Drawing up an estimate for the costs of demolishing an unauthorized structure. Possible options for the execution of judicial acts on the demolition of unauthorized buildings without attracting federal budget funds

Hello Tatiana!

When a bailiff receives a writ of execution for the demolition of an unauthorized building, he is obliged to perform the following actions:

3. Organization of execution court decision about the demolition of an unauthorized building

3.1. According to Art. 30 of the Law, the bailiff initiates enforcement proceedings on the basis of a writ of execution at the request of the claimant or his representative, if the deadline for presenting the writ of execution for execution has not expired and this document meets the requirements provided for in Art. 13 of the Law.

3.2. When the execution of a judicial act is entrusted to a representative of the authorities, a civil servant, a municipal employee, as well as a government employee or municipal institution, commercial or other organization, the bailiff warns these persons of criminal liability under Art. 315 of the Criminal Code of the Russian Federation, for non-execution of a judicial act, as well as obstruction of its execution.

If the actions of the person specified in this paragraph contain signs of a crime under Art. 315 of the Criminal Code of the Russian Federation, the bailiff draws up a report on the discovery of signs of a crime, which is registered in the manner prescribed by Order of the Ministry of Justice of Russia dated May 2, 2006 No. 139.

3.3. Simultaneously with the initiation of enforcement proceedings, the bailiff takes measures aimed at prohibiting registration actions both in relation to the building subject to demolition and land plot, on which it is located.

3.4. Upon expiration of the period for voluntary execution, the bailiff exits at the place of commission executive actions to establish the fact of fulfillment or non-fulfillment by the debtor of the requirements of the writ of execution.

3.5. If the debtor fails to comply with the requirements contained in executive document, within the period established for voluntary execution, as well as failure to execute an executive document subject to immediate execution, within 24 hours from the date of receipt of a copy of the court decision bailiff on initiation of enforcement proceedings bailiff makes a decision on recovery enforcement fee, establishes the debtor new term for execution and warns him that upon expiration specified period enforcement will be carried out.

In addition, the bailiff draws up and attaches to the materials of enforcement proceedings a plan diagram of the land plot on which the objects to be demolished are located, indicating the number of entrances to the specified land plot, other objects located within its boundaries, as well as photographs of the objects to be demolished. demolition of objects.

After issuing a decision to collect the enforcement fee, the bailiff checks the debtor’s property status, including in order to establish the possibility of collection from him in the future. administrative fines and expenses for carrying out enforcement actions.

In this case, the debtor is brought to administrative responsibility after the bailiff issues a decision to collect the enforcement fee, regardless of its actual collection.

In addition, the bailiff sends a letter to the recoverer with a proposal to apply to the court with an application for the execution of the court decision independently in accordance with Art. 206 Code of Civil Procedure of the Russian Federation.

3.6. If the debtor has not fulfilled the requirements contained in the writ of execution, without good reason, within the newly established period, the bailiff draws up a protocol on the administrative offense, taking into account the requirements of Art. 28.2 Code of Administrative Offenses of the Russian Federation.

The bailiff has the right each time to set the debtor a reasonable time limit for fulfilling the demolition requirements contained in the writ of execution, and if the debtor fails to comply with these requirements without good reason, draw up a protocol on each administrative offense provided for in Art. 17.15 of the Code of Administrative Offenses of the Russian Federation, and submit it for consideration to officials FSSP of Russia, specified in Art. 23.68 Code of Administrative Offenses of the Russian Federation.

In the event of a long-term failure by the debtor to comply with a court decision, the bailiff is recommended to review downward the deadline for fulfilling the requirements of the writ of execution and more actively apply administrative measures to the debtor.

3.7. If the debtor in enforcement proceedings is a citizen, the bailiff issues a resolution on a temporary restriction on the debtor’s departure from Russian Federation.

If the debtor in enforcement proceedings is entity, bailiff in the presence of an unpaid enforcement fee or previously imposed in accordance with Art. 17.15 of the Code of Administrative Offenses of the Russian Federation, a fine has the right to apply to the court with an application for a temporary restriction on leaving the Russian Federation for an official of the debtor.

3.8. The bailiff applies all measures aimed at fulfilling the requirements of a non-property nature contained in the executive document, in accordance with Art. 105 of the Law.

If necessary, organize further execution at the expense of funds federal budget the bailiff informs the senior officer about this bailiff, who, after checking the materials of the enforcement proceedings, submits a memorandum addressed to the head of the relevant territorial body, which sets out the essence of the requirements of the enforcement document of a non-property nature, and also describes in chronological order the actions taken to fulfill the requirements of the enforcement document.

Allocation of funds to pay the costs of carrying out enforcement actions to fulfill non-property requirements, including the demolition of unauthorized buildings and/or development design and estimate documentation, is carried out in accordance with the letter of the Federal Bailiff Service of Russia dated January 31, 2011 No. 12/08-1872-VM, which, among other things, establishes the requirements for design and estimate documentation.

Thus, I recommend that you familiarize yourself with the materials of the enforcement proceedings for the presence/absence of the above actions that the bailiff was obliged to carry out from the moment he received the enforcement document. If fulfilled, you will receive information about the progress of enforcement actions in enforcement proceedings. If they are absent, you have grounds to file claims against the actions (inaction) of the bailiff in judicial procedure by presenting administrative claim and/or complaints in the order of subordination (to a superior official).

* This material is over two years old. You can check with the author the degree of its relevance.

Letter of the FSSP of Russia dated March 31, 2014 N 8

Date saved: 05/06/2015

MINISTRY OF JUSTICE OF THE RUSSIAN FEDERATION

FEDERAL BAILIFIC SERVICE

I approve
Director of the Federal
bailiff services -
chief bailiff
Russian Federation
A.O.PARFENCHIKOV
March 31, 2014

1. General Provisions

1.1. Real Guidelines determine the procedure for executing judicial acts on the demolition of unauthorized buildings.
1.2. Methodological recommendations have been developed in accordance with the Constitution of the Russian Federation, Civil Code of the Russian Federation, Civil Procedure Code of the Russian Federation, Town Planning Code of the Russian Federation, Federal Law of July 21, 1997 N 118-FZ “On Bailiffs”, Federal Law of October 2, 2007 N 229-FZ “On enforcement proceedings"(hereinafter referred to as the Law), the Code of the Russian Federation on administrative offenses(hereinafter referred to as the Code of Administrative Offenses of the Russian Federation), the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), Order of the FSSP of Russia dated April 30, 2013 N 136 “On ensuring control and coordination of enforcement proceedings on the demolition of unauthorized buildings and enforcement proceedings on the obligation of legal entities and individual entrepreneurs vacate illegally occupied premises", by order of the FSSP of Russia dated July 11, 2012 N 318 "On approval approximate forms procedural documents used by officials Federal service bailiffs in the process of enforcement proceedings."

