Court decisions on the demolition of illegal buildings. Judicial practice on unauthorized buildings. Recognition of rights, demolition. Review of the Supreme Court of the Russian Federation

"Review of judicial practice in cases related to unauthorized construction"; approved by the Presidium of the Supreme Court of the Russian Federation on 03.19.2014; published in the "Bulletin of the Supreme Court of the Russian Federation", No. 6, 2014

Foreword

Pay attention: Since September 1, 2015, amendments have been made to, according to which the concept of unauthorized construction and the conditions for recognizing ownership of it have been clarified, exceptions to general rule about the demolition of such a building.

Since September 1, 2015, Article 222 of the Civil Code of the Russian Federation has been supplemented with clause 4, according to which, from that date, in a number of cases, local authorities have the right to decide on the demolition of an unauthorized building, i.e. an out-of-court demolition procedure was introduced. Clause 4 of Article 222 of the Civil Code indicates the conditions for making such a decision, the timing of its adoption, the procedure for posting a message about the planned demolition, notifying the owner of this and demolishing the building.

The Constitutional Court of the Russian Federation has already stated that "paragraph 4 of Article 222 of the Civil Code Russian Federation- both in its literal meaning and in systemic unity with the provisions of the current civil legal regulation and taking into account the legal positions of the Constitutional Court of the Russian Federation set forth in this Definition, - cannot be considered as violating someone's constitutional rights in the aspect specified in the request, and contrary to the Constitution of the Russian Federation "( Determination of the Constitutional Court of the Russian Federation of 09/27/2016 N 1748-О).

See also some comments to the specified definition of the Constitutional Court of the Russian Federation in the article " Demolition of an unauthorized building by a local government body. Position of the Constitutional Court of the Russian Federation ".

The explanations contained in the review of judicial practice below remain relevant, despite a number of changes made to Article 222 of the Civil Code of the Russian Federation in 2016.

OVERVIEW
JUDICIAL PRACTICE IN CASES RELATED TO
WITH AUTHORIZED CONSTRUCTION

The Supreme Court of the Russian Federation, together with the supreme courts of the republics, regional, regional and equal courts, studied judicial practice in cases related to unauthorized construction.

Acknowledgment by the Defendant of a Claim for the Recognition of Ownership for unauthorized construction

The March 2016 issue of Legal Insight magazine published an article by Alexander Nadmitov and Maxim Erokhin “The legality of the demolition of unauthorized buildings in the administrative order”. Analyzing the situation regarding the demolition of unauthorized buildings, Alexander and Maxim come to the conclusion that the opinion that the administrative procedure for the demolition of unauthorized buildings contradicts the Constitution of the Russian Federation is ambiguous, and the Constitutional Court of the Russian Federation can find arguments to substantiate the constitutionality of the provisions of the Civil Code on unauthorized construction.

ZaToOnnOwithTь demolition of unauthorized buildingsadministratively

On the night of February 9, 2016, the Moscow authorities began to demolish a number of shopping kiosks and pavilions at the Moscow metro stations, moreover, with respect to some of the objects, the right of ownership was registered or court decisions were issued refusing to demolish them. This was the first example of the massive application of the new edition of Art. 222 of the Civil Code of the Russian Federation and caused a wide public outcry. State registration of ownership of an unauthorized building in itself is not a guarantee of its protection from extrajudicial demolition, but the demolition of a building in respect of which a court decision was made is illegal and contrary to the principles of separation of powers, independence judiciary and the generally binding nature of the judicial act. There is a high probability of challenging the provisions of Art. 222 of the Civil Code of the Russian Federation in the Constitutional Court of the Russian Federation (hereinafter - the Constitutional Court of the Russian Federation), but the prospects for such a challenge are not obvious. In this article, we present our analysis of the situation with the demolition of unauthorized buildings.

ANDwiththorium question

On July 13, 2015, significant changes were made to Art. 222 of the Civil Code of the Russian Federation, dedicated to unauthorized construction, which remained practically unnoticed the general public... The most significant novelty introduced by the law is the possibility of out-of-court demolition of an unauthorized building by a decision of local government bodies under the simultaneous presence of two conditions:

1) the developer has no rights to a land plot, which allows the construction of capital buildings and

2) location land plot in the following places:

a. on the territory common use or b. within zones with special conditions of use.

