Fencing the local area of an apartment building 2021 - residential, legality, fence, norms

According to current legislation, each multi-apartment building has its own adjacent territory. It is designed for the comfort of home residents, the arrangement of sports and children's playgrounds, recreation areas, parking lots and other infrastructure. And if earlier the municipal authorities and developers were in charge of the arrangement issues, today the initiative passes to the apartment owners.

One of the initiatives is the installation of fences in the local area to protect against strangers and restrict the passage of vehicles. Below we will consider the legal difficulties in resolving this issue, we will provide useful tips and instructions for action.

Position of the law

According to the law, the local area includes a house, a plot of land around an apartment building, as well as the property located on it. The owners of apartments and commercial real estate in the building act as property owners. A prerequisite for the local area is to comply with the current norms and design rules. A full definition of the term can be found in the Land Code of the Russian Federation (Article 36).

Apartment owners have the right to do the following:

Residents of neighboring houses have the right to demand in court to dismantle the fence installed around the apartment building

The homeowners' association of one of the apartment buildings in Bryansk installed a fence around the house with automatic gates and gates with intercoms, which residents of the neighboring apartment buildings did not like. The owners of the premises filed a lawsuit demanding that the fence be dismantled.

In the lawsuit, they indicated that the presence of the fence violates their rights: it was installed in non-compliance with building codes and regulations, without coordination with the municipality. In addition, the design limits access for emergency services to houses, and for plaintiffs – to the general transport and pedestrian network and other amenities.

The HOA noted in court that the plaintiffs did not follow the established procedure for pre-trial settlement of the dispute and did not have the right to act on behalf of the residents of neighboring houses, so their claim should not be considered.

The court of first instance rejected these arguments of the partnership, since the legislation does not provide for a pre-trial settlement procedure in relation to controversial legal relations, and the owners went to court in their own interests. Therefore, the case was considered and reached the appeal and even the Constitutional Court of the Russian Federation. Let's look at it in more detail.

Should the MA contain a land plot with undefined boundaries?
6927
0

Methods for fencing a site

According to the law, homeowners in a multi-storey building have the right to take measures aimed at protecting the local area from animals, strangers and foreign cars, as well as vehicles using the road as a bypass.

To avoid the problems discussed above, you can use fences that can have different purposes:

Complete access denial. There are two types of structures: lawn or stationary. In the first case, bushes are planted, thanks to which access to the territory is limited. The height of vegetation rarely exceeds 50-60 cm. Despite its external beauty, this fencing method is rarely used due to maintenance problems.

In the second case, fences made of stone or metal are used. The finished fence can have a height of up to 200 cm. Profiled sheets are often used, which have an affordable price and are easy to install. The height of the fence is agreed upon at a general meeting, taking into account the residents’ goals. If the goal is to close the area to outside traffic, you can install a fence up to 20-30 cm high.

High fences are rarely installed and are in demand among residents of luxury new buildings. An intercom is installed at the gates of such structures, and the entrance to the building is controlled by a concierge. Its task is to let residents of the house through, as well as other service providers.

Partial access blocking. A common situation is the installation of a barrier that prevents unauthorized cars from entering the local area. At the same time, people's access is not limited in any way. To install such a limiter, the consent of the residents of the house, as well as approval from emergency services, is required.
Restriction of access to part of the territory. In order not to fence the entire site, a decision is made to protect the playground, parking lot or other element of infrastructure. A common solution is to install a fence up to 2-3 meters high. Car tires can be used to save money.
Closing specific objects. Such fences are installed by utility services to restrict people’s access to any structure or area under repair. Such fences are temporary and are most often made of wood.

Most fences in the local area require official registration and approval. Violation of this rule entails dismantling the structure and administrative liability.

The fence installed on the land of a neighboring house must be dismantled

Considering the case materials, the trial judge pointed out that the disputed fence was installed by decision of the general meeting of owners of the house around which it was installed. This corresponds to clause 2.1. Part 2 Art. 44 Housing Code of the Russian Federation.

However, the right of the owner, at his own discretion, to perform any actions in relation to his property is directly dependent on their compliance with the law, as well as on whether they do not violate the rights and interests of other persons (Part 2 of Article 209 of the Civil Code of the Russian Federation).

The rules for landscaping the territory of a municipality are approved by its representative body (parts 1, 2, article 45.1 of the Federal Law of October 6, 2003 No. 131-FZ). According to clause 1.4 of the Methodological Recommendations, approved by order of the Ministry of Construction of the Russian Federation dated April 13, 2017 No. 711/pr, fencing (fences) are classified as landscaping elements.

