Capital repairs of a non-residential building. Can the landlord oblige the tenant to make maintenance of the leased premises? What is the difference between current repair of non-residential premises and maintenance of it in good condition? By whom and on what basis should op

Capital repairs of non-residential premises are complex works that are carried out with the aim of reconstructing the design and engineering systems. Also, a complete redevelopment of the premises, if necessary, is possible. To carry out these works, it is necessary to coordinate all project documentation with the relevant competent authorities. Only after that you can start work.

Overhaul of non-residential premises begins with the development of project documentation. This is done by architects and design engineers. The main objective of the project is to draw up a detailed plan for all stages of the repair, determine the timing of work and calculate the cost of materials that will be used during the work.

After that, the dismantling of the old structure begins, which must be replaced. This also includes the removal of wallpaper, paint, dismantling of load-bearing elements, door frames, windows, wallpaper removal, etc.

The next stage is the most voluminous - this is the installation of new partitions, screeds, as well as the wiring of all necessary engineering systems and communications. Also, for the convenience of wiring network and telephone cables, special corrugated hoses can be laid in the walls.

Then you should start finishing work. Walls and ceilings are plastered and puttied, tiles are laid, suspended ceilings and other types of finishing work are mounted.

Painting works are the final stage in the overhaul of non-residential premises. At this stage, grinding and painting of walls, ceilings, installation of doors and windows or their restoration is carried out. The last step is flooring. After the completion of all work, the installation of the necessary equipment is carried out - plumbing, electrical fittings, and so on.

Our company has been carrying out major repairs of non-residential premises for several years, and during our work we have been able to establish ourselves exclusively on the positive side. We have been able to develop a number of our own effective methods for repair and decoration.

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According to these documents, the overhaul must meet the following conditions:

• restoration of exhausted component parts (with the exception of foundations, frames, load-bearing walls) or their replacement;
• work to improve performance;
• economically justified modernization, including redevelopment.

Depending on the scope of work, selective and full, or complex, overhaul are divided.

The first covers only part of the room, the second covers it entirely. For example, the repair of electrical wiring and the replacement of its individual parts will be selective repairs.

Scheme of a successful commercial offer

A commercial offer will be successful and will cause a deal only in one case - if it interests a potential customer. Marketers have long developed a successful scheme. It consists of 9 parts.

Repair contract - instructions for concluding

The contract must state the following:

Should the owner pay for the maintenance and overhaul of the property?

In Part 2 of Chapter 34 of Article 616 of the Civil Code of the Russian Federation, the current legislation expressly states that the owner must pay for the overhaul of the leased premises.

The tenant must maintain the premises in fair condition and pay for current repairs, if necessary.

But the devil, as you know, is in the details. The difference between a major overhaul and maintaining a building in order with current repair work is poorly spelled out in law.

The Urban Planning Code dated July 18, 2011 No. 215-FZ says what work should be included in the overhaul, and that's all. There is no other gradation.

If the lease agreement also does not stipulate the obligations of the parties to conduct certain repairs, then this issue is resolved by agreement of the parties or in court.

The implementation by the tenant of the building of a major overhaul at his own expense can have unpleasant consequences in the form of an increase in the amount of taxes.

Clause 1 of Article 252 of the Tax Code recognizes as expenses for the purpose of taxing profits only legally justified expenses, which cannot include the fulfillment of the obligation of the owner at his own expense.

In this particular case, the tenant, in the spirit of the law, can demand from the landlord, who has neglected his obligations to carry out repairs, reimbursement of the money spent or a commensurate reduction in rent.

Prices for finishing work

In practice, the spread of prices for the overhaul of non-residential premises is very large.

For example, in Moscow and the region, the minimum and maximum amounts that construction companies ask for such services differ by six orders of magnitude.

For regional centers, the most expensive repair exceeds the cost of the cheapest by 15 times.

Prices are in thousands of rubles per square meter.

Be prepared for the fact that the final estimate will be slightly different from the figures given here.

The exact cost is calculated based on the condition of the premises and the required amount of work, as well as the price and quality of materials.

