated with the consideration of a case”, the costs of paying for the services of a representative incurred by the person in whose favor a judicial act was adopted are recovered court from another person participating in the case, within reasonable limits (Article 112 of the CAS RF).
The reasonableness of the size as an assessment category is determined individually, taking into account the characteristics of a particular case.
By virtue of paragraph 13 of the said resolution of the Plenum, such expenses for paying for the services of a representative, which, under comparable circumstances, are usually charged for similar services, should be considered reasonable. When determining reasonableness, the volume of the claimed claims, the price of the claim, the complexity of the case, the volume of services rendered by the representative, the time required for the preparation of procedural documents, the duration of the consideration of the case and other circumstances may be taken into account. The reasonableness of the legal costs for paying for the services of a representative cannot be justified by the fame of the representative of the person participating in the case.
When determining the amount of reimbursement for the services of representative T., the court takes into account the category and degree of complexity of the administrative case, the result of the consideration of the administrative case, the work done by the representative, namely: drawing up an administrative statement of claim (case files 1-7), participation in preparations cases for trial on February 16, 2016 and February 17, 2016, in two off-site court hearings on February 17, 2016 and February 18, 2016.
Taking into account the correlation of the costs incurred with the volume of the protected right, the balance of interests of the parties, the principles of reasonableness and fairness, the court recognizes these costs as being reimbursed to the applicant G. in the amount of 10,000 rubles.
When determining the person from whom court costs are subject to recovery, the court proceeds from the following.
In accordance with clause 1 of the Model Regulations on the territorial body of the Federal Bailiff Service, approved by Order of the Ministry of Justice of Russia dated May 21, 2013 No. 74, the territorial body of the Federal Bailiff Service is the Directorate (department) of the Federal Bailiff Service, operating in the territory of the subject of the Russian Federation.
According to the Regulations on the Federal Bailiff Service, approved by Decree of the President of the Russian Federation No. 1316 dated October 13, 2004, the Federal Bailiff Service is federal agency executive branch, performs the functions of the main manager of the federal budget funds provided for the maintenance central office FSSP of Russia and territorial bodies, as well as for the implementation of the functions assigned to it (Article 1, Clause 8, Article 6 of the Regulation).
Taking into account the above, as well as the fact that the Department of Bailiffs for the city of Seversk of the Federal Bailiff Service of Russia for the Tomsk Region, where the bailiff operates, whose decision G. is appealing against, is not legal entity, and is structural unit Chief Manager of the Federal Budgetary Fund of the UFSSP for the Tomsk Region, the court concludes that the recovery of court costs in favor of G. from the UFSSP of Russia for the Tomsk Region.
Based on the above, guided by art. 175-180, 227 CAS RF,
I decided:
satisfy administrative claims.
To recognize as illegal the decision of the bailiff-executor of the Department of bailiffs for the city of Seversk of the Office of the Federal Bailiffs Service of Russia for the Tomsk Region M. dated 06/23/2015 on the recovery of expenses for the commission of enforcement actions as contrary to Federal Law No. 229-FZ dated 10/02/2007 "On enforcement proceedings" and violating the rights, freedoms and legitimate interests of G.
To recover from the Office of the Federal Bailiff Service of Russia for the Tomsk Region in favor of G. the costs of paying for the services of a representative in the amount of 10,000 rubles.
Oblige the bailiff-executor of the Bailiffs Department for the city of Seversk of the Office of the Federal Bailiffs Service of Russia for the Tomsk Region to recalculate the amount of expenses for performing enforcement actions within one month from the date the court decision comes into force.
Publish a notice of the adoption of this decision within one month from the date of its entry into force in the official print publication of the UFSPP of Russia for the Tomsk Region.
The decision can be appealed to the Tomsk Regional Court within a month from the date of its adoption in the final form by filing an appeal through the Seversky City Court of the Tomsk Region.
presiding E.N. Kolomina

Document overview

The procedure for the execution of judicial acts on the demolition of unauthorized buildings has been determined. It extends to objects capital construction, and temporary buildings (garages, kiosks, billboards, etc.).

Enforcement proceedings are initiated on the basis of an enforcement document at the request of the recoverer. A plan is attached to the case. land plot indicating entrances and entrances to it. Photos of the object to be demolished are attached. The bailiff takes measures aimed at prohibiting the commission of registration actions both in relation to the building to be demolished and the land plot on which it is located.

