Responsibility of the parties under a social tenancy agreement
Responsibility of the landlord of residential premises under a social tenancy agreement. According to Art. 66 of the Housing Code of the Russian Federation, a landlord of residential premises under a social tenancy agreement who does not fulfill the duties provided for by the housing legislation and the social tenancy agreement of residential premises bears responsibility as provided by law.
The basis for the landlord's liability under a social tenancy agreement is his failure to fulfill the legal obligations provided for him by housing legislation or a social tenancy agreement. Liability can only arise if the relevant act (action or inaction) contains elements of an offense.
The Code of Administrative Offenses of the Russian Federation provides for administrative liability for violation of the rules for the maintenance and repair of residential buildings and (or) residential premises. According to Art. 7.22 of the Code of Administrative Offenses of the Russian Federation, violation by persons responsible for the maintenance of residential buildings and (or) residential premises, the rules for the maintenance and repair of residential buildings and (or) residential premises, or the procedure and rules for declaring them unsuitable for permanent residence and transferring them to non-residential premises, as well as the conversion of residential premises houses and (or) residential premises without the consent of the tenant (owner), if the re-equipment significantly changes the conditions of use of the residential house and (or) residential premises, entails the imposition of an administrative fine on officials in the amount of 40 to 50 times the minimum wage; for legal entities - from 400 to 500 times the minimum wage.
The subjects of the offense in question are officials and other persons and legal entities (including those entrusted with the functions of managing the housing stock) responsible for the maintenance of residential buildings and (or) residential premises.
The subjective side consists of illegal actions (inaction), expressed in violation of: rules for the maintenance of residential buildings and (or) residential premises; rules for their repair; rules for recognizing these objects as unsuitable for permanent residence and transferring them to non-residential premises. The subjective side can also be expressed in such an illegal action as the refurbishment of residential buildings and (or) residential premises without the consent of the tenant (owner), if the refurbishment significantly changes the conditions of use of the residential building and (or) residential premises.
From the subjective side, violations of the rules for the maintenance and repair of residential buildings and (or) residential premises can be committed both intentionally and through negligence, and the re-equipment of these objects without the consent of the tenant (owner) - only intentionally.
Civil measures may be applied in the event of failure or improper fulfillment by the landlord of a residential premises under a social tenancy agreement of obligations to timely carry out major repairs of the rented residential premises, common property in an apartment building and devices located in the residential premises and intended for the provision of utilities. In this case, according to Part 2 of Art. 66 of the Housing Code of the Russian Federation, the tenant, at his choice, has the right to demand from the landlord:
- reducing fees for the use of occupied residential premises, common property in an apartment building;
- or reimbursement of their expenses for eliminating deficiencies in residential premises and (or) common property in an apartment building;
- or compensation for losses caused by improper performance or failure to fulfill the specified obligations of the lessor.
Responsibility of the tenant of residential premises under a social tenancy agreement (Article 68 of the Housing Code of the Russian Federation). A tenant of a residential premises under a social tenancy agreement who fails to fulfill the duties provided for by the housing legislation and the social tenancy agreement of residential premises bears responsibility as provided by law. In particular, we are talking about the termination of a social tenancy agreement (Article 83 of the Housing Code of the Russian Federation) and, as a consequence, eviction without the provision of another living space.
Eviction from residential premises occupied under a social tenancy agreement without the provision of other residential premises. Current legislation provides for eviction without the provision of other residential premises, either as a sanction (liability) for improper performance of housing duties and other guilty behavior of the tenant (members of his family), or in order to provide the landlord with the opportunity to use the premises for a special purpose.
Article 91 of the Housing Code of the Russian Federation establishes the procedure for eviction of a tenant and (or) members of his family living with him from a residential premises without providing another residential premises. This provides for a warning mechanism before the start of the eviction procedure.
If the tenant and (or) members of his family living with him use the residential premises for other purposes, systematically violate the rights and legitimate interests of neighbors or mismanage the residential premises, allowing it to be destroyed, the landlord is obliged to warn the tenant and members of his family about the need to eliminate the violations . If these violations entail the destruction of the residential premises, the landlord also has the right to assign the tenant and his family members a reasonable period to eliminate these violations. If the tenant of the residential premises and (or) members of his family living with him, after warning the landlord, do not eliminate these violations, the guilty citizens, at the request of the landlord or other interested parties, are evicted in court without providing another residential premises.
