Non-residential premises

Definition of “room”

Article 130 of the Civil Code of the Russian Federation identifies such types of real estate as residential and non-residential premises as independent objects of civil rights.

There is no definition of the concept of premises in the Civil Code of the Russian Federation. In clause 14, part 2, art. 2 of the Federal Law of December 30, 2009 N 384-FZ “Technical Regulations on the Safety of Buildings and Structures” contains the following definition:

room - part of the volume of a building or structure that has a specific purpose and is limited by building structures.

Initially, the definition of the concept of “premises” was given in the now repealed Federal Law of June 15, 1996 N 72-FZ “On Homeowners’ Associations”:

premises - a unit of a real estate complex (part of a residential building, other real estate object associated with a residential building), allocated in kind, intended for independent use for residential, non-residential and other purposes, owned by citizens or legal entities, as well as the Russian Federation, constituent entities Russian Federation and municipalities (Article 1 of the Federal Law of June 15, 1996 N 72-FZ).

It should be noted that this definition applied only to premises located in residential buildings or related real estate. Despite this circumstance, the definition that was given in the Federal Law “On Homeowners' Associations” most fully and correctly reflected the concept of premises and its meaning is suitable not only for premises located in residential buildings, but also for all other premises.

The Federal Law “On Homeowners' Associations” lost force on March 1, 2005 due to the adoption of Federal Law dated December 29, 2004 N 189-FZ “On the entry into force of the Housing Code of the Russian Federation”, and therefore its application for the official interpretation of the concept premises or for use as legislation applied by analogy is no longer permissible.

Concept and specifics of non-residential premises

Bibliographic description:

Reshetov, F. F. Concept and specificity of non-residential premises / F. F. Reshetov.
— Text: immediate // Current issues of legal sciences: materials of the I International. scientific conf. (Chelyabinsk, November 2012). - Chelyabinsk: Two Komsomol members, 2012. - P. 50-55. — URL: https://moluch.ru/conf/law/archive/43/2592/ (access date: 05/29/2021). With the development of market relations, non-residential premises are increasingly involved in civil circulation. All objects of civil law are differentiated into three groups: fully negotiable; with limited turnover; withdrawn from circulation. Most things belong to the first group; This, in fact, is the meaning of civil law, which regulates legal relations mainly regarding negotiable objects. Non-residential premises are negotiable real estate assets. Each of the real estate objects is characterized by special consumer properties. So, for example, non-residential premises as an object of real estate are characterized by: a variety of purposes (industrial, public, economic), a special form of functioning, duration of economic turnover, etc.

To understand the specifics of non-residential premises as real estate, it is necessary to consider first of all the concept of premises itself. The definition of “premises” was in the Federal Law of June 15, 1996 No. 72-FZ “On Homeowners’ Associations”: a premises is a unit of a real estate complex (part of a residential building, another property connected with a residential building), allocated in kind, intended for independent use for residential or other purposes, owned by citizens or legal entities, as well as the Russian Federation, constituent entities of the Russian Federation and municipal organizations. As can be seen from this definition, premises were understood to be part of a residential building, or another piece of real estate associated with a residential building. However, most non-residential premises are not connected to residential buildings. In this connection, this definition does not seem entirely correct.

A broader understanding of the term “premises” is contained in Federal Law No. 122-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with it.” According to this law, premises (residential and non-residential) are “an object that is part of buildings and structures” (Clause 2, Part 6, Article 12).

At the same time, the point of view on the problem of defining a room as an independent unit, and not part of a building (structure), remains very interesting. For example, there are buildings that consist of only one room. In this case, the two objects coincide spatially. S.P. Grishaev also highlights external extensions to the building, which have independent economic significance. Such extensions can be either independent objects of law or part of a building or structure. Cases when buildings are adjacent to each other and have a common wall should be distinguished from such extensions. In the latter case, we are talking about completely independent real estate objects [7].

The authors of the concept of the development of civil legislation on real estate present their argument in defense of this argument [27, pp. 48-54]. In their opinion, non-residential premises cannot be considered as part of a building, since buildings themselves are indivisible things and, accordingly, parts of the building cannot be the subject of transactions. Thus, the owner of a building who wants to make a transaction with non-residential premises must allocate this premises and register ownership of it. A way out, according to the authors of the Concept, may be common ownership of the building and legislative consolidation of a share in the right corresponding to the size of the non-residential premises.

