Review of judicial practice on the availability of residential premises

Practice overview
(providing disabled people with conditions for unimpeded access to living quarters and common property in apartment buildings)
Resolution of the Government of the Russian Federation from 09.07.2016 g. № 649

I. Implementation of the Resolution of the Government of the Russian Federation from 09.07.2016 g. № 649

1) Fabula: A disabled person of the first group of IAS applied to the NROOI "Invatur"

M.A.S.. applied to the administration of the Avtozavodsky district of the city of Nizhny Novgorod with a statement, in which he asked to ensure the conditions of accessibility of the living quarters of M.A. S. and common property in an apartment building, where M.A.C. lives, in accordance with the Decree of the Government of the Russian Federation dated 09.07.2016 g. № 649.

As follows from the response of the Administration from 05.10.2017 g., the municipal commission did not take action to ensure the conditions of accessibility for M.A.C., namely, she did not conduct a survey of M.A. S's living quarters. and common property in an apartment building, where M.A.C. lives, in order to assess the adaptation of a disabled person's living quarters and common property in an apartment building, where the disabled person lives, taking into account the needs of the disabled person and ensuring the conditions for their accessibility for the disabled person. In response, the Administration refers to the need to provide additional documents.

Violated norms:

P. 5.1 Art. 2 LCD RF;

Rules for ensuring the conditions of accessibility for persons with disabilities of residential premises and common property in an apartment building, approved. By the Decree of the Government of the Russian Federation from 09.07.2016 g. № 649;

The procedure for the creation and operation of the regional interdepartmental commission and municipal commissions, approved. By order of the Ministry of Social Policy of the Nizhny Novgorod Region from 23.03.2017 g. № 127.

Taken measures: An administrative statement of claim was prepared and filed with the court to declare the inaction of the Avtozavodsky district administration in Nizhny Novgorod illegal, expressed in the failure to conduct a survey of the living quarters of M.A. S. and common property in an apartment building, where M.A.C. lives, in order to assess the adaptation of a disabled person's living quarters and common property in an apartment building, where the disabled person lives, taking into account the needs of the disabled person and ensuring the conditions for their accessibility for the disabled person; on the obligation to conduct the specified survey.

By the decision of the Avtozavodsky District Court of the city of Nizhny Novgorod from 29.01.2018 g. in case No. 2a-952/2018 the claim was satisfied.

On this issue, replies were also received from the prosecutor of the Avtozavodsky district. Nizhny Novgorod, Ministry of Social Policy NO, Ministry of Construction of the Russian Federation, indicating the illegality of the administration's inaction and the need to conduct the above survey without submitting any documents.

19.09.2018 g. this court decision was executed by the administration, an examination of the living quarters of M.A.S.. and common property in an apartment building. Based on the results of the survey, act No. 3, который направлен в муниципальную комиссию по обследованию жилых помещений и общего имущества в многоквартирном доме, in which people with disabilities live, to make the appropriate decision.

2) Fabula: NROOI "Invatur" contacted mother of a disabled child S.E..

The applicant applied to the administration of the Kanavinsky district of the city of Nizhny Novgorod with a statement, in which she asked to ensure the conditions for the availability of residential premises and common property in an apartment building, where the applicant lives with his daughter, in accordance with the Decree of the Government of the Russian Federation dated 09.07.2016 g. № 649.

As follows from the response of the Administration from 30.11.2017 g. the commission carried out a survey of living quarters and common property in an apartment building, where the applicant lives with his daughter.

From n. 12 Of the Rules, approved. By the Decree of the Government of the Russian Federation from 09.07.2016 g. № 649 should, that, based on the results of the survey, an act of inspection of the living quarters of the disabled person and common property in an apartment building is issued, where the disabled person lives, for the purpose of their adaptation, taking into account the needs of the disabled person and ensuring the conditions of their accessibility for the disabled person.

In turn, a survey of residential premises and common property in an apartment building, where the applicant lives with his daughter, not carried out, the survey report was not drawn up.

Violated norms:

P. 5.1 Art. 2 LCD RF;

Taken measures: To the Prosecutor's Office, Acting Governor of the Nizhny Novgorod Region, Ministry of Social Policy of the Nizhny Novgorod Region, Commissioner for Human Rights in the Nizhny Novgorod Region, the administration of the city of Nizhny Novgorod sent appeals on the fact of inaction of the administration of the Kanavinsky district of the city of Nizhny Novgorod and the submission of false information.

