Letter D23i-501 Regarding the recognition of premises as isolated or separate from other premises in a building or structure

Clause 34 of Part 1 of Art. 26 of Federal Law No. 218-FZ “On State Registration of Real Estate” it is established that one of the grounds for suspension and refusal to carry out cadastral registration and registration of rights to real estate is the absence of signs of isolation and separation of the premises from other premises in the building or structure. Despite the direct indication in the law, the concepts of isolation and isolation are still not legally enshrined, and their description can only be made from an analysis of the norms of various regulatory legal acts.

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In the article we will tell you when and why signs of isolation and isolation are used, in which documents they need to be indicated, and how to register isolated and separate premises for cadastral registration.

Description of isolation and isolation

Federal Law No. 218-FZ connects the concept of isolation and isolation only with premises in buildings and structures; these definitions do not apply to other real estate objects. The term “premises” is enshrined in Federal Law No. 384-FZ - this is a part of the volume of a building or structure that has a specific purpose and is limited by building structures.

Signs of isolation and isolation are checked when registering new premises.

Thus, this description includes residential and non-residential premises located in buildings and structures that have an independent purpose. The concept of isolation and separation of premises can be indirectly derived from the analysis of a number of independent rules of law:

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• isolation is characterized by the limitation of the room from the rest of the building due to building structures and the presence of a separate entrance;
• isolation implies the limitation of the premises from the rest of the building or structure by building structures and the presence of one exit to common areas or directly to the street.

Building structures are understood as parts of a building and structure that perform load-bearing, enclosing and aesthetic functions. Thus, an isolated and (or) separate room can be delimited from the total volume of the building by floors (floor or ceiling) and walls of various functional purposes (main walls or partitions recorded in technical documentation).

Non-insulated part of the room

Category “Non-residential premises”

They are used for offices, located in business centers, administrative or residential buildings, shopping and entertainment complexes. It is not necessary to have communications in offices, but they must have solid walls. Office owners can use common communications designed for all premises located in the building.

With the development of market relations, the concept of “non-residential premises” has become widely used in real estate transactions. However, in Russian legislation there is no clear definition of this concept. In this regard, citizens have many difficulties and questions.

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Legally and in simple language

The concept of isolation is indirectly contained in Art. 16 of the Housing Code of the Russian Federation in relation to the characteristics of the apartment. An apartment is a separate room in a multi-apartment building, providing direct access to the common areas of the house and consisting of one or more rooms.

The concept of isolation follows from the provisions of Art. 673 Civil Code of the Russian Federation and Art. 15 of the Housing Code of the Russian Federation, which recognizes as a residential premises an isolated premises that belongs to real estate and is suitable for permanent residence.

Despite the complexity of defining these terms, the following characteristic distinctive features of isolated and separate premises can be established:

• a separate residential or non-residential premises has only the sign of limitation by building structures, although Art. 16 of the RF Housing Code provides that an apartment, as a separate premises, must have a separate exit to the common property of the building or to the street;
• when isolated, there is always a separate exit that can provide access to only one room (a typical example is a separate room that has access to the common areas of the apartment or only to one living space).

Note! Isolation and separation can be established in relation to the same premises. An isolated room may be part of a separate facility (a typical example is that two or more isolated rooms are part of one apartment).

If an apartment has a room with two or more entrances (exits), it cannot be considered isolated (a typical example is passage rooms in apartments). An exception will be cases when all but one exit will provide access to auxiliary premises.

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Expert commentary . Although the isolation and separation of premises is not directly regulated by law, it is these two concepts that make it possible to classify premises as real estate. If these signs are absent from the premises, it is not subject to cadastral registration, and independent rights to it cannot be registered. In such cases, registration of rights to the object will be carried out, which will include non-isolated and non-separated premises. To evaluate your property, send questions to our email.

Represent an isolated room

RESIDENTIAL PREMISES as objects of ownership Read more: ARISE AND TERMINATION OF OWNERSHIP RIGHTS TO RESIDENTIAL PREMISES

1. be an isolated room.

Isolated premises are residential buildings, part of a residential building, apartment, part of an apartment. In this case, an isolated room may consist of one or several rooms.

