V.N. Litovkin writes that buildings and structures “are distinguished by their immobility, their fundamental connection to the specific land plot on which they are erected, and are structurally designed for long term exploitation, some of them are of artistic value and therefore have a relatively high value, especially historical, cultural, and architectural monuments, which are unique objects, the value of which is independently influenced by the location of the land under the building and structure.” V.V. Vitryansky believes that “a building (structure) should be understood as any independent object artificially erected on a land plot or under it (underground), which is fundamentally connected with land plot, is used (or can be used) by intended purpose and the removal of which without disproportionate damage to its purpose is impossible.” A.A. Ivanov writes that, based on the usual meaning of these terms, we can conclude that buildings are intended for the permanent presence of people in them, while structures are usually not used for these purposes. V.S. He emphasizes that “traditionally in Russian civil law, buildings and structures were designated by the term “structure.” At the same time, a building was and is understood as a building that is firmly legally connected with the land plot.”

It is important to distinguish buildings and structures from other structures that are not related to real estate, as well as from other types of real estate, to which special rules governing legal relations related to the rental of buildings and structures are not subject to application (unfinished construction projects, residential and non-residential premises, built-in and attached premises). In this sense, a building (structure) should be understood as any independent object artificially erected on a land plot or under it (underground), which is fundamentally connected with the land plot, is used (or can be used) for its intended purpose and the movement of which without disproportionate damage to its purpose is impossible.

Category “Non-residential premises”

This problem is especially of concern to merchants who want to convert residential real estate into non-residential real estate for business purposes. This question also often arises for residents. apartment buildings, confusing common property with non-residential premises, when calculating utility bills. Unfortunately, confusion in the concepts of residential and non-residential premises often leads to illegal transactions with real estate and litigation.

With the development of market relations, the concept of “non-residential premises” has become widely used in real estate transactions. However, in Russian legislation there is no clear definition of this concept. In this regard, citizens have many difficulties and questions.

Non-residential premises in an apartment building: how do the legal norms for maintaining non-residential premises differ from residential ones?

It is prohibited to carry out activities that cause pollution in such premises. environment, creation of an unfavorable sanitary and epidemiological situation. Simply put, in a non-residential building in an apartment building it is impossible to establish a public toilet or a medical facility for patients with infectious diseases.

Non-residential premises in an apartment building must be distinguished from the place common use. The key feature is that the non-residential premises have a legal owner. Such objects are usually classified as commercial real estate. They are formed through translation ordinary apartment in an apartment building in a non-residential premises.

Buildings, structures, non-residential premises in rental relations

Moreover, careful study the norms of Chapter 18 of the Civil Code of the Russian Federation “Ownership and other real rights to residential premises” allows us to conclude that a building in the sense given to this concept by the norms of paragraph 4 of Chapter 34 of the Civil Code of the Russian Federation cannot contain residential premises at all, since in Chapter 18 The Civil Code of the Russian Federation refers to the structure in which the residential premises are located as a house, not a building (for example, paragraph 3 of Article 288 of the Civil Code of the Russian Federation says that “accommodation in residential buildings industrial production is not allowed"). A clear division in the law of the rules for the circulation of residential premises (located in residential buildings) and non-residential premises (part of the building) provides an equally clear answer to the question posed above. A building as an object of a lease agreement (and as a real estate object in general) cannot contain residential premises, and even if such premises are included in the building along with non-residential ones, they are a separate object of real estate. In the same way, if a residential building has non-residential premises (with the exception of common areas houses serving exclusively for servicing apartments located in this house), such premises are, in a legal sense, a completely separate piece of real estate, different from this house.

Therefore, the division of buildings into residential and non-residential, which has become common in legal literature, has no semantic meaning and is incorrect, since the concept of “residential building” does not exist from the point of view of modern Russian law. Legal meaning has only a difference between non-residential premises and residential premises and, accordingly, buildings from residential buildings. The living space is intended only for permanent residence citizens, non-residential - for other uses, and therefore a building in the legal sense can only contain non-residential premises. Then it is necessary to find out whether the rules on the rental of buildings and structures can be applied to the rental of their parts. A.A. Ivanov adheres to the point of view according to which “the rules on the rental of buildings and structures apply to the rental of parts of buildings (structures).”

Definition of non-residential building

The lack of a clear definition of non-residential premises in the legislation leads to litigation, confusion of concepts, and illegal transactions. However, the provisions regulatory documents allow you to: identify signs of this type of property; identify the main types of real estate; clarify the uniqueness of civil law. In this article we talk about standard options solutions legal issues, but each case is unique.

3. If the owner of a building decides to form several non-residential premises - to separate them from the structure of the building, when information about new objects is entered into the State Property Committee, the building itself loses legal status real estate as possible property of 1 person. For cadastral registration for such non-residential premises one application is submitted. The procedure takes place simultaneously for all new real estate.

