home Loans Using residential premises for commercial purposes: pitfalls. Reconstruction and redevelopment of non-residential premises (2019) Carry out in a commercial premises

Using residential premises for commercial purposes: pitfalls. Reconstruction and redevelopment of non-residential premises (2019) Carry out in a commercial premises

Almost every apartment building contains an office, store or organization. However, the law prohibits the use of residential premises for commercial activities without proper permission. Let's look at how.

Legal aspects of using residential premises

The procedure for the use of residential premises is enshrined in the Housing Code. Art. 17 establishes the owner’s obligation to use residential premises exclusively for residence.

A person legally residing in the premises has the right to use it to carry out business or commercial activities. The main condition is to carry out activities without causing harm to other residents.

The law establishes the following restrictions:

the activity violates the legitimate interests of other residents of the house;
the owner violates the requirements for residential premises;
it is prohibited to locate industrial production;
it is prohibited to locate religious organizations;
it is necessary to comply with established sanitary standards and rules.

Entrepreneurial activity can be carried out by a person who legally owns the premises (owner, tenant, tenant). For example, a lawyer may use his apartment as a lawyer's office.

The process of transferring premises to non-residential stock

For the smooth implementation of business activities in residential premises it is necessary to transfer the property from residential to non-residential. This is possible in the following cases:

if the objects located under the apartment are not intended for the residence of citizens;
the apartment is not used by the owner for living;
it is technically possible to equip separate entrances and exits;
the rights to the object are not encumbered by arrest, mortgage or pledge.

If the object does not meet at least one of the listed conditions, the authorized body will refuse to transfer the premises to non-residential.

Collection of documents

The body authorized to issue permission for re-registration of an apartment into non-residential premises is the body local government. If the object meets the listed conditions, then the owner has the right to submit documents to re-register the premises as non-residential. To do this, you need to collect the following information:

title documentation;
technical documents;
redevelopment and reconstruction project;
conclusion of the department of architecture and urban planning, if the object is under protection;
transfer application.

The law limits the period for reviewing documents. It amounts to 45 days. After accepting the application, the authorized body sends information about the acceptance of documents for consideration within 3 days.

Subsequent work

In 45 days the owner of the premises receives permission from the authorized body to transfer the premises to non-residential use. After which you need to:

conduct construction works for redevelopment of the premises, according to the plan;
conduct a verification commission to evaluate the results of the work;
receive an acceptance certificate;
register the object in Rosreestr.

After receiving the documents, the citizen can use the premises for commercial purposes.

Important! The authorized body must notify all owners of adjacent apartments about the transfer of the premises to non-residential use. For this purpose, notifications are sent to them.

Tax registration of non-residential premises

After receiving documents for non-residential premises, the owner can independently open an office there or rent it out to other entrepreneurs.

Citizens wishing to rent premises in a residential building must check the availability of documents to transfer the property to non-residential use.

It is advisable for an entrepreneur to purchase residential premises and transfer them to non-residential stock. Thus, less will be needed financial costs. Some of them will pay off in the future when the company pays taxes.

The law provides for the possibility of calculating depreciation of premises on an object transferred to non-residential stock. From this time on, the cost of depreciation deductions from the cost of the object is reduced tax base.

At the same time, judicial practice contains situations where the FAS took the side of the taxpayer when including the cost of residential premises purchased for business needs.

Expenses that increase the cost of the premises and are written off through depreciation include:

payment of a commission for transferring premises to non-residential;
other costs associated with the transfer of real estate;
expenses for maintaining an apartment for business travelers.

Important! If an organization rents residential premises for an office, then rental costs are not included in the tax base to reduce taxation.

Features of renting an apartment for business activities

An office is a premises intended for conducting commercial activities. Namely:

receiving customers and clients;
negotiations with partners;
hiring staff;
accounting activities;
carrying out management operations.

In accordance with the law, the office must be located in specialized non-residential premises. It is prohibited to locate offices in residential apartments.

The law provides for the possibility of concluding an apartment rental contract between the owner and a legal entity. However, the sole use of the premises may be for the residence of employees or other persons.

To use residential premises for other purposes, the apartment must be transferred to non-residential premises. Thus, the law does not provide for the possibility of concluding a rental agreement between the owner and a legal entity for use as an office.

Responsibility for commercial activities in the apartment

The FAS Resolution of 2002 provides that transactions for leasing or transferring housing for free use for commercial purposes are void.

