The procedure for compensation for material damage and harm

Causing material damage in accordance with the civil legislation of the Russian Federation

According to the Civil Code of the Russian Federation, in our country there is legal liability for causing material harm by citizens - such cases include damage to both the citizens themselves and their property. In such circumstances, the culprit or saboteur is obliged to make compensation in accordance with the established procedure.

In judicial practice, there are cases when the culprit refuses to pay for what he did. This may happen for some reasons:

in the event that material damage was caused at the request of the victim himself;
if the culprit is a minor (a person under 14 years of age), in this case financial responsibility falls on his relatives;
in case of deficiencies in the evidence base;
if there is no evidence of guilt or insufficient information.

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A separate category includes financial liability for false information about goods and services in the trade area, for example, when selling low-quality goods. Reimbursement is carried out in accordance with the rules established by civil law. Sometimes the norms of the Labor Code are also added to the regulation of the dispute (for example, when the harm was caused by the employer or in the reverse order). Compensation for harm voluntarily occurs very rarely, so most often the matter comes to court proceedings, which require the qualified assistance of a lawyer and a competent legal expert who can not only correctly draw up a claim, but also defend the client’s point of view in court.

Property damage – assessment and compensation

It is good when everything is good. But that doesn't happen. Various kinds of troubles may occur in your life: illness, accident, dismissal from work, etc. It is better if you, as a representative of civil society, have the knowledge and, most importantly, the ability to get out of such situations. One of these troubles: your property has been damaged by third parties or due to your fault someone else’s property has been damaged. In the first situation, you need to receive full and fair compensation, and in the second, you need to minimize losses. This article is about how to achieve this.

Karimov M.A., especially for Klerk.Ru
1. Typical life situations requiring compensation for damage In a situation where an accident has occurred, everything is more or less clear: don’t touch anything, call a traffic police representative, open the annex to the MTPL policy and follow the instructions . The damage compensation system is generally well-functioning, although it raises many complaints.

It’s another matter if damage to real estate is caused, i.e. in a situation where:

— Your apartment or office was flooded by your neighbors or you were flooded by companies located above you, through your own fault or the fault of the operating services;
— the roof leaked or the wall’s seal was broken;
— a fire occurred due to the fault of third parties, for example, neighbors or tenants;
— other real estate accidents occurred, for example, cracks appeared during redevelopment, or neighbors moved in as a result of renovations;
- all of the above happened through your fault, but the victim demands exorbitant, unjustified amounts;
— You are not satisfied with the amount of insurance payments calculated by the insurance company;
— counter-expertise is required to defend your position in court;
— You are already suing the opposite party and want to involve an independent appraiser for a qualified assessment of the damage, or you have already achieved the appropriate court ruling.

Here you need to be patient and be prepared for a grueling months-long process (negotiations, court hearings) and significant costs.
So, first, let's arm ourselves with knowledge. 2. What you need to know or a little theory

If damage to property is caused, for example, when an apartment is flooded by neighbors, a fire, damage to a car during an accident and others that occur as a result of someone else’s actions, a citizen has a legal basis for restoring his rights and compensation for losses incurred, in accordance with Article 15 of the Civil Code of the Russian Federation ( "Indemnification"), which reads:

"1.
A person whose right has been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount. 2. Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation, if his right had not been violated (lost profits). If the person who violated the right received income as a result, the person whose right was violated has the right to demand compensation, along with other damages, for lost profits in an amount not less than such income.”

The provision on the mandatory involvement of an independent appraiser in the event of property disputes is contained in Article 8 of the Federal Law No. 135-F3 “On Valuation Activities in the Russian Federation”, which reads:

“An assessment... is mandatory... if a dispute arises about the value of an object....”

Damage, in accordance with the Law “On Valuation Activities in the Russian Federation,” is assessed by firms or individual entrepreneurs that have a license to conduct valuation activities and a professional liability insurance policy.
All appraisers are required to adhere to the assessment procedures and methods set out in the regulatory document: “Appraisal standards mandatory for use by subjects of appraisal activities”, approved by Decree of the Government of the Russian Federation of July 6, 2001 No. 519 “On approval of appraisal standards.”

To assess damage, appraisers usually use the cost method.

The premise of this method is that the value of any property depends on the cost of reproduction or replacement of similar property.

According to the cost approach, the cost of the appraised object is determined as the sum of the replacement cost of the component elements of the object minus the accumulated wear and tear. In relation to assessing damage from a flood or fire, the cost method involves calculating the estimated cost of repair and restoration work, taking into account the wear and tear of materials on the date of damage.

Replacement cost refers to the costs of recreating an object in its original form, including business profit. In this case, these are the costs of repair and restoration work on the interior decoration of the apartment according to the estimate, the costs of repairing or restoring damaged property (furniture, office equipment, documents, databases, etc.), the costs of dry cleaning of damaged property.

