Judicial practice unauthorized use of water supply. General questions on water supply, connection practice. Other consequences of unauthorized connection to the water supply
Judge Savelyeva A.The. Case #33-7571
APPEALS DETERMINATION
Judicial board for civil affairs Rostov Regional Court composed of:
presiding Tkachenko L.I.,
judges Melnik N.I., Fetinga N.N.,
under Secretary Kochergina A.O.,
having heard at the hearing on the report of the judge Melnik H.AND.
case on appeal Tikhonov The.K.
installed:
Tikhonov V.K. filed a lawsuit against Merkidonova L.A. on the recognition of illegal connection to the water supply, indicating that he, by inheritance, is the owner of a residential building located on a land plot at the address: ADDRESS IS IMPOSSIBLE
Said residential building was erected by the plaintiff's father – T.K.N. during the period from 1958 to 1962. Between T.K.N. and trust "B" on 10/18/1962, an obligation was signed to release water to the user. In pursuance of this obligation, in order to connect to the city water supply network, T.K.N. at his own expense, he installed a water metering well and made a tie-in into the water supply through it.
The plaintiff indicated that during the period of residence in the specified house, he discovered a low capacity of the water supply network. In the process of repairing the water supply, he discovered an unauthorized connection by the owner of ADDRESS ANIMALIZED to the water supply system of his house. The plaintiff carried out the illegal tie-in in July 2011. Technical conditions for connection to the water supply network of the plaintiff's house were not developed, and no permit for connection was issued.
The plaintiff believes that the elimination of violations of his rights should consist in disconnecting the defendant's household from the water supply network ADDRESS IS IMPOSSIBLE, in connection with which, he asked the court to recognize the defendant's connection to the water supply network ADDRESS IMPARATE as illegal and oblige the defendant to disconnect it from this water supply network at her own expense.
The defendant did not recognize the claim at the hearing, pointing out that the disputed well belongs to the city water supply system. On 07/07/2011, she received the approved technical specifications for the design of a connection to the city water supply networks of an individual residential building at ADDRESS INDEPENDENT.
The decision of the Volgodonsk district court Rostov region dated March 26, 2012, the claim was denied.
Tikhonov V.K. filed appeal, in which he asks to cancel the court decision as illegal and unreasonable.
The appellant refers to arguments similar to the arguments of the claim, which boil down to the fact that the connection to the water supply made by the defendant is illegal and violates the rights of the plaintiff. Believes that this connection could be made only with his consent as the main subscriber.
In addition, the appellant refers to the fact that the court unreasonably did not involve MUE "X" as a third party, without clarifying the circumstances of the defendant's connection to the water supply networks.
After checking the case file, discussing the arguments of the complaint, after listening to the parties, the panel of judges finds no grounds to cancel the court decision.
When making a decision, the court was guided by articles 48 of the Town Planning Code of the Russian Federation, 3, 11, 12, 304 of the Civil Code of the Russian Federation, the Rules for determining and providing specifications connection of the capital construction object to the networks of engineering and technical support approved by Decree of the Government of the Russian Federation of February 13, 2006 N 83 and proceeded from the fact that the plaintiff did not provide evidence of a violation of his rights.
Decree of the Government of the Russian Federation of February 13, 2006 N 83 approved the Rules for determining and providing technical conditions for connecting a capital construction object to engineering and technical support networks, which regulate relations between the organization that operates engineering networks, local governments and copyright holders land plots arising in the process of determining and providing technical conditions for connecting capital construction projects under construction, reconstructing or built but not connected to engineering networks, including the procedure for sending a request, the procedure for determining and providing technical conditions, as well as criteria for determining the possibility of connection.
The court found that the plaintiff is not the owner of the water supply networks, and is also not the main subscriber, in connection with which the law does not provide for coordination with him of obtaining technical conditions for connecting to the engineering network.
In addition, the court drew attention to the fact that the defendant, in order to justify the legality of joining the household ADDRESS NON-PERSONAL to the city water supply network, presented to the court the technical conditions for designing the connection to the city water supply networks of an individual residential building at ADDRESS NON-PERSONAL, dated 07.07.2011 (l.d. 29), inspection certificates for the connection of an object to the municipal water supply network (case sheet 28.30), an agreement for the provision of water supply and sanitation services for consumers living in private housing stock dated February 9, 2012 (case sheet 31-33 ).
These conclusions of the court are correct and comply with the requirements of the law and the materials of the case.
In accordance with Art. 304 of the Civil Code of the Russian Federation, the owner may demand the elimination of any violations of his right, even if these violations were not connected with deprivation of possession.
As stated in paragraph 45 of the Resolution of the Plenums of the Supreme Court Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N 10/22 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights" applying Article 304 of the Civil Code of the Russian Federation, by virtue of which the owner may demand the elimination any violations of his right, even if these violations were not connected with deprivation of possession, the courts must take into account the following.
By virtue of Articles 304, 305 of the Civil Code of the Russian Federation, a claim for the elimination of violations of a right not related to deprivation of possession is subject to satisfaction if the plaintiff proves that he is the owner or the person in possession of the property on the grounds provided for by law or the contract, and that the actions of the defendant , not related to deprivation of possession, violates his right of ownership or lawful possession.