Part of a room or an adjacent room cannot be considered an isolated room. In this case, for example, an apartment can be divided into several isolated rooms by redevelopment in the manner prescribed by current legislation (in accordance with technical and sanitary requirements). Premises created as a result of independent (not approved) housing redevelopment are not isolated;

2. be real estate, i.e. an object, the movement of which without disproportionate damage to its purpose is impossible (Part 1 of Article 130 of the Civil Code of the Russian Federation).

In accordance with paragraph 1 of Art. 130 of the Civil Code of the Russian Federation, immovable things (real estate, real estate) include land plots, subsoil plots, isolated water bodies and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible, including forests, perennial plantings, buildings, structures, unfinished construction objects.

Residential premises are immovable property by their nature (physically immovable), and have a sign of a strong connection with the land;

3. be suitable for permanent residence of citizens, i.e. comply with established sanitary and technical rules and regulations, and other legal requirements.

1.2 Legal regime of residential premises

Residential premises as objects of ownership received a special legal regime. Being real estate, they, in addition, now have a strictly designated purpose. This approach of the law is due to the continuing shortage of housing and its special social significance. The latter received constitutional recognition in Art. 40 of the Constitution of the Russian Federation, which proclaimed the right of citizens to housing and obligated state authorities and local governments to create the necessary conditions for the implementation of this right.

The Civil Code established that residential premises are intended for the residence of citizens (paragraph 1, paragraph 2, article 288), and the exercise of the owner’s rights to own, use and dispose of such real estate objects must be carried out in accordance with the intended purpose of these objects (paragraph 1, article 288).

Thus, all residential premises, without exception, have received a strictly intended purpose, and all owners of housing stock, residential buildings and individual residential premises no longer have the right to use them solely at their own discretion, in violation of the intended purpose of these objects. Consequently, it is not allowed to rent out residential premises for various offices, offices, warehouses, as well as their sale for these purposes without first transferring these premises to the non-residential category, that is, without changing their intended purpose (which, in turn, requires appropriate re-registration them with the authorities that record this type of real estate). Such restrictions in the exercise of ownership of real estate apply to all owners - citizens, including owners of residential buildings and privatized apartments, legal entities, including commercial and public organizations, as well as state and municipal (public law) entities. In this sense, housing is the same special object of property rights as a land plot, the free use of which solely at the discretion of the owner is not allowed by any modern legal order.

Under residential premises, housing legislation understands not only residential (including multi-apartment) houses and cottages (dachas) adapted for permanent residence, but also separate apartments and other residential premises (for example, separate isolated rooms in apartments) registered in this capacity in government bodies that keep records of this type of real estate (usually territorial technical inventory bureaus - BTI), including official and departmental ones, as well as “specialized houses” and premises serving similar purposes - dormitories, hotels, shelters, houses of flexible stock, special houses for single elderly citizens, boarding homes for the disabled, veterans, etc. Emphasizing these restrictions, clause 2 of Art. 288 of the Civil Code specifically notes that a citizen who is the owner of a residential building, privatized apartment or other residential premises has the right to use it for personal residence and residence of members of his family. Accordingly, any alienation of this object, as well as its rental for temporary use to other persons, must be carried out taking into account the intended purpose established for it by law. Therefore, any owner of residential premises has the right, in accordance with paragraph. 3 p. 2 art. 288 of the Civil Code to rent it out for residence (permanent or temporary) to other citizens on the basis of an appropriate agreement (hire or lease), regulated by the norms of housing legislation.

At the same time, homeowners do not have the right to locate any enterprises, institutions and organizations in the residential premises they own without first registering the transfer of such premises to non-residential premises in accordance with the rules of housing legislation, as well as to place any industrial production in the residential buildings they own ( clause 3 of article 288). The last restriction, as follows from the text of the law, applies to the residential building as a whole, and not just the residential premises located in it. This excludes the placement of various types of production even in the basements or attics of residential buildings, since in addition to violating the intended purpose of this object, the absence of such a prohibition would lead to the creation of significant inconvenience for citizens using the corresponding residential premises for their intended purpose.

Violation of the legal provisions for the proper exercise of ownership of residential premises entails adverse consequences provided for in Art. 293 Civil Code. In accordance with its rules, the use of residential premises for other purposes, or the systematic violation by the owner of such premises of the rights and interests of neighbors, or the mismanagement of the owner’s housing may become the basis for a court to make a decision on the sale of such residential premises at public auction at the request of a local government body. , that is, the forced alienation of real estate belonging to the owner.