However, the following points need to be taken into account here. Firstly, the existence of the premises is impossible outside of any building or structure. Even if the building consists of one premises, the object of law will be the building, and the premises will only be a component of this building. Secondly, the conclusion that non-residential premises cannot be considered as part of a building, since buildings themselves are indivisible things and, accordingly, parts of the building cannot be the subject of transactions, contradicts current legislation. Within the meaning of Art. 288 of the Civil Code of the Russian Federation, apartments in an apartment building transferred in accordance with housing legislation to non-residential premises may be the subject of transactions. Meanwhile, these non-residential premises are physically part of the building.

The point of view of I.A. seems interesting. Drozdov, who defines a room as a space limited by a three-dimensional contour that forms a real estate object and has an entrance [8, p.49]. At the same time, the author identifies three characteristics of a room: immovable character; a space limited by a three-dimensional contour, since it is impossible to imagine a room without a roof, walls and floor; the presence of an entrance, otherwise the room cannot be distinguished from a niche.

However, this definition does not contain the sign of a premises as part of a building (structure). In this connection, taking advantage of the incompleteness of the formulation, this definition can be applied to the concept of a building.

The main provisions of the system of regulatory documents in construction define a room as a space inside a building that has a specific functional purpose and is delimited by building structures (walls, floors, ceilings) [2].

As regards the concept of non-residential premises directly, it should be noted that at present there is no single generally accepted theory about non-residential premises as an independent object of civil and economic turnover. Although research in recent years has significantly expanded our understanding of non-residential premises. It should be noted that not one of the concepts of non-residential premises does not claim to be exclusive.

The legislation also does not contain the concept of non-residential premises, but at the same time, the Housing Code of the Russian Federation of December 29, 2004 No. 188-FZ (hereinafter referred to as the RF Housing Code) formulates the concept of residential premises - this is an isolated premises that is real estate and is suitable for permanent residence of citizens (meets established sanitary and technical rules and regulations, other legal requirements). The Civil Code of the Russian Federation contains a provision on the right of ownership of residential premises and allows the transfer of residential premises to non-residential premises (paragraph 2, paragraph 3, Article 288 of the Civil Code of the Russian Federation), and also considers the building and structure as a single object. In technical accounting, the following definition of non-residential premises is accepted - this is the functional part of a building, structure, separated from other functional parts by physical boundaries that do not have breaks. However, in practice, the subject of transactions is precisely the parts of buildings and structures corresponding to communications [26, p. 75].

The legislator has repeatedly used the concept of non-residential premises, extending it only to premises located in residential buildings. Previously Art. 1 of the Law of the Russian Federation of December 24, 1992 “On the Fundamentals of Federal Housing Policy”, non-residential premises were considered not just as some kind of functional opposite of residential premises, but as an integral part of residential buildings of any type of housing stock (along with residential premises, structures and elements of the infrastructure of the housing sector and etc.).

Regional Law of Moscow dated July 3, 2002 No. 38 “On state control over the accounting and use of non-residential facilities in Moscow” considers non-residential premises as a non-residential facility. Clause 2 of Article 2 of this Law provides a definition of non-residential facilities, which are understood as: a) detached non-residential buildings, structures, structures and their parts; b) non-residential premises in residential buildings, including built-in and attached premises and parts thereof, with the exception of premises classified as housing stock.

Decree of the Government of the Russian Federation dated February 18, 1998 No. 219 [1] approved the “Rules for maintaining a unified state register of rights to real estate and transactions with it,” which establish that residential and non-residential premises (along with others) are components of buildings and structures (subsection 13). That is, by non-residential premises this regulatory legal act refers to those premises that are parts of a larger whole, which is a building (structure), both residential and non-residential. The specified ratio of the whole (building, structure) and its part (premises) is emphasized by such premises details to be included in the register, such as floor, room numbers on the floor plan, purpose. Unlike the Law on State Registration, the mentioned normative act does not focus on the object characteristics of premises, but on the volumetric-spatial and planning combination and their placement in buildings and structures.