What is the difference between a building and a room?

The terminology excludes the meaning of a building as buildings that lack internal space. It is incorrect to call overpasses, bridges, cooling towers, above-ground and underground structures, tunnels, and dams buildings. They relate to structures for technical and industrial purposes.

The premises are considered to be an integral part of any building. It implies an area in a building limited by ceilings and walls on all sides, with communications connected. Depending on the type of premises, there are two main states: residential and non-residential.

Features of the status of “non-residential premises” and its legal basis

The latter is characterized as a self-contained unit, which is real estate, meets sanitary standards and is suitable for habitation. Based on this, we can formulate a definition of the opposite meaning: non-residential premises - real estate unsuitable for habitation.

The allocation of apartment buildings from residential units for use for commercial and other purposes in accordance with current civil regulations is not a violation of the rights of owners and tenants, but imposes a number of obligations on the owners of non-residential premises themselves.

CONCEPT AND TYPES OF NON-RESIDENTIAL PREMISES

As for modern Russian legislation, then, analyzing the Civil Code of the Russian Federation (Article 130), we can conclude that the legislator provides three criteria for real estate. Firstly, real estate “by nature” (land, subsoil, isolated water bodies). Secondly, objects firmly connected to the ground. Thirdly, objects classified as real estate by law.

The problem of renting non-residential premises deserves special attention. In operation Civil Code Russian Federation there are no special rules governing these relations. Consequently, the lease of non-residential premises is regulated by general rules on rent, and not by special rules on the lease of buildings and structures.

Non-residential premises as an object of civil rights

Situations are possible when non-residential premises, which were originally part of a building or structure, subsequently became independent objects of law, suitable for independent use and which have their own owners (whose rights were registered accordingly). Registration of ownership of a building excludes the possibility of simultaneous registration of part of this building. Thus, registration of rights to part of the building (premises) should lead to the termination of ownership rights in relation to the building itself. If each non-residential premises included in the building has its own owner, then the owner of the building as a whole can theoretically only have ownership rights to the roof, stairs, engineering equipment, etc., however, the latter, as already noted, are in shared ownership. A characteristic feature of such property is the impossibility of using it either as residential or non-residential. At the same time, they provide the possibility of using both residential and non-residential premises for their intended purpose. However, the owner of non-residential premises must use these objects, so they can be called public objects. In relation to them, the right of easement is possible, that is, the right of limited use of someone else's property.

At the same time, even if you highlight such criteria in relation to non-residential premises and register the ownership of it in the Unified State Register, you cannot help but pay attention to the following inconsistencies. Registered ownership of non-residential premises in a building or structure automatically leads to the right common property the owner of this premises and the owner of the remaining premises for auxiliary property (stairs, elevators, roof, etc.). No other legal regime in relation to the specified property is possible, either from a technical or legal point of view. A similar scheme applies to the common property of apartments in an apartment building (Article 290 of the Civil Code). The question arises about who is the owner of the entire building as a whole. Obviously, one should come to the conclusion that after the ownership of two or more persons to the premises in this building or structure is registered in a building or structure, there is no longer a single owner for the entire building or structure. We can talk about the right of ownership of individual objects (premises) and common shared ownership of property for common use. At the same time, the specificity of common shared ownership of common property is that the share cannot be alienated separately from the premises.

Non-residential premises (buildings and structures, premises)

According to the Law “On state registration…”, premises (residential and non-residential) are “an object included in buildings and structures” (Part 2, Clause 6, Article 12). Thus, non-residential premises are part of a building (structure). Accordingly, non-residential premises, as a real estate object, must be distinguished from the adjacent object - buildings (structures). This point of view is confirmed by practice. Thus, the Presidium of the Supreme Arbitration Court of the Russian Federation in its Information letter dated June 1, 2000 No. 53 emphasized that non-residential premises are real estate, excellent from the building or structure in which it is located, but inextricably linked with it.

As the researchers note, at the same time, concerns expressed in theory are that with the recognition of residential and non-residential premises as independent real estate objects, “logically insoluble disputes arise about which of the neighbors is the “owner” of a common wall, floor, or ceiling: and what, in fact, constitutes the object of their property rights” does not result in real disputes in practice.

The status of non-residential premises has a number of significant differences, which relate not only to its intended use, but also to registration of ownership, placement of commercial objects, and the procedure for sale. What legal norms define legal status such real estate, on what grounds such premises are located in apartment buildings, the features of non-residential objects will be discussed in this material.

