I can’t figure it out myself in the Urban Planning Code of IZHS and the letter of the Ministry of Economic Development of the Russian Federation dated March 20, 2013 No. OG-D 23-1426 did not clarify. The cadastral engineer said that I MAYBE not be able to get a certificate of ownership of a residential building, since the number of floors is 4 (four). House for 1 family in the countryside (near Rostov-on-Don) 10m by 10m. According to the plan: the basement floor - the top of the basement floor ceiling rises 1.7 meters above the level of the planning mark of the earth - and 2 (two) above-ground floors In fact: an attic floor has been added. Is the basement floor considered in my case (there are 3 rooms in it - a boiler room, a storage room and a third room so far without an appointment) as a FLOOR? What if if the answer is "YES"? We are all now without a residence permit, since the only apartment was sold in order to complete the construction. Please tell me what to do?
LETTER
dated 20.03.2013 No. OG-D23-1426
On determining the number of floors and number of storeys and the criteria for classifying buildings as objects of individual housing constructionMINISTRY OF ECONOMIC DEVELOPMENT OF THE RUSSIAN FEDERATIONNo. OG-D23-1426 dated March 20, 2013
The Department of Real Estate of the Ministry of Economic Development of Russia (hereinafter referred to as the Department of Real Estate) considered the applications dated February 12, 2013 and informs.
In accordance with the Regulations on the Ministry of Economic Development of the Russian Federation, approved by Decree of the Government of the Russian Federation of June 5, 2008 No. 437, the Ministry of Economic Development of Russia is not empowered to clarify the legislation of the Russian Federation, as well as the practice of its application.
At the same time, we consider it possible to note the following on the issues raised in the appeal.
1. On entering into subsection I of the Unified State Register of Rights to Real Estate and Transactions with It (hereinafter referred to as the EGRP) information on the number of floors of a building, structure during state registration of rights.
Based on the provisions of paragraph 1.2 of part 1 of Article 20 of the Federal Law of July 21, 1997 No. 122-FZ “On State Registration of Rights to Real Estate and Transactions with It” (hereinafter referred to as the Law on Registration), paragraph 23 of the Rules for Maintaining the Unified State Register of Rights for real estate and transactions with it, approved by Decree of the Government of the Russian Federation of February 18, 1998 No. 219, subsection I of the USRR contains a brief description of the real estate object on the basis of documents certified by the organization (body) for recording real estate objects on the territory of the registration district. Entries in subsection I of the USRR may be made on the basis of other documents in cases established by the Registration Law.
Thus, information about the property in subsection I of the USRR is entered on the basis of the information contained in the state real estate cadastre.
The above information on the number of floors of a building, structure is entered into the state real estate cadastre when such buildings, structures are put on the state cadastral register on the basis of a technical plan prepared by a cadastral engineer.
According to paragraph 42 of the Requirements for the preparation of the technical plan of the building, approved by order of the Ministry of Economic Development of Russia dated September 1, 2010 No. 403 (hereinafter referred to as the Requirements), in the appropriate lines of column "3" of the table "Characteristics of the building" of the technical plan of the building on the basis of the documents specified in paragraph 12 Requirements, information is entered on the number of floors of the building (including underground). If there are no underground floors of the building, a “-” sign (dash) is put in the corresponding line.
Similar requirements are contained in the Requirements for the preparation of a technical plan for the construction, approved by order of the Ministry of Economic Development of Russia dated November 23, 2011 No. 693.
2. On determining the number of floors and number of storeys.
In accordance with paragraph 19 of Part 2 of Article 7 of the Federal Law of July 24, 2007 No. 221-FZ “On the State Real Estate Cadastre” (hereinafter referred to as the Cadastre Law), information on the number of floors (number of floors), including underground ones, is also entered into the state real estate cadastre floors, if the property is a building or structure (if the building or structure has a number of storeys).
