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Original article UDC 69
http://dx.d0i.0rg/l 0.21285/2227-2917-2017-4-184-191
FEATURES OF FORENSIC AND PRE-TRIAL CONSTRUCTION - TECHNICAL AND
COST EXAMINATION OF THE PREMISES DAMAGED BY THE FLOOD
© O.V. Nikishinaa
Irkutsk National Research Technical University, 83 Lermontov St., Irkutsk 664074, Russian Federation
Abstract. Purpose. The article considers the practical features of forensic construction and technical examination of the premises damaged by the flood. Attention is paid to the composition of the documents required for the examination, and the necessary actions of an expert in the recovery of missing documents. The algorithm of actions of the expert in the research since the appointment of the examination until the expert report with case studies and examples. Methods. Used the method of field survey (expert inspection), as the most important phase of the examination. Displayed organizational difficulties, encountered by the experts during field survey, in particular the failure to provide the owner of the premises for inspection. Analyzed two alternatives for the calculation of replacement cost of repair of damaged areas on the flood: a resource method with the use of estimate standards and costs and the method of quantitative survey with the use of market prices for work and materials. Results and their discussions. General guidance relative to what you first need to pay attention to during the inspection. We point out the main types of damage to construction and finishing designs. An important quality of expert is the ability to distinguish between actual damage to the premises obtained in the bay, from the other defects formed due to the natural physical deterioration or received at the earlier bays. We separately touch the topic of notification of interested parties about the forthcoming expert inspection. Conclusions. Describes the requirements for devices and tools that the expert can use in the course of the examination. We pay attention to the issue of accounting when calculating the cost of repair of physical deterioration of materials. Keywords: judicial building-technical expertise, civil-legal relations, the damage, the flood, the gulf, the cost of the repair work
For citation: Nikishina O.V. Features of forensic and pre-trial construction - technical and cost examination of the premises damaged by the flood. Izvestiya vuzov. Investitsii. Stroitel'stvo. Nedvizhimost' [Proceedings of Universities. Investment. Construction. Real estate], 2017, vol. 7, no. 4, pp. 184-191. DOI: 10.21285/2227-2917-2017-4-184-191
Introduction
Today the methodology of the construction and technical examination of the premises damaged by the Flood, are not regulated by legislative acts in force in the territory of the Russian Federation. FL "State forensic activities in the Russian Federation" dated on May 31 2001 № 73-FL regiments only the general procedure of forensic examinations, both state institutions and agencies, non-governmental. Under examination we mean the execution of all necessary studies on the basis of which the expert gives a fair and reasonable response to questions [1].
The examiner should conduct research objectively, on a strictly scientific and practical basis, within the relevant
specialty, fully and in full.
Regardless of the type of examination, the first where the examiner should start the work - analysis submitted to the examination of documents for compliance and completeness for the production of the necessary studies. The examiner should not disclose information that becomes known to him in connection with the examination, or to inform someone about the results of the examination, except the body that appointed it.
In relation to the examination of the premises damaged in the process of operation (flood), completeness of input data in this part ensures the presence in the case file the following documents:
- a copy of the drawn up territo-
aOlga V. Nikishina, senior teacher, Department of Real Estate Expertise and Management, tel.: +7 (3952) 40-56-11
rial body of technical inventory plan of the premises, sufferer from the bay (complex fragment of floor plans which is subject to investigation of the premises);
- certificate of inspection of the condition of the premises after the incident of the flood, drawn up in the prescribed manner the representatives of operating the building organization together with the stakeholders.
In case the given to the experts documents are not enough, you must make a request to the participants to provide the missing documentation. The request must contain the exact list of documents (with details) and delivery date. Data procedure shall be observed when conducting pre-trial examinations. When conducting forensic examinations (in civil, commercial or criminal matters) the action of an expert are limited by law - the expert may not independently collect materials for examination (art. 85 CCP, APC 55 and 57 of the CPC). In this case, the examiner should address the request of documents (materials) to the appointing authority (judge, Prosecutor, investigator), a copy of this request is recommended to send to the other party.
After the expert considers that the study of documentation for the technical site survey is enough, you should appoint date of carrying out on-site inspections.
