Moscow City Court: whoever receives money for traveling on toll roads is responsible for road accidents

We often write about legal disputes in which the management organization tries to challenge the order of the State Housing Registration Authority, issued after an inspection. Today, read about the arguments of the courts that considered the claim of the administrative authority from Severomorsk, which considered the requirement of the supervisory agency to repair the intra-block road near the apartment building to be illegal.

When the roof is not included in the common property of owners in an apartment building
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The MA is responsible for the proper maintenance of common property in the house

Court case No. A42-8289/2019 began as usual: a resident of an apartment building in Severomorsk complained to the State Housing Authority about the poor condition of the road in the yard and the failure of the building authority to fulfill its obligations to properly maintain the common property of the owners.

The department conducted an unscheduled inspection of 8 houses at once, which were managed by the company, and issued an order requiring the repair of driveways and sidewalks in the adjacent areas: to restore the damaged areas.

The management organization did not agree with this order and filed a lawsuit to declare it invalid. The company indicated that it does not have such an obligation: by virtue of the law, this should be handled by the municipality. The driveways and sidewalks that the State Housing Authority requires to be repaired are not common property, and their restoration is not provided for in the management agreement. In addition, the supervisory agency conducted an inspection and identified violations without complying with the national standard and without measurements.

Authorities monitoring the technical condition of roads

City traffic inspection. The organization monitors compliance with:

Carrying out land, road, repair and construction work in accordance with the regulations;
On-site inspections to control contractors.

The inspection must be contacted in connection with the discovery of questions about the insufficient maintenance of road surfaces and markings, asphalt coverage, courtyard areas and intra-block roadways.

Traffic Police Department of Internal Affairs. The Road Safety Inspectorate monitors the condition of the road and street network. Any motorist has the opportunity to complain to the inspectorate about:

Lack of road signs
The presence of a hole in the road;
Inoperative traffic light condition;
And other violations.

After receiving a complaint, a violation report is drawn up, photographs are taken if necessary, and an order is issued with a certain deadline to eliminate the problem. Next, the traffic police officer monitors execution and in case of failure to meet the deadlines, the organization is held administratively liable with a repeated order and new deadlines. If the result is ineffective, information about non-compliance with one’s duties to comply with the order is sent to the prosecutor’s office.

Any citizen in case of violation of his own rights regarding road maintenance also has the opportunity to contact the prosecutor’s office at his territorial location. The appeal can be individual or collective. A written appeal is considered by the prosecutor's office within 30 days from the date of registration. Next, a mandatory check is carried out, as a result of which it becomes possible to go to court.

Driveways and sidewalks in the local area belong to the common property of the owners in the apartment building

The trial court considered the case, considering two main issues:

Should the MA, by virtue of its obligations, repair driveways and sidewalks near the houses it manages?

According to paragraphs. “f, g” clause 2 of RF PP No. 491, the common property of the owners includes the land plot on which the apartment building is located and the boundaries of which are determined on the basis of state cadastral registration data, along with elements of landscaping and landscaping.

In the approved list of public roads in Severomorsk dated December 28, 2015 No. 1362, there are no controversial courtyard driveways, therefore, the municipality has no obligation to maintain them.

By virtue of Part 2, 5 Art. 16 of Federal Law No. 189-FZ of December 29, 2004, the land plot under an apartment building passes into the common shared ownership of the owners of the premises in such a building free of charge. No acts of the authorities on the emergence of such a right to land are required. At the same time, as the court found, areas for apartment buildings have been formed and driveways with sidewalks are located within their boundaries.

Consequently, they belong to the common property of the owners of premises in the apartment building, and the management organization is responsible for their condition. An approximate list of works related to current repairs is given in Appendix No. 7 to Rules No. 170: clause 17 talks about the proper state of external landscaping by carrying out repairs and restoring damaged areas, including sidewalks and driveways.

Have violations been checked and recorded within the framework of the law?

According to paragraphs 5.1.3, 5.2.4 of GOST R 50597-2017, the coating of sidewalks and pedestrian paths should not have individual damage with an area of more than 0.2 sq.m, and the coating of the roadway should not have defects in the form of potholes, subsidence, breaks , ruts and other damage 15 cm or more in length, 5 cm or more in depth.