According to the Instruction on accounting for the housing stock in the Russian Federation, approved by order of the Ministry of the Russian Federation for Land Policy, Construction and Housing and Communal Services dated August 4, 1998 No. 37 (hereinafter referred to as the Instruction), the floors of residential buildings include:
Attic floor (mansard) - a floor in the attic space, the facade of which is completely or partially formed by the surface (surfaces) of an inclined or sloping roof, while the line of intersection of the roof plane and the facade should be at a height of no more than 1.5 m from the floor level of the attic floor;
Above-ground floor - a floor with the level of the floor of the premises not lower than the planning level of the ground;
Basement floor - a floor when the floor of the premises is lower than the planning level of the ground by more than half the height of the room;
Technical floor - a floor for the placement of engineering equipment and laying communications; can be located in the lower (technical underground), upper (technical attic) or in the middle parts of the building;
Basement floor - a floor with the level of the floor of the premises below the planning level of the ground to a height of not more than half the height of the premises.
Also, according to the Instruction, the number of storeys of a residential building should be determined by the number of above-ground floors. When determining the number of storeys, the basement floors are included in the number of above-ground floors if the top of the basement floor overlap rises above the level of the planning ground level by at least 2 m.
The current legislation does not contain a definition of the term "underground floor". At the same time, according to the Real Estate Department, all floors of a building, structures that are not related to above-ground floors are underground floors (basement floor, basement floor, if the top of its ceiling is less than 2 m above the average planning level of the ground).
In accordance with SNiP 2.08.02-89 * "Public buildings and structures", when determining the number of storeys of a building, the number of floors includes all above-ground floors, including the technical floor, the attic, and the basement floor, if the top of its floor is above the average planning mark of land by at least 2 m. Underground for ventilation under buildings designed for construction on permafrost, regardless of its height, is not included in the number of above-ground floors. The technical floor located above the top floor is not taken into account when determining the number of storeys of the building.
Annexes B and C of SNiP 31-01-2003 "Residential multi-apartment buildings" define floors and rules for determining the number of storeys of a building. When determining the number of storeys of a building, the number of above-ground floors includes all above-ground floors, including the technical floor, the attic, and the basement floor, if the top of its ceiling is at least 2 m above the average planning elevation of the earth. Underground under the building, regardless of its height , as well as interfloor space with a height of less than 1.8 m, are not included in the number of above-ground floors.
Thus, the number of storeys should be understood as the number of above-ground floors, including the technical floor, the attic floor, as well as the basement floor, if the top of its floor is at least 2 m above the average planning elevation of the earth.
The term "number of floors" is enshrined in Article 49 of the Town Planning Code of the Russian Federation as a criterion in determining the need for a state examination of project documentation and cannot be replaced by the term "number of floors".
Thus, the number of floors should be understood as the number of all floors, including underground, basement, basement, above-ground, technical, attic.
At the same time, we inform you that at present the Ministry of Economic Development of Russia is working on the draft federal law No. 54480-6 “On Amending Certain Legislative Acts of the Russian Federation in Part of State Registration of Rights and State Cadastral Registration of Real Estate Objects”, adopted by the State Duma of the Russian Federation in the first reading on December 11, 2012, which provides for the exclusion of information about the number of storeys from the information of the state real estate cadastre, provided for by the provisions of paragraph 19 of part 2 of Article 7 of the Cadastre Law.
3. On the criteria for classifying buildings as objects of individual housing construction.
According to Part 2 of Article 16 of the Housing Code of the Russian Federation, an individually defined building is recognized as a residential building, which consists of rooms, as well as premises for auxiliary use, designed to meet citizens' domestic and other needs associated with their living in such a building.
Based on the provisions of Part 3 of Article 48 of the Town Planning Code of the Russian Federation, individual housing construction objects are detached residential buildings with no more than three floors, intended for one family, in respect of which the preparation of project documentation is not required during construction, reconstruction, major repairs .
In accordance with paragraph 6 of the Regulations on the recognition of premises as residential premises, residential premises unfit for habitation and an apartment building as emergency and subject to demolition or reconstruction, approved by Decree of the Government of the Russian Federation of January 28, 2006 No. 47, an apartment building is recognized as a set of two or more apartments, having independent exits either to a land plot adjacent to a residential building, or to common areas in such a building.
Thus, detached residential buildings with more than three floors (when calculating the number of floors of which all floors in the building are included) do not belong to individual housing construction objects.