20.02.2018 g. a survey of the living quarters was carried out Applicants and common property in an apartment building, in which the Applicants live in order to assess the accommodation of a disabled person and common property in an apartment building, where the disabled person lives. Based on the results of the survey, an act was drawn up, который направлен в муниципальную комиссию по обследованию жилых помещений и общего имущества в многоквартирном доме, in which people with disabilities live, to make the appropriate decision.

3) Fabula: NROOI "Invatur" contacted mother of a disabled child S.E..

20.02.2018 g. a survey of the living quarters and common property in an apartment building was carried out, in which the Applicant lives with his daughter in order to assess the accommodation of the disabled person and common property in an apartment building, where the disabled person lives, taking into account the needs of the disabled person and ensuring the conditions for their accessibility for the disabled person. Based on the results of this survey, an act was drawn up.

05.06.2018 g. The administration sent to the applicant:

– act of inspection of the living quarters of a disabled person and common property in an apartment building, where the Applicant lives with his daughter from 20.02.2018 g.;

– economic feasibility test decision (inexpediency) reconstruction or overhaul of an apartment building (parts of the house), where the Applicant lives with his daughter from 20.02.2018 g.;

– conclusion on the impossibility of adapting common property in an apartment building, where the Applicant lives with his daughter from 20.02.2018 g.

In its turn, calculation of the need for financial resources for the reconstruction and (or) overhaul, as well as the calculation of the need for financial resources for the purchase of a new dwelling by the commission was not carried out and was not compared. These calculations are not attached to the Decision on the economic inexpediency of reconstruction or overhaul of an apartment building from 20.02.2018 g.

Thus, conclusions of the Commission on the economic inexpediency of reconstruction or overhaul of an apartment building (parts of the house), where the applicant lives with his daughter, as well as the Commission's decision based on the results of the economic feasibility check (inexpediency) reconstruction or overhaul of an apartment building (parts of the house), where the disabled person lives from 20.02.2018 g., are illegal.

Since the Commission's decision based on the results of the economic feasibility check (inexpediency) reconstruction or overhaul of an apartment building (parts of the house), where the disabled person lives from 20.02.2018 g., is illegal, The conclusion of the commission on the impossibility of adapting common property in an apartment building, where the disabled person lives from 20.02.2018 g., is also illegal.

Violated norms:

Rules for checking the economic feasibility of reconstruction or overhaul of an apartment building (parts of the house), where the disabled person lives, in order to adapt the living quarters of a disabled person and (or) common property in an apartment building, where the disabled person lives, taking into account the needs of the disabled person and ensuring the conditions for their accessibility for the disabled person, approved. Приказом Минстроя России от 28.02.2017 g. № 583/пр.

Taken measures: An administrative statement of claim was prepared and filed with the court to declare illegal Decisions based on the results of economic feasibility check (inexpediency) reconstruction or overhaul of an apartment building from 20.02.2018 g., Conclusions about the impossibility of adapting common property in an apartment building, where the Applicant lives from 20.02.2018 g.

By the decision of the Kanavinsky District Court of the city of Nizhny Novgorod from 24.10.2018 g. in case No. 2a-4685/2018 (entered into force 27.11.2018 g.) the claim is satisfied.

4) Fabula: A disabled person of the first group G.Ye.G applied to NROOI "Invatur".

G.E.G.. applied to the administration of the Sormovsky district of the city of Nizhny Novgorod, and also to the Administration of the city of Nizhny Novgorod with a statement, in which she asked to ensure the conditions for the availability of living quarters G.E.G. and common property in an apartment building, where G.E.G., in accordance with the Decree of the Government of the Russian Federation dated 09.07.2016 g. № 649.

As follows from the answers of the City Administration from 11.03.2019 g. and 12.04.2019 g. additional documents must be submitted for the survey.

Violated norms:

P. 5.1 Art. 2 LCD RF;

Regulations on the Procedure for the Creation and Operation of the Municipal Commission and the Plan of Measures for the Adaptation of Living Rooms for Disabled People, approved. By the decree of the administration of the city of Nizhny Novgorod from 06.07.18 № 1633.

Taken measures: A complaint against the inaction of the administration of the city of Nizhny Novgorod and the administration of the Sormovsky district of the city of Nizhny Novgorod was prepared and submitted to the prosecutor's office of the city of Nizhny Novgorod.

On this issue, a response was received from the Deputy Prosecutor of the city of Nizhny Novgorod from 14.05.2019 g. indicating the illegality of the administration's inaction and the need to conduct the above survey without submitting any documents. The indicated violation was included in the generalized submission addressed to the head of the city.

5) Fabula: The mother of a disabled child M.N.P turned to the NROOI "Invatur".