Accumulated depreciation is understood as the total loss of value of the appraised object at the time of appraisal in percentage terms, under the influence of physical, functional and external factors.

The cost of damage is calculated in three stages .

At the first stage, based on data received from repair and other organizations, the market value of repair and restoration work for various types of property is determined, namely:

the estimated cost of repair and construction work on the premises (estimates are made (for example, using the basis-index method) at the request of the Appraiser by a specialist estimator of an organization licensed to produce design and estimate documentation , based on inspection reports;
cost of repairing property (appraisers obtain data on the cost of repairing and restoring furniture from price lists or as a result of surveys of repair organizations);
the cost of cleaning damaged property (the appraiser receives data on the cost of dry cleaning via the Internet).

At the second stage, wear is determined as the sum of physical, functional and external wear . The physical wear and tear of the finish is determined in accordance with VSN 53-86(r) “Rules for assessing the physical wear and tear of residential buildings” (approved by order of the USSR State Construction Committee dated December 24, 1986 N 446).
Physical wear and tear of other property is determined by an expert method. Functional and external wear and tear of finishing and furniture are assumed to be zero if this type of finishing and this type of property continues to be produced on the market. At the third stage, the amount of damage is determined taking into account the wear and tear of materials.

The guilty party in the event of a flood or fire in residential buildings, as judicial practice shows, is recognized as:

tenants who violated the relevant articles of the “Rules for the use of residential premises (Approved by Decree of the Government of the Russian Federation of January 21, 2006 N 25) or
operating organization (former housing office), which violated the relevant articles of the “ Rules and Standards for the Technical Operation of the Housing Stock” (Approved by Resolution of the State Construction Committee of the Russian Federation dated September 27, 2003 N 170).

In non-residential buildings, these are, respectively, tenants or the company operating the building who have violated the provisions of the lease agreement.
3. It is better to prevent damage To prevent floods and accidents due to the fault of operating services (if communication pipes are leaking, the roof is leaking, walls are depressurized, cracks have appeared) you should take the following actions.

On behalf of a group of residents, you should contact the head of the operating organization (housing office, housing department, KECH, etc.) in advance with a reminder of the need for repairs, referring to the relevant articles of the “ Rules and Standards for the Technical Operation of the Housing Stock . This is usually a valuable letter with return receipt requested. It is advisable to copy written requests. According to the “Rules...” operating organizations have various deadlines for eliminating deficiencies upon written application from residents. If there is no response within a month, a similar letter with the addition of a complaint about the official’s inaction should be sent to the head of the Housing Inspectorate of your district. Housing inspectors check the facts stated in the letter and, in turn, can issue orders or even fine officials. Another copy of the letter can be sent to your deputy, who will forward the request to the authorities, and they are obliged to respond on the merits. Such a total siege usually brings results.

If you are re-equipping the water supply system, i.e. changing the pipe layout, installing a water heater, laying a flexible supply hose, etc., then coordinate all your actions with the operating organization and, if necessary, carry out its employees. Be sure to keep ALL receipts, checks and receipts for renovation work in your apartment, office, as well as receipts for furniture, carpets and office equipment. Get yourself into this habit; these days it will save you a lot of money.

4. An unpleasant event happened. Get ready for trial

So, the unpleasant event happened. What should be done? The first step, of course, is to pull yourself together and stop the flow of water into the room. If your neighbors are drowning you, then go to them; if they are not at home or the flood occurred due to a communications failure, call immediately the control room of the operating organization. Don't forget to find out under what number your call is recorded in the log.

Don’t worry and don’t get into an altercation with the culprit; you won’t immediately determine objectively who the real culprit is and what the cost of the damage is. The culprits may be both operating organizations and neighbors.

Call an employee of the operating organization (housing department) to record the fact of the accident. He will draw up an appropriate report that fully describes all damage caused to the premises and your property. One copy of the act must remain with you (if you do not have it, then at least remember its number and date of preparation, then you can request it through the court).

If possible, invite two witnesses. It could be your neighbors.

If as a result of these events your or your loved ones’ health has suddenly deteriorated, call an ambulance or a doctor at home. He will record your condition and take the necessary measures.

Housing department workers should be called even for minor damage. Defects may appear later in a larger volume, since some of the water may be retained in the ceiling structures.

It is advisable to call housing department workers if traces of flooding appear in other premises, otherwise at trial the culprit may say that defects not recorded in the housing department report are not his fault. When drawing up the report, be careful to record all damage as accurately as possible.