Set out in Part 1 of Art. 293 situations refer to either the owner’s already begun (continuing) use of his residential premises for other purposes than the intended purpose, or a systematic (repeated) violation of the rights and interests of his neighbors (creating a “condition of impossibility of living together”), or the beginning of the destruction of housing as a result of mismanagement of him. In all three of these cases, the homeowner must be previously warned by the local government about the need to eliminate the violations committed by him (including by establishing a proportionate, reasonable period for these purposes, including the necessary repairs of the destroyed premises) and only after that he is exposed to the risk of judicial seizure and forced sale of a property owned by him.

Rules Art. 288 and 293 of the Civil Code represent a form of public law intervention in the private affairs of the owner, which is allowed in paragraph. 2 p. 2 art. 1 in exceptional cases established by law in public and not private interests. Taking this into account, the law limits all homeowners in the exercise of their property rights, establishing its target boundaries. At the same time, it provides for two additional restrictions, the first of which applies only to homeowners in an apartment building, and the second - to citizen homeowners.

The legal regime of a residential apartment located in an apartment building as a real estate object, along with its intended purpose, also has the peculiarity that it inevitably includes the right to the common property of the house - basements, attics, landings and other common premises, load-bearing structures of the house, elevators, risers, other mechanical, electrical, sanitary and other equipment located both outside and inside an apartment or other residential premises, if it serves more than one apartment or residential premises (clause 1 of Article 290), since without this kind objects, normal use of the living space itself is impossible.

The Code establishes two important rules regarding the legal regime of the listed common property of apartment owners in a multi-apartment residential building. Firstly, common shared ownership of the named owners is established for this property (Article 289). Their shares in the right to such property are proportional to the size of the apartments (residential premises) they own, or rather, their total area.

This right is regulated by the general rules of civil law on the right of common shared ownership, however, with some exceptions. The main one is to prohibit the owner of an apartment or other housing from alienating his share in the right to the common property of a residential building and performing other actions entailing the transfer of this share, separately from the right of ownership of housing (Clause 2 of Article 290 of the Civil Code of the Russian Federation). This is the second important provision that determines the specifics of the legal regime of common property of homeowners in an apartment building. In essence, this means that the corresponding share in the ownership of the specified common property always follows the fate of the ownership of housing, being inextricably linked with it.

It should be borne in mind that these rules apply only to homeowners, and not to their employers or tenants. If, for example, only part of the apartments in a municipal residential building is privatized, relations of common shared ownership will arise with the participation of apartment owners, that is, citizens who have privatized their apartments, and the corresponding municipality represented by its housing management body.

To ensure the operation of an apartment building and the proper use of common property, all apartment owners must create a partnership (Clause 1, Article 291 of the Civil Code of the Russian Federation). Such a partnership becomes a legal entity - a non-profit organization. At its core, it can be considered as a consumer cooperative, however, clause 2 of Art. 291 of the Civil Code of the Russian Federation considers it an independent type of non-profit organization, operating on the basis of a special law, which fully complies with the requirements of paragraph 3 of Art. 50 Civil Code of the Russian Federation.

An important feature of housing as an object of citizens’ property rights is the existence of special, independent rights to this object not only by the owner himself, but also by members of his family living together with him (Article 292 of the Civil Code of the Russian Federation).

The Code recognizes for them “the right to use this premises under the conditions provided for by housing legislation,” which makes it possible to consider this right as an obligatory lease-type right. Like any title (legal) owners, the subjects of this right (family members of the owner of the property living together with him) receive the right to its protection, including the requirement to eliminate any violations of it, from any person, including the owner himself (clause 3 of Art. 292 of the Civil Code of the Russian Federation).

By virtue of the rule of paragraph 2 of Art. 292 of the Civil Code of the Russian Federation, the transfer of ownership of housing in itself is not grounds for termination of the right to use this premises by family members of the previous owner who previously lived in this premises. In other words, this right, as it were, “burdens” such real estate, in principle following its fate, which brings it closer to property rights. In practice, this means that if the owner-citizen alienates or otherwise disposes of the housing he owns without the consent of his family members living with him, they continue to use the previous premises legally and the new acquirer (or other owner) will not be able to terminate their right. Thus, in this “right of use” the proprietary elements prevail over the obligatory ones, which gives grounds for the law to declare it a real right.

