The legislation of the housing and communal services sphere clearly spells out who owns the basement in an apartment building: the owners of apartments must manage the drawn footage. But, as you know, Russian laws are imperfect, and therefore the question of dividing the basement or attic is often the subject of a dispute between residents, entrepreneurs and local authorities. Potential owners are ready to fight for the right to use additional square meters to the last, and some are so sure of their rightness that they reach the highest instances of justice. In judicial practice, you can find enough precedents on this issue. Let’s try and we will find out, after all, whose basement is in the apartment building and who can use the underground space at their discretion.
What is the basement for?
The contradictions in the existing and invalid legal acts often lead to the fact that the basement floors of the building are abandoned and abandoned. The parties cannot agree who owns the basements in apartment buildings. Residents of high-rise buildings themselves, by no means in all cases, have the right to equip the dungeon in their own interests.
The thing is that the main purpose of the underground floors is the placement of communications, equipment and technical devices for year-round maintenance of the building. Here, in an underground room, there is usually a heating main and central nodes of electric networks, water supply, heating, ventilation and other engineering systems. This part of the underground zone should only be operated for technical purposes by specialized services for the placement, modernization and repair of equipment that supplies electricity, heat, hot water, etc. to apartments.
On the other hand, the basement in an apartment building normally includes non-technical areas, which allows you to use the territory for the organization of shops, warehouses, offices and other purposes.
What the law says
If we turn to article 36 of the Housing Code of the Russian Federation, it becomes extremely clear whose property. The basements of apartment buildings are shared premises, the rights to which each tenant has. Owners of apartments themselves can decide how and for what purposes to use the underground footage, since they are its full owners.
At the same time, the Supreme Arbitration Court of the Russian Federation established special rules for the ownership and operation of basement floors. It was decided that the basement, not previously attributed to the common property and intended for individual use, becomes property at the same time as obtaining the right to own the apartment. From this it follows that the right to choose the basement is automatically vested with the one who first purchased housing in a high-rise building. Accordingly, this owner benefits from an earlier acquisition. The remaining tenants who settled later can apply for the remaining free sections of the underground space.
Article 290 of the Civil Code of the Russian Federation is devoted to the use and ownership of the basement in an apartment building. Based on its contents, it follows that the owners of apartments in a high-rise building on the right of common shared ownership are the owners of all non-residential premises, supporting structures, as well as equipment serving more than one apartment. Owners cannot alienate their share of the total property. It is also impossible to transfer the ownership of this share separately from the ownership of the dwelling.
Article 235 of the same Code lists the premises and territories that the owners of apartments have the right to use. These include:
- basement and other utility rooms for the placement of special equipment, including the attic, extensions, etc .;
- interstorey landings, stairs;
- elevators and corridors.
The main condition is that the space is not intended for special technical purposes.
Basement owners
Square meters of the lower floor of the building may belong to the owners of residential premises in a high-rise building under the following conditions:
- at the time of transfer (sale) of state or municipal property to private ownership of the living space, the underground floor was not owned by third parties;
- the basement of an apartment building is actually separated from the housing and has no special purpose;
- on the ground floor there is utility equipment put into operation to service more than one apartment.
If the basement of a multi-story building is the property of all tenants, then without the consent of even one of them it is impossible to lease the premises, sell, exchange or make any other transaction. It is also allowed to find the territory of the lower floor in private ownership, if it is occupied by an individual by the advantage of early acquisition and acquisition. If we are talking about municipal apartments, that is, residential premises that are the property of local authorities, the basement refers exclusively to the municipal fund. In this case, the space is permissible to use exclusively for maintenance of utility networks.
What is self-capture
It often happens that the premises of the basement, despite the implementation of the privatization procedure, are occupied by other persons, without the knowledge and permission of the owners. In this case, the illegal owners of the basement confidently stand their ground, proving that they occupied this area on legitimate grounds. One of them is the reconstruction and equipment of the basement for personal funds.
By the way, this argument is not enough to secure the unlawful invader the right to sole ownership of the underground premises. After all, the law defines who can use the basement in an apartment building. Such a situation as the unauthorized seizure of the underground floor is most often encountered in houses of the secondary housing stock built during the Soviet period.
To establish justice and return square meters to the rightful owners, it will be necessary to organize a meeting of residents, to establish when the change of ownership has occurred, to redistribute the square of the underground floor as it should. It is worth noting that in multi-storey residential buildings, decisions on the operation of areas that are shared ownership are made at housing assemblies.
Who should be responsible for the state of the basement
In this context, the owners, that is, the residents of the apartment building, are also responsible. Consequently, the costs of maintaining the basement are divided in equal proportion by all shared owners. As for repair and reconstruction, if necessary, all expenses are borne by the management company, with which a contract has been concluded with the residents of the house. Public utilities carry out their activities for a fee fixed in the agreement.
You can get the keys to the basement of the apartment building in the management company, which is responsible for the maintenance of technical affairs and public services of the apartment building. In buildings where the underground or ground floor is owned by tenants on the basis of shared ownership, each resident can access if desired. It is important to understand that the management company does not have the authority to restrict owners' access to the basement and to establish their own rules that were not agreed upon at the meeting of residents.
