Quite often, owners of apartments with attic or attic spaces above them have a desire to attach part of the attic space to their apartment. Is this possible and if so what are the necessary actions? How is it possible to register ownership of an attic space created as a result of reconstruction?
First of all, you need to understand legal regime attic space, in other words, who owns it? By virtue of paragraph 1 of Art. 290 of the Civil Code of the Russian Federation, the common premises of the house, the load-bearing structures of the house, mechanical, electrical, sanitary and other equipment outside or inside the apartment that serves more than one apartment belong by right of common shared ownership to the owners of apartments in an apartment building.
According to Part 2 of Art. 36 of the Housing Code of the Russian Federation, owners of premises in an apartment building own, use and dispose of common property in an apartment building.
By virtue of clause 1, part 1 of Art. 36 of the Housing Code of the Russian Federation, attics as premises that are not parts of apartments and intended to serve more than one room in a given house are included in the common property in an apartment building.
Thus, By current legislation, attic spaces are classified as common property of the house.
It should be noted that the attic space in a house may also be owned by St. Petersburg, in which case the law provides for a different procedure for the reconstruction of such premises; this article only considers the reconstruction of the attic space that is part of the common property in an apartment building.
In accordance with Part 3 of Art. 36 of the Housing Code of the Russian Federation, reducing the size of common property in an apartment building is possible only with the consent of all owners of premises in this building through its reconstruction.
In addition, the need to obtain consent for the reconstruction of premises in connection with the last part of the common property in an apartment building is also established in clause 2 of Art. 40 Housing Code of the Russian Federation.
How can you obtain the consent of all owners of premises in an apartment building? The Housing and Civil Codes of the Russian Federation provide in such cases the need to hold a general meeting of residents.
It is necessary to pay the closest attention to the preparation, conduct and registration of the results of the general meeting of residents, since if subsequently the Management Federal service state registration, cadastre and cartography in St. Petersburg or the court establishes the lack of proper notification of residents, registration of voting ballots, facts of voting instead of the owners of premises by other persons, or other violations during a general meeting of residents, then the registration of ownership of the reconstructed object will be denied.
In particular, the district courts of St. Petersburg issued the following acts on the issues of holding a general meeting of residents to obtain consent for the reconstruction of the attic.
For example, by the decision of the Dzerzhinsky District Court of St. Petersburg dated March 6, 2013 in case No. 33-9606/2013, upheld by the appeal ruling of the St. Petersburg City Court dated July 18, 2013, in satisfying claims for recognition of property rights an apartment with an attic created as a result of reconstruction was refused, with reference to the fact that the current legislation “establishes that reducing the size of common property in an apartment building is possible only with the consent of all, without exception, owners of the premises in this building.”
The decision of the Thirteenth Arbitration Court of Appeal dated October 29, 2013 in case No. A56-24391/2013 established that in violation of Articles 246, 289, 290 of the Civil Code Russian Federation and the provisions of Article 36 of the Housing Code of the Russian Federation, the registration authority was not provided with evidence of the consent of all owners of premises in the house for the alienation of common property, in connection with which the refusal of the Office of the Federal Service for State Registration, Cadastre and Cartography for St. Petersburg in state registration of ownership rights to apartments created as a result of reconstruction on attic floor, was declared legal.
However, by the Resolution of the Federal Antimonopoly Service of the North-Western District dated January 31, 2014 in case No. A56-24391/2013, this decision of the court of appeal was canceled with reference to the following: at the time of the creation of the homeowners association and the meeting dated June 4, 2004, relations related to the management of an apartment building home and the use of common property were regulated by the Federal Law “On Homeowners' Associations”. According to Article 22 of this Law, the general meeting of homeowners is valid if it is attended by homeowners or their representatives with more than 50 percent of the votes of the total number of votes of homeowners. The decision is made by a majority vote of the homeowners present at the general meeting and is binding on all homeowners, including those who, regardless of the reasons, did not take part in the vote.
In addition, the cassation court indicated that neither the investment agreement nor the decision of the meeting of the homeowners association was challenged by residents or other interested parties, and was not declared invalid by the court (decision of the Vyborg District Court of St. Petersburg dated June 22, 2010 case No. 2-4625/10 V.P. Demenkov, who is the owner of an apartment in this building, was denied a claim for an obligation to bring the attic space to its previous state. By the decision of the Petrogradsky District Court of St. Petersburg dated November 28, 2011 in case No. 2-2324/ 11 V.P. Demenkov and other homeowners were refused to satisfy their claims, which were justified, in particular, by carrying out reconstruction without their consent, to determine the procedure for using the attic premises).
When considering another case, the Decree of the St. Petersburg City Court dated July 22, 2013 N 33-11404/2013 satisfied the requirement to invalidate the decision of the general meeting of premises owners, since the owners of the premises of the house about holding a meeting in the form of absentee voting were improperly notified, from voting ballots make it impossible to determine the number of votes participating in the meeting.
By the ruling of the St. Petersburg City Court dated May 23, 2012 N 33-6560, taking into account the fact that the permission of the authorized body to carry out the reconstruction of a residential premises - an apartment, drawn up in accordance with the procedure established by law, in compliance with the norms of the Housing Code of the Russian Federation and the Town Planning Code of the Russian Federation expansion through the use of attic space, as well as the consent of all owners of the premises apartment building are absent, it has been established that there are no legal grounds for satisfying the plaintiff’s demands for recognition of his ownership of the reconstructed object.
In addition, when planning the reconstruction of the attic space, you need to know that, due to the provisions of Art. 1 of the Town Planning Code of the Russian Federation, reconstruction of facilities capital construction a change in the parameters of the object, its parts (in particular, the number of floors, area, volume), including superstructure, reconstruction, expansion of the object, is recognized.
At the same time, housing legislation does not regulate the procedure for reconstructing the premises of an apartment building. This procedure is provided for by the Town Planning Code of the Russian Federation.

