Dismantling works according to the writ of execution. Methodological recommendations for the execution of court decisions on the demolition of unauthorized buildings. Who prepares estimates for the demolition of buildings for bailiffs

Bailiffs in cases where it is necessary to raze some illegal house to the ground. The topic is acute and painful, so the bailiff in this case requires both skill and tact, but so that everything is within the bounds of the law.

Detailed rules on how to destroy a building that no longer has a place on this land are spelled out in detail in the guidelines of the Federal Bailiff Service for the demolition of unauthorized buildings. For example, as the document explains, for bulldozers the presence of the debtor is not at all necessary, the main thing is that he is notified of the day and hour of the visit. If it hurts a person to see what has been built crumble, he may not come. They'll tear it down without him. But before it comes to extreme measures, the debtor will be warned more than once, and he will be given a chance to do everything himself.

However, even if the owner does not come to the demolition, it will not be possible without witnesses. Buildings must be destroyed in the presence of witnesses. The property of the owner who has not arrived will be described and taken to a safe place. True, the debtor will have to pay for the storage of things remaining after the demolition of the house. If he does not take back his property within two months, it will go under the hammer. The costs of executing the court decision will be deducted from the proceeds, and the rest will be given to the former owner of the items. If he does not take the money, it will be kept for three years, then it will be transferred to the treasury.

When, instead of demolition, you just need to dismantle something, for example, a metal garage, the construction details will be carefully rewritten and seized. Then they will also be sold, and the money will be used to pay the costs of executing the court decision. If anything is left on top, it will be given to the debtor.

There is also a subtle point: you always need to figure out whether unauthorized construction is considered housing. Usually - no. In this case, demolition is demolition and should not be confused with eviction. They just destroyed it, that's all. But it happens that a person is also registered in this illegal building. Then, when filing a claim for demolition of a building, it is necessary to simultaneously demand the eviction of the tenant. From a legal point of view, demolition and eviction are two different procedures. Therefore, as stated in the methodological recommendations, if an unauthorized building to be demolished has signs of residential premises, the bailiff must send a request to the passport office to see if any residents are registered there.

In general, before calling bulldozers, bailiffs must give the debtor time to do everything voluntarily and independently. In this case, a reasonable time should be allocated. Of course, breaking does not build, but still, destruction requires some preparation. When the debtor stubbornly resists the execution of the court decision - he is stalling for time, does not make contact, and may be restricted from traveling abroad. It is also recommended that bailiffs, if the debtor fails to comply with a court decision for a long time, revise down the deadline for fulfilling the requirements and more actively apply administrative sanctions to the debtor.

By the way, at the beginning of the year a law came into force, detailing the procedure for eviction of debtors, as well as the demolition of illegal buildings. It was he who allowed the debtor’s things to be sold when he refused to pick them up. It is also necessary to evict debtors only with attesting witnesses. If necessary, bailiffs can invite the police to provide support. You need to leave with all your belongings, and take your dogs and cats, if you have any, with you too.

I APPROVED
Director of the Federal
bailiff services -
chief bailiff
Russian Federation
A.O.Parfenchikov
March 31, 2014

Document with changes made:
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1. General Provisions

2. General concepts

2.1. According to Article 222 of the Civil Code of the Russian Federation An unauthorized construction is a residential building, other building, structure or other real estate created on a land plot that is not allocated for these purposes in the manner established by law and other legal acts, or created without obtaining the necessary permits or with a significant violation of urban planning and building codes and regulations.

2.2. According to Article 130 of the Civil Code of the Russian Federation objects of unfinished construction are classified by law as real estate. Based Clause 1 of Article 222 of the Civil Code of the Russian Federation unauthorized construction is recognized not only as a residential building, other structure, structure, but also other real estate. Consequently, an unfinished construction project as real estate can also be recognized as an unauthorized construction.

2.3. In accordance with Part 10 of Article 1 of the Town Planning Code of the Russian Federation capital construction facility - a building, structure, structure, objects whose construction has not been completed, with the exception of temporary buildings, kiosks, sheds and other similar structures.

2.4. In accordance with the provisions Article 107 of the Law demolition of unauthorized erected buildings includes dismantling, dismantling or destruction of buildings, structures and structures specified in the executive document, or their individual structures, regardless of the type, purpose and degree of completion, as well as the removal of construction waste.

The scope of these Methodological Recommendations extends both to the execution of court decisions on the demolition of capital construction projects, unfinished construction projects, superstructures in legal buildings, and to the execution of court decisions on the demolition of extensions and temporary buildings (garages, kiosks and other structures).

In addition, the Methodological Recommendations can be used when fulfilling the requirements of executive documents on the release of land plots by demolishing buildings or their individual parts, on the demolition of individual elements of buildings and structures (floors, superstructures, extensions) and other executive documents of a similar nature.

In this case, the demolition of structures, buildings or structures located on a land plot or their individual structures is carried out if this is indicated in the executive document, in accordance with the provisions Article 107 of the Law.

3. Organization of execution of court decisions on the demolition of unauthorized buildings

3.1. According to Article 30 of the Law The bailiff initiates enforcement proceedings on the basis of a writ of execution at the request of the claimant or his representative, as well as when the writ of execution is sent by the court to the bailiff, if the deadline for presenting the writ of execution for execution has not expired and this document meets the requirements stipulated Article 13 of the Law.
(Clause as amended, put into effect by letter of the FSSP of Russia dated July 31, 2015 N 0001/9.

3.2. When the execution of a judicial act is entrusted to a representative of the government, a civil servant, a municipal employee, as well as an employee of a state or municipal institution, commercial or other organization, the bailiff warns these persons about the criminal liability provided for Article 315 of the Criminal Code of the Russian Federation, for non-execution of a judicial act, as well as obstruction of its execution.
by letter of the FSSP of Russia dated July 31, 2015 N 0001/9.

If the actions of the person specified in this paragraph contain signs of a crime provided for Article 315 of the Criminal Code of the Russian Federation, the bailiff draws up a report on the discovery of signs of a crime, which is registered in the manner prescribed by order of the Ministry of Justice of Russia dated May 2, 2006 N 139.

3.3. In order to ensure the fulfillment of the requirements of the writ of execution, simultaneously with the initiation of enforcement proceedings, the bailiff takes measures aimed at prohibiting registration actions, both in relation to the building subject to demolition and the land plot on which it is located, in accordance with the instructions of the FSSP of Russia dated 08.08.2011 N 12/01-19366-AP.
(Clause as amended, put into effect by letter of the FSSP of Russia dated July 31, 2015 N 0001/9.

3.4. After the expiration of the period for voluntary execution, the bailiff goes to the place of execution of enforcement actions to establish the fact of fulfillment or non-fulfillment by the debtor of the requirements of the enforcement document.

3.5. In case of failure by the debtor to fulfill the requirements contained in the writ of execution within the period established for voluntary execution, as well as his failure to comply with the writ of execution, subject to immediate execution, within 24 hours from the receipt of a copy of the bailiff's decision to initiate enforcement proceedings, the bailiff makes a decision to collect the enforcement fee in accordance with the provisions Article 112 of the Law and sets the debtor a new deadline for execution.

If the debtor fails to comply with the requirements contained in the writ of execution, without good reason, within the newly established period, the bailiff draws up a protocol on the administrative offense against the debtor in accordance with the provisions Code of Administrative Offenses of the Russian Federation, sets a new deadline for performance and warns the debtor that, in accordance with Part 2 of Article 105 of the Law execution of the requirements of the writ of execution will be organized by the bailiff in accordance with the rights granted to him by law.
(Paragraph as amended as put into effect by letter of the FSSP of Russia dated July 31, 2015 N 0001/9.

In addition, the bailiff draws up and attaches to the materials of the enforcement proceedings a plan diagram of the land plot on which the objects to be demolished are located, indicating the number of entrances to the specified land plot, other objects located within its boundaries, as well as photographs of the objects to be demolished. demolition of objects.

If, in the course of fulfilling the requirements of executive documents of this category, it is established that debtors have been carrying out illegal construction for a long time, it is necessary to immediately contact law enforcement agencies regarding the inaction of state authorities and local self-government in terms of suppressing violations by individuals and legal entities of urban planning and land use norms, including in accordance with the instructions of the Federal Bailiff Service of Russia dated August 16, 2013 N 12/01-22750-TI.

After issuing a decision to collect the enforcement fee, the bailiff conducts an inspection of the debtor’s property status, including in order to establish the possibility of collecting from him in the future the enforcement fee, administrative fines and expenses for carrying out enforcement actions.

In this case, the debtor is brought to administrative responsibility after the bailiff issues a decision to collect the enforcement fee, regardless of its actual collection.

As part of enforcement proceedings for the demolition of a building, structure or structures, the bailiff announces a search for the debtor in accordance with Part 5 of Article 65 of the Law provided that the other executive actions performed by him, provided for by law, did not allow the debtor to be located.

At the same time, within the framework of enforcement proceedings, the claimants for which are public legal entities, state authorities and local governments, the bailiff announces a search for the debtor and his property in accordance with Part 3 of Article 65 of the Law.