If the owner of a residential premises or its tenant (an individual) violates the rules for the use of residential premises, then the liability measures provided for by the Code of Administrative Offenses of the Russian Federation (Article 7.21) are applied to him. Responsibility for an individual entrepreneur arises by analogy with an official. Penalties include returning rent and changing tax records.

The Code of Administrative Offenses provides for the following types of punishments for persons carrying out commercial activities in residential premises:

for officials (and individual entrepreneurs) the fine will be at least 4,000 rubles. and no more than 5,000 rubles;
For legal entities The fine will be at least 5,000 rubles. and no more than 10,000 rub.

Punishment is applied to persons who have converted an apartment without obtaining proper permission and without the permission of the owner. The result of the changes must be a significant change in the conditions of use of the housing.

The apartment can be used exclusively for residential purposes. If the owner does not interfere with other residents, then business activities can be carried out. The law provides for the need to exclude the property from the housing stock.

On the ground floor of an apartment building, non-residential premises are usually purchased or transferred from residential to shops, pharmacies, workshops, cafes, warehouses, offices and much more. If the owner wants to organize a store or beauty salon on the second floor, no one should live on the first floor, directly under the future facility. That is, there could be, for example, an office.

Before you implement the project commercial organization in a residential building, residential premises must be converted to non-residential. This is a relatively lengthy, complex and energy-consuming procedure for the owner, which requires collecting piles of documents and running around to various organizations (FMS, Housing Office, BTI), and the consent of residents apartment building and other, other things. But other than that, the service non-residential premises different from payments for public utilities in an ordinary apartment.

Tariffs for housing and communal services in MKD

Utility tariffs for non-residential properties are determined by the following laws:

Housing complex of the Russian Federation;

There should not be any difficulties when paying for electricity, water and other necessary amenities. The main thing is to make payments on time. The owner(s) must take care of payment, having previously concluded an agreement with the management company responsible for the house.

The owner pays individually for the following services:

Electricity.
Cold and hot water.
Drainage.
Heat (heating).

Important! The owner of non-residential premises in an apartment building pays only for those resources that he has used, provided that metering devices are installed in the premises. Roughly speaking, we pay what the meters show.

The only problem that may arise is with heating.. Sometimes a common house meter is installed for heat supply, and then the procedure for transmitting readings and payment becomes more complicated.

Payment for general house needs, in particular, garbage and household waste removal, also deserves special attention. The owner of the non-residential premises pays for this service on an equal basis with all residents of the building.

It doesn’t matter what floor of the building the organization is located on (and most often - on the first), its the owner is obliged to pay for elevator maintenance at the general rate(i.e. as the owner of an ordinary apartment). The owner of a non-residential premises must pay for the maintenance of the staircase, technical and utility rooms of the house, non-residential common areas, land plot under and around the house.

Art. 39, , 158 of the Housing Code of the Russian Federation tell us that the owner must pay for the maintenance and repair of non-residential premises in the usual manner and in the same amount as apartment residents. If the tenant is responsible for non-residential premises, he transfers data on charges for the use of resources to the owner, and he, in turn, pays according to receipts. Another option is for the tenant to pay the bills from his own account. The owner has the right to control the flow of funds so that there is no delay.

Tariffs for (including those located in residential apartment buildings) are determined by local governments. Wherein once a year (in summer) tariffs increase. In 2017, for example, from July 1, the cost of payments increased by 7%. This is due to inflation, due to which prices for gas, electricity, water, and heat are rising.

What formulas are used to calculate the amount of payments?

For gas, cold and hot water supply, sewerage and electricity, the formula is extremely simple:

C=T*I, Where:

WITH
T– established tariff;
AND– amount of resource consumed.

You can find out more about the tariffs at which the owner of non-residential premises must pay for electricity.
The heating fee is calculated a little differently:

S=P*T*N, Where:

WITH– the amount to be reimbursed;
T– established tariff;
P
N– consumption standard.

Depending on how heating is paid for - year-round or only during the heating season - a coefficient to the consumption standard (K) is used. It is calculated by dividing the heating period time (in months) by the number of months in the year, i.e. 12.

If a meter is installed in the house, its data (C1) is used in the calculation, the ratio of the area of a non-residential object to total area at home (Pl n/f.:Pl total) and the established tariff (T):

C=C1*(Pl n/f.:Pl total)*T

If a non-residential premises has its own meter, the owner (lessor) can use the formula:

S=P*I*T, Where:

WITH– amount of compensation;
P– area of non-residential premises;
AND– volume consumed;
T– established tariff.

