The restriction of territory in the Moscow Parking

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    The restriction of territory in the Moscow Parking.

    THE GENERAL MEETING OF OWNERS OF AN APARTMENT BUILDING DOES NOT BELONG TO THE BODIES, AUTHORISED TO MAKE DECISIONS ON RESTRICTION OF RIGHTS OF OWNERS OF PREMISES TO THE USE OF LOCAL AREA IN ORDER TO ACCOMMODATE A OWNED CARS.

    S. APPEALED TO court WITH a CLAIM TO the HOUSING COOPERATIVE (FURTHER — ZHSK) ON the OBLIGATION to PROVIDE UNIMPEDED access TO the apartment BUILDING WHERE SHE LIVES WITH the FAMILY, as well AS PARKING OWNED VEHICLE IN the DOMESTIC TERRITORY.

    The COURT found THAT FENCING of TERRITORY of an APARTMENT HOUSE WAS commissioned IN ACCORDANCE WITH CURRENT LEGISLATION PROCEDURES AFTER OBTAINING ALL NECESSARY PERMITS AND APPROVALS, due TO the MOSCOW GOVERNMENT RESOLUTION of 2 JULY 2013 № 428-PP «ON the procedure for the INSTALLATION of FENCES IN the LOCAL area IN the CITY of MOSCOW» (HEREINAFTER — MRP No. 428-PP) ADOPTED IN order to INCREASE the level of improvement of the ADJOINING areas IN the CITY of MOSCOW.

    In ACCORDANCE WITH paragraph 3 of this RESOLUTION, INSTALLATION of PROTECTING DEVICES CARRIED BY the DECISION of OWNERS of PREMISES IN an APARTMENT HOUSE, ADOPTED AT the GENERAL MEETING of OWNERS of PREMISES IN an APARTMENT HOUSE, AND WHAT WAS the APPROPRIATE DECISION ZHSK 14 JUNE 2013 AT the GENERAL MEETING of apartment OWNERS in the APARTMENT BUILDING — members of the HBC ON the ORGANIZATION of PARKING SPACES IN an APARTMENT BUILDING AND APPROVED the regulations ON the PROCEDURE of ENTRY AND PARKING of VEHICLES ON the LOCAL area.

    ACCORDING TO MENTIONED PROVISION, THE RIGHT TO UNIMPEDED ENTRY TO THE FENCED AREA OF THE YARD OF THE HOUSE DURING THE DAY IS A PASSENGER TRANSPORT, OWNED BY THE OWNERS OF PREMISES IN THE HOUSE AND DULY REGISTERED IN THE BOARD OF HBC, PARKING IN A FENCED PART OF THE LOCAL AREA OF UNREGISTERED TRANSPORT IS PROHIBITED.

    THE REGISTRATION PROCEDURE PROVIDES FOR THE FILING BY THE OWNER TO THE BOARD ZHSK STATEMENT OF THE ESTABLISHED SAMPLE WITH THE APPENDIX TO IT OF COPIES OF DOCUMENTS CONFIRMING THE OWNERSHIP OF THE VEHICLE, PAYMENT OF CONTRIBUTIONS FOR THE EQUIPMENT OF PARKING SPACES, OBTAINING A PASS TO ENTER AND ACCESS KEY FOB.
    THE DECISION ON THE PROVISION OF PARKING SPACES OR THE REFUSAL TO PROVIDE CAR OWNERS IS SOLELY AT THE GENERAL MEETING OF OWNERS.

    IF IN RESPECT OF A PARTICULAR VEHICLE OWNER WILL BE DECIDED AT THE GENERAL MEETING OF OWNERS ON REFUSAL OF PROVISION OF PARKING SPACES, TENANT HOUSE SHALL IMMEDIATELY VACATE THE PARKING SPACE AND TRANSMIT THE ACCESS KEY — FOB TO THE CHAIRMAN OF THE BOARD OF OWNERS.

    C. he IS the OWNER of the APARTMENT LOCATED IN an APARTMENT BUILDING, THERE SHE WAS AND LIVES.
    MARCH 20, 2013 AT the GENERAL MEETING of MEMBERS of the HBC, WITH the PARTICIPATION of S. the DECISION WAS MADE to CREATE PARKING of VEHICLES; installation of a GATE AT the ENTRANCE to YARD.