2. General concepts

2.1. In accordance with Art. 222 of the Civil Code of the Russian Federation, an unauthorized construction is a residential building, other building, structure or other real estate created on a land plot that is not allocated for these purposes in the manner established by law and other legal acts, or created without receiving it necessary permits or with a significant violation of urban planning and building codes and rules.
2.2. In accordance with Art. 130 of the Civil Code of the Russian Federation, objects of unfinished construction are classified by law as real estate. Based on paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, unauthorized construction is recognized not only as a residential building, other structure, structure, but also other real estate. Consequently, an unfinished construction project as real estate can also be recognized as an unauthorized construction.
2.3. In accordance with Part 10 of Art. 1 of the Town Planning Code of the Russian Federation, a capital construction facility is a building, structure, structure, objects whose construction is not completed, with the exception of temporary buildings, kiosks, sheds and other similar structures.
2.4. In accordance with the provisions of Art. 107 of the Law, the demolition of unauthorized buildings includes the dismantling, dismantling or destruction of buildings, structures and structures specified in the executive document, or their individual structures, regardless of the type, purpose and degree of completion, as well as the removal of construction waste.
The scope of these Methodological Recommendations extends both to the execution of court decisions on the demolition of capital construction projects, unfinished construction projects, superstructures in legal buildings, and to the execution of court decisions on the demolition of extensions and temporary buildings (garages, kiosks and other structures).
In addition, the Methodological Recommendations can be used when fulfilling the requirements of executive documents on release land plots by demolishing buildings or individual parts, on the demolition of individual elements of buildings and structures (floors, superstructures, extensions) and other executive documents of a similar nature.
In this case, the demolition of structures, buildings or structures located on a land plot or their individual structures is carried out if this is indicated in the executive document, in accordance with the provisions of Art. 107 of the Law.

3. Organization of execution of court decisions on the demolition of unauthorized buildings

3.1. According to Art. 30 of the Law, the bailiff initiates enforcement proceedings on the basis of a writ of execution at the request of the claimant or his representative, if the deadline for presenting the writ of execution for execution has not expired and this document meets the requirements provided for in Art. 13 of the Law.
3.2. When the execution of a judicial act is entrusted to a representative of the government, a civil servant, a municipal employee, as well as an employee of a state or municipal institution, commercial or other organization, the bailiff warns these persons about the criminal liability provided for in Article 315 of the Criminal Code of the Russian Federation for failure to execute a judicial act, as well as obstructing its execution.
If the actions of the person specified in this paragraph contain signs of a crime under Art. 315 of the Criminal Code of the Russian Federation, the bailiff draws up a report on the discovery of signs of a crime, which is registered in the manner prescribed by Order of the Ministry of Justice of Russia dated May 2, 2006 N 139.
3.3. Simultaneously with the initiation of enforcement proceedings, the bailiff takes measures aimed at prohibiting registration actions, both in relation to the building subject to demolition and the land plot on which it is located, in accordance with the instructions of the FSSP of Russia dated 08.08.2011 N 12/01 -19366-AP.
3.4. After the expiration of the period for voluntary execution, the bailiff goes to the place where enforcement actions were taken to establish the fact of fulfillment or non-fulfillment by the debtor of the requirements of the enforcement document.
3.5. If the debtor fails to fulfill the requirements contained in the writ of execution within the period established for voluntary execution, as well as his failure to comply with the writ of execution, subject to immediate execution, within 24 hours from the date of receipt of a copy of the bailiff's decision to initiate enforcement proceedings, the bailiff makes a decision to collect the enforcement fee in accordance with the provisions of Art. 112 of the Law and sets the debtor a new deadline for execution.
If the debtor fails to comply with the requirements contained in the executive document, without good reason, within the newly established period, the bailiff draws up a protocol on the administrative offense against the debtor in accordance with the provisions of the Code of Administrative Offenses of the Russian Federation, sets a new deadline for execution and warns the debtor that after the specified period enforcement will be carried out.
In addition, the bailiff draws up and attaches to the materials of enforcement proceedings a plan diagram of the land plot on which the objects to be demolished are located, indicating the number of entrances to the specified land plot, other objects located within its boundaries, as well as photographs of the objects to be demolished. demolition of objects.
If, during the execution of the requirements of executive documents of the specified category, it is established that the debtors have been carrying out illegal construction, it is necessary to immediately contact law enforcement agencies regarding the inaction of the authorities state power and local self-government in terms of suppressing violations by individuals and legal entities of urban planning and land use norms, in accordance with the instructions of the Federal Bailiff Service of Russia dated August 16, 2013 N 12/01-22750-TI.
After issuing a decision to collect the enforcement fee, the bailiff conducts an inspection of the debtor’s property status, including in order to establish the possibility of collecting from him in the future the enforcement fee, administrative fines and expenses for carrying out enforcement actions.
In this case, the debtor is brought to administrative responsibility after the bailiff issues a decision to collect the enforcement fee, regardless of its actual collection.
As part of enforcement proceedings for the demolition of a structure, building or structure or structures, the bailiff announces a search for the debtor in accordance with Part 5 of Art. 65 of the Law, provided that other executive actions performed by him, provided for by law, did not allow the debtor to be located.
At the same time, within the framework of enforcement proceedings, the claimants for which are public legal entities, state authorities and local governments, the bailiff announces a search for the debtor and his property in accordance with Part 3 of Art. 65 of the Law.
3.6. In order to ensure forced eviction and release non-residential premises, land plot or demolition of a structure, building or structure or their individual structures, the bailiff may offer the claimant to bear the costs of applying enforcement measures with their subsequent reimbursement at the expense of the debtor, in accordance with the provisions of Art. 107 of the Law.
It is necessary to send appeals to claimants regarding their sale in accordance with Art. 206 of the Code of Civil Procedure of the Russian Federation rights to independently fulfill the requirements of enforcement documents of the specified categories with subsequent recovery of expenses incurred from the debtor.
3.7. If the debtor has not fulfilled the requirements contained in the writ of execution, without good reason, within the newly established period, the bailiff draws up a protocol on the administrative offense, taking into account the requirements of Art. 28.2 Code of Administrative Offenses of the Russian Federation.
The bailiff has the right each time to set the debtor a reasonable period for fulfilling the requirements contained in the writ of execution, and, if the debtor fails to fulfill these requirements without good reason, to draw up a protocol on each administrative offense provided for in Art. 17.15 of the Code of Administrative Offenses of the Russian Federation, and submit it for consideration to officials of the FSSP of Russia specified in Art. 23.68 Code of Administrative Offenses of the Russian Federation.
In the event of a long-term failure by the debtor to comply with a court decision, the bailiff is recommended to review downward the deadline for fulfilling the requirements of the writ of execution and more actively apply administrative measures to the debtor.
3.8. If the debtor in the enforcement proceedings is a citizen, the bailiff issues a resolution on a temporary restriction on the debtor’s departure from the Russian Federation.
If the debtor in enforcement proceedings is a legal entity, the bailiff, in the presence of an unpaid fine previously imposed in accordance with Art. 17.15 of the Code of Administrative Offenses of the Russian Federation, in an amount exceeding 10 thousand rubles, it is necessary to apply to the court with an application for a temporary restriction on leaving the Russian Federation for an official of the debtor organization.
3.9. The bailiff applies all measures aimed at fulfilling the requirements of a non-property nature contained in the executive document, in accordance with Art. 105 of the Law.
When fulfilling the requirements of executive documents on the demolition of unauthorized buildings, it is necessary to be guided by internal indicators characterizing the level of effectiveness of the measures taken, established by letter of the Federal Bailiff Service of Russia dated October 8, 2013 N 12/01-28214-TI.
3.10. For the purpose of forced demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve the appropriate specialized organization in accordance with the provisions of the Law.
If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff about this, who, after checking the materials of the enforcement proceedings and establishing the fact of the full application of compulsory measures in accordance with the provisions of Art. 105 of the Law submits a memorandum addressed to the head of the relevant territorial body, which sets out the essence of the requirements of the executive document of a non-property nature, and also describes in chronological order the actions taken to fulfill the requirements of the executive document.
The involvement of the appropriate specialized organization to fulfill these requirements at the expense of the federal budget is carried out in accordance with the provisions Federal Law dated 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to ensure government and municipal needs"and the instruction of the FSSP of Russia dated January 31, 2011 N 12/08-1872-VM.