The court concluded that not all damage to the road and sidewalk can be considered a deficiency in their condition and maintenance. At the same time, by virtue of clauses 9.1.1, 9.1.2 of GOST R 50597-2017, monitoring of the characteristics of the operational condition of roads and streets is carried out with instruments included in the State Register of Measuring Instruments and verified in the prescribed manner.

According to the documents presented in the case, the GZHN body, when conducting an inspection:

did not establish deviations of the surface of roads and sidewalks from regulatory requirements;
did not use any calibrated and certified measuring instruments;
did not take photographs to clearly assess the damage to the roadway;
did not describe the damage.

The court concluded that the presented inspection materials are not sufficient and do not allow the court to make an unambiguous conclusion about the presence in the actions of the management authority of the fact of the improper condition of the elements of improvement of the adjacent territories. Consequently, the Civil Housing Authority has no factual basis for adopting the order.

The document was declared invalid. The GZHN body filed a complaint with the appellate court, but it found no grounds to change the decision of the first instance.

On the obligation of the management authority to ensure payment of housing and communal services in cash and without commission
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What problems can you complain about?

The condition of roads is regulated by GOST GOST R 50597‑2017. Roads and streets. Requirements for operational condition acceptable under the conditions of ensuring road safety. Control methods . It contains acceptable requirements for the road surface, roadsides, bicycle paths and other infrastructure elements. If there are deviations from the standards, they must be eliminated. In the case of roads, violations are the following conditions:

The holes are longer than 15 cm (imagine a hundred-ruble bill), wider than 60 cm (twice the length of an A4 sheet) and deeper than 5 cm (the height of a bank card).
Potholes are smaller in size, but on a section of the road with a length of 100 m or more.
Waves more than 3 cm deep on main streets and more than 5 cm on local streets.
Ruts are 2–3 cm deep depending on the category of the road. Ruts of more than 5 cm are eliminated through major repairs.
Rails, railway tracks, storm drain gratings and well hatches are underestimated or overestimated by more than 1 cm.

The management authority is responsible for the maintenance and repair of roads and sidewalks on the formed land plot under the apartment building

The supervisory authority sent a complaint to the court of cassation, indicating that the significant damage to the road surface indicates the failure of the management authority to fulfill its duties over a long period. Defects in the road surface can be determined by visual inspection, without taking measurements with special measuring instruments.

The Court of Cassation, agreeing with the conclusions that the management company is responsible for the maintenance of the local area, including driveways and sidewalks, took a different position on the issue of proving violations in the company’s actions. According to clause 9.4.2 of GOST R 50597-2017, control of the parameters of defects that do not require measurements is carried out visually.

Disputed driveways and sidewalks do not belong to public roads within the meaning of GOST 32825-2014. Therefore, taking measurements of damaged areas with special instruments is not necessary. The obviousness and significance of damage to the disputed areas are described in the inspection report and recorded in photo tables.

The size of the damage to the coating does not affect the decision on the need to restore it, but the time frame for repairing such damage. Thus, as the court noted, the order of the State Housing Authority was issued in the presence of sufficient factual and legal grounds and is lawful. A similar position is supported in the decision of the Arbitration Court of the North-Western District dated May 12, 2020 in case No. A42-8286/2019.

The cassation court overturned the decisions of its colleagues and refused to declare the order invalid.

Can the management company include a fee for apartment insurance in bills for housing and communal services?
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Actions in case of an accident due to poor road conditions

Below are detailed instructions for the actions of a citizen who is involved in an accident due to poor road conditions:

Call the traffic police. Do not touch or move the vehicle until the inspection arrives. It is necessary to find witnesses and write down their contact details with their residential address and passport details (witnesses can be passengers, including relatives);

When drawing up a protocol by the inspector, it is necessary to double-check the presence of holes and their sizes, as well as the absence of fences and necessary signs. If this information is not included in the protocol, it is necessary to request that the necessary information be entered in the presence of witnesses. After filling out all the documentation, you must request a copy of the protocol.
It is necessary to record traffic violations using video and photographs, preferably indicating the date of recording and time.
When drawing up the act, you will need to attach available photo and video evidence.