    JUNE 27, 2013 C. were OBTAINED FOB FROM the BARRIER AND SUBSEQUENTLY, because IT is ENSHRINED PARKING SPACE.
    16 APRIL 2015 AT a MEETING of OWNERS to discuss the ORGANISATION of PARKING spaces AND improvement of the LOCAL area DECIDED to DEPRIVE the POSSIBILITIES to PARK the car BELONGING to the PLAINTIFF, IN a FENCED LOCAL area FOR VIOLATION of PARKING RULES, APPROVED AT the GENERAL MEETING of OWNERS, AND FOR violation of the PROVISIONS ON the admission AND PARKING of VEHICLES, RETURN PREVIOUSLY MADE by IT the CASH, ITS INITIAL CONTRIBUTION.

    C. IN REFUSING satisfaction of the DECLARED REQUIREMENTS, the COURT PROCEEDED FROM the FACT THAT the EVIDENCE of the OBSTACLES a DEFENDANT of ACCESS TO the DWELLING BELONGING to S. SHE is NOT REPRESENTED, AND LIMIT the PLAINTIFF’s RIGHT TO a PARKING SPACE LOCATED IN the COMMON USE of OWNERS of rooms of an APARTMENT HOUSE, ESTABLISHED by the DECISION of the GENERAL meeting of OWNERS.

    WITH THESE FINDINGS THE TRIAL COURT AGREED AND THE COURT OF APPEAL.
    JUDICIAL BOARD ON CIVIL CASES OF THE SUPREME COURT OF THE RUSSIAN FEDERATION ACKNOWLEDGED THE CONCLUSIONS OF JUDICIAL INSTANCES DO NOT MATCH THE REQUIREMENTS OF THE LAW.

    ACCORDING to P. 1 ART. 262 OF THE CIVIL CODE OF THE RUSSIAN FEDERATION CITIZENS HAVE THE RIGHT FREELY, WITHOUT ANY PERMISSION TO BE ON IS NOT CLOSED AND THE LANDS BEING IN STATE OR MUNICIPAL OWNERSHIP AND TO USE THE AVAILABLE ON THESE SITES NATURAL FEATURES TO THE EXTENT PERMITTED BY LAW AND OTHER LEGAL ACTS, AS WELL AS THE OWNER OF THE CORRESPONDING PLOT.

    In ACCORDANCE WITH Part 5 of ST. 16 of the FEDERAL LAW FROM DECEMBER, 29TH, 2004 № 189-FZ «ABOUT INTRODUCTION IN ACTION of the HOUSING CODE of the RUSSIAN FEDERATION» (IN EDITION in FORCE AT the TIME of DISPUTABLE RELATIONS) SINCE the formation of the LAND PLOT AND ITS STATE CADASTRAL registration of the LAND ON WHICH is LOCATED an APARTMENT BUILDING or OTHER are included with THIS HOME REAL ESTATE, PASSES FREE of charge IN the GENERAL share PROPERTY of PROPRIETORS of PREMISES of an APARTMENT building.

    NOT ALLOWED prohibition ON the ENCUMBRANCE of LAND ON WHICH is SITUATED an APARTMENT BUILDING, IF NECESSARY ENSURE FREE ACCESS of PERSONS TO OBJECTS of REAL ESTATE INCLUDED with APARTMENT buildings AND prior TO the INTRODUCTION of the housing code (Part 7 ST. 16 OF THE ACT).

    THE CASE FILE CONTAINS A COPY OF THE NOTICE FROM THE REGISTRATION AUTHORITY OF RIGHTS ON THE ABSENCE OF INFORMATION IN THE UNIFIED STATE REGISTER OF ANY REGISTERED LAND RIGHTS, WHICH ARE LOCATED THE TERRITORY. SO FAR RIGHTS TO THE LAND, THE SITE IS NOT FORMED AND REGISTERED IN CADASTRE, THAT IS USED WITHOUT THE DULY ISSUED DOCUMENTS ON THE GROUND.

    PARAGRAPH 67 of the JOINT RESOLUTION of PLENUMS of the SUPREME COURT of the RUSSIAN FEDERATION AND the SUPREME ARBITRATION COURT DATED 29 APRIL 2010 № 10/22 «ON CERTAIN QUESTIONS ARISING IN JUDICIAL PRACTICE WHEN RESOLVING DISPUTES relating to the PROTECTION of the RIGHT of OWNERSHIP AND OTHER REAL RIGHTS» DETERMINED THAT IF the LAND is NOT FORMED, AND NOT of the STATE CADASTRAL RECORDS, the LAND UNDER the APARTMENT BUILDING IS owned by the RELEVANT public LEGAL entity. THE OWNERS OF PREMISES IN AN APARTMENT HOUSE HAVE THE RIGHT TO OWN AND USE THIS LAND IN SO FAR AS IT IS NECESSARY FOR THE OPERATION OF THEIR APARTMENT BUILDINGS, AND OBJECTS INCLUDED IN THE COMMON PROPERTY IN SUCH HOUSE. In determining the LIMITS of the POWERS of OWNERS of PREMISES IN an APARTMENT HOUSE ON POSSESSION AND USE of the SPECIFIED LAND MUST be GUIDED by Part 1 of ARTICLE. 36 ZHK THE RUSSIAN FEDERATION.