4. Features of the implementation of enforcement actions when organizing the demolition of unauthorized buildings

4.1. If the claimant makes a decision to fulfill the requirements of the writ of execution independently, followed by recovery of expenses incurred from the debtor or the involvement of a specialized organization with which the territorial body of the FSSP of Russia has concluded a state contract (agreement) on the demolition of an unauthorized building, the bailiff provides and coordinates them acts in accordance with the powers granted to him.
4.2. Debtor in mandatory is notified by the bailiff of the date and time of the execution of enforcement actions and is warned that if the debtor is not present at the place where the enforcement actions were performed at the appointed time, the demolition of the unauthorized structure will be carried out in his absence.
Also, if necessary, the police, the Ministry of Emergency Situations of Russia, guardianship and trusteeship authorities, the media, etc. are notified about the commission of enforcement actions.
4.3. In accordance with the provisions of Art. 107 of the Law, in necessary cases, the bailiff ensures the storage of the described property, charging the debtor with the costs incurred. If within two months from the date of transfer of property for protection or storage the debtor has not taken the specified property, then the bailiff, after warning the debtor in writing, transfers the specified property for sale in the manner established by the Law.
Also, if the demolition of a building is carried out by dismantling while preserving building materials and structural elements, the bailiff subjects them to inventory and seizure for the purpose of subsequent sale and reimbursement of expenses for carrying out enforcement actions.
The organization and implementation of storage of the described property is carried out by analogy with the storage of seized movable property in accordance with the Methodological recommendations for the organization and implementation of accounting of seized movable property during its storage in the structural divisions of the territorial body of the FSSP of Russia dated 02.29.2012 N 08-4.
4.4. The funds received from the sale of the debtor's property and remaining after reimbursement of expenses for carrying out enforcement actions are returned to the debtor. Unclaimed by the debtor cash are stored in the deposit account of the bailiff department for three years. After this period, the specified funds are transferred to the federal budget in accordance with the provisions of Art. 107 of the Law.
Storage and transfer of these funds is carried out in accordance with the provisions of the Instructions on the procedure for accounting for funds received at temporary disposal structural divisions territorial bodies Federal Bailiff Service, approved by order of the Ministry of Justice of Russia and the Ministry of Finance of Russia dated January 25, 2008 N 11/15n.
4.5. Compulsory execution of the requirement for the demolition of an unauthorized structure, building or structure or their individual structures is carried out with the participation of witnesses (if necessary, with the assistance of employees of internal affairs bodies) with the drawing up relevant act on the demolition of a structure, building or structure or their individual structures and an inventory of property in accordance with the provisions of Art. 107 of the Law.
At the same time, the act of actual fulfillment of the requirements of the enforcement document is also signed by the recoverer or his representatives, in order to exclude facts of violation of the rights of the parties to enforcement proceedings and the subsequent filing by prosecutors of protests against decisions on the termination of enforcement proceedings, in accordance with the instructions of the FSSP of Russia dated April 30, 2013 N 12 /01-12249-AP.
If the claimant or his representatives declare that the work performed does not comply with the requirements specified in the writ of execution, the bailiff must ensure the involvement of an expert to conduct an examination of the compliance of the work performed with the requirements of the writ of execution.
4.6. The costs of demolishing an unauthorized structure, as well as storing seized property, are considered costs of carrying out enforcement actions and are subject to reimbursement at the expense of the debtor in accordance with Chapter. 16 of the Law.
The sequence of actions of employees of territorial bodies of the Federal Bailiff Service of Russia to reimburse expenses for carrying out enforcement actions is determined by the Methodological Recommendations for organizing work for reimbursement of expenses for carrying out enforcement actions dated July 24, 2013 N 01-10.

