In order not to be unfounded, let us turn to land law. The legal definition of the boundary between garden plots (boundaries) is as follows. The border is the demarcation line between two adjacent parcels of land. On the ground, boundaries can be marked with stone or concrete signs, fences or rows of plantations, etc.
The boundaries of land plots are determined in accordance with the land cadastral documentation. Determination of boundaries on the ground is carried out on the basis of technical documentation on land management. Documentation on land management regarding the boundaries of housing development is developed as part of the master plan of a settlement, projects for the division of territories and is the basis for setting boundaries. Land owners and tenants are obliged to adhere to the boundaries of the plots, which are indicated by boundary marks.
However, conflicts between neighbors arise not only due to violation of the border, but also as a result of other reasons, for example: the fence is installed in the wrong place, the tree grows on the border, and both neighbors claim it, other people's animals constantly resort to the site and other causing discomfort of the situation. The paradox is that although the law obliges neighbors to live peacefully, there are no clear rules governing what and how to place on the site and at what distance. All problems have to be solved by mutual agreement.
Construction and other activities on land most often begin with the installation of a fence. And from that moment on, conflicts may arise between the owners of adjacent plots over what kind of fence to install and who will do it. One wants to enclose a five-meter concrete wallthe other is to plant a hedge. Some of the landowners refuse to install a fence at all, as if they do not need it, but he himself is waiting for the other neighbor to endure and put up a fence at his own expense ...
According to SP 53.13330.2011. (Set of rules. Planning and development of territories of horticultural (summer cottage) associations of citizens, buildings and structures. Updated edition of SNiP 30-02-97, approved by Order of the Ministry of Regional Development of the Russian Federation of 30.12.2010 N 849), clause 6.2. it is recommended to arrange a mesh fence around the perimeter of individual garden, summer cottages, for the least shading of the site. By mutual written consent of the owners of neighboring plots (agreed by the board of the gardening, dacha association), other types of fences can be installed. It is allowed, by decision of the general meeting of members of the gardening, dacha association, to install solid fences from the side of streets and driveways. Also, based on clause 5.3.8 of the Code of Rules for Design and Construction "Planning and Development of Low-Rise Housing Construction Areas (SP 30 102 99)": in an area with manor houses, one-two-family houses, the distance from windows living rooms the walls of a neighboring house and outbuildings (barn, garage, bathhouse) located on neighboring land plots must be at least 6 m. "
There are also the following norms. Minimum distances to the border of the neighboring garden plot according to sanitary and living conditions should be, m:
From the garden house - 3;
From the building for keeping small livestock and poultry - 4;
From other buildings - 1;
From the trunks of tall trees-4, medium-sized trees - 2,
From the bush - 1.
The minimum distances between buildings for sanitary and living conditions should be, m:
From the garden house and cellar to the restroom - 12;
Before showers, baths and saunas - 8;
From the well to the toilet and composting device - 8;
Before construction for the maintenance of small livestock and poultry, shower, baths, saunas - 12;
From a cellar to a composting device and a building for keeping small livestock and poultry - 7.
The specified distances must be observed both between buildings on the same site, and between buildings located on adjacent sites. I hope this data will somehow help you, because SNiPs do not say about the distances between two fences being built next to each other. Again, it is suggested that you negotiate with the neighbor yourself.
If it is impossible to resolve the disputed issue peacefully, you can involve third parties in the process, but initially you will have to tune in to the fact that a quick outcome of the case is hardly possible. Conflicts related to the boundaries of land plots located within settlements, as well as the rules of good neighborliness, are resolved by local authorities (village or settlement councils, district executive committees). Land resources institutions are involved in problems of land outside the settlements, as well as in the establishment of easements.
However, it is worth considering that the legislative base in such matters is not sufficiently developed, and the norms of SNiP are only advisory in nature, therefore each official interprets the law at his own discretion and it will be extremely difficult to challenge his decision (if it does not suit you).
Additionally
Requirements for garden fencing
Requirements for garden fencing are established SNiP 30-02-97 *, in paragraph 6.2 * which says that “Individual garden (suburban) plots, as a rule, should be fenced off. Fences with the aim of minimizing shading of the territory of neighboring areas should be mesh or lattice 1.5 m high. It is allowed, by decision of the general meeting of members of the gardening (dacha) association, to install blank fences from the side of streets and driveways ".
From July 1, 2010 entered into force Federal Law No. 384-FZ of December 30, 2009 "Technical Regulations on the Safety of Buildings and Structures", in Article 6 which states that the Government of the Russian Federation approves a list of national standards, the use of which on a mandatory basis throughout the Russian Federation ensures the operation of this Federal law... From clause 67 of the List of national standards and sets of rules (parts of such standards and sets of rules), as a result of which, on a mandatory basis, compliance with the requirements of the Federal Law "Technical Regulations on the Safety of Buildings and Structures" approved by By order of the Government of the Russian Federation dated June 21, 2010 No. 1047-r follows that paragraph 6.2 * SNiPa 30-02-97 * is mandatory.