The debtor is given a period during which he can voluntarily fulfill the requirements for the demolition of the object. In case of their non-fulfillment, a decision is issued on the collection of a performance fee, a new period is set, after which the enforcement will be carried out. If the debtor has not fulfilled the requirements without good reason within the newly established period, the bailiff draws up a protocol on an administrative offense.

As a result of the demolition, an act is drawn up. It is signed by the persons present at the same time.

The costs of demolition, as well as the storage of seized property, shall be reimbursed at the expense of the debtor.

The procedure for actions of the bailiff-executor has been established if the object to be demolished is in operation, citizens permanently live in it, or unauthorized persons and pets are found there.

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.

Grounds for the demolition of unauthorized buildings

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 can be brought by the administration municipality to your building. Consider the grounds for filing a demolition claim, both against a neighbor, and bringing it against you by third parties or government bodies:

Construction without the consent of the neighbor. You can file a lawsuit to demolish an unauthorized structure that violates the rights of your neighbors. According to the law, the construction of capital structures along the boundary of plots is prohibited without obtaining the appropriate consent of the owners of neighboring plots. Disputes arise if the owner of one of the plots changes, and the neighbors are under construction. The new owner can file a demolition claim on the grounds that he did not give permission for it. If the defendant provides the previous owner's official permission, this will be enough to prove the legality of their actions.
Building without a permit. The demolition of a garage on the border with a neighboring land plot is possible if its gates block the neighbor's plot, and the car leaves for someone else's territory. Another reason for the demolition is the lack of official permission from the authorities for the construction. If there is no garage on the site plan, in the cadastral and technical passport, then the court may order the owner of the site to demolish the unauthorized structure. It will be problematic and expensive to legalize the construction, but often violators of the law go for it.
Violation of sanitary norms and rules. You can file a lawsuit to move a toilet that is located on the street at the border of the plots, arguing that biological waste pollutes the soil and unpleasant odors negatively affect the quality of life.
Unauthorized construction. Lack of relevant documentation legalizing the right to erect an object. These circumstances are the basis for presenting a claim for demolition against you. In such a situation, the only optimal solution to your problem would be to file a counterclaim for recognition of ownership of the unauthorized object.
Violation of the boundaries of your own site. The erection of a building by you outside the boundaries of your land. In this case, as a recommendation, we advise you to cadastral works on the removal of boundaries in kind. Having determined the boundaries of your site with accuracy, you will exclude the possibility of building, for example, on public lands that are assigned to the administration.
Violation of land use and development rules. Today, there are often situations when people build objects in territories that are not provided for. Well, for example, individual housing construction on gardening lands. In this case, protection of your rights is also possible only in court.
Lack of a person's right to use a land plot. This situation may arise in the event of termination of the lease agreement or the initial unauthorized seizure of land. To resolve the current situation, you need to contact the owner of the land plot, complain to the regulatory authorities or file a lawsuit in court - all this can be done, incl. with our help.

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 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 YouTube channel and free consultation on land issues in the comments of the video will be held professionally and on time.

The procedure for the demolition of unauthorized buildings by a court decision

Disputes with neighbors and other owners of adjacent lands can be resolved without 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. Judicial proceedings will include the following steps:

Pre-trial settlement of the dispute and preparation for trial

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:

construction by the defendant of an object on the territory of your land plot in whole or in part;
neighbor violation building codes and rules in terms of regulatory indents from the adjacent border, and / or from your capital structure;
erection by a neighbor of a building that may pose a threat to you or other persons;
filing a formal claim for the demolition of a fence or the transfer of another building;

Court for the transfer (demolition) of a toilet, barn or other building

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 boundaries (within the boundaries) 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.

Execution of a court decision on the demolition or transfer of a building

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 so 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 execute the court decision, 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).