Is it possible to privatize a basement
If the underground floor is a shared property, its sale, rental and other operations require the participation and consent of all owners. To privatize a basement area, you have to go through a long and complicated procedure. However, one cannot deviate from the algorithm for its implementation. Otherwise, the contract can be challenged, and the transaction on the transfer of the basement to private ownership will be declared illegal.
The privatization initiator needs to take care of organizing a meeting of residents in advance. Everyone who owns a basement in an apartment building, that is, all apartment owners, must be given an agenda that will indicate the main issues for discussion, including the alienation of the underground territory of the building and changing its borders. It is important to notify the owners and representatives of the management company no later than 10 days before the planned date of the meeting.
During the training, discussion and voting are held, the results of which will be recognized only if more than 50% of the total number of owners and members of the HOA are present. The decision to transfer ownership of the basement is made by a majority vote. Based on the results of the meeting, a resolution is drawn up - a document, on the basis of which the further procedure for transferring the basement (its share) to private property will be carried out.
After receiving the minutes of the meeting of tenants, it is necessary to draw up a redevelopment project of the underground floor to be privatized. This paper must be coordinated with several authorities, including the sanitary-epidemiological services, fire supervision authorities and other control structures. A prepared reconstruction project must be submitted to BTI. If the project is approved at this level, you can begin to begin work on the redevelopment of the basement.
The next stage is an examination of the technical condition of the premises, as a result of which the owner will receive an opinion. At the final stage of this procedure, again applying for the BTI, but now for the renewal of the registration certificate of the apartment building. Whose basement (underground section), he must contact the Rosreestr with a statement on the issue of a certificate of registration of ownership. By the way, an individual does not have the right to privatize the entire quadrature under the building.
Rental
If the basement is a common property, that is, it belongs to all owners of apartments of a residential building, then it can be leased to trade and non-profit organizations only if a positive decision was made by a majority of votes at the general meeting.
However, the owners have serious restrictions on their rights regarding the basement. Either the management company or the partnership of homeowners can actually manage the common property of the apartment building. It is these managerial links that determine the purpose of the proceeds from the lease. For example, finances can be used to repair, equip a yard, build a playground, regularly clean the surrounding area, install CCTV cameras and other public needs.
Possible targeted spending of finances from the basement rental is discussed in advance when concluding an agreement between the management company and apartment residents. Regardless of who the owner of the basement in an apartment building, he always has the right to lease his underground territory.
Is the use of private basements legal?
Today, cellars are available in almost all houses built back in Soviet times. Underground premises are designed specifically to ensure the vital functions of the entire structure. Heating risers, hot and cold water supply, a gas pipeline and other mechanical, electrical, sanitary facilities with shut-off taps are located in the basements of apartment buildings.
If at least one apartment has become private in the house, the basement should not be touched.
Disputes related to the ownership of basements and attics have begun to flare up everywhere since the institution of residential private property appeared in our country. With the beginning of general privatization, lawsuits began to come to the courts non-stop about the rights of homeowners, and not on their residential footage, but on the quadrature of attics, basements, elevators, landings and flights.
Whose property is the basement of an apartment building does not matter. It is important that the management company or HOA always have access to the basement. So, for example, in the event of an emergency, a separate entrance is disconnected from the water supply, but if the employees of the utility company do not have access to the risers with shut-off cranes, you will have to shut off the water for the whole house.
Often the problem is compounded by the fact that at night, as well as on weekends and holidays, it is impossible to get to utility networks. If the owner of the basement (or part of it) is an entrepreneur, then organizations servicing the building often face the inability to access engineering equipment for the purpose of routine inspection, repair or replacement of old communications at the allotted time for this. In the absence of a businessman or his representatives, public utilities are not able to get into the basement.
In addition, persons who privatized the underground premises often redevelop it without an approved project, permits and approvals from a number of authorities. Such reconstruction is in most cases illegal. In addition to everything, the owners of the basement often decide to capture the ownerless square meters in order to increase the area of their site. Such inconsistent actions lead to numerous violations, the result of which are damage to the bearing walls, the appearance of cracks. All this eventually leads the house into disrepair.
No matter how strange this may sound, but, based on judicial practice, the lawsuits of tenants against “basement” entrepreneurs in most cases remain unsatisfied. Despite the apparent non-compliance with the requirements for basements of apartment buildings, justice more often takes the side of businessmen than actually refuses to recognize the ownership of tenants in the utility and communal premises of the lower floor.
Arbitrage practice
The efforts of citizens to win ownership of the basement in the courts are rarely successful. In addition to the fierce protection of the entrepreneur’s private property, experienced lawyers are puzzled by the application by the courts of the statute of limitations in cases involving the recovery of common shared property from illegal possession. The thing is that claims for the return of shared property are negative, therefore, the applicants' claims a priori cannot have a limitation period. However, the courts, refusing to satisfy the claim, refer precisely to the passage of the statute of limitations. At the same time, the actual duty of maintaining the basement of the apartment building continues to lie on the shoulders of the residents.