Methods
Full-scale forensic expert examination (expert examination) of the property is a set of actions and techniques that allow an expert Builder by direct visual perception (a professional observation) and also with the use of special tools and equipment to determine relevance to business properties, the parties and the relationship of the property according to its location.
In the course of the examination of the damage in the flood areas in the preparation of independent field studies of expert buildings owned by citizens and experts sometimes has to face
problems of an organizational nature. Despite the fact that the decisions (rulings) of the court shall be enforceable throughout the territory of the Russian Federation by all citizens, officials, enterprises, including owners of the disputed property, often the person is not interested in the examination, prevent the access of expert in the house. The law does not compel the parties to the proceedings to attend the examination is their right, not an obligation. The right of persons involved in the case, to attend the examination provided by article 24 of the Federal law "State forensic activities in the Russian Federation" of 31 may 2001 № 73-FZ.
The current legislation does not define the person (expert or party to the proceedings), which shall notify the parties involved about the survey object. However, after consultation with the parties, the date of the technical survey, the most logical is to notice parties about the full-scale survey was carried out by an expert. The exception is the expert activities carried out in the framework of the criminal case: the date of examination appointed by the investigator. To notify interested parties can telegram [2].
All telegrams must be sent with a return receipt requested. To do this, when sending telegrams must inform the postal worker about the necessity of receipt of the notice of receipt for the telegram. The postal worker needs to specify the address of delivery of the notice. After the telegram is delivered to the address specified in the mail, the postman will bring the ordered notification. The notice contains information about where the telegram was delivered, and who handed a telegram. There can appear the situation that the notification says that the telegram is not delivered to the addressee. This circumstance is not grounds for refusing inspection.
Telegrams perpetrator, as well as all other interested parties sent no later than 3 working days before the agreed date of inspection, if the addressee lives
in the same city. Telegrams are sent for a specified period of time, without considering the day of the inspection and the date of notification.
The failure of one of the parties for an examination does not preclude inspection of the object and to perform research. During the survey, the expert has the right to ask questions to the persons participating in case, witnesses for the purpose of receiving the necessary explanations and comments.
During the field examination, the examiner should use only the proper instruments and tools which are certified and have a valid certificate of verification (article 26.8 of the CAO). The equipment must have an appropriate resolution. It can be [3]:
a) measuring tools: laser distance meter, metal (plastic) measuring tape;
b) the locking tools and materials: a camera, a recorder, pencil, eraser, tablet, sheets of paper or Notepad.
It should be noted that an expert is entitled to examine during the inspection of any objects made available to it. In the course of the field studies he independently chooses research methods and to search for evidence. In other words, "if the object is presented to the expert for the study, whether the scene or technical construction, the definition about purpose of examination is sufficient authority to any research that the expert has the right to unilaterally make the scene, since these "any" researches refer to research methods that the expert chooses for themselves."If conduct field survey is insufficient to answer these questions, the examiner should request the necessary actions: the autopsy finishes a particular action.
The results and the discussions
It seems appropriate to consider in relation to the conduct of expert examination of a number of developed and given in the literature of the rules and methods of regulation of activities related to professional supervision.
Expert inspection of the premises is divided into 2 stages: finding and fixing defects, and measurements of the damaged areas.
The inspection becomes more efficient if the expert has a rather clear idea about what has to be inspected, the presence (absence) of any object is to be determined, it is necessary to fix what their characteristics are. For this, it was noted that before the examination you should examine all available case information.
The first stage examines all damaged facilities. The subject of inspection shall be walls, floor, ceiling, and other design elements (decorative panels, suspended ceilings, etc.), doors and windows. The most frequently occurring defects - swelling and detachment of the painting layer, cracking plaster, warping planks of laminate or parquet flooring, linoleum swelling, traces of dried water spots and a pale yellow color on the surface of walls and ceilings. You should pay attention to the overall condition of the room, for example, significant wear, no longer carried out repairs on the characteristic features of damage, perhaps showing that they are not associated with the floor. The repair work identified by the examiner should be directed exclusively at eliminating the consequences of the floor. Therefore, one goal of this study is the separation of the defects associated with the Flood, from other (similar) defects.
The side of the victim from the Bay of the space can indicate defects, but the decision about fixing each defect is accepted by the expert on the basis of their own perception.