Important to remember! The legislation of the Russian Federation normalizes the examination of the authenticity of photos and videos. Do not forget to record the testimony and data of witnesses in the act. The act must be signed by the victim and all declared witnesses.

In case of discomfort due to the health of the driver and passengers after the incident, it is necessary to contact the clinic to establish the fact of the current state of health in a documented form.
Traffic police inspectors must provide the victim with information about whose responsibility the road section is (the organization will be the defendant in the event of litigation). If the inspectorate refuses to provide data, it is possible to request it through the local prosecutor's office.
It makes sense to make an official written proposal to the organization responsible for compensating for the harm through a voluntary settlement (indicate time for reflection). The amount of damage in this case is calculated by a specialized appraisal company.
If there is no response to the proposal to voluntarily resolve the problem, it is necessary to write an application to the court attaching all available documents.

Important! Do not forget to record the violation of the road company, because After the traffic police informs the person responsible about the violation, the culprit can try to quickly “patch up” everything.

Remember

Intra-block driveways and sidewalks located in the formed local area of the apartment building are the area of responsibility of the organization managing the house, since they are part of the common property of the owners. Management organizations and homeowners' associations do not always have enough funds for their maintenance and repairs, because in the house itself, especially if it is an old housing stock, many problems need to be solved.

However, the management authority and the HOA should remember that the unsatisfactory condition of the intra-block passage or sidewalk near the apartment building can lead to complaints from residents, and then to administrative liability for violation of licensing requirements and fines under Art. 14.1.3 Code of Administrative Offenses of the Russian Federation up to 300 thousand rubles.

Where to contact

There are many services that accept citizens’ requests. These include government websites and online resources of activists.

City administration

The first way is to write an appeal to the local administration or the city improvement department. Go to the official website of the locality and find the “Appeals” section. Attach photographs to the letter and indicate the exact address of the problem area. You will have to wait approximately 33 days for a response: three days are required to register a request, and 30 are given for a response.

However, this is not the most effective way. They may write to you that the hole has not been found, there is no money, or repairs to this area are not planned.

Often officials don’t even try to lift a finger: they are accustomed to impunity, so no one does anything. Why fuss if you don’t face any consequences for inaction? And a person believes in a miracle that just one piece of paper will cause all officials to immediately rush to work. But that's not true.

Vladimir Kostrov, organizer of “RosYama Lipetsk”

Activist websites

It is more effective to write an appeal through activist services. One of the popular ones is “RosYama”.

It automatically generates a letter based on the data you enter and sends it to the traffic police. It is better to attach photographs to the application and mark on the map the place in question so that the inspection officer can find it. Before submitting information, you need to register on the site so that you can receive a response by email.

In some cities there are communities of activists, for example, “Beautiful Petersburg”, “Beautiful Lipetsk”, “Beautiful Kirov”. On their websites you can complain not only about roads, but also about other problems: broken sidewalks, unauthorized dumping, or parking on the lawn.

The resource automatically generates a message and sends it to the responsible municipal authority, but not to the traffic police. And this is the downside: they may send you an unsubscribe.

If the appeal was effective and the road was repaired, change the status of the complaint on the website and brag about your success on social networks. The required work may not be done in the best possible way, but it is still a victory.

Traffic police website

The traffic police monitors road safety, so the most effective way is to contact them directly. This can be done through the official website. It doesn’t matter who owns it and where the road is located: in the yard, in a parking lot or on the main street of the city.

After receiving the request, the traffic police officer checks whether there is a problem. If yes, he issues an order to the owner of the road for repairs. It must be completed within 1–14 days according to GOST. You can download application templates here; in the header, don’t forget to change the region to yours.

The traffic police website has a feature: you cannot paste copied text into the “Text of appeal” field. In this way, the department stops the mass sending of messages through copy-paste. We bypassed this system and began to attach the text of the appeal along with photographs in a Word document, and in the field itself write a short phrase: “Please consider my application (the application and photographs of the offense are attached in the files).” It is advisable to submit the appeal in Word 97–2003 format so that the traffic police can open and read it.