Such a claim is also subject to satisfaction in the event that the plaintiff proves that there is a real threat of violation of his property right or lawful possession by the defendant.
The claim for the elimination of violations of the right, not related to the deprivation of possession, is subject to satisfaction regardless of whether the defendant commits actions (inaction) that violate the plaintiff's right on his or someone else's land or other real estate.
According to the above legal norms, the plaintiff had the burden of proving the fact of violation of his rights, however, the plaintiff, in violation of the provisions of Art. 56 of the Code of Civil Procedure of the Russian Federation did not provide evidence of a violation of her rights and legitimate interests as the owner of a home ownership by the defendant.
The panel of judges agrees with the conclusions of the court, since they correspond to the evidence collected in the case, to which the court gave a proper assessment according to the rules of Art. 12, art. 67 Code of Civil Procedure of the Russian Federation, correctly applied the substantive law, no procedural violations entailing the cancellation of the decision have been established, in connection with which the decision of the court of first instance is lawful and justified.
Court established that the residential ADDRESS IS IMPOSSIBLE, owned by the defendant, is connected to a street drinking water supply, which is the property of the municipality "ADDRESS IS IMPARATED", which is confirmed by a certificate of state registration of rights (ld 22).
To connect the ADDRESS ANIMALIZED household to the city water supply network, technical conditions were developed for designing a connection to the city water supply networks (case sheet 29).
The engineer and the head of the PTO MUP "X" drew up inspection reports for the connection of the facility to the municipal water supply network (case sheet 28.30) and an agreement was concluded with the defendant for the provision of water supply and sanitation services for consumers living in private housing stock dated 09.02 .2012 (ld 31-33) Under such circumstances, the court came to a reasonable conclusion about the legitimacy of the defendant's actions when joining the household ADDRESS ANIMAL to the city water supply network.
The arguments of Tikhonov The.K. that the court did not understand his demands, since he asked to oblige the defendant to disconnect from water pipe, which passes to his household on his site, cannot be taken into account, since no evidence that such a tie-in exists and affects the throughput of the water supply network has been presented by the plaintiff.
Moreover, the plaintiff himself was not present at the court session, and his representative, supporting the claims, explained about the illegal connection to the water well, believing that the consent of the plaintiff should be obtained for this. There were no demands to disconnect the defendant's water supply network from the pipe passing through the plaintiff's land plot, and the court did not consider such demands.
Under such circumstances, the Judicial Board finds no grounds for annulment of the court's decision.
Guided by the requirements of Art. 328 Code of Civil Procedure of the Russian Federation, Judicial Board
DETERMINED:
The decision of the Volgodonsk District Court of the Rostov Region dated March 26, 2012 is left unchanged, and the appeal of Tikhonov V.K. - without satisfaction.
presiding.
We draw your attention to the fact that this decision could be challenged in a higher court and canceled
PERM REGIONAL COURT
APPEALS DETERMINATION
dated August 20, 2012 in case No. 33-6122
Judge Petrova N.S.
Judicial Collegium for Civil Cases of the Perm Regional Court consisting of:
presiding Valueva L.B.,
judges Opaleva T.P., Voronina E.I.,
under Secretary T.T.,
considered in an open court session in the city of Perm on August 20, 2012 a civil case
on the appeal of the defendant A. against the decision
Alexandrovsky City Court of the Perm Territory dated April 12, 2012, by which
Decided:
"Claim of the Limited Liability Company<...>to satisfy.
Recognize as an unauthorized construction, erected by A. the vestibule room, attached to apartment building located at:<...>.
Assign to A. the obligation to demolish the premises attached to the apartment building located at:<...>, by October 1, 2012."
After hearing the report of the judge Opaleva T.P., the explanations of the defendant A., his representatives U., L., M., the representatives of the plaintiff M., T., having familiarized themselves with the case materials, the judicial collegium
installed:
Limited Liability Company<...>filed a lawsuit against A. for recognition as an unauthorized construction of a vestibule attached to an apartment building, located at<...>, on the obligation to demolish this property and restore the land. The claims are motivated by the following circumstances: the plaintiff is a tenant of water supply networks on the basis of a lease agreement dated 04/02/2011. in due course design estimates and permits, he arbitrarily carried out the construction of a capital building - an attached vestibule at the address:<...>, on a plot of land not allocated for these purposes. The construction was carried out in violation of clause 7.23 of the SNiP "Urban planning. Planning and development of urban and rural settlements" (2.07.01-89), according to which the horizontal distance (in the light) from the nearest underground engineering networks to buildings and structures should be: from the water supply and pressure sewer to the foundations of buildings and structures - five meters. The plaintiff points out that, in accordance with the technical passport of the water supply system of the city of Aleksandrovsk, the vestibule erected by A. is located above the water supply network. In the event of a break in the water supply network in the area located under the vestibule, carry out repair work will be impossible, in connection with which, the provision of drinking water three residential apartment buildings, kindergarten and grocery store. Referring to the provisions of Art. 222 of the Civil Code of the Russian Federation, the plaintiff asked to recognize the attached vestibule located at:<...>unauthorized construction and oblige the defendant to demolish this attached premises and restore (reclamate) the construction site at the expense of the defendant.