In Bryansk, legal officials and citizens are obliged to carry out improvement of the city only on the basis of projects agreed upon with the city Department for Construction and Territory Development (clause 2.2 of the Rules for improvement, ensuring cleanliness of order in the territory of Bryansk, adopted by the decision of the Bryansk City Council of People's Deputies dated June 28 .2006 No. 460). When installing the controversial fence, as the judge indicated, the HOA did not comply with these requirements.

The court ordered an examination of the fence and boundaries of the land plot between the apartment buildings. It follows from the conclusion that the fence erected by the HOA violates the boundaries of the land plot of the house in which the apartments belonging to the plaintiffs are located. The disputed fence is partially located on the territory of a neighboring plot of land.

In accordance with clause 2, part 1, art. 60 of the Land Code of the Russian Federation, the violated right to a land plot is subject to restoration in the event of unauthorized occupation. As the examination showed, in order to eliminate the violation of the boundaries of the site under the apartment building, it is necessary to dismantle part of the controversial fence. The trial court agreed that the HOA was obligated to do this, but rejected arguments that the fence restricted access to the plaintiffs' residential premises for emergency services.

At the same time, as follows from the expert’s conclusion, it does not comply with urban planning requirements and fire safety standards and is equipped without taking into account the safety of the network of popular pedestrian routes. Therefore, the owners' association must dismantle the wicket and gates that impede the passage of people. The owners' claim was satisfied.

At what distance from MKD windows can benches and trash cans be installed?
16851
1

Who has the right to erect fences?

The adjacent territory includes the building itself, the land plot located near it and infrastructure facilities that are necessary to ensure the operation of this structure and the comfort of its residents. The owners of the land plot and property are considered to be the owners of the apartments in the building, therefore the decision to install fences in any shape or form is made only at a general meeting.

The consent of the apartment owners is drawn up in the form of a written protocol indicating the names, signatures, date of the event and other data. The legality of the decision made depends on the number of participants. The higher the percentage of approval, the higher the legitimacy of the protocol. The minimum threshold is 2/3 of the total number of residents. Lack of approval and unauthorized installation of fences is considered illegal.

Installation of fences in the local area

Design fencing in accordance with existing laws and regulations, taking into account the interests of all owners of the high-rise building.
If the requirements of paragraph 2 are not met, the fence is subject to immediate demolition. However, you don’t need to do this yourself; there are special bodies for this.

The owner of a private house can choose any type of fencing from a wide variety of materials that is financially accessible to him. He does not need to obtain permission or coordinate his decision with government services, much less ask permission from his neighbors, because the land plot is his full property.

We recommend reading: Receiving the insurance portion of the deceased’s pension

How to install a fence legally

To avoid negative consequences, demolition and administrative penalties, you must follow the instructions for installing a fence in the local area.

Algorithm of actions:

Gathering of apartment owners to discuss the issue. After the meeting, minutes are drawn up indicating all participants. People who approve the innovation sign the document. During the meetings, a person is also determined who will contact the authorized structures and coordinate the project.
Submitting an application for land surveying, protocol and necessary papers to the authorized body.
Waiting for the results of calculating the area and indicating the boundaries of the storage area.
Registration of the site in Rosreestr.

This is the first stage that allows you to determine the boundaries of the site and register it as property. In the case of new buildings that were put into operation after 2005, the necessary documents must be available. After processing the request, representatives of Rosreestr issue the following documents:

cadastral passport and extract with information about turning points
an act indicating the turning points of the local area.

This documentation is used to determine the location of the fence and to avoid going beyond the legally established area.

A fence around an apartment building, what is needed to put it up

Several sections of ours were removed, and apparently they tried to sell them for scrap. I managed to defend what was mine. .And the fence is always in the way of someone - the rods are bent, sections at welding points are often broken by daredevils, etc. What do you think? - property is always an eyesore for the proletariat))

We recommend reading: From what year are insurance premiums paid in the Russian Federation?

In this case, I told about the fence how I personally acted in 2005. If you can offer a better option, I will consider it a gift and will accept you as a manager in the future. I would like to simultaneously inform you that over the 6 years of operation, no one has had any complaints about the fence (bullies don’t count)..

Approval issue

Discussion of the issue of installing fences between apartment owners is only the first stage. Restricting free access requires coordination with other authorities, namely the law enforcement agencies of the Ministry of Emergency Situations, the State Traffic Safety Inspectorate, the ambulance service and the department dealing with issues of urban planning and architecture. Obtaining approval from the mentioned structures is inevitable, and especially if we are talking about installing a barrier or a stationary fence. If any of the emergency services refuses approval, the constructed structure may be demolished by order of a judicial authority.