The capital's authorities have resumed the fight against the construction of illegal attics. The lawyers told RBC Real Estate what documents need to be prepared and agreed upon with government agencies for the construction of superstructures, as well as how to legalize an existing attic.

Photo: globallookpress/CHROMORANGE/Bilderbox

Construction of an attic can improve the living conditions of owners residential buildings or generate income commercial organizations. However, for this it is necessary to clearly understand the legal procedures that allow this to be done either before the start of construction or after an unauthorized increase in area has been carried out. In addition, the legislation has a number of restrictions that do not allow the legality of the superstructure to be recognized. Lawyers advised the RBC Real Estate project on how to behave in all of the above cases.

How to prepare documents for the construction of an attic

According to CMS partner Ivan Gritsenko, the construction of an attic is essentially a reconstruction of the building, since the number of floors increases and its height changes. The Town Planning Code clearly states that the addition of a building is a reconstruction. To implement this, it is necessary to develop project documentation and agree on it in the manner prescribed by law. From a legal point of view, the procedure for obtaining a reconstruction permit is comparable to obtaining a building permit.

Photo: depositphotos.com/davincidig

"To legalize the attic, it is necessary to draw up a project plan for the floor being built on. After it is approved by the customer, it must be submitted for approval and approval to the prefectural authorities - the administrative and technical inspection, the committee for urban planning and architecture, if the building is located in a protected zone or refers to architectural monuments - to the protection authorities cultural heritage, where it is necessary to obtain permission to carry out reconstruction. To do this, you need to collect all possible documents that you will be asked to present. Visit the housing office, BTI, sanitary and epidemiological station and tell them about your intentions,” advises lawyer Andrei Komissarov from the Komissarov and Partners bar association.

Legalization of the constructed attic

There is a direct ban in legislation on the construction of attics in residential buildings And commercial facilities not in Moscow. There is also no prohibition on legitimizing an already erected attic. This applies to both ordinary buildings and architectural monuments. Although with architectural monuments everything is much more complicated. All changes related to monuments are regulated by protective obligations. The building owner (or tenant) has the opportunity to add an attic only if the historical building once had such a superstructure. At the same time, the option with a new attic must fully comply with the historical appearance, says Anna Mishechkina, head of the redevelopment approval department of the consulting company.

However, as Anna Mishechkina notes, now the bodies (Moskomarkhitektura and Moszhilinspektsiya) authorized to approve superstructures that have already been erected or those that can be erected even on ordinary buildings refuse to do so. “Perhaps this is due to the fact that some Muscovites are against superstructures, and government officials do not want to enter into conflict relations immediately after the elections,” she comments.

How can the court help?

According to lawyer Andrei Komissarov, in order to “legalize” an unauthorized building, it is necessary to apply to the court with a statement of claim for recognition of ownership rights (worldwide, regional) at the address land plot. The claim must be accompanied by whole line documents, including: confirming ownership or other rights to a land plot; confirming the presence of unauthorized construction on the site (inspection report, documents from the BTI). You must also attach documents confirming that during the construction of the building there were no significant violations of urban planning and building codes and regulations, that the building does not pose a threat to the life and health of citizens, and does not violate the rights and legally protected interests of other persons.

Prohibition on registration of attics as property

Photo: depositphotos.com/pingvin121674

If physical or entity does not own the site, it is impossible to legitimize the superstructure. Art. speaks about this. 222 of the Civil Code of the Russian Federation. In addition, recognition of ownership of an unauthorized building is impossible if its preservation violates the rights or creates a threat to the life or health of third parties, for example neighbors, says Ivan Gritsenko.