At the hearing, the representative of the plaintiff, M., supported the stated requirements on the grounds set forth in statement of claim.
Defendant A. and his representative L. did not recognize the claim.
Representatives of third parties, the administration of the Aleksandrovsk urban settlement and JSC "Organization" did not appear at the hearing, they were notified of the time and place of the hearing.
The court ruled the above decision, the cancellation of which is requested in the appeal by the defendant A., indicating that LLC<...>is an improper plaintiff, since his property rights are not violated. The plaintiff did not prove that he is a person legally possessing property - a water supply network in the city of Aleksandrovsk. The lease agreement for water supply and sewerage and heat and power facilities dated April 2, 2011, presented as a title document, is void by virtue of Art. 168 of the Civil Code of the Russian Federation, since it does not meet the requirements of the law. At the time of the conclusion of the said agreement, the lessor OJSC "Organization" was not the owner of the water supply and sewerage and heat power facilities, since its ownership was registered in the USRR only on October 11, 2011. In addition, the lease agreement concluded for a period of more than one year was subject to state registration, failure to comply with this requirement entails the invalidity of the transaction. Those. OOO<...>is not the proper person when applying to the court with a claim to recognize the building as unauthorized, since he is neither the owner of the land plot nor the legal owner of the water supply, therefore his rights are not violated by the construction of the building, which is the basis for refusing the claim.
At the time of the issuance of a building permit (08/20/2009), the formation of a land plot on which an apartment building and an attached vestibule located on the street.<...>in the city of Aleksandrovsk, however, by a letter of 07.07.2010, the administration of the Aleksandrovsky municipal district, in response to A.'s appeal on the choice of a land plot and preliminary approval of the location for the construction of an entrance to a non-residential premises, explained that the land plot was already used for apartment building, so there is no need to re-provision the same land for the construction of an additional facility. Also, by a letter dated 28.12.2010, the administration of the Aleksandrovsky municipal district to the plaintiff's application for cadastral work on the land plot located on the street.<...>Alexandrovsk, reported that the administration had made a decision to form this land plot. Under these circumstances, the conclusion on the possibility of using the land plot issued on 16.07.2009 by the administration of the Aleksandrovsk urban settlement and the building permit was sufficient to start construction. Those. the land plot for the construction of the vestibule was used legally.
In addition, from the technical passport dated 01/10/2000 it follows that the land plot for the multi-apartment residential building was formed back in 1971. transferred house with land. General meeting of owners of premises apartment building was held on 06/10/2009, in which the owners with 77.07% of the votes took part, therefore the necessary quorum for making a decision on the approval of the construction of an annex-tambour on adjoining territory there was. The subsequent appeal of the owners with a statement on the formation of a land plot is aimed at legal registration of already existing relations. As of the date of the general meeting, the owners of residential premises had the right to coordinate the construction of an annex-tambour and the reconstruction of the wall based on the principle of the unity of the land plot and objects firmly associated with it.
The court concluded that the building permit was issued in violation of the requirements of the Town Planning Code of the Russian Federation, however, when filing a claim with the court, the plaintiff did not demand that this permit be recognized as issued in violation of the requirements of the law. A building permit is a legal act issued by the local government, which can be revoked, or action
it is suspended by the local government itself, or by the court. To date, the building permit dated September 20, 2008 has not been canceled, its action has not been suspended, therefore the court's conclusion that the building permit is inconsistent with the Town Planning Code of the Russian Federation is not justified.
In addition, OOO<...>did not provide reliable evidence in the case file that the water supply network actually passes under the outbuilding-tambour. At the same time, there is enough evidence in the case file that there are no water supply networks under the vestibule: the testimony of witness M1., a letter from the administration of the Aleksandrovsky urban settlement stating that the plans for water supply networks were not approved and they are not available. The defendant attached additional documents to the appeal: a certificate from the Alexandrovsky branch of the CTI stating that the data on the commissioning of a water pipe located at the address g. Aleksandrovsk, st.<...>, No; an extract from the archival file, from which it follows that the water supply networks do not pass under the vestibule.
In objections to the appeal, the plaintiff LLC<...>and the third party OAO "Organization" ask the decision of the court of first instance to be left unchanged.
The Judicial Board finds no grounds to cancel the decision of the court of first instance on the grounds of the appeal.
By virtue of Art. 222 of the Civil Code of the Russian Federation, an unauthorized construction is a residential building, other building, structure or other immovable property created on a land plot not allocated for these purposes in the manner prescribed by law and other legal acts, or created without obtaining the necessary permits for this or with significant violation of urban planning and building codes and rules.
A person who has carried out unauthorized construction shall not acquire the right of ownership to it. It has no right to dispose of the building - to sell, donate, lease, make other transactions.
Unauthorized construction is subject to demolition by the person who carried it out or at his expense, except for the cases provided for by paragraph 3 of this article.