It should be noted that the Rules consider non-residential premises as independent real estate objects (clause 23 of the Resolution) and a separate type of real estate (clause 24 of the Resolution).

In accordance with the point of view of Yu.G. Zharikov and M.G. Masevich “non-residential premises include buildings, structures, structures and other premises not included in the housing stock and intended for production, administrative, social, educational, cultural and other purposes” [9]. Essentially the same definition is proposed by T.D. Appak: “non-residential premises are proposed to be understood as a separate building (structure) or part thereof, intended for production, trade, administrative and other purposes not related to its use for personal and domestic purposes, meeting the relevant construction, technical and fire safety standards, and also registered in the prescribed manner” [3, p.8].

E.O. Trubachev proposes to distinguish between non-residential premises as a kind of really existing construction object that has a material embodiment, and non-residential premises as an object of civil rights [23, p. 74].

Thus, there is no single approach to defining the concept of non-residential premises. At the same time, two opposing views have emerged in science on the problem of defining non-residential premises as an independent object of civil rights. The first rejects the possibility of recognizing non-residential premises as independent objects of civil rights [10, p.56; 16, pp.170-193; 19]. At least two reasons allow us to draw this conclusion. Firstly, in Art. 130 of the Civil Code of the Russian Federation, premises are not listed among real estate objects, however, they should undoubtedly be classified as real estate, which is particularly noted in the above-mentioned draft on amendments to the Civil Code of the Russian Federation. This is due to the fact that they have the most important feature of real estate - a strong connection with the land (although such a connection is not carried out directly, but indirectly - through buildings and structures). Secondly, premises are not just parts of buildings, but parts that do not exist outside buildings and without buildings; it is impossible to prove the independence of non-residential premises [13, p. 376]. The second view of the problem, on the contrary, recognizes non-residential premises as objects of civil rights [4; 24; 28] and indicates the active use of these objects in civil circulation.

In the science of civil law there is a third point of view. The premises are an independent object of law along with the building: non-residential premises are an independent “narrow” concept [5, p. 50]. In this case, the emphasis is on the close relationship between the non-residential premises and the building in which the non-residential premises are located. However, a problem arises: if the premises located in the building are an object of law, then is the building itself an object? Despite different points of view, each of the above concepts shows the relevance of identifying non-residential premises as an independent object of civil rights. In connection with the above, the development of the concept of non-residential premises will be useful in scientific and law enforcement aspects. The simplest definition that can be given is: non-residential premises are premises intended for purposes not related to the residence of citizens. The key word in this definition is premises.

As can be seen from these definitions, the legal concept of non-residential premises is based on and actually includes the technical component of the definition. Of course, one cannot ignore the “construction” specifics of non-residential premises. Because this is the only way to accurately spatially delimit non-residential premises from another object. In our opinion, when formulating the definition of non-residential premises, it is necessary to take into account its specifics as an object of real estate and an object of civil rights.

According to the point of view of A.A. Makovskaya, the Civil Code of the Russian Federation did not regulate non-residential premises as independent objects of real estate due to the fact that “the provisions of the Civil Code of the Russian Federation were developed based on the fact that the building is a single and indivisible object of civil law, which could be located in a common (shared or joint ) property of several persons on the terms determined by the Code, but which, in principle, could not be divided into several independent objects. And therefore, non-residential premises in the building, being, in fact, part of this indivisible object (unlike residential premises), generally should not have acted as an independent object of civil law transactions. However, as a result of the privatization that took place in Russia, non-residential premises were involved in civil circulation precisely as independent objects” [14, p. 19].

According to G.F. Shershenevich, many houses are by their nature indivisible, since when divided, their individual parts, deprived of the necessary accessories (kitchens, cellars, barns), will not meet the purpose for which the house exists. However, according to the author, the opposite situation is also possible - a spacious house can have numerous services and extensions, so that when divided, each part would be equipped with everything necessary. G.F. Shershenevich also notes that an increase in the necessary supplies can be undertaken deliberately in view of the proposed division. Consequently, as the author believes, “it should be recognized that essentially a house should be assumed to be a separate thing, but that this assumption can be refuted by proof of the impossibility of dividing a given house while preserving the economic significance of the whole for the parts” [25].