Apartments on the upper floors are not particularly popular, since residents of such apartments often have to solve problems with roof leakage on their own. However, the location of apartments in some cases provides a unique opportunity to expand living space and turn a standard apartment into a two-level apartment. This can be done by attaching a part of the attic space located directly above the apartment, and the experts of the site portal will tell in this article how realistic it is to implement such a plan and how to do it.
Targets and goals
Attic spaces are an indispensable element of the project of a multi-storey building, however, for the most part, these premises are not operated in any way. To join part of the attic, apartments on the top floor of a house with a sloping roof are best suited, since the height of the attic makes it possible to create the conditions necessary for comfortable living there. Most often, it is technically possible to connect part of the attic, since the purpose of the attic implies the possibility of the periodic presence of people there (for maintenance of passing communications, etc.). That is, the bearing plane of the attic floor is able to withstand loads comparable to the loads that occur during the operation of residential premises.
Legal Issues
However, you cannot live in the attic, because, from the point of view of the law, the attic is not a living space. Therefore, in order for an attic to acquire the status of a living space, it must be appropriately equipped, turning it into an attic floor, for the operation of which there will no longer be any claims as a living space. But the attic space is not "no man's", therefore, in order for the owner of the apartment on the top floor to carry out any work, and then attach part of the attic area to the area of \u200b\u200bits own apartment, and use this area, it is necessary to issue property rights. In addition, it is also necessary to legalize the changes made, otherwise representatives of the regulatory authorities may oblige “to return everything as it was”, as well as impose a fine.
The right to dispose of the attic area
So, in order to use the attic area, you must first obtain the right to dispose of this area, that is, you need to transfer the rights from the current owner. The attic space (in most cases) is part of the common property of the tenants of the apartment building, like any room in the house (basement, pram room, concierge room, other household premises) that is not someone's private property. Therefore, to join the attic, you need permission from the general meeting of owners. It will not be easy to obtain such consent, but it is possible.
Action plan
An approximate plan of action on the top floor, who wants to attach part of the attic area, will look like this:
1. Obtain confirmation regarding the technical feasibility of converting the attic and its further operation as a living space;
2. To issue property rights to a part of the attic space, having agreed with the residents of the house;
3. Obtain permission to carry out work on the reconstruction of the attic;
4. Perform reorganization works;
5. Obtain permission to put the attic space into operation;
6. Officially register the resulting living space.
Expertise
Before entering into negotiations with neighbors (which is one of the most difficult parts of the project), the following questions need to be answered:
- Will it be possible to make an attic room suitable for living from the attic, and will the reconstruction work cause damage to the integrity of the building, its individual elements;
- Will it be possible to obtain permission from the regulatory authorities to carry out work (and, accordingly, subsequently register the premises as living space).
The answer to these questions can be given by an official conclusion, which is issued on the basis of an examination. To conduct an examination, contact the state regulatory authorities (the first instance will be the city architectural inspection). The official conclusion of the state body will be sufficient grounds for obtaining permission to rebuild the attic.
Funding Amounts
An additional result of the examination will be an understanding of the amount of money that will have to be spent directly on construction and finishing work, as well as on organizational issues, which will be described below. In other words, it will become clear - “is the game worth the candle”, in some cases it may turn out that it is easier and cheaper to purchase a more spacious apartment than to join an attic space. However, if we are talking about an apartment in a metropolis, we can almost say for sure that adding part of the attic is more profitable than exchanging an apartment for a more spacious one (not to mention two-level apartments).
Property rights
The attic space belongs to all residents of the house, therefore, their consent is required for part of the total area to be operated by the owner of one apartment. The only way to obtain a collective decision is to hold a meeting of owners who, by law, can give their consent to the following actions:
- Carrying out reconstruction of the attic space with a decrease in the share of common property. In other words, the tenants agree to transfer part of the attic into the ownership of the owner of one of the apartments, for such a decision to be made, the unanimous approval of the collective meeting is required;
- Carrying out reconstruction without reducing the share of common property. At the same time, part of the attic can be transferred on a long-term lease or for free use. That is, useful square meters remain the property of the tenants, but the owner of the apartment can use the attic on a leasehold basis. This does not require unanimous approval, it is enough for two-thirds of the team to vote for this decision.
