Toll road to the house: how cottage owners struggle with "extortion"
16 sep 2021
According to statistics, more and more cottages are being built in Russia. If in 2019 such houses accounted for 47% of the total housing that was put into operation, then in the first half of 2021 — up to 55%. The popularity of such real estate has grown against the background of coronavirus restrictions. As shown by the joint survey of the HOUSE.The Russian Federation and VTsIOM, conducted last summer, almost 40% of Russians in the conditions of the pandemic began to consider individual homes as more preferable for living.
The main problems of residents
However, sometimes cottage owners have difficulties using the adjacent infrastructure, which often remains owned by the developer or his management company. Although the owners of houses invested in its creation.
The fact is that in modern realities, a developer buys a land mass, then "cuts" it into plots for individual construction and sells it. And the lands of "common use", in fact - the streets of cottage settlements, remain owned by a construction company, which can dispose of them at its discretion. With such regulation, no one is immune from the abuse of the developer.
Most of these problems could be solved by applying by analogy Article 36 of the Housing Code of the Russian Federation, the expert believes. This norm states that the owners of housing in apartment buildings on the right of common shared ownership also own the adjacent infrastructure. But the Constitutional Court of the Russian Federation noted that such a provision is not applicable to cottage settlements because of their "spatial isolation" (CC Resolution No. 23-P of 10.11.2016).
In 2015, the legislator tried to solve the problem under discussion. The deputy of "Fair Russia" Andrey Tumanov submitted to the State Duma an initiative that assumed the mandatory registration of a gratuitous easement (the right to use someone else's property) for public land that is privately owned. He noted in an explanatory note that the owners of such lands "block the possibility of passage and passage of residents to their homes, restrict the passage of emergency state, technical and service services, demanding payment for it." As a result, the bill was rejected, and the legislative gap has remained until now.
Theoretically, the current housing legislation allows the owners of cottages to create a HOA if they are located on plots with a common border and infrastructure that is intended for maintenance (Article 136 of the Housing Code of the Russian Federation). But in practice, such settlements are managed by commercial organizations created by the developer by the time the houses are put into operation, the expert shares. This situation is due to two aspects:
- legal: "common" property can often belong to a third party (developer) on the right of personal ownership, which will not allow creating a HOA until the rights of this person are challenged;
- organizational: it is difficult to hold a meeting of the owners of these houses and gather the necessary quorum against the background of the already proposed "working" solution from the developer.
When will the owner of the cottage win in court
Companies serving cottage settlements, often simultaneously with the support of general communications, provide local residents and utilities. The costs of paying for such services significantly exceed the expenses of homeowners in ordinary apartment buildings. The minimum amounts start from 10,000 rubles, the maximum can exceed 150,000 rubles, RBC experts calculated this spring. For comparison, the average amount of payment for all housing and communal services in the Moscow region is about 7,000 -9,000 rubles.
Moreover, many cottage settlements have a so-called entrance fee, its size is usually quite high and is not conditioned by anything. If the owner of the house refuses to pay this money, then they begin to obstruct him in the use of his real estate, do not issue passes to enter the territory of the village and come up with other small dirty tricks. It is not surprising that the most frequent disputes arising from the abuse of the owners of the "common" infrastructure are cases of debt collection from the owners of cottages, the expert notes.
So, the owner of a house in the elite gated community of Nikolino on Rublevo-Uspenskoe highway, Andrey Stebakov* at one point simply refused to pay the management company LLC "PZHK Nikolino" for garbage collection, cleaning of the territory and the organization of a security point. Every month he spent 36,000 rubles on it. The owner of the cottage calculated that his share of expenses, based on the number of houses in the village and the area of the plots, should be 1/422 of the total amount. That is, about 1,600 rubles a month — almost 20 times less than he actually pays. Stebakov pointed out that he mistakenly transferred 126 000 rubles to the "PZHK", but only 38 000 rubles should be paid from these funds to the "communal" account, and the rest should be collected as overpaid. The dispute with the management company reached the Supreme Court, which noted that in order to balance the interests of the parties in such proceedings, the lower authorities need to study the validity and reasonableness of tariffs and establish what services a resident of the settlement actually uses (case No. 5-KG20-107-K2). In the opposite case, management companies get the opportunity to impose services on home owners that they do not need.
A similar conclusion of the Supreme Court this summer has already been supported by the Third Court of Cassation of General Jurisdiction (case No. 88-8109/2021). In other similar cases, the courts recognize as an abuse of the right the attempts of the owners of roads in such settlements to charge local residents for driving on them (case No. 33-8336/2019) or simply oblige the owners of these territories not to obstruct the passage of cars (case No. 33-4123/2012). According to such a claim, it is necessary to prove that the applicant owns a plot in the village, and the defendant really somehow interferes with him. The courts will satisfy such requirements if it turns out that the road is an object of public use and the owners do not have other access to the plots (case No. 2-3271/2014).