A similar position was held by D.I. Meyer, defining a house (including a yard) as an indivisible thing, paying attention to some exceptions [15].

K.P. Pobedonostsev considered the house to be a single (indivisible) thing on the basis of its economic and legal integrity. On the contrary, “if we allow the distribution of a house among several owners by room, then the ownership rights of each will be incomplete, since without the consent of others they will not have the right to undertake construction and repairs in the walls that are physically no longer subject to division” [17].

V.N. Litovkin, commenting on the provisions of Article 650 of the Civil Code of the Russian Federation, writes: “Non-residential buildings (non-residential premises): industrial, production, commercial, administrative (office), medical and sanitary, cultural and educational, public utility, warehouse, educational and for other purposes use." The author gives a broad interpretation of the concept of non-residential premises, including not only premises as part of buildings and structures, but also non-residential buildings themselves.

Considering the problems of non-residential premises as objects of civil rights, V.A. Lapach considered “it is necessary to establish in parallel a generic and specific relationship between the concepts of non-residential objects (genus) and non-residential premises (type), as well as between a part (room) and the whole (building, structure),” and further the author [12, p. 8]. The author understood non-residential premises, first of all, as parts of a residential apartment building that are in the regime of common shared ownership.

O.Yu. Skvortsov, highlighting non-residential premises as independent objects of civil rights, emphasizes their derivative, man-made nature. Moreover, among the derived objects, the author also identifies buildings and structures [18]. S.P. Grishaev also classifies non-residential premises as objects of real and obligatory rights, referring to established law enforcement practice in Russia [6]. I. Israfilov, agreeing with this position, also draws attention to the fact that non-residential premises can mean both the building as a whole and part of it [11].

We can conclude that the legislator, law enforcer and civil law science in this case are faced with a difficult task: how to correlate one of the conceptual provisions of civil law about the indivisibility and individual certainty of an immovable thing, which is a building, with the possibility (and even necessity) of a relatively free , independent of the legal fate of the building, participation in the circulation of its “technical” part - non-residential premises as an independent immovable object of civil rights. If we follow the logic of the dogmatic rules of real estate transactions, the seller (who is also the owner of the building) is obliged to first “dismember” the building into two new objects: the alienated premises and the “remaining” real estate, and then register the rights to them accordingly. In our opinion, it is necessary to highlight the point of view of V.V. Chubarova, which we consider quite justified. The author points out that the building as an object of real estate in this situation should cease, giving way to two new real estate: premises and a building without this premises. Technically, the building exists, but legally it does not, since civil law does not recognize the possibility of registering rights to an object other than those specified in the law.

At the same time, according to the point of view of E.A. Sukhanov, the recognition of premises, both residential and non-residential, as independent objects of civil rights leads to the legal disappearance of the building (structure, house) in which the premises in question are located. At the same time, the house as an object of property rights ceases to exist from the moment individual premises and common property of the house emerge as objects of civil rights [21, pp. 20-21]. The author also considers the question of what is the real embodiment of the object if the common walls of adjacent rooms horizontally are common to their owners, as well as the ceiling and floor for adjacent rooms vertically [22]. E.A. Sukhanov proposes the introduction of common shared ownership of the object as a whole (with the allocation of appropriate premises for the use of individual owners), considering individual ownership of parts of this object impossible. Otherwise, logically insoluble disputes arise about the ownership of public places. At the same time, they relate to the possibility of recognizing property rights over the corresponding objects, and not obligations, because the latter (for example, in the form of a lease) can have any separate premises as their object, since they are transferred for temporary use on appropriate terms.

However, in our opinion, since premises (residential or non-residential) as such actually represent the internal component or internal area of ​​any building and structure, it is important to legally establish the specific boundaries of premises that are in common ownership (adjacent walls in an apartment building, floor, ceiling), but the premises itself, being an internal part, can be the object of exclusive property rights, without affecting the legal rights and interests of other owners.