Moreover, if there are minors among the family members of such an owner, alienation of housing is permitted only with the prior consent of the guardianship and trusteeship authority (Clause 4 of Article 292 of the Civil Code of the Russian Federation), which, as is known, is called upon to monitor compliance with the rights and legitimate interests of minor citizens. Here, the homeowner is limited by law in his authority to dispose of the property he owns.

RESIDENTIAL PREMISES as objects of ownership Read more: ARISE AND TERMINATION OF OWNERSHIP RIGHTS TO RESIDENTIAL PREMISES

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Wording in Federal Law 218 and orders

Federal Law No. 218-FZ, which is the basic regulatory act in the field of real estate registration, contains only one reference to the terms isolation and isolation - in Article 26, which defines the grounds for suspending cadastral registration and registration of rights.

A number of by-laws contain indirect references and definitions of these concepts:

• Federal Law No. 218-FZ () contains a general definition of the signs of isolation and isolation;
• Order of the Ministry of Economic Development of the Russian Federation No. 953 () indicates the specifics of the cadastral engineer’s preparation of a technical plan, which must take into account the isolation and isolation of premises;
• Order of the Ministry of Land Construction dated August 4, 1998 No. 37 () contains the principles for determining separate residential and non-residential premises.

In addition, Letter No. 23i-501 of the Real Estate Department of the Ministry of Economic Development dated February 24, 2014 is important. This document is not of a normative nature, but contains a detailed analysis of legislation as of the date of preparation, allowing one to identify signs of isolation and isolation.

Expert commentary . Since the basis for cadastral registration is the technical plan, currently the key role in determining isolation and isolation belongs to the cadastral engineer. It is this specialist who will have to determine whether the premises have the indicated signs in order to reflect them in technical terms. ]Smart Way[/anchor] employs employees who have spent many days at the doors of the cadastral chamber, which makes it possible to almost instantly identify premises that comply with the rule of isolation and separation.

From one large room you can create several new ones. For this purpose, their isolation and separation is ensured.

What is the difference between a building and a room?

The terminology excludes the meaning of a building as buildings that lack internal space. It is incorrect to call overpasses, bridges, cooling towers, above-ground and underground structures, tunnels, and dams buildings. They relate to structures for technical and industrial purposes.

The premises are considered to be an integral part of any building. It implies an area in a building limited by ceilings and walls on all sides, with communications connected. Depending on the type of premises, there are two main states: residential and non-residential.

26 Jan 2021 etolaw 422

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Opinion of the Ministry of Economic Development on isolation and isolation

Letter No. 23i-501 from the Real Estate Department of the Ministry of Economic Development dated February 24, 2014 was prepared in response to a request from the Rosreestr service regarding the recognition of premises as isolated or separate from other premises in a building or structure. Let us note the key points on which the relevant department of the Ministry of Economic Development expressed its opinion:

• to be able to carry out the procedure for cadastral registration of residential premises, it is enough to establish the sign of isolation (for example, isolated rooms in apartments can be recognized as an independent piece of real estate);
• For cadastral registration of non-residential premises, it is necessary to establish a sign of isolation in accordance with technical rules and regulations.

This position is currently unofficial, since the Ministry of Construction of Russia refused to approve the Letter of the Real Estate Department of the Ministry of Economic Development dated February 24, 2014 No. 23i-501.

The Letter of the Ministry of Economic Development dated December 24, 2013 No. OG-D23-6667 deserves special attention, which contains the following important provisions:

• isolation of a premises means only the presence of walls (partitions), while isolation implies the ability to exclude access to the premises by the owners of other premises;
• isolation and isolation is determined by the cadastral engineer when performing cadastral work;
• walls and partitions are reflected on the floor plan or building plan when drawing up the technical plan of the room.

Let's analyze residential and non-residential premises or apartments, what is the difference

Thus, residential premises, in addition to the above features, are characterized by their suitability for permanent residence of citizens in it. In accordance with this criterion, the residential premises must be located in a residential area, it must be in good condition: all building structures must be operational, without any damage or destruction, so that their load-bearing capacity is not impaired.

