DECISION
Name Russian Federation
January 19, 2011 Trinity City Court Chelyabinsk region consisting of: presiding Mirzoyan N.E.,
under the secretary Kadomtseva T.G.,
with the participation of lawyer Chiganova T.I.,
examined in open court a civil case under the claim Bubyasheva L.A. to Tleumagambetova L.Yu. to remove obstacles to the use of property
installed:
Bubyasheva L.A. filed a lawsuit in which she asks to oblige the defendant to dismantle, in compliance with sanitary standards and rules, an unauthorized structure erected - a cesspool located on the border land plots between their houses and recultivate it land plot at a distance of 30 meters from the boundary line.
In support of the claim, he refers to the fact that the pit was made in violation of sanitary standards, is not airtight, sewage flows into the ground, which leads to wetting of the foundation in the house, the appearance of cracks on the walls of the house and the appearance of a fetid smell in the house. For this reason, the quality of water in her well has deteriorated. The cesspool is located near the city water supply, which the plaintiff uses.
At the hearing the plaintiff and her representative Ezhov A.AND. supported the claim, referring to the arguments set out in the claim.
defendant Tleumagambetova L.Yew. the lawsuit was not recognized, referring to the fact that the cesspool is airtight, neither odors nor drains penetrate the ground, it is impossible to locate it elsewhere due to the size of the land. The presence of chemical substances in the air examined in the plaintiff's house is not the reason for the connection with the cesspool. There are also sources of pollution on the plaintiff's land plot: a cesspool from a bathhouse, a toilet. He asks to dismiss the claim.
After hearing the parties, the testimony of witnesses, examining the evidence in the case, the court finds the claim subject to partial satisfaction.
I decided:
Oblige Tleumagambetova L.Yew. dismantle, in compliance with sanitary standards and rules, a cesspool located on a land plot at the address<адрес>deadline d. XXX April 2011.
In the suit Bubyasheva L.A. to Tleumagambetova L.Yu. on the reclamation of the land plot to refuse.
recover from Tleumagambetova A.Yew. in favor of Bubyasheva L.A. legal costs in the amount of 36840 (thirty six thousand eight hundred forty) RUB.
The decision can be appealed to the Chelyabinsk Regional Court within 10 days through Troitsk City Court.
In modern housing sewerage is an integral part of a comfortable and safe life support system. In urban apartment buildings using a centralized sewerage system. For landscaping country house used autonomous sewerage. There are several types of cleaning systems in use today. You can install a ready-made septic tank, a well made of reinforced concrete rings, or dig a cesspool.
Cesspool: design features A cesspool is the simplest wastewater treatment system in a suburban area. It's the simplest engineering structure, which, despite the appearance of more modern systems cleaning, widely used in the arrangement suburban areas. Such autonomous sewerage economical, it does not require large investments for the device. Its design consists of a sealed recess in the ground of a plot two or more meters in size. Such a country sewerage may have concrete walls, or walls lined with red brick. In some cases, boards treated with a special solution that prevents them from rotting can be used.
Device cesspool: main stages Making a cesspool can be made independently, using a non-tricky set of tools and observing the recommended technology.
In order for such a suburban sewage system to function well, and it would be easier to take care of it, the shape of the cesspool must be made round. The easiest way to make it from reinforced concrete rings. The round shape allows better sealing of the sump and reliably prevents sewage from entering the soil through the seams.
Step-by-step arrangement of a cesspool First you need to choose the location of the pit. Autonomous sewerage on a suburban area should be located at a distance of at least 30 meters from wells and sources of drinking water, in accordance with the requirements building codes assets and sanitary regulations. It must be separated from residential buildings by at least 12 meters. The distance from the site fence should not be less than 1 meter. In case of violation of these standards, the owner of the site may be held liable.
It is also necessary, when choosing a place for a cesspool, to provide for the possibility of access for special sewage equipment.
When choosing a place, it is better to choose the lowest point on the site. In this case, sewerage will flow through the pipes by gravity without blockages.
After choosing a place, it is necessary to determine the volume of the cesspool, which will depend on the number of people permanently residing in the house. One person should account for about half a cubic meter. The larger the volume of the sump, the less often you will have to call a sewage truck.
Making a cesspool should begin with the calculation of the amount of building materials needed for its construction. To do this, you need to decide on the type of material. To strengthen the walls, you can use reinforced concrete rings, concrete or brick. The bottom of the pit must be reinforced and concreted. From a smooth surface, sewage will be pumped out faster and better.
To protect the cesspool, you will need a special hatch built into a reinforced concrete slab. This will help to quickly respond to emergencies and will protect the cesspool from freezing. The slab must be immersed in the ground, on the surface of which only the manhole cover should remain.
To remove carbon dioxide formed during the life of aerobic microorganisms, it is necessary to remember to bring ventilation pipes to the soil surface during the construction of a cesspool. The ventilation pipe brought to the surface of the soil must be protected by a special canopy from possible clogging.
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Aleksinsky City Court of the Tula Region, consisting of:
presiding Minacheva V.F.,
under the secretary Krivitskaya A.S.,
having considered in open court the civil case No. 2-1394/11 on the claim of Inkina Irina Anatolyevna, Inkin Evgeny Pavlovich to Stepovoy Vasily Nikolaevich, administration municipality Aleksinsky district, the administration of the municipality city of Aleksin, Aleksinsky district, on the obligation to take certain actions,
installed:
Inkina I.A. and Inkin E.P. filed a lawsuit against V.N. address: .., in accordance with the legislation of the Russian Federation, that is, at a distance of at least 8 meters from the boundaries of the household at the address: .., and issue permission for its placement in the specified location, and oblige Stepovoy V.N. dismantle the cesspool, moving it to a place determined by the administrations.