    IN THESE CASES, THE OWNERS OF PREMISES IN AN APARTMENT HOUSE AS THE RIGHTFUL OWNERS OF THE LAND ON WHICH THE BUILDING IS SITUATED AND WHICH IS NECESSARY FOR ITS OPERATION, BY VIRTUE OF THE PROVISIONS OF ART. 304-305 OF THE CIVIL CODE HAVE THE RIGHT TO DEMAND ELIMINATION OF ANY VIOLATIONS OF THEIR RIGHTS EVEN THOUGH THESE VIOLATIONS WERE NOT CONNECTED WITH DEPRIVATION OF POSSESSION, AND RIGHT TO PROTECTION OF THEIR POSSESSIONS.

    ACCORDING to Part 2 ST. 36 HOUSING CODE PROPRIETORS OF PREMISES IN AN APARTMENT HOUSE OWN, ARE ESTABLISHED BY THIS CODE AND THE CIVIL LAW TO DISPOSE OF COMMON PROPERTY IN AN APARTMENT HOUSE.

    In Part 4 ST. 37 HOUSING CODE PROHIBITED THE BOARD IN KIND AND THE ASSIGNMENT OF A SHARE IN AN OWNERSHIP RIGHT ON COMMON PROPERTY IN AN APARTMENT HOUSE, AND COMMITTING OTHER ACTIONS ENTAILING TRANSFER OF THIS SHARE SEPARATELY FROM THE RIGHT OF OWNERSHIP TO PREMISES IN APARTMENT BUILDING.

    THUS, THE OWNER OF THE PREMISES IN AN APARTMENT HOUSE BELONGS TO THE UNCONDITIONAL AND INALIENABLE RIGHT TO USE THE COMMON PROPERTY OF AN APARTMENT HOUSE.
    THUS ANY WAYS OF LIMITING OR DEPRIVING THE OWNER OF THE PREMISES IN AN APARTMENT HOUSE SUCH A RIGHT IS STIPULATED BY EFFECTIVE LEGISLATION.

    The FACT of OBSTACLES S. AND HER FAMILY TO ENTER a FENCED LOCAL AREA is CONFIRMED by the EXTRACT FROM the minutes OF the DECISION to EXCLUDE the VIOLATOR of PARKING REGULATIONS C. number of car OWNERS ENTITLED to PARK YOUR PERSONAL VEHICLE IN a FENCED LOCAL area, as well AS an EXTRACT FROM the minutes of the GENERAL meeting of OWNERS to discuss the ORGANISATION of PARKING spaces AND IMPROVEMENT of the ADJOINING TERRITORY, WHICH ADOPTED a decision ON the RETURN of S. PREVIOUSLY MADE IT CASH AS a down PAYMENT FOR PARKING BY CREDITING ITS ACCOUNT.
    IN ADDITION, THE CASE FILE CONTAINS A NOTICE OF THE CLAIMANT SIGNED BY THE CHAIRMAN OF THE BOARD OF OWNERS OF PARKING, THE EXCLUSION FROM THE NUMBER OF OWNERS WITH PARKING SPACES FOR PERSONAL VEHICLES IN THE FENCED HOUSE TERRITORY.

    The COURT, RECOGNIZING the LIMITATION of the RIGHT C. TO use the PARKING LOCATED ON the TERRITORY of an APARTMENT building REGULATED by the PROVISION ON the PROCEDURE of ENTRY AND PARKING of VEHICLES ON the LOCAL area, APPROVED by the GENERAL MEETING of the MEMBERS of HBC: JUNE 14, 2013, AND comply with MRP No. 428-PP, did NOT CONSIDER THAT the DECREE does NOT regulate the ISSUES of ESTABLISHMENT AND USE of PARKING spaces IN a FENCED LOCAL area, AND THEREFORE impose restrictions on the RIGHT of S. AS the OWNER of the PREMISES IN an APARTMENT BUILDING ON the USE of LOCAL AREA, INCLUDING TO BE PLACED ON HER AND HER CAR.
    PARAGRAPH 13 OF PPM NO. 428-PP IS FORBIDDEN THE INSTALLATION AND OPERATION OF PROTECTING DEVICES THAT PREVENT OR LIMIT THE PASSAGE OF PEDESTRIANS AND PASSAGE OF VEHICLES INTO THE TERRITORY OF GENERAL USE.

