Публикации

Russian

Melnichenko R.G., Bojchenko V.N. Legal bases of dwelling-house's improper using by lawyer // Lawyer, № 2, 2006 interpreter - Zaharova V.M.

Term "dwelling-house" in itself predetermines its subject - house, which intending for residing. Traditionally in law houses are divided into two groups: dwelling-houses and uninhabitable buildings. Both of these groups are related to such civil law object as real estate. Incidentally each one of these has its own legal status. But it would be impossible to draw a clear legal border between these two types of legal relation objects on a practice, and also pointless.

Namely because strict separating of dwelling-houses and uninhabitable buildings legal statuses are not always substantiated, legislator permits improper dwelling-house using that is not only for residing. This situation belongs to work of free profession persons: artists, doctors, lawyers, poets, musicians, and photographers. These people's work doesn't create a lot of noise and because of it is compatible with residing conditions.

On March 1st, 2005 has been entered into a force Housing Code of RF (in subsequent - HC of RF), which permits dwelling-house using not only for purpose of residing, but also for professional or individual owner's activity fulfillment. Incidentally such using must not to violate rights and legal interests of other civilians and also requirements, which dwelling-house must answer to.

It is worth to note, that for Russian legislation improper dwelling-house using isn't an innovating: similar practice existed in Russia as far back as before revolution (for the first time lawyer's consulting room, located in dwelling-house, was opened in St. - Petersburg in 1868). Its foundation was provided for Court Charters, 1864. Examples of certain professions representatives' at-home working were kept even after revolution. Let's remember remarkable Bulgakov's hero professor Preobrazhensky, who received his clients at home in a big seven-roomed apartment.

At further dwelling-houses using became permitted exclusively for residing purposes. What is more, according to Soviet of Ministers of RSFCR's decree of September 25th, 1985 №415 "About confirmation of rules of dwelling-houses using, maintaining of dwelling house and attached to it territory in RSFCR, and Typical contract of dwelling-house renting in houses of state, municipal and social housing fund in RSFCR" dwelling-houses and dwelling buildings couldn't be used by civilians "for purpose of private acquisition, non-working income extraction and for other mercenary purposes" (p. 3).

The only strict limitation on dwelling-houses using at present day is a prohibition for allocation of industrial production in it. Owner doesn't have a right to place industrial productions in dwelling-house (p. 3 c. 288 of Civil Code of RF, p. 3 c. 17 of Housing Code of RF). This standard has powerful nature. In the present instance prohibition concerns dwelling-house at whole, not only separate living-quarters placed in it. Law rules out a possibility of various productions' allocating not only in living-quarters, but also in basements, dwelling-houses' attics, because in a contrary instance any exceptions to the main rule may make difficult proper dwelling-houses using by civilians.

In connection with it the Chief of Administration of Krasnodar-city's decree of October 2nd, 1996 № 1485 "About changing of dwelling-houses' purpose" is seemed not at all successful. According to p. 7 of this decree, conversion of dwelling-house into an inhabitable building for allocation of productions and enterprises, exercises harmful influence on human and environment in it, is prohibited. It means that for productions, which ostensibly don't exercise harmful influence, such conversion is possible. It is available contradiction to federal legislation. There is a strict prohibition in a housing law: allocation of industrial productions in dwelling-houses is prohibited. Besides, dwelling-house using is carried out with accounting of observance of rights and legal interests of civilians living in this house, requirements of fire safety, sanitary and hygienic, ecological and other requirements of legislation, and also in according to Rules of dwelling-houses using, confirmed by Government of RF, which is however lies ahead to be passed.

Friends and sweethearts are said chosen by our self, and only neighbors are given by God. Because of it during the using of dwelling-houses it is necessary to take into account the interests of people which live in neighborhoods. For example, in a one dwelling building porch the apartment on a ground floor was handed over to the undertaker's office. Although there was not any noise because of this activity, civilians feel morally hard because of such neighborhood. Rights and legal interests are violated not only with noise coming, for example, from restaurants. The common principle is valid: dwelling-house is intending for civilians' residing (c. 17). Dwelling-house using for professional or individual owner's activity fulfillment by civilians living on legal bases in this house is permitted, if it doesn't violate rights and legal interests of other civilians, and also requirements which dwelling-house must answer to are observed.

