Property rights and other real rights to residential premises...

Section II. The right of ownership and other real rights to living quarters

Chapter 5. Rights and obligations of the owner of a dwelling, as well as other citizens living in his premises

Article 30. Rights and obligations of the owner of a dwelling

1. The owner of the living quarters exercises the right to own, use and dispose of the residential premises owned by him on the right of ownership in accordance with his appointment and the limits of his use, which are established by this Code.

2. The proprietor of a dwelling house has the right to grant to a citizen a property belonging to him on the basis of a tenancy agreement, a contract of uncompensated use or on another legal basis, and also to a legal entity on the basis of a lease agreement or on another legal basis requirements established by civil law, this Code.

3. The owner of the living quarters bears the burden of maintaining the premises and, if this premise is an apartment, the common property of the owners of the premises in the corresponding apartment building, and the owner of the room in the communal apartment is also burdened with the maintenance of the common property of the owners of the rooms in such apartment, unless otherwise stipulated by federal law or contract.

4. The owner of a dwelling is obliged to maintain this premise at an appropriate cost, not permitting ineffectual treatment with him, to observe the rights and legitimate interests of neighbors, the rules for using living quarters, as well as the rules for keeping the common property of apartment owners in an apartment building.

1. The commented article starts in. II Ownership and Other Rights in Residential Property.

This article establishes the owner's housing and legal power in relation to the living quarters: he owns, uses and disposes of the dwelling premise 8 in accordance with its purpose and the limits of its use. Article 17 of the United States LC states that a dwelling is intended for the residence of citizens, and can also be used to carry out professional activities or individual entrepreneurial activities.

It should be noted that in housing relations citizens and other participants can have both proprietary rights, i.e. rights associated with the use of property (housing), and rights based on obligations, such as a contract for renting a dwelling, etc.

In the commented article, a reference is made to civil law: first of all, the US Civil Code, in particular Art. 209, which defines the content of the property right. The specified article establishes:

"The owner owns the rights to own, use and dispose of his property. The owner has the right, at his own discretion, to perform with respect to his property any actions that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, including alienating his property in the ownership of other persons, transferring to them, remaining the owner, rights possession, use and disposal of property, to pledge property and encumber it in other ways, to dispose of it in a different way. "

The basic rules concerning corporeal rights are contained in Sec. II (articles 209 - 306) of the US Civil Code. Of course, among property rights, the ownership of property occupies a central place. The grounds for acquiring ownership of any property (including housing) are defined in Art. 218 of the Civil Code of the United States. In accordance with this article, the ownership of property can be acquired by another person on the basis of a contract of sale, exchange, gift or other transaction for the alienation of this property. In the case of the death of a citizen, the ownership right to the property belonging to him passes on to other persons according to the will or law.

The provisions on the acquisition of ownership of property fully apply to living quarters. Objects of transactions in these cases are residential houses and apartments or parts of houses, apartments. According to Art. 153 CC US transactions recognize the actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations. In this case, transactions can be two-or multilateral (contracts) and one-sided. Transactions are recognized as valid subject to the requirements set forth in Ch. 9 (Article 153 - 165) and other articles of the US Civil Code. These requirements relate to the content and form of the transaction, the legal capacity and capacity of the parties, and the like.

2. Consider the types of contracts that are applied when acquiring ownership of living quarters.

Purchase and sale of residential premises - is one of the most common transactions. Under such agreements, Ch. 30 of the Civil Code of the United States, including art. 549 - 558. The contract for the sale of a dwelling is made in writing by compiling one document signed by the parties (Article 550). However, the parties are entitled to provide for notarial certification of the transaction (Article 163 of the Civil Code of the United States), although, as follows from Art. 550, the obligatory notarization of this contract is not required. At the same time, state registration of the transfer of ownership of a dwelling is mandatory (Article 551). Only from the moment of the state registration of the contract of sale and purchase it is considered to be concluded and the right of ownership of the buyer to the acquired residential premises arises (Article 558).

Article 558 of the US Civil Code provides for the sale of residential premises. It is established that an essential condition for the contract for the sale of a residential house, apartment, part of an apartment building or apartment in which persons who retain in accordance with the law the right to use this dwelling premise after its acquisition by the buyer is a list of these persons, indicating their rights to use the sold living quarters.

