What is illegal entry
To enter a dwelling illegally means to enter its boundaries and gain access to it. For example, they picked up or made a duplicate key, opened a window, deceived the owner, etc.
According to the method of penetration, it is divided into open and secret. A crime is illegal entry into someone else's home without the will of the persons living there (except for cases prescribed by law or on the basis of a court decision).
The inviolability of residential premises extends to persons to whom it belongs by right of ownership or under a lease, sublease, lease, or warrant. This right is granted to persons who have been moved into the premises temporarily at the will of those living there legally.
What is not illegal entry
There are times when, out of necessity, you need to get into someone else's house or apartment. For example, you saw smoke coming from your neighbor’s balcony below. First you need to find out if there is anyone in this home, and only then try to get into the house. Maybe you will be lucky and they will open it, thereby warning you of the danger.
In this case, Article 39 of the Criminal Code of the Russian Federation takes effect. Entering someone else's home will not be a crime if the danger threatening you or others is eliminated. It is also important that such a danger could not be eliminated in any other way.
If, after illegally entering someone else’s property, a statement was written against you, then you need to prove that you acted when absolutely necessary. It is best to contact a lawyer, because sometimes it is difficult to prove the fact of danger.
Another option is reconciliation of the parties in accordance with Article 76 of the Criminal Code of the Russian Federation.
Another case is when you live in a private house and someone snuck into your yard. In this case, the person will not be held liable under Article 139 of the Criminal Code of the Russian Federation. A yard is not considered a home. Therefore, you can try to bring the person to administrative responsibility under Article 19.1 of the Code of Administrative Offenses.
Disposal of the local area
The adjacent area is created for the comfort of residents - for walking, for the construction of playgrounds or parking lots, etc. However, if there are shops and offices in the house, often the entire local area is occupied by parking lots and parking lots.
But you need to keep in mind that since the entire territory around the house belongs to the owners of the premises in shares, it can only be disposed of jointly!
The maintenance and management of the site is entrusted only to:
- to the management company (and such a clause must be included in the management agreement);
- on the HOA (all owners of premises at a general meeting decide how the adjacent territory will be used).
The territory can even be fenced if a municipal road does not pass through the site. In this case, a public easement has been established on part of the site with the road.
If the road is not municipal, but belongs only to your home, you have the right at a general meeting to close your territory from unauthorized persons, for example, by installing a barrier.
Part of the site can be used profitably, for example, rented out for parking, and rental payments used for general house needs. But this decision is also agreed upon between all residents.
We should not forget that responsibility is imposed for improper maintenance of the local area. For example, a block of ice fell on a car parked near the house. The court will recover damages to the car owner:
- from the management company, if it is she who manages the house and receives payment for the maintenance of housing;
- with the HOA, if the house is managed independently (by way of recourse, the HOA can recover money paid in court from the guilty party).
Moreover, if the area where snow or ice can melt is fenced, the car owner will not receive anything if he parks the car inside the fence.
Reasons for entry
Based on Art. 25 of the Constitution of the Russian Federation, it is possible to enter someone else’s residential premises only under the following conditions:
- Permission from the owner or resident.
- In the case where this is established by federal law.
- When a court decision is made.
Immunity to housing extends only to those categories of citizens who can document their belonging to this home. This right applies to the following citizens:
- Owner.
- Citizens living under a lease, sublease or rental agreement.
- Persons living temporarily in an apartment or house at the will of the owner legally.
Read also: Blacklist of landlords and tenants of apartments in Moscow.
According to Art. 139 of the Criminal Code of Russia the following real estate applies to housing:
- Apartment.
- A room in a hostel or hotel.
- Individual residential construction project.
- Garden house or change house.
- Prefabricated houses.
- Residential buildings intended for housing workers at construction sites.
In other words, this is a living space where a person lives and stores his belongings, property or documents. The exception will be outbuildings in the form of a cellar, barn, as well as structures erected without permission from authorized bodies.
Forced entry
The law provides for a number of situations when breaking into an apartment or other living space is a necessary measure. Such circumstances include the elimination of danger that may pose a threat not only to the interests of the individual and society, but also to the state.
In extreme situations, the following have this right:
- Firefighters extinguishing fires.
- Employees of the Ministry of Emergency Situations and law enforcement agencies.
- Representatives of management companies that ensure the operation of house communications.
What will be the procedure if an emergency situation arises that requires entry into a home when there are no residents living there for a long time?
Housing legislation considers this situation in this way: it is possible to enter someone else’s territory of an apartment or household, provided that other methods do not bring the required effect.
ATTENTION! According to criminal law, burglary is permitted only to the extent of causing damage that will not exceed the damage from the accident.
According to the Russian Housing Code (Article 3), invasion of a home without the permission of living citizens can only occur in those situations prescribed by federal law, and only in cases where it is necessary to save citizens and their property.