    C. the RIGHT TO free ENTRY TO the FENCED AREA of the YARD of an APARTMENT HOUSE during the DAY, AS OWNER of the DWELLING IN THIS HOUSE, is ENSHRINED in the regulations ON the PROCEDURE for ENTRY AND PARKING of VEHICLES ON the LOCAL area, APPROVED by the GENERAL MEETING of the MEMBERS of HBC.

    IN SUCH CIRCUMSTANCES, THE COURT’S REFERENCE TO THE FACT THAT THE DECISION OF THE GENERAL MEETING OF OWNERS WAS A LEGITIMATE BASIS FOR LIMITING THE PLAINTIFF’S RIGHT TO A PARKING SPACE LOCATED IN THE COMMON USE OF OWNERS OF A BUILDING WHO CONTRAVENES THE ABOVE RULES OF SUBSTANTIVE LAW.
    IN ACCORDANCE WITH SUB. 1.1 P. 1 ST. 8 GK THE RUSSIAN FEDERATION THE CIVIL RIGHTS AND OBLIGATIONS ARISE IN PARTICULAR FROM THE DECISIONS OF THE MEETING IN CASES STIPULATED BY LAW.

    ACCORDING to paragraph 2, ART. 181.1 OF CIVIL CODE OF THE RUSSIAN FEDERATION THE DECISION OF THE MEETING TO WHICH THE LAW BINDS THE CIVIL-LEGAL CONSEQUENCES GIVES RISE TO LEGAL CONSEQUENCES FOR WHICH THE DECISION OF THE MEETING SENT TO ALL PERSONS ENTITLED TO PARTICIPATE IN THE MEETING (PARTICIPANTS OF A LEGAL ENTITY, THE CO-OWNERS, CREDITORS IN BANKRUPTCY AND OTHER PARTIES TO THE LEGAL COMMUNITY) AS WELL AS TO OTHER PERSONS IF IT IS ESTABLISHED BY LAW OR FOLLOWS FROM THE SUBSTANCE OF THE RELATIONSHIP.

    In paragraph 103 of the DECISION of PLENUM of the SUPREME COURT of the RUSSIAN FEDERATION FROM JUNE 23, 2015 No. 25, «ABOUT APPLICATION by COURTS of CERTAIN PROVISIONS of SECTION I of the CIVIL code of the RUSSIAN FEDERATION» it is EXPLAINED THAT UNDER the DECISIONS of the MEETING are the DECISIONS of a CIVIL COMMUNITY, that IS, a CERTAIN group of PERSONS VESTED with the AUTHORITY to MAKE service DECISIONS, WITH WHICH the LAW BINDS CIVIL LEGAL EFFECTS BINDING on ALL PERSONS ENTITLED to PARTICIPATE IN SUCH MEETING AND TO OTHER PERSONS IF IT is ESTABLISHED by LAW OR FOLLOWS FROM the substance of the RELATIONSHIP.
    FROM THE ABOVE LEGAL NORMS AND INTERPRETATIONS, IT FOLLOWS THAT ONE OF THE PREREQUISITES FOR RECOGNITION OF THE DECISION OF THE MEETING THE BASIS OF ORIGIN, CHANGE OR TERMINATION OF CIVIL RIGHTS AND OBLIGATIONS IS THE EXISTENCE OF THE LAW OF GUIDANCE ON CIVIL LEGAL EFFECTS BINDING ON ALL ENTITLED TO PARTICIPATE IN SUCH MEETING INDIVIDUALS.

    A COMPREHENSIVE LIST OF MANAGEMENT BODIES OF THE HOUSING COOPERATIVE, INCLUDING A GENERAL MEETING OF MEMBERS OF HOUSING COOPERATIVE CONFERENCE, IF THE NUMBER OF PARTICIPANTS OF THE GENERAL MEETING OF THE MEMBERS OF THE HOUSING COOPERATIVE OVER FIFTY AND IT IS PROVIDED BY STATUTE OF THE HOUSING COOPERATIVE AND THE HOUSING COOPERATIVE BOARD AND CHAIRMAN OF THE BOARD OF THE HOUSING COOPERATIVE, IS CONTAINED IN ART. 115 HOUSING CODE.

    THE GENERAL MEETING OF OWNERS OF THE NAMED LIST IS NOT SPECIFIED, THEREFORE THE DECISION OF THE GENERAL MEETING OF OWNERS CANNOT BE REGARDED AS ENTAILING CIVIL CONSEQUENCES OF THE DECISIONS OF THE BODY OF THE HOUSING COOPERATIVE AS A BODY ENTITLED BY LAW TO THE DECISIONS LEADING TO THESE CONSEQUENCES.

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