In the conditions of market relations, the application of the barter of the living quarters. In accordance with Art. 567 of the US Civil Code under the barter agreement, each party undertakes to transfer to the other party one goods in exchange for another. Thus the owner of a dwelling premise can receive under such agreement not only habitation, but also other property, for example the car. To the barter agreement, respectively, the rules on buying and selling (Chapter 30 of the Civil Code of the United States); each party is recognized as the seller of the goods, which she undertakes to transfer, and the buyer of the goods, which she undertakes to accept in exchange. Do not confuse this transaction with the exchange of living quarters, the procedure for the fulfillment of which is established by the housing legislation.

In accordance with Art. 20 Principles, the tenant of a dwelling in the houses of the state and municipal housing fund had the right, with the consent of the adult members of the family residing together with him, to exchange the occupied dwelling space with another tenant, including a resident in another settlement. In addition, the employer had the right (with the consent of the owner of the housing fund or the person (body) authorized by the owner and the adult members of the family living with him) to transfer the rights and obligations under the contract for hiring the premises to the owner of a private housing fund in exchange for acquiring ownership of the residential house room). In other words, the owner of a dwelling (citizen) could exchange it for a dwelling occupied by a citizen under a contract of social hiring. Now such an exchange is prohibited (see Article 72 of the United States LC and comments to it).

Citizens can transfer to the ownership of other persons living quarters under a gift contract. In accordance with Art. 572 of the US Civil Code under the gift agreement, one party (the donor) grants or undertakes to transfer the housing to another person (the done) free of charge. The donee may at any time refuse to give him the gift, in which case the gift contract is considered to be terminated (Article 573 of the Civil Code of the United States). At the same time, the refusal of the presented housing, as follows from Section 2, Art. 573, must be made in writing and subject to state registration. Article 575 of the US Civil Code establishes that donation is not allowed: on behalf of minors and citizens recognized as legally incompetent, their legal representatives; employees of medical, educational institutions, social protection institutions and other similar institutions by citizens who are in them for treatment, maintenance or upbringing, as well as spouses and relatives of these citizens; State employees and employees of local government bodies in connection with their official position or in connection with the performance of their official duties; in relations between commercial organizations.

State and municipal enterprises and institutions have the right to donate housing, but only with the consent of the owner (Article 576 of the Civil Code of the United States). In accordance with Art. 578 of the US Civil Code, the donor may revoke the gift if the donee has committed an attempt on his life, on the life of one of his family members or close relatives, or deliberately caused the bodily injuries to the donor. In the event of the intentional deprivation of the life of the donor by the donee, the right to demand that the gift be canceled in court belongs to the heirs of the donor. The gift contract may establish the right of the donor to cancel the gift in case he survives the donee. In the case of cancellation of the gift, the donee must return the donated house, if it was preserved in kind at the time of cancellation of the gift. According to Art. 580 of the US Civil Code, the harm caused to the life, health or property of a given citizen due to defects in the gifted housing estate is subject to reimbursement by the donor if it is proved that these shortcomings arose before the transfer of the accommodation to the donee, and although the donor knew about them, he did not warn the donee about them.

In accordance with the US Civil Code (Chapter 33), property, including housing, can be transferred to another person in ownership. In exchange for the received property, the new owner is obligated to pay the former owner an annuity in the form of a certain amount of money or provision of funds for its maintenance in a different form. Such transfer of property is carried out on the basis of the contract of rent (Article 583 of the Civil Code of the United States). Rent contract is subject to mandatory notarization, and a contract providing for the alienation of immovable property is also subject to state registration (Article 584 of the Civil Code of the United States). When concluding an rental agreement on housing, as follows from the said article, it is necessary to have a notarization and state registration, since the housing belongs to real estate.

The housing that is transferred on the basis of the rent contract can be purchased by the new owner: 1) for a fee: in these cases, the rules of buying and selling are applied to the relations of the parties to the contract (Chapter 30 The Civil Code of the United States); 2) free of charge: in these cases, the rules on the gift agreement (Chapter 32 of the Civil Code of the United States) apply to the relations of the parties.