Most construction companies have a flexible approach to this issue, giving the customer the opportunity to choose which repair operations will be carried out.

Their websites have built-in online calculators that can be used to calculate the approximate cost of the required set of works.

How to repair when concluding a lease agreement?

Often there is an option when the owner rents out the premises in need of repair.

In this case, the parties can agree that the tenant repairs everything with his own money and on his own, receiving financial preferences from the owner for this.

Most often, these are discounts on rent, the possibility of free use of the renovated premises for a specified period of time, or compensation for all or part of the costs. In some cases, repair work may be a condition for granting the right to use the premises.

In this case, the obligation of the tenant to carry out repair work is attributed in the paragraph “obligations of the tenant”, the issues of partial or full reimbursement of funds and reduction of rent - in the “amount of rent and settlement procedure”.

The paragraph “Responsibility for non-fulfillment of the contract and the procedure for resolving disputes” also includes information on the tenant’s liability for unfulfilled or incomplete repairs.

Interior decoration - distinctive features

Interior decoration can be carried out simultaneously with the reconstruction, but this is not necessary.

Some people think that these two terms mean the same thing, but they are not. The difference is fundamental.

Works on interior decoration differ from major repairs in that they do not restore or replace worn parts and communications. And from redevelopment - the fact that the bearing walls are not affected.

Most often, interior decoration changes only the interior appearance of the room.

Reconstruction in an apartment building

Defines the reconstruction of any capital construction object, as any change in the object itself or its parts. The difference between residential and non-residential premises is not mentioned.

However, in practice, the reconstruction of non-residential premises in an apartment building has its own characteristics:

1. the walls on which the interfloor ceilings are held should not be transferred or changed. Failure to comply with this condition turns the reconstruction into redevelopment.
2. If, as a result of the work, the area of ​​​​common-use premises changes, it is necessary to obtain the consent of all homeowners in this house to carry out the work.

Coordination with the BTI plan

The redevelopment of non-residential premises will also need to be coordinated with the BTI plan.

This is a document that is a schematic plan of the room, on which walls, door and window openings, balconies, partitions, plumbing, ventilation and gas equipment, including stoves, are marked.

After the work has been done, it will be necessary to make changes to this plan. To do this, you need to contact the local BTI and provide there permission for redevelopment and an act of completed redevelopment. After the allotted time, you will be given a new registration certificate and a BTI plan.

The procedure for obtaining the consent of the apartment owners

According to paragraph 6 of paragraph 7 of Article 51 of the Civil Code, which describes the reconstruction as a change in parameters, parts or quality, and paragraph 2 of Article 40 of the RF Housing Code, which regulates the procedure, in order to obtain the legal right to any reconstruction, it is necessary to obtain the consent of all owners of this capital building facility.

Article 40

1. The owner of a premise in an apartment building, upon acquiring ownership of a premise adjacent to a premise belonging to him on the right of ownership in an apartment building, has the right to combine these premises into one premise in accordance with the procedure established by Chapter 4 of this Code.

   The boundaries between adjacent premises may be changed or these premises may be divided into two or more premises without the consent of the owners of other premises, if such a change or division does not entail a change in the boundaries of other premises, the boundaries and size of common property in an apartment building or a change shares in the right of common ownership of the common property in this house.

2. If the reconstruction, reorganization and (or) redevelopment of the premises is impossible without attaching to them a part of the common property in the apartment building, the consent of all owners of the premises in the apartment building must be obtained for such reconstruction, reorganization and (or) redevelopment of the premises.

Where is the best place to order architectural design?

The project for which the reconstruction will be carried out can be created on your own.

However, the best result can be achieved if you order architectural design in the department of the design bureau.

This is all the more beneficial because many firms undertake all design and construction work, from the development of an architectural concept to design.

Moreover, service packages often include the execution of all documents for approval and obtaining permission for redevelopment and reconstruction. Prices for these services start from 200 rubles per sq.m.

Where is the best place to do a design project?

The design can also be designed by yourself or ordered. In this case, the following options are possible.