In support of the stated requirements, they indicated that they are the owners of a residential building and a land plot located at: ...
The owners of the adjacent territory from the side of the street are the administration of the municipality Aleksinsky district.
In this adjacent territory, in the immediate vicinity of their household at a distance of 2m 50 cm from the borders of the house and 8m 40 cm from the wall of the house, there is a cesspool built by the defendant and serving directly the household of Stepovoy V.N.
They consider that by virtue of Art. 209 of the Civil Code of the Russian Federation Stepovoy V.N. was not entitled to determine the procedure for using the adjoining territory, since he is not its owner.
The pit latrine was erected in violation of existing building codes in the immediate vicinity of their home, as a result of which the plaintiffs experience inconvenience from the unpleasant smell emanating from the latrine. When the cesspool overflows, sewage flows onto their land, as it is located on a slope from the cesspool to the house. By constructing a cesspool, the defendant significantly violated their rights under Art. Articles 40, 41 of the Constitution of the Russian Federation.
The significance of the violation of urban planning and building norms and rules is due to the fact that the preservation of a cesspool in the immediate vicinity of their home and land creates a threat to life and health, violates the sanitary and epidemiological situation on the ground.
By the decision of the administration of the municipality, the city of Aleksin, Aleksinsky District, Stepovoy V.N. it was recommended to move the cesspool to an acceptable distance.
The location of the cesspool violates the parameters for the placement of this structure, established by subparagraphs 2.3.1 and 2.3.2 of clause 2.3 of SanPiN 42-128-4690-88 of the Sanitary Rules for the Maintenance of Territories of Populated Places, and, as a result, the rights and interests of the plaintiffs.
Since on a voluntary basis Stepovoy V.N. does not want to dismantle the disputed cesspool to transfer it to another location, to bring its location in accordance with the rules and regulations, they believe that in this case, the possible location of the cesspool should be determined by representatives of the administrations.
At the court session:
Plaintiff Inkin E.P. amended claims upheld on the grounds specified in the claim, asked to meet.
Claimant Inkina AND.A. did not appear at the hearing, in her statement she asked to consider the case in her absence with the participation of a representative of the lawyer Kartysheva H.A. Earlier at the hearing, the specified claims were upheld on the grounds set forth in the claim.
The representative of the plaintiffs on warrant lawyer Kartysheva H.A. amended claims supported in full on the grounds set forth in the claim, asked them to satisfy. At the same time, she explained that in 2010 the plaintiffs purchased a residential building with a land plot at the address: .., .., ... meters, the plaintiffs determined visually, without using technical means measurements. The cesspool is a mound. The problem is that in the summer, a very unpleasant smell comes from the cesspool and the liquid from it flows under the windows of the plaintiffs' house.
The plaintiffs applied to the sanitary epidemiological station to resolve the issue of the cesspool. The chief state sanitary doctor in..i..x.. replied with a letter that this issue could be resolved by the city administration. The plaintiffs applied for resolution of this issue to the administration in July 2011. A letter was sent from the administration to the defendants with a recommendation to move the cesspool to a distance of 15 m. To date, the cesspool is in its original place.
Paragraph 2.3 of the Sanitary Norms and Regulations No. 42-128-4690-88 fixed the provision on the collection of liquid waste. Subparagraph 2.3.2 explains that yard latrines should be removed from residential buildings, child care facilities, schools, playgrounds for children and public recreation at a distance of at least 20 meters and not more than 100 meters. On the territory of private households, the distance from yard latrines to households is determined by the homeowners themselves and can be reduced to 8-10 meters.
In a conflict situation, when the parties cannot agree and determine the location of the yard latrines, it is determined by representatives of the public, administrative commissions of local councils.
The administration of the Moscow Region, the city of Aleksin, Aleksinsky District, was supposed to go to the site and draw up an act on the presence of a cesspool and its location. If there are violations, determine the possible place for transferring the cesspool. But the administration did not take these actions. The plaintiffs cannot independently determine the place of the possible transfer of the cesspool.
This cesspool is not located on the land of the plaintiffs, nor on the land of the defendants. The land plot on which the cesspool is located is in municipal ownership - the administration of the Moscow Region Aleksinsky District.
The plaintiffs are sure that the distance from the cesspool to the windows of the house is less than 8 meters, there is an act in the case file interdepartmental commission, where it is indicated that the distance is 5 meters to .., in ... Therefore, the SanPiN rules are violated, the administration does not determine the possible place for transferring the cesspool. The plaintiffs are currently unable to reside in this home.
SanPin in clause 2.2. "collection of municipal solid waste" contains a provision on the temporary regime, this paragraph can be applied to the present situation by analogy.
He believes that it is possible to determine a place for transferring a cesspool.
He believes that, taking into account the requirements of the Order of the Ministry of Zemstroy of the Russian Federation “On approval of the Instruction on accounting housing stock in the Russian Federation "No. 37 of 08/04/1998, home ownership is understood as a residential building with outbuildings located on a separate land plot, that is, a cesspool should be located at a distance of more than 8 m from the land plot, and not a residential building. Taking into account the provisions of this document, currently the cesspool of the defendant Stepovoy V.N. located less than 3 m.
It was also found that the cesspool is not airtight, which violates the norms for arranging the pit, that is, the sanitary and epidemiological conditions are violated. The cesspool must be located on the territory of the household of the defendant Stepovoy V.N.
defendant Stepovoy The.GN. and his representative by proxy Ivanova Oh.The. the claims were not accepted.