Regulatory regulation of non-residential premises

The description of real estate funds contains the following regulations:

Housing Code of the Russian Federation. The document does not contain a direct indication of the status of this type of object as commercial. However, the act contains a definition of residential premises, which means apartments, houses and other isolated units suitable for permanent or temporary residence. Accordingly, “non-residential” are objects in which it is impossible to implement. There is no precise definition in the law for such infrastructure facilities.
Federal Law No. 122 “On registration of rights to real estate and transactions with it.” This law presents the exact characteristics of non-residential objects - this is a premises within buildings and structures, with a separate entrance, meeting sanitary standards, registered in state register as part of the non-residential stock.
RF. Gives the concept of non-residential premises as a building or structure located in any form of ownership - private, municipal or state, the purpose of which is the temporary accommodation of people, storage material assets for official or production purposes.

In addition to premises, non-residential buildings are also allocated. They are real estate objects that serve to house production workshops, large companies with several departments. Their characteristic feature is the ban on registration and residence of people on both a temporary and permanent basis.

The legislator gives the following characteristics of the non-residential real estate fund:

the presence of a separate entrance with access to the street or to service premises;
lack of registration on the square;
identifying an object as non-residential, identifying it as a separate unit as part of a structural element in a multi-story building;
a strong connection between the room and land plots on which the building is located;
decoration isolated square meters as non-residential when entering the relevant data into the Rosreestr database.

According to the requirements of Russian legislation, a clear division of areas into those suitable for living and those intended for business has been established. commercial activities or to accommodate employees. It is strictly prohibited to use the premises for living if the documents indicate the status as non-residential. This may involve attracting responsible persons to administrative liability.

To carry out commercial activities, you must submit a corresponding application and documents confirming ownership of the premises to the authorized government bodies. Upon establishing satisfactory technical condition registration of the new status of a real estate unit in Rosreestr is required. Such actions are carried out only if it is permissible to transfer residential premises to a commercial property.

The status of the area as commercial or office is established, including when separating units from a multi-apartment residential building, subject to the following requirements of property owners:

Use exclusively for the purposes provided for by civil law - for the placement of shops, pharmacies, and other infrastructure facilities.
Carrying out activities that do not contradict the norms current law, does not violate the rights and legitimate interests of other citizens and companies, does not harm their property, both owners and lessors and tenants of property.
Maintaining facilities in normal sanitary and technical condition, which does not pose a threat to the environment and does not lead to pollution.
Conducting work in compliance with the rules fire safety.
Closing of the premises after 23-00 in accordance with the requirements for silence and order.
Conduct renovation work with respect for the rights and legitimate interests of residents in accordance with the conditions specified in regional regulations.
Install meters to monitor consumption and pay for housing and communal services.
Participate in decision-making general meeting owners apartment building, which includes non-residential premises, finance or carry out landscaping on its own local area related to non-residential premises.

The grounds for transferring residential areas to a non-profit foundation are listed in Article 22 Housing Code RF. These include the absence of claims to the area by third parties, including citizens who have rights to inherit or receive property under other civil transactions, and the registration of all residents at the time of registration of property. Such actions are possible only if the area is not included in the residential area as a structural unit and is listed as capital, that is, it has a solid base in the form of a foundation, floor and walls, and an isolated exit.

It is allowed to transfer premises to non-residential premises under the following conditions:

There is no isolated entrance if the area of the real estate unit is more than 100 sq.m.
The building where the object is located is in danger of collapse, is classified as unsafe or dilapidated, if it is recognized as such on the basis of a resolution of regional authorities.
The premises must be located on the first floor of a residential apartment building, which meets technical and sanitary safety requirements.
It is possible to transfer only the entire isolated room as a whole; individual rooms, for example, in an apartment or communal housing, are not possible.
There must be no encumbrances on the property if documents are submitted for transfer to a non-residential property when concluding a commercial lease agreement, arrest by order of a court or other authorities, in a pledge or mortgage.

Find out who owns a non-residential premises, plot, house or garage in three steps:

Commercial premises used by owners for business or official purposes should be distinguished from areas that belong to common areas in apartment buildings. These include elevators, technical areas, basements and attics, staircases, entrances, wheelchairs, utility units and other areas in respect of which such status has been established based on a decision of the owners of an apartment building or shared ownership, cooperative.

Such premises, even if they are created for the functioning of the entire building in common ownership, cannot be registered as non-residential. It is prohibited to operate them as separate areas for commercial activities. Exceptional cases include the placement of services that are responsible for the maintenance and servicing of the house - technical stations, elevator rooms, use for storing work equipment for home repairs, cleaning the local area, etc. The placement of a non-residential property should not create obstacles to the use of common house equipment in the form of electricity meters , water supply, landscaping and cleaning of the territory, and other technical means.