Limits of right to dwelling-house using are depend to a great extent on a necessity of its proper purpose observing as a civil law object of special social significance. Owner's authorities on possession, using and disposal of dwelling-house belonged to him are limited with its purpose.

Possessing, using and managing dwelling-house owner must take into account rights and legal interests not only of neighbors but also of relatives living together with him. He cannot admit violations of his family members' housing rights. This circumstance compels owner to suffer certain constraints and limits freedom of his discretion. Namely constraints and difficulties caused with family members' rights, living together, are limitations of property right to dwelling-house.

Family is a based on marriage steady community of persons which commonly use living space on various legal bases. Using right to occupied living-quarter occurs to members of family not from the contract with owner, it based on exclusively confidential family ties with owner (owners) of dwelling-house. For example, Federal law on May 31st, 2002, № 63-FZ "About practice as a lawyer and the Bar in Russian Federation" in p. 6 and 7 of c. 21 provides that lawyer has a right to use dwelling-houses belonged to him or members of his family on a property right by their consent for allocation lawyer consulting room. Dwelling-houses occupied by lawyer and his family members by a renting contract may be used by lawyer for allocation a lawyer consulting room by the consent of dwelling-house owner and all persons of age 18 living together with a lawyer. Thus, p. 6 and 7 c. 21 of Law about the Bar allows lawyer to use dwelling-houses for allocating lawyer consulting room. Clause 21 of this law doesn't contradicts c. 17 of HC of RF which binds civilians to use dwelling-houses without restricting housing, other rights and freedoms of other civilians, and also to carry out sanitary, hygienic, ecological, fire-preventive and other legal requirements provided with legislation.

Lawyer consulting room is not a judicial person and is a form of carrying out of lawyer's practice individually. Lawyer's right to use dwelling-houses belonged to him or his family members for allocating lawyer consulting room gives him obvious "everyday" independence. Norm assigned in c. 21 of Law about the Bar and granted to a lawyer right to use his own dwelling-house for allocation lawyer consulting room inevitably generated a lot of discussing situations and collisions of normative Acts of the same level. Thus, it is strictly determined with Law of RF on December 24th, 1992, № 4218-I "About foundations of federal housing policy" that owner or occupier of dwelling-house has a right to use it properly only. In a contrary instance long consent procedure in various instances is needed, ended with an act of local self-government about changing status of this building and its conversion in a sort of uninhabitable ones. It may be said for sure, that any lawyer in the instance of re-equipment in his house his own consulting room (even in a one of rooms) inevitably faced with legal suits not only by local administrations but also by municipal services. The latter ones have right on legal bases to demand applying of tariffs for municipal utilities on the rates of enterprise (that is on full cost) but not as for usual apartment with a large number of privileges and discounts. Since the new Housing Code had been passed everything took its place.

Thus, any judicial person has a right to have office in dwelling-house without its conversion to the sort of uninhabitable ones on condition that basic functional purpose of dwelling-house will remain fixed - to be useful for residing (there must be kitchen, bathroom, stove for food cooking etc.). Allocation of consulting room must not restrict housing rights of neighbors (must not be violated sanitary, hygienic, ecological and other rights of neighbors). These norms are determined with task of safety of housing fund. Occupiers' responsibility to maintain occupying dwelling-house in a proper condition also answers to these purposes and tasks. It is not allowed to rebuild apartment. Office can operate even without large number of visitors and influx of transport with using Internet and other means of communication, which don't violate neighbors' rights anyway. In the presence of such circumstances municipal authorities will not have foundations to demand a payment of municipal utilities on the rates for enterprises and organizations.