Strictly speaking, the obligation controversy SNiP 30-02-97 * and was previously groundless. For two reasons. First of all, SNiP 30-02-97 * for a horticultural association is already a standard by virtue of the provisions of Article 19, Clause 2, Clause 8 of the Federal Law "On Gardening, Gardening and Countryside Non-Profit Associations of Citizens" dated April 15, 1998, No. 66-FZ, which explicitly states that "a member of a horticultural ... association is obliged ... to comply with urban planning, construction, environmental, sanitary and hygienic, fire safety and other requirements (norms, rules and regulations)"... Secondly, the court with a claim to demolish the fence is filed not at all in the order of violation of SNiP, but in order article 304 of the Civil Code... The citizens of the Russian Federation are not endowed with the right to demand the implementation of SNiPs.
Clause 6.2 * SNiP 30-02-97 *limiting, "for the purpose of minimal shading", fencing garden and summer cottages with lattice or mesh fences no more than 1.5 meters high, as if, establishes the gardener's right to the sun. However, violation of SNiP is not a violation of the law, violation by the neighbor's fence of the rights of the owner of the adjacent land plot in court must be proven separately.
Negative claim
The rights of the owner consist in the possession, use and disposal of the property belonging to him. Obstacles in the exercise of the right to use serve as the basis for filing a claim by the owner to avoid obstacles ( negative claim). The legal basis for such a claim is laid down in 304 article of the Civil Code of the Russian Federation, according to which "the owner can demand the elimination of any violations of his rights, even if these violations were not combined with the deprivation of ownership"... The limitation period does not apply to claims for the elimination of owner's rights that are not related to deprivation of possession ( article 208 of the Civil Code of the Russian Federation). Regarding the fence, we can say that the harm is caused not by the fact of the construction of the structure, but by its standing in the erected form throughout the entire time after the construction. In this case, the infringement of the rights of adjacent landowners should be considered as a violation that lasts in time, to which the concept of limitation of actions is meaningless to apply. Therefore, you can go to court with a claim for the demolition of a harmful fence both 5 and 10 years after its construction.
Violation of the right to use property and causing property damage are fundamentally different concepts. The right to use can be violated without causing damage. For example, when shading a plot, the right is first infringed, only then, as a result, damage occurs (decrease or death of the crop). In the event of the damage that has occurred, its compensation can be recovered in a separate claim, the claim for compensation can be combined with a negative claim (on overcoming obstacles) in one statement of claim (claim for overcoming obstacles and recovering compensation for the damage caused).
Circumstances to be investigated in a negative claim
For the onset of civil legal liability for a negative claim (for the court to impose on the defendant the obligation, for example, to demolish the fence or bring it into a normative form), four conditions are necessary:
1) the plaintiff's ownership of the land plot, in the use of which the defendant creates obstacles;
2) unlawfulness (non-normativeness) of the actions of the defendant;
3) violation by the actions of the defendant of the plaintiff's right to use his land plot;
4) the absence of contractual relations between the plaintiff and the defendant on the disputed fence.
Claimant's ownership
According to the meaning article 304 of the Civil Code of the Russian Federation the right to go to court with a claim to avoid obstacles in the use of property belongs to the owner. For this reason, a photocopy of the plaintiff's certificate of ownership of the land plot, the right to use which is infringed by the unlawful actions of a neighbor, must be attached to the statement of claim. If a photocopy of the title deed is not attached, the claim will not be accepted for production.
Abnormality of the defendant's actions
The non-normality of the defendant's actions in relation to a fence built in gardening on the border of adjacent plots is a violation, when erecting a fence, building codes and regulations, a partnership development project, the Charter, decisions of the meeting or board. It seems to me that the violation of the requirements p. 6.2 * SNiP 30-02-97 * it's easy to prove in court. For example, a photograph of a fence with a geodetic measuring rod attached to it can serve as proof. From a photograph it is easy to determine the design of the fence (mesh, lattice or solid) and its height. The proof will be the minutes of the board meeting, in which the violations committed by the defendant during the construction of the fence are noted. The board of a horticultural non-profit association carries out, by virtue of article 34 No. 66-FZ of 15.04.1998, control over the development of the territory of the partnership, therefore the opinion of the board about the violation of the building rules is authoritative. When submitting photographs and the corresponding protocol (decisions, instructions, etc.) of the board of the partnership to the court, I think it is possible to do without conducting a construction expert examination to identify violations committed by the defendant when arranging the fence.
