Not all attics and basements are the same
Related article: Development scenarios for the real estate market in 2011First of all, once it is worth noting that not always the attics and basements are common areas, and therefore belong to the right of property owners of the house.
Thus, under the provisions of Par. 2, paragraph 2, Art. 235 and n. 1, Art. 290 of the Civil Code, as well as art. 36 LCD RF on the right of common property owned facilities that are not parts of the flats, and designed to serve more than one room in the house, including mezhkvartirnye staircases, ladders, lifts, elevators and other shafts, corridors, technical floors, attics, basements, which are utilities, serving more than one other room in the house equipment (technical basements), as well as roof, cladding and curtain supporting structure of the house, mechanical, electrical, plumbing and other equipment outside or inside the premises and serving more than one room.
Thus, the common property law covers the technical floors, ie, basements, attics, which are utilities, as well as other servicing more than one premises equipment.
Moreover, if a non-residential premises is not available and other utilities serving more than one premises equipment, as well as there are no other accessories, allowing the premises to include the technical area, the specified property can not relate to public spaces and listed total assets of all owners of apartment buildings . In itself, the location of the room in the basement or attic is not evidence of its extremely technical and service appointment.
However, if we take the second fund, in most cases the statements received from Rosreestra you may find that basements and attics are already listed as a property of certain persons or entities. How is this possible? Very simple. In 90th years in total privatization, privatization, and belonged to such premises, which under current law are the common property of the owners of the house. However, at that time, legislation has been otherwise, and the owners were less (by a large number of council flats). Later privatized or purchased under leases residential premises in attics and basements reissued in the property and more new buyers.
In addition, there have been such a relationship under which the reconstruction was carried out in homes and basements and attics in fact translated into living or non-residential premises with a special purpose, and the data part of the house on the documents were no longer common spaces and the property of the those investors that was carried out reconstruction.
If we consider similar examples, with new buildings, in this case it is necessary to pay attention to the design documentation of a new home. It is because design documents are technical bodies of BTI and cadastral passports for all rooms in the new house. Thus, if the project documentation attics and basements are precisely those, not for anyone not secured and not withdrawn under certain goals, they will be common areas. If these premises would be treated as special and separate with the possibility of a separate operation, the developer will be able to formalize ownership of the data directly on the premises themselves and continue to manage them, or under construction homes right to assign the said premises to third parties.
Judicial practice based on the recognition of non-residential premises in which there is no communication service home belonging to the ownership of a person to construct a house or a person who has acquired this non-residential premises or on other legal grounds.
In this case, even if the registration of ownership in the attics and basements for certain individuals, depending on the reason of such acquisition, home owners can apply to court to protect its legitimate right to claim total assets at home. In accordance with paragraph 9 of Resolution of the Plenum of the Supreme Arbitration Court on July 23, 2009 № 64 "On Some Issues Concerning Dispute Resolution on the Rights of owners of premises to the common property of the building."
In the court considered arguments about recognizing the right of common ownership to the common property of the building, including in cases where Rosreestr been recorded on the right of individual ownership of said property.
If the common property owned by the owners of premises in the building (eg, ownership of common staircases, corridors, halls, access to and use of which are owners of premises in the building), but the right of individual ownership of common property registered in the register for one person, the owners of premises in the building right demand recognition of the right of common shared ownership of common property. The court considers this requirement as a similar request of the owner to eliminate all violations of his rights that are not connected with deprivation of possessions (Article 304 CC RF).
Meanwhile, if the person in whose name the registry entry was made on the right of individual ownership of the premises relating to the common property, possession of the premises, leaving other owners access to this room, the owners of other premises in the building, may apply to the court for recovery of property from unlawful possession (Article 301 CC RF), connecting it with the requirement of recognition of common ownership. Such requirements subject to the general statute of limitations (Article 196 CC RF).
As a result,
So, if you as the owner of the house, want to address the issue of use and management of common property in the house, such as, for example, attics and basements, it should begin immediately to appeal to the Rosreestr to establish information - who is the owner of the property and in what basis. Obtained in this way the basic information will determine what can and what can not expect the owners of the house in relation to such places "common property".
Interviewed by Vadim Gorzhankin Browser Realto.ru