Home invasion is also permitted against citizens who are suspected of committing illegal actions that entail criminal liability.
It is worth noting that the management company will not be responsible for breaking the lock mechanism in the situations described above, provided that the situation endangered neighboring property.
Police officers, if they have a special warrant, have the right to freely enter an apartment or house, since they are responsible for maintaining order and detecting crimes. They are allowed to enter the territory for the purpose of carrying out operational search activities, including searching for citizens who have committed illegal actions.
The bailiff can also enter the residential area without inviting the residents, provided the appropriate documentation is available . However, the time frame for them is from 6 a.m. to 10 p.m.
Watch the video: illegal entry into a home. Article 139 of the Criminal Code of the Russian Federation.
ATTENTION! In case of entry into an apartment or house without legal grounds by police officers, judicial authorities or representatives of the management company, it is envisaged to apply to the judicial authorities with a statement.
Penetration of guarded objects
Entering an object that is under protection is illegal and is punishable by law.
There are two types of liability for trespassing on someone else's territory:
- criminal;
- administrative.
For entering a protected facility, a fine of 3 to 5 thousand rubles is provided under Article 20.17 of the Administrative Code. Hacking devices are confiscated.
For breaking and entering a protected underground or underwater facility that is under state protection, the fine in this case will range from 75 to 200 thousand rubles. An alternative punishment will be administrative arrest for up to 15 days. If there was a break-in, the equipment used for this will be confiscated.
In case of repeated attempts to climb onto this object, the person will already bear criminal liability. In this situation, he will have to pay half a million rubles or the amount for a period of up to 18 months from his income. The alternative is restriction or imprisonment for a term of no more than two years. The most severe punishment will be if a crime is committed by a group of persons by prior conspiracy.
Ninth Arbitration Court of Appeal
Having disagreed with the decision, the defendant filed an appeal to the Ninth Arbitration Court of Appeal. The defendant also stated that the Moscow Arbitration Court did not properly notify him of the date, time and place of the court hearing, which is an absolute basis for canceling the decision of the court of first instance (clause 2, part 4, article 270 of the Arbitration Procedure Code of the Russian Federation). The Court of Appeal found that a violation of the rules on judicial notices had indeed occurred, overturned the decision of the lower court and proceeded to consider the case according to the rules of the court of first instance (ruling of the Ninth Arbitration Court of Appeal dated February 8, 2016 in case No. A40-130855/10).
BRIEFLY
Details of the decision: Resolution of the Ninth Arbitration Court of Appeal dated March 10, 2016 No. 09AP-54532/2015 in case No. A40-130855/10.
The applicant's demands: To cancel the decision of the court of first instance, proceed to the consideration of the civil case according to the rules of proceedings in the court of first instance and refuse to satisfy the demands for recognition of the ownership rights of the city of Moscow to non-residential premises.
The court decided: To cancel the decision of the court of first instance, proceed to the consideration of the civil case according to the rules of proceedings in the court of first instance and recognize the ownership of the city of Moscow to non-residential premises.
The Ninth Arbitration Court of Appeal found that the building in which the disputed non-residential premises are located is included in the List of objects related to municipal property (approved by resolution of the Moscow City Duma of May 20, 1998 No. 47), and is included in the Register of real estate objects located in property of the city of Moscow. Thus, the Court came to the conclusion that the disputed non-residential premises are municipal property (clause 1, clause 2 of Appendix No. 3 to Resolution of the Supreme Council of the Russian Federation of December 27, 1991 No. 3020-1). At the same time, rights to real estate that arose before January 29, 1998 are recognized as legally valid in the absence of their state registration (clause 1, article 6 of the Federal Law of July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with him”; hereinafter referred to as the law on state registration). As for the executed sale and purchase agreement, the Court indicated that this agreement violates the requirements of the law and infringes on the rights and protected interests of third parties, and is therefore void (clause 2 of Article 168 of the Civil Code of the Russian Federation).
The defendant's application to apply the statute of limitations was rejected by the Court with reference to Art. 208 of the Civil Code of the Russian Federation and clause 58 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of April 29, 2010 No. 10/22 “” (hereinafter referred to as Resolution No. 10/22). According to these norms, a person who considers himself the owner of real estate in his possession, the right to which is registered with another entity, has the right to apply to the court for recognition of ownership rights. The limitation period does not apply to the claims of the owner or other possessor to eliminate any violations of his rights, even if these violations were not associated with deprivation of possession.
Based on the above, the Ninth Arbitration Court of Appeal decided to cancel the decision of the Arbitration Court of the city of Moscow and satisfy the requirement to recognize the ownership rights of the city of Moscow to non-residential premises (resolution of the Ninth Arbitration Court of Appeal dated March 10, 2016 No. 09AP-54532/2015 in case No. A40- 130855/10). This court decision is the basis for registration of ownership of real estate by the authorized body.