When defining the concept of non-residential premises, it is necessary to take into account the turnover of the given object, type characteristics, single economic purpose, industry affiliation, which will allow identifying non-residential premises as a legal object. We consider it advisable to use the dictionary definition of the concept of non-residential structure, since it is the term structure that allows the most correct description of the non-residential premises themselves. A non-residential building is a separate building intended for use not as housing, but as a warehouse, production, retail, utility room.

Therefore, in our opinion, non-residential premises can be defined as follows: non-residential premises are an individually separate structure, used for a single economic purpose, divided depending on the location and purpose of use into types (functional purpose).

The identification of the category of non-residential premises as an independent object of civil legal relations entails the establishment of a certain legal regime, that is, the possibility or impossibility of performing certain actions (transactions) with non-residential premises that entail a legal result. The regime determines acceptable ways to determine rights to non-residential premises, the scope and content of these rights, and the limits of their implementation.

As for the general regulation in legislation of the legal regime of buildings and non-residential premises located in them, in our opinion it would be correct to agree with E.A. Sukhanov is that we are talking about “a special legal regime, which... should be regulated by special legislation, and not by the general rules of the Civil Code” [20], which, in our opinion, may be facilitated by the adoption of a special law on non-residential premises in the future.

Agreeing with the opinion of E.A. Sukhanov, we also believe that the Civil Code of the Russian Federation should generally establish the legal status of non-residential premises as objects of property turnover (real estate objects, civil rights, property rights, etc.). It seems correct, agreeing with the draft amendments to the Civil Code of the Russian Federation for 2011-2012, in Article 130 of the Civil Code of the Russian Federation, non-residential premises are identified as an independent object of real estate .

Literature:

1. Decree of the Government of the Russian Federation of February 18, 1998 No. 219.
2. System of regulatory documents in construction. Basic provisions. SNiP 10-01-94. M.: GP TsPP, 1994.
3. Appak T.D. Legal regulation of state registration of rights to real estate and transactions with it: Using the example of a lease agreement for non-residential premises in Moscow: Abstract of thesis. ...candidate of legal sciences. M.2004. P.8.
4. Braginsky M.I., Vitryansky V.V. Contract law. Agreements on the transfer of property. Book 2. 4th edition M.: Statute 2002.
5. Vitryansky V.V. Rent of certain types of property // Economy and law. 1999. No. 10. Appendix P. 50.
6. Grishaev S.P. Buildings and structures as real estate objects.
7. Grishaev S.P. Non-residential premises as objects of civil law // Citizen and Law, No. 1, January 2006.
8. Drozdov I.A. Maintenance of residential premises: civil regulation. – M.: Statute, 2006.
9. Zharikov Yu.G., Masevich M.G. The concept of real estate in Russia and foreign countries // Law and Economics. 1996. No. 5-6.
10. Zinchenko S., Korkh S. Property issues: legislation and practice // Economy and Law 2000. No. 6.
11. Israfilov I. Rent of non-residential premises // Economy and Law. 1997. No. 10.
12. Lapach V.A. Non-residential premises as objects of civil rights. Legislation. 2003. No. 4.
13. Lapach V.A. System of objects of civil rights: Theory and judicial practice. St. Petersburg: Legal, 2002.
14. Makovskaya A.A. Duration of the lease agreement for non-residential premises and state registration of the agreement // Economy and Law. 2000. No. 11. Appendix.
15. Meyer D.I. Russian civil law. Petrograd: Printing house "Engine", 1914.
16. Piskov P.I. Civil legal regime of buildings and structures. Dis... cand. legal Sci. M., 2003.
17. Pobedonostsev K.P. Civil law course. In 3 volumes. St. Petersburg: Synodal Printing House, 1896.
18. Skvortsov O.Yu. Real estate transactions in commercial circulation (educational and practical manual). M.: Wolters Kluwer, 2006.
19. Sklovsky K.I. Some problems of the right to non-residential premises // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2003. No. 8.
20. Sukhanov E.A. Property rights and rights to intangible objects // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2007. No. 7(176).
21. Sukhanov E.A. Some problems of civil law // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2007. N 7.
22. Sukhanov E.A. On the concept and types of real rights in Russian civil law // Journal of Russian Law. 2006. No. 12.
23. Trubachev E.O. On the independence of non-residential premises as an object of civil rights // Bulletin of Omsk University. Series "Law". 2005 No. 2 (3).
24. Chubarov V.V. Legal regime of non-residential premises as an independent property // Law and Economics. 2003. No. 3.
25. Shershenevich G.F. Textbook of Russian civil law. M.: Publishing house of the Bashmakov brothers, 1911.
26. Yaroshenko K.B. Lease agreement and relations with financial authorities // Law and Economics. 1998. No. 10.
27. Concept for the development of civil legislation on real estate / Council under the President of the Russian Federation for the codification and improvement of civil legislation; Research Center for Private Law; Under general ed. V.V. Vitryansky, O.M. Kozyr, A.A. Makovskaya. – M.: “Statute”, 2004.
28. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 1, 2000 No. 53 “On state registration of lease agreements for non-residential premises” // Information and legal system “Garant”.