Without the provision of other residential premises, citizens deprived of parental rights may be evicted from their residential premises if the cohabitation of these citizens with children in respect of whom they are deprived of parental rights is recognized by the court as impossible.
The ability to carry out eviction is achieved only if preventive measures and public influence are ineffective. The application of such a sanction as eviction without the provision of other housing for these actions is possible if it is proven that they were systematic, i.e. repeated repeatedly, and were also guilty, i.e. were committed intentionally or due to gross negligence. In addition, it must be established that preventive measures and social influence were taken against violators of the rental agreement, legal and moral norms, which were unsuccessful.
Responsibility of the tenant's family members. Family members of the tenant of a residential premises under a social tenancy agreement have equal rights and obligations with the tenant. Capable family members of the tenant of a residential premises under a social tenancy agreement are jointly and severally liable with the tenant for the obligations arising from the social tenancy agreement (Part 2 of Article 69 of the Housing Code of the Russian Federation). Citizens who have reached the age of 18 or were married before this age, as well as minors over the age of 16 who have undergone the emancipation procedure (Article 27 of the Civil Code of the Russian Federation) are fully capable.
In case of joint liability of debtors (for example, the tenant and each of the capable members of his family living together with the tenant in the premises provided to him), the creditor has the right to demand performance both from all debtors jointly and from any of them separately, both in full and in terms of debt. A creditor who has not received full satisfaction from one of the joint and several debtors has the right to demand what was not received from the remaining such debtors. Joint and several debtors remain obligated until the obligation is fulfilled in full (Article 323 of the Civil Code of the Russian Federation).
In accordance with Art. 325 of the Civil Code of the Russian Federation, the fulfillment of a joint and several obligation in full by one of the debtors releases the remaining debtors from fulfillment by the creditor. Unless otherwise follows from the relations between joint and several debtors, then: a) the debtor who has fulfilled a joint and several obligation has the right of recourse against the remaining debtors in equal shares, minus the share falling on himself; b) what is not paid by one of the joint and several debtors to the debtor who has fulfilled the joint and several obligation falls in equal shares on this debtor and on the other debtors.
Article 66. “Housing Code of the Russian Federation” dated December 29, 2004 N 188-FZ (as amended on April 30, 2021)
1. The commented article deals with the responsibility of only one of the parties to the social tenancy agreement - the landlord. His liability may be administrative or civil.
Administrative liability is provided for in Art. 6.4 of the Code of the Russian Federation on Administrative Offenses “Violation of sanitary and epidemiological requirements for the operation of residential premises and public premises, buildings, structures and transport”, according to which violation of sanitary and epidemiological requirements for the operation of residential premises and public premises, buildings, structures and transport entails the imposition of an administrative a fine on citizens in the amount of five hundred to one thousand rubles; for officials - from one thousand to two thousand rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from one thousand to two thousand rubles or administrative suspension of activities for a period of up to ninety days; for legal entities - from ten thousand to twenty thousand rubles or administrative suspension of activities for a period of up to ninety days.
You can also point to Art. 7.22 of the Code of the Russian Federation on Administrative Offenses “Violation of the rules for the maintenance and repair of residential buildings and (or) residential premises”, according to which violation by persons responsible for the maintenance of residential buildings and (or) residential premises of the rules for the maintenance and repair of residential buildings and (or) residential premises or the procedure and rules for recognizing them as unsuitable for permanent residence and transferring them to non-residential premises, as well as reconstruction and (or) redevelopment of residential buildings and (or) residential premises without the consent of the tenant (owner), if the reconstruction and (or) redevelopment significantly change the conditions use of a residential building and (or) residential premises shall entail the imposition of an administrative fine on officials in the amount of four thousand to five thousand rubles; for legal entities - from forty thousand to fifty thousand rubles.
2. Failure to fulfill or improper fulfillment of obligations to carry out major repairs of residential premises, as well as the common property of the house, within the established period, entails liability for the landlord under Part 2 of the commented article. This liability may include specific sanctions specified therein, which are civil in nature.
It seems that the list of these sanctions is exhaustive and other forms of civil liability are not applicable in this case.
For major repairs, see commentary to Section IX. For the common property of the house, see the commentary to Chapter 6.