3.6. In order to ensure the forced eviction and release of non-residential premises, land or the demolition of a structure, building or structure or their individual structures, the bailiff may invite the claimant to bear the costs of applying enforcement measures with their subsequent reimbursement at the expense of the debtor, in accordance with the provisions Article 107 of the Law.

It is necessary to send appeals to claimants regarding their sale in accordance with the following procedure: Article 206 of the Code of Civil Procedure of the Russian Federation rights to independently fulfill the requirements of enforcement documents of these categories with subsequent recovery from the debtor of expenses incurred.

3.7. If the debtor has not fulfilled the requirements contained in the writ of execution without good reason within the newly established period, the bailiff draws up a protocol on the administrative offense taking into account the requirements Article 28.2 of the Code of Administrative Offenses of the Russian Federation.

The bailiff has the right each time to set the debtor a reasonable period for fulfilling the requirements contained in the writ of execution, and if the debtor fails to comply with these requirements without good reason, draw up a protocol on each administrative offense provided for Article 17.15 of the Code of Administrative Offenses of the Russian Federation, and submit it for consideration to officials of the FSSP of Russia specified in Article 23.68 of the Code of Administrative Offenses of the Russian Federation.

In the event of a long-term failure by the debtor to comply with a court decision, the bailiff is recommended to review downward the deadline for fulfilling the requirements of the writ of execution and more actively apply administrative measures to the debtor.

3.8. If the debtor in the enforcement proceedings is a citizen, the bailiff issues a resolution on a temporary restriction on the debtor’s departure from the Russian Federation.

Paragraph deleted - ..

3.9. The bailiff applies all measures aimed at fulfilling the requirements of a non-property nature contained in the executive document, in accordance with Article 105 of the Law.

Paragraph excluded - letter of the FSSP of Russia dated July 31, 2015 N 0001/9..

3.10. For the purpose of forced demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve the appropriate specialized organization in accordance with the provisions Law.

If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff about this, who, after checking the materials of the enforcement proceedings and establishing the fact of the full application of compulsory measures in accordance with the provisions Article 105 of the Law submits a memorandum addressed to the head of the relevant territorial body, which sets out the essence of the requirements of the executive document of a non-property nature, and also describes in chronological order the actions taken to fulfill the requirements of the executive document.

The involvement of the appropriate specialized organization to fulfill these requirements at the expense of the federal budget is carried out in accordance with the provisions Federal Law of 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" and the instruction of the FSSP of Russia dated January 31, 2011 N 12/08-1872-VM.

4. Features of the implementation of enforcement actions when organizing the demolition of unauthorized buildings

4.1. If the claimant makes a decision to fulfill the requirements of the writ of execution independently, followed by recovery of expenses incurred from the debtor or the involvement of a specialized organization with which the territorial body of the FSSP of Russia has concluded a state contract (agreement) on the demolition of an unauthorized building, the bailiff provides and coordinates them acts in accordance with the powers granted to him.

4.2. The debtor must be notified by the bailiff of the date and time of execution of enforcement actions and warned that if the debtor is absent from the place of execution of enforcement actions at the established time, the demolition of the unauthorized structure will be carried out in his absence.

Also, if necessary, the police, the Ministry of Emergency Situations of Russia, guardianship and trusteeship authorities, the media, etc. are notified about the commission of enforcement actions.

4.3. In accordance with the provisions Article 107 of the Law in necessary cases, the bailiff ensures the storage of the described property, charging the debtor with the costs incurred. If within two months from the date of transfer of property for protection or storage the debtor has not taken the specified property, then the bailiff, after warning the debtor in writing, transfers the specified property for sale in the manner established by law.

Also, if the demolition of a structure is carried out by dismantling while preserving building materials and structural elements, the bailiff subjects them to inventory and seizure for the purpose of subsequent sale and reimbursement of expenses for carrying out enforcement actions.

The organization and implementation of storage of the described property is carried out by analogy with the storage of seized movable property in accordance with the Methodological Recommendations for the organization and implementation of accounting for seized movable property during its storage in the structural divisions of the territorial body of the FSSP of Russia dated February 29, 2012 N 08-4.

4.4. The funds received from the sale of the debtor's property and remaining after reimbursement of expenses for carrying out enforcement actions are returned to the debtor. Unclaimed funds by the debtor are stored in the deposit account of the bailiff division for three years. After this period, the specified funds are transferred to the federal budget in accordance with the provisions Article 107 of the Law.

Storage and transfer of these funds is carried out in accordance with the provisions Instructions on the procedure for accounting for funds received at the temporary disposal of structural divisions of territorial bodies of the Federal Bailiff Service, approved by order of the Ministry of Justice of Russia and the Ministry of Finance of Russia dated January 25, 2008 N 11/15n.

4.5. Compulsory execution of the requirement for the demolition of an unauthorized structure, building or structure or their individual structures is carried out with the participation of witnesses (if necessary, with the assistance of employees of internal affairs bodies) with the preparation of a corresponding act on the demolition of the structure, building or structure or their individual structures and an inventory of property in accordance with the provisions Article 107 of the Law.

Paragraph excluded - letter of the FSSP of Russia dated July 31, 2015 N 0001/9..

If the claimant or his representatives declare non-compliance of the work performed with the requirements specified in the writ of execution, to the bailiff in accordance with the provisions Article 61 of the Law it is necessary to ensure the involvement of a specialist to give a report (conclusion) on the compliance of the work performed with the requirements of the executive document.
(Paragraph as amended as put into effect by letter of the FSSP of Russia dated July 31, 2015 N 0001/9.

4.6. The costs of demolishing an unauthorized structure, as well as storing seized property, are considered costs of carrying out enforcement actions and are subject to reimbursement at the expense of the debtor in accordance with Chapter 16 of the Law.

The sequence of actions of employees of territorial bodies of the FSSP of Russia to reimburse expenses for carrying out enforcement actions is determined by the Methodological Recommendations for organizing work on reimbursement of expenses for carrying out enforcement actions dated July 24, 2013 N 01-10.

5. The procedure for attracting bailiffs under the OUPDS to ensure the safety of bailiffs when carrying out enforcement actions

5.1. Bailiffs under the OUPDS are involved to ensure the safety of bailiffs when carrying out enforcement actions for demolition in accordance with the Methodological Recommendations for the interaction of bailiffs to ensure the established procedure for the activities of courts with bailiffs and investigators of the Federal Bailiff Service during the commission of procedural actions and carrying out the bringing of persons evading appearance by approved Director of the Federal Bailiff Service - Chief Bailiff of the Russian Federation 11/30/2011 N 03-19.

6. The procedure for the actions of the bailiff in the event of the operation of a capital construction facility subject to demolition, detection of unauthorized persons and domestic animals in the structure subject to demolition

6.1. If it is established that an object subject to demolition has been exploited, the bailiff draws up an act of execution of enforcement actions, in which he indicates these circumstances, and also serves on the persons operating the object subject to demolition, demands to stop these actions.
(Paragraph as amended as put into effect by letter of the FSSP of Russia dated July 31, 2015 N 0001/9.

In case of repeated establishment of the fact of exploitation of an object subject to demolition by the same persons, the bailiff takes measures to bring them to administrative responsibility in accordance with Article 17.14 of the Code of Administrative Offenses of the Russian Federation.

Operation of a capital construction facility without permission to put it into operation, except for cases when the construction, reconstruction, and major repairs of capital construction projects do not require the issuance of a construction permit, entails administrative liability in accordance with Part 5 of Article 9.5 of the Code of Administrative Offenses of the Russian Federation.

In this regard, if such facts are established, the bailiff must report them to the state construction supervision authorities.

6.2. If unauthorized persons, including minor children, are found in a building subject to demolition, the bailiff, if necessary, immediately informs the internal affairs body at the location of the residential premises, as well as the guardianship and trusteeship authority, about this.

6.3. In cases where animals are found in a building subject to demolition that pose a danger to life and health, the bailiff immediately informs the veterinary station and the Rosselkhoznadzor body about this and, before their arrival, takes measures to isolate the animal.

7. Features of carrying out enforcement actions in the case of permanent residence of citizens in a building subject to demolition

7.1. In accordance with the position of the Supreme Court of the Russian Federation ("Review of legislation and judicial practice for the first quarter of 2006", approved by the resolution of the Presidium of the Supreme Court of the Russian Federation dated 06/07/2006 and 06/14/2006) from the provisions Clause 2 of Article 222 of the Civil Code of the Russian Federation it follows that unauthorized construction cannot be the object of civil rights.

Consequently, the specified building is not included in the housing stock and does not have the status of residential premises, therefore the person who erected the unauthorized structure cannot be registered in it.

Since a person does not have the right to live in this premises, the court’s decision to demolish an unauthorized building does not affect his right to own and use the said residential premises, therefore there are no grounds for filing a separate claim to evict a person from an unauthorized building.

Thus, when filing an application for recognition of a residential premises in the manner prescribed by law as an unauthorized building, it is not necessary to additionally submit a demand for the eviction of citizens from residential buildings that are subject to further demolition, since the court decision on the demolition of an unauthorized building does not violate the citizen’s rights to reside in the specified living space.

