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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of May 28, 2010 No. 12-P

On the case of check of constitutionality of parts 2, the 3 and 5 article 16 of the Federal law "About Enforcement of the Housing Code of the Russian Federation", parts 1 and 2 of article 36 of the Housing code of the Russian Federation, Item 3 of article 3 and Item 5 of Article 36 of the Land code of the Russian Federation in connection with claims of citizens E. Yu. Dugenets, V. P. Minina and E. A. Plekhanova On behalf of the Russian Federation

Constitutional court of the Russian Federation as a part of the chairman - the judge L. M. Zharkova, judges G. A. Zhilin, V. D. Zorkin, M. I. Kleandrov, A. N. Kokotov, N. V. Melnikov, N. V. Seleznyov, V. G. Strekozov,

with participation of the representative of the Federation Council - the doctor of jurisprudence E. V. Vinogradova,

being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Item 3 parts two of Article 22, Articles 36, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

considered in open session case on check of constitutionality of parts 2, of the 3 and 5 article 16 of the Federal law "About Enforcement of the Housing Code of the Russian Federation", parts 1 and 2 of article 36 of the Housing code of the Russian Federation, Item 3 of article 3 and Item 5 of Article 36 of the Land code of the Russian Federation.

Reason for consideration of the case were claims of citizens E. Yu. Dugenets, V. P. Minina and E. A. Plekhanova. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation disputed by applicants of legislative provision.

Having heard the message of the judge-speaker N. V. Melnikov, explanation of the representative of the Federation Council as the party which adopted the disputed acts, speeches of the representatives invited in meeting: from the Supreme Arbitration Court of the Russian Federation - judges of the Supreme Arbitration Court of the Russian Federation O. M. Kozyr, from the Prosecutor General of the Russian Federation - T. A. Vasilyeva, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation established:

1. Article 36 of the Housing code of the Russian Federation provides that the parcel of land on which the apartment house is located belongs on the right of common ownership to owners of rooms in this house and treats common property which specified persons own, use and in the limits established by this Code and the civil legislation dispose (parts 1 and 2).

According to article 16 of the Federal Law of December 29, 2004 N 189-FZ "About enforcement of the Housing code of the Russian Federation" if the parcel of land on which the apartment house and other real estate units which are part of such house are located is created before enforcement of the Housing code of the Russian Federation and concerning it the state cadastral registration is carried out, it passes free of charge into common ownership of owners of rooms in the apartment house (part 2); if such parcel of land is not created before enforcement of the Housing code of the Russian Federation, based on the decision of general meeting of owners of rooms in this house any person authorized by the specified meeting has the right to address to public authorities or local government bodies with the statement for forming of the corresponding parcel of land (part 3); from the moment of forming and carrying out the state cadastral registration the parcel of land on which the apartment house and other real estate units which are part of such house are located passes free of charge into common ownership of owners of rooms in this house (part 5).

As it is established by the Land code of the Russian Federation, the property relations on ownership, use and the order of the parcels of land, and also on transactions with them are regulated by the civil legislation if other is not provided by the land, forest, water legislation, the legislation on subsoil, on environmental protection, the special Federal Laws (Item 3 of Article 3); for acquisition of rights the parcel of land the citizens and legal entities having in property, free use, economic maintaining or operational management of the building, structure the constructions located on the parcels of land which are in the state-owned or municipal property jointly address to executive body of the government or local government body with the statement for acquisition of rights the parcel of land with appendix of its cadastral passport (Item 5 of Article 36).

1.1. Constitutionality of parts 1 and 2 of article 36 of the Housing code of the Russian Federation, part 2 of article 16 of the Federal law "About Enforcement of the Housing Code of the Russian Federation", Item 3 of Article 3 and Item 5 of Article 36 of the Land code of the Russian Federation is disputed by citizens V. P. Minin and E. A. Plekhanov.

As owner of the non-residential premise in the apartment house are collected by the decision of Arbitration Court of the Kirov region of June 6, 2008 for benefit of Management (Committee) for municipal city property of Kirov rent receivable for use of the parcel of land on which this house, and the corresponding penalty fee is located from V. P. Minin.

The decision of Arbitration Court of the Kurgan region of September 14, 2007 left without change by superior Arbitration Courts, to E. A. Plekhanov it is refused satisfaction of the claim to administration of the municipality "city of Kurgan" and administration of the Kurgan region for collection of the amount of unjust enrichment in the form of the rent received from the claimant in 2006 for use of the parcel of land on which the apartment house in which it possesses on the property right non-residential premises, thus that the land tax was paid to them for this period is located.

Making the specified decisions, courts recognized that acquisition of right of common ownership to the parcel of land created before enforcement of the Housing code of the Russian Federation on which the apartment house and other real estate objects which are its part is located shall be performed by rules of the land, but not housing legislation.

The citizen E. Yu. Dugenets is the owner of the non-residential premise in the apartment house located on the parcel of land which is not created by rules of the land legislation and the legislation on town-planning activities disputes constitutionality of parts 3 and 5 of article 16 of the Federal law "About Enforcement of the Housing Code of the Russian Federation" based on which the Arbitration Court of the Novgorod region the decision of February 18, 2008 left without change by the resolution of Federal Arbitration Court of the Northwestern Federal District refused satisfaction of its claim to administration of the municipality "city Veliky Novgorod" for collection of the amount of unjust enrichment in the form of the rent received from the claimant for use of the specified parcel of land.

1.2. According to applicants as owners of the rooms located in apartment houses they are participants of common ownership on the parcels of land under these houses owing to direct specifying of the law without any additional terms, including without state registration of such right, and, therefore, shall pay not the rent, but the land tax which size is determined in proportion to their share in the property right to the corresponding parcel of land.

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