Violation by the actions of the defendant of the right of the plaintiff
Understanding the required amount of proof of violation of the plaintiff's rights by the actions of the defendant is the most difficult task. There is no single judicial opinion on the extent to which it is necessary to prove an obstacle in the use of a land plot, when it is shaded. The difficulty is that there is no decoding of the content of the right to use a garden land plot, with a clear listing of the user's powers, in the laws. Everyone puts their own meaning in this concept. The definition proposed in the legal literature: "the right to use is the right to extract useful properties object "does not clarify much.
In the most recent court decision I know - Decision of the Emelyanovskiy District Court of the Krasnoyarsk Territory dated 20.12.2010 - the plaintiff was denied the claim to demolish a two-meter solid wooden fence erected by the defendant along the boundary line. The court found that p. 6.2 * SNiP 30-02-97 * is mandatory, violation of SNiP is proven by the case materials. However, according to the court, the plaintiff did not present evidence, "that the erected fence violates his rights to use the land by darkening"... By cassation appeal the plaintiff, the judicial board of the Krasnoyarsk Regional Court, the said decision was canceled. The panel of judges found two circumstances sufficient to confirm the violation of the plaintiff's right: violation of SNiP and the location of the disputed fence on the southern side of the plaintiff's site. It was decided The cassation ruling of the Krasnoyarsk Regional Court dated February 21, 2011 , to which the plaintiff's demands for the demolition of the fence were satisfied without referring the case for reconsideration to the court of first instance.
As you can see, the position of the courts on the issue of proving damage from the fence was diametrically opposite. It even happens that this harm itself, which is quite obvious, is assessed by the judge in terms of "size" sufficient to satisfy the claim for demolishing the fence (which contradicts the meaning article 304 of the Civil Code of the Russian Federationwhere it says - "demand the elimination of any violations", and not just particularly significant). So, in one of the court cases on abnormal fence in a gardening association, the judge told the plaintiff that reducing the yield by 2 buckets of potatoes is not enough to recognize a violation of the law. It was about a solid fence several tens of meters long. Consider a speculative analogy. Let's say a malicious neighbor built his toilet on someone else's plot. Reasoning in the same logical way as the aforementioned judge, we come to the surprising conclusion that this toilet did not violate anyone's rights. Well, in fact, do not consider it a violation of the right to reduce the yield by two potatoes!
Proof of violation of the right to use the land plot, which is shaded neighbor's fence, includes several elements. It is necessary to prove, first, that the shadow exists; secondly, that the shaded part of the territory is used; thirdly, that existing shading can lead to damage to the owner of the site.
The presence of a shadow can be proven by photographs in which the shadow will be visible. It is advisable to provide the court with a partnership plan so that it is clear how the areas between which the controversial fence is installed, to the cardinal points. It is the right to use that is protected in a negative claim; it is clear that if there is no use, then there is nothing to defend. Therefore, it is necessary to convince the court that the shaded part of the plaintiff's land plot is actively exploited. The damage resulting from the violation of the right is eloquent proof of this violation of the right. And the presence of a shadow, and the use of a shaded part, and damage - all this can be proven by the testimony of witnesses, including, in addition to neighbors in the site, the spouse, parents, adult children and other relatives of the plaintiff are allowed.
Expertise in order to identify a causal relationship between a neighbor's fence and the oppression of plants caught in its shadow, most likely, should be ecological. In Krasnoyarsk, environmental impact assessment can be carried out in Krasnoyarsk Forensic Laboratorylocated at the address: 660049, Krasnoyarsk, Lenin street, 58; 660062, Krasnoyarsk, TV street, 6a. Tel. 290-10-86, 290-10-91.
Lack of contractual relationship between the plaintiff and the defendant
A claim for the demolition of a fence that violates SNiP can only be satisfied if there is no mutual obligation between the plaintiff and the defendant in relation to the disputed fence. The plaintiff, however, does not need to prove the absence of such obligations. It is the responsibility of the defendant to convince the court that written agreements on the disputed fence exist.