Let us recall that the Moscow authorities have resumed the fight against illegally constructed buildings, including through the courts. Thus, in relation to three addresses, district courts made decisions on demolition. These are two houses on Novoslobodskaya street, no. 62 and no. 4/19, no. 1 and no. 3a, no. 2 on Bolshoi Zlatoustinsky Lane. Also, the Moscow Department of Urban Development Policy reports that cases at two more addresses are currently pending in the courts. In addition, the capital's authorities have prepared a set of documents for filing a lawsuit at another 20 addresses of illegally erected attics on the roofs of residential buildings in the Central District. Attics-objects of unauthorized construction were identified on Sretensky Boulevard, Myasnitskaya Street, Bolshaya Ordynka, in Bolshoi Trekhgorny and Kolokolnikov lanes, on Frunzenskaya embankment.

The fight of the Moscow City Heritage against illegal extensions

During 2014 The illegal attic on Pasternak's house in Oruzheyny Lane, 3, building 1, whose area was 385 square meters, was dismantled. m. A Japanese cafe and a French pancake house are located there, and the building itself appeared back in 2002. For the dismantling and restoration of the roof, the owners of the superstructure will have to pay the city 5 million rubles.

Object of cultural heritage of regional significance "Ensemble of profitable development, XVIII-XIX centuries - Residential building with shops, 1821, 1836." at the address: Pokrovka Street, 6, was built with an attic, the permitting documentation for the construction of which on a historical and cultural monument was not issued by the Moscow City Heritage.

Illegal redevelopment grossly distorted the historical appearance and volume of the building, which led to a violation of the urban planning characteristics of the cultural heritage site and to the violation of the historical development front along Pokrovka Street. In 2013 the superstructure was declared unauthorized, and the owners were obliged to restore the historical appearance at their own expense.

One of the unscrupulous users of the facility expressed his readiness to demolish the said attic at the expense of own funds. He was informed by the Moscow City Heritage Department about the procedure for carrying out this work, and on August 22, 2014. the owner submitted for approval to the Moscow City Heritage the constructive section of the project for adaptations for modern use and the project for dismantling the existing modern roof. September 12, 2014 The above documentation was approved by the Moscow City Heritage.

Another cultural heritage site, “Residential House of the Main Northern Sea Route” (known as the “House of Polar Explorers”) on Nikitsky Boulevard, 7b, was built with a residential attic by the owner of one of the apartments without registration permitting documentation. As a result of construction work, the integrity of the perception of the monument was distorted and gross damage was caused to the cultural heritage site. It is worth noting that the “House of Polar Explorers” is one of the iconic examples Stalin's Empire style. As a result of an appeal from the Department of Cultural Heritage to Presnensky district court in the city of Moscow, the erected attic was declared illegal, and the owner was obliged to demolish it at his own expense.

Elena Lykova

Many residents of apartment buildings are thinking about the possibility of adding an attic space to their homes. This article describes the various options for obtaining this premises at your disposal, as well as the list of activities and documents required for this.

First of all, people who want to improve their living conditions through an attic should decide how they will do this: by concluding a lease agreement or registering ownership. Residents planning to sell their apartment in the foreseeable future should take care of privatizing the attic space. For those who intend to use the additional space for their personal purposes, it will be enough to conclude a simple lease agreement.

Preparatory stage

According to Article 36 of the Housing Code of the Russian Federation, attics in apartment buildings are the common property of all residents and permission to transfer them to private individuals can only be adopted at a general meeting of home owners. Therefore, first of all, it is necessary to find out whether an association of homeowners (HOA or housing cooperative) has been formed in the house and first talk with its members about the possibility of obtaining an attic space.

Another important point is to find out whether the building, according to the General Plan, is classified as a house for demolition. In Moscow, for example, this can be found out in the district department of housing policy and housing stock cities or prefectural websites.

The next step will be to obtain an expert opinion from the Bureau of Technical Inventory on the technical feasibility of reconstructing the attic space. After all, if it is impossible to move utility lines from the part of the apartment that is of interest to the apartment owner or, due to the characteristics of the premises, it is not possible to re-equip it in accordance with current technical standards, it will not be possible to obtain ownership or use of the attic.

Procedure for registering an attic for rent

1. BTI representatives carry out measuring work. Without them, determining the area and boundaries of the room will be impossible.
2. It is necessary to obtain written consent from the residents to rent and convert the attic (the consent of 2/3 of the residents is required). It should be remembered that residents living in apartments under a social tenancy agreement are not the owners of the house and therefore, instead of them, consent to renting and converting the attic will be given by the city department of property relations.
3. The lease agreement is concluded and carried out state registration at the Federal Registration Service
4. The project is ordered from any organization that has the appropriate license.
5. A fairly large package of documentation is collected, which is necessary to coordinate the reconstruction project with various regulatory authorities (technical conditions for utility networks, urban plan of the building's land plot, technical conditions for examining the load-bearing structures of the building, etc.). Full list documents can be obtained from the company from which the project is ordered.
6. Work is currently underway to reconstruct the attic. Commissioning is underway.
7. An act of completed reconstruction is drawn up, which is issued by the acceptance committee of the city housing inspection (for example, in the capital, this is the state housing inspection of the city.
8. Corresponding changes are made to the technical documentation. To do this, you need to contact the technical inventory bureau.
9. Changes are made to the lease agreement.