The opportunity provided by the legislator was hastened to take advantage of the Moscow City Government, which issued Resolution No. 829-PP dated 08.12.2015 “On Measures to Ensure the Demolition of Unauthorized Buildings in Certain Areas of the City of Moscow” (hereinafter referred to as the Moscow Government Resolution). This decree approved the list of objects to be demolished, which includes 104 objects, most of which are small buildings, cafes, shops, fast food restaurants, small office buildings that have been standing in their places for several years. Most of these facilities were built back in the 2000s during the previous administration of the city without providing land plots in public areas, on land plots within the boundaries of security zones, where the construction of such buildings is not allowed. On this moment As we know from news feeds, some of the objects included in the list have already been demolished.

NSRainwahI assess the situation

The norm introduced by the legislator is quite contradictory and ambiguous and raises many questions. The following main problems can be identified.

1 ... Demolition of buildings registered in the register

It can be noted that among the objects to be demolished, indicated in the list, there are those whose rights have already been registered in the Unified State Register (since the list sometimes lists cadastral numbers, the resolution also specifies payment of compensation for demolition for them).

In the legal community, this caused an ambiguous reaction, since the Federal Law on state registration rights stipulate that "a registered right to real estate can only be challenged in court."

In the meantime, the following should be considered:

• First, the rules on unauthorized buildings, which establish the administrative order of demolition, do not make an exception for buildings, the ownership of which has already been registered.
• Secondly, according to paragraph 2 of Art. 222 of the Civil Code of the Russian Federation "a person who has carried out an unauthorized construction does not acquire ownership of it."
• Thirdly, the act of state registration by itself does not give rise to the ownership of the building. For this, substantive and legal grounds are needed, which are absent in the above cases (meaning gross violations committed when creating an unauthorized building). Thus, the Plenum of the RF Armed Forces and the RF Supreme Arbitration Court in clause 23 of Resolution No. 10/22 dated 04/29/2010 indicated that the presence of state registration does not exclude the possibility of demanding the demolition of an unauthorized building. Thus, the above arguments generally allow demolition already registered buildings, given that in most cases the specified information was entered in an illegal way without supporting documents. Although such a legislative decision itself raises an objection from a legal point of view, since there will be no cancellation of decisions on the registration of property rights and the prosecution of persons guilty of such registration for the illegal actions of the registering authority. Moreover, such a legislative decision will affect the stability of the register, since the presence of an entry in the register indicates, at least, that the state, represented by the registering authorities, has already recognized the legality of the emergence of ownership of the property, which creates the presumption of the legality of the existence of the right (it can be refuted, as it turned out, as a general rule, in court order).

2. Demolition of buildings in respect of which a decision has already been taken in court

The norms of the Civil Code on unauthorized construction do not make an exception for these cases. It should be noted that the courts refused to demolish these objects due to the fact that the authorities missed the deadlines. limitation period(in fact, due to a procedural nature). The above means that the courts, when considering the case, did not find out whether the property met the signs of unauthorized construction or not, but was refused on a formal basis, therefore, the qualification of such buildings as unauthorized is not excluded. But how fair is the application of the statute of limitations here?

In judicial practice, a position has developed according to which the limitation period does not apply to a claim for the demolition of an unauthorized building only when the latter poses a threat to the life and health of citizens. In other cases, including when an unauthorized construction violates the norms of urban planning, land legislation (for example, a building permit has not been obtained), a three-year limitation period applies. As is known, the limitation period begins to be calculated not only from the moment when the person became aware of the violation directly, but also from the moment when the person should have learned about the violation. In accordance with the position of the higher courts, the authorities almost always have the opportunity to learn about the erection of an unauthorized building (that is, they should always know), which practically leads to the fact that the limitation period for them begins to be calculated practically from the objective moment. This approach was initially based on the fact that when an unauthorized building was erected on someone else's land plot and the owner of the land plot lost ownership of it, then, along with a claim for the demolition of an unauthorized building, a claim for the vindication of the land plot must be filed, for which the limitation period and is three years old. In this case, the refusal to satisfy the last claim entails also the refusal of the claim for demolition.