The right of ownership to an unauthorized construction may be recognized by a court, and in cases provided for by law in another procedure established by law, the person in whose ownership, lifetime inheritable possession, permanent (unlimited) use is the land plot where the construction was carried out. In this case, the person who has recognized the right of ownership of the building shall reimburse the person who carried it out for the costs of the building in the amount determined by the court.
The right of ownership to an unauthorized structure cannot be recognized for the said person if the preservation of the structure violates the rights and legally protected interests of other persons or poses a threat to the life and health of citizens.
Clause 7.23 of Building Regulations 2.07.01-89 "Urban Planning. Planning and Development of Urban and Rural Settlements", approved by Decree of the USSR Gosstroy of May 16, 1989 N 78, provides that the horizontal distance (in the light) from the nearest underground engineering networks to buildings and structures should be taken according to table 14, from which it follows that a distance of five meters must be observed from the engineering networks of water supply and valves to the foundations of buildings and structures.
According to clause 22 of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 dated April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights" the owner of the land, the subject of another real right to a land plot, its legal owner or a person whose rights and legitimate interests are violated by the preservation of unauthorized construction, has the right to apply to the court for general rules jurisdiction of cases with a claim for the demolition of an unauthorized building.
The Court of First Instance found that the<...>is a tenant of the water supply network in the city of Aleksandrovsk on the basis of a lease agreement for water supply and sewerage and heat and power facilities dated April 2, 2011, concluded with the owner of the water supply network - OAO "Organization".
According to the plan of the water supply network of Aleksandrovsk on the street.<...>water supply network that supplies water to apartment buildings N<...>, N<...>, shop, kindergarten, away from the water well N<...>. This water supply is located at a distance of 3.8 meters from the foundation of the apartment building N<...>on st.<...>, which is also confirmed by the layout of water supply networks submitted by the parties to the court of appeal.
To apartment building N<...>on st.<...>in the city of Aleksandrovsk, a vestibule room was added. According to technical specifications, given in the technical passport, the width of this room from the wall of an apartment building according to the internal measurement is 6.25 meters, according to the external - 7.16 meters, the total building area is 82.3 square meters. m. the vestibule room is located on the land plot of this apartment building, where the water supply lies.
It follows from the materials of the case that the land plot under the apartment building N<...>on st.<...>The city of Aleksandrovsk was put on the state cadastral register on March 29, 2002, the boundaries of the land plot under the apartment building were formed on March 15, 2012.
By decision of 10.06.2009, the general meeting of owners of the premises of an apartment building located on the street.<...>Aleksandrovska, A. consent was given for the reconstruction of the wall of an apartment building and for the use of a land plot of 100 sq. m under the annex-tambour.
On July 16, 2009, A. applied to the administration of the Aleksandrovsky urban settlement with a request to approve the construction of an extension, the administration issued a conclusion on the possibility of using the land plot for the construction of a vestibule attached to the building on the street.<...>city of Aleksandrovsk. The administration of the Alexandrovsky municipal district of the Perm Territory also did not object to the construction of an apartment building on the adjacent territory on the street.<...>Aleksandrovsk city has a separate entrance to a non-residential premises, since the land plot is already used for an apartment building, therefore there is no need to provide the same plot for the construction of an additional facility, it is enough to obtain a building permit. On August 20, 2009, the administration of the Aleksandrovsky urban settlement A. issued a building permit.
From the act of verification dated September 28, 2010, drawn up by the administration of the Aleksandrovsky urban settlement, it follows that the boundaries of the object being built by A. do not correspond project documentation and layout plan.
On 01.10.2010 the construction permit expired, A. was warned about the need to demolish the unauthorized object.
11/07/2011 A. issued a permit to put the facility into operation. By the decision of the head of the administration of the Aleksandrovsky urban settlement dated January 30, 2012, the permission to put the facility into operation was canceled.
Thus, it does not follow from the materials of the case that A. arbitrarily seized the land plot and built on it an outbuilding-tambour to an apartment building. Consent to the construction of the facility was expressed by both the administration of the Aleksandrovsky urban settlement, the administration of the Aleksandrovsky
municipal district of the Perm Territory, and the owners of an apartment building. Evidence that the construction of this building violated the right to own and use any land plot owned on any right of LLC<...>, the court has not been presented, therefore, this argument of the plaintiff is not substantiated and cannot be the basis for satisfying the claim.
However, in accordance with Art. 222 of the Civil Code of the Russian Federation, unauthorized construction is a structure created with a significant violation of urban planning and building codes and regulations. A. erected a building on the existing engineering networks of the water supply system, which is a violation of clause 7.23 of Building Regulations and Regulations 2.07.01-89 "Urban Planning. Planning and Development of Urban and Rural Settlements", approved by Decree of the USSR Gosstroy of May 16, 1989 N 78.
The trial court came to a reasonable conclusion that the building permit was issued to A. in violation of the requirements of Art. 51 of the Town Planning Code of the Russian Federation. In particular, when applying for a permit for the construction of A., the town-planning plan of the land plot, information about engineering equipment, a master plan of engineering and technical support networks with the designation of the connection points of the projected capital construction object to the networks of engineering and technical support were not submitted.
