agreement on shared participation in construction, BTI measurements

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Lawyers' answers (2)

Lawyer, Saint Petersburg

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Art. 15 Housing Code of the Russian Federation:

The total area of ​​a residential premises consists of the sum of the area of ​​all parts of such premises, including the area of ​​auxiliary premises intended to satisfy citizens' household and other needs related to their residence in residential premises, with the exception of balconies, loggias, verandas and terraces.

From the Court's Ruling:

By going to court with claims to recover from the defendant overpaid Money for the total area of ​​the apartment, L.N.N. referred to the fact that the defendant violated the requirements when calculating the area of ​​the glazed loggia in the apartment, namely, the area of ​​the loggia was calculated by the defendant with a coefficient of 1.0 instead of a coefficient of 0.5; The plaintiff also indicates that the area of ​​the balcony is larger than provided for in the contract, and therefore, in the plaintiff’s opinion, she overpaid under the contract in the amount<...>rubles
According to Part 1 of Article 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to enter into a contract.
In accordance with Part 4 of Article 421 of the Civil Code of the Russian Federation, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts.
According to clause 1.3.1 of agreement No.<...>on shared participation in housing construction, the projected total area of ​​the apartment includes: the total area of ​​the apartment excluding loggias, balconies, terraces, verandas, cold storage rooms -<...>sq. m; the total area of ​​all glazed loggias, balconies, terraces, verandas, cold storage rooms -<...>sq. m.
According to clause 3.2 of the agreement, final payments between the parties are made after receiving data from the regional Design and Inventory Bureau on the total area of ​​the apartment, calculated in accordance with clause 1.3.1 of the agreement.
According to the measurement of the disputed apartment made by the branch of State Unitary Enterprise GUION PIB<...>, the total area of ​​the apartment is<...>sq. m, including the area of ​​the glazed loggia -<...>sq. m.
When concluding the agreement, the parties agreed that the payment under the shared participation agreement will be calculated based on the area of ​​​​all premises of the apartment without applying coefficients, which does not contradict current legislation.
The use of coefficients for calculating the area of ​​an apartment is provided for the purposes of inventory and accounting of the housing stock.

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Lawyer, Saint Petersburg

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another excerpt from the judicial act.
According to clause 1.3, the shareholder invests in the construction of a house and, subject to fulfillment of obligations under the contract, upon completion of construction within the time period established by the contract, accepts it for registration as property three-room apartment on<...>- floor, preliminary number N<...>, total design area<...>sq. m (N<...>), calculated in accordance with clause 1.3.1.
In accordance with clause 1.3.1, the total design area of ​​the apartment under the contract includes: - the total area of ​​the apartment excluding loggias, balconies, terraces, verandas, cold storage rooms; - the total area of ​​all glazed loggias, balconies, verandas, as well as cold storage rooms; - half the total area of ​​all unglazed loggias, balconies, terraces.
According to clause 1.4, the amount of the investment contribution of the shareholder (the cost of equity participation and, accordingly, the cost of the Agreement) is<...>rubles based on<...>rubles per sq. m of total area.
In connection with the completion of construction and carrying out PIB measurements of the premises of a residential building at the address: St. Petersburg,<адрес>, lit. A, by both sides<дата>an additional agreement was concluded to the Agreement, according to which the apartment financed by the shareholder with preliminary number N<...>, design area 110.10 sq. m has actual number N<...>, the area of ​​the apartment according to the results of the PIB measurement is 96.90 sq. m. m, the area of ​​glazed loggias, balconies, verandas, as well as cold storage rooms is 11.20 sq. m. m, the total area of ​​the apartment is 108.10 sq. m. m; the difference between the projected total area of ​​the apartment under the contract and the total area of ​​the apartment calculated in accordance with clause 1.3.1 of the Agreement using the results of measurements of the premises of the PIB apartment is 2 square meters. m, the final volume of equity participation of the shareholder, calculated in accordance with clause 1.3.1 of the Agreement - 108.10 sq. m. m; difference in area specified in paragraph 2 additional agreement does not exceed 2% of the projected total area of ​​the apartment.
Fulfillment by the plaintiff of the obligation provided for in the Agreement to make an investment contribution in the amount of<...>The defendant does not dispute the rubles.
Refusing to satisfy the demands of L.L. the district court proceeded from the above and was guided by the provisions of Article 421 of the Civil Code of the Russian Federation, according to which citizens and legal entities are free to enter into an agreement; Article 424 of the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation), which allows for price changes after the conclusion of an agreement in cases and on the conditions stipulated by the agreement; Article 309 of the Civil Code of the Russian Federation on the fulfillment of obligations; Article 56 of the Code of Civil Procedure of the Russian Federation, according to which each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided federal law.
During the consideration of the case, the court of first instance assessed the evidence collected in the case in accordance with the requirements of Article 67 of the Code of Civil Procedure of the Russian Federation and came to the correct conclusion that there were no grounds provided for by law or the Agreement to satisfy the plaintiff’s demands.
From the case materials it follows that, in accordance with clause 3.2 of the Agreement, the parties agreed that if the area of ​​the apartment changes by more than 2% of the design according to the results of measuring the PIB apartment, a refund will be made (“Trust” - in case of a decrease in the area apartments) or an additional payment (Shareholder - in case of increasing the area) of funds based on the cost of 1 sq. m specified in clause 1.4 of the Agreement.
According to the terms of the Agreement, the data on the total area of ​​the apartment used in calculations is calculated in accordance with clause 1.3.1 of the Agreement.
During the consideration of the case, the court found that the total area of ​​the apartment, calculated in accordance with clause 1.3.1 of the Agreement using the results of measurements of the premises of the PIB apartment, is 108.10 square meters. m; the difference between the projected total area of ​​the apartment under the contract and the total area of ​​the apartment calculated in accordance with clause 1.3.1 of the Agreement using the results of measurements of the premises of the PIB apartment is 2 square meters. m, i.e. does not exceed 2% of the projected total area of ​​the apartment; the plaintiff has not provided evidence to the contrary.
In such circumstances, when the difference in area specified in clause 2 of the additional agreement does not exceed 2% of the projected total area of ​​the apartment, and the final cost of equity participation is<...>rubles, the court justifiably refused to satisfy the plaintiff’s demands to recover from the defendant the difference between the projected area of ​​the apartment under the agreement on shared participation in housing construction and its actual area, which exceeds 2 square meters. m design.