After all traces of the accident have appeared (if there are floods, wait for the room to dry out), you should meet with the person responsible for the accident and try to resolve the issue without going to court. This is where saved checks and receipts would come in handy to justify the amount requested for payment. Please also mention that if the culprit of the flood does not agree to pay for the repair of your premises, you will go to court, and if the court finds him guilty, the culprit of the flood will also have to pay your legal costs. These include the cost of assessing damage, lawyer's services, etc. Sometimes this works - a person is afraid of legal troubles. In general, it happened more than once that a potential defendant was frightened by an invitation to an examination (both the neighbor and the exploiters), and the case was settled peacefully. But under no circumstances should you relax before the money is in your hands. The outcome of the negotiations should be the amount of compensation and the deadline for you to receive it.

If it was not possible to settle the issue amicably, or you are being fed promises, look for a lawyer who specializes in similar cases. The appraiser can also recommend a lawyer, since the judge often calls the latter to court as an expert. You can, of course, write a statement of claim yourself, but a competent lawyer will take into account all additional factors (for example, moral damages, lost profits from renting a flooded premises), and the amount spent on paying for his services will be returned to you if the case is successful.

After showing all traces of the accident, invite an independent appraiser to record (photograph), measure the amount of damage and draw up an inspection report. The inspection is carried out in the presence of the guilty party, whom you must notify in advance by telegram with notification of delivery (the text of the telegram and the terms will be indicated by the appraiser). The guilty party may, of course, ignore the invitation or not sign the Act, but in this case he will have a less advantageous position at trial. The inspection report is the main legal document for the subsequent preparation of estimates for repair and restoration work, as well as for assessing the damage caused by the flood to your home property (carpets, furniture, equipment, etc.).

When preparing estimates, the cost of materials is taken at market prices, if you have kept receipts and checks. If not, the cost of materials is determined according to the “Federal Collection of Estimated Prices for Materials, Products and Structures Used in Construction” and according to the “Catalogue of Current Prices in Construction”. But prices for work are accepted by the state with coefficients established by pricing centers (Federal unit prices for construction work FER-2001 and for repair and construction work FERr-2001 of the Gosstroy of Russia, in Moscow MTsTS).

Thus, the cost of the work turns out to be slightly lower than the real one, although the final figure depends on the qualifications and experience of the estimator. This is a common practice in the courts and an artificial increase in the cost of repairs can lead to the loss of the case in court.

There is no need to rush to call an appraiser on the day of the pour. After drying, traces of the flood are visible even better. Before calling an appraiser and fixing the defects, do not under any circumstances eliminate traces of damage; no one will draw up an estimate based on the housing department report, and if they agree, run away from such would-be experts.

If you are the potential culprit of the flood, and the cause of the flood is a poor-quality flexible hose (for this reason, a lot of floods occur) or excess pressure in the water supply system, etc. — urgently invite an expert and get an opinion on the cause of the accident.

From a legal point of view, you can make repairs to the premises immediately after receiving the damage assessment report, but from a practical point of view, first make sure that the premises have completely dried out (2-4 weeks). Water can linger, for example, in the voids of floor slabs.

After receiving the damage assessment report, you can once again try to settle the matter peacefully with the culprit. If this fails, prepare for litigation. Subject to compliance on your part with all formalities, i.e. All documents (appraiser’s report and license, statement of claim) are in order, the court will probably recognize that you are right.

And finally, two comments.

If you have already carried out repairs before the trial, and the amount required is significantly larger than that indicated in the appraiser's report, you may be tempted to file a claim for a different amount, justifying it with checks, receipts and estimates from the organization that carried out the repairs. But a winning outcome in this case is not guaranteed. If the defendant is a reasonable person, he may doubt the prices, and in turn ask the court for an examination, but believe me, your builders probably increased the prices, and this circumstance will come up in court.

You may have difficulty collecting money from the defendant if he is a drunken beggar or a poor pensioner. Then you will receive money for a long time. However, if such efforts are not made, in particular, if the facts of the bays are not recorded, then they will be repeated repeatedly. When the operating organization accumulates enough facts about your neighbor’s non-compliance with the “Rules for the Use of Residential Premises,” it can take action against the unscrupulous tenant, up to and including eviction. But that's another story.

The author is the head of the assessment department, audit and consulting group of ARNI Polaris International, Ph.D.

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Procedure for compensation for material damage

In Russia, the following procedure for compensation for material damage applies:

collecting evidence of damage incurred. The first thing the judge will require is evidence that the harm caused was real;
collection of evidence that material losses are associated with the unlawful actions of the defendant;
the presence of a direct connection between the material damage and the actions of the defendant.

Their parents, guardians, etc. are responsible for the actions of minors and incompetent persons. If the harm is caused by an entrepreneur or legal entity, it is not necessary to prove his guilt in order to compensate for the damage; the fact of an illegal action is sufficient. Thus, the procedure for compensation for material damage for each category of persons is strictly individual.