The placement of underground networks in relation to buildings, structures and their relative position should exclude the possibility of undermining the bases of the foundations of buildings and structures, damaging nearby networks, and also ensure the possibility of repairing networks. OOO<...>is a tenant of water supply and sewerage facilities in the city of Aleksandrovsk, including the water supply line passing under the vestibule built by A. At LLC<...>there is an obligation to maintain and maintain this water supply network, other ways to eliminate leaks in the water supply system, except for excavation and replacement of the water supply pipe LLC<...>not available. The failure of the water supply will entail the need to turn off the water supply, the impossibility of performing work on this section of the water supply will lead to a violation of the rights of residents of several apartment buildings, children visiting kindergarten, owners of a grocery store, which means that it will entail the responsibility of LLC<...>to these consumers.
Thus, the construction of the A. building on existing water supply networks violates the requirements of building codes, creates a threat of violation of the rights of LLC<...>, as the legal owner of the water supply network to use the water supply in accordance with its purpose. In view of the foregoing, the trial court came to a reasonable conclusion that the building erected by A. was subject to demolition.
The defendant's references to the fact that the building permit has not been disputed or canceled by anyone, and therefore the building erected by him should be considered built in accordance with the requirements of the law, are not consistent. There is no need to cancel the building permit issued by A. on 20.08.2009 in violation of the current building codes and regulations, since this permit expired on 01.10.2010, a new building permit has not been issued.
The Judicial Board does not accept the argument of the defendant's appeal on the nullity of the contract for the lease of water supply and sewerage and heat and power facilities dated 04/02/2011, concluded by OJSC "Organization" and LLC<...>. OJSC "Organization" has been the owner of water supply networks since April 2, 2011, which is confirmed by a certificate of ownership dated April 2, 2011. On October 11, 2011, OJSC "Organization" issued another certificate of ownership of the same object in connection with from it separate objects - artesian wells. Those. at the time of the conclusion of the lease agreement, JSC "Organization" had the right to use and dispose of this object at its own discretion.
The argument of the defendant's appeal that the lease agreement is invalid because it has not passed state registration is also untenable.
In accordance with paragraph 2 of Art. 651 of the Civil Code of the Russian Federation, a lease agreement for a building, structure, concluded for a period of at least a year, is subject to state registration, is considered concluded from the moment of such registration.
From the lease agreement for water supply and sewerage and
heat and power facilities dated April 2, 2011, it follows that this agreement was concluded for a period up to December 31, 2011. At the same time, OJSC "Organization" and LLC<...>agreed that if 30 days before the expiration of the contract the parties do not declare its termination, then the contract is considered extended for an indefinite period. From the content and 2 tbsp. 651 of the Civil Code of the Russian Federation, it follows that a lease agreement for a facility concluded for a period of at least a year is subject to state registration. Consequently, a lease agreement renewed for an indefinite period does not need state registration.
Thus, the rights of LLC<...>, as a tenant of the water supply network, are confirmed by the lease agreement, which is not contested, not declared invalid, the fact of violation of the plaintiff's property rights to use the water supply is proved, respectively, he is the proper plaintiff for the requirements considered in this case.
The Judicial Board believes that the court of first instance correctly established the circumstances relevant to the case, the court's conclusions are based on the actual circumstances of the case, the grounds for canceling the court's decision on appeal, provided for in Art. 330 Code of Civil Procedure of the Russian Federation, not available.
Guided by Art. 193, 328 Code of Civil Procedure of the Russian Federation, Judicial Board Decision in case No. 33-5750/2014
(for full details of the case)
referee Ilyushina Oh.M. Case No. 33-5750/2014
NIZHNY NOVGOROD REGIONAL COURT
APPEALS DETERMINATION
Judicial Collegium for Civil Cases of the Nizhny Novgorod Regional Court composed of:
presiding: Mironova H.The.
judges: Kuzmicheva V.A., Nikitina I.O.
with the secretary: Dedova E.A.
with
examined in open court on the report of Judge Mironova H.The.
on the appeal of Medvedev V.N.
in the case on the suit of V. N. Medvedev against Bogorodsky Vodokanal OJSC, the Municipal Unitary Enterprise of the Bogorodsky District “Water and Sewerage Administration”, the administration of the Bogorodsky Municipal District of the Nizhny Novgorod Region, the Dudenevsky Village Council of the Bogorodsky Municipal District of the Nizhny Novgorod Region on imposing the obligation to eliminate obstacles in the use of the land plot, on imposing the obligation to transfer a water pipe outside the land,
SET UP:
Medvedev V.N. went to court with the said claim, in support of the requirements set out in the statement of claim, indicated that he is the owner of a residential building and land, located at: *** region, *** district, village ***, st. ***, house ***. On the territory of his land plot and under his house, a water pipe was laid, according to the plaintiff, owned by the defendant OJSC Bogorodsky Vodokanal. In a pre-trial order, he filed a statement with the specified defendant with a request to transfer the water supply, however, his requirements were not met. Believing that his rights are violated, the plaintiff, guided by Article. 209, 269, 304 of the Civil Code of the Russian Federation, filed a lawsuit in which he asks: to impose on Bogorodsky Vodokanal OJSC the obligation to eliminate obstacles in the use of property belonging to it by right of ownership, obliging the defendant to move the water pipe outside its land plot.