It is advisable to select samples from the objects involved in the scope of the investigation or trial. This can be, for example, samples of the damaged floor of finishing coatings to further search for similar properties and price characteristics of the materials to determine the cost of the repair works.
In the second phase, the examiner performs the measurement of struc-
tural elements of the room, finishing of which has suffered from the flood. While performing these actions it is advisable to use a technical passport for the premises explication of areas [4, 5].
First are general measurements -determine the length, width and height of the premises. If there are ledges, niches, etc., then their dimensions are defined separately.
Next, you will set the dimensions of the openings: door - on the outside rim of the box, the window on the slopes. If the surface is partially tiled with ceramic tiles, decorative panels, etc., these fragments are measured and recorded separately. During the measurements determined the appearance and quality of finish.
After fixation and measurement of all damaged areas, the results of direct visual study, the expert writes in a separate document called "Act of expert examination", which is attached to the expert opinion. N.K. Tolcheev points out the necessity of drawing up such a document: "The opinion must be attached to the act of inspection of the house, drawn up by the expert with the parties, describing the main structural elements and dimensions of buildings, the nature of structures and their condition, information about engineering equipment at home, the presence of unauthorized buildings" [6].
However, the drafting of such an act is provided by neither the procedural legislation, nor by departmental normative acts regulating an order of production of legal expertise. These sources do not contain the provisions defining the procedure of drawing up and the form mentioned by the author of the document. The objective of the expert in the part which involves "the participation of the parties" is also not clear, as according to article 76 of CCP, the expert gives a conclusion on its own behalf and bears personal responsibility for it. There is no need to confirm anyone in the correctness of the obtained inspection data - assessment of the expert
gives only a court (judge) or a body (person) that appointed the expert examination. In addition, the signing of the act of the parties does not entail any legal consequences, since this document has no evidentiary value. However, an act was welcomed by some judges. According to them, while trying to litigants and other interested persons to challenge the results of the conducted researches and measurements, you can refer to their signatures in the said act and not conduct inspections of contradictions the case by means of examinations with access to the place (article 179 of the code of civil procedure) or by the appointment of re-examinations (art. 181 of the CCP). In practice, the Act of flooding areas, act on flood, act of leak, the Act of damnification - whatever it is called is the first and most important document that establishes a causal relationship between the event (accident for instance) and its consequences (damage to property). In the act it is important to note that the corresponding property was damaged by flooding. Causes of flooding can be very different, and they are investigated by inspection of the damaged premises, premises which the flooding (if possible) and condition of sanitary equipment in the house.
To determine the culprit in the Flood is not always easy. In respect of residential premises, the provisions of part 1 of article 290 of the Civil code of the Russian Federation, part 1 of article 36 of the Housing code of the Russian Federation and section I of the Rules of content of common property in an apartment building (app. The resolution of the Government of the Russian Federation of 13 August 2006 № 491) allow to formulate the following rules determine the perpetrators in the flooding.
1. For risers of hot and cold water before the first switching-off devices or shut-off and regulating valve drain located on the branches (the branches) on the riser in the apartment (including data devices and cranes), the organization managing the data of an apartment
house is responsible (TSZH, ZHSK, DES, ZHEU). But for all that is (attached) in the apartment after the specified cut-off devices or shut-off control of the crane is the responsibility of the owner of the apartment (i.e. for all plumbing equipment, valves, wiring, etc.).
2. For the heating system, including risers, heating elements (radiators), control and shut-off equipment, and other equipment located on these networks is the responsibility of the organization managing the block of flats. The apartment owner is not responsible, for example, a leak in the radiator, despite the fact that the radiator is located in his apartment. With the exception of cases when the owner himself made the repair or replacement of elements of heating system (radiators, towel rails, etc.). In this situation, for self-repaired or replaced items the responsibility is for the apartment owner. Either the owner of the upstream flat, or the organization that manages the apartment building respectively will be guilty in the Flood, depending on who is responsible for the item with the leak that caused flooding. If someone of the participants disagrees with the reason indicated in the act, he may make a note about it in the very act.