S.P. Grishaev
“ARTICLE-BY-ARTICLE COMMENTARY TO THE HOUSING CODE OF THE RUSSIAN FEDERATION”
2018
Responsibility of the owner of residential premises and members of his family
If the owner of a residential premises uses it for other purposes, systematically violates the rights and interests of neighbors, or mismanages the housing, allowing it to be destroyed, the local government body may warn the owner about the need to eliminate the violations, and if they lead to the destruction of the premises, also assign the owner a proportionate period for renovation of the premises. If the owner, after a warning, continues to violate the rights and interests of neighbors or uses the residential premises for other purposes, or fails to carry out the necessary repairs without good reason, the court, at the request of a local government body, may decide to sell such residential premises at public auction with payment to the owner of the proceeds from the sale. minus the costs of executing a court decision (Article 293 of the Civil Code of the Russian Federation).
The issues of liability of the owner of residential premises and members of his family are addressed in Art. 31 Housing Code of the Russian Federation. Just as under a social tenancy agreement, as a general rule, capable family members of the owner of a residential premises bear joint and several liability with the owner for the obligations arising from the use of this residential premises. An exception can only be established by agreement between the owner and his family members.
The specified legal regime also applies to a former family member of the owner using residential premises on the basis of a court decision, since he has the rights, duties and responsibilities provided for family members. Consequently, liability for obligations arising from the use of residential premises is assigned only to capable persons, i.e. if former family members of the owner are incapacitated or have limited legal capacity, then they will not bear joint and several liability with the owner for the obligations arising from the use of the residential premises.
A citizen who is not a member of the family of the owner of the residential premises, using the residential premises on the basis of an agreement with the owner of this premises, has rights, bears duties and responsibilities in accordance with the terms of such agreement. Since the Housing Code of the Russian Federation does not establish the form of such an agreement, it can be concluded both orally (Article 159 of the Civil Code of the Russian Federation) and in writing (both in simple and notarial form - Articles 160-163 of the Civil Code of the Russian Federation) .
Responsibility for unauthorized reconstruction and unauthorized redevelopment of residential premises
The consequences of unauthorized reconstruction and (or) unauthorized redevelopment of residential premises are provided for in Art. 29 Housing Code of the Russian Federation.
Unauthorized reconstruction and (or) redevelopment of residential premises carried out in the absence of a basis provided for by housing legislation (Part 6 of Article 26 of the Housing Code of the Russian Federation), i.e. document on approval of these actions, issued by the authorized body, or in violation of the reconstruction and (or) redevelopment project, submitted in accordance with clause 3, part 2 of art. 26 Housing Code of the Russian Federation.
A person who unauthorizedly rearranges and (or) replans a residential premises bears the responsibility provided for by law.
The legislation provides for a number of unfavorable legal consequences for persons who have unauthorizedly carried out reconstruction and (or) redevelopment of residential premises. So, in Art. 7.21 of the Code of Administrative Offenses of the Russian Federation establishes liability for violation of the rules for the use of residential premises, which can be expressed, in particular, in the unauthorized re-equipment of residential buildings and (or) residential premises (Part 1 of Article 7.21) or in the unauthorized redevelopment of residential premises in apartment buildings (Part. 2 Article 7.21). Actions for unauthorized re-equipment and redevelopment of residential and non-residential premises can be qualified by law enforcement authorities not only under this article, but also under Art. 19.1 Code of Administrative Offenses of the Russian Federation as arbitrariness.
In addition, in Art. 7.22 of the Code of Administrative Offenses of the Russian Federation provides for liability for the refurbishment of residential buildings and (or) residential premises without the consent of the tenant (owner), if the refurbishment significantly changes the conditions of use of the residential building and (or) residential premises.
In addition to administrative liability for unauthorized reconstruction and (or) redevelopment of residential premises, civil measures may be applied to persons guilty of these violations - the owner of the residential premises, which was unauthorized reorganization and (or) redevelopment, or the tenant of such residential premises under a social tenancy agreement, he is obliged to bring such residential premises to their previous condition within a reasonable time and in the manner established by the body carrying out the approval (Part 3 of Article 29 of the Housing Code of the Russian Federation).
Consequently, the subject of the above liability can be not only the owner of the premises, but also the tenant under a social tenancy agreement.
Based on a court decision, residential premises can be preserved in a rebuilt and (or) redesigned state, if this does not violate the rights and legitimate interests of citizens or does not create a threat to their life or health (Part 4 of Article 29 of the Housing Code of the Russian Federation).