Toll road to the house: how cottage owners struggle with "extortion"
According to statistics, more and more cottages are being built in Russia. If in 2019 such houses accounted for 47% of the total housing that was put into operation, then in the first half of 2021 — up to 55%. The popularity of such real estate has grown against the background of coronavirus restrictions. As shown by the joint survey of the HOUSE.The Russian Federation and VTsIOM, conducted last summer, almost 40% of Russians in the conditions of the pandemic began to consider individual homes as more preferable for living.
The main problems of residents
However, sometimes cottage owners have difficulties using the adjacent infrastructure, which often remains owned by the developer or his management company. Although the owners of houses invested in its creation.
The fact is that in modern realities, a developer buys a land mass, then "cuts" it into plots for individual construction and sells it. And the lands of "common use", in fact - the streets of cottage settlements, remain owned by a construction company, which can dispose of them at its discretion. With such regulation, no one is immune from the abuse of the developer.
Most of these problems could be solved by applying by analogy Article 36 of the Housing Code of the Russian Federation, the expert believes. This norm states that the owners of housing in apartment buildings on the right of common shared ownership also own the adjacent infrastructure. But the Constitutional Court of the Russian Federation noted that such a provision is not applicable to cottage settlements because of their "spatial isolation" (CC Resolution No. 23-P of 10.11.2016).
In 2015, the legislator tried to solve the problem under discussion. The deputy of "Fair Russia" Andrey Tumanov submitted to the State Duma an initiative that assumed the mandatory registration of a gratuitous easement (the right to use someone else's property) for public land that is privately owned. He noted in an explanatory note that the owners of such lands "block the possibility of passage and passage of residents to their homes, restrict the passage of emergency state, technical and service services, demanding payment for it." As a result, the bill was rejected, and the legislative gap has remained until now.
Theoretically, the current housing legislation allows the owners of cottages to create a HOA if they are located on plots with a common border and infrastructure that is intended for maintenance (Article 136 of the Housing Code of the Russian Federation). But in practice, such settlements are managed by commercial organizations created by the developer by the time the houses are put into operation, the expert shares. This situation is due to two aspects:
- legal: "common" property can often belong to a third party (developer) on the right of personal ownership, which will not allow creating a HOA until the rights of this person are challenged;
- organizational: it is difficult to hold a meeting of the owners of these houses and gather the necessary quorum against the background of the already proposed "working" solution from the developer.
When will the owner of the cottage win in court
Companies serving cottage settlements, often simultaneously with the support of general communications, provide local residents and utilities. The costs of paying for such services significantly exceed the expenses of homeowners in ordinary apartment buildings. The minimum amounts start from 10,000 rubles, the maximum can exceed 150,000 rubles, RBC experts calculated this spring. For comparison, the average amount of payment for all housing and communal services in the Moscow region is about 7,000 -9,000 rubles.
Moreover, many cottage settlements have a so-called entrance fee, its size is usually quite high and is not conditioned by anything. If the owner of the house refuses to pay this money, then they begin to obstruct him in the use of his real estate, do not issue passes to enter the territory of the village and come up with other small dirty tricks. It is not surprising that the most frequent disputes arising from the abuse of the owners of the "common" infrastructure are cases of debt collection from the owners of cottages, the expert notes.
So, the owner of a house in the elite gated community of Nikolino on Rublevo-Uspenskoe highway, Andrey Stebakov* at one point simply refused to pay the management company LLC "PZHK Nikolino" for garbage collection, cleaning of the territory and the organization of a security point. Every month he spent 36,000 rubles on it. The owner of the cottage calculated that his share of expenses, based on the number of houses in the village and the area of the plots, should be 1/422 of the total amount. That is, about 1,600 rubles a month — almost 20 times less than he actually pays. Stebakov pointed out that he mistakenly transferred 126 000 rubles to the "PZHK", but only 38 000 rubles should be paid from these funds to the "communal" account, and the rest should be collected as overpaid. The dispute with the management company reached the Supreme Court, which noted that in order to balance the interests of the parties in such proceedings, the lower authorities need to study the validity and reasonableness of tariffs and establish what services a resident of the settlement actually uses (case No. 5-KG20-107-K2). In the opposite case, management companies get the opportunity to impose services on home owners that they do not need.
A similar conclusion of the Supreme Court this summer has already been supported by the Third Court of Cassation of General Jurisdiction (case No. 88-8109/2021). In other similar cases, the courts recognize as an abuse of the right the attempts of the owners of roads in such settlements to charge local residents for driving on them (case No. 33-8336/2019) or simply oblige the owners of these territories not to obstruct the passage of cars (case No. 33-4123/2012). According to such a claim, it is necessary to prove that the applicant owns a plot in the village, and the defendant really somehow interferes with him. The courts will satisfy such requirements if it turns out that the road is an object of public use and the owners do not have other access to the plots (case No. 2-3271/2014).
Link https://pravo.ru/story/234110/