As follows from the article, the path from hiring a non-residential premises to the final reconstruction of it to suit your needs is not so long.

It can be completed by one person, or it can be entrusted to third-party organizations, thus saving time and effort.

Building renovation project

Overhaul, in essence, these are works aimed at replacing or restoring the strength characteristics of a part of individual building elements.

In some cases, the development of project documentation may not be required, for example, if individual building elements that are not load-bearing and are not responsible for the safety of the building are being repaired or replaced.

If the owner of the premises, during the overhaul, tries to form new premises (for example: equip the attic), increase the usable area of ​​the building, change the height and dimensions of the building, then such premises will be considered illegally formed and not subject to registration with obtaining title documents. In accordance with the current legislation, registration of property rights is subject to real estate, which was formed as a result of new construction or reconstruction of capital construction projects.

Project for the overhaul of the load-bearing structures of the building

To determine the scope of work for the development of a major overhaul project, as a rule, one visual inspection is not enough. In this case, a technical inspection of the elements to be overhauled, as well as structures that may be affected during the performance of work, is carried out. This is done to determine the physical, mechanical and strength characteristics of structural elements, on the basis of which a further conclusion is made about the methods of overhaul - complete or partial replacement of the element or its strengthening.

In the case of a major overhaul of individual structural elements (for example, parts of the truss system) with their replacement with similar ones without increasing loads and sections, technical inspection may not be required.

Major renovation project, as a rule, includes sections:

Architectural Solutions (AR);

Metal structures (KM);

Reinforced concrete structures (KZh);

Wooden structures (KD).

Approval and permission for major repairs

Permit for overhaul capital construction projects are not required in accordance with the Town Planning Code of the Russian Federation. In some cases, coordination with the district administration is required, obtaining permits from relevant authorities, service organizations. The list of approvals depends on the specific situation.

The GSK-Stroy company is engaged in development and coordination of projects for major repairs of buildings.

The list of works on the overhaul of apartment buildings approved at the legislative level, taking into account the climatic features of the region and types of houses.

Overhaul of apartment buildings is the elimination of faults, the replacement of worn parts of the facade, as well as the installation of auxiliary systems for better operation of the building. The list of overhaul works is fixed at the federal level.

What is included in the overhaul of an apartment building

Restoration begins with taking measurements, which serve as guidelines for laying electrical wiring, sewers, risers and other parts of the house.

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Restoration work includes the following list:

1. Monitoring the current state of buildings, identifying deviations from the standards, drawing up a technical analysis and design estimates for the list of works.
2. Repair work to restore worn-out elements of multi-apartment buildings - overhaul services affect only balconies, electrics, risers, blind areas, heating, but do not apply to concrete floors and the foundation of the building.
3. Increasing the operational characteristics of an apartment building - the list of mandatory works includes the laying of modern key parts of water, heat, gas supply, modernized elevator shafts, heating rooms (boiler rooms). According to the regulations, a list of works is carried out to replace windows and doorways, if the situation requires it. If necessary, the workers are engaged in redevelopment of the premises, expanding the interior space at the expense of staircases and other rooms.
4. Laying of heat-insulating layers - window openings, entrances and vestibules are subjected to insulation. The list of works also includes the replacement of interpanel joints of the facade, especially in the northern regions of our country.
5. Engineering work - specialized engineers are engaged in the replacement of non-working electricians. There is a laying of new main lines, and if the system of an apartment building needs additional security (triple buffering), then the expansion of the current intra-wall openings.
6. Installation of metering devices and meters for heat, gas and water supply. The overhaul of apartment buildings is one of the list of works that affects the operational properties of the building. The total saving of water, electricity, gas, etc. depends on energy accounting.
7. Roof Replacement Services - Necessary to integrate roofing systems that do not have ventilation ducts in an apartment building.
8. Compliance with project documentation - during the overhaul of the house, employees make sure that the building does not lose its architectural appearance and does not stand out from the urban planning regulations.
9. Technical supervision of compliance with all rules on the list of restoration measures.