7.2. If a citizen is registered in an unauthorized residential building, then in this case, when filing a claim for the demolition of an unauthorized building, it is also necessary to submit a demand for eviction.

In connection with the above, if the building to be demolished has signs of being residential, the bailiff sends a request to the passport office at the location of the building to be demolished about the citizens registered in it.

If a positive response is received, the bailiff ends the enforcement proceedings in accordance with Clause 2 Part 1 Article 46 , Clause 3 Part 1 Article 47 of the Law and returns to the claimant the writ of execution with an explanation of the possibility of going to court with a demand for the eviction of citizens living in the unauthorized residential premises.

Organization management
enforcement proceedings

Revision of the document taking into account
changes and additions prepared
JSC "Kodeks"

Motivated
solution made 08/17/2015

IN THE NAME OF THE RUSSIAN FEDERATION

08/13/2015 Sysertsky District Court of the Sverdlovsk Region, composed of presiding judge Torichnaya M.V., with the participation of the applicant’s representative Z.Ya., interested person D., with secretary T., having considered civil case No. 2-1272/2015 in open court according to Z.’s application to recognize the inaction of the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal,

INSTALLED:

Z. applied to the court to recognize the inaction of the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal, indicating that the bailiff of the Sysertsky district department of bailiffs of the Federal Bailiff Service for the Sverdlovsk Region B., on the basis of a writ of execution for case No. 40817810604900317040, issued by the Sysertsky District Court, DD.MM.YYYY, enforcement proceedings were initiated No. 40817810604900317040 to eliminate obstacles to the use of a land plot located at the address: in relation to D. (hereinafter referred to as the “Debtor”) in favor of Z. (hereinafter referred to as “Debtor”) text - “Applicant”).

At the time of filing the complaint, execution within the framework of this proceeding had not been completed; the obstacles to the use of the land plot by the demolition of the unauthorized construction of an extension to the store "" by the "Debtor" were not eliminated. The bailiff does not provide the “Applicant” with information about the progress of activities carried out within the framework of enforcement proceedings.

Three years have passed since the initiation of enforcement proceedings, but execution has still not been carried out.

In the event of a long-term failure by the debtor to comply with a court decision, the bailiff is recommended to review downward the deadline for fulfilling the requirements of the writ of execution and more actively apply administrative measures to the debtor.

According to clause 3.8. of the said Letter, if the debtor in the enforcement proceedings is a citizen, the bailiff issues a resolution on a temporary restriction on the debtor’s departure from the Russian Federation.

According to clause 3.9. of the specified Letter, the bailiff applies all measures aimed at fulfilling the requirements of a non-property nature contained in the executive document, in accordance with Art. (as amended on 12/02/2019) > "> (with amendments and additions, entered into force on 01/01/2020) > Chapter 13. Execution of non-property requirements contained in executive documents > Article 105. General conditions for the execution contained in executive documents requiring the debtor to perform certain actions (refrain from performing certain actions)" target="_blank">105 Federal Law "On Enforcement Proceedings".

According to paragraph 3.10 of the said Letter, for the purpose of forced demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve the appropriate specialized organization in accordance with the provisions of the Federal Law “On Enforcement Proceedings”.

If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff about this, who, after checking the materials of the enforcement proceedings and establishing the fact of the full application of compulsory measures in accordance with the provisions of Art. 105 of the Law submits a memorandum addressed to the head of the relevant territorial body, which sets out the essence of the requirements of the executive document of a non-property nature, and also describes in chronological order the actions taken to fulfill the requirements of the executive document.

The involvement of an appropriate specialized organization to fulfill these requirements at the expense of the federal budget is carried out in accordance with the provisions of Federal Law dated 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" and the instructions of the FSSP Russia dated January 31, 2011 N 12/08-1872-VM.

In accordance with clause 4.5. Letters, compulsory execution of the requirement for the demolition of an unauthorized structure, building or structure or their individual structures, is carried out with the participation of witnesses (if necessary, with the assistance of internal affairs officers) with the drawing up of a corresponding act on the demolition of the structure, building or structure or their individual structures and inventory of property in accordance with the provisions of Art. 107 of the Law.

Thus, since the measures taken within the framework of enforcement proceedings are ineffective and did not lead to the independent demolition of the building by the debtor, the bailiff had to involve a specialized organization to carry out the forced demolition of the unauthorized building.

It should be noted that forced execution of the writ of execution by the “Applicant” independently with subsequent collection of expenses from the “Debtor” can only be carried out if the claimant makes such a decision, based on information received as part of the enforcement proceedings, indicating the financial situation of the “Debtor” ”, which will ensure further recovery from him of the costs of the demolition of the unauthorized building (clause 4.1. of the said Letter).

In our case, the “Applicant” did not decide to independently demolish the unauthorized building with the subsequent attribution of costs to the “Debtor”, which means that the bailiff must carry out measures within the framework of enforcement proceedings aimed at the execution by the “Debtor” of the writ of execution and the elimination of obstacles to the use of land site until its execution.

In addition, the “Applicant” assumes that the property subject to demolition continues to be used.

According to clause 6.1. of the specified Letter, if it is established that the capital construction object is being demolished, the bailiff draws up an act of execution, in which he indicates these circumstances, and also serves on the persons operating the object to be demolished, demands to stop these actions.

If the fact of exploitation of an object subject to demolition by the same persons is repeatedly established, the bailiff takes measures to bring them to administrative responsibility in accordance with Art. . Code of Administrative Offenses of the Russian Federation.

Thus, the “Applicant” believes that the bailiff did not take the necessary actions aimed at executing the writ of execution, namely the demolition of an unauthorized extension that created obstacles to the use of the land plot located at the address: No. 40817810604900317040 within three years from the date of initiation enforcement proceedings.

He asked that the inaction of the bailiff of the Sysert District Department of Bailiffs of the Office of the Federal Bailiff Service for the Sverdlovsk Region be declared illegal in enforcement proceedings No. 40817810604900317040 initiated on August 29, 2012; oblige the Sysert district department of bailiffs of the Office of the Federal Bailiff Service for the Sverdlovsk Region to provide a full report on the activities carried out during enforcement proceedings.

Applicant Z. did not appear at the court hearing. He sent his representative to the court.

At the court hearing, the applicant’s representative Z. Ya. supported the stated demands in full, and additionally explained to the court that the decision has not yet been executed, which violates the rights of the plaintiff.

Interested person D. at the court hearing objected to the stated demands, explained that the bailiff had taken many actions, but an unenforceable decision had simply been made. The bailiffs visited the site multiple times and became convinced that technically the decision could not be carried out.

He provided a review to the court, indicating that the bailiffs have objective reasons that prevent the execution of the decision of the Sysertsky District Court dated DD.MM.YYYY.

One part of the reasons is organizational and technical. The design of the building does not allow part of it to be demolished at a distance of 1 meter from the border of the land plot, as required by the court decision. Dismantling the load-bearing wall will cause the destruction of the entire building. In the city, such an action would be tantamount to a terrorist act. In addition to other dangers, there is a real possibility of destruction of infrastructure facilities located in the immediate vicinity of the building. These are power lines, gas pipelines, communication lines. Among the communication lines there is one of federal significance, which is supervised by the FSB.

By provoking the bailiffs to action, Z. pushes them to commit great misfortune. By declaring the need to involve a specialized organization, he, either unknowingly or consciously, creates a picture of the ease of execution of a court decision. There are no such specialized organizations. The participation of several organizations is required. Design, including. The role of the city authorities, where Z. intends to carry out a destructive process, is not indicated in any way.

Another reason is legal. The court decision ordered the demolition of the part of the unauthorized building identified by the extension. My building cannot be defined by unauthorized construction. During its construction, legal order was observed. Registration rules are also followed. This is confirmed by a certificate of state registration of ownership of the specified building, issued to the interested party by Rosreestr on the basis of documents certifying compliance with the legal order.

Indicates that the building has no structures that can be identified as an extension. Structurally, the building is an integral two-level structure.

Everything indicated is known to Z. He admits the impossibility of executing the court decision. His repeated statements, including in the Sysertsky District Court, are supporting facts.

Z.'s claims against the bailiffs are unfounded. Failure to do the impossible cannot be determined by inaction. Impossible, within the framework of law and technical potential. The procedure for executing court proceedings is strictly in accordance with the law.

The bailiff did not appear at the court hearing. The reason for the absence is unknown. The time and place of the hearing of the case were duly notified.

Taking into account the opinions of the persons participating in the case, and on the basis of Art. Of the Civil Procedure Code of the Russian Federation, the court determined to consider the case at this appearance.

After listening to the explanations of the applicant’s representative, an interested party, and examining the case materials, the court comes to the following conclusion.

According to Art. of the Civil Procedure Code of the Russian Federation, an application to challenge the decisions of an official of the bailiff service, his actions (inaction) is considered in the manner prescribed by Chapters 23 and 25 of this Code, with the exceptions and additions provided for by this article.