By the decision of the Bogorodsk City Court of the Nizhny Novgorod Region dated February 24, 2014, Medvedev V.N. dismissed in satisfaction of the claim for the imposition of the obligation to transfer the water pipe outside the land.
By an additional decision of the Bogorodsk City Court of the Nizhny Novgorod Region dated April 17, 2014, in satisfaction of the claim of Medvedev V.N. on the elimination of obstacles in the use of property belonging to the plaintiff on the right of ownership is denied.
Disagreeing with the decision, Medvedev V.N. filed an appeal, which asks the decision to cancel.
In support of the requirements set forth in the appeal, it is indicated that the complainant agrees with the court's conclusion that the proper defendant in this case is the administration of the Dudenevsky village council of the Bogorodsky district, Nizhny Novgorod region. However, he considers it incorrect that the court did not give any assessment to the inaction of the administration, which, having identified an ownerless immovable thing in *** year, did not apply to the body that carries out state registration of the right to real estate until *** year with a statement on accepting the ownerless immovable things on record, and subsequently with a statement to the court.
In addition, the applicant considers that the court did not give any assessment to the explanations of the representative of the Dudenevsky village council about the readiness to take part of the costs of relocating the water supply. Also Medvedev V.N. claims that the court violated the norms of substantive and procedural law, misinterpreted Article 209 of the Civil Code of the Russian Federation, and also did not apply Art. 43 ZK RF.
As Medvedev V.N. in his appeal, the court also committed violations of the rules of procedural law, which is reflected in the failure to consider all of his claims.
The administration of the Bogorodsky municipal district of the Nizhny Novgorod region filed objections to the appeal, in which the administration asks to leave the decision unchanged, and the appeal without satisfaction.
At the hearing of the Court of Appeal the representative of Medvedev V.N. based on the power of attorney Kuzmenko L.A. requirements set out in the appeal, supported, gave explanations on its merits.
The legality and validity of the ruling adopted by the court of first instance were verified by the judicial board of the Nizhny Novgorod Regional Court according to the rules of Chapter 39 of the Civil Procedure Code of the Russian Federation, within the limits of the arguments of the appeal.
In accordance with Art. 328 of the Code of Civil Procedure of the Russian Federation, based on the results of consideration of an appeal, presentation, the court of appeal has the right: to leave the decision of the court of first instance unchanged, the appeal, presentation without satisfaction.
From the case file it follows and established by the court that Medvedev The.GN. is the owner of a land plot with a total area of *** sq. m., cadastral number ***, located at the address: *** region, *** district, village ***, street ***, house *** (ld ***) and located on it residential building.
Ownership of a house and a land plot Medvedev V.N. acquired *** July *** year.
From the explanations of the plaintiff, the representative of the defendant Dudenevskaya rural administration, the testimony of witness K.The.The. the court found that on the land plot owned by VN Medvedev, there is a water supply line built in ***-*** by residents of the village ***, *** district, **** region.
*** October *** Medvedev V.N. appealed to Bogorodsky Vodokanal OJSC with a request to transfer the water supply line outside its land plot, which was not satisfied.
For the resolution of the dispute that has arisen, the plaintiff went to court and, in accordance with Art. 304 of the Civil Code of the Russian Federation requires that the defendants be obliged to transfer the water supply line outside its land plot.
In refusing to satisfy the claim, the court did not find legal grounds for its satisfaction. This conclusion of the court is correct, based on the norms of the current legislation, while the court correctly assessed the evidence presented by the parties, there are no grounds for a different assessment of the evidence.
In accordance with Art. 60 p. 2 p.p. 4 of the Land Code of the Russian Federation - actions that violate the rights to land of citizens and legal entities or create a threat of their violation can be suppressed by:
4) restoration of the situation that existed before the violation of the right, and suppression of actions that violate the right or create a threat of its violation.
According to Article 209 of the Civil Code of the Russian Federation, the owner has the right to own, use and dispose of his property.
The owner has the right, at his own discretion, to take any actions with respect to his property that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, including alienate his property into the ownership of other persons, transfer to them, while remaining the owner, the rights possession, use and disposal of property, pledge property and encumber it in other ways, dispose of it in another way.
Possession, use and disposal of land and other natural resources, to the extent that their circulation is permitted by law (Article 129), are carried out by their owner freely, if this does not cause damage environment and does not violate the rights and legitimate interests of other persons.
In accordance with Art. 304 of the Civil Code of the Russian Federation, the owner may demand the elimination of any violations of his rights, even if these violations were not connected with deprivation of possession.
Within the meaning of these legal norms, methods of protecting rights are subject to application in the event that there is a violation or contestation of the rights and legitimate interests of the person requiring their application.
At the same time, each party must prove the circumstances to which it refers as the grounds for its claims and objections, unless otherwise provided. federal law(Article 56 Code of Civil Procedure of the Russian Federation).