In his objections Stepova V.N. indicated that the household ... by .. was built in 1959. It was owned by the defendant's father, who died in 1999. The controversial cesspool was erected in 1984 during the construction of a permanent water supply in agreement with the WSS Department ... At the time of the construction of the cesspool, it was allowed to be moved outside the household, the project of water supply and sewerage was approved by the coordinating authorities. At the time of the construction of the cesspool, the boundaries of the land plot of the household ... by .. were different.
From 1999 to 2004, the owner of the household ... was the mother of the defendant, who accepted the inheritance after the death of her husband in the form that it is at the moment. Stepovoy V.N. has been the owner of the household ... to .. since 2007. Any reorganization of the existing system has not been carried out since the construction.
The plaintiffs purchased the property ... by ... in August 2010. With the appropriate boundary of the house and the surrounding area were familiarized before the acquisition.
In accordance with Art. 54 of the Constitution of the Russian Federation, the law has no retroactive effect.
By the decision of the administration of the municipality, the city of Aleksin, Aleksinsky district ... Housing and communal services of 22.07.2011, sent to him, it was decided to take measures to transfer the cesspool to the distance specified in the regulatory documents. The decision refers to Art. 2.12 SNiP 2.07.01-89 "Urban planning", which became invalid from 20.05.2011. Analyzing SNiP 2.07.01-89 "Urban planning", he came to the conclusion that in the said document Art. 2.12 does not correspond to the actual content of the document referred to by the administration.
During the existence of the cesspool for more than 27 years, no comments were made on the violation of sanitary well-being. Not far from the cesspool there is a water distribution column, once a month MUP "VKH" .. conduct water samples for compliance with biological and sanitary indicators, the water is suitable for drinking. In addition, according to a letter from the administration of the municipality, the city of Aleksin, Aleksinsky district, No. ... dated July 25, 2011, it follows that the sewer pipe leading from .. to the cesspool is hermetic and does not pose a threat to centralized water supply, since the water supply system runs at an acceptable distance from the sewer pipe. The cesspool is cleaned regularly. The cesspool consists of reinforced concrete rings with a diameter of 2 meters and a height of 1 meter 20 cm. It is designed for 8 cubic meters. The cesspool does not provide for a hard bottom, but crushed stone is poured on the bottom and therefore drains do not enter the land. He considers that there are no legal grounds for satisfying the claim.
while Ivanova Oh.The. explained that she objects to the dismantling of the cesspool. The pit was built on this site 27 years ago in 1984. At the time this pit was being built, no entry permission was required. It is not possible to build a cesspool on the territory of a household ..., since the distance between households is less than 8 m and a car entrance is needed to pump out waste from a cesspool, there is no place for this in the garden.
The distance from the cesspool must be measured to the wall of the residential building. The broad interpretation of Order No. 37 of 08/04/1998 of the Ministry of Land Construction of the Russian Federation, as presented by the representative of the plaintiffs, that home ownership is understood to include a land plot, and it is necessary to make measurements from the land plot of the plaintiffs, is considered illegal.
The representative of the defendant administration of the municipality Aleksinsky district by proxy Mukhashova Oh.C. claims were not recognized. At the same time, she explained that at the time of the construction of the cesspool, there was only one administration, there was no division into two. In 1984 a cesspool was built and an agreement was reached with the neighbors. The cesspool is located from .. in accordance with SanPiN 42-128-4690-88 at a distance of more than 8 meters. The rights of the plaintiffs are not violated, there are no grounds for satisfying the claims.
The representative of the defendant administration of the municipality city of Aleksin Aleksinsky district by proxy Khanin K.A. did not recognize the claims. At the same time, he explained that indeed, until 1984, there were no permits for the construction of cesspools and no demolition orders. The consent of the neighbors was for the construction of this cesspool.
Currently, based on current regulations and laws, a pit latrine is illegal, but at the time, permits were not required. Cesspools were built arbitrarily, if there were no objections from the neighbors. The city administration does not give permission for the construction of cesspools, but only gives permission for their commissioning. The cesspool is located from .. in accordance with SanPiN 42-128-4690-88 at a distance of more than 8 meters.
After listening to the persons involved in the case, interrogating a specialist, examining written evidence, court comes next.
By virtue of Art. 12 of the Code of Civil Procedure of the Russian Federation, justice in civil cases is carried out on the basis of competitiveness and equality of the parties.
The court, while maintaining independence, objectivity and impartiality, manages the process, explains to the persons participating in the case their rights and obligations, warns about the consequences of committing or not committing procedural actions.
As seen from the case file and established by the court, Inkina AND.A. and Inkin E.P. are owners of 1/2 for each household and land with total area 828 sq.m, located at: .., which is confirmed by certificates of state registration rights from 05.08.2010 series... ..., ..., ..., ....
It follows from the defendant's explanations that the home ownership ... by .. was built in 1959. It was owned by the defendant's father, who died in 1999. The disputed cesspool was erected in 1984 during the construction of a permanent water supply in agreement with the WSS Department .., which is confirmed by a statement of commitment .. dated 12.10.1984 (case sheet 54).
The defendant has been the owner of a home ownership ... by .. and land plots with a total area of 642 sq.m since February 22, 2007, which is confirmed by certificates of state registration of rights (series ... No. ..., ...). Reconstruction of the existing water supply system, as well as the cesspool, has not been carried out since the construction.