You can familiarize yourself with the rules for organizing heating of non-residential premises and the nuances of calculating tariffs for them during the heating season.
Payment for general household needs can be calculated in two ways:

Divide the total consumption by the standard (if there is no meter).
An individual indicator for non-residential premises is calculated from the total consumption, the rest is divided by the number of apartments (if there is a meter).

Official agreement with RSO

For simplicity and convenience of paying for utilities, an agreement is concluded. It confirms the official consent of the parties (owner and RSO). The owner can create a draft agreement himself, which sets out the terms of accrual and payment for services. In turn, the organization has every right to edit, refuse and offer its own conditions. This is the main purpose of the agreement - to establish mutual agreement.

You can conclude an agreement:

WITH management company, which will communicate with the resource supply organization (RSO).
Directly with the RSO, having agreed on the project with the management company.

Reference! Non-residential premises may contain communication structures that are significant for the entire house. The owner needs to agree with the HOA for permission to carry out maintenance on its territory.

According to the current amendments to Government Resolution No. 354, owners of non-residential premises are required to enter into direct contracts with
specific resource supply organization (RSO). If the owner ignores the drafting of the agreement, RSO distributes the bills without an agreement, and then payments increase. The absence of an agreement does not mean the absence of obligations.

The first step is the management organization providing information about non-residential premises in the North Ossetia region. The owner of the non-residential premises will receive a notification about the need to conclude an agreement.

To conclude an agreement directly with RSO, you must send an application in writing. It must indicate:

personal data of the owner (according to passport);
address and area of the apartment building;
list of provided utilities;
data on metering devices;
social support measures for paying for services (benefits, discounts);
contract time.

Registration procedure

If the owner of the premises wants to conclude an agreement directly with the RSO, he cannot take the initiative. To do this, you need to gather all the members of the HOA or housing cooperative; in case of their absence, the owners contact the management company directly.

The owner of non-residential premises has additional responsibility for providing special information to the contractor represented by the management company, HOA, housing cooperative. However, the clause does not directly indicate that the owner of non-residential premises must ask for consent or submit to the decision of the general meeting.

The agreement specifies the timing of reporting the debt, terms of payment and acceptance of payments, and the procedure for interaction between the RSO and the management company. Both parties are indicated in the contract as performers.

Documents are submitted to the RSO: a document on ownership, a document confirming the authority of the organization to provide services.
For management companies, such documents are the minutes of the MKD meeting on the selection of the management company and the choice of management method, and the MKD management agreement.

In addition to the listed documents, all contractors attach to the application (offer):

documents confirming the fact of connecting the MKD to the resource supply networks;
documents on the installation and commissioning of a common house meter;
minutes from the meeting of owners of apartments and non-residential premises of apartment buildings, at which a decision was made to pay for all or some utilities of the RSO;
documents containing information about the areas of residential and non-residential premises in the house and the total area.

A specific deadline for submitting the contract is established - 7 working days. The cost of concluding a contract and providing services is decided collectively.

Maintenance contract

According to the law, the owner of non-residential premises of an apartment building must maintain his property, unless otherwise provided by law or contract.

In Art. 445 of the Civil Code of the Russian Federation states that the conclusion of an agreement for the maintenance of the premises of an apartment building (residential or non-residential) is mandatory. To do this, a meeting is held at which the HOA selects the management company and a protocol is drawn up. It indicates all the features of the mutual obligations of the parties (types of work performed, list of property of the apartment building, etc.).

The contract has no validity period, so its “expiration date” is set by the meeting. In the event of force majeure, it can be terminated earlier by decision of the HOA or in court.

First of all, you need to appoint an initiative group and hold a meeting at which the structure of the agreement will be discussed. If 50% of residents voted (in person or by ballot) for the management company, it becomes the management company of the apartment building. Owners who have not concluded an agreement do not get rid of the obligation to pay fees for repairs and maintenance of the house.

Attention! The price for drawing up the contract, as well as payment for maintenance of the MKD, is negotiable.

The agreement comes into force after signing by both parties. It reflects:

composition of MKD;
duties of the parties;
list of work being carried out;
responsibility of the service organization, etc.

The more services residents choose for the organization to perform, the more they will pay.