5. The procedure for attracting bailiffs under the OUPDS to ensure the safety of bailiffs when carrying out enforcement actions

5.1. Bailiffs under the OUPDS are involved to ensure the safety of bailiffs when carrying out enforcement actions for demolition in accordance with the Methodological Recommendations for the interaction of bailiffs to ensure the established procedure for the activities of courts with bailiffs and investigators of the Federal Bailiff Service during the commission of procedural actions and carrying out the bringing of persons evading appearance, approved by the director of the Federal Bailiff Service - the chief bailiff of the Russian Federation November 30, 2011 N 03-19.

6. The procedure for the actions of the bailiff in the event of the operation of a capital construction facility subject to demolition, detection of unauthorized persons and domestic animals in the structure subject to demolition

6.1. If the fact of operation of a capital construction facility subject to demolition is established, the bailiff draws up an act of execution of enforcement actions, in which he indicates these circumstances, and also serves on the persons operating the facility subject to demolition with demands to terminate these actions.
In case of repeated establishment of the fact of exploitation of an object subject to demolition by the same persons, the bailiff takes measures to bring them to administrative responsibility in accordance with Art. 17.14. Code of Administrative Offenses of the Russian Federation.
Operation of a capital construction facility without permission to put it into operation, except for cases when, for construction, reconstruction, overhaul capital construction projects do not require the issuance of a construction permit, entail administrative liability in accordance with Part 5 of Art. 9.5 Code of Administrative Offenses of the Russian Federation.
In this regard, if such facts are established, the bailiff must report them to the state construction supervision authorities.
6.2. If unauthorized persons, including minor children, are found in a building subject to demolition, the bailiff, if necessary, immediately informs the internal affairs body at the location of the residential premises, as well as the guardianship and trusteeship authority, about this.
6.3. In cases where animals are found in a building subject to demolition that pose a danger to life and health, the bailiff immediately informs the veterinary station and the Rosselkhoznadzor body about this and, before their arrival, takes measures to isolate the animal.

7. Features of carrying out enforcement actions in the case of permanent residence citizens in a building subject to demolition

7.1. According to position Supreme Court Russian Federation (“Review of legislation and judicial practice for the first quarter of 2006", approved by the resolution of the Presidium of the Supreme Court of the Russian Federation dated 06/07/2006 and 06/14/2006) from the provisions of paragraph 2 of Article 222 of the Civil Code of the Russian Federation it follows that unauthorized construction cannot be the object of civil rights.
Consequently, the specified building is not included in the composition housing stock and does not have the status of a residential premises, therefore the person who erected an unauthorized structure cannot be registered in it.
Since a person does not have the right to live in this premises, the court’s decision to demolish an unauthorized building does not affect his right to own and use the said residential premises, therefore there are no grounds for filing a separate claim to evict a person from an unauthorized building.
Thus, when submitting an application for recognition of a residential premises in the manner prescribed by law as an unauthorized building, it is not necessary to additionally submit a demand for the eviction of citizens from residential buildings that are subject to further demolition, since the court decision on the demolition of an unauthorized building does not violate the citizen’s rights to reside in the specified living space.
7.2. If a citizen is registered in an unauthorized residential building, then in this case, when filing a claim for the demolition of an unauthorized building, it is also necessary to submit a demand for eviction.
In connection with the above, if the building to be demolished has signs of being residential, the bailiff sends a request to the passport office at the location of the building to be demolished about the citizens registered in it.
If a positive response is received, the bailiff ends the enforcement proceedings in accordance with clause 2, part 1, art. 46, clause 3, part 1, art. 47 of the Law and returns the executive document to the claimant with an explanation of the possibility of going to court with a demand for the eviction of citizens living in the unauthorized residential premises.

Organization management
enforcement proceedings

Sections:
;
Circumstances: The applicant believed that the cost of the work performed to demolish the disputed structure was inflated, and the act of acceptance of the work performed did not correspond to reality.
We draw your attention to the fact that this decision could be appealed to a higher court and overturned

OMSK REGIONAL COURT

Judicial Collegium for Administrative Cases of the Omsk Regional Court consisting of:
presiding Latyshenko N.F.,
judges of the regional court Ivolgina N.V., Starostina G.G.,
under secretary M.,
considered at the court hearing on May 27, 2015 the case on appeals of O.Yu.V., representative UFSSP of Russia in the Omsk region E. on the decision of the Pervomaisky district court of Omsk dated February 2, 2015, by which the resolution of the bailiff of the OSP for the Sovetsky Autonomous District of Omsk UFFSP of Russia for the Omsk region<...>from<...>. on the collection of expenses for carrying out enforcement actions in enforcement proceedings No.<...>with G.N. in favor of O.Yu.V. in total<...>rubles was declared illegal.
Having heard the report of the regional court judge N.F. Latyshenko, the judicial panel

Installed:

Motivated
solution made 08/17/2015

IN THE NAME OF THE RUSSIAN FEDERATION

08/13/2015 Sysertsky district court Sverdlovsk Region, composed of presiding judge Torichnaya M.V., with the participation of the applicant’s representative Z. Ya., interested person D., with secretary T., having considered in open court civil case No. 2-1272/2015 on Z.’s application for recognition the inaction of the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region is illegal,

INSTALLED:

Z. applied to the court to recognize the inaction of the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal, indicating that the bailiff of the Sysertsky district department of bailiffs of the Federal Bailiff Service for the Sverdlovsk Region B., on the basis of a writ of execution for case No. 40817810604900317040, issued by the Sysertsky District Court, DD.MM.YYYY, enforcement proceedings were initiated No. 40817810604900317040 to eliminate obstacles to the use of a land plot located at the address: in relation to D. (hereinafter referred to as “Debtor”) in favor of Z. (hereinafter referred to as “Debtor”) text - “Applicant”).

At the time of filing the complaint, execution within of this production was never completed, the obstacles to the use of the land plot by the demolition of the unauthorized construction of an extension to the store "" by the "Debtor" were not eliminated. The bailiff does not provide the “Applicant” with information about the progress of activities carried out within the framework of enforcement proceedings.