Based on the results of the overhaul, the contractor submits the results according to the list of works, and the host party makes an assessment of the services performed.

How is the overhaul of apartment buildings

The federal law on overhaul obliges apartment owners to pay for restoration work. Responsibility for the implementation of the reconstruction lies with the municipalities or regional operators. They are instructed to monitor compliance with the list of work performed.

Residents themselves vote for capital repairs in apartment buildings. The general verdict on the need to restore damaged parts is made at the Homeowners' Meeting - one member from each family.

According to Art. 44 of the Housing Code of the Russian Federation, in order to approve the overhaul and start fundraising, it is necessary to achieve at least ⅔ of the votes (majority) of the number of members present at the meeting. The initiators of the Meeting are either individual owners or a management company (TCC).

The regional program for the overhaul of apartment buildings is approved at the level of government. After its approval, the regional operator informs residents about:

1. The timing of the overhaul (exact or approximate).
2. List of restoration works.
3. The cost of the contractor's services.
4. Sources of financing for capital repairs.

Information is communicated to residents no later than six months before the start of the overhaul program in a particular region of our country. The discussion continues for 3 months, after which the homeowners send a decision to the regional operator, who, in turn, informs the housing structures about this.

Mandatory work during the overhaul of the house

The Housing Code establishes that the types of work on the overhaul of apartment buildings are paid by the owners of apartments and non-residential premises 8 months before the start of the regional program for the overhaul of apartment buildings.

The nature of the work depends on the overhaul budget. The law establishes the so-called minimum quota of contributions, the payment of which is mandatory. If necessary, residents can increase the amount of payments using Part 8.2 of Art. 156 ZhK RF. In case of payment of the minimum tariff, the regional operator carries out a "cut down" version of the overhaul.

List of required works:

1. Foundation equipment (technical inspection).
2. Repair of the facade, roof, non-residential premises (painting work, replacement of panel plates, thermal insulation of windows).
3. Arrangement of engineering systems, heating, electrical wiring, sewerage.
4. Checking the performance of elevator shafts (movement of passenger and freight elevators, suitability of shaft cables, operation of the elevator lifting mechanism).

Mandatory capital repairs can be supplemented by a list of other operations, such as installing meters or roofing merging. Such work requires additional funds. Increasing the budget is being discussed at the same meeting of homeowners in an apartment building. Voting in the amount of ⅔ of the quota of all those present automatically obliges apartment owners to pay additional fees.