Residential and non-residential premises

residential building , a part of a residential building, an apartment, a part of an apartment, a room as residential premises (Article 16 of the Housing Code of the Russian Federation).

Residential premises are isolated premises that are real estate and are suitable for permanent residence of citizens (meets established sanitary and technical rules and regulations, and other legal requirements) (Part 2 of Article 15 of the Housing Code of the Russian Federation).

The requirements for residential premises, the procedure for recognizing residential premises as suitable for living in and the grounds on which residential premises are recognized as unsuitable for living in are established by the Regulations on recognizing premises as residential premises, residential premises as unsuitable for living in and an apartment building as unsafe and subject to demolition or reconstruction, approved by Government Resolution Russian Federation dated January 28, 2006 N 47.

the concept of non-residential premises . At the same time, based on the definition of residential premises, non-residential premises should be understood as premises that are real estate and are intended for use for purposes not related to living in this premises (administrative, educational, industrial, medical, etc. premises) .

Considering that a premises is a part of a building or structure that is limited by building structures and has a specific purpose, any premises that is not residential, that is, not intended for permanent residence of citizens, is considered non-residential.

Non-residential premises in an apartment building - premises in an apartment building, indicated in the design or technical documentation for an apartment building or in the electronic passport of an apartment building, which is not a residential premises and is not included in the common property of the owners of premises in an apartment building... (paragraph 12 of paragraph 2 Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 N 354).

Apartment as a type of living space

This is another part of the housing stock, including specialized ones. Based on the concept, an apartment is a separate room in a multi-apartment building, which may include one or more rooms.

In addition, these premises also include auxiliary buildings (bathrooms, kitchens, etc.).

Another type of home concept is a room. This is the concept of a part of a house or apartment necessary directly for a person’s residence. In this case, such a room must be isolated, that is, not accessible.

Rooms may also belong to specialized housing stock (for example, a room in a dormitory).

Signs of premises for cadastral registration purposes

To register for cadastral registration, the premises must simultaneously have two characteristics: isolation and isolation. The absence of at least one of these signs is a legal basis for refusal to carry out cadastral registration.

Isolation as a sign of a room is a spatial characteristic indicating that part of a building or structure is limited by building structures. At the same time isolation is a functional characteristic, reflecting the fact that the premises have an independent purpose, a separate entrance, and are not used for access to another premises, access to the common property of the owners of the premises in the building, and utilities.

For example, it is legal to refuse to register a premises for cadastral registration if this premises is used for access to another premises that has an independent purpose. This legal position is set out in paragraph 4 of the “Review of judicial practice in cases related to challenging the refusal to carry out cadastral registration”; approved By the Presidium of the Supreme Court of the Russian Federation on November 30, 2016. See the full text of paragraph 4 of the Review in the attachment below .