It is also necessary to take into account that an unauthorized construction in a situation of its construction on someone else's land plot often represents not only a civil violation that violates the interests of the owner of the land plot, but also a public offense (urban planning, land legislation). Do not forget that without the rights to the land plot and the consent of the owner, the developer cannot obtain legal permits for the construction and commissioning of the facility. Accordingly, the construction will already meet two signs of arbitrariness - the land plot will not be allotted in accordance with the procedure established by law, and construction will be carried out without building permits and putting the facility into operation.

Meanwhile, the lack of a building permit means that construction supervision was not carried out in relation to such a building, checking not only the compliance of the object under construction project documentation and a building permit, but also its compliance with building codes.

Leaving outside the scope of the article the question of the advisability of applying the statute of limitations in a situation where a building permit has not been obtained, the authors of this article believe that in any case it is unacceptable to use it in a situation where the building constitutes a public violation and affects the interests of an indefinite circle of persons.

A particular case of violation of the interests of an indefinite circle of persons in a favorable urban development environment is the construction of a building in common areas. So, according to the Urban Planning Code of the Russian Federation, common areas are "territories that are freely used by an unlimited number of people (including squares, streets, driveways, embankments, coastal strips of public water bodies, squares, boulevards)." These territories do not apply town planning regulations, which means that the construction of capital construction projects on them is prohibited9. The provision of land plots and areas in common areas is allowed only for the placement of temporary structures that are not of a capital nature (tents, stalls, etc.). The purpose of the introduction of this rule, it seems, is precisely the interests of an indefinite circle of persons who are given the opportunity to use the common areas.

Thus, from our point of view, the limitation period for claims for the demolition of buildings erected in public areas should not apply, since Urban Development Code The Russian Federation prohibits the construction of capital construction projects on them, since these territories are intended for the use of them by an indefinite circle of persons (public interest).

Vlocation with that, even considering our disagreement with jurisprudence Regarding the limitation period, it should be recognized that the demolition of the building, in respect of which the court's decision was made, is illegal and should be allowed only by way of appealing a judicial act to a higher instance.

In our opinion, the demolition of buildings, in respect of which a court decision has been made, administratively violates the provisions of the Constitution and federal constitutional laws on the separation of powers and the independence of the judiciary as an independent branch of state power, the main purpose of which is to administer justice, as well as the principle the generally binding nature of the judicial act. So, Art. 10 of the Constitution of the Russian Federation states that "the legislative, executive and judicial authorities are independent." Art. 2FKZ "On the judicial system", supplementing the Constitution of the Russian Federation, provides that "the judiciary is independent and operates independently of the legislative and executive powers." And Art. 6 of the Federal Law on the Judicial System establishes the principle of generally binding judicial acts, providing for their binding, including for the authorities.

This conclusion is confirmed, for example, by the Resolution of the Constitutional Court of the Russian Federation of October 18, 2011 No. 23-P, in which the latter indicates that “in the Russian Federation, laws and other normative legal acts cannot be issued that cancel or diminish the independence of courts, the independence of judges ( Article 5), and establishes the binding nature of court decisions that have entered into legal force (Article 6) ”.

It follows from the above that the already rendered court decisions can be canceled and revised only in a special order (appeal, cassation appeal, supervision, as well as in connection with new and newly discovered circumstances). The Constitutional Court of the Russian Federation has repeatedly pointed out the inadmissibility of the substitution of this legal order, in particular13.

TaToandmObRasOm, the demolition of the building, in respect of which the court's decision was made, is illegal, since it contradicts the principles of separation of powers, the independence of the judiciary and the generally binding nature of a judicial act, and should be allowed only by way of appealing a judicial act to a higher instance.

3. Compliance with the Constitution of the Russian Federation of the extrajudicial procedure for recognizing the building as unauthorized

Article 35 of the Constitution of the Russian Federation guarantees the protection of private property. It proclaims that "no one can be deprived of their property except by a court decision." In this regard, the question arises - does the administrative procedure for demolishing a building contradict the Constitution of the Russian Federation, since it provides for the deprivation of property not by a court decision?

The problem of demolishing an unauthorized building in the administrative procedure has already arisen earlier in judicial practice, since the Civil Code of the Russian Federation does not explicitly say that demolition of an unauthorized building is allowed only in a judicial proceeding, which is what local authorities tried to take advantage of.