The size of the tariff, and therefore the price of technical maintenance, maintenance and repair of housing for non-residential premises, is not limited. The procedure for drawing up an agreement is the same as for a utility service agreement., and it is approved no more than 10 days.

Required package of documents for the owner of non-residential premises:

Passport (copy).
Document confirming ownership.
Documents confirming the composition of in-house equipment or equipment of non-residential premises, and the compliance of the equipment included in it technical requirements requirements for this equipment.
Documents containing information about the date of the last verification and the deadline for the next verification.

Is it possible to install gas, and what other services are available to owners?

The owner of non-residential premises in an apartment building can enter into agreements for the provision of services:

cold water supply;
hot water supply;
drainage;
electricity supply;
gas supply;
heating.

This occurs in accordance with the requirements established by the civil legislation of the Russian Federation and the legislation of the Russian Federation on water supply, sanitation, electricity supply, gas supply, heat supply.

Gasification, or connecting natural gas to a room or building. It is possible to supply gas to non-residential premises. For this purpose, an agreement is concluded with the gas supply organization. The owner of a non-residential premises pays for the service at the general house tariff, provided that the area of activity of the premises does not require additional gas consumption.
Heating and hot water supply if you have your own boiler in an apartment building, it is paid according to a two-component scheme (clause 54 of RF Regulation No. 354). In this case, based on the area and number of owners, the actual consumption of cold water and heat or electricity of non-residential premises for heating water is calculated at the general tariff.

Important! It is more profitable for the owner to install an individual water heater (with metering devices), then you can regulate both the water temperature and the amount of resource consumed.

Electricity. depends on the purpose of the room. For domestic premises (storeroom, garage, etc.) general electricity tariffs apply, i.e. the same as in residential premises.
If necessary, the owner of non-residential premises in an apartment building can order an electrical supply project. A special design organization, whose access is confirmed by a license, will develop the project. For its final version, you will need drawings of the floor plans of the house with an explication of the premises and documents confirming ownership.

All metering devices can be installed in non-residential premises: for water, gas, heating, electricity.: removal of solid and liquid household waste is part of the cost of maintaining common property in an apartment building.

Simply put, waste disposal is a general household need. Therefore, owners of non-residential premises have the same responsibilities as apartment residents.

Responsibility for self-activity

Everyone wants to save money. But not everyone knows how to save honestly, as a result of which corruption, fraud appears and crime flourishes.

Attention! Unauthorized consumption of other people's resources is an administrative offense. Illegal use of energy is punishable by a fine. In addition, the owner of non-residential premises is obliged to pay for the “stolen resources”.

For example, if a cunning entrepreneur was “caught” stealing electricity or heat, he will bear administrative responsibility:

fine for individuals 10-15 thousand rubles;
for officials – 30-80 thousand rubles. (or suspension of activities for a period of one to two years);
for legal entities – 100-200 thousand rubles.

It is interesting that the Government has repeatedly considered a bill to impose criminal liability for such tricks. It is possible that the bill will soon be translated into reality. Perhaps then there will be much less people willing to save at someone else’s expense.

Based on the fact that the non-residential premises are still part of an apartment building, the owner’s task is noticeably easier. Concluding a direct agreement with RSO protects it from many problems by law, saves money and time and allows you to pay justified amounts if you are not too lazy to install meters.

In general the procedure for maintaining your store or office is no different from maintaining an apartment, you just need to be better prepared for it. It is not at all necessary to be a lawyer and understand utility issues.

Business is good, but honest business is even better!

Philip Ivanov

23616

Just a couple of decades ago, entrepreneurs were actively buying up residential real estate, in particular, apartments located on the first floors, and urgently converting them into commercial real estate. Residential premises were converted into offices, shops, warehouses and other enterprises.
Now the picture on the market has changed dramatically: the number of applications for the transfer of commercial real estate to residential real estate has increased significantly. In this regard, more and more questions arise that affect the main points of such a translation. We will tell you how to register commercial real estate in this article.

To begin with, to understand this process, let’s define what is included in commercial real estate.

Commercial real estate- structures, plots of land, buildings that are used for commercial activities and the extraction of regular profits, investment income, capital gains, rental income.

Commercial real estate objects include:

Retail commercial real estate - shops, shopping centers, pavilions, etc. These premises are used for retail trade.
Office real estate. This includes administrative and office buildings, mansions, business centers, non-residential premises located on the first floors of residential buildings, ground floors of buildings, etc.
Industrial real estate.
Warehouse property, which includes premises used for receiving, storing and placing various items.
Car parks (parking garages). This type commercial real estate is poorly developed in our country.
Hotels.