Failure to comply with a court decision on the demolition of an unauthorized building

According to the amendments to the civil legislation of 08/04/2018 that have entered into force, the demolition of an unauthorized building takes 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:

After the writ of execution is received by the bailiff, the situation will unfold as follows: since the deadline for voluntary execution has expired, the bailiff sets the debtor a new deadline for execution for the demolition of unauthorized construction.
If the debtor in this case does not comply with the requirements contained in the executive document, without good reason, the bailiff draws up a report on an administrative offense against the debtor. At the same time, it is important to understand that the application of measures to the debtor that entail adverse consequences for him may not always lead to the desired result. Often, debtors in such categories of cases seek to evade the obligation to demolish an unauthorized building.
If, after all the actions taken by the bailiff, the demolition of the building did not occur, the bailiff has the right carry out the demolition illegal building. Demolition of the unauthorized structure will be carried out at the expense of budget funds followed by their recovery from the debtor. It should only be taken into account that this procedure is not carried out quickly and in practice is quite complicated. Since it is necessary to coordinate the allocation of funds with the management of the Federal Bailiff Service of the Russian Federation in the subject. In addition, the demolition of an illegal building often involves the investment of significant amounts of money, the organization of a tender for work and many other related actions, combined with the significant employment of the bailiffs themselves - all this allows us to conclude that
that the procedure for the demolition of unauthorized buildings can stretch for a very long time.

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.

Postponement of the execution of the demolition court decision

The civil legislation gives the debtor, the recoverer, as well as the bailiff-executor 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.

Assistance of a lawyer for unauthorized buildings

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.

Motivated
solution made 17.08.2015

IN THE NAME OF THE RUSSIAN FEDERATION

08/13/2015 Sysertsky 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 illegal, 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 Sysertsky 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 the execution of non-property requirements contained in the executive document, in accordance with Article. (as amended on 12/02/2019) > "> (with amendments and additions, 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 clause 3.10 of the said Letter, 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 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 authority, 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 structure, 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" on its own with the subsequent collection of expenses from the "Debtor" can only be carried out if the recoverer makes such a decision, on the basis of information obtained in the framework of 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 decide 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 operation 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 extension, 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 hearing objected to the stated requirements, explained that the bailiff had done a lot of actions, just an unenforceable decision had been made. The bailiffs repeatedly went to the site and made sure that technically the decision could not be executed.

He provided a review to the court, indicating that the bailiffs have objective reasons that prevent the execution of the decision of the Sysert District Court dated DD.MM.YYYY

One part of the reasons is organizational and technical. The design of the building does not allow demolition of part of it at a distance of 1 meter from the border of the land plot, as required by a 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. Order of execution court proceedings 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.

After listening to the explanations of the representative of the applicant, the interested person, having examined the case materials, 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 (inaction) of state authorities, local governments, officials, state or municipal employees, challenged in civil proceedings, include collective and sole decisions and actions (inaction), 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 the 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 of the decision, 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 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.

Based on writ of execution No. 40817810604900317040 dated DD.MM.YYYY, issued by the Sysert 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 enforcement 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 in and release from the said building land plot No. 40817810604900317040 on street 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 performing 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 the 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 upheld, and 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 from 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 in relation to the debtor in accordance with the Code of the Russian Federation on administrative offenses 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-executor after the initiation of enforcement proceedings. If, in accordance with this Federal Law, a period is established for the voluntary fulfillment of the requirements contained in the executive document, then 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 structure, 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 was developed and approved " Guidelines on the execution of judicial acts on the demolition of unauthorized buildings" (previously valid 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.

For the purpose of forced demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve 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 for the 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 building 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 for the demolition of an unauthorized structure, for the release of a land plot, and for the obligation of the debtor to vacate the land plot. In parts 3, 4 of article 107 of the Law, a list of actions is clearly given, which includes the release of the land plot specified in the executive document from movable and real estate. 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. The levers specified in Article 107 of the Law "On Enforcement Proceedings", in the Methodological Recommendations, are subject to application in the event that the debtor voluntarily fails to fulfill the requirements of the writ of execution within the established time limits.

Thus, in order to execute the writ of execution containing the requirement to oblige the debtor at his own expense to demolish the buildings indicated in the writ of execution and release the occupied unauthorized buildings land, the bailiff was obliged to be guided precisely by the provisions of Articles 68, 107 of Federal Law N 229-FZ, 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. The Russian Federation 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 fulfillment of 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 a 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 the 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 enforce 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 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 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 Sysert District Court.

Referee: Torichnaya M.V.

Court:

Sysertsky District Court (Sverdlovsk Region)