As can be seen from the situational plans as of 03/30/1999, the layout drawing as of 03/28/2006, the boundaries of the plaintiffs' home ownership differed significantly from those existing at the moment.
The plaintiffs ask to dismantle the cesspool and move it to another place, determined by the administrations of the Aleksinsky district and the city of Aleksin, Aleksinsky district.
The court considers, these claims are not subject to satisfaction on the following grounds.
By virtue of Part 3 of Article 17 of the Constitution of the Russian Federation, the exercise of human and civil rights and freedoms must not violate the rights and freedoms of other persons.
According to Article 304 Civil Code Russian Federation, the owner may demand the elimination of any violations of his right, even if these violations were not connected with deprivation of possession.
Based on this norm, it follows that the condition for satisfying such requirements is the violation of the rights of the owner, in this case- plaintiffs, and in itself, the discrepancy between the location of the structure and the existing standards cannot be recognized as sufficient grounds for its demolition.
During the verification of the appeal of Inkin E.P. the administration of the municipality of Aleksin, Aleksinsky district, within its competence, established that the sewer pipe leading from .. to the cesspool is airtight and does not pose a threat to centralized water supply, since the water supply system runs at an acceptable distance from the sewer pipe. The cesspool is cleaned regularly (case sheet 13).
The above is confirmed by the act of the interdepartmental commission dated 01.12.2011, approved by the resolution of the administration of the municipal formation of the city of Aleksin, Aleksinsky district ... dated 02.12.2011, that the cesspool is not equipped with an overflow system of sewage, sewage from the cesspool to the area adjacent to the house ... according to .. do not arrive (case sheet 50-51).
By the decision of the Aleksinsky City Court of the Tula Region of September 8, 2011, it was established that the letter sent with the recommendation of the administration of the Moscow Region of the city of Aleksin of the Aleksinsky District to move the cesspool to an acceptable distance from the household ... by .. (plaintiffs) at least 15 meters, imposes on Stepovoy V.N. only the obligation to consider it allows, in case of disagreement with the submission, to provide a response on such disagreement. The letter does not contain any mandatory requirements in the part disputed by the applicant.
In accordance with the Sanitary Rules and Norms SanPiN 42-128-4690-88 "Sanitary Rules for the Maintenance of Territories of Populated Places" (hereinafter SanPiN 42-128-4690-88), approved by the USSR Ministry of Health on August 5, 1988 N 4690-88, for collection liquid waste in non-sewered households, yard garbage dumps are arranged, which must have a waterproof cesspool and a ground part with a lid and a grate to separate solid fractions. For the convenience of cleaning the grate, the front wall of the garbage can should be removable or openable. If there are yard latrines, the cesspool may be shared (clause 2.З.1.). On the territory of private households, the distance from yard latrines to households is determined by the homeowners themselves and can be reduced to 8-10 meters. In conflict situations, the location of outdoor latrines is determined by representatives of the public, administrative commissions of local Councils (clause 2.3.2.).
The plaintiffs refused to conduct a judicial construction and technical expertise.
In addition, during the offsite court session, when inspecting the cesspool, measuring the compliance of the cesspool with the norms of SanPiN 42-128-4690-88, it was established. The distance from the corner of the plaintiffs' house to the cesspool is 8 m 40 cm. The plaintiffs do not live in the house, as its reconstruction is required. The cesspool is more than 3 m deep. Concrete rings are located at a depth of 2.5 m. The pit is covered with reinforced concrete reinforcement, which has a hatch that closes at ground level with a cast-iron lid. Sewage is located below 0.35 m from the ground.
At the court session, specialists were interrogated ... the head of the department for urban planning and architecture of the administration of the Moscow Region .. and ... a specialist expert of the management department Federal Service on supervision in the field of consumer protection and human well-being by .. (Department of Rospotrebnadzor for ..).
He explained that the cesspool is located on the adjacent territory belonging to the administration of the municipality Aleksinsky district. Measurements of the conformity of the distance of the location of the cesspool from the household of the plaintiffs were made with a meter tape measure. When measured by air, a distance of about 5 meters from .. to the cesspool was established, which were indicated in the act of 12/01/2011. When measuring on the ground, it turned out more than 5 meters, but this was not recorded. He is not authorized to decide on the demolition or transfer of the cesspool.
She explained that, according to SanPiN 42-128-4690-88, the cesspool should be a sealed cesspool with a tightly closed lid with an entrance for specialized vehicles for pumping wastewater. According to SanPiN 42-128-4690-88, the cesspool should be located at a distance of 8-10 meters from the house. Measurements were made by a representative from the department of urban planning and architecture of the administration of the Moscow Region, the city of Aleksin, Aleksinsky district, with a meter tape measure from the cesspool to the corner ... The expiration date for the operation of the cesspool has not been established. Yard restroom and cesspool are equivalent concepts. In practice, the distance is measured from a residential building, and not from the boundaries of the land. The cesspool was inspected visually, only from above; it is not possible to say about the tightness of the cesspool, since at the time of the inspection it was closed. Whether sewage flows from the cesspool to the adjacent territory .. cannot answer, since these points were evaluated by the representative of the department of urban planning and architecture of the administration of the Moscow Region, proud Aleksin of the Aleksinsky district. In order for the drains not to go into the ground, a cesspool is being built, and it must be equipped with septic tanks, but septic tanks are not provided for private households.
Thus it is at the hearing found, that the cesspool of the defendant Stepovogo The.GN. complies with SanPiN 42-128-4690-88, that is, no evidence of a violation of the plaintiffs' rights has been presented. It is not connected to the central sewerage system, liquid waste is discharged and drained into a cesspool built over 27 years old and located on a land plot owned by the municipality. The cesspool is cleaned regularly.