Types of premises in multi-apartment residential buildings

Depending on the purpose of the premises located in a multi-apartment residential building , they are distinguished (clauses 3.20 – 3.24 “SP 54.13330.2016. Code of rules. Residential multi-apartment buildings. Updated edition of SNiP 31-01-2003”):

• residential premises - an isolated premises, which is real estate and is suitable for permanent residence of citizens (meets established sanitary and technical rules and regulations, and other legal requirements).
• auxiliary room - a room for providing communication, sanitary, technical and household needs, including: kitchen or kitchen-niche, front room, bathroom or shower room, restroom or combined bathroom, pantry or utility built-in closet, laundry room, heat generator room and etc.
• common premises - non-residential premises for communication services of more than one residential and (or) non-residential premises, can be located horizontally along the floors (corridor, gallery), vertically between floors (staircase, staircase-elevator unit).
• public premises - a premises intended for carrying out activities in it to serve the residents of the house, residents of the adjacent residential area or for public and business activities, with an operating mode that does not have a harmful impact on living conditions in a residential building, having a separate entrance (entrances) with adjacent territory and (or) from a residential building, as well as other premises permitted for placement in residential buildings by Rospotrebnadzor authorities.
• technical premises - a non-residential premises intended for maintenance of in-house engineering systems, with limited access permitted to specialists of the operation services and specialists of the security and rescue services in emergency cases.

Definition, concept and classification of residential and non-residential real estate: what is it?

One of the main concepts in this area is the definition of “real estate”.
Part 1 art. 130 of the Civil Code of the Russian Federation classifies as real estate land plots, subsoil plots and everything that is inextricably linked with the land, that is, objects whose movement without damage to them is not possible. This standard includes buildings, structures, and unfinished construction projects. The exact definition of the concepts “building” and “structure” has been established.

• A building is the result of construction, which is a volumetric system with above-ground and (or) underground parts, including premises, engineering support networks and engineering support systems for living and (or) activities of people, production location, product storage , says sub. 6 clause 2 of the above Regulations.
• A structure is a result of construction, which is a volumetric, planar or linear construction system, having ground, above-ground and (or) underground parts, consisting of load-bearing and enclosing building structures, for performing various production processes, storing products, moving people and goods, it is said in sub. 23 clause 2 art. 2 Regulations.

The concept of the term “structure” remains open. Analyzing the entire regulatory framework governing the interaction of these terms “building” and “structure”, the term “structure” can be characterized as follows:

• A structure is any structure made by construction, inextricably linked to the earth's surface.
• A room is a part of the volume of a building or structure that has a specific purpose and is limited by building structures, in accordance with subclause. 14 paragraph 2 art. 2 Regulations.

All objects of this type of real estate can be classified on several grounds (Table No. 1).

Table No. 1:

Objects of this type of real estate also have a number of certain characteristics (Table No. 2).

Table No. 2:

Common features for both types of premises:

• They are real estate.
• An inextricable connection with the land plot on which they are located.
• Isolation.
• Durability.
• Uniqueness.
• Variety.
• Materiality.
• Cost form.
• Inability to move in space.

Signs of non-residential premises

1. Isolation and materiality.
Like a dwelling - an apartment, a house, a room, a part of a house or an apartment, a non-residential premises is an isolated object. The material boundaries (contours) are the walls, ceiling surface, and floor. An entrance is required. 2. Objects are classified as real estate. This characteristic is present in Federal Law No. 122-FZ (as amended on April 6, 2015). The document emphasizes: rights to non-residential premises are subject to state registration, as are rights to housing, buildings, enterprises, structures, and plots.

3. Real estate is included in buildings. The sign allows you to determine the difference between a non-residential premises and a building and, at the same time, a close spatial connection with it.

4. The connection of the premises as an immovable thing with the site is manifested in the registration of property at an address that indicates a specific land territory, as well as in the impossibility of moving the building.

5. The premises are a non-residential property. The totality of real estate of this type includes isolated objects located both in non-residential buildings and in residential buildings. An exception in the latter case is real estate classified as housing stock in the prescribed manner.

6. The functional purpose is dual:

• real estate is not used for permanent residence of individuals;
• intended for public, industrial purposes.

Differences in real estate by purpose

Non-residential spaces are objects for different purposes. Belonging to a certain type limits the exercise of rights to the premises and affects its civil legal circulation. Classification becomes important when calculating the rent for a rental property. The list is not closed.

