Basement business. It is legal?

A42.RU correspondent Katerina Frolova asked Dmitry Malinin, a lawyer, chairman of the Yurproekt agency, what business is not suitable for basements, who is responsible for security in such a room, and what will happen for violations.

Question 1: What kind of business is legal to place in the basements of multi-apartment residential buildings (hereinafter MKD)? Is it possible to place clubs, cafes, hostels? What kind of business is not suitable for basements, is prohibited by law?

Answer:

There are two aspects here - on the one hand, there are types of businesses that should never be placed in the basements of residential buildings. On the other hand, you need to figure out whether a particular entrepreneur can legally work in a particular basement.

According to the current rules[1], it is generally impossible to place in the basements of residential buildings, including:

Any type of business, including shops, if they work later than 23:00 - the law protects the sleep and peace of citizens;
Any "loud" institutions - karaoke, clubs, theaters, etc.;
Children's institutions, saunas, medical institutions, as well as large (for more than 50 seats) cafes and cinemas.
In addition, certain types of business (for example, medical and educational activities, as well as alcohol sales) are subject to mandatory licensing.
For such organizations, additional requirements for premises are legally established, which not every basement will meet.

So, according to the law, there can be no certain types of business in basements at all.

However, even if a particular type of business does not fall under the direct ban on its conduct in the basement, the entrepreneur should always pay attention to local urban planning rules. In every city, including Kemerovo, there are Rules for land use and development. This document divides the territory of the city into so-called territorial zones. A strictly limited list of activities is allowed in each zone. For example, in zone G1 of high-rise apartment buildings, an entrepreneur must take into account that, in addition to residential premises, it is possible to place there: underground garages and parking lots, as well as “residential development service facilities in built-in, attached and built-in-attached premises of an apartment building, in separate rooms of the house, if the area of ​​such premises in an apartment building does not exceed 15% of the total area of ​​the building”. As you can see, the wording “objects of service” is rather vague, but there should be a connection with the needs of the house and its residents. According to this logic, almost all production is impossible in MKD, including in basements.

Question 2: Who is legally responsible for security, including fire, in a basement business?

Answer:

In Russia, there is a general rule on the property liability of the owner for the safe operation of his property (Article 210 of the Civil Code, Article 60 of the Town Planning Code, Article 38 of the Federal Law of December 21, 1994 N 69-FZ "On Fire Safety").

Owners can delegate safety responsibilities, including fire safety, to their employees, a management company, a contractor, or a tenant. But if violations are found during the inspection, both the organization and the responsible official will be fined.

If a fire really occurs and the question arises of compensation for harm to the residents of the house, then you need to remember that:

Damage is compensated by the culprit. That is, it is always necessary to establish the cause of the fire and, based on the cause, it will be clear who is to blame: there may have been serious violations at the design stage of the entire building. Or the owner of the premises made an illegal redevelopment. Or the tenant left the electric heater unattended. But if it is impossible to establish the culprit, the owner is responsible.
The employer is responsible for the employee. If the fire was caused by a cigarette butt not extinguished by the watchman, the material damage to the victims will be compensated by the entrepreneur or the organization that hired such a watchman.
To bring to criminal responsibility, it will also be necessary to establish whose specific fault the fire occurred.

Question 3: Should regulatory authorities inspect basement businesses before opening? What are these departments?

Answer:

It all depends on the requirements for a particular type of activity. As a rule, preliminary checks are provided for when obtaining licenses. In addition, Rospotrebnadzor and the Ministry of Emergency Situations must check public catering establishments - canteens, cafes, bars, restaurants before opening.

Question 4: Were there any incidents, clashes, conflicts between residents and business owners in Kemerovo (in your practice)?

Answer: We periodically encounter the following types of conflicts in MKD between businesses and owners of residential premises:

Case number 1. The management company bought the basement in the MKD from the KUMI of the city. Later, the owners of the premises in the house, through the court, achieved the recognition of the basement as common property, the termination of the rights of the Criminal Code to it and the release of the basement. After that, the owners got the opportunity to rent out this basement for rent. Any entrepreneur could have been in the place of this Criminal Code.

Case No. 2. A Kemerovo businessman bought a building for a medical organization on the ground floor of an MKD (yes, it's not a basement, but the situation is very similar). Later it turned out that the seller illegally "took" part of the common house property (the area in front of the entrance to the room, which he glazed and blocked access to it for other owners of the premises in the house). As a result, the area of ​​non-residential premises increased by 50%, and the seller took payment for these additional meters as for quite legal ones. The leadership of the Criminal Code took advantage of this “slippery” situation and began to demand that the entrepreneur return everything back. The conflict was resolved through negotiations. But this is not always possible.

Case No. 3. A businessman buys a dwelling on the ground floor of a house and tries to convert it into a non-residential one. For the translation, it is technically required to make an opening in the wall in order to organize a separate entrance to the non-residential premises, and according to the current housing legislation, this is a reduction in the common property in the MKD. To do this legally, you need to get 100% of the votes in the house “for”. It is possible to do this by fulfilling the requirements of the law in practice in 1% of cases out of 100. Therefore, we always recommend our clients to immediately buy transferred to non-residential premises, and the safest thing is to buy premises that were originally designed during the construction of the house as non-residential.

Case number 4. An entrepreneur owns a non-residential premises that he wants to use as a cafe. One problem is to lay an electric cable through the land plot and along the walls of the house, and this plot and walls are common property. For the legal use of the common property of an MKD, it is necessary to obtain ⅔ votes from all owners of premises in the MKD. Russian citizens since the October Revolution, to put it mildly, have been distrustful of business. Therefore, in big houses there are always activists who are ready to put everything on the altar of the fight against the “bourgeois”.


Question 5: Is it more profitable to have a business in the basement or in another non-residential premises (for example, an office on the first floor of the same MKD)?

Answer:

Each entrepreneur decides the question of profit for himself. From a lawyer's point of view, basement rooms are always a bit more of a risk. Before concluding a lease agreement or, even more so, buying such premises, more thorough checks are always required than for other premises.

As a general rule, basements are the common property of an auxiliary apartment building. They cannot be sold or even rented out without the consent of all apartment owners in the building. Exceptions are possible only if non-residential premises were originally designed by the developer for non-residential independent use. In any case, the legal history of the premises must be carefully dealt with.


The full version of the interview is available here


[1] SP 54.13330.2011. Residential multi-apartment buildings. Updated edition of SNiP 31-01-2003

Author

Dmitriy Alexandrovich Malinin

Chairman of the Bar Association "Jurproekt"