Part 1 of Article 254 of the Civil Procedure Code of the Russian Federation provides for the right of a citizen or organization to challenge in court a decision, action (inaction) of a government body, local government body, official, state or municipal employee if they believe that their rights and freedoms have been violated.

In accordance with Article 255 of the Civil Procedure Code of the Russian Federation, decisions, actions (inaction) of state authorities, local government bodies, officials, state or municipal employees contested in civil proceedings include collegial and individual decisions and actions (inaction), as a result of which: the rights and freedoms of a citizen are violated; obstacles have been created to the citizen’s exercise of his rights and freedoms; a citizen has been unlawfully assigned any duty or has been unlawfully held accountable.

According to Part 1 of Art. 121 of the Federal Law “On Enforcement Proceedings”, the decisions of the bailiff and other officials of the bailiff service, their actions (inaction) regarding the execution of the writ of execution can be appealed by the parties to the enforcement proceedings, other persons whose rights and interests are violated by such actions (inaction) , in order of subordination and challenged in court.

In accordance with Art. 122 of the Federal Law “On Enforcement Proceedings”, a complaint against a resolution of an official of the bailiff service, his actions (inaction) is filed within ten days from the date the bailiff or other official issued a resolution, performed an action, established the fact of his inaction or refused to challenge . A person who was not notified of the time and place of action shall file a complaint within ten days from the day when this person learned or should have known about the adoption of a decision or the commission of actions (inaction).

Similar provisions are contained in Part 2 of Art. Civil Procedure Code of the Russian Federation, according to which, an application to challenge the decisions of an official of the bailiff service, his actions (inaction) is filed with the court in the area of \u200b\u200bactivity of which the specified official performs his duties, within ten days from the date of the decision, commission of actions or from the day when the claimant, debtor or persons whose rights and interests were violated by such a resolution, actions (inaction) became aware of the violation of their rights and interests.

Based on the writ of execution No. 40817810604900317040 from DD.MM.YYYY, issued by the Sysertsky District Court, bailiff B. initiated enforcement proceedings No. 40817810604900317040 against the debtor D. in favor of the claimant Z., subject of execution: to eliminate the obstacle to the use of land plot No. 40817810604900317040, which is confirmed by the resolution to initiate enforcement proceedings dated DD.MM.YYYY.

In accordance with Part 1.2 of Article 14 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”, decisions on issues of enforcement proceedings made by the bailiff, the chief bailiff of the Russian Federation, the chief judicial bailiff of a constituent entity of the Russian Federation, senior bailiff and their deputies (hereinafter also referred to as an official of the bailiff service) from the date of sending (presentation) of the writ of execution for execution, are formalized by decisions of an official of the bailiff service.

From the materials of the enforcement proceedings presented to the court, it is clear that to date the requirements of the enforcement document have not been fulfilled.

During the enforcement proceedings, the following enforcement actions were carried out: demands were sent to D. to execute the court decision and provide the bailiff with supporting documents: DD.MM.YYYY

The act of execution dated DD.MM.YYYY established that the court decision was not executed by debtor D.

Due to the fact that the court decision by the debtor D. was not executed by Z., it was proposed to find a specialized organization and carry out the demolition of the unauthorized building "" at a distance of at least 1 meter from the border of land plots No. plot No. 40817810604900317040 on street k., cadastral number No. 40817810604900317040, bring this plot to its original condition. These expenses will be recovered from D.

DD.MM.YYYY D. was again required to execute the court decision.

DD.MM.YYYY, on the basis of the act of execution, it was established that the court decision of D. was not executed. DD.MM.YYYY the collector Z. was again asked to execute the court decision, with the costs of execution being allocated to the debtor D.

DD.MM.YYYY D. demands for execution of the court decision were again made.

DD.MM.YYYY D. was charged an enforcement fee in the amount of

DD.MM.YYYY the bailiff applied to the court with an application to terminate enforcement proceedings in connection with newly discovered circumstances (providing a certificate of state registration of ownership of real estate, namely a land plot located at the address: , cadastral number No. 40817810604900317040 .

By the ruling of the Sysertsky District Court dated DD.MM.YYYY, the application of the bailiff of the Department of the Federal Bailiff Service for K. to terminate enforcement proceedings No. 40817810604900317040 initiated by DD.MM.YYYY was denied.

The appeal ruling of the Sverdlovsk Regional Court dated DD.MM.YYYY left the ruling of the Sysertsky District Court unchanged, and D.’s private complaint was not satisfied.

Also included in the materials of the enforcement proceedings is Z.’s complaint to the Office of the Federal Bailiff Service for the Sverdlovsk Region about the actions of the bailiff. However, the materials of the enforcement proceedings do not contain a procedural decision on this complaint.

The materials of the enforcement proceedings do not contain any other documents confirming the execution by the bailiff of actions aimed at executing the court decision.

Thus, the court found that from DD.MM.YYYY, that is, for more than a year, the bailiff did not take any actions aimed at executing the court decision.

In accordance with Article 2 of Federal Law N 229-FZ "On Enforcement Proceedings", the tasks of enforcement proceedings are the correct and timely execution of judicial acts, acts of other bodies and officials, and in cases provided for by the legislation of the Russian Federation, the execution of other documents in order to protect violated rights, freedoms and legitimate interests of citizens and organizations.

Enforcement of judicial acts is entrusted to the relevant bailiff services; the direct implementation of functions for the execution of judicial acts is entrusted to bailiffs (Article 5 of Federal Law No. 229-FZ).

According to Articles 12, 13 of the Federal Law of July 21, 1997 N 118-FZ "On Bailiffs", the bailiff in the process of compulsory execution of judicial acts is obliged to take measures for the timely, complete and correct execution of enforcement documents.

In accordance with Art. 105 of the Federal Law “On Enforcement Proceedings”, in cases of failure by the debtor to fulfill the requirements contained in the writ of execution within the period established for voluntary execution, as well as his failure to comply with the writ of execution, subject to immediate execution, within 24 hours from the date of receipt of a copy of the bailiff’s decision - executor to initiate enforcement proceedings, the bailiff issues a resolution to collect the enforcement fee and sets the debtor a new deadline for execution. If the debtor fails to fulfill the requirements contained in the writ of execution, without good reason, within the newly established period, the bailiff draws up a protocol on the administrative offense against the debtor in accordance with the Code of the Russian Federation on Administrative Offenses and sets a new deadline for execution. If the participation of the debtor is not necessary to fulfill these requirements, then the bailiff will organize execution in accordance with the rights granted to him by this Federal Law.

By virtue of Part 2 of Article 68 of this Law, enforcement measures are applied by the bailiff after the initiation of enforcement proceedings. If, in accordance with this Federal Law, a period is established for the voluntary fulfillment of the requirements contained in the executive document, then measures of compulsory execution are applied after the expiration of such a period.

Thus, Article 107 of Federal Law No. 229-FZ defines the specifics of fulfilling the requirement contained in the executive document to vacate a land plot, to demolish a structure, building or structure or their individual structures.

According to Part 8 of this article, in order to force the release of a land plot or the demolition of a structure, building or structure, or their individual structures, the bailiff has the right to involve the appropriate specialized organization.

In accordance with Part 9 of Article 107 of Federal Law N 229-FZ, in order to ensure the forced eviction and release of non-residential premises, land or the demolition of a structure, building or structure or their individual structures, the bailiff may offer the claimant to bear the costs of applying enforcement measures with their subsequent compensation at the expense of the debtor.

In addition, the Federal Bailiff Service of the Russian Federation dated March 31, 2014, developed and approved “Methodological recommendations for the execution of judicial acts on the demolition of unauthorized buildings” (the previously existing Methodological Recommendations became invalid due to the publication of these).

According to paragraph 2.4 of the Methodological Recommendations, its scope can be applied when fulfilling the requirements of executive documents on the release of land plots by demolishing buildings or their individual parts, on the demolition of individual elements of buildings and structures (floors, superstructures, extensions) and other executive documents of a similar nature.

In this case, the demolition of structures, buildings or structures located on a land plot or their individual structures is carried out if this is indicated in the executive document, in accordance with the provisions of Article 107 of the Law.

For the purpose of forced demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve the appropriate specialized organization in accordance with the provisions of the Law.

If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff about this, who, after checking the materials of the enforcement proceedings and establishing the fact of the full application of compulsory measures in accordance with the provisions of Article 105 of the Law, submits a report to the name of the head of the relevant territorial body, which sets out the essence of the requirements of the executive document of a non-property nature, and also describes in chronological order the actions taken to fulfill the requirements of the executive document.

The costs of demolition of an unauthorized structure are related to the costs of carrying out enforcement actions and are subject to reimbursement at the expense of the debtor in accordance with Chapter 16 of the Law “On Enforcement Proceedings”.

The sequence of actions of employees of territorial bodies of the FSSP of Russia to reimburse expenses for carrying out enforcement actions is determined by the Methodological Recommendations for organizing work for reimbursement of expenses for carrying out enforcement actions dated DD.MM.YYYY N 01-10 (clause 4.6).