In the event of the liquidation of the cesspool, the residents will be left without local sewage. Although the house has water supply, and in accordance with paragraph 4.3.5. Code of rules for design and construction 30-102-99 "Planning and development of territories of low-rise housing construction» input of a water pipe in one - semi-detached houses allowed if there is a connection to a centralized sewerage system or if there is a local sewerage system.
The administration of the municipality of Aleksinsky district does not insist on the transfer of the cesspool by Stepov V.N. from the land they own.
The Civil Code of the Russian Federation does not contain the concept of households and other complexes of objects capital construction, while in Art. 135 defines "the main thing and belonging".
However, the land plot and the buildings located on it are independent objects of property rights and the provision of Art. Art. 134 - 135 of the Civil Code of the Russian Federation.
The arguments of the plaintiffs' representative that the distance from the cesspool to the plaintiffs' home ownership can be at least 8 m, but the measurement must be made not from the windows of the residential building, but from the boundaries of the land plot, cannot be recognized by the court as valid.
In doing so, the court is guided by Art. 1 of the Instruction on accounting for the housing stock of the Russian Federation, approved by Order of the Ministry of Land Construction of Russia dated 04.08.1998 N 37, the unit of technical inventory is: home ownership; separate main building. Home ownership - a residential building (houses) and buildings and structures serving it (theirs), located on a separate land plot.
In this regard, when resolving the case, the court measured the location of the cesspool from the corner of the house to the specified object and established its actual location at a distance of 8 m 40 cm from the house.
Assessing the evidence examined at the hearing according to the rules of Art.Article. 59, 60, 67 Code of Civil Procedure of the Russian Federation, court comes to the conclusion that the stated claims Inkinoy AND.A. and Inkina E.P. are not subject to satisfaction, which in turn, by virtue of Art. 98 Code of Civil Procedure of the Russian Federation entails a refusal to satisfy the claim for the recovery of court costs.
Guided by Article.Article. 194-199 Code of Civil Procedure of the Russian Federation, court
I decided:
In satisfaction of the claims of Inkina Irina Anatolyevna and Inkin Evgeny Pavlovich on the obligation of the administrations of the municipal formation of Aleksinsky district and the municipality of the city of Aleksin of Aleksinsky district to determine the possible location of the cesspool serving the household of Stepovoy Vasily Nikolaevich, located at: .., in accordance with the legislation of the Russian Federation, that is, at a distance of at least 8 meters from the boundaries of the household at the address: .., and issue a permit for its placement in the indicated place and the obligation of Stepovoy Vasily Nikolaevich to dismantle the cesspool, moving it to a place determined by the administrations, to refuse.
The decision can be appealed to the Judicial Chamber for Civil Cases of the Tula Regional Court through the Aleksinsky City Court of the Tula Region within 10 days from the date of the final decision by the court.
Karsunsky District Court of the Ulyanovsk Region, consisting of:
Judge Asanidze *.*.,
under Secretary Kazakova *.*.,
having considered in open court a civil case based on the statement of claim of Kamaletdinova Sa against Drozhdina Mar on the demolition of a cesspool, the recovery of procedural costs,
Installed:
Kamaletdinova *.*. applied to the court with the above claim against Drozhdina *.*., substantiating it as follows. She acquired in 2007 the ownership of a semi-detached residential building on. On the border of two land plots there is a cesspool opposite the windows of the bedrooms at a distance of 5 m and 2 m from the foundation of the hallway and kitchen. The inspection hatch is made from her side. She does not use this pit, and the sewer pipeline from her apartment is not connected to the cesspool. The pit is made of concrete slabs(walls, ceiling), the bottom of the pit is clay, when the pit is filled with liquid waste, part of the liquid through the walls and the bottom is absorbed into the ground. The cesspool was built in violation of building and sanitary standards, the distance from the foundation of the residential building to the cesspool was not observed, smells from it penetrate into the apartment, when it is hot outside, it is impossible to stay in the apartment. To her application, filed with Vodokanal LLC, Karsun village, Territorial Department of the Rospotrebnadzor Administration for the Ulyanovsk Region in the Karsun District, where she asked to determine how far the sewer pit should be located, whether the sanitary protection zone from the sewer pit to the border residential building, the answer was given that the minimum distance from the foundation of the house to the sewer pit should be at least 10 meters, which is set normative documents SNiP 2.04.03-85 p. 1.1, SanPiN 42-128-4690-88 p. the smell of "rotten eggs"), and possible contamination of the soil in the area inside the sanitary zone. Therefore, he asks to oblige the defendant to stop the operation of the cesspool, pump it out and fill it up, and recover procedural expenses from the defendant.
Plaintiff Kamaletdinova *.*. at the court session she insisted on the claims, she explained to the court that in the summer an unpleasant smell emanates from the cesspool. She intends to move into the half of the house she has acquired and make a separate cesspool for herself in another place, and let the defendant also make a separate cesspool for herself. She did not apply to the relevant organizations regarding the installation of a new cesspool or connection to the central sewer.