There is no single form for the preparation of the report on the flood (damage to premises). The expert organization may develop its own form of the Act, which must be specified:
• date of drawing up the act of flood space;
• time and date of the event (bay
area);
• causes of the Flood;
• the likely causer of the damage (the final decision on the culprit of the incident made by the court);
• a detailed description of the damage caused to the premises (as a rule, representatives of the operating organization refuse to fix the damage caused to movable property);
• description of the main structural elements, specifying their dimen-
sions (typically the area of their surface), finishes (materials and products); condition of the trim elements at the time of the expert examination (specify the presence, location and characteristics of defects).
Further research is continuing on a stationary workplace in the laboratory of the state forensic-expert institution or the office of non-state expert organization (the firm).
The original data of the research at this stage is how the information received by the expert during the field studies described above and information obtained from the study of documents attached to the materials of the case and relevant to the subject of the examination [7].
During the examination the expert calculated the cost of repair. The choice of types to be performed repair and construction works is determined by the nature of these defects. Data on the surface area of the structural elements of the room serve as a basis for calculation of the amount of repair work. In more details the procedure for determining the amount of work required to mitigate the consequences of the flood, is set out in the technical parts of the collections of prices for repair and construction works (FER-2001, TER-2001, GESN, 2009).
The next step is to select the method to determine the cost of repair of the premises, the preparation of the local budget. At this stage, the expert, the question arises whether to consider the value of natural physical deterioration relative to the cost of the finishes damaged by the flood. Consider this question in more detail.
Under the property damage refers to "damage to property of a citizen or legal person as a result of causing harm", and under the damages - "compensation for property damage arising out of the injury". The civil legislation of the Russian Federation comes from "the need for full reparation. Responsible for the harm the person has to compensate it in kind (provide a thing of the same
kind and quality, fix the damaged thing, etc.) or completely pay the caused damages". You can interpret this situation as follows.
Full compensation for the harm the injured party may payment of the amount equal to:
- price of the damaged object;
- the cost of labour, materials and other costs required to fix damaged stuff;
- the magnitude of losses associated with damage to things.
The act provides for three different from each other in magnitude of compensation. While the choice of one of them - the prerogative of the court, not a court expert, the court can't do it without the involvement of a competent person. Therefore, consideration of cases involving Bay to the construction site before construction expert should be asked the following questions:
- is there technical possibility of repair (restoration) of damaged buildings (buildings, structures), or individual premises;
- if the option is available, what is the amount of expenses necessary for repair (restoration) of the affected construction object (its parts);
- if this is not possible, what is the cost of a construction facility (or part thereof) to the incident event (flood, fire, etc.).
And only after the judicial construction and technical expertise, the court can determine the amount of payment which the injured party will meet the principle of full, but not excessive compensation (such as, for example, an amount equal to the cost to repair the building in presence of technical possibility of its recovery). Most often the "fix thing". Due to objective reasons, the repair cannot be carried out with the use of building materials and products, the amount of wear or state of aggregation which would be the same as the materials and products affected by the Gulf.
The cost of repairs also includes expenses for production operations,
maintenance of equipment, machines and mechanisms, in respect of which the use of the term "normal wear and tear" because it is the action, and they are not subject to physical wear.
Consider this problem from the other side. It appears that such form of compensation as "fixing things" involves the performance of necessary amount of works aimed at recovery of the object. If will take into account the degree of wear of the finishing coatings, a payable sum is reduced in proportion to the amount of wear, having the remaining amount of money will not be able to carry out repairs in full, to the end of "fix thing". Consequently, this would break the principle of full reparation.
Thus, in presence of technical possibility of restoring the construction of the object of non-redundant compensation for damage caused as a result of the flood should be considered a monetary sum equal to the amount of expenses required for recovery of the object, excluding the value of the natural physical wear of elements of the affected building (or structure). In favor of the fact that the volume of expenses necessary to restore the object to be calculated without taking into account the value of natural physical deterioration is evidenced by the fact that in the free sale of property used in a condition, similar to damaged (building materials, Wallpaper, glue, wiring, varnish).
When determining the cost of repair is applied of the resource method.
When a resource method of determining the cost calculation is carried out in the current (forecast) prices and tariffs of resources (cost elements) required to implement the design solution, i.e. the local estimates as input data to determine the direct costs are:
- volume of work (man-hours) to determine the wages of workers who perform related work and service of the construction machine;
- time use of construction machinery;
- consumption of materials, products and structures (in the adopted physical units: m3, m, t, etc.).