Moreover, taking into account the specifics of the subject of execution, the Methodological Recommendations prescribe, when fulfilling the requirements of executive documents on the demolition of unauthorized buildings, to be guided by internal indicators characterizing the level of effectiveness of the measures taken, established by the letter of the FSSP of Russia dated DD.MM.YYYY N 12/01-28214 -TI.

Methodological recommendations for the execution of judicial acts on the demolition of unauthorized buildings explain the procedure for actions of both territorial divisions and the Federal Bailiff Service of the constituent entities of the Russian Federation in fulfilling the requirements of the writ of execution of this category.

If the requirements of the writ of execution are fulfilled in the manner prescribed by Article 107 of the Federal Law “On Enforcement Proceedings” and the specified Methodological Recommendations, the tasks of the enforcement proceedings for the period from the date of initiation of the enforcement proceedings would be completed in a timely and correct manner.

The requirement of a writ of execution does not impose the obligation to demolish an unauthorized structure on the service of bailiffs and indicates the demolition of buildings at the expense of the debtors. However, this circumstance does not relieve department officials from fulfilling the duties assigned to them by law and job description.

From the content of Article 107 of the Federal Law “On Enforcement Proceedings” it follows that this article of the Law regulates the execution of the requirements of the writ of execution for the demolition of an unauthorized building, for the vacancy of a land plot, and for the debtor’s obligation to vacate a land plot. Parts 3 and 4 of Article 107 of the Law clearly provide a list of actions that include the release of the land plot specified in the executive document from movable and immovable property. It is indicated that the demolition of a structure, building or structure or their individual structures includes dismantling, dismantling or destruction of the structure, building or structure specified in the executive document, or their individual structures, regardless of the type, purpose and degree of completion, as well as the removal of construction waste .

Fulfillment of the requirements of the writ of execution of the specified category does not depend on at whose expense the demolition of buildings or the release of a land plot should be carried out. The levers specified in Article 107 of the Law “On Enforcement Proceedings”, in the Methodological Recommendations, are subject to application in the event of the debtor’s failure to voluntarily fulfill the requirements of the writ of execution within the established time frame.

Thus, in order to execute the writ of execution containing the requirement that the debtor at his own expense demolish the buildings specified in the writ of execution and vacate the land plot occupied by unauthorized buildings, the bailiff was obliged to be guided precisely by the provisions of Articles 68, 107 of Federal Law No. 229- Federal Law, and, accordingly, take measures to clear the land from buildings, and draw up an act based on the results of the relevant actions.

According to the materials of the enforcement proceedings, the bailiff repeatedly issued demands to the debtor for the execution of the court decision, in addition, there is no information about sending these demands to the debtor in the materials of the enforcement proceedings. It also follows from the case materials that the decision to collect the enforcement fee from D. in connection with the failure to execute the writ of execution within the period established by law was issued once. Administrative liability under Art. of the Russian Federation for failure to comply with the requirements of the writ of execution without good reason, D. was not brought in by the bailiff. No other actions aimed at enforcing the court decision were taken within the framework of enforcement proceedings.

At the same time, in accordance with Art. 64 of the Federal Law “On Enforcement Proceedings”, enforcement actions are actions performed by a bailiff in accordance with this Federal Law, aimed at creating conditions for the application of enforcement measures, as well as forcing the debtor to complete, correct and timely fulfillment of the requirements contained in the executive document.

The provisions of the Federal Law “On Enforcement Proceedings” grant the bailiff the right to apply such enforcement measures as the commission by the bailiff on behalf and at the expense of the debtor of the action specified in the executive document, including the demolition of an unauthorized building, in the event if such an action can be performed without the personal participation of the debtor.

As follows from the case materials, the bailiff did not provide evidence of the impossibility of executing the enforcement document without the personal participation of the debtor with the subsequent collection of enforcement fees and expenses for carrying out enforcement actions from him in accordance with paragraphs. 7 clause 3 art. 68 of the Federal Law "On Enforcement Proceedings". Also in the case there is no information about the bailiff taking any measures aimed at performing on behalf and at the expense of the debtor the action specified in the executive document.

Developed by the Federal Bailiff Service of the Russian Federation, the Methodological Recommendations for the execution of judicial acts on the demolition of unauthorized erected buildings also provide for, in the event of a debtor’s failure to comply with a court decision, the application by the bailiff to the debtor of all measures aimed at fulfilling the requirements of the executive document, in particular, the issuance of a resolution on temporary restrictions on the debtor's departure from the Russian Federation, as well as organizing the execution of a court decision without the participation of the debtor at the expense of the federal budget, with subsequent reimbursement by the debtor of the costs of demolishing the building.

The inaction of the bailiff led to a delay in the execution of the court decision, which violated Art. The Russian Federation has the right to judicial protection, including the right to execution of a judicial act within a reasonable time.

Thus, taking into account that the bailiff for a long time did not take effective and sufficient measures for the real and timely execution of the requirements of the writ of execution, the court comes to the conclusion that the inaction of the bailiff, expressed in a long-term failure to fulfill the requirements contained in the writ of execution, is illegal. sheet of the Sysertsky District Court of the Sverdlovsk Region.

D.'s arguments that the bailiff has objective reasons that prevent the execution of the court decision, such as the impossibility of demolishing part of the building due to its design, namely, the demolition of a load-bearing wall will cause the collapse of the entire building, as well as the fact that at present there is no annexe as an object, but there is a single structure for which a certificate of state registration of rights has been received, the court rejects it because it has no legal significance for the case and justifies the inaction of the bailiff.

Based on the above, in accordance with Art. Art. - Civil Procedure Code of the Russian Federation, court

DECIDED:

Z.'s application to recognize the inaction of the bailiff of the Sysert district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal is to be satisfied.

Recognize the inaction of the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal.

Oblige the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region to eliminate the violations committed.

The decision can be appealed on appeal to the judicial panel for civil cases of the Sverdlovsk Regional Court within a month from the date the court decision was made in final form, by filing an appeal through the Sysertsky District Court.

Judge: Torichnaya M.V.

Court:

Sysertsky District Court (Sverdlovsk Region)

Solution from February 18, 2016

In case No. 2a-400/2016

Accepted Seversky City Court (Tomsk region)