To ensure the fulfillment of obligations on the part of the payer of rent, art. 587 of the US Civil Code provides that the recipient of the lease acquires the right to pledge the transferred property, and for the delay in payment of rent, the annuity payer pays interest in accordance with Art. 395 of the US Civil Code, unless another percentage is established by the contract. If the essential terms of the contract are not fulfilled (clause 2, article 587 of the Civil Code of the United States), as well as in case of loss of security or deterioration of its terms for obligations for which the recipient of rent is not responsible, the latter is entitled to terminate the contract and demand compensation for losses caused by the termination of the contract.

In accordance with Art. 589 CC US beneficiaries of annuity can be only citizens, as well as non-profit organizations, if it does not contradict the law and corresponds to the objectives of their activities, fixed in the constituent documents of these organizations. The rights of the recipient of the rent may be inherited or in the order of succession in the reorganization of legal entities, unless otherwise provided by law or by contract. Rent can be permanent and lifelong.

Permanent rent is paid in money in the amount established by the contract. The contract may provide for the payment of rents by providing things, performing work or providing services that correspond to the value of the monetary amount of rent (Article 590 of the Civil Code of the United States).

The payer of permanent rent has the right to refuse further payment of rent by means of its repayment. In this case, the refusal is declared by the rent payer in writing not later than three months before the termination of the payment of the rent or for a longer period provided for by the contract. At the same time, the obligation to pay the rent is not terminated until the whole amount of the repurchase is received by the recipient of the rent, unless another procedure for the repurchase is provided for in the contract. The parties to the contract may provide that the right to buy permanent rents can not be exercised during the lifetime of the recipient of the rent or within another period not exceeding thirty years from the date of the contract (Article 592 of the Civil Code of the United States).

Article 593 of the US Civil Code establishes the following cases of repurchase of permanent rent at the request of the recipient of the rent: if the payer of the rent has overdue it for more than one year (unless otherwise provided by the permanent rent contract); violated his obligations to ensure the payment of rents; is recognized as insolvent or other liabilities have arisen, which obviously indicate that the rent will not be paid to them in the amount and in the terms established by the contract; if the property transferred under the payment of rent was received in common ownership or divided between several persons; in other cases stipulated by the contract.

According to Art. 594 of the US Civil Code, the repurchase of permanent rent is made at the price set in the contract. If there is no condition on the redemption price in the contract for which housing is transferred to pay rent free of charge, the purchase price, along with the annual amount of rent payments, includes the price of the dwelling, which is usually levied for similar property.

Life annuity (item 596 of the Civil Code of the United States) can be established for the period of life of a citizen who transfers housing for payment of rent, or for the period of life of another citizen specified by him. It is permissible to establish lifetime rent in favor of several citizens whose shares in the right to receive rent are, as a rule, considered equal. In the case of the death of one of the recipients of rent, his share in the right to receive rent passes to the surviving recipients, and in the case of the death of the last recipient of the rent, the obligation of annuity ceases.

Life annuity is defined in the contract as a sum of money, periodically paid to the recipient of the rent during his life. The amount of lifetime rent, determined in the contract, per month should be not less than the minimum wage established by law. With an increase in the minimum wage, the size of life annuity increases accordingly (Article 597 of the Civil Code of the United States).

A lifetime rent must be paid at the end of each calendar month, unless otherwise provided by the contract. According to Art. 599 of the US Civil Code in case of a substantial breach of the contract by the rent payer, the annuity recipient is entitled to demand from the payer the ransom of the rent or the termination of the contract and compensation for damages. If the property is alienated for free for the payment of lifetime rent, the annuity recipient has the right to demand the return of this property with a significant violation of the contract, offsetting its value against the redemption price. Accidental death or accidental damage to the transferred property does not release the rent payer from the obligations imposed on him by the contract.

The contract of life-long maintenance with dependents (Article 601 of the Civil Code of the United States) is a kind of contract for life annuity. Under this agreement, the recipient of the rent, the citizen, transfers the dwelling house, apartment or other real estate belonging to him to another person who undertakes to carry out life-long maintenance with the dependent of the citizen and (or) the third person (s) indicated by him.