As a general rule, the tenant of any property, including non-residential premises, is obliged to bear the costs of maintaining such property, maintain it in good condition and carry out current repairs at his own expense, and the lessor is obliged to make major repairs of the leased property ( Civil Code of the Russian Federation). A different procedure for the distribution of these duties may be established by law, other legal acts or a lease agreement.
At the same time, civil law does not specify what is meant by major repairs, current repairs and maintenance of property in good condition.
In this regard, taking into account that non-residential premises are actually an integral part of buildings, structures, structures, that is, part of capital construction objects (Urban Planning Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation)), in law enforcement practice to distinguish between the concepts of capital and current repairs premises, regulatory legal acts regulating issues of urban planning and construction activities are used (see, for example, the Federal Antimonopoly Service of the West Siberian District dated March 26, 2014 N F04-2331 / 14, the Sixth AAS dated September 27, 2012 N 06AP-4220/12, the Nineteenth AAC dated 18.10 .2011 N 19AP-747/11, Eighth AAC dated 11/09/2010 N 08AP-8098/2010, Eighteenth AAC dated 12/25/2009 N 18AP-9872/09).
So, for example, according to the Civil Code of the Russian Federation, capital repairs include: replacement and (or) restoration of building structures or elements of such structures, with the exception of load-bearing building structures; replacement and (or) restoration of engineering support systems and engineering support networks or their elements; replacement of individual elements of load-bearing building structures with similar or other elements that improve the performance of such structures and (or) restoration of these elements. A similar definition of a major overhaul is contained in clause 3.8 of the Methodology for determining the cost of construction products on the territory of the Russian Federation. MDS 81-35.2004, approved by the Decree of the Gosstroy of the Russian Federation of 05.03.2004 N 15/1.
In turn, this norm defines current repairs, which means systematic and timely work to prevent wear of structures, finishes, engineering equipment, as well as work to eliminate minor damage and malfunctions.
Definitions of current and major repairs, as well as an approximate list of works related to one or another type of repair, are also given in the Departmental Building Regulations VSN 58-88 (p) "Regulations on the organization and conduct of reconstruction, repair and maintenance of buildings, communal and socio-cultural purpose ", approved by the order of the State Committee for Architecture under the Gosstroy of the USSR dated 11.23.1988 N 312 (hereinafter - VSN 58-88 (r)), in the Regulation on the scheduled preventive maintenance of industrial buildings and structures MDS 13-14.2000, approved by the USSR State Construction Committee dated 12/29/1973 N 279 (hereinafter - the Regulations of the MDS 13-14.2000).
It should be noted that these normative acts also contain norms that provide for the procedure for determining the need for current repairs. In particular, clause 4.2 of VSN 58-88 (r) says that current repairs should be carried out according to five-year (with the distribution of tasks by years) and annual plans. Annual plans (with the distribution of tasks by quarters) should be drawn up to clarify five-year plans, taking into account the results of inspections, the developed cost estimate and technical documentation for current repairs, and measures to prepare buildings and facilities for operation in seasonal conditions. And in clause 3.6 of the Regulations of MDS 13-14.2000, current repairs are carried out regularly throughout the year according to schedules drawn up by the Department (bureau, group) for the operation and repair of buildings and structures of the enterprise based on inventories of general, current and extraordinary inspections of buildings and structures, and also at the request of the personnel operating the facilities (heads of workshops, heads of farms).
As can be seen from the above norms, the implementation of current repairs is due to the objective need to carry out work related to such repairs, and such a need is identified on the basis of inspections of the property and requests from the personnel operating the relevant facility.
Nevertheless, it should be borne in mind that the application of these norms to lease relations is not directly provided for by civil law, they can only serve as an additional argument for the parties to the lease agreement when defending their position in court. In this connection, the parties concluding a lease agreement are recommended to agree in the agreement itself or additional agreements to it on the procedure for the tenant to fulfill the obligation for current repairs, including the frequency of such repairs or the procedure for determining its need, as well as the types of work related to it.
As for the maintenance of property in proper condition, neither civil law nor other regulatory legal acts contain any clear definition of this concept. In law enforcement practice, it is also interpreted ambiguously: this term can be understood as the whole range of actions of the owner or other legal owner of property for major and current repairs, insurance, registration, protection, making utility bills, paying taxes on property, special (technical, sanitary and others) inspection of this property (see, for example, the Civil Code of the Supreme Court of the Russian Federation of July 27, 2005 N 56-G05-6), and only the actions of the tenant to maintain the premises in a condition corresponding to the transferred one (see, for example, the Eighteenth Arbitration Appeal court dated December 30, 2015 N 18AP-15153/15). At the same time, the distinction between actions for current repairs and actions to maintain property in proper condition, both in the first and second interpretations, becomes problematic.
In this regard, judicial practice comes to the conclusion that the content of the tenant's obligation to maintain the property in proper condition should be determined by the courts in each specific case individually according to the rules for interpreting the contract provided for by the Civil Code of the Russian Federation, that is, based not only on the content of a specific condition, but also from the content of all the terms of the contract in the aggregate and its meaning as a whole, as well as taking into account the actual common will of the parties when they conclude the contract (see, for example, the Federal Antimonopoly Service of the Urals District dated March 10, 2004 N F09-534 / 04GK).
In view of the foregoing, in order to avoid litigation, the parties to the lease agreement are advised to independently determine what actions of the tenant should be considered actions to maintain the property in proper condition and how such actions differ from current repairs.

Prepared answer:
Legal Consulting Service Expert GARANT
candidate of legal sciences Shirokov Sergey

Answer passed quality control

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