From February 18, 2016 in case No. 2a-400/2016
Seversky City Court of the Tomsk Region, consisting of:
presiding judge Kolomina E.N.
under secretary S.N. Ovsyannikova
with the participation of the administrative plaintiff G.,
representative of the administrative plaintiff T.,
administrative defendant bailiff of the Department of Bailiffs for the city of Seversk of the Office of the Federal Bailiff Service of Russia for the Tomsk Region B., representative of the administrative defendant of the Office of the Federal Bailiff Service of Russia for the Tomsk Region Y.,
representative of the interested party prosecutor of the ZATO city of Seversk M.,
having considered in an outdoor open court session in the courtroom in the building of justices of the peace at [address] an administrative case on the administrative claim of G. to recognize as illegal the decision of the bailiff of the Department of Bailiffs for the city of Seversk of the Office of the Federal Bailiff Service of Russia for the Tomsk Region M . dated June 23, 2015 on the collection of expenses for carrying out enforcement actions,
Installed:
G. filed a lawsuit with the specified administrative claim, in which he asks to declare illegal the decision of the bailiff of the Bailiffs Department for the city of Seversk of the Office of the Federal Bailiff Service of Russia for the Tomsk Region (hereinafter referred to as the bailiff of the Bailiffs Department for the city of Seversk Federal Bailiff Service of Russia for the Tomsk Region) M. dated 06.23.2015 on the recovery from him of expenses for carrying out enforcement actions in the amount of 102,534.65 rubles, to restore the deadline for filing an application, to recover the expenses incurred by him for paying for the services of representatives in the amount of 25,000 rubles.
In support of the administrative claims, he indicated that, based on the results of consideration of the materials of enforcement proceedings dated 10/01/2012 No. **, initiated on the basis of a writ of execution - writ of execution No. ** dated 10/07/2012, issued by **, the bailiff of the Bailiffs Department for In the city of Seversk, the Federal Bailiff Service of Russia for the Tomsk Region M., by a resolution dated June 23, 2015, recovered from him the costs of carrying out enforcement actions in the amount of 102,534.65 rubles. He does not agree with this resolution, considers it to have been made illegally and unreasonably, since it violates his legal rights and interests and deprives him of property - money. Previously, a resolution was issued on March 25, 2014 to recover from him the costs of carrying out enforcement actions in the amount of 139,856.49 rubles, which he challenged in court. By decision ** dated June 2, 2013, his application was denied. By appeal ruling ** the above decision was canceled and the bailiff's decision was declared illegal. The resolution challenged by him in this administrative statement of claim is similar to the one he challenged earlier. To justify the costs of demolition of the unauthorized extension, the bailiff again refers to local estimate No. **, in which the amount was simply reduced and RUB 102,534.65 was determined to be recovered. The bailiff did not provide any documents to justify this amount. From the presented estimate documentation for the demolition of the extension and the calculations, it is not clear what characteristics of the building and its linear dimensions were taken into account when compiling it. At the same time, the volume of the walls of the building to be demolished, the distance of the building from the solid waste landfill, the presence (absence) of heating in the building during its dismantling, and the volume of construction waste are also determined incorrectly. Prices have been applied for dismantling buildings by collapsing unheated brick structures, while the walls of the garage consist not only of brick, but also of foam concrete blocks. The foundation cannot be disassembled, as it is a monolithic slab. LLC "**" carried out the following demolition work: facade wall - completely; end walls - partially (the remains of the walls are recorded in the photograph after completion of the work); the volumes of work according to the estimate do not correspond to the volumes actually completed. In the local estimate No. ** there is no conclusion of an independent expert review of the estimate; there is no list and scope of work to be performed agreed upon by the customer and the contractor. In addition, the estimate includes work on the removal of property, namely the building materials from which the building was erected; these materials are his property, and therefore third parties did not have the right to dispose of the said property or dispose of it. The bailiff did not have to forcefully demolish the extension, since he took measures to voluntarily comply with the court decision. The work of dismantling the canopy was partially completed, namely, prof. flooring, plastic five-chamber windows **, gates with frames, hinged, insulated with shut-off valves, two locks, hinges, four sections, with a wicket, window block, upper parts of hinges on the gate. However, the dismantling of the gate was carried out without preserving the hinges, the dismantling of the extension gate frame with welded hinges was not carried out, and the extension was not dismantled using a mechanized method. According to the local estimate report completed by “**”, the cost of dismantling the remaining part of the structure is 24,008.08 rubles, and therefore the calculation presented by the bailiff is many times higher than the necessary costs.
By decision of the judge ** dated 02/08/2016, the administrative claim was refused to be accepted for the proceedings regarding the recognition of the illegal retention of funds in the amount of 109,449.75 rubles. (case file 94).
On 02/08/2016, by determination ** dated 02/08/2016, the Office of the Federal Bailiff Service of Russia for the Tomsk Region was involved in the case as a second administrative defendant (case file 98).
Administrative plaintiff G., at the court hearing, supported the administrative claims on the grounds set out in the administrative statement, and additionally explained that the decision to demolish the building, made by the court in 2012, was not executed by him within five days, since, in an effort to preserve it, he was an application was filed to defer the execution of the court decision. When he was convinced that there was no way to save the building from demolition, he entered into an agreement with a contractor and began to dismantle the building step by step. Since he did not meet the deadlines set for demolition, the bailiff issued an order for forced demolition. The local estimate of the Federal Bailiff Service indicated that work was carried out to demolish a two-story brick garage, although in fact three walls were demolished. He believes that the demolition of the building by the bailiffs was carried out deliberately. The scope of work in the local estimate of the bailiff does not correspond to reality. The illegality of the bailiff's decision lies in the fact that it greatly inflates the cost of the work, and also incorrectly applied the prices. The statement should be drawn up based on the fact of work, measuring the thickness of the walls, indicating the materials and mechanisms used. The bailiff's estimate does not correspond to the work that was actually performed. The cost of work in the estimate is calculated for a structure with a basement, which cannot be applied, since there was no basement. The demolished structure was made of combined materials - hollow bricks, foam blocks, while a defective statement should have been drawn up reflecting the materials of the structure, volumes, tonnage, and complexity of the work. In addition, he asked to recover the costs of paying for the services of representative T. in the amount of 15,000 rubles, from the collection of costs for representative A. in the amount of 10,000 rubles. refused.
At the court hearing, the representative of the administrative plaintiff T., acting on the basis of an order dated 02/05/2016 No. **, who presented certificate No. ** dated 06/18/2015 (case file 93), supported the position of her client, additionally explained that despite the fact that G. did not comply with the court decision in a timely manner, the bailiff did not need to carry out the forced demolition of the extension, since G. independently began to enforce the court decision.
The administrative defendant, the bailiff of the Department of Bailiffs for the city of Seversk, the Federal Bailiff Service of Russia for the Tomsk Region, B. did not recognize the administrative claims, submitted written objections, in which she indicated that G. had missed the deadline for going to court (case file 115- 116), additionally explained that currently the bailiff M., whose actions are being disputed, has resigned, enforcement proceedings against G. were transferred to her under the acceptance certificate. Due to the fact that the debtor was repeatedly given a deadline for the voluntary execution of the decision, which G. was not executed, the bailiff issued a decree on the demolition of the building at the expense of the federal budget. The actions of the bailiff were justified and legal in accordance with the algorithm of action during the demolition of the building of the Federal Bailiff Service. The cost of demolition work is calculated by the FSSP Office. In this case, the FSSP Office made a calculation, which G. was familiar with. The bailiff cannot challenge the estimate, is not involved in its calculation, and therefore cannot provide evidence confirming the correctness of the calculation of the amounts collected. She explained that the indices for the types of work in the 4th quarter of 2013 were applied in accordance with the changes made to the local estimate report No. **. The unheated building was actually dismantled, the volume of waste removed after dismantling the building was 51.2258 tons, the distance of the solid waste landfill from the building was up to 5 km. The Federal Bailiff Service for the Tomsk Region currently does not have documents confirming the total volume of the structure to be demolished, the characteristics of the building and its linear dimensions, which were taken into account when preparing the local estimate. The costs of dismantling (disassembling) structures of buildings and structures are determined according to the collection ** “**”; costs for loading and removal of construction waste and materials obtained during dismantling of structural elements of buildings and structures are determined according to the collection Federal Estimated Prices for the Transportation of Goods.
The representative of the administrative defendant of the Federal Bailiff Service of Russia for the Tomsk Region, Yu., acting on the basis of a power of attorney dated 02/02/2016 No. ** for a period of three years, did not agree with the administrative claims at the court hearing, explained that the debtor was repeatedly given a deadline for the voluntary execution of the court decision, decisions were made on the obligation to fulfill the requirements of the executive document, which the debtor did not fulfill voluntarily within five days, in connection with which on 07/09/2013 an estimate was drawn up with a visit to the site by a logistics specialist from the Department to assess the structure. After this, a government contract was concluded in the amount of 216,000 rubles. The demolition itself was carried out during the period from November 21, 2013 to November 28, 2013 by the contractor LLC "**". During the demolition, it was found that part of the dismantling work had already been carried out by the debtor, so the contract price was reduced. On 12/09/2013, an acceptance certificate for the work performed was signed by the contractor LLC “**” and acting. head of the FSSP Department in the amount of 139,000 rubles, an estimate was drawn up for the government contract. Due to the fact that the court of appeal found that the building was dismantled without heating, changes were made to the local estimate. The contested decision of the bailiff to recover costs was made in connection with changes to the local estimate.
The representative of the interested party, the prosecutor of the closed city of Seversk, M., did not agree with the administrative claims at the court hearing and asked to refuse to satisfy them in full. She explained that the decision ** was not executed by the debtor G. for a long time, and therefore the bailiff took enforcement actions to demolish the extension built by the debtor without permission. The contested decision was made by the bailiff on the basis of a local estimate approved by the acting. head of the Federal Bailiff Service of Russia for the Tomsk region, which was subsequently amended. I considered this calculation and changes to it legal and justified.