IS THE BALCONY INCLUDED IN THE TOTAL AREA OF THE APARTMENT:
WHAT YOU NEED TO CONSIDER WHEN BUYING A HOUSING

By concluding an investment purchase agreement with
developer, buyers are often interested in the question of calculating the cost of the amount
transactions. In particular, is the balcony included in the total area of ​​the apartment, and what part
will it be taken into account in the future when calculating the monthly rent? From the point
from the point of view of the legislation of the Russian Federation, the actions of developers,
using the actual area of ​​balconies when calculating the price of an apartment,
illegal, since their value must be calculated using
reduction factors. The balcony is included in the total area of ​​the contract with the developer
If we analyze Article 15 of the Housing Code of the Russian Federation “Objects of housing rights”, in particular,
point 5, then you can find out that: The total area of ​​the living space is calculated
by adding the areas of all its parts. Those. counted as premises for
satisfaction of household needs, as well as auxiliary ones related to living
people in living quarters; The exception is the area of ​​verandas, terraces, balconies
and loggias. For reference: This does not mean that the developer, having incurred expenses for
construction of housing, should simply give a balcony or terrace to future
buyers. It is paid, but when determining a fair price it must
use a reduction factor for the balcony area, because he can not
considered living space. Let's figure out how to calculate the area of ​​a balcony when
buying an apartment Reasons causing confusion Let's consider the developer's point of view,
and try to understand what motivates him in such a situation: Construction requirements
normal; The desire to make money from uninformed buyers. Copied from
technical plan of the BTI “Confusion leading to deception” - this is the expression that
you often hear from new home buyers when they try to
specify the total and living area of ​​the apartment. According to the text of the share participation agreement
“total project area” includes a balcony - a balcony in the total area
included, since the interpretation corresponds to the concepts used in construction
and used in SNiPs. Upon receipt of a technical passport at the BTI in
documentation also indicates “total area”, since such a concept
used technical documentation. This figure includes the area taking into account
balconies, warm or cold. Increased size of the balcony But it should be understood
that: According to the new Housing Code of the Russian Federation, the concept of “living space” is not used; BTI specialists
carry out all measurements to take into account the constructed object, however, the calculation algorithm
housing area does not include external structures, i.e. Balcony is not included in the total
apartment area; Total area in the BTI passport (area including balconies)
is printed for reference, in order to have something to compare previously issued
documentation; For reference: Increasing the balcony area (reconstruction or
attaching a balcony to a room) will also require a contribution in the future
changes to the technical passport and will certainly affect the amount of rent.
If the developer does not set out to deceive buyers, then when selling apartments in
in an apartment building, he will use special prices when calculating
reduction factors. Accordingly, what if buyers are not aware of
such a situation, then deception is possible, because the buyer agrees with the price for 1
sq.m of housing.