The applicant applied to the administration of the Avtozavodskiy district of the city of Nizhny Novgorod with a statement, in which she asked to provide her son with the conditions for the availability of common property in an apartment building in accordance with the Decree of the Government of the Russian Federation dated 09.07.2016 g. № 649; equip the entrance group of the entrance with a lifting device or a ramp for access from the entrance door of the entrance to the first floor of an apartment building to the site to the elevator; equip the entrance group of the entrance with a ramp for access from the street to the entrance door of the entrance.

Administration in response from 03.03.2020 g. indicates the need to submit a package of documents (title documents, technical certificate (technical plan), cadastral passport and other documents), in this case, the administration does not refer to the corresponding rule of law, reinforcing this obligation of a disabled person.

Violated norms:

P. 5.1 Art. 2 LCD RF;

Taken measures: A complaint about the inaction of the Avtozavodsky district administration of Nizhny Novgorod was prepared and submitted to the prosecutor's office of the Avtozavodsky district of the city of Nizhny Novgorod.

In accordance with the response of the prosecutor's office of the Avtozavodsky district of the city of Nizhny Novgorod from 21.04.2020 g. the above inaction and the demands of the Avtozavodsky district administration were declared illegal. According to the results of the prosecutor's check, a submission was made to the head of the Avtozavodsky district administration of the city of Nizhny Novgorod to eliminate the violations..

6) Fabula: M.E.A.. applied to the administration of the Kanavinsky district of the city of Nizhny Novgorod with a statement, in which he asked to ensure the conditions for the availability of residential premises and common property in an apartment building, where he lives, by equipping the entrance group with a ramp.

According to the letter dated July 31, 2017. administration of the city of Nizhny Novgorod for 2017. OJSC "DK Kanavinsky district" is planned to install a ramp at the entrance No. 9.

At the time of going to court (05.10.2017 g.) responses from OJSC "DK Kanavinsky district" about the device of the ramp at the entrance No. 9 for a wheelchair user not reported, no work is being done.

Violated norms:

Art. 7 Constitution of the Russian Federation;

Art. 9 Convention on the Rights of Persons with Disabilities;

P. 5.1 Art. 2 LCD RF;

Art. 15 Federal law from 24 November 1995 year No. 181-FZ "On social protection of disabled people in the Russian Federation";

Art. 5 Law of the Nizhny Novgorod region from 05.03.2009 No. 21-З "On a barrier-free environment for people with limited mobility in the Nizhny Novgorod region".

By the decision of the Kanavinsky District Court of the city of Nizhny Novgorod from 27.11.2017 g. in case no. 2-4877/2017 (The appeal ruling of the Nizhny Novgorod Regional Court from 20.02.2018 g. left unchanged and entered into force 20.02.2018 g.) the claim is satisfied.

The court reached a reasonable conclusion, that providing disabled people with conditions for unimpeded access to common property in MKD lies with the local government. The administration of the city of Nizhny Novgorod is obliged to install the ramp to the entrance No. 9 residential building. Also, the court recovered from the administration of the city of Nizhny Novgorod in favor of the Claimant compensation for moral damage in the amount of 2 000 rubles.

II. Recognition of a dwelling as unfit for habitation and legal implications

1) Fabula: The mother of a disabled child D.V.A applied to the NROOI "Invatur".

By the decree of the head of the administration of the city of Nizhny Novgorod from 22.08.2017 living quarters, in which the applicant's family lives, it was recognized as unfit for residence of citizens and their family members on the basis of a conclusion about the impossibility of adapting the living quarters of a disabled person and common property in an apartment building, where the disabled person lives, taking into account the needs of the disabled person and ensuring the conditions for their accessibility for the disabled person.

According to an extract from the order of the head of the Administration from 20.11.2017, D.Yu. with family composition 3 man (it, husband and daughter) recognized as poor in order to be registered as those in need of residential premises, provided under social employment contracts.

By order of the head of the Administration from 20.12.2017 a family, consisting of three people is not accepted as being in need of residential housing of the municipal housing stock, provided under social employment contracts.

As of 01.02.2018 g. no living quarters were provided to the applicant. From the message of the administration of the city of Nizhny Novgorod follows, that at present, the municipal property lacks the necessary living quarters in newly built residential buildings, work is underway with the developer on the construction of residential premises for wheelchair users on the 1st floors of houses under construction.

Violated norms:

Art. 17 Federal law from 24 November 1995 g. No. 181-FZ "On social protection of disabled people in the Russian Federation";

Art. 49 and Art. 57 LCD RF.

Taken measures: A statement of claim was prepared and submitted to the court for the provision of residential premises under a social tenancy agreement out of turn.