Responsibility under the Criminal Code
What is the punishment for trespassing on private property? Violation of the inviolability of a residential property is subject to criminal penalties. Such
The actions are not considered a serious crime, but committing one can result in imprisonment.
Entering a premises is considered criminal offense if certain conditions are met, namely, if it occurred in the following ways:
- Picking the lock on the door.
- Free penetration.
- Intrusion through a window opening.
- Using coercive actions against living citizens.
- By deception, as well as by taking advantage of his official position.
At the moment, based on the norms of the Russian Criminal Procedure Code, a case of breaking and entering can only be initiated if the victim has filed a statement.
Video: Criminal liability for home invasion
Based on judicial practice, persons prosecuted for illegal entry into an apartment do not understand this well. They do not know that they are violating the rights of others when they sort things out with their ex-spouse, acquaintances or debtors. They think these are good reasons, but they are not. During a quarrel with such people, you should control yourself.
The important point is that, according to Art. 139 of the Criminal Code of the Russian Federation may not be prosecuted for entering an apartment without the consent of the owner. For example, if such an apartment is empty in a new building, even though it belongs to you as property. An important feature of a room as a home is its use as such.
It is also not uncommon for a person to be allowed to stay in your apartment to subsequently refuse to leave. In this case, the person does not violate Art. 139 of the Criminal Code of the Russian Federation. There is no evidence of illegal entry into the home.
Illegal entry into a home, committed against the will of the person living there
An attempt to enter an apartment or other residential property against the will of the owner is punishable by:
- A monetary penalty of up to 40 thousand rubles, or a fine in an amount equal to three months’ income.
- Correctional labor for up to 12 months.
- Arrest for 3 months.
- Mandatory work from 120 to 180 hours.
Property protection mechanisms provided for by civil law
Civil legal methods are based on the possibility of judicial protection of the rights of the owner of a thing whose rights have been violated. Such a person can apply for the protection of his rights to the court with a statement of claim and, after successful completion of the case, receive an officially sanctioned judicial act protecting the right of property.
Methods for protecting civil rights are listed in Art. 12 of the Civil Code of the Russian Federation. The first mechanism outlined in this article is the mechanism for recognizing the rights of the property owner. A striking example of the mechanism is the recognition of rights based on Art. 225, 234 of the Civil Code of the Russian Federation. By virtue of these rules, the owner of a thing, who has owned it for a long period of time, has the opportunity to obtain recognition of ownership and obtain the right to dispose of an ownerless thing.
The second mechanism is the reclaiming of the owner’s property from illegal possession. If, as a result of illegal actions of third parties, the owner of the property has lost the opportunity to freely own and dispose of it, he can, on the basis of Art. 301 of the Civil Code of the Russian Federation, file a vindication claim in court.
The third mechanism is provided for in Art. 304 of the Civil Code of the Russian Federation. According to this power, the owner has the right to demand from third parties any violation of his property rights. An example of a situation where an owner may need protection of rights under Art. 304 of the Civil Code of the Russian Federation is the illegal residence in his apartment of a stranger who does not have the right to use and own property. In this case, the property owner can use not only public law methods, but also go by filing a negative lawsuit in court demanding eviction and stopping the violation of the right.
Where to contact
If your rights to privacy of private property are violated, you may contact law enforcement authorities. It is better not to delay submitting your application. You can contact the police or the investigative committee.
Important! You can call the police not only after illegally entering someone else’s home, but also for attempting to do so, as well as if you suspect a person of this.
There are two options for applying: visiting the department in person or submitting an application online.
If it is more convenient for you to visit and submit an application at the territorial departments, then you should contact the reception. You can sign up and find out the appointment schedule on the website of your territorial authority.
It is better to write the application addressed to the head of the insurance company and in a simple form.
To submit an online application, you need to go to the website of the Ministry of Internal Affairs or the website of the investigative committee of your region. Find it there. The application must include your full name and email or postal address. You have the right to attach documents and materials related to the case in electronic format.
If you submit an application on the website of the Ministry of Internal Affairs, your application will be accepted within 3 days. They are considered for up to 30 days and can be extended. You will be informed about this.
Design rules
The adjacent territory of a private house, no matter how many meters it includes, can be used by the owner of the property in agreement with local authorities. SNiP does not contain standards regarding what area should be included in the local area. When establishing the size of the land, one must focus on important conditions and external factors, and also adhere to the sequence of actions. Initially, you should draw up a plan of the territory, and indicate on it the natural boundaries of the site and all the facilities necessary for servicing a private house.
The plan should not forget about municipal land; its shape, area and other characteristics must also be indicated. Before submitting an application to the city administration, you need to agree on the boundaries of the local area with your neighbors, listen to their opinions, and eliminate the inconvenience. Only when a compromise has been reached between the residents of neighboring houses can an application be submitted to the local municipality with a request to secure ownership of the plot next to the house.