Among public premises the following objects stand out:

• educational: areas of kindergartens, universities, schools;
• healthcare: isolated spaces of clinics, hospitals, ambulance stations, medical posts;
• trade, public catering: areas are part of shops, food and manufactured goods, property complexes that produce and sell food products, restaurants, canteens, cafes;
• administrative and managerial: offices;
• public utility services: studio space, repair shops, dry cleaners, control centers, funeral service enterprises;
• recreation and entertainment: cinema halls, night clubs;
• other real estate.

Industrial non-residential premises are divided by industry into objects:

• industry (fuel, petrochemical, chemical);
• metallurgy, non-ferrous and ferrous;
• electric power industry, etc.

Real estate of urban utilities is also distinguished by purpose: isolated heat, gas, water and electricity supply facilities. Isolated areas of post offices (for example, post office) are allocated.

Types of premises in single-family residential buildings

Depending on the purpose of the premises located in a single-apartment residential building , they are distinguished (clauses 3.13 – 3.15 “SP 55.13330.2016. Code of rules. Single-apartment residential buildings. SNiP 31-02-2001”):

• residential premises - an isolated premises, which is real estate and is suitable for permanent residence of citizens (meets established sanitary and technical rules and regulations, and other legal requirements).
• public premises - premises built into a residential building or attached to it, intended for individual entrepreneurial and other public activities of people living in the house.
• parking space at the house - a built-in, attached or built-in-attached room for storing and (or) parking cars, not equipped for their repair and (or) maintenance, except for the simplest devices - sinks, inspection pits, overpasses.

Residential buildings as types of residential premises

Based on the concept, a residential building is a building of an individually defined nature, which includes rooms and auxiliary premises. Ancillary premises are designed for residents to satisfy their everyday needs (we are talking about corridors, storage rooms, bathrooms, verandas, and so on).

It is worth noting that residential buildings may also belong to a specialized type of housing stock (in this case they will belong to government agencies or a municipality). Please note: an apartment building as a whole cannot be classified as a residential premises, since it also includes non-residential parts (for example, stairwells).

The concept and types of premises in other regulations

premises are understood as buildings and structures, regardless of the form of ownership, intended for the temporary residence of people or the placement of material assets for production or other official purposes (clause 3 of the note to Article 158 of the Criminal Code of the Russian Federation).

Premises for temporary accommodation and residence - premises used for temporary accommodation and residence of individuals (apartment, room in an apartment, private house, cottage (parts thereof), hotel room, room in a dormitory and other premises) (paragraph 38 of article 346.27 Tax Code of the Russian Federation).

Premises with large numbers of people : halls and foyers of theaters, cinemas, boardrooms, meetings, lecture halls, restaurants, lobbies, cash registers, production facilities and other premises with an area of ​​50 m2 or more with permanent or temporary stay of people (except in emergency situations) more than 1 person per 1 m2. (clause 3.71 “SP 5.13130.2009. Fire protection systems. Automatic fire alarm and fire extinguishing installations. Design standards and rules”).

A room with permanent occupancy of people is a room in which people are expected to stay continuously for more than two hours (Article 2 of the Federal Law of December 30, 2009 N 384-FZ (as amended on July 2, 2013) “Technical Regulations on the Safety of Buildings and Structures” ).

Transfer of residential premises to non-residential and non-residential to residential

The legislation provides for the procedure and conditions for transferring residential premises to non-residential premises and non-residential premises to residential premises.

According to Part 1 of Art. 22 of the Housing Code of the Russian Federation, the transfer of residential premises to non-residential premises and non-residential premises to residential premises is permitted subject to compliance with the requirements of the Housing Code of the Russian Federation and the legislation on urban planning activities.

The transfer of residential premises to non-residential premises and non-residential premises to residential premises is carried out by a local government body (Part 1 of Article 23 of the Housing Code of the Russian Federation).

P. 5 part 2 tbsp. 23 Housing Code of the Russian Federation stipulates that for the transfer of residential premises to non-residential premises or non-residential premises to residential premises, the owner of the corresponding premises or a person authorized by him to the body carrying out the transfer of premises at the location of the transferred premises submits a reconstruction project prepared and executed in the prescribed manner and (or) redevelopment of the transferred premises (if redevelopment and (or) redevelopment are required to ensure the use of such premises as residential or non-residential premises).