The procedure for registering an attic as a property

The activities carried out when concluding a lease agreement and registering ownership rights largely coincide (points 1, 3, 4, 5, 6, 7, 8 of the previous procedure). The differences are that when registering an attic as a property, the consent of not 2/3, but of all owners of an apartment building is required. And instead of a lease agreement, you receive a certificate of ownership of the premises.

Is it worth trying to legalize self-built attics?

Often, apartment owners who do not want to spend time and money on obtaining numerous permits and approvals for the reconstruction of the attic, willfully convert it into an attic, and then try to recognize ownership of the construction project through the courts. Most often, courts do not satisfy such statements of claim, obliging the plaintiff to pay a fine for violating the norms of the Code of Administrative Offenses and decreeing the demolition of the unauthorized construction, in accordance with Article 222 of the Civil Code of the Russian Federation, at the expense of the person who carried it out. Therefore, you should not choose this method of connecting the attic to the apartment.

Thus, adding an attic is quite possible. But this process will take a lot of effort, time and money from the apartment owner, so it is worth soberly assessing your capabilities before taking on this difficult task.

I put the final point Supreme Court in a dispute between homeowners in a brand new high-rise building and a businessman who took all the non-residential premises in the same building. And although only a few people filed this particular lawsuit, the issue that was on the agenda turned out to be not at all a private matter of just these plaintiffs.

In addition to the purchased apartment, new residents also receive ownership of the non-residential part of the house - attics and basements. Photo: Photoxpress

The situation when new residents, having moved into the purchased property, find out that all the non-residential premises in their house are already someone else’s private property, are found everywhere. Despite the prevalence of such a situation, it is, as the Supreme Court confirmed, fundamentally illegal.

Moreover, today the struggle for possession of basements, attics and all kinds of technical premises in apartment buildings has acquired an important material aspect. With rising housing and communal services tariffs, apartment owners have a completely legitimate opportunity to dispose of non-residential premises in their home in such a way as to reduce the ever-increasing material burden for themselves and their neighbors.

So, the case was in Moscow, where three new settlers appealed to the Khamovnichesky District Court. In their lawsuit, they wrote that they purchased housing in a new building, but all the so-called technical premises in their house were already the property of a certain businessman. They sued him, claiming that by law the premises registered in his name belonged to them.

The businessman did not agree with the residents’ claims and did not recognize the claim. He stated that he was an investor in the construction of this particular house. And, investing in construction, he stipulated his conditions in advance: after the completion of the work, he receives ownership of part of the residential and all non-residential premises. His words were confirmed by documents.

The district court, and later the Moscow City Court, satisfied the demands of the new settlers. True, not completely, but in the main thing the courts agreed with the residents. . And the documents signed by the businessman stating that he received the non-residential territory in the house as his own property were declared void. That is, they have no legal force.

The decision in favor of the residents did not suit the businessman, with whose money the house was actually built. And he appealed to the Supreme Court. In the final version, the case was reviewed by the Judicial Collegium for Civil Cases of the Supreme Court.

The Supreme Court began by checking the documents. It turned out that by decree of the capital's government, a certain company was allocated land for the construction of a housing and administrative complex with an underground parking lot. The standard lease term is 49 years. Our businessman invested money in this construction only a few years later. At first, with one document, he agreed on the transfer to him of a certain area of ​​​​residential and non-residential premises in a buiding.

Later, additions appeared in which the volume of non-residential premises transferred to the merchant sharply increased.

Based on the results of construction and according to the documents, the businessman received a lot of property, including something that led to a legal dispute. Namely - a water metering unit, a pumping station, corridors and vestibules.

At the time of concluding the investment agreement, the Law “On the Fundamentals of Housing Policy” N 4218-1 was in force. It lists what is the common property of the house. To put it correctly, this is called a “single complex real estate designed to serve more than one homeowner."\

By law, all this property is in the common shared ownership of the homeowners and is not subject to alienation separately from the homeowners’ ownership of the premises.

Each apartment owner has Civil Code(Article 289) there is a share of all of the above. According to the law, a person, buying housing in an apartment building, becomes the owner of this common property in shares proportional to the total area of ​​​​the residential premises belonging to him.

Based on this, common property in an apartment building cannot be owned by one person, as this would violate the rights of the other owners of the house.

The Supreme Court stated that the district court completely correctly explained why the contract of a businessman who invested money in construction turned out to be impossible due to the illiteracy of those who prepared it.