Features of re-registration of commercial real estate

The procedure for transferring residential real estate to commercial (non-residential) and vice versa is described in detail in the Housing Code of the Russian Federation. An entire chapter is devoted to this issue. It also contains a list of documents that are necessary to transfer real estate from one type to another.
So, how to re-register commercial real estate?
To perform a real estate transfer, you must perform the following steps:

Provide all necessary engineering communications in the converted premises.
Check the supporting structures; if they are in unsatisfactory condition, then these problems must be eliminated.
Arrange communications in the premises in such a way that they do not pose a threat to people. Moreover, this requirement applies to both internal and external adjacent territories.
Install devices used to protect against water leakage if there is a possibility of melt or rain water entering the room.

What documents are needed for the transfer of commercial real estate?

To transfer one type of real estate to another, you will need to provide the following documents to local governments:

Technical plan of the premises, which should contain a detailed description.
A statement with a desire to transfer from one type to another.
The layout of each floor of a building that has more than 1 floor.
Originals or notarized documents for the ownership of this premises.
Project for redevelopment of the premises, if required to comply with the law.

This list of documents is the main one in accordance with Article 23 of the Housing Code, but during the consideration of your application it may be necessary to provide some additional documents, depending on various nuances.

So, for example, in accordance with the Housing Code of our country, in order to reconstruct an office in a business center, it is necessary to obtain a decision from the general meeting of the owners of the premises, and sometimes all the owners.

The permission of all owners is required when it comes to reducing the size of a premises through its reconstruction, redevelopment, rebuilding, etc., by annexing part of the property of other premises. This is stated in Part 3 of Article 36 of the Housing Code.

According to 1 article of the Town Planning Code In our country, reconstruction is a change in the parameters of a building - the number of floors, height, volume, area, as well as the quality of engineering and technical support. But one should not confuse reconstruction with redevelopment, since the latter represents the replacement, installation, or transfer of various equipment and communications. This change requires entering information into the technical passport of the premises.

In addition, there is another concept - redevelopment, which includes changing the configuration of the room. Redevelopment - moving doorways, partitions, dismantling them, increasing or decreasing the area, etc. If you are remodeling or remodeling the premises, you will not need to obtain the consent of the owners of the premises.

If you have not carried out the procedure for approving residential or non-residential premises, then you may end up in court. And then the owners of other premises will be able to challenge your actions to change the premises. Everything will be returned to its original condition. It is unlikely that such an outcome of events will please you when you complete all the necessary work.

When is the ban on transfer of real estate valid?

IN Housing Code contains information according to which changing the purpose of a particular type of real estate becomes impossible:

There are conditions of mortgage, lease, pledge, that is, in cases where the ownership of the premises, which is transferred from one type to another and at the same time has an encumbrance in favor of third parties, or when a person, regardless of physical or legal entity, has rights to the premises for a certain period.
Inconsistency between the standards and the rules according to which the premises were declared unfit for habitation.
The premises belong to residential building or used for permanent residence of people.

Also, do not forget about the requirements that apply to premises that change their status, that is, transferred from one type to another.

Terms and stages of commercial real estate transfer

Permission or prohibition of the transfer of premises is adopted as a result of consideration of the application and all provided documents no longer than 45 days from the moment the documents were provided to the head of the administration.
The authorized body, no later than 3 working days from the moment the decision is made, issues the applicant a document that confirms the adoption of a particular decision.
After issuing a document on the decision to transfer, information about the decision made is communicated to the owners of the premises adjacent to your premises.
If there is a need for redevelopment, reconstruction of the facility, or any other work, then it is necessary to obtain permission to carry it out - an order to carry out the work. This order will be required in the future to carry out certain work.
If no additional work is carried out, then the order will indicate the completion of the transfer of the premises from one type to another.

After the reconstruction is completed, an act is drawn up acceptance committee, which is sent by the body carrying out the transfer of premises to the cadastral registration authorities. This document confirms that the transfer of the premises has been completed.

Next, a cadastral passport is issued and changes are made to the Unified Register of Rights to real estate and transactions with him. A cadastral passport is issued within 15 days, and making changes to the register takes 5 working days. Don't forget about paying the state fee. After making all these changes, the owner receives a second Certificate of Title.