The plaintiff's representative Tkachenko *.*., admitted by the court in accordance with paragraph 6 of Article 53 of the Code of Civil Procedure of the Russian Federation, explained to the court that they base their claims on Article 304 of the Civil Code of the Russian Federation. There are clear violations of the plaintiff's rights related to the use of a cesspool. The Federal Law of March 30, 1999 N 52-FZ "On the sanitary and epidemiological well-being of the population" establishes the obligation of all citizens to comply with sanitary norms and rules, and Article 57 also establishes responsibility for their non-compliance. According to sanitary standards, the cesspool should be located 15 meters from the house, but retreat is possible, by decision of the sanitary and epidemiological supervision authorities. In this case, there are conclusions from Vodokanal LLC and the Office of Rospotrebnadzor, which say that there are violations in the arrangement of the drain pit, the requirements for its arrangement are indicated. There is every reason to satisfy the claims in full.
Defendant Drozhdina *.*. she did not recognize the claims, she explained to the court that the issue of designing and operating the cesspool was examined at the court session on her claim against Kamaletdinova *.*. It was found that at the time of the construction of the residential building in which they live, sanitary norms and rules were not violated. Kamaletdinov *.*. obligated not to obstruct the cleansing of the pit as needed. Believes that the requirements stated by the plaintiff in this statement of claim are nothing more than actions aimed at causing harm to others. These actions directly contradict the requirements of Article 10 of the Civil Code of the Russian Federation. The plaintiff's arguments were violations of the requirements of sanitation and hygiene standards, but they did not build a pit near the plaintiff's house, on the contrary, the plaintiff added part to the household in violation of all the rules and norms to which she refers in the lawsuit. The central sewerage along the street is located higher, in all houses built in 1976-1977, there are cesspools 5-6 meters from the wall of the house. The house in which she lives from 1976-1977 was commissioned by the commission, including the cesspool. They never had scandals and disputes about the cesspool with the former co-owners. When the plaintiff's son-in-law began to build an extension in 2009, she explained to him that it was incorrectly attached to the side of the cesspool.
Representative of a third party of the Office of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare in the Ulyanovsk Region Fazullin *.*. court explained that leaves the decision to the discretion of the court. According to paragraph 2.3.1 of the Sanitary Rules for the maintenance of territories of populated areas, approved by the Chief State Sanitary Doctor of the USSR, Deputy Minister of Health of the USSR *.*. Kondrusev on August 5, 1988, No. 4690-88, to collect liquid waste in non-sewer households, yard garbage dumps are arranged, which should have a waterproof cesspool and a ground part with a lid and a grate to separate solid fractions. For the convenience of cleaning the grate, the front wall of the garbage can should be removable or openable. If there are yard latrines, the cesspool can be shared. In accordance with paragraph 2.3.2, yard latrines should be removed from residential buildings at a distance of at least 20 and no more than 100 meters. On the territory of private households, the distance from yard latrines to households is determined by the homeowners themselves and can be reduced to 8-10 meters. In conflict situations, the location of yard latrines is determined by representatives of the public, administrative commissions of local councils. According to clause 1.10 of SNiP 2.04.03-85 “Sewerage. External networks and structures” -Sanitary protection zones from sewerage facilities to the boundaries of residential buildings, sections of public buildings and enterprises Food Industry taking into account their future expansion, it should be understood: from sewerage facilities and pumping stations settlements- According to Table 1 - The sanitary protection zone from filtering wells is 5 and 8 meters, respectively, from aeration plants for complete oxidation with aerobic stabilization of sludge at a capacity of 700 m / day - 50 m. Therefore, it considers that the cesspool should not be located less than 8 meters from the wall of the house, this pit can be moved deep into the courtyard or equipped on the front line of the house.
The representative of the third party LLC "Vodokanal" Lutin *.*. at the hearing explained that leaves the decision at the discretion of the court. On this street, they did not have a water supply scheme, but a water supply system was built near the disputed house using a household method, a pipe with a diameter of 43 mm was installed, from which the cesspool should be located at least 10 meters away. The existing cesspool can be moved deeper into the yard or equipped elsewhere, but a project needs to be developed. To connect to the sewer, it is also necessary to develop a project. A disputed house without sewerage will not be able to function, since there is a bath and a toilet.
The representative of a third party of the administration of the Karsunskoe urban settlement" Zhukov *.*. at the hearing he explained that the claim was not subject to satisfaction, since the house was built a long time ago, the cesspool was taken into account when designing. If the sewers are blocked, residents will not be able to use the toilet.
Having listened to the arguments of the parties, the opinion of experts, having checked the materials of the case, the court comes to the following.
The materials of the case established that the plaintiff Kamaletdinova *.*. on the basis of the certificate of state registration of rights No. and 73-AT No. since February 18, 2009, is the owner of a 50/100 share of a residential building and a land plot (with a total area of 1048 sq.m.), located at:. Defendant Drozhdina *.*. since November 15, 1999 has the right of general fractional ownership with Drozhdin *.*. 1/2 share of the above residential building and land plot (area 550 sq.m.), according to certificate No. issued on the basis of the Decree of the Head of Karsunsky District No. 142 dated November 10, 1999 and the certificate of land ownership of the RF series - XXXII-73: 05 No. 0340737.
From the explanations of the parties and the inventory file No. 1817 on the residential one, it follows that it belongs to the Drozhdins, Kamaletdinova -. In the courtyard of this house (front line), five meters from its wall, there is a common cesspool.
The plaintiff asks to oblige the defendant to stop the operation of this cesspool, pump it out and fill it up, since the pit, in violation of sanitary rules, is located near the house and an unpleasant smell comes from it.
The court considers that these requirements are not subject to satisfaction for the following reasons.
By virtue of Part 3 of Article 17 of the Constitution of the Russian Federation, the exercise of human and civil rights and freedoms must not violate the rights and freedoms of other persons.