Three years have passed since the initiation of enforcement proceedings, but enforcement has still not been carried out.

In the event of a long-term failure by the debtor to comply with a court decision, the bailiff is recommended to review downward the deadline for fulfilling the requirements of the writ of execution and more actively apply administrative measures to the debtor.

According to clause 3.8. of the said Letter, if the debtor in the enforcement proceedings is a citizen, the bailiff issues a resolution on a temporary restriction on the debtor’s departure from the Russian Federation.

According to clause 3.9. of the specified Letter, the bailiff applies all measures aimed at fulfilling the requirements of a non-property nature contained in the executive document, in accordance with Art. (as amended on 12/02/2019) > "> (with amendments and additions, entered into force on 01/01/2020) > Chapter 13. Fulfillment of non-property requirements contained in executive documents > Article 105. General terms fulfillment of the requirements contained in the executive documents for the debtor to perform certain actions (refrain from performing certain actions)" target="_blank">105 Federal Law "On Enforcement Proceedings".

According to paragraph 3.10 of the said Letter, for the purpose of forced demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve the appropriate specialized organization in accordance with the provisions of the Federal Law “On Enforcement Proceedings”.

If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff about this, who, after checking the materials of the enforcement proceedings and establishing the fact of the full application of compulsory measures in accordance with the provisions of Art. 105 of the Law submits a memorandum addressed to the head of the relevant territorial body, which sets out the essence of the requirements of the executive document of a non-property nature, and also describes in chronological order the actions taken to fulfill the requirements of the executive document.

The involvement of an appropriate specialized organization to fulfill these requirements at the expense of the federal budget is carried out in accordance with the provisions of Federal Law dated 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" and the instructions of the FSSP Russia dated January 31, 2011 N 12/08-1872-VM.

In accordance with clause 4.5. Letters, compulsory execution of the requirement for the demolition of an unauthorized structure, building or structure or their individual structures, is carried out with the participation of witnesses (if necessary, with the assistance of internal affairs officers) with the drawing up of a corresponding act on the demolition of the structure, building or structure or their individual structures and inventory of property in accordance with the provisions of Art. 107 of the Law.

Thus, since the measures taken within the framework of enforcement proceedings are ineffective and did not lead to the independent demolition of the building by the debtor, the bailiff had to involve a specialized organization to carry out the forced demolition of the unauthorized building.

It should be noted that forced execution of the writ of execution by the “Applicant” independently with subsequent collection of expenses from the “Debtor” can only be carried out if the claimant makes such a decision, based on information received as part of the enforcement proceedings, indicating the financial situation of the “Debtor” ", which will ensure further recovery from him of the costs of the demolition of the unauthorized building (clause 4.1. of the said Letter).

In our case, the “Applicant” did not decide to independently demolish the unauthorized building with the subsequent attribution of costs to the “Debtor”, which means that the bailiff must carry out measures within the framework of enforcement proceedings aimed at the execution by the “Debtor” of the writ of execution and the elimination of obstacles to the use of land site until its execution.

In addition, the “Applicant” assumes that the property subject to demolition continues to be used.

According to clause 6.1. of the said Letter, if it is established that a capital construction project is being demolished, the bailiff draws up an act of enforcement action, in which he indicates these circumstances, and also serves on the persons operating the object to be demolished with demands to stop these actions.

In case of repeated establishment of the fact of exploitation of an object subject to demolition by the same persons, the bailiff takes measures to bring them to administrative responsibility in accordance with Art. . Code of Administrative Offenses of the Russian Federation.

Thus, the “Applicant” believes that the bailiff did not take the necessary actions aimed at executing the writ of execution, namely the demolition of an unauthorized addition that created obstacles to the use of the land plot located at the address: No. 40817810604900317040 within three years from the date of initiation enforcement proceedings.

He asked that the inaction of the bailiff of the Sysertsky District Department of Bailiffs of the Office of the Federal Bailiff Service for the Sverdlovsk Region be declared illegal in enforcement proceedings No. 40817810604900317040 initiated on August 29, 2012; oblige the Sysert district department of bailiffs of the Office of the Federal Bailiff Service for the Sverdlovsk Region to provide a full report on the activities carried out during enforcement proceedings.

Applicant Z. did not appear at the court hearing. He sent his representative to the court.

At the court hearing, the applicant’s representative Z. Ya. supported the stated demands in full, and additionally explained to the court that the decision has not yet been executed, which violates the rights of the plaintiff.

Interested person D. at the court hearing objected to the stated demands, explained that the bailiff had taken many actions, but an unenforceable decision had simply been made. The bailiffs visited the site multiple times and became convinced that technically the decision could not be carried out.

Provided a response to the court, indicating that bailiffs There are objective reasons that prevent the execution of the decision of the Sysertsky District Court dated DD.MM.YYYY.

One part of the reasons is organizational and technical. The design of the building does not allow part of it to be demolished at a distance of 1 meter from the border of the land plot, as required by the court decision. Dismantling the load-bearing wall will cause the destruction of the entire building. In the city, such an action would be tantamount to a terrorist act. In addition to other dangers, there is a real possibility of destruction of infrastructure facilities located in the immediate vicinity of the building. These are power lines, gas pipelines, communication lines. Among the communication lines there is one of federal significance, which is supervised by the FSB.

By provoking the bailiffs to action, Z. pushes them to commit great misfortune. By declaring the need to involve a specialized organization, he, either unknowingly or consciously, creates a picture of the ease of execution of a court decision. There are no such specialized organizations. The participation of several organizations is necessary. Design, including. The role of the city authorities, where Z. intends to carry out a destructive process, is not indicated in any way.

Another reason is legal. The court decision ordered the demolition of the part of the unauthorized building identified by the extension. My building cannot be defined by unauthorized construction. During its construction, legal order was observed. Registration rules are also followed. This is confirmed by the certificate of state registration ownership rights to the specified building, issued to the interested person by Rosreestr on the basis of documents certifying compliance with the legal order.

Indicates that the building has no structures that can be identified as an extension. Structurally, the building is an integral two-level structure.