Having heard the explanations of the administrative plaintiff G., the representative of the administrative plaintiff T., the administrative defendant of the bailiff of the Department of Bailiffs for the city of Seversk of the Federal Bailiff Service of Russia for the Tomsk Region B., the representative of the administrative defendant of the Federal Bailiff Service of Russia for the Tomsk Region Yu., the representative of the interested party of the prosecutor of the ZATO Seversk M., having studied the written materials of the case and enforcement proceedings, the court comes to the following conclusions.
In accordance with Art. 360 of the Code of Administrative Proceedings of the Russian Federation (hereinafter referred to as CAS RF) decisions of the chief bailiff of the Russian Federation, the chief bailiff of the subject (chief bailiff of the subjects) of the Russian Federation, the senior bailiff, their deputies, the bailiff, their actions (inaction) may be challenged in court in the manner established by Chapter 22 of this Code.
Part 1 of Art. 218 of the Code of Arbitration Code of the Russian Federation provides that a citizen, organization, or other persons may apply to the court with demands to challenge decisions, actions (inaction) of a government body, local government body, other body, organization vested with certain state or other public powers (including decisions actions (inaction) of a qualification board of judges, an examination commission), an official, a state or municipal employee (hereinafter referred to as a body, organization, person vested with state or other public powers), if they believe that their rights, freedoms and legitimate interests have been violated or challenged , obstacles have been created to the exercise of their rights, freedoms and legitimate interests, or any responsibilities have been illegally assigned to them. A citizen, organization, or other persons can appeal directly to the court or challenge decisions, actions (inaction) of a body, organization, person vested with state or other public powers, to a higher authority, organization in the order of subordination, from a higher person in the order of subordination, or use other out-of-court dispute resolution procedures.
Within the meaning of Art. 226 of the Code of Arbitration Code of the Russian Federation, in order to recognize the actions (inaction) of a bailiff as illegal, the court must establish the presence of two conditions: the contested actions (inaction) do not comply with the law or other regulatory legal act; the contested actions (inaction) violate the rights and freedoms of the applicant.
In accordance with Article 1, 11, 12, 17 art. 30 of the Federal Law of 02.10.2007 No. 229-FZ “On Enforcement Proceedings”, the bailiff initiates enforcement proceedings on the basis of a writ of execution at the request of the claimant, unless otherwise provided by this Federal Law.
If the writ of execution is received by the bailiff service for the first time, then the bailiff, in the resolution to initiate enforcement proceedings, sets a period for the voluntary execution by the debtor of the requirements contained in the writ of execution and warns the debtor about the forced execution of these requirements after the expiration of the period for voluntary execution with recovery from him enforcement fee and expenses for carrying out enforcement actions provided for in Art. 112 and 116 of this Federal Law.
According to Part 1 of Art. 64 of the Federal Law of 02.10.2007 No. 229-FZ “On Enforcement Proceedings”, enforcement actions are actions performed by a bailiff in accordance with this Federal Law, aimed at creating conditions for the application of enforcement measures, as well as forcing the debtor to complete, correct and timely fulfillment of the requirements contained in the executive document. At the same time, by virtue of paragraph 4 of this article of the law, the bailiff has the right to give instructions to individuals and legal entities to fulfill the requirements contained in the executive documents.
Thus, the list of works necessary to fulfill the requirements of the writ of execution is determined by the bailiff.
By virtue of Part 1 of Art. 116, paragraph b, part 2, art. 116 of the Federal Law “On Enforcement Proceedings”, expenses for carrying out enforcement actions are funds from the federal budget, the claimant and other persons participating in enforcement proceedings, spent on organizing and conducting enforcement actions and applying enforcement measures. Expenses for carrying out enforcement actions include funds spent on performing the necessary actions in the process of executing the enforcement document.
Part 3 of Art. 117 of the Federal Law “On Enforcement Proceedings” provides that the collection from the debtor of expenses for carrying out enforcement actions, transferring them to the federal budget in cases provided for by this Federal Law, as well as reimbursement of expenses to the person who incurred them, are carried out on the basis of a resolution of the bailiff -executor approved by the senior bailiff or his deputy.
Based on the foregoing, the bailiff recovers from the debtor expenses incurred in connection with the performance of actions aimed at fulfilling the requirements of the writ of execution.
At the court hearing it was established and not disputed by the persons participating in the case that on 10/01/2012 the bailiff of the OSP for the city of Seversk, the Federal Bailiff Service of Russia for the Tomsk Region of M. initiated enforcement proceedings No. ** on the basis of the writ of execution No. ** dated 09.07.2012 , issued by **, about G.’s obligation to demolish a 2-story unauthorized building to a previously built garage at [address] on a public land plot with an area of ** sq.m. and a shed on a public land plot with an area of ** sq.m. The claimant for this enforcement proceeding is the prosecutor of the ZATO city of Seversk. By the said resolution, bailiff M. set debtor G. a period of 5 days for voluntary fulfillment of the requirements contained in the writ of execution (case sheets 164, 177).
As follows from the case materials and is confirmed by the explanations of the parties, the bailiff G. repeatedly set a new deadline for the execution of the requirements of the writ of execution, the latter was warned that if the bailiff organizes execution in accordance with the rules provided to him by the legislation on enforcement proceedings, the costs of carrying out enforcement actions will be reimbursed to the federal budget, the claimant or the persons who incurred such expenses, at the expense of the debtor, but G. did not fulfill the requirements of the enforcement document within the time period established by the bailiff.
From the explanations of the administrative plaintiff G., given at the court hearing, it follows that for a year he did not comply with the court decision due to the fact that he intended to save the building from demolition, for which he repeatedly applied to the court to grant a deferment of execution of the court decision .
On March 27, 2014, bailiff M. issued a resolution by which the enforcement proceedings against G. No. ** ended, in connection with the actual execution of the executive document (ld. 162-163).
On June 23, 2015, bailiff M., on the basis of a writ of execution dated June 23, 2015, issued by the Department of Bailiffs for the city of Seversk of the Federal Bailiff Service of Russia in the Tomsk Region, initiated enforcement proceedings against G. for the recovery of expenses for carrying out enforcement actions (ld. .152).
According to clause 3.1.7 of the Methodological Recommendations for organizing work on reimbursement of expenses for carrying out enforcement actions (approved by the FSSP of Russia on July 24, 2013 No. 01-10), a document confirming the fact of the occurrence of expenses for the demolition of an illegally erected structure, troubleshooting, etc. , is an act of completed work signed by the parties to a government contract (agreement) for the provision of services for the demolition of an illegally erected structure, troubleshooting, etc.
The court found that specialists from the logistics department drew up a local estimate No. **, which determined the cost of the demolition of unauthorized buildings in the amount of 216,614.82 rubles. (ld. 171-176).
As can be seen from the case materials, on November 8, 2013, State Contract No. ** was concluded between the Federal Bailiff Service for the Tomsk Region and LLC “**” for the demolition of unauthorized buildings: a two-story garage and a shed on a public land plot at [address] within enforcement proceedings dated 10/01/2012 No.**, under the terms of which the total cost of the contract is 216,614.82 rubles, the total contract period is 38 days (from 11/08/2013 to 12/01/2013), the payment period for work performed is from 12/07/2013 to 12/17 .2013 (case sheet 165-170).
It also follows from the case materials that the Federal Bailiff Service of Russia for the Tomsk Region made changes to the local estimate No. **, according to which the cost of demolition work on unauthorized buildings was determined to be 102,534.65 rubles. (ld. 153-154).
The act of acceptance of work performed under contract No. ** dated October 3, 2013 (case file 33-34) confirms and is not disputed by the administrative defendants that debtor G. independently carried out part of the work to dismantle the building, including the dismantling of the canopy and windows , doors, materials remaining after performing the specified types of work were removed.
According to the report of the Federal Bailiff Service of Russia for the Tomsk Region, presented by the defendant in confirmation of the volume and list of work on the demolition of the structure, the actual volume of garbage removed after the dismantling of the building amounted to 51.2258 tons (previously 140 tons); the distance of the solid waste landfill from the building is up to 5 km (previously 15 km); The unheated building was dismantled.
Part 2 of Art. 62 of the Code of Arbitration Code of the Russian Federation establishes that the obligation to prove the legality of contested normative legal acts, decisions, actions (inactions) of bodies, organizations and officials vested with state or other public powers rests with the relevant body, organization and official. These bodies, organizations and officials are also required to confirm the facts to which they refer as the basis for their objections.
By virtue of ch. 9, 10 tbsp. 226 CAS RF, when considering an administrative case challenging a decision, action (inaction) of a body, organization, person vested with state or other public powers, the court verifies the legality of the decision, action (inaction) in the part that is being disputed, and in relation to the person who is an administrative plaintiff, or persons in defense of whose rights, freedoms and legitimate interests a corresponding administrative claim has been filed. When checking the legality of a decision, action (inaction) of a body, organization, person vested with state or other public powers, the court is not bound by the grounds and arguments contained in the administrative statement of claim to declare illegal the decision, action (inaction) of a body, organization, person vested with state or other public powers, and ascertains the circumstances specified in Part. 9 and 10 of this article, in full. Unless otherwise provided by this Code, when considering an administrative case challenging a decision, action (inaction) of a body, organization, person vested with state or other public powers, the court finds out whether the rights, freedoms and legitimate interests of the administrative plaintiff or persons in defense of rights, freedoms and legitimate interests of whom the corresponding administrative claim has been filed; whether the deadlines for going to court have been met; whether the requirements of regulatory legal acts establishing: the powers of a body, organization, person vested with state or other public powers to make a contested decision, commit a contested action (inaction) have been met; the procedure for making a contested decision, performing a contested action (inaction) if such a procedure has been established; grounds for making a contested decision, performing a contested action (inaction), if such grounds are provided for by regulatory legal acts; whether the content of the contested decision, the contested action (inaction) committed corresponds to the normative legal acts governing the disputed relations. If in administrative cases challenging decisions, actions (inaction) of bodies, organizations, persons vested with state or other public powers, federal laws limit the grounds for challenging such decisions, actions (inaction) (in particular, in relation to some decisions actions (inaction) of qualification boards of judges and examination commissions), the court clarifies the circumstances specified in paragraphs. 1 and 2, “and “b”, paragraph 3, part 9 of this article. If the grounds established by federal laws for challenging the action (inaction) of a body, organization, person vested with state or other public powers are not included in these circumstances, the court verifies these grounds.