Classification of non-residential premises

In practice, it is customary to divide areas according to their intended purpose. These include:

Medical - as part of clinics and dispensaries, ambulance stations and hospitals, outpatient centers. Secured on the right of operational management for the placement of government and municipal institutions, property - when privately owned by a company or citizens.
Entertainment - for placing cinemas, clubs, parks.
Utilities— to supply administrative units with gas, heat, water and electricity.
Educational - for universities and schools, preschool institutions created on a commercial or private basis.
Production - for the arrangement of warehouses, workshops, laboratories in various areas industry, etc.

The legislation establishes a clear list of grounds for qualifying a property as non-residential. It is possible to transfer a fund used for the residence of citizens to a commercial or official one, however, subject to a number of conditions specified in regulations.

The concept of “building”, “structure”, “non-residential premises”

Buildings are usually understood as objects that are differentiated into two large, mutually exclusive, opposing groups: residential and non-residential with two different legal regimes of use.

The concept of “structure” is usually defined by listing the relevant objects, for example: oil and gas wells, gas stations, hydraulic structures, main pipelines, sports, physical education and health, sports and entertainment facilities (stadiums, sports palaces, concert and sports palaces, Sport halls, swimming pools), bridges, greenhouses, transformers, thermal units, underpass spaces and others engineering structures, fundamentally connected to the earth.

Attempts to give legal concepts to “building” and “structure” are hardly advisable, since these concepts are not among the legal categories. Even more dubious are attempts to distinguish between these concepts. If we turn to the explanatory dictionaries of the modern Russian language, we will see that the concept of “structure” is generic in relation to the concept of “building”. In Russian, a building is understood as an architectural structure, structure, house, and a structure is any significant structure ( various types, appointments) (see, for example: Dictionary of the Russian language / Edited by N.Yu. Shvedova). Therefore, it would be more correct to use the expression “buildings and other structures.”

The legislator has not formulated a legal definition of the concepts “building” and “structure”. However, from a formal legal point of view, the difference between buildings and structures is not of fundamental importance, since the legislator has established a single legal regime for both types of real estate.

Much more important are the criteria by which buildings and structures are distinguished from other adjacent real estate objects. This is important because special regulatory rules are established for the rental of buildings and structures.

V.N. Litovkin writes that buildings and structures “are distinguished by immobility, a fundamental connection to the specific land plot on which they are erected, structurally designed for a long service life, some of them are of artistic value and therefore have a relatively high value, especially historical and cultural monuments , architectures that are unique objects, the value of which is independently influenced by the location of the land under the building and structure.” V.V. Vitryansky believes that “a building (structure) should be understood as any independent object artificially erected on a land plot or under it (underground), which is fundamentally connected with the land plot, is used (or can be used) for its intended purpose and the movement of which without disproportionate damage to its purpose is impossible." A.A. Ivanov writes that, based on the usual meaning of these terms, we can conclude that buildings are intended for the permanent presence of people in them, while structures are usually not used for these purposes. V.S. Em emphasizes that “traditionally in Russian civil law, buildings and structures were designated by the term “structure.” At the same time, a structure was and is understood to mean a building that is firmly legally connected with a land plot.”

The legal point of view seriously supports the point of view according to which the possibility of recognizing ownership of a part of a building (which is, for example, non-residential premises) is denied and the property right to such can only be expressed in ideal shares. As noted by V.V. Chubarov, “with this approach, the building can be sold or otherwise alienated in parts only by selling a share in the right of common shared ownership of the building.”

Doubts on this issue were resolved arbitrage practice, which considers non-residential premises as objects of civil rights, allowing the possibility of transactions with them, including the conclusion of lease agreements for non-residential premises.

This approach emphasizes everything necessary for an appropriate legal qualification. character traits such real estate as buildings and structures:

- we are talking about objects created by people (artificially constructed);
- we can talk about buildings and structures as real estate objects only if they are “tied” to a specific land plot;
- the connection of the building (structure) with the land plot must be so strong (fundamental) that moving the specified property without disproportionate damage to its purpose would be impossible (this feature allows you to distinguish buildings and structures from other buildings and structures (stalls, tents, kiosks and etc.), which do not relate to real estate at all);
- a building (structure) is recognized only as a real estate object that is independent (detached) (on this basis, buildings and structures differ from such real estate objects as residential and non-residential premises, built-in and attached premises, for the rental of which special rules cannot be applied regulating legal relations related to the lease of buildings and structures);
- buildings (structures) include only such real estate objects (buildings, structures), the construction of which has been completed and they are already in use or can be used for direct purpose(ownership rights to buildings, structures and other newly created real estate, subject to state registration, arises from the moment of such registration - clause 2 of Art. 220 Civil Code of the Republic of Belarus. Objects of unfinished construction can serve as objects of various transactions, including lease agreements, but in this case the corresponding legal relations will not be covered by special rules governing the lease of buildings and structures).