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On behalf of the Russian Federation

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of April 12, 2016 No. 10-P

On the case of check of constitutionality of provisions of part of 1 Article 169, parts 4 and 7 of Article 170 and part 4 of article 179 of the Housing code of the Russian Federation in connection with requests of groups of deputies of the State Duma

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges A. I. Boytsova, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, G. A. Zhilin, S. M. Kazantsev, M. I. Kleandrov, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, O. S. Hokhryakova, V. G. Yaroslavtsev,

with participation of representatives of groups of deputies of the State Duma - deputies of the State Duma V. G. Solovyov and G. P. Hovanskaya, lawyers S. A. Popov and A. V. Sinitsyn, the plenipotentiary of the State Duma in the Constitutional Court of the Russian Federation D.F. Vyatkin, the representative of the Federation Council - Candidate of Law Sciences Yu. A. Sharandin, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation M. V. Krotov,

being guided by Article 125 (the part Item "and" 2) Constitutions of the Russian Federation, the subitem "an" of Item of 1 part one, parts three and the fourth Article 3, Article part one 21, Articles 36, 74, 84, 85 and 86 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

considered in open session case on check of constitutionality of provisions of part of 1 Article 169, of parts 4 and 7 of Article 170 and part 4 of article 179 of the Housing code of the Russian Federation.

Reason for consideration of the case were requests of two groups of deputies of the State Duma. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation disputed in legislative provision requests.

Having heard the message of the judge-speaker S. P. Mavrin, explanation of agents of the parties, performances invited in meeting of the plenipotentiary of the Government of the Russian Federation in the Constitutional Court of the Russian Federation M. Yu. Barshchevsky and also representatives: from the Ministry of Construction and Housing and Communal Services of the Russian Federation - O. V. Speransky, from the Ministry of Justice of the Russian Federation - M. A. Melnikova, 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. Two groups of the deputies of the State Duma who appealed to the Constitutional Court of the Russian Federation according to the procedure of Article 125 (the part Item "and" 2) Constitutions of the Russian Federation, challenge constitutionality of number of the provisions of the Housing code of the Russian Federation governing the relations on organizational and financial provision of carrying out capital repairs of common property in apartment houses.

1.1. Subject of the request, the first according to the procedure of priority, signed by 94 deputies of the State Duma (A. A. Ageev, A. G. Aksakov, M. V. Bryachak, etc.), is part 4 of article 179 of the Housing code of the Russian Federation according to which the means received by the regional operator from owners of rooms in one apartment houses creating funds of capital repairs on the account, accounts of regional operator can be used on returnable basis for financing of capital repairs of common property in other apartment houses, owners of rooms in which also create funds of capital repairs on the account, accounts of the same regional operator; at the same time by the law of the subject of the Russian Federation it can be established that such use of means is allowed only under condition if the specified apartment houses are located in the territory of certain municipality or the territories of several municipalities.

Applicants ask to recognize part 4 of article 179 of the Housing code of the Russian Federation not corresponding to Articles 19 (part 1), 35 (parts 1 and 2) and 40 (part 1) Constitutions of the Russian Federation in that measure in what she allows to use fund of capital repairs - in the absence of declaration of will of the owners of rooms creating this fund on the account of regional operator in apartment houses - for financing of services and (or) works on capital repairs of common property in other apartment houses, and bring the following arguments into reasons for the line item:

the disputed legislative provisions actually assign to owners of the rooms in the apartment house creating fund of capital repairs on the account of regional operator, obligation on content of the property which is not belonging to them while owing to Articles 210 and 249 of Civil Code of the Russian Federation and part 1 of article 39 of the Housing code of the Russian Federation the burden of content of property (including common property in the apartment house) is born by the owner of this property (the participant of equity property, the owner of the room in the apartment house) that assumes direct execution of this obligation by the owner, but not its transposition on the third parties, i.e. the obligation on payment of expenses on capital repairs of common property in this apartment house can be assigned to the owner of the room in the apartment house;

in sense of part 1 of Article 174 and part 3 of article 179 of the Housing code of the Russian Federation, the regional operator himself does not create fund of capital repairs and therefore can use means of this fund for financing of services and (or) works on capital repairs of common property only in the specific apartment house; allocating fund of capital repairs without the consent of the owners of rooms creating this fund in the apartment house for capital repairs of common property in other apartment house, the regional operator thereby uses appropriate means not for purpose; as a result the owners of rooms in apartment houses creating fund of capital repairs on the account of regional operator fall into unequal position with the owners of rooms in apartment houses creating fund of capital repairs on the special account which means are spent only for repair of the property belonging to them.

1.2. The second group of deputies of the State Duma (A. N. Abalakov, M. Yu. Avdeev, V. A. Agayev, etc. - only 90 people) disputes constitutionality of following provisions of the Housing code of the Russian Federation:

169, as assigning to owners of rooms in the apartment house obligation to pay to part of 1 Article monthly fees on capital repairs of common property in the apartment house, except as specified, provided by part 2 of the same Article and part 8 of article 170 of this Code;

speak rapidly 4 Articles 170, determining the list of questions which shall be solved by the general meeting of owners of rooms in the apartment house which chose as method of forming of fund of capital repairs its forming on the special account;

parts 7 of Article 170, as giving to local government body authority to make the decision on forming of fund of capital repairs on the account of regional operator on the apartment house, owners of rooms in which in the time established by the law did not choose or did not realize the method of forming of fund of capital repairs determined by them.

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