According to Part 11 of Art. 226 CAS RF, the obligation to prove the circumstances specified in paragraphs. 1 and 2 parts 9 of this article, is assigned to the person who applied to the court, and the circumstances specified in paragraphs. 3 and 4, part 9 and part 10 of this article - on a body, organization, person vested with state or other public powers and who made the contested decisions or committed the contested actions (inaction).
In violation of these norms, the administrative defendants, citing the fact that the total volume of garbage removed after the dismantling of the building amounted to 51.2258 tons, the distance of the solid waste landfill from the building was up to 5 km, did not provide evidence of this, nor did they provide evidence that the amount of costs for enforcement actions was reduced by them after it was established in November 2013 that part of the building had already been dismantled. No evidence was presented that when dismantling the remaining walls of the structure, the tariff for their dismantling applied to buildings without heating was taken into account, since this is not seen from the presented state contract No. ** and changes to the local estimate No. **.
Reducing the cost of demolition work and determining for recovery from G. 102,534.65 rubles. in compensation for the costs of carrying out enforcement actions, the defendant did not indicate, including in the local estimate, what characteristics of the building and its linear dimensions were taken into account when drawing it up, while the administrative plaintiff disputes these circumstances, and the obligation to prove these circumstances and legality actions to impose on the debtor the costs of carrying out enforcement actions lies with the administrative defendant.
The changes to local estimate No. ** (case sheet 153) indicate that a brick unheated building, including a basement, was dismantled, but no evidence was provided that the building and basement were dismantled.
Based on the foregoing, the court comes to the conclusion that the administrative defendants did not provide evidence confirming the amount of expenses for carrying out enforcement actions in the amount of 102,534.65 rubles, with the calculation of these amounts to be recovered from G., while from Local estimate No. ** presented by the administrative plaintiff, compiled by LLC "**", it follows that the estimated cost of the demolition work amounted to 24,031.09 rubles.
The defendant’s reference to the fact that the bailiff does not prepare a local estimate, and therefore cannot provide evidence of the amount of the amounts collected, is not taken into account by the court, since it contradicts the provisions of Art. 62 CAS RF and the Law “On Enforcement Proceedings”.
Under such circumstances, taking into account the above, G.’s administrative claims to recognize as illegal the resolution of the bailiff of the Bailiffs Department for the city of Seversk of the Federal Bailiff Service of Russia for the Tomsk Region M. dated 06.23.2015 on the recovery of expenses for carrying out enforcement actions, as contradictory Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings” are legal, justified and subject to satisfaction.
Considering the defendant's statement about missing the deadline for filing a lawsuit, the court comes to the following conclusion.
By virtue of Part 3 of Art. 219 of the Code of Arbitration Code of the Russian Federation, an administrative claim for declaring illegal decisions, actions (inaction) of a bailiff can be filed with the court within ten days from the day when a citizen, organization, or other person became aware of a violation of their rights, freedoms and legitimate interests.
Resolution of the bailiff M. to recover from G. the costs of carrying out enforcement actions in the amount of 102,534.65 rubles. rendered on June 23, 2015 (case sheet 8-9).
The said resolution was delivered to the debtor on January 13, 2016, which is confirmed by a mark on the said resolution (case sheet 8-9).
G. filed an administrative claim to challenge the above resolution with the Seversky City Court of the Tomsk Region on January 22, 2016 (case sheets 2-7).
Under such circumstances, the court comes to the conclusion that G. did not miss the deadline for filing the specified administrative claim in court.
As for G.’s demands to recover legal expenses from the defendants for the services of a representative in the amount of 15,000 rubles, the court comes to the following conclusion.
By virtue of Part 1 of Art. 103 CAS RF, court costs consist of state fees and costs associated with the consideration of an administrative case.
In accordance with Art. 106 of the Code of Arbitration Code of the Russian Federation, the costs associated with the consideration of an administrative case, among others, include the costs of paying for the services of representatives.
In accordance with Art. 112 of the Code of Arbitration Code of the Russian Federation to the party in whose favor the court decision was made, upon its written request, the court awards, on the other hand, the costs of paying for the services of a representative within reasonable limits.
As follows from paragraph 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 21, 2016 No. 1 “On some issues of application of legislation on reimbursement of costs associated with the consideration of a case,” legal costs include expenses incurred by persons participating in the case, including third parties, interested parties in administrative matters (Article 106 of the CAS RF).
Paragraphs 10 and 11 of the said resolution stipulate that the person claiming the recovery of legal costs must prove the fact of their incurrence, as well as the connection between the costs incurred by the said person and the case being considered in court with his participation. When resolving the issue of the amount of amounts collected for reimbursement of legal costs, the court does not have the right to reduce it arbitrarily, unless the other party raises an objection and does not provide evidence of the excessiveness of the costs collected from it (Part 4 of Article 2 of the CAS RF).
At this court hearing, the interests of the administrative plaintiff G. were represented by T., acting on the basis of an order dated 02/05/2016 No. **, who presented certificate No. ** dated 06/18/2015 (case file 93).
At the court hearing, it was established that G. incurred expenses for the provision of legal services to T. in the form of studying materials, drawing up an administrative statement of claim, representing his interests in court, which was paid a remuneration in the amount of 15,000 rubles, which is confirmed by a receipt for the receipt order No. ** dated January 21, 2016 (case file 81), agreement for the provision of legal assistance dated January 21, 216, concluded between G. and lawyer T. (case file 82).
The obligation of the court to recover the costs of paying for the services of a representative, incurred by the person in whose favor the judicial act was adopted, from another person participating in the case, within reasonable limits, is one of the legal methods provided for by law, aimed against the unreasonable overestimation of the amount of payment for the services of a representative and thereby - to implement the requirement of Article 17 (Part 3) of the Constitution of the Russian Federation, according to which the exercise of human and civil rights and freedoms should not violate the rights and freedoms of other persons.
As follows from paragraph 12 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 21, 2016 No. 1 “On some issues of application of legislation on reimbursement of costs associated with the consideration of a case,” the costs of paying for the services of a representative incurred by the person in whose favor the judicial act was adopted are recovered by the court from another person participating in the case, within reasonable limits (Article 112 of the CAS RF).
Reasonableness of size as an evaluative category is determined individually, taking into account the characteristics of a particular case.
By virtue of paragraph 13 of the said resolution of the Plenum, such expenses for payment for the services of a representative, which under comparable circumstances are usually charged for similar services, should be considered reasonable. When determining reasonableness, the volume of the stated requirements, the price of the claim, the complexity of the case, the volume of services provided by the representative, the time required for the preparation of procedural documents, the duration of the consideration of the case and other circumstances may be taken into account. The reasonableness of legal costs for the services of a representative cannot be justified by the fame of the representative of the person participating in the case.
When determining the amount to reimburse the costs of paying for the services of representative T., the court takes into account the category and degree of complexity of the administrative case, the result of the consideration of the administrative case, the work done by the representative, namely: drawing up an administrative statement of claim (case sheets 1-7), participation in preparations cases for trial on 02/16/2016 and 02/17/2016, in two mobile court sessions on 02/17/2016 and 02/18/2016.
Taking into account the correlation of the expenses incurred with the scope of the protected right, the balance of interests of the parties, the principles of reasonableness and fairness, the court recognizes these expenses as subject to compensation to the applicant G. in the amount of 10,000 rubles.
When determining the person from whom legal costs are to be recovered, the court proceeds from the following.
In accordance with clause 1 of the Model Regulations on the territorial body of the Federal Bailiff Service, approved by Order of the Ministry of Justice of Russia dated May 21, 2013 No. 74, the territorial body of the Federal Bailiff Service is the Office (department) of the Federal Bailiff Service operating on the territory of a constituent entity of the Russian Federation.
According to the Regulations on the Federal Bailiff Service, approved by Decree of the President of the Russian Federation dated October 13, 2004 No. 1316, the Federal Bailiff Service is a federal executive body that carries out the functions of the main manager of federal budget funds allocated for the maintenance of the central apparatus of the FSSP of Russia and territorial bodies, and also for the implementation of the functions assigned to it (Article 1, paragraph 8 of Article 6 of the Regulations).
Taking into account the above, as well as the fact that the Department of Bailiffs for the city of Seversk of the Federal Bailiff Service of Russia for the Tomsk Region, where the bailiff whose decision G. is appealing operates, is not a legal entity, but is a structural unit of the main manager of federal budget funds Department of the Federal Bailiff Service for the Tomsk Region, the court comes to the conclusion that legal costs should be recovered in favor of G. from the Department of the Federal Bailiff Service of Russia for the Tomsk Region.
Based on the above, guided by art. 175-180, 227 CAS RF,
Decided:
satisfy administrative claims.
To recognize as illegal the resolution of the bailiff of the Department of Bailiffs for the city of Seversk of the Office of the Federal Bailiff Service of Russia for the Tomsk Region M. dated June 23, 2015 on the recovery of expenses for carrying out enforcement actions as contrary to the Federal Law of October 2, 2007 No. 229-FZ “On enforcement proceedings" and violating the rights, freedoms and legitimate interests of G..
To recover from the Office of the Federal Bailiff Service of Russia for the Tomsk Region in favor of G. the costs of paying for the services of a representative in the amount of 10,000 rubles.
Oblige the bailiff of the Department of Bailiffs for the city of Seversk of the Office of the Federal Bailiff Service of Russia for the Tomsk Region to recalculate the amount of expenses for carrying out enforcement actions within one month from the date the court decision enters into legal force.
Publish a message about the adoption of this decision within one month from the date of its entry into legal force in the official printed publication of the Federal Bailiff Service of Russia for the Tomsk Region.
The decision can be appealed to the Tomsk Regional Court within a month from the date of its adoption in final form by filing an appeal through the Seversky City Court of the Tomsk Region.
Chairman E.N. Colomina