Everything indicated is known to Z. He admits the impossibility of executing the court decision. His repeated statements, including in the Sysertsky District Court, are supporting facts.

Z.'s claims against the bailiffs are unfounded. Failure to do the impossible cannot be determined by inaction. Impossible, within the framework of law and technical potential. Execution order judicial proceedings complied with strictly in accordance with the law.

The bailiff did not appear at the court hearing. The reason for the absence is unknown. The time and place of the hearing of the case were duly notified.

Taking into account the opinions of the persons participating in the case, and on the basis of Art. of the Civil Procedure Code of the Russian Federation, the court determined to consider the case at this appearance.

After listening to the explanations of the applicant’s representative, an interested party, and examining the case materials, the court comes to the following conclusion.

According to Art. of the Civil Procedure Code of the Russian Federation, an application to challenge the decisions of an official of the bailiff service, his actions (inaction) is considered in the manner prescribed by Chapters 23 and 25 of this Code, with the exceptions and additions provided for by this article.

Part 1 of Article 254 of the Civil Procedure Code of the Russian Federation provides for the right of a citizen or organization to challenge in court a decision, action (inaction) of a government body, local government body, official, state or municipal employee if they believe that their rights and freedoms have been violated.

In accordance with Article 255 of the Civil Procedure Code of the Russian Federation to decisions, actions (inaction) of government bodies, local government bodies, officials, state or municipal employees, contested in civil proceedings include collegial and individual decisions and actions (inaction), as a result of which: the rights and freedoms of a citizen are violated; obstacles have been created to the citizen’s exercise of his rights and freedoms; a citizen has been unlawfully assigned any duty or has been unlawfully held accountable.

According to Part 1 of Art. 121 of the Federal Law “On Enforcement Proceedings”, the decisions of the bailiff and other officials of the bailiff service, their actions (inaction) regarding the execution of the executive document can be appealed by the parties to the enforcement proceeding, other persons whose rights and interests are violated by such actions (inaction) , in order of subordination and challenged in court.

In accordance with Art. 122 of the Federal Law “On Enforcement Proceedings”, a complaint against a decision of an official of the bailiff service, his actions (inaction) is filed within ten days from the date the bailiff or other official issued a decision, committed an action, established the fact of his inaction or refused to challenge . A person who was not notified of the time and place of action shall file a complaint within ten days from the day when this person learned or should have known about the adoption of a decision or the commission of actions (inaction).

Similar provisions are contained in Part 2 of Art. Civil Procedure Code of the Russian Federation, according to which, an application to challenge the decisions of an official of the bailiff service, his actions (inaction) is filed with the court in the area of ​​\u200b\u200bactivity of which the specified official performs his duties, within ten days from the date of the decision, commission of actions or from the day when the claimant, debtor or persons whose rights and interests were violated by such a resolution, actions (inaction) became aware of the violation of their rights and interests.

Based on the writ of execution No. 40817810604900317040 from DD.MM.YYYY, issued by the Sysertsky District Court, bailiff B. initiated enforcement proceedings No. 40817810604900317040 against the debtor D. in favor of the claimant Z., subject of execution: to eliminate the obstacle to the use of land plot No. 40817810604900317040, which is confirmed by the resolution to initiate enforcement proceedings dated DD.MM.YYYY.

In accordance with Part 1.2 of Article 14 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”, decisions on issues of enforcement proceedings made by the bailiff, the chief bailiff of the Russian Federation, the chief judicial bailiff of a constituent entity of the Russian Federation, senior bailiff and their deputies (hereinafter also referred to as an official of the bailiff service) from the date of sending (presentation) of the writ of execution for execution, are formalized by decisions of an official of the bailiff service.

From the materials of the enforcement proceedings presented to the court, it is clear that to date the requirements of the enforcement document have not been fulfilled.

During the enforcement proceedings, the following enforcement actions were carried out: demands were sent to D. to execute the court decision and provide the bailiff with supporting documents: DD.MM.YYYY

The act of execution dated DD.MM.YYYY established that the court decision was not executed by debtor D.

Due to the fact that the court decision by the debtor D. was not executed by Z., it was proposed to find a specialized organization and carry out the demolition of the unauthorized building "" at a distance of at least 1 meter from the border of land plots No. plot No. 40817810604900317040 on street k., cadastral number No. 40817810604900317040, bring this area to its original condition. These expenses will be recovered from D.

DD.MM.YYYY D. was again required to execute the court decision.

DD.MM.YYYY, on the basis of the act of execution, it was established that the court decision of D. was not executed. DD.MM.YYYY the collector Z. was again asked to execute the court decision, with the costs of execution being allocated to the debtor D.

DD.MM.YYYY D. demands for execution of the court decision were again made.

DD.MM.YYYY D. was charged an enforcement fee in the amount of

DD.MM.YYYY the bailiff applied to the court with an application to terminate enforcement proceedings in connection with newly discovered circumstances (providing a certificate of state registration of ownership of real estate, namely a land plot located at the address: , cadastral number No. 40817810604900317040 .

By the ruling of the Sysertsky District Court dated DD.MM.YYYY, the application of the bailiff of the Department of the Federal Bailiff Service for K. to terminate enforcement proceedings No. 40817810604900317040 initiated by DD.MM.YYYY was denied.

The appeal ruling of the Sverdlovsk Regional Court dated DD.MM.YYYY left the ruling of the Sysertsky District Court unchanged, and D.’s private complaint was not satisfied.

Also included in the materials of the enforcement proceedings is Z.’s complaint to the Office of the Federal Bailiff Service for the Sverdlovsk Region about the actions of the bailiff. However, the materials of the enforcement proceedings do not contain a procedural decision on this complaint.

The materials of the enforcement proceedings do not contain any other documents confirming the execution by the bailiff of actions aimed at executing the court decision.

Thus, the court found that from DD.MM.YYYY, that is, for more than a year, the bailiff did not take any actions aimed at executing the court decision.

In accordance with Article 2 of Federal Law N 229-FZ "On Enforcement Proceedings", the tasks of enforcement proceedings are the correct and timely execution of judicial acts, acts of other bodies and officials, and in cases provided for by the legislation of the Russian Federation, the execution of other documents in order to protect violated rights, freedoms and legitimate interests of citizens and organizations.