If the relevant residential premises are not restored to their previous condition within the specified period in the manner established by the body carrying out the approval, the court at the request of this body, provided that the decision provided for in Part 4 of Art. 29 of the Housing Code of the Russian Federation, makes a decision:
1) in relation to the owner - on the sale of such residential premises at public auction with payment to the owner of the proceeds from the sale of such residential premises minus the costs of executing a court decision with the imposition on the new owner of such residential premises of the obligation to bring it to its previous condition;
2) in relation to the tenant of such residential premises under a social tenancy agreement - on the termination of this agreement with the imposition on the owner of such residential premises, who was the lessor under the specified agreement, of the obligation to bring such residential premises to its previous condition.
The body carrying out the approval, for the new owner of a residential premises that has not been brought to its previous condition, or for the owner of such residential premises who was the lessor under a terminated lease agreement, sets a new deadline for bringing such residential premises to its previous condition. If such residential premises are not restored to their previous condition within the specified period and in the manner previously established by the body carrying out the approval, such residential premises are subject to sale at public auction.
Commentary on Article 66 of the RF Housing Code
1. The basis for the liability of the landlord under a social tenancy agreement is the failure of the landlord to fulfill any of his legal obligations provided for by housing legislation or a social tenancy agreement (if the relevant act (action or inaction) contains elements of an offense).
In this part, the Code contains a reference rule according to which the lessor bears responsibility “provided by law.” This refers, in particular, to the legislation on administrative offenses. For example, the Code of Administrative Offenses of the Russian Federation provides for administrative liability for violation of the rules for the maintenance and repair of residential buildings and (or) residential premises (Article 7.22), violation of standards for providing the population with utilities (Article 7.23).
2. If the landlord does not fulfill such legal obligations as timely major repairs of the rented residential premises, common property in an apartment building, devices located in the residential premises intended for the provision of public services, then the Code gives the tenant rights, the implementation of which will entail negative consequences for the landlord civil legal consequences of a property nature. In such cases, the tenant has the right, at his own discretion, to present to the landlord any of the requirements specified in Part 2 of the commented article.
Liability under a share participation agreement in housing construction
The general rule on liability for non-fulfillment or improper fulfillment of obligations is set out in Art. 10 of the Federal Law “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts” dated December 30, 2004 N 214-FZ (hereinafter referred to as the Law), according to which the party that violated its obligations is obliged to pay the other the party for the penalties (fines, penalties) provided for by the Law and the contract and compensate in full for the losses caused in excess of the penalty.
The investor's responsibility for failure to meet payment deadlines is to pay the developer a penalty (penalty) in an amount not exceeding 1/150 of the refinancing rate of the Central Bank of the Russian Federation in effect on the day the obligation is fulfilled, of the amount of the overdue payment for each day of delay. The specified interest is accrued from the day the participant in shared construction contributes funds or part of the funds towards the contract price until the day they are returned by the developer to the participant in shared construction.
The responsibility of the developer for violating the deadline for transferring the relevant object to the participant in shared construction consists of paying the participant in shared construction a penalty (penalty) in the amount of 1/75 of the refinancing rate of the Central Bank of the Russian Federation, valid on the day of fulfillment of the obligation, of the contract price for each day of delay.
Despite the fact that the Law extends its effect to legal relations regarding participation in shared construction, if a construction permit was received by the developer after the Law came into force, it is still possible to hold liable the developer who received the permit earlier than the specified period. Judicial practice proceeds from the fact that, despite the fact that in order to purchase residential premises, citizens enter into agreements with organizations, both provided for and not provided for by law and other legal acts (contracts, equity participation in construction, joint activities, purchase of an apartment by paid agreement, including with the labor participation of a citizen-shareholder, purchase and sale of an apartment with installment payment, gratuitous transfer of an apartment into ownership, assignment of a claim (cession), etc.), the content of the listed agreements (subject, terms of participation and mutual rights and obligations parties) is almost the same: the citizen (investor, shareholder) is charged with paying the actual cost of construction of residential premises, and the organization (investment and construction company, investment company, developer, customer, contractor, etc.) assumes the functions of the customer construction of a certain property (independently or with the help of third parties) with the obligation to transfer the ownership of the residential premises stipulated by the contract to the citizen upon completion of construction and commissioning of the house. The Supreme Court of the Russian Federation clarified that legislation on the protection of consumer rights should be applied to relations between citizens participating in construction and developers.
