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RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of July 23, 2009 No. 64

About some questions of practice of consideration of disputes on the rights of owners of placements on common property of the building

Due to the questions which arose in court practice in case of the dispute resolution about the rights of owners of real estate objects (placements) on common property of the building or construction (further - the building) in which these objects are located, the Plenum of the Supreme Arbitration Court of the Russian Federation according to article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" decides to make to Arbitration Courts the following explanations.

1. By consideration of the disputes connected with determination of legal regime of common property of the building in which rooms belong on the property right to several persons to courts it is necessary to proceed from the following.

Regulation of the relations of owners of the rooms in the apartment house arising concerning common property is provided by Articles 289, 290 Civil codes of the Russian Federation (further - the Civil Code of the Russian Federation), article 36 of the Housing code of the Russian Federation. Besides, the relations of owners of rooms in any real estate objects which are created according to the procedure of shared-equity construction are directly settled by articles 1 and 16 of the Federal law "About Participation in Shared-equity Construction of Apartment Houses and Other Real Estate Objects and about Modification of Some Legal Acts of the Russian Federation".

The relations of owners of the rooms located in the non-residential building, arising concerning common property in such building directly are not settled by the law. Therefore according to Item 1 of article 6 Civil Code of the Russian Federation to the specified relations Articles 249, of 289, of 290 Civil Codes of the Russian Federation are subject to application of regulation of the legislation, the governing similar relations, in particular.

Owing to the certain room stated to the owner in the building in all cases the share in the right of common property to common property of the building belongs.

2. By consideration of disputes courts should recognize that the rooms intended for servicing more than one room in the building and also landings, ladders, halls, elevators, lift and other mines, corridors, technical floors, attics, cellars in which there are engineering communications, other equipment (technical cellars) servicing more than one rooms in this building, roofs protecting bearing and not bearing structure of this building, the mechanical, electric, sanitary and other equipment which is beyond limits or in rooms and servicing more than one rooms belong to common property of the building, in particular.

3. The right of common ownership to common property belongs to owners of rooms in the building by law regardless of its registration in the Unified State Register of Rights for real estate and transactions with it (further - the register).

4. By consideration of disputes on the size of share it is necessary to consider that proceeding from being of the specified relations respective shares in the right of common property to common property are determined in proportion to the area of the rooms which are in property. Other size of share in the right of common property to common property can be determined by court if the room amount having per acre significantly differs from similar indicator in other rooms in the building.

5. Change of the size of share of the owner of the placement in the right of common property on common property of the building under the agreement of all or certain owners of rooms is not allowed.

Upon transition of the property right to the room to the new owner also the share in the right of common property to common property of the building irrespective of at the same time passes whether there is in the agreement on alienation of the room specifying on it.

6. According to the decision of owners of rooms, accepted according to the procedure, provided by Articles 44 - 48 Housing codes of the Russian Federation, the mode of use of common property of the building, in particular certain general rooms can be set.

As features of the mode can be established: procedure for carrying out repair work in rooms public, participation of owners of rooms in maintenance costs of common property, use of the means received from delivery of common property of the building in lease.

7. Under the agreement of joint owners of common property (owners of rooms in the building) transfer of separate parts of the building to use is allowed. For example, the agreement of use of bearing wall or roof of the building for placement of outdoor advertizing can be signed. The party of such agreement providing property in use all joint owners of common property of the building who form plurality of persons according to the current legislation are recognized.

Person who uses the part of the building which is not the room under the agreement does not own any real estate object and, therefore, has no right to impose requirements based on Articles 301, of 304, of 305 Civil Codes of the Russian Federation.

Are applied to such agreements by analogy of provision of the legislation on the lease agreement, and they are subject to state registration in relation to Item 2 of article 651 Civil Code of the Russian Federation. At the same time encumbrance is established on all building in general.

8. If the owner of the building according to article 24 of the Federal law "About the State Immovable Property Cadastre" makes the decision on allocation from structure of the building of one or several rooms, then when entering into the register of records about formation of independent real estate objects the property right to the building in general in view of loss by the building of legal regime of real estate object on which the property right of one person can be identified about what the corresponding entry in the register is made stops.

In that case the right of common ownership to common property of the building arises from the moment of receipt at least of one of the rooms which are in the building in property of the other person.

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