METHODOLOGY FOR APPLYING REDUCTION FACTORS

Let us consider as examples the option
calculating the cost of housing with and without the use of these coefficients:
Buying an apartment with an area of ​​60 sq.m., where the total area includes a balcony of 4 sq.m. and
loggia 6 sq.m. without applying reduction factors, the buyer will
pay the cost of the housing itself - 50 sq. m, as well as 10 sq.m. interior
balcony and loggia (4+6). Buying a similar apartment, but using
reduction factors, the buyer will pay for the purchase according to the following
algorithm: for 50 sq.m. of usable area of ​​the apartment, pays the entire cost; behind
balcony 4 sq.m. taking into account a reduction factor of 0.3; per loggia 6 sq.m. taking into account
reduction factor 0.5. The right approach to buy a home - discussion
cost per square meter HOW TO AVOID EXCESSIVE OVERPAYMENT The only thing
the right way out from a similar situation, this is a scrupulous study
investment agreement. And often for this potential buyers
attract specialists from the category of BTI employees, construction and design
organizations, realtors, etc. Naturally, when it enters the general area
balcony, then the amount of overpayment turns into very impressive figures. So
expenses for specialist assistance when concluding a purchase and sale agreement
will definitely justify themselves. Conclusions: changes in housing legislation
have led to a situation where not all of its provisions are interpreted unambiguously. That's why
the issue of accounting for the area of ​​balconies and loggias should be scrupulously understood.

Before purchasing new apartment In a house, most potential buyers are confused about whether the balcony is included in the total area of ​​the apartment. The presented circumstance is primarily due to the imperfection of the current housing legislation and terminology that is quite complex for the average person. In order to understand the questions of whether the balcony is included in the total area and how to calculate the area of ​​the balcony, you should carefully study the requirements of the current regulations.

The housing sector of citizens is regulated by a significant number building regulations, standards and regulations enshrined at the federal level, in particular the Housing Code of the Russian Federation.

Before calculating the area of ​​a loggia, you should clearly understand the difference between the concepts of “general” and “residential” square footage of housing, and also understand the issues of whether a balcony is included in the total area, how to calculate the total square footage in an apartment with a balcony, how to calculate the square footage of balconies and loggias according to your passport with the total area of ​​the apartment, etc. The presented terms are enshrined in Art. 15 Housing Code of the Russian Federation. Thus, a living space is considered to be an isolated room, which is real estate and suitable for permanent residence citizens.

Based on the provisions of Part 5 of the above article, the total square footage of the housing stock is the sum of all areas of premises included in a particular property, including utility rooms, loggias, open terraces, balconies, etc.

• balcony and terrace coefficient – ​​0.3;
• loggia coefficient – ​​0.5;
• veranda coefficient or unheated room – 1,0.

In the case of redevelopment of your living space, in particular, consolidation, when the loggia is collectively included in the total area of ​​​​the apartment, along with heating, its square footage should be included in the overall indicator of living space. However, along with the visual and actual expansion of your home, you should not forget about the increase in utility bills.

Important features when calculating the area of ​​new housing

The similarity of the terms common and living space often causes significant disputes when drawing up real estate purchase and sale agreements. The issue of calculating the nominal area arises with particular relevance when purchasing an apartment in a new building. So?

In accordance with current legislation, shared construction agreements clearly state the developer’s obligation to include in the acts a description of the apartments of all premises included in its composition. First of all, this is due to the primary design documentation for the construction of the structure.

Any construction of residential buildings, as well as a description of the procedure for inclusion in the total area of ​​the apartment separate rooms, is implemented in strict accordance with the requirements of SNiP, drawn up on the basis of the requirements of the Housing Code of the Russian Federation. According to this regulatory documentation, as mentioned above, the calculation of the square footage of loggias, balconies, terraces and other controversial premises is carried out taking into account the corresponding reducing indicators.

A huge number of unscrupulous construction companies at the time of attracting a client base, they often confuse future owners with their terminology, which leads to an unreasonable overpayment due to incorrect calculation of the housing area. In this regard, you should clearly understand the calculation procedures and be extremely careful when determining the cost of 1 square meter of living space.