Getting the consent of the majority of residents, and even more so, the unanimous decision of the team, is quite difficult. A complete lack of interest in someone expanding their living space does not contribute to a positive decision, so some motivation is needed. Such motivation can be the repair work in the house at the expense of the one who claims to have an attic, the arrangement of a parking lot for the residents of the house, a playground, and other options.
However, making a decision is not enough to use the square meters of the attic space, the decision needs to be documented. That is, if the attic is rented out, it is necessary to draw up and sign a lease agreement, but if the attic space becomes the property of the owner of the apartment (under this attic), then the registration procedure is somewhat different. Already on the basis of the relevant document, you can take any action in relation to the attic - obtain permission for its reconstruction (reconstruction), carry out construction work and, in fact, exploit the area.
Obtaining permission for reconstruction
The basis for the owner of the apartment to obtain permission to rebuild the attic is, on the one hand, the decision on reconstruction made by the team of tenants, and on the other hand, the title document - the lease agreement (transfer agreement for gratuitous use).
In the event that we are talking about the transfer of attic space to the property, then a team of residents receives permission for reconstruction, on behalf of which all work is subsequently carried out, up to receipt of documents on putting the attic space into operation. After that, the premises are already transferred to the owner of the apartment under a sale and purchase agreement (as payment, the new owner of the attic may indicate any construction and repair work, etc.). Such an order somewhat complicates the task, since an additional link appears, a person who will, on behalf of the collective of owners, control all the actions of the applicant for the attic. In addition, this representative must also be interested in carrying out the work, which, in turn, is fraught with additional costs.
Before obtaining permission to convert the attic into an attic floor, you need to prepare a project. The project is made in public or private design organizations, the document must fully comply with building codes and regulations, must be agreed with a number of authorities (fire inspection, Ministry of Emergency Situations, sanitary and epidemiological station, etc.).
The permit is issued by a state body (Department of Urban Architecture), where it is necessary to submit an appropriate application, an agreed project, title documents.
However, one of the options for the development of events is the transition to construction work without obtaining a permit, with the expectation of subsequently legalizing everything through the courts. However, this option is quite risky, and is fraught not only with the inability to issue documents, but also with the danger of violating the integrity of the building, which may threaten criminal liability.
Carrying out works and commissioning
Having in hand documents confirming the right to carry out reconstruction, the owner of the future attic floor can begin work. All construction work must be carried out in strict accordance with the approved project, since after completion of the work it is necessary to obtain a document confirming the commissioning of the attic floor. This document is issued on the basis of the work acceptance certificate, which is signed by the representatives of the housing inspectorate after inspection and in the absence of violations of the rules and regulations (as well as deviations from the project, on the basis of which the permit for reconstruction was issued).
Registration of documents for the property
This is the last stage, which completes the whole complex of measures for joining the attic space to the area of the apartment. If the attic area has been taken over, it is necessary to make changes to the documents for the apartment, since the number of square meters has changed, as well as the configuration of the apartment. In the event that the attic area was leased, it is necessary to record changes in the plan of the house (based on the results of reconstruction). The bodies that should be involved at this stage are BTI and Rosreestr, and the following documents are the grounds for changing technical documentation and re-registration:
- An agreement confirming property rights;
- Permission to carry out reconstruction;
- Permission to put the object of reconstruction into operation;
- Project documentation.
Conclusion
Considering the issues related to the connection of the attic, the site portal experts would like to add that, in parallel with the preliminary examination, it would be useful to find out if an application for the intention to reconstruct the attic was filed earlier. If such an application has been submitted, a detailed study of the issue will help save money already at the planning stage.
In addition, at the time of the study of the issue, the attic may already be in someone's private property or, for other reasons, not be the collective property of the tenants of the apartment building. When choosing between public and private design organizations, it is best to opt for a company that has been recommended by representatives of the government agency that will issue permission to rebuild the attic. In other words, it may be a very reasonable decision to involve an intermediary organization (or individual) that is professionally involved in resolving such issues.