The rules for life annuity apply to this contract, unless otherwise stipulated by Art. 601 - 605 of the US Civil Code.

Provision of maintenance with dependency may include ensuring the need for housing, food and clothing, and if this is required by the state of health of the citizen, then care for him. A contract may also provide for the payment by the renter of ritual services. At the same time, the cost of the total amount of content per month can not be less than two times the minimum wage (Article 602 of the Civil Code of the United States). Article 604 of the US Civil Code provides for a restrictive procedure for disposing of property by a new owner. He has the right to alienate, pledge or otherwise encumber real estate transferred to him for the maintenance of life-long maintenance, only with the prior consent of the recipient of the rent. The termination of this contract is carried out on the grounds established by Art. 605 of the Civil Code of the United States, namely: in case of death of the recipient of the rent; at a substantial breach of the annuity of the annuity of its obligations.

The contracts listed above, of course, do not exhaust the entire list of transactions that can be made with living quarters, they are the most common in the practice of civil turnover.

3. In part 2 of the commented article it is established that the owner of a dwelling premise can provide his citizens with a contract of employment and other contracts with a dwelling premise, and for legal entities - under a lease agreement. From paragraph 2 of Art. 671 of the US Civil Code states that this agreement can be applied only in relations with legal entities that can use the living quarters for citizens.

At the same time, the commented part establishes the requirements (conditions) for providing housing to other persons, including the condition of observing the norm of living space.

4. The owner bears the burden of maintaining the premises, as well as the burden of maintaining the common property of the apartment building or communal apartment (part 3 of the article being commented). This rule is based on the provisions of art. 210 of the Civil Code of the United States, which established that the owner bears the burden of maintaining the property belonging to him, unless otherwise provided by law or contract. In addition, Art. 211 of the US Civil Code provides that, as a general rule, the risk of accidental loss (damage) of property is borne by the owner.

5. Part 4 of the commented article on the owner of the premises are assigned responsibilities (they are formulated in a general form). In particular, he should not allow ownerless treatment of housing, violate the rights and interests of neighbors. In this regard, it should be noted that Art. 293 of the Civil Code of the United States establishes the responsibility of the owner of a dwelling. If the owner of a dwelling uses it inappropriately, systematically violates the rights and interests of neighbors or mismanages housing without housekeeping, allowing its destruction, a local government body can warn the owner about the need to eliminate violations, and if they entail the destruction of the premises, also appoint the owner a commensurate period for repair of premises. If the owner, following a warning, continues to violate the rights and interests of neighbors or use the dwelling not for the intended purpose or without the necessary repairs, the court may, under a suit of the local government, decide to sell such a dwelling from a public auction with payment to the owner of the proceeds from the sale of funds less the costs of enforcing the judgment.

6. For violation of the rules for the use of living quarters of Art. 7.21 The Administrative Code of the United States provides for administrative responsibility. Corruption of residential buildings, living quarters, as well as spoilage of their equipment, unauthorized reorganization and (or) redevelopment of residential buildings and (or) residential premises or their use for other purposes entails a warning or an administrative fine on citizens in the amount of 1,000 up to 1,5 thousand rubles

Article 7.22 of the US Code of Administrative Offenses establishes liability for violation of the rules for the maintenance and repair of residential buildings and (or) residential premises. Violation by the persons responsible for the maintenance of houses and (or) living quarters, the rules for the maintenance and repair of houses and/or living quarters or the procedure and rules for recognizing them as unfit for permanent residence and transferring them to non-residential, as well as reorganization and (or) redevelopment of residential buildings and (or) residential premises without the consent of the employer (owner), if the reorganization and (or re-planning significantly alter the conditions for the use of an apartment house and (or) a dwelling, entails the imposition of an administrative fine on the job s entities in the amount of 4 thousand. to 5 th. rub .; on legal entities - from 40 thousand to 50 thousand rubles.

7. The commented article defines the owner living accommodation, i. means one person, including a citizen. Meanwhile, it must be borne in mind that a dwelling may be in common ownership (shared or shared). The presence of several owners of one dwelling premise presupposes their joint participation in the exercise of rights and the performance of duties in relation to this dwelling premise (see Article 253 of the Civil Code of the United States).

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