Enforcement of judicial acts is entrusted to the relevant bailiff services; the direct implementation of functions for the execution of judicial acts is entrusted to bailiffs (Article 5 of Federal Law No. 229-FZ).

According to Articles 12, 13 of the Federal Law of July 21, 1997 N 118-FZ “On Bailiffs”, the bailiff in the process of compulsory execution of judicial acts is obliged to take measures for the timely, complete and correct execution of enforcement documents.

In accordance with Art. 105 of the Federal Law “On Enforcement Proceedings”, in cases of failure by the debtor to fulfill the requirements contained in the writ of execution within the period established for voluntary execution, as well as his failure to comply with the writ of execution, subject to immediate execution, within 24 hours from the date of receipt of a copy of the bailiff’s decision - executor to initiate enforcement proceedings, the bailiff issues a resolution to collect the enforcement fee and sets the debtor a new deadline for execution. If the debtor fails to fulfill the requirements contained in the writ of execution, without good reason, within the newly established period, the bailiff draws up a protocol on the administrative offense against the debtor in accordance with the Code of the Russian Federation on Administrative Offenses and sets a new deadline for execution. If the participation of the debtor is not necessary to fulfill these requirements, then the bailiff will organize execution in accordance with the rights granted to him by this Federal Law.

By virtue of Part 2 of Article 68 of this Law, enforcement measures are applied by the bailiff after the initiation of enforcement proceedings. If, in accordance with this Federal Law, a period is established for the voluntary fulfillment of the requirements contained in the executive document, then measures of compulsory execution are applied after the expiration of such a period.

Thus, Article 107 of Federal Law No. 229-FZ defines the specifics of fulfilling the requirement contained in the executive document to vacate a land plot, to demolish a structure, building or structure or their individual structures.

According to Part 8 of this article, in order to force the release of a land plot or the demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve the appropriate specialized organization.

In accordance with Part 9 of Article 107 of Federal Law N 229-FZ, in order to ensure the forced eviction and release of non-residential premises, land or demolition of a structure, building or structure or their individual structures, the bailiff may offer the claimant to bear the costs of applying enforcement measures with their subsequent compensation at the expense of the debtor.

In addition, the Federal Bailiff Service of the Russian Federation dated March 31, 2014, developed and approved “Methodological recommendations for the execution of judicial acts on the demolition of unauthorized buildings” (the previously existing Methodological Recommendations became invalid due to the publication of these).

According to paragraph 2.4 of the Methodological Recommendations, its scope can be applied when fulfilling the requirements of executive documents on the release of land plots by demolishing buildings or their individual parts, on the demolition of individual elements of buildings and structures (floors, superstructures, extensions) and other executive documents of a similar nature.

In this case, the demolition of structures, buildings or structures located on a land plot or their individual structures is carried out if this is indicated in the executive document, in accordance with the provisions of Article 107 of the Law.

For the purpose of forced demolition of a structure, building or structure or their individual structures, the bailiff has the right to involve the appropriate specialized organization in accordance with the provisions of the Law.

If it is necessary to organize further execution at the expense of the federal budget, the bailiff informs the senior bailiff about this, who, after checking the materials of the enforcement proceedings and establishing the fact of the full application of compulsory measures in accordance with the provisions of Article 105 of the Law, submits a report to the name of the head of the relevant territorial body, which sets out the essence of the requirements of the executive document of a non-property nature, and also describes in chronological order the actions taken to fulfill the requirements of the executive document.

The costs of demolishing an unauthorized structure are related to the costs of carrying out enforcement actions and are subject to reimbursement at the expense of the debtor in accordance with Chapter 16 of the Law “On Enforcement Proceedings”.

The sequence of actions of employees of territorial bodies of the FSSP of Russia to reimburse expenses for carrying out enforcement actions is determined by the Methodological Recommendations for organizing work for reimbursement of expenses for carrying out enforcement actions dated DD.MM.YYYY N 01-10 (clause 4.6).

Moreover, taking into account the specifics of the subject of execution, the Methodological Recommendations prescribe, when fulfilling the requirements of executive documents on the demolition of unauthorized buildings, to be guided by internal indicators characterizing the level of effectiveness of the measures taken, established by the letter of the FSSP of Russia dated DD.MM.YYYY N 12/01-28214 -TI.

Methodological recommendations for the execution of judicial acts on the demolition of unauthorized buildings explain the procedure for actions of both territorial divisions and the Federal Bailiff Service of the constituent entities of the Russian Federation in fulfilling the requirements of the writ of execution of this category.

If the requirements of the writ of execution are fulfilled in the manner prescribed by Article 107 of the Federal Law “On Enforcement Proceedings” and the specified Methodological Recommendations, the tasks of the enforcement proceedings for the period from the date of initiation of the enforcement proceedings would be completed in a timely and correct manner.

The requirement of a writ of execution does not impose the obligation to demolish an unauthorized structure on the service of bailiffs and indicates the demolition of buildings at the expense of the debtors. However, this circumstance does not exempt officials of the unit from fulfilling the obligations assigned to them by law and job description responsibilities.

From the content of Article 107 of the Federal Law “On Enforcement Proceedings” it follows that this article of the Law regulates the execution of the requirements of the writ of execution for the demolition of an unauthorized building, for the vacancy of a land plot, and for the debtor’s obligation to vacate a land plot. Parts 3, 4 of Article 107 of the Law clearly provide a list of actions that include the release of the land plot specified in the executive document from movable and real estate. It is indicated that the demolition of a structure, building or structure or their individual structures includes dismantling, dismantling or destruction of the structure, building or structure specified in the executive document, or their individual structures, regardless of the type, purpose and degree of completion, as well as the removal of construction waste .

Fulfillment of the requirements of the writ of execution of the specified category does not depend on at whose expense the demolition of buildings or the release of a land plot should be carried out. The levers specified in Article 107 of the Law “On Enforcement Proceedings”, in the Methodological Recommendations, are subject to application in the event of failure by the debtor to voluntarily deadlines requirements of the writ of execution.

Thus, in order to execute the writ of execution containing the requirement that the debtor at his own expense demolish the buildings specified in the writ of execution and vacate the land plot occupied by unauthorized buildings, the bailiff was obliged to be guided precisely by the provisions of Articles 68, 107 of Federal Law No. 229- Federal Law, and, accordingly, take measures to clear the land from buildings, and draw up an act based on the results of the relevant actions.