According to Article 304 of the Civil Code of the Russian Federation, the owner may demand the elimination of any violations of his right, even if these violations were not connected with deprivation of possession. Based on this norm, it follows that the condition for satisfying such requirements is a violation of the rights of the owner, in this case, Kamaletdinova *.*.
By the decision of the Karsunsky District Court of the Ulyanovsk Region dated December 09, 2010 on the suit of Drozhdina *.*. to Baitiryakov *.*., Kamaletdinova *.*. on the removal of obstacles in the use of the drain pit, it was established that the above cesspool (drain pit) was built together with residential building No. This Decision, by virtue of Part 2 of Article 61 of the Code of Civil Procedure of the Russian Federation, in the consideration of this case, has prejudicial significance for the court.
By order of the Head of Administration of the Karsunsky District dated 05.07.1995 No. 274-r, the act of acceptance of this residential building was approved, that is, the building was accepted for operation. At the same time, it follows from inventory file No. 1817 that the house was built in 1978, since 1978 both apartments have a bath, and from June 1995 to the present, a bathroom. The house is not connected to the central sewerage, liquid waste is discharged and drained into a cesspool located in the courtyard of the house.
The plaintiff and her representative refused to conduct a judicial construction and technical expertise to determine the compliance of the cesspool with the norms of SNiP and other building codes, as well as the possibility of arranging the cesspool in another place, referring to the presence of a violation of sanitary rules regarding the indentation of the cesspool from the wall of the house.
In accordance with the Sanitary Rules and Norms SanPiN 42-128-4690-88 “Sanitary Rules for the Maintenance of Populated Areas”, approved. The Ministry of Health of the USSR on August 5, 1988 N 4690-88, for the collection of liquid waste in non-sewered households, yard garbage dumps are arranged, which must have a waterproof cesspool and a ground part with a lid and a grate for separating solid fractions. For the convenience of cleaning the grate, the front wall of the garbage can should be removable or openable. If there are yard latrines, the cesspool can be shared (clause 2.3.1.). On the territory of private households, the distance from yard latrines to households is determined by the homeowners themselves and can be reduced to 8-10 meters. In conflict situations, the location of outdoor latrines is determined by representatives of the public, administrative commissions of local Councils (clause 2.3.2.).
At the same time, the plaintiff did not provide the court with evidence that her rights would be restored solely by eliminating the existing cesspool. So, according to the explanations of third parties, and technical passport, this pit can be moved further from the wall of the house, deep into the yard, or arranged elsewhere, but if there are appropriate projects. The experts involved by the court expressed the possibility of constructing a cesspool on the front side of the house, but in compliance with regulatory requirements. With a claim for the transfer of a cesspool to the front side of the house, the plaintiff Kamaletdinova *.*. did not apply, nor did she provide evidence of the validity of this transfer in accordance with the requirements of SNiP and other building codes, taking into account the existing engineering structures.
The controversial cesspool has been functioning since the construction of the residential building, liquid waste from the entire house is dumped into it, and if it is eliminated, the residents of the semi-detached house will be left without local sewerage. Although the house has water supply, and in accordance with paragraph 4.3.5. Code of rules for design and construction 30-102-99 "Planning and development of territories of low-rise housing construction", the introduction of water supply into one-two-family houses is allowed if there is a connection to a centralized sewerage system or if there is a local sewerage system.
The plaintiff's arguments that the cesspool is located two meters from the foundation of the kitchen and the hallway, the court finds untenable, since the annex, in which the kitchen and the hallway are located, were erected much later after the construction of the cesspool, which is confirmed by the above Decision of the Karsunsky District Court of the Ulyanovsk Region, and also the date of acquisition of the plaintiff's title to a part of a residential building, and a working draft for the construction of an annex from 2010.
Based on the foregoing, the court concludes that the claims of Kamaletdinova *.*. are denied, which in turn, by virtue of Art.
Based on the foregoing and guided by Articles 12, 56, 194-198 of the Code of Civil Procedure of the Russian Federation, the court
Satisfying the claims of Kamaletdinova Sa against Drozhdina Mar for the termination of the operation of the cesspool, the obligation to pump out the cesspool and fill it up, and refuse to recover the court costs.
The decision can be appealed to the Ulyanovsk Regional Court through the District Court within 10 days.
Judge *.*. Asanidze
Tambov Regional Court
Case: No. 33-2310
Referee: Alekseeva G.L.
CASSATION DEFINITION
Judicial Collegium for Civil Cases of the Tambov Regional Court, composed of
presiding: Pachina L.N.
judges: Klepikova E.A., Belousova V.B.
under the secretary Simonova T.A.
examined in open court on July 20, 2011 , the cassation complaint Ledneva The.Yew. Kornienko A.K. on the decision of the Morshansky District Court of the Tambov Region dated March 30, 2011 in a civil case on the claim of Bednova G.T. to Ledneva N.I., Lednev V.Yu. and Kornienko A.K. on removing obstacles and dismantling the cesspool,
After hearing the report of Judge Klepikova E.A., the Judicial Board
SET UP:
Bednova G.T. went to court with statement of claim to Ledneva N.I. on the removal of obstacles to the use of water supply, as well as the removal of obstacles and the dismantling of the cesspool.