In the Housing Code of the Russian Federation, there really is no direct instruction not to place living quarters in basements and attics. But these instructions are present in all, without exception, legal acts related to the construction and operation of apartment buildings. And the Housing Code of the Russian Federation provides links to these legal acts in all its articles related to residential premises.Housing Code of the Russian Federation, Article 23
"10. When using the premises after its transfer as residential or non-residential premises, fire safety requirements, sanitary and hygienic, environmental and other requirements established by law, including requirements for the use of non-residential premises in apartment buildings, must be observed."
Housing Code of the Russian Federation, Article 22. Conditions for the transfer of residential premises to non-residential premises and non-residential premises to residential premises
"4. The transfer of non-residential premises to residential premises is not allowed if such premises do not meet the established !!! REQUIREMENTS !!! or it is not possible to ensure the compliance of such premises with the established requirements, or if the ownership of such premises is encumbered with the rights of any persons."
Accommodation requirements are listed here:
Decree of the Government of the Russian Federation of January 28, 2006 N 47 (as amended on March 25, 2015)
"On approval of the Regulations on the recognition of premises as residential premises,
residential premises unsuitable for habitation and an apartment building emergency and subject to demolition or reconstruction"
http://www.consultant.ru/document/co...067/#dst100028
II. Requirements to be met by the property
“23. The floor level of the dwelling located on the first floor must be higher than the planning level of the ground.
Accommodation in the basement and basement floors is not allowed.
“21. In a residential area, the required insolation must be provided for one-, two- and three-room apartments - at least in one room, for four-, five- and six-room apartments - at least in 2 rooms. The duration of insolation in the autumn-winter period of the year in a residential building for the central, northern and southern zones must meet the relevant sanitary standards. The coefficient of natural light in rooms and kitchens should be at least 0.5 percent in the middle of the living space.
I think it's not worth saying that the basement is unlikely to meet the requirements of insolation in residential premises, and many other requirements too. In addition, there is a direct indication of the ban on the placement of residential premises on the basement floors.
This prohibition is contained in several documents, links to which I have provided above.
As I understand it, the court and the state. authorities should be guided by these legal acts when deciding on the recognition of a particular premises as residential or non-residential.
Accordingly, the question is: why are they not guided? Where do these new settlers with certificates come from? property rights “object of law: apartment; floor - basement?
I roughly understand the scheme for arranging apartments in basements.
You can build only with permission and approval from the authorities. In order to obtain it, it is necessary to provide the relevant authorities with project documentation.
Having received permission, the developer begins to build, during construction deviates from the project and arbitrarily equips the premises in the basement and adds one floor above.
Before / after putting the house into operation (who knows at what stage exactly - tell me), the developer / buyers of "apartments" (tell me who exactly) go to court (tell me what is the reason for going to court, what requirements are put forward by who and to whom in a lawsuit).
The court recognizes the premises in the basement and on the top floor as residential.
Buyers, on the basis of a court decision, receive all statutory documents for apartments.
If I'm wrong and everything is done differently - explain how differently.
If there are other schemes - describe them in general terms.
And what is the court guided by when recognizing the premises in the basement as residential?
In general, who knows, explain the details of this whole process.
In general, as a buyer, I am primarily interested in the legal and physical features of owning and living in such “apartments”.
There are a lot of questions in my head. Here are just a couple of them:
If in the basement or the last upper (mansard) floor I will own the premises, according to the documents called “residential, apartment”, but at the same time, any general house communications will take place in this room: in the event of an emergency, I am obliged to let repairmen into my apartment Or if I don’t want to let them in voluntarily, will the law protect me, including the constitution, which says about the inviolability of the home and they will be able to enter my apartment only by a court decision?
What to do with Article 23 of the LC RF? If it was possible, it does not matter how, but nevertheless it was possible to register as a dwelling in the basement or in the attic, but when using it, the requirements established by the NLA on residential premises are not observed. Can some technical supervision come, some uncle from the cadastre, or someone else and declare that my residential premises are used in violation of Decree of the Government of the Russian Federation of January 28, 2006 N 47 and violations of SanPiNs and other legal acts on residential premises and recognize my premises as non-residential through the court?