There are several ways to calculate quadrature. Each of them differs from each other in the subject of calculation chosen as the basis:

1. Determination of living space. The most rational method of calculation, since the actual area of ​​the apartment suitable for living is calculated. The owner of the living space will not have to overpay for non-residential premises.
2. Calculation of the total area of ​​housing. The presented marketing ploy is used in most cases to attract buyers. Based on the results of the calculation made by this method, the cost per square meter will be significantly lower than the monetary equivalent in the previous case. However, under the cover of living space you acquire non-residential square meters at the same price.

In this regard, before purchasing an apartment or other living space, it is important to first familiarize yourself with all the project documentation, as well as determine the type, size and cost of additional premises.

An example of calculating the area of ​​a loggia and balcony

In most cases, when establishing the area of ​​additional premises, you should refer to the documentation issued by the technical inventory bureau at the stage of registration of housing. However, there are a number of situations where the calculation of the square footage must be made before receiving the appropriate documentation for the living space, for example, when purchasing housing or in view of the future combination of several premises.

In relation to this case, in order to find the area taking into account the reducing factor, it is necessary to take the nominal value of the square footage of the glazed loggia and multiply it by the appropriate coefficient. The area of ​​the loggia is 3.5 sq.m., the reduction factor of the glazed loggia is 1, thus general meaning area upon payment is 3.5 sq.m.

However, how to calculate the area in the case of unglazed balconies. In this situation, the calculation is carried out taking into account the coefficient equal to the value 0.3. With a square area of ​​5 sq.m. the total living area for which payment must be made is 1.5 sq.m.

When making a decision, for example, about glazing additional rooms, you should initially calculate the size of the future fee. In some situations, the rent when performing such actions increases significantly.

Finding the total square footage of your living space and the area of ​​the balcony, and also establishing whether the area of ​​the room is included in the total area of ​​the apartment or not is not a difficult task. To learn how to calculate the area of ​​an apartment using an application on a smartphone, watch this video:

For their successful implementation, you should first familiarize yourself with the contents of the project and apartment documentation (certificate, passport), and also be guided by the norms of the current legislation.

Apartment owners often face one question: are they the owners of their balconies and loggias? For many, a loggia is just a place where you can put unused things. Sometimes, the last refuge is found in the loggia for sleds, children's skis, glass jars and notes from the school days of all the closest relatives.

But once you came home, you discovered that your balcony is being used not only inside, but also outside. It could be like advertising banner, which is not only attached to the loggia, but also blocked the view of the street with a panel. Also, there are often cases of quarrels between neighbors when decorative roses or grapes “move” onto your loggia and bloom. In this case, who is to blame for your raging allergy?

Also, the question of owning a loggia may arise when you notice that the fee for the heated area of ​​the premises has increased. Not dramatically, but the changes are noticeable. The housing office may answer you that as the owner of the apartment, you pay for its entire area, including unheated space.

When buying or selling an apartment, can’t decide on the amount? How much should you pay for the loggia area? Should I pay in full for these square meters?

So who is right in each of these cases?

According to the fifth paragraph, fifteenth article of the housing code, the total area includes all square meters of your home. Be it a corner corridor, a niche in the bedroom, a small storage room or an unused balcony. All these parameters are included in the total area of ​​the housing and belong to the owner of the apartment, that is, you.

Heated discussions on the issue of whether a balcony is part of the common property are due to the difference in apartment owners’ understanding of the concepts of “structural element” and “personal space”. They are trying to attach free access to all residents to the definition of “common property”. Differences in interpretations of current legislative norms were filed in the form of lawsuits in the courts, up to the Supreme Court. Thus, on January 17, 2012, the Appeal Commission of the Supreme Court of the Russian Federation issued ruling No. KAS11-789. Let's consider how the right to shared ownership is distributed.

Housing Code The Russian Federation (LC) states that the rules of content common property V apartment buildings are established by the Government of the Russian Federation (Article 39). Such Rules were approved on August 13, 2006 (Resolution No. 491).

Subsection “B”, clause 2 of the Rules refers to balcony slabs that enclose bearing structures, to the composition of property belonging by right of common shared ownership to all owners of individual premises of an apartment building.

The rules and regulations for the technical operation of the housing stock (clause 4.2.4.2) assign balconies to load-bearing structures.

Article 36, Part 1 of the Housing Code establishes the classification of enclosing structures as common property.