Thus, we conclude that a premises is a unit of a real estate complex, a part of a building that is intended for independent use for residential and other purposes, owned by individuals, legal entities, the state or its subjects.

For residential and non-residential real estate

The advisory opinion, which is reflected in the Letter of the Real Estate Department of the Ministry of Economic Development dated February 24, 2014 No. 23i-501, contains a conclusion on possible cases of refusal to carry out cadastral registration and registration actions. According to the Department:

• if documents of a premises with the purpose of “residential” are submitted for cadastral registration, and this premises is isolated, but not isolated, the suspension and subsequent refusal of registration and registration will be legal;
• if similar procedures are carried out in relation to non-residential premises, the presence of only signs of isolation allows for cadastral registration and registration of rights to the object.

For non-residential premises, isolation is determined based on technical rules and regulations that must comply with Federal Law No. 384-FZ “Technical Regulations on the Safety of Buildings and Structures”, as well as the provisions of the Town Planning Code of the Russian Federation.

Isolation and isolation of premises in 2021. Questions to the expert

Konstantin M.

Expert in the field of certification, cadastre, real estate and design. Higher legal education, more than 10 years of work experience.

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Question to the expert

Which document confirms the isolation and isolation of the new premises? Can this be described in an object declaration?

Currently, declarations for real estate properties are not submitted. Signs of isolation and isolation can only be confirmed technically.

Can we independently draw up a technical plan for new premises, since its form is in Order No. 953?

No, technical plans can only be prepared by cadastral engineers. Other specialists and authorities cannot issue this document.

If we have allocated part of the premises for rent, do we also need to confirm the separation and isolation?

No, this is not necessary for part of the room. It can be put on temporary cadastral registration according to the contract and technical plan, and the construction of enclosing structures is not necessary.

How do I know that my premises have the required characteristics of a real estate property?

A description of the characteristics and features of the property will be made by a cadastral engineer when drawing up a technical plan. If the premises do not meet the criteria of a separate and isolated facility, this will also be indicated by the engineer.

What is the difference between residential and non-residential premises?

The elimination of these shortcomings is seen in combining the purpose of non-residential premises in two options. This association, on the one hand, will allow us to name the main purposes of the activity for which non-residential premises are intended, and on the other hand, due to the words “except for the purposes of residence (permanent residence) of citizens,” it will allow us to distinguish non-residential premises from residential ones.

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This understanding of the norm has led to the recognition in court of a number of lease agreements as unconcluded. Thus, in accordance with the Resolution of the Federal Arbitration Court of the West Siberian District of October 4, 2006 N F04-6380/2006 (26943-A46-38) under a lease agreement by one of the co-owners of an object located in common shared ownership (without the consent of the second owner and without determining the procedure for using the object between the co-owners) ½ of the non-residential premises was transferred. At the same time, the agreement did not contain data allowing to establish what part of the property was leased. The court considered that the parties did not agree on the condition of the object to be leased, and recognized the lease agreement for non-residential premises as not concluded. According to another Resolution of the Federal Arbitration Court of the East Siberian District dated December 27, 2000 N A33-5655/00-С2-Ф02-2773/00-С2, the court recognized the lease agreement for part of the non-residential premises as not concluded due to the fact that the agreement did not make it possible to definitely establish property subject to lease, since it did not contain diagrams, drawings, or explanations indicating the rental areas and their boundaries as attachments.

Opinion of the cadastral chamber and Rosreestr

In 2015, the Rosreestr service and the Federal State Budgetary Institution “Federal Cadastral Chamber” prepared an information letter on the issue of determining the signs of isolation of a premises by a cadastral engineer. Since the Letter of the Ministry of Economic Development dated December 24, 2013 No. OG-D23-6667 was used to prepare the recommendations, the Rosreestr authorities indicated the need to take into account the following circumstances:

• whether the walls (partitions) are building structures of the building (i.e. part of the building);
• Do the specified walls (partitions) and the material from which they are made provide the possibility of excluding access to such a room.

The essence of these recommendations was the inadmissibility of recognizing the isolation of premises if the room is divided by partitions made of material that cannot ensure the exclusion of access by unauthorized persons (for example, the presence of glass partitions will not allow recognizing the isolation of an isolated artificially created room).