An absurd understanding of legal norms not in favor of the rightful owners is reflected in the solution of property issues affecting other technical and economic premises. Most likely, when making a decision, judges do not take into account the specifics of these legal relations, and also do not always notice the pronounced nature of the violation of the rights of homeowners by businessmen who illegally become owners of common property.
Separate judicial precedents raise questions as well, according to which only that part of the premises that was not used as an independent object in an apartment building is recognized as common property. Who owns the basement in this case?
For clarity and clarification, we give an example. Suppose a warehouse was opened in the basement of a high-rise building in the late 80s of the last century with the permission of the municipal authorities, and in the early 90s the first owner of a dwelling (apartment) appeared in the same building, who used his legal right to privatize. So, the arbitration courts more often take the side of the warehouse entrepreneur and local authorities, guided by the fact that, at the time of housing privatization, the basement was supposedly operated as a separate and independent object, and therefore it is not possible to return it to common ownership.
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Why do courts take this position? Probably, the adoption of such decisions is dictated, first of all, by reasons of an economic nature. If property is returned to the tenants, having taken it from the acquirer, the latter will seek damages from the seller, that is, the municipality. And if you consider that there can be many such illegal transactions within the same settlement, the local budget can seriously suffer.
A vivid precedent
Not so long ago, the Supreme Court of the Russian Federation interpreted the decision and gave an explanation to local authorities after reviewing the case related to the basement in an apartment building. The influx of such claims has increased over the past few years, which makes each explanation of the RF Armed Forces especially interesting not only for the judiciary, but also for homeowners who are ready to defend their own rights.
The basement was owned and used by the residents from the moment the building was put into operation, but after a few years the municipality took the technical room. In addition, part of the basement was leased to a commercial enterprise. The situation may seem standard. But in this case, one of the owners of the apartments was not going to put up with an unfair situation.
This story begins with an appeal to the court of a city dweller who asked the district court to return the basement to the tenants for legal use. The common property of the apartment building was in the illegal possession of the local administration. The building in which the citizen lives was commissioned in 1965. On the underground floor there is engineering equipment that ensures the vital activity of the five-story building. Residents began to privatize apartments in the 90s after the adoption of the relevant law giving such a right. The claimant-owner has no doubt that he and his neighbors have all the rights to own and use technical premises intended for servicing their apartments.
In 2009, the city administration became the owner of the basement in an apartment building. The plaintiff became aware of this after receiving a response to a request to the Unified State Register of Real Estate. Interestingly, the process of transition from private to urban ownership took several years and ended in 2007.
The basement under the apartment building, owned by the city, was divided into two sections. The first one housed utilities to ensure the normal functioning of the house (pipelines, taps, valves, dampers and other equipment). Their operation should have been monitored by a management company with which tenants, after privatizing the apartments, entered into an agreement at one of the owners' meetings. The second part of the basement was leased to a commercial company.
The main complaint made by the resident in court was based on the lack of access to the basement of the apartment building. In his opinion, this threatens the health of citizens living in this building and the safety of their property. The reason is the lack of the ability to timely carry out repair work in the basement of an apartment building. In addition, we are talking about an elementary violation of the legal rights of common shared property. The applicant requested the court to invalidate the registration of the basement in the Unified State Register as the property of the city administration and to impose a fine for non-compliance with the requirements for basements of apartment buildings.
The court of general jurisdiction did not satisfy the claim, substantiating the refusal with the incorrectly chosen method of protecting violated rights. The judge of the Court of Appeal agreed with this argument, according to which basements cannot be shared households, because they supposedly have an independent purpose. Not going to give up, the tenant reached the Judicial Collegium for Civil Cases of the RF Armed Forces, which issued a verdict in his favor.
What is ruled by the Supreme Court of Russia
Subordinate authorities made an incorrect decision. Guided by Article 290 of the Civil Code of the Russian Federation, which was noted earlier, owners of apartments in a high-rise building are owners of common premises in the house, as well as co-owners of supporting structures, mechanical, electrical, plumbing and other equipment serving more than one apartment, regardless of location. The same is confirmed by Article 36 of the RF LC cited by the Supreme Court. Legal norms include technical floors, attics, basements, inter-apartment stairwells, corridors, stairs, elevators, elevator shafts as shared ownership objects. The Housing Code clearly states that owners of privatized apartments in a state or municipal housing fund automatically become owners of common areas and engineering equipment.
Delving into the foregoing, it is worth noting that the Supreme Court implies the loss of the status of a municipal property from the moment citizens exercise their rights to privatization. Consequently, the owner of the basement in an apartment building becomes the full owner of at least one apartment or even a room. Legally, the regime of underground and other technical premises should be determined by the date of privatization of the first apartment of the entire structure.
findings
To summarize. In order to make the right decision in such disputes, the court must first establish at what point the privatization of the first apartment in this building was made, whether utilities are located in the basement and intended to serve the whole house, and whether it was determined on the date of privatization for independent operation.
In the considered example, the court of general jurisdiction and the appeal could not correctly distribute the burden of proof, which served as a violation of legal norms. The plaintiff’s task is to find arguments and provide evidence that privatization was carried out during the basement service of the entire house. The defendant will have to prove the opposite that the basement is intended for independent use.