Overhead costs and estimated profit accrued in the established methodological documents for the construction order. If the region where the state's forensic expert institution of the Ministry of justice of Russia operates is formed and operates a system of information support in terms of information about the current level of wages, maintenance cost of machinery, cost of building materials and products determination of repair cost using the effective method should be implemented on the basis of physical indicators laid down in the State elemental estimate standards (GESN) with the application of this software GRAND-SMETA, and the value of their component is accepted on the basis of data on the current level the above pricing factors. This information includes, as a rule, the regional centre of pricing in construction. In that case, if the examiner is unavailable, the sources of this information, a valid application exists in the region branded prices for repair and construction work and market prices for construction materials and products. In practice, the composition of corporate costs include basic wage of workers engaged in repair, and pay for the operation of the machinery (if the use thereof is required when performing repairs). Therefore, the brand rate prevailing in the market of building services already includes these two components; the cost of necessary building materials is determined separately and calculated on the basis of norms of consumption of these materials in specified expert work. As a rule, in the corporate rates also included the value of overhead costs and estimated profit taken in concrete repair and construction organizations; in that case, if these figures are not included in
the rates, their size is specified and is calculated in the prescribed documents on the construction order.
In some cases, when there is to be damage in small spaces or small damage, the use of calculations based on budgeting for government rates can give erroneous results. This is because the rates inherent in the state, as a rule, work focused on large construction projects. Their application to a single premises such as apartments is impractical. In such cases, the expert can use the method of quantitative survey in which the cost of repair consists of basic, work and materials, the prices of these works and materials the expert shall on the basis of analysis of the market of building and finishing works and materials in a particular city. To the cost also is added to the cost of transport costs and overhead calculated as a percentage of the cost of materials.
Conclusions
The cost of repair is determined by counting the value of construction works under articles of expenses as the sum of the cost of construction works and cost of construction materials. The cost of work and materials is determined by the average market prices for repair and construction works and materials prevailing in the construction market of the region, based on research conducted by the expert, given the state of the market offerings in this field. The obtained rates are the basis of determining the cost of each activity depending on volume. The next step in this method is the calculation of the cost of materials with reference to a specific type of repair work in accordance with the consumption rate of each material on the given scope of work. To determine the cost of repair of the premises affected by the flood, received the cost of work and materials are summarized.
REFERENCES
1. Butyrin A.Yu. Stroitel'no-tekhnicheskaya ekspertiza v sudoproizvodstve Rossii: dis. ... d-ra yurid. nauk: 12.00.09 [Building technical expertise in the proceedings of Russia: dissertation of a doctor of law: 12.00.09]. Moscow, 2005. 459 p.
2. Garkin I., Garkina I. Systems approach to technical expertise construction of buildings and facilities. Contemporary Engineering Sciences, 2015, vol. 8, no. 5-8, pp. 213-217.
3. Nikishina O.V., Nikishina O.B. Technical survey of the objects of unfinished building. Izvestiya vuzov. Investitsii. Stroitel'stvo. Nedvizhimost' [Proceedings of Universities. Investment. Construction. Real estate], 2015, no. 1 (12), pp. 105-111. (In Russian)
4. Rossinsky E.R., Galyashina E.I. Sudebnaya ekspertiza. Sbornik normativnykh pravovykh aktov [A forensic examination. Collection of normative legal acts]. Moscow: Prospect Publ., 2016. 336 p.
5. Lufkin P.S., Desai A., Janke Ja. Estimating the restoration and modernization costs of infrastructure and facilities. Public Works Management and Policy, 2005, vol. 10, no. 1, pp. 40-52.
6. Tolcheev N.K. Sudebnye spory o zhilom dome [Litigation on the residential home]. Moscow, 1991. P. 68.
7. Sokolov R.V. To the question on the automatization of examination of the buildings and structures technical condition. Modern Science, 2016, no. 12, pp. 45-46.
Contribution
Nikishina O.V. has conducted the studies, prepared the article for publication and bears the responsibility for plagiarism.
Conflict of interests
The author declare no conflict of interests regarding the publication of this article.
The article was received 30 November 2017