Expert commentary . Legislative uncertainty in the concepts of isolation and isolation places additional responsibility on cadastral engineers, who will have to establish these signs when performing cadastral work. If a technical plan of the premises is submitted for cadastral registration to the Rosreestr authorities, the description of which does not reliably confirm isolation and isolation, a decision will be made to suspend the procedure. In this case, it may be necessary to carry out repeated cadastral work, otherwise the Rosreestr authority will refuse to register the premises for cadastral registration.

Changes in 2021

The cadastral registration procedure changed with the introduction of Federal Law No. 218-FZ. If we consider the composition of innovations related to the definition of isolation and isolation of premises, it is necessary to note the new rules for refusing to register an object and register rights to it:

• when considering received documents for accounting and registration, Rosreestr officials do not have the right to immediately make a decision to refuse to carry out these procedures; instead, a decision is made to suspend actions;
• If the grounds for suspension are not eliminated by the applicant, the Rosreestr service refuses to conduct cadastral registration and registration.

This innovation allows you to eliminate deficiencies in the submitted documents without the need to re-apply. For example, if, after the suspension of cadastral registration, the signs of isolation and isolation are properly recorded in technical terms, the procedure will continue on a general basis.

Problems for dividing premises and for registering parts of premises

Taking into account the analysis of regulatory legal acts regarding the signs of isolation and isolation of premises, the following nuances of cadastral registration of premises and their parts can be noted:

• rooms in a communal apartment can be taken into account as a single piece of real estate if they are adjacent and isolated from each other (this conclusion is contained in the Review of Judicial Practice approved by the Supreme Court of the Russian Federation on November 30, 2016);
• isolated rooms in a communal apartment, separated by common areas, cannot be registered in the cadastral register as a single object (the conclusion is contained in the specified Review of the Supreme Court of the Russian Federation);
• non-isolated residential premises, premises for auxiliary purposes, as well as part of the common property of the owners of an apartment building cannot be the subject of cadastral registration and registration of rights (removal is contained in the Letter of the Real Estate Department of the Ministry of Economic Development of February 24, 2014 No. 23i-501);
• The installation of partitions in a residential area does not mean the creation of a new property, since the classification of walls as building structures is of key importance for signs of isolation.

All these nuances must be taken into account by the cadastral engineer in the process of performing cadastral work and preparing a technical plan for the premises.

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Isolated and separate premises must have a separate exit to the common areas of the building or directly to the street.

What is the difference between an isolated premises and a non-residential one?

A residential premises is recognized as an isolated premises, which is real estate and is suitable for permanent residence of citizens (meets established sanitary and technical rules and standards, other legal requirements (Part 2 of Article 15 of the RF Housing Code), for example, fire safety, urban planning and technical. Please note Please note that the Housing Code of the Russian Federation considers residential only those premises that are suitable for permanent and not temporary residence.It should be borne in mind that the specified residential premises can be provided for both temporary and permanent use.

The intended purpose of the residential premises is that the residential premises are provided for living in (Article 17 of the Housing Code of the Russian Federation). At the same time, it is permitted to use residential premises for professional activities or individual entrepreneurial activities by citizens living there legally, if this does not violate the rights and legitimate interests of other citizens, as well as the requirements that the residential premises must meet. In this case, citizens carrying out this activity, for example, include notaries (Fundamentals of the legislation of the Russian Federation on notaries dated February 11, 1993 * (65)), lawyers (Federal Law “On advocacy and advocacy in the Russian Federation” dated May 31 2002 * (66)), teachers (Law of the Russian Federation “On Education” of July 10, 1992 as amended by the Federal Law of January 13, 1996 * (67), etc.).

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Order a section of the building according to isolation and isolation standards

Contact ]Smart Way[/anchor], we have extensive experience - we have worked on the division of buildings from 1000 to 60000 sq.m. The last completed project (May 2021) was a section of the Hilton Hotel in the Vnukovo airport area; the work was completed in record time - 10 days.

Cases of Smart Way LLC

Case 1. In this example, part of the premises of the first floor of a shopping center. Our specialists helped draw up lease agreements and put parts of the premises on temporary cadastral registration. The technical plan for part of the building was drawn up strictly in accordance with Order of the Ministry of Economic Development No. 953.

Case 2. In this example, part of the trading floor, which was allocated for rent to an individual entrepreneur. After the technical plan was completed, temporary cadastral registration was completed.