By the decision of the Morshansky District Court of August 17, 2010, the claims of Bednova T.T. in terms of removing obstacles to the use of water supply, they are satisfied. Claims Bednova T.T. in terms of removing obstacles and dismantling the cesspool, they were separated into a separate production. In support of their claims Bednova G.T. indicated that she owns *** shares in the household located in *** Morshansk. The co-owner of the rest of the house is Ledneva N.I., who permanently lives in the Moscow region, and comes to Morshansk during the winter and summer holidays. Believes that each of the co-owners of the house should keep their communication networks in proper order. In front of the wall of the part of the house belonging to her (Bednova G.T.), a sewer pit was built by Ledneva N.I., which constantly has a negative impact on the wall of the part of the plaintiff's house, since the foundation of the house is old and has no insulation. The distance during the construction of the pit from the wall of the house was not observed, it is less than 2 meters. There is a strong smell coming from the pit, and this smell is constantly present in the plaintiff's room. The plaintiff believes that the obstacles to the use of her house should be removed, and this sewer pit should be dismantled due to violation of sanitary standards. At the same time, Bednova G.T. asks the court to ban Ledneva N.AND. use the sewer pit, which is located near the main wall of a part of the household belonging to the plaintiff.
The co-owners of the house were involved in the case: Lednev The.Yew. and Kornienko A.K., who were
By the decision of the Morshansky District Court of the Tambov Region dated March 30, 2011, the claims of Bednova T.T. to Ledneva N.I., Lednev V.Yu. and Kornienko A.K. on the removal of obstacles and the dismantling of the cesspool are satisfied. The court ordered Ledneva N.AND., Lednev V.Yu., Kornienko A.K. to dismantle their cesspool in the yard of household *** in Morshansk.
The appeal Lednev The.Yew., Kornienko A.K. raise the issue of annulment of the decision of the court. Indicate that Bednova G.T. The time limit for this dispute has expired. limitation period, since the plaintiff acquired part of the house in 1997, and went to court in 2010. At the time of the purchase of part of the house and over the next 13 years, Bednova did not have any claims regarding the cesspool. It is believed that the construction of a cesspool corresponded to all regulatory requirements, there is all the necessary documentation allowing its construction, as well as the consent of the Samsonovs' neighbors. From the former co-owner of the house, Ulybina, there is also consent to the construction of this pit, but it has not been preserved over the years. In addition, the complainants indicate that, according to the conclusions of the examination, the cesspool does not have a negative impact on the wall of the part of the house of Bednova G.T.. The expert's conclusions regarding the tightness of the cesspool are considered conjectural. The court did not examine the issue of the possibility of sewerage to their part of the house. Also, the court did not find out what the violation of the rights of Bednova T.T.
Having checked the case materials, the legality of the decision made as a result of the consideration of the case, the correctness of the application of the norms of substantive and procedural law within the limits established by Article 347 of the Code of Civil Procedure of the Russian Federation, having discussed the arguments of the cassation appeal, the judicial board came to the conclusion that there were no grounds for canceling the court decision.
Bednova G.T. is the owner of a *** share of home ownership in *** Morshansk, the co-owners of the share of the house are Ledneva N.I., Lednev V.Yu., Kornienko A.K. proximity to her home violates her rights. There is a smell coming from the pit, the pit was built in violation of sanitary standards, it has a negative impact on the wall of the house belonging to the plaintiff. The pit has been operated since the 90s. In support of her arguments, the plaintiff submitted to the court an expert opinion, according to the conclusions of which the placement of a “cesspool” relative to a residential building does not meet the sanitary requirements of SanPiN 42-128-4690-88 (8), so with a minimum standard of 8.0 m, the actual distance is 3.0 m, there is no tightness of the cesspool, and therefore its intended use is technically not possible. Its content leaks through the walls and bottom of the cesspool.
Satisfying the claims of Bednova T.T. the court reasonably accepted the expert's opinion as evidence, since the court has no reason to doubt its conclusions. The employees of the Territorial Department of Rospotrebnadzor in Morshansk, the Committee for Architecture and Urban Planning of the Administration of Morshansk, interrogated at the court session as specialists, did not rule out a violation of the tightness of the cesspool based on its service life, indicating that its preservation violates sanitary standards. Considering that earlier the household belonged to one owner, it was permissible to arrange a pit at a distance of less than 8 m from a residential building, but given the life of the pit, its technical condition worsened, which affects the rights of the plaintiff.
In accordance with Art. 56 Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis of its claims and objections, unless otherwise provided federal law. In substantiation of their objections, the defendants did not provide evidence to refute the conclusions of the expert. Considering that no such evidence was presented to the court, the court reasonably proceeded in making its decision from the evidence presented by the plaintiff. The defendants were not deprived of the opportunity to present other evidence that the court would have assessed in their entirety.
The arguments of the complaint that there is no reason to dismantle the cesspool, since it was officially allowed and legalized, are not based on the law.
In accordance with Art. 210 of the Civil Code of the Russian Federation, the owner bears the burden of maintaining the property belonging to him, unless otherwise provided by law or contract. Therefore, the defendants have a duty to maintain the cesspool in good condition. By allowing the breach of the tightness of the pit, they actually violated the rights of the plaintiff. The lack of absolute tightness of the cesspool, as the expert pointed out, leads to the penetration of sewage into the soil and environmental pollution. By virtue of Part 4 of Article 212 of the Civil Code of the Russian Federation, the rights of all owners are protected equally, and therefore, in accordance with Art. 304 of the Civil Code of the Russian Federation, the plaintiff has the right to apply to the court for the protection of his rights.
On the basis of the foregoing, the judicial colleague finds no reason to cancel judgment.
Guided by Art. 360.361 Code of Civil Procedure of the Russian Federation, judicial board
DETERMINED:
The decision of the Morshansky District Court of the Tambov Region of March 30, 2011 to be left unchanged, the cassation appeal of Lednev V.Yu., Kornienko A.K. - without satisfaction.
presiding.