When planning the construction of an individual house for permanent residence or summer cottages, land owners are considering different options for future housing. For a long time and carefully they choose between projects of cottages in one or two floors, discuss the issue of arranging an attic, weighing all the pros and cons. The problems of expanding living space by equipping rooms under the roof are also solved by the owners of already built houses.
In the process of studying the characteristics and advantages of this type of superstructure, the question often arises: is the attic the second floor in a private house? To understand this, first you need to understand what is meant in construction practice by the design of the attic.
Understanding the intricacies of terminology
If we turn to building guides, then in them the attic is called an attic-type living space, which is formed on the last floor under the slopes of the roof of the house. In SNiP I-2 "Construction terminology", developed by the USSR State Construction Committee, the attic is defined as a floor for arranging premises inside a free attic space with the insulation of enclosing structures (roof slopes). To the question: is the attic a floor or not, SNiP 2.08.01-89 “Residential buildings” also answers, the norms of which apply to the design of residential buildings. In it, it is mentioned as a floor in the attic space, formed partially or completely by roof surfaces, which can be pitched or broken. At the same time, attention is focused on the line of intersection of the planes of the roof and the facade, which, according to the norms, should be located at a height of no more than one and a half meters.
Is the attic considered a floor in the BTI?
If you read the instructions of the Ministry of the Russian Federation on land policy, construction and housing and communal services, which was approved in August 1998, under No. 37, then in terms of determining the number of storeys of a house, the attic is considered a floor. The area of the superstructure premises in the form of an attic is also taken into account in the total quadrature of the structure and is registered in the BTI according to cadastral documents. As for the cadastral passport, it also contains information about the number of storeys of the house.
Is the attic considered the second floor when registering a country house?
With regard to country buildings, the calculation of the number of storeys is similar. Regarding the calculation of the area of \u200b\u200brooms under the roof, it is included in the total if it is heated and suitable for year-round use. Laws are often amended, instructions are adjusted, therefore, when registering real estate, it is advisable to enlist competent legal advice from a lawyer who is knowledgeable in this matter.
Proper legal and technical design of any building saves owners from unnecessary problems and troubles in the future. Therefore, in order to avoid them, it is necessary to acquire a project and permits for the construction or reconstruction of a house. This is especially true for the arrangement of the attic in an existing house, since the technical passport does not contain an attic. Without obtaining permits, the attic can be recognized as an unauthorized extension.
How is the attic different from the second floor
The traditional second floor consists of straight vertical wall structures and has parallel floor and ceiling planes.
The design features of the attic are closely interconnected with the general structure of the house and depend on the premises located below, combined with them by engineering communications. However, the attic device can differ in layout options: occupy an area corresponding to the entire quadrature of the house, fit only on a certain part of it, or have a mezzanine tier. Each variant of the planning decision from an architectural point of view is interesting in its own way, however, there is a rule: the attic must fit within the boundaries located below the base walls of the building.
If we compare the usual floor with the attic, then the differences will be in the following points.
- Premises in a full tier have straight external walls and full height throughout the area. In the attic, the height of the room may differ at different points and depends on the configuration of the roof.
- The area of the first and second floors in the traditional second floor is the same. The attic area has less square meters than the underlying premises due to the bevels of the building envelope.
- The load of a house with an attic on the foundation is less than a two-story building.
- The layout of the room in the attic tier has some limitations due to the presence of blind areas at the junction of the roof to the walls. In a full-fledged floor, there is complete freedom of choice of planning solutions.
- Due to the installation of inclined windows in the attic, excellent illumination is achieved. In the premises of the usual second tier, the level of illumination depends on the number of window openings and their location.
The difference between the attic and the second floor is also that the volume of air in the rooms under the sloping walls is less. The appearance of the buildings also differs significantly. Two-story houses, as a rule, look more solid, and with an attic tier are more compact.
Each developer is guided by certain criteria in choosing a future home, and the issues of number of storeys and area play an important role. This should take into account not only the beauty, comfort and construction costs, but also the future costs of maintaining and operating the house. And in this case, buildings with an attic will cost a more profitable option in terms of taxation. Lawyers explain that the attic area is taken into account for tax collection only if the ceiling height at the smallest point from floor to ceiling is at least 2 meters.