If you see that somewhere there is no hatch or there are dangerous holes that could cause an accident, report them immediately by phone to the traffic police duty department so that the responsible employees can take action faster. Perhaps with this appeal you will prevent an accident or save someone’s life, and not only achieve road repairs.

Statement

An application with a request to repair the local area, access roads and sidewalks in the yard is submitted to the management of the Management Company, which under the contract maintains the house. At least half of the apartment owners must sign such a statement.

It must be registered and provided with the number of incoming documents. One copy of such a petition is kept by the applicants:

The letter indicates the name of the management company, information about the manager to whom the application is sent, information about the applicant, and his address.
The reasons why repairs are required are indicated, and the technical condition of the yard, roads, and sidewalks is described.
A set of works is listed that, in the opinion of residents, need to be performed for the high-quality improvement of the local area and the creation of safe conditions for its use.
The application must be accompanied by an inspection and inspection report of the territory and an expert’s opinion.
At the end there must be signatures of residents, in an amount of at least 50%.

You can also submit an application on the State Services website. It also indicates the grounds for repair work, the desired timing, and information about the applicant. This portal has a Capital Repair Fund tab, where you can leave your application in the form provided.

Who should pay for repair work?

Before establishing who is obliged to repair the roadway in the local area, check with the direct owner.

In this case, a two-pronged approach is possible:

if the road adjacent to the building is damaged, then this is the common property of the owners of the apartments of the residential building. Therefore, the responsibility for maintaining the road in proper condition and carrying out the necessary repairs rests with the building manager. Apartment owners have the right to demand that the building manager carry out repairs. If refused, there will be all grounds for filing a complaint with the prosecutor’s office or the traffic police;
If the road is municipal property, the municipality is responsible for maintaining the roadway.

Where to complain if the management company does not want to participate in the repair of the road inside the yard of the apartment building

Current practice has developed a certain algorithm of actions if the issue of repairing the road surface in the courtyard of an apartment building is not resolved.

Remember! It is as follows:

submitting a collective application to the head of the management company about the need for urgent repairs of the asphalt pavement of the road surface on the intra-building territory of an apartment building;
if there is no positive reaction, the next complaint must be sent to the housing inspectorate. This body licenses the activities of management companies, so it will have appropriate leverage;
in some cases, residents of the house are forced to complain to local authorities, as well as to the court.

What to do if you sent a reply, but the road was not repaired

Activists of the “Beautiful Lipetsk” movement have calculated that on average, problems are resolved in 20–25% of requests, and in other cases they receive excuses. The RosYama service gives approximately the same statistics. But this is not a reason to give up.

Step 1. Apply a second time

If the first letter did not work, write again. Involve neighbors, friends and colleagues - have everyone post a message about the problem. The more of them there are, the more likely it is that municipal authorities will begin to do something.

We take the second step and continue to apply until we receive the result. If you receive a reply, you send a second appeal to the traffic police and at the same time write to the prosecutor’s office. In 2021, I sent 140 applications and several dozen complaints, and in 2015 - more than 300.

It is important that the traffic police work according to the law. The employee visiting the site must comply with the Administrative Regulations of the Ministry of Internal Affairs. Flowchart of the execution of the state function not only to draw up an order to repair the problem area, but also to initiate a case of an administrative offense Article 12.34 of the Code of Administrative Offenses of the Russian Federation. If this happens, the official faces a fine of 50-100 thousand rubles - this gives city authorities much more motivation to repair roads.

Step 2. Contact the prosecutor's office

If the hole is not removed and the traffic police does not initiate a case, you need to contact the prosecutor's office. She will file a claim in court, which will oblige the contractor to make repairs. However, this does not always work. Sometimes prosecutors do not want to spoil relations with city officials and try to hush up the problem.

Step 3. Write a complaint to the Ministry of Internal Affairs of the Russian Federation and the Prosecutor's Office of the Russian Federation

The last stage is a complaint to the Russian Ministry of Internal Affairs about non-compliance with the law by traffic police officers or to the Russian Prosecutor's Office about the inaction of the regional prosecutor. The federal department forwards the first appeal to the regional level, so it may also not be effective. The second time the complaint will be considered - and then wait for the problem to be resolved.