According to the materials of the enforcement proceedings, the bailiff repeatedly issued demands to the debtor for the execution of the court decision, in addition, there is no information about sending these demands to the debtor in the materials of the enforcement proceedings. It also follows from the case materials that the resolution to collect the enforcement fee from D. in connection with the non-execution of the enforcement document in statutory the sentence was imposed once. Administrative liability under Art. of the Russian Federation for failure to comply with the requirements of the writ of execution without good reason, D. was not brought in by the bailiff. No other actions aimed at enforcing the court decision were taken within the framework of enforcement proceedings.

At the same time, in accordance with Art. 64 of the Federal Law “On Enforcement Proceedings”, enforcement actions are actions performed by a bailiff in accordance with this Federal Law, aimed at creating conditions for the application of enforcement measures, as well as forcing the debtor to complete, correct and timely fulfillment of the requirements contained in the executive document.

The provisions of the Federal Law “On Enforcement Proceedings” grant the bailiff the right to apply such enforcement measures as the commission by the bailiff on behalf and at the expense of the debtor of the action specified in the executive document, including the demolition of an unauthorized building, in the event if such an action can be performed without the personal participation of the debtor.

As follows from the case materials, the bailiff did not provide evidence of the impossibility of executing the enforcement document without the personal participation of the debtor with the subsequent collection of enforcement fees and expenses for carrying out enforcement actions from him in accordance with paragraphs. 7 clause 3 art. 68 of the Federal Law "On Enforcement Proceedings". Also in the case there is no information about the bailiff taking any measures aimed at performing on behalf and at the expense of the debtor the action specified in the executive document.

Methodological recommendations developed by the Federal Bailiff Service of the Russian Federation for the execution of judicial acts on the demolition of unauthorized buildings also provide for, in the event of a debtor’s failure to comply with a court decision, the application by the bailiff to the debtor of all measures aimed at fulfilling the requirements of the executive document, in particular, the issuance of a resolution on temporary restrictions on the debtor's departure from the Russian Federation, as well as organizing the execution of a court decision without the participation of the debtor at the expense of the federal budget, with subsequent reimbursement by the debtor of the costs of demolishing the building.

The inaction of the bailiff led to a delay in the execution of the court decision, which violated Art. The Russian Federation has the right to judicial protection, including the right to execution of a judicial act within a reasonable time.

Thus, taking into account that the bailiff for a long time did not take effective and sufficient measures for the real and timely fulfillment of the requirements of the writ of execution, the court comes to the conclusion that the inaction of the bailiff, expressed in a long-term failure to fulfill the requirements contained in the writ of execution, is illegal. sheet of the Sysertsky District Court of the Sverdlovsk Region.

D.'s arguments that the bailiff has objective reasons that prevent the execution of the court decision, such as the impossibility of demolishing part of the building due to its design, namely, the demolition of a load-bearing wall will cause the collapse of the entire building, as well as the fact that at present there is no annex as an object, but there is a single structure for which a certificate of state registration of rights has been received, the court rejects it because it has no legal significance for the case and justifies the inaction of the bailiff.

Based on the above, in accordance with Art. Art. - Civil Procedure Code of the Russian Federation, court

DECIDED:

Z.'s application to recognize the inaction of the bailiff of the Sysert district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal is satisfied.

Recognize the inaction of the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region as illegal.

Oblige the bailiff of the Sysertsky district department of the Office of the Federal Bailiff Service for the Sverdlovsk Region to eliminate the violations committed.

The decision can be appealed on appeal to the judicial panel for civil cases of the Sverdlovsk Regional Court within a month from the date the court decision was made in final form, by filing an appeal through the Sysertsky District Court.

Judge: Torichnaya M.V.

Court:

Dismantling works according to the writ of execution.

Do you need to demolish a building by court order?

Our organization has extensive experience in performing these works.

In 2016, we carried out dismantling work at 8 facilities writs of execution. Among them:

• demolition strip foundations for the fence installed on the plaintiff's territory
• demolition of bathhouses and outbuildings built in violation of SNiP requirements (based on the results of the examination)
• demolition of an illegally built car wash on the territory of the North-Western Administrative District of Moscow
• demolition of a suburban brick house, built on unauthorized territory
• dismantling the foundation of a house installed on the territory common use in SNT.
• As a rule, the defendant is in no hurry to comply with a court decision to demolish buildings and in every possible way prevents the demolition. Waiting for him to “wake up his conscience” and still do it on his own is futile.

So, we have a court decision to demolish the illegal building.

It all depends on the specific requirements specified in the writ of execution.

If the IL contains a requirement - To oblige Ivanov I.V. to dismantle (demolish) the illegally installed building, THEN

The Investigative Committee issues a resolution on the initiation of IP and sends it to the debtor and mandatory establishment of deadlines for voluntary execution. At the same time, the SPI notifies the debtor that in case of failure to fulfill the requirements of the SPI within the established time frame, dismantling can be carried out by the involved organization with the imposition of costs on the debtor.

p. art. 68 Federal Law on individual entrepreneurs

7) performance on behalf and at the expense of the debtor of the action specified in the writ of execution, if this action can be performed without the personal participation of the debtor;

For the actions of the SPI in accordance with clause 7, he must first resolve this issue with the claimant; as a rule, if the claimant is ready to pre-finance the dismantling work, then the SPI can attract an organization capable of carrying out them, and subsequently the funds can be recovered from the debtor .

In principle, the procedure is not very different from the usual “planned” dismantling, but there are nuances:

We draw up a contract for dismantling work and draw up an estimate.
Payment is made for dismantling work and removal of construction waste (if necessary).
The customer ensures that a bailiff is present at the site during the dismantling procedure. A “precinct officer” may also be required. It is better if you notify him in advance about your plans.
If there is a centralized gas supply, the presence of a gas service employee is necessary to disconnect the building from the gas supply.
It's the same with electricity. Take care of this in advance.
After the demolition is completed, a tripartite act on completion of the dismantling procedure is signed.
If you still have questions, call us, we will be happy to answer them....

Sincerely,