Legislative acts do not provide for classifying only those elements that serve several premises as common property. Balcony floors are included in the overall integral design of each building as enclosing structures, providing stability and strength indicators.

Decision of the RF Armed Forces

The determination No. KAS11-789 of the appeal commission states that classifying the structural elements of the balcony of a separate apartment as common property does not in any way contradict the Housing or Civil Code. The Supreme Court of the Russian Federation recognized the balcony (loggia) slab as not intended for use in more than one apartment, but as belonging to the property for the common possession of the residents of the building.

Distribution of Responsibility

Common property includes: slab, external fencing, external walls

Owners privatized apartments are divided into two camps according to their attitude towards the need to repair the balcony:

1. Part of your apartment (summer area). When buying a home, this is indicated in some contracts. Accordingly, they arrange their personal territory according to their wishes.
2. Component of the facade of a house. Repairs must be made Management Company(UK) or housing department.

Summarizing everything together regulations, we get the following distribution:

1. Common property includes:
   • plate;
   • external fencing;
   • external walls.
2. Individual use:
   • railings;
   • window;
   • doors;
   • self-installed canopy, glazing, design solutions.

Therefore, responsibility for the maintenance of a specific element of this part of the living space may differ.

Additional approval is required for hanging flower boxes and other protruding objects that weigh down load-bearing parts on the outer part of the fence.

How to deal with the distribution of property

IN multi-storey buildings walls, floors, ceilings separate the apartments, they are not divided between residents - this is shared ownership. To take into account “living space”, the area of ​​residential and utility rooms, measured in m². Such a space is arranged finishing materials, filled with objects of use, limiting the ability of anyone to enter. Actual ownership of the apartment as a totality building materials, just a legal term.

This is how the right to use a balcony with an exit from a privately owned premises is interpreted - the space indicated in the technical passport of the apartment for the tenant. Improving the situation by installing awnings, light frame structures for protection from bad weather and sun, their repairs and maintenance are on the balance sheet of the apartment owner and will be part of his property. Some reconstruction options require approval from permitting authorities. Structural elements the houses belong to all participants in the housing association.

It is significant that the same relationships between residents arise when deciding on the placement of advertising structures and banners on the outer surface of the loggias. The general meeting of all owners decides by protocol the issue of consent to the placement of the poster. Moreover, the decision to remove unauthorized advertising products (by a resident, an outsider, a tenant) is also made by all homeowners.

Those parts of the house that are not divided by agreements of all participants according to some other criteria are divided among everyone in equal parts. If one owner has made a permanent improvement to his part, his share may be increased accordingly. The improvements being removed are the property of the resident.

It is for the operation of the building as a complex of technological systems that a mechanism of shared participation of all owners of individual apartments has been developed.

Repair of common household facilities

Maintenance and repair services, their volumes, quality requirements, regularity, are taken into account in the amount of fees for the maintenance of all premises, approved at the general meeting (if the property is managed by the management company), by the management of the HOA.

The commission inspection report is submitted to the HOA meeting for consideration. The meeting is empowered to make a decision on repairs with the consent of 2/3 of the votes from total number participants.

To make a competent decision on making repairs in connection with emergency condition common property ( balcony slabs, existing fencing) an application is sent to the director of the management company. One copy must be in the hands of the apartment owner - the applicant, in case of going to court due to refusal. Watch this video to learn about how common household repairs are carried out:

The meeting of owners makes a decision on the need to allocate money for repairs at the request of the tenant, taking into account written proposals provided by the management company, on the expected start date of capital work, the required volume and types of work, the estimated cost of construction materials, the schedule for the allocation of funds, and other essential conditions.

The owner of the apartment may be required to eliminate changes made to the shared part of the building if they violate established standards. In case of refusal to comply with the requirements, an appeal is sent to the State Housing Commission for inspection of violations.

Accounting changes

A loggia or balcony, as a rule, is included in the total area and is paid with reducing factors. If the owner carries out a renovation and combines it with an adjacent room, then this area becomes heated with corresponding heat charges.

In practice, management companies often do not include areas such as balconies in the list of property of the house when concluding a contract. Additionally, they confirm the obligation of the apartment owner to maintain their part of the property by sending out and delivering notifications about clearing snow from structures in winter. Taking into account such circumstances, the court takes the side of the company.

A separate point will be the ownership of one room in separate apartment. In this case, the owner does not have the right to restrict the use of the balcony by all residents of the apartment or to separate it from the common part.