Summary table
Table. Circumstances subject to investigation in the court session on the claim for the demolition of the fence established along the boundary line between garden plots in violation p. 6.2 * SNiP 30-02-97 *
| Circumstances subject to investigation at the court session | Who proves | Need of proof | Proof of | |
|---|---|---|---|---|
| Plaintiff's ownership of a shaded garden plot | Plaintiff | Required | A photocopy of the certificate of ownership attached to the statement of claim; original testimony presented at trial | |
| Violation by the defendant during the construction of the controversial fence p. 6.2 * SNiP 30-02-97 * | Plaintiff | Required | Photos of the fence with a ruler attached to it (a geodetic measuring rod); protocol of the board or other document of a horticultural partnership, confirming the violation by the defendant of the building rules | |
| Violation of the right of use of the plaintiff | Shading | Plaintiff | Required | |
| Using the shaded part | Plaintiff | Required | Photos; testimony of witnesses | |
| Causing damage (without its assessment) | Plaintiff | Desirable | Testimony of witnesses | |
| Existence of a causal relationship between shading and damage | Plaintiff | Desirable | Forensic ecological expertise | |
| Availability of obligations on the disputed fence between the plaintiff and the defendant | The defendant | - | A written agreement between the parties on the construction of the fence, provided to the court by the defendant, will be the basis for refusing to satisfy the claim | |
About types of fences
According to clause 1 of Article 222 of the Civil Code of the Russian Federation, "an unauthorized building is a residential building, other structure, structure or other immovable property created on a land plot not allocated for these purposes in the manner prescribed by law and other legal acts, or created without obtaining the necessary permits for this or with a significant violation of urban planning and building codes "... Further, in clause 2 of Article 222 of the Civil Code of the Russian Federation, written: "unauthorized construction is subject to demolition by the person who carried it out or at his expense"... Immovable property, among other things, is that "which is firmly connected with the land, that is, objects, the movement of which is impossible without disproportionate damage to their purpose" (article 130 of the Civil Code of the Russian Federation). A brick fence on a concrete foundation is real estate (capital structure), and wooden fenceholding on stakes driven into the ground is a temporary structure that is not real estate. Within the meaning of the law, subject to demolition brick fence, erected in violation of SNiP, but such measures are not supposed to be applied to the wooden fence. The above-mentioned Decision of the Yemelyanovskiy District Court of 20.12.2010 indicates, among other grounds for refusing a claim to demolish the fence, and its lack of capital.
And one more remark. Supporters of the construction of high solid fences in horticulture suggest such a way out - to build a fence that they want, but departing from the border of the site into the depths of their territory at least one meter. This decision is fraught with a danger that is overlooked. According to p.4.1 Instructions for land surveying, approved by Roskomzem on April 8, 1996, a fence is one of the types of securing the boundaries of land plots on the ground. By moving the fence deep into his territory, the owner, in fact, refuses to use part of his land plot. There is a possibility that in the future, if a dispute arises, a high fence will be recognized as the border of adjacent areas, and not a dilapidated picket fence at its foot.
Dmitry Okhapkin, January 2011
From the point of view of law and security, the document regulating fire-prevention distances between houses and other buildings in SNT seems to be very important.
Well, of course, in the event of a fire, officials always have the opportunity to point out the fact that the distance between the houses in the SNT was not maintained and because of this 3-5-10 houses in the garden partnership burned down.
Here's a look at an excerpt from SNiP 30-02-97, which regulates these parameters in garden partnerships:
What are houses built from in SNT? Most often it is made of wood. That is, according to the norms specified in the document, between two wooden houses there should be a distance of 15 meters. Now let's think about how you can withstand such distances with a land area of \u200b\u200b6 acres?
The standard cutting of plots in summer cottages is usually 20 by 30 meters. At the same time, it is natural that the main territory in the SNT is allocated for vegetable gardens and orchards. This means that the house is usually located on the corner of the plot, closer to the road.
To ensure fire-prevention distances in such areas, all houses will have to be arranged in a uniform way, keeping at least 15 meters between them.
And the houses will have to be made small, with a facade width of 5 to 6 meters. Naturally, on the territory of horticultural cooperatives, the construction of large houses was not supposed - after all, SNiP was adopted in 1997.
However, the situation has changed dramatically since then. Houses for permanent residence are being actively built on the territory of partnerships that are located near the city limits. They differ in size and people live in them all year round.
If the house has dimensions different from the small garden house, then in order to comply with fire regulations within small sections of SNT, there is only one way out - to build from non-combustible materials - blocks, bricks, reinforced concrete. In this case, as can be seen from Table 2, you can significantly reduce the distance from your house to neighboring houses, even built of wood or on a wooden frame.
A small note. As you can see, SNiP equated frame houses to houses made of wood. That is, the skeleton frame must also defend about wooden houses neighbors at least 15 meters away.
Naturally, the most favorable situation is when your house and your neighbor's house are built, for example, from bricks or blocks. Then the distance between your houses can be only 6 meters. You retreat from the border of the site 3 meters, and the neighbor retreats from the border of the site from his side also 3 meters - and you can build houses with a clear conscience.
Although, as can be seen from the text of SNiP, you can generally attach (block) your house and your neighbor's house to each other, if you agree on this.
And if you want, you can combine 4 houses on adjacent four plots, thus obtaining a townhouse (with 2 rows of buildings) with four separate exits and porches.