However, the Supreme Arbitration Court of the Russian Federation intervened in the situation, which in Information letter No. 143 dated 09.12.2010 indicated that the forced demolition of an unauthorized building is carried out only on the basis of court decisions... At the same time, the Supreme Arbitration Court of the Russian Federation referred specifically to Article 35 of the Constitution of the Russian Federation. Thus, in this case, there is a basis for challenging the norms of the Civil Code in the Constitutional Court of the Russian Federation as contrary to Art. 35 of the Constitution of the Russian Federation, which protects private property.

Meanwhile, it should be borne in mind that the Constitutional Court of the Russian Federation may recognize this law as not inconsistent with the Constitution of the Russian Federation, guided by the following. Firstly, the rules on unauthorized construction as a sanction for its construction stipulate that the ownership of it does not arise. So, in paragraph 2 of Art. 222 of the Civil Code of the Russian Federation states that "a person who has carried out an unauthorized construction does not acquire ownership of it." And if no rights to the building arise, then in fact there is nothing to deprive the developer, since there is no private ownership of the building. In particular, in one of the definitions of the Constitutional Court of the Russian Federation indicated that “the prescription of Art. 35 (part 3) acts as a constitutional guarantee of property rights for those subjects to whom the confiscated property belongs on legitimategrounds».

Secondly, the Constitutional Court of the Russian Federation may come to the conclusion that private property is not deprived of judicial protection, since the developer will still be able to file a claim for the recognition of ownership of the unauthorized construction or challenge the specified non-normative act. Thus, the Constitutional Court of the Russian Federation, considering the legality of the application by the customs authorities of such a sanction as confiscation, indicated that “the issuance by the customs authorities of an order on the confiscation of property in the form of a sanction for a customs offense with a guarantee of subsequent judicial control as a way to protect the rights of the owner does not contradict the requirements of the Constitution of the Russian Federation ". For example, the tax authorities can make decisions concerning the essence of our property, related to the possibility of collecting unpaid taxes, which does not prevent us from challenging them in court. In this case, the decisions of the customs and tax authorities do not enter into force immediately, but after a certain period of time, during which the person whose rights are affected by these decisions has the right to appeal against him.

Decisions on the demolition of unauthorized buildings in an administrative manner in accordance with the norms of the civil code are also not subject to immediate execution if the owner of the building is known. Initially, it is required to notify the owner of the building about the adoption of such a decision and the appointment of a deadline for the voluntary demolition of the specified building, after which the demolition is possible forcibly.

Thirdly, it should be noted that in the administrative order, buildings can be recognized as unauthorized only if there are obvious violations that do not require high qualifications to recognize the building as unauthorized. There is also the possibility of challenging clause 4 of Art. 2 2 2 of the Civil Code of the RF Constitutional Court as inconsistent with Art. 54 of the Constitution of the Russian Federation, which prohibits the retroactive effect of the law that worsens the situation of citizens. Thus, in one of the resolutions of the Constitutional Court of the Russian Federation, it was indicated that "the rule common to all branches of law is the principle that a law that worsens the situation of citizens, and, accordingly, associations created to exercise constitutional rights and freedoms of citizens, does not have retroactive effect." In the case of the administrative procedure for the demolition of an unauthorized building, we can say that the situation of the developer is deteriorating, since instead of the judicial procedure for the demolition of an unauthorized building, an administrative one is introduced.

At the same time, the prospect of such a challenge is also not unambiguous, since this article refers to provisions that worsen liability, that is, change the type of sanction, its amount or the conditions for bringing to responsibility (for example, terms), but not about changing the procedure for bringing to responsibility. The penalty for an offense and its size in the form of demolition of an unauthorized building remains the same.