According to the clarifications contained in paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N 10/22 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other rights in rem", by virtue of Articles 304 and 305 of the Civil Code of the Russian Federation, a claim for the elimination of violations of the right, not related to deprivation of possession, is subject to satisfaction if the plaintiff proves that he is the owner or the person in possession of the property on the grounds provided for by law or the contract , and that the defendant's actions other than dispossession violate his right to property or legal possession.
Such a claim is also subject to satisfaction in the event that the plaintiff proves that there is a real threat of violation of his property right or lawful possession by the defendant.
Thus, necessary condition in order to satisfy the negatory claim for the elimination of obstacles in the exercise of the rights of the owner, the plaintiff must prove the following circumstances: the existence of a real right to property; presence of obstacles in exercising the powers of the owner to own and use this property; wrongfulness of the defendant's actions; the real nature of the obstacles or the presence of a real threat of violation of rights.
Based on Part 1 of Art. 55 and articles 67, 196 of the Code of Civil Procedure of the Russian Federation, the court establishes the presence or absence of circumstances substantiating the claims and objections of the parties, as well as other circumstances that are important for the correct consideration of the case on the basis of the evidence presented.
It follows from the materials of the case that the land plot with the cadastral number *** transferred to the ownership of Shishlov I.O. *** February *** year (ld ***), *** June *** year he was allowed to build a residential building on the specified land. (ld ***). Thus it is Shishlov Oh.A. uses the land plot from *** year.
The court established that the plaintiff acquired and used the house and the land plot under it, from *** year.
That is, both Shishlov I.O. and Medvedev V.N. acquired a land plot after the establishment of a water line ***-*** year of construction, that is, before the provision of a land plot in the ownership of Shishlov AND.Oh. and before its acquisition by Medvedev V.N.
Thus, any violation of the rights of Medvedev V.N. during the construction of the water supply system and its commissioning was not allowed, since Medvedev V.N. at that time was not the owner of the land. In this connection, his consent to the construction of the water supply was not required.
The plaintiff's argument that he did not know about the location of the water supply network on the land plot he was acquiring, since there was no record in the Rosreestr for the Nizhny Novgorod Region about his encumbrance, was rightfully rejected by the court, since this circumstance could not be known to him, since at the date of conclusion of the agreement on July ***, ***, the water supply line already existed, and Shishlov I.O. knew about its existence, which is confirmed by the materials of the boundary case dated March ***, ***, commissioned by the latter, in which there is a drawing of boundaries a piece of land with a water supply line marked on it. (ld ***).
Based on part 5 of Art. 36 of the Land Code of the Russian Federation, restrictions on land rights are preserved when the ownership of a land plot is transferred to another person.
From the above evidence it follows that Medvedev V.N. acquired the right of ownership to a land plot with a restriction, this restriction by virtue of Part 5 of Art. 56 RF LC is preserved.
The fact that in the testimony of Medvedev V.N., Shishlova AND.Oh. on the ownership of the land does not indicate any encumbrances, does not change the fact that the plaintiff acquired the land with an encumbrance in the form of a water supply line.
The presence of this encumbrance could affect the sale price of the land plot, and was the basis for refusing to conclude a contract of sale. The fact that the plaintiff did not refuse to conclude a contract of sale indicates that he agreed to the acquisition of the land plot with an encumbrance.
Therefore, the location of the gas pipeline on the land plot cannot be considered as the actions of the defendants that violate the rights of the owner of the land plot.
Moreover, the court established and does not dispute the plaintiff that involved in the case as defendants: Bogorodsky Vodokanal OJSC, Bogorodsky District Municipal Unitary Enterprise "Water and Sewerage Administration", the administration of the Bogorodsky Municipal District of the Nizhny Novgorod Region, the Dudenevskaya Rural Administration of the Bogorodsky District of the Nizhny Novgorod Region the line passing through the plaintiff's land does not belong, neither on the right of ownership, nor on any other real right, the defendants did not carry out its construction. Thus, the plaintiff has not proved that the actions of the defendants violated his right of ownership or legal possession of the land and the house.
The court concluded that the administration of the Dudenevsky village council of the Bogorodsky municipal district is responsible for organizing water supply to the village ***, given that the disputed water supply has no owner, this defendant has the right to recognize ownership of the ownerless immovable thing.
Without contesting said conclusion of the court, Medvedev The.GN. in his appeal, he indicated that his rights were violated by the inaction of the administration of the Dudunevsky village council of the Bogorodsky municipal district, which, since the discovery of the water supply line in ***, has not taken any action to recognize ownership of the ownerless thing.
This argument of the complaint is not accepted by the Judicial Board.
Ownerless immovable things are registered by the body that carries out state registration of the right to real estate, at the request of the local self-government body on whose territory it is located (paragraph 3 of Article 225 of the Code). After a year has elapsed from the date of registration of an ownerless immovable thing, the body authorized to manage municipal property may apply to the court with a demand to recognize the right of municipal ownership to this thing.
The plaintiff did not provide evidence of a violation by the actions (inaction) of the defendant in not accepting the water supply line into municipal ownership of the rights and legitimate interests of the plaintiff in possession, use of the land. Since the presence of a water supply line on a land plot in itself is not an obstacle to the use of the land plot for its intended purpose. Therefore, there are no violations of the plaintiff's ownership of the land due to the presence of a water supply line on it and its non-acceptance into municipal ownership.