By the decision of the Avtozavodsky District Court of the city of Nizhny Novgorod from 25.05.2018 g. claims were partially satisfied. The court imposed on the administration of the municipal district the obligation to provide the minor D.V.. and her mother out of turn under a social tenancy agreement, suitable for a disabled child, comfortable in relation to conditions g. Nizhny Novgorod, meeting the sanitary and technical requirements for living quarters, in line d. Nizhny Novgorod, subject to the right to additional living space, total area not less 39 sq.m.

2) Fabula: The mother of a disabled child, IMN, applied to the NROOI "Invatur".

By the decree of the administration of the Balakhninsky municipal district of the Nizhny Novgorod region from 17.09.2018 g. living quarters, where the applicant lives with his son, was declared unsuitable for a disabled person on the basis of a conclusion about the impossibility of adapting a disabled person's living quarters and common property in an apartment building, where the disabled person lives, taking into account the needs of the disabled person and ensuring the conditions for their accessibility for the disabled person.

By the Resolution of the Administration 15.10.2018 g. Applicant with two family members (she and son) recognized as poor in order to be registered as needing residential premises, provided under social employment contracts.

By the Resolution of the Administration of the Balakhna Municipal District of the Nizhny Novgorod Region from 27.11.2018 g. Applicant with two family members (she and son) registered as those in need of residential premises, provided under social employment contracts, based P. 3 h. 1 Art. 51 Of the Housing Code of the Russian Federation.

As of 01.09.2019 g. no living quarters were provided to the applicant.

Violated norms:

Art. 17 Federal law from 24 November 1995 g. No. 181-FZ "On social protection of disabled people in the Russian Federation";

Art. 49 and Art. 57 LCD RF.

Taken measures: A statement of claim was prepared and submitted to the court for the provision of residential premises under a social tenancy agreement out of turn.

Decision Balakhna City Court of the Nizhny Novgorod Region from 26.12.2019 g. in case no. 2-1455/2019, left unchanged by the appeal ruling of the Judicial Collegium for Civil Cases of the Nizhny Novgorod Regional Court from 07.07.2020 g., claims were satisfied in full. The court imposed on the administration of the municipal district the obligation to provide I.E.A.. her young son a disabled child, out of turn under a social lease agreement a comfortable living space, consisting of at least two rooms, located within the city of Balakhna, Nizhny Novgorod region, meeting the established sanitary and technical requirements, taking into account the right of a disabled child I.M.. for additional living space, total area not less 39 sq.m.

3) Fabula: A disabled person of the first group Y.R.R applied to NROOI "Invatur".

Based on the resolution of the Administration from 13.04.2018 g. Applicant has been declared indigent for the purpose of being recognized as needing a residential property.

By the resolution of the administration of the municipal district, residential premises, where the applicant lives, was declared unsuitable for a disabled person on the basis of a conclusion about the impossibility of adapting a disabled person's living quarters and common property in an apartment building, where the disabled person lives, taking into account the needs of the disabled person and ensuring the conditions for their accessibility for the disabled person.

In accordance with the resolution of the Administration from 14.06.2018 g. The applicant is registered and included in the list of citizens, in need of living quarters, provided under social employment contracts on an extraordinary basis, based P. 3 h. 1 Art. 51 and p. 1 h. 2 Art. 57 Of the Housing Code of the Russian Federation, since the living quarters are recognized in the established manner as unsuitable for a disabled person.

As of 01.11.2019 g. no living quarters were provided to the applicant.

Violated norms:

Art. 17 Federal law from 24 November 1995 g. No. 181-FZ "On social protection of disabled people in the Russian Federation";

Art. 49 and Art. 57 LCD RF.

Taken measures: A statement of claim was prepared and submitted to the court for the provision of residential premises under a social tenancy agreement out of turn.

Decision ships claims were partially satisfied. The court imposed on the administration of the municipal district the obligation to provide the Claimant, out of turn, with a separate comfortable living quarters under a social tenancy agreement within the boundaries of the municipal district, meeting the established sanitary and technical requirements and suitable for a wheelchair invalid, not less than the provision rate, taking into account the Claimant's right to additional living space, taking into account health conditions and circumstances deserving attention.

Thus, to be provided out of turn under a social rental contract, the following circumstances must be present: recognition of a disabled person and his family members as poor, recognition of a dwelling as unsuitable for a disabled person and his family members.

Currently, NROOI "Invatur" is working on three
similar cases with similar circumstances.

Work is being done within the project “accessible Environment – freedom of movement” with the support of the Presidential Grants Fund

Review of judicial practice on the availability of residential premises

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