To obtain a positive decision on installing a barrier, the following requirements must be met:

Installing a security booth next to the fence and hiring personnel to be on duty around the clock.
Attaching a sign with telephone numbers of citizens who can quickly open the barrier using a remote control or using a key.

As for fencing small areas, for example, a parking lot, playground or other infrastructure, the approval of 67% of apartment owners or more is required. If any of the owners ignored the fees, he will have to comply with the general decision (if the required number of votes was received).

Coordination

After preparation, the plan for all work must be agreed upon with such services as:

Ministry of Emergency Situations, namely with the local administration of this service.
The police represented by the leadership of the local department.
With the ambulance service that operates in the area.
With architectural and construction type inspection.

If residents do not take this condition seriously and do not coordinate their actions with the above services, then one of them in the future may be offended and file a lawsuit in court.

If the residents fail to prove that the work was coordinated, then the judge will undoubtedly side with the plaintiff and decide to liquidate all previously completed work. In other words, everything that was built will be automatically demolished by court decision, and the money that was collected from the tenant will be thrown away.

As a result, we can conclude that no one prohibits residents from fencing the territory themselves and all their actions will be absolutely legal if they adhere to a certain procedure, which is prescribed above.

This is important to know: Is it possible to live in non-residential premises?

The services mentioned above can go to court not only because they are offended.

The fact is that they also have their own responsibilities and in order for them to be able to fulfill them fully in a fenced area, approval is required.

What to do in case of refusal

It is foolish to assume that emergency services will be delighted with the innovation and will immediately give permission to install fencing for the local area. Authorized bodies often take the innovation with hostility and refuse to approve the project. In this case, it is necessary to support the application with official documents from Rosreestr and justify the need to install a particular fence. If emergency services are guaranteed unhindered access to the territory, there will be no problems with approval.

How to challenge an “extra” fence

The installation of unapproved fences or other types of fencing in the local area is prohibited by law. If this rule is violated, apartment owners can protect their own interests.

The algorithm of actions is as follows:

Determining the legality of an object. To do this, documents are requested confirming the possibility of including the adjacent plot in the cadastral plan. It is necessary to study the minutes of the meeting, which must contain more than 2/3 votes in favor. If this condition is not met, the design is illegal.
Resolution of the issue at a meeting. If an illegal building is identified, the apartment owners gather again to decide on further actions - legalization or liquidation.
If a decision is made to remove the object, an application is submitted to the Administration, which indicates the address and cadastre number and a photo of the barrier. The document specifies the requirement to remove the illegal object.

If a positive decision is made, the structure will be dismantled within a month.

What awaits violators?

Unauthorized installation of fences is illegal. If at the meeting there were no 2/3 votes for the installation of the fence, or the design was not agreed upon by the services mentioned above, violators will face consequences. The reason is obvious. Deviation from the requirements of the law can lead to tragedy. For example, the ambulance will not be able to respond to the call, and the person will die. Or a fire will start in one of the apartments, and the fire brigade will not get to the house to extinguish the fire.

In most cases, the problem is solved by demolishing the illegal structure, but administrative punishment in the form of a fine is possible. In this case, all residents who make an unlawful decision bear responsibility.

Cost of issue and possible difficulties

During the meeting, you need to discuss the costs that are expected when arranging the local area and installing fences. On average, the price of 1 linear meter of fence in 2021 is 1,700-1,900 rubles. The installation of swing gates will require another 35-40 thousand rubles. If you make a sliding structure, it will cost even more - from 55 thousand rubles or more.

When calculating costs, the type of work, the length of the fence, the type of barrier and the number of gates are taken into account. It is also necessary to take into account the employee’s remuneration when organizing round-the-clock duty. Additional costs include installation of an intercom.

Once the costs are determined, another challenge arises—trying to raise money for the innovation. Apartment owners who refused to install fences do not agree to spend money. There is no provision in the law that would force owners to contribute funds. Even if a person took part financially in the collection, he must be given a key or told the intercom code.

According to the requirements of the Civil Code of the Russian Federation (Article 209), the owner of an apartment has the right to dispose of personal property, and creating obstacles is considered a violation of the law. Owners of commercial establishments based on the first floors of the building may oppose the installation of a fence. It is not beneficial for them to limit the flow of people, because this scares away new customers. In this case, the owner of the store or salon can sue and demand the demolition of the fence. To avoid conflict, you can agree and leave free access to commercial facilities.