Article 225, paragraph 1 of the Civil Code of the Russian Federation gives the concept of an ownerless thing, this is a thing that does not have an owner or the owner of which is unknown or, unless otherwise provided by laws, the owner has renounced the right of ownership to which.
From the explanations of the representative of the administration of the Dudunevsky village council of the Bogorodsky municipal district, given in the court session of the court of first instance (case sheet 111 turnover), it follows that this local government wanted to recognize the water supply line passing through the plaintiff's land plot as ownerless, however, residents interfered with them e. Kozhevennoye, they prevented them from doing this, declaring that they were the owners of the water supply.
Taking into account the above explanations, the materials of the case, in which there is evidence, the lack of registration of ownership of the disputed water supply for any person does not mean that the disputed water supply is ownerless property, since it was not recognized as such in the manner prescribed by law.
The argument of the appeal on violation of the norms of procedural law also cannot be taken into account, since an additional decision of the Bogorodsk City Court of the Nizhny Novgorod Region dated April ***, *** resolved the claim of V. N. Medvedev on the elimination of obstacles to the use of property, including And residential building, that is, considered all the claims brought by the plaintiff.
Having assessed the evidence presented in the case in accordance with the rules of Article 67 of the Code of Civil Procedure of the Russian Federation, the court of first instance came to a reasonable conclusion that the plaintiff did not prove that the defendants had committed actions that obstructed the plaintiff in the use of property belonging to him.
Under such circumstances, the trial court made a reasonable conclusion that there were no grounds under Art. 304 of the Civil Code of the Russian Federation, to satisfy the non-commissioned claim.
Guided by Art. 329 Code of Civil Procedure of the Russian Federation, judicial board,
DETERMINED:
The decision of the Bogorodsk City Court of the Nizhny Novgorod Region dated February 24, 2014 is left unchanged, the appeal is dismissed.
presiding:
JavaScript is currently disabled. Please enable it for a better experience ofAs far as I understand (from studying the laws), this issue with the water utility is not regulated by law at the moment. Relations are settled after connection, i.e. if he gave permission, he will not jump off. Such disputes are resolved in court. I made a calculation for myself, what is easier for me to do: sue or stretch my 50-60 meters, total cash costs will be the same, in terms of pulling your own faster.Legislatively, in principle, the general points are settled. However, at the moment, all the problems stem from the legal illiteracy of local governments. I will list the main points:
1. Building permit - in accordance with the Federal Law-190 Art. 51, paragraph 7, one of the prerequisites for issuing a building permit is title documents for a land plot. This condition also applies to linear objects (water supply). As a rule, people who want to build a water pipe along the street do not have any title documents for the land plot where the water pipe will be laid. But nevertheless, they are issued a building permit, which is a gross violation of the above article, as well as almost every 5th article of the Land Code.
2. Permission to commission an object - similarly to a construction permit, regulated by FZ-190, Art. 55 p. 3.
In total, we have practically illegal construction, which of course must be proven in court, but not so problematic, there is a legal basis. As a result, various illegal agreements begin, demands for money, often astronomical amounts, and other discrepancies with the law. In principle, life can be complicated very easily for the owners of such a water supply system, they will be happy to give this water supply to the municipality. Since their ownership of the plumbing leads to a very a large number obligations that they do not fulfill, and these are tax, land, town planning codes and other federal laws.
In general, as usual, everyone loves us in Russia, when they build a water pipe they say that they need water, when they have built they start wanting to make money on a permit, but at the same time they forget to pay property taxes, forget to pay land rent, forget to pay income taxes.
Specifically, the deadlines are not "pressing" for me, so I decided to do as required by law, and not as a neighbor.mikhail_rzn said:
I asked at the water utility whether the neighbors, as the "owners" of the pipe, could issue technical specifications for connection, they answered me that they could not. How to legally substantiate the water utility that it is they who should issue the technical specifications for technical connection to a neighboring pipe?Show them PP No. 83 p. 17.
Suppose in this act the demarcation goes at the place of the tie-in into the pipe of the water utility, i.e. 200 meters of PND110 on the balance sheet of the neighbors. Should they have these rights to the pipe registered in the manner prescribed by law? Like a line object? Do I have the right to become a co-owner of this object in case of compensation for construction costs?
If all this is not there, then how will the water utility provide water supply to my house in case of damage not to "his" pipe?For some reason, it seems to me that this pipe was built and put into operation on the basis of documents, upon receipt of which gross violations of the legislation indicated above were committed. And as a result, they have no registration of the right to this object.
And you need to understand that the defendant, by completely legal methods, can delay the process for a long time. And it’s not a fact that the court will take the side of the plaintiff, since the plaintiff must have serious justifications for connecting to existing line, for example, the impossibility of laying a new line according to the requirements of SNiP. If there is a possibility of laying the line and the water utility agrees, then the chance to win the court is sharply reduced.SNiP tells us that there should be ONE linear object, a water line, along the street, and there should not be any second line nearby.