Moreover, as already mentioned, the prohibition of the demolition of an unauthorized building in the administrative procedure is not enshrined in the Civil Code of the Russian Federation, but was formed only in judicial practice. In support of the latter conclusion, one can also cite some extracts from the legal position formulated by the Constitutional Court of the Russian Federation in one of its resolutions. In this resolution of the Constitutional Court of the Russian Federation, speaking about the possibility of giving retroactive effect to resolutions of the Presidium and Plenum of the Supreme Arbitration Court of the Russian Federation, which have the meaning of new circumstances and entail a revision of judicial acts, indicated that it is allowed to use a differentiated approach on the issue of their retroactive effect depending on the nature of the disputed legal relationship. Further, the Constitutional Court of the Russian Federation concluded that it is also possible to give retroactive effect to the decisions of the Supreme Arbitration Court of the Russian Federation “in exceptional cases in cases arising from of civillegal relations, if it is required - in essence public - protection interests of an indefinite circle of persons or obviously more weak side in legal relations. In any case, it is impermissible to retroactively interpret legal regulations worsening the position of the subordinate (weak) party in public relations - otherwise would mean a violation general principles legal regulation and enforcement arising from Articles 19 (parts 1 and 2), 46, 54 (part 1) and 55 (part 3) of the Constitution of the Russian Federation ”.

From the above extracts, it can also be concluded that the Constitutional Court of the Russian Federation definitely does not allow retroactive law, interpretation, worsening the position of a person in public legal relations (criminal, civil, administrative), where it is always a question of protecting the weak side opposing the state. If we are talking about civil law relations or it is necessary to protect an indefinite circle of persons, then the retroactive force of the law is permissible. Do not forget that an unauthorized building, located in a common area, affects the interests of an indefinite circle of people in a favorable urban development environment.

Thus, the opinion that the administrative procedure for the demolition of unauthorized buildings is contrary to the Constitution of the Russian Federation is ambiguous, and the Constitutional Court of the Russian Federation can find arguments to substantiate the constitutionality of the provisions of the provisions of the Civil Code on unauthorized construction. As a result, the following conclusions can be drawn:

1) The demolition of an unauthorized building in an administrative manner is allowed, but only in the presence of serious violations (not only that the building must be erected in the absence of land rights, so also the land plot must be located either in a public territory or in a zone with special conditions use where their provision for construction purposes is prohibited). In other cases, the administrative procedure does not apply, for example, when a building is recognized as unauthorized due to the fact that there is no building permit or permission to put the facility into operation.

2) The demolition of registered unauthorized buildings is allowed, since no exception is made for them in Art. 222 of the Civil Code of the Russian Federation and taking into account judicial practice, determining the value of the act of state registration.

3) The demolition of an unauthorized building, in respect of which a court decision was made to refuse to demolish it, is illegal and is allowed only in the procedural procedure for appealing a judicial act.

4) Perhaps the provisions of Art. 222 of the Civil Code of the Russian Federation in the current edition will be challenged in the Constitutional Court of the Russian Federation, but at the same time the outcome of such a challenge is ambiguous, since the Constitutional Court of the Russian Federation may find arguments to justify the constitutionality of the provisions of the Civil Code of the Russian Federation on unauthorized construction.

What is "squatter" or unauthorized construction?

An unauthorized construction is a building, structure, structure, carried out without obtaining the necessary permits or with a significant violation of urban planning and construction norms and rules and (or) on a land plot not allocated in accordance with the legislation for such a purpose. The person who carried out illegal construction, in accordance with the current legislation, is a developer. The developer does not have ownership of such a structure and therefore there is no legal right to fully use it - to sell, donate, lease or perform other actions. The unauthorized structure is subject to immediate dismantling. Dismantling is carried out by the developer himself, or at his expense. Samostroy can only be legalized in court if the building is located on a site owned by the developer. The current legislation provides for two ways of registering ownership of the samostroy: administrative and judicial.

The administrative method of legalization applies only to residential buildings that do not require construction permits, and garden and dacha facilities. Registration of unauthorized buildings is carried out by the Federal Registration Service. The grounds for registration of unauthorized construction are: documents for a land plot; an act from the authority on the provision of the site; cadastral plan of the land plot; declaration of real estate.

The judicial method of legalizing unauthorized construction is used if it is impossible to comply with the administrative order, provided that evidence is submitted to the court about the developer's right to the land plot on which the unauthorized construction was carried out. And also, if this building does not pose any threats to the life and health of citizens, and was built in compliance with all norms and rules.
Faced with the problem of "self-construction", it is necessary to perfectly understand the provisions of Art. 222 of the Civil Code of the Russian Federation, norms of other codes, laws and by-laws of Russia.

It should be remembered that:

1.) Art. 222 of the Civil Code of the Russian Federation does not provide for an administrative procedure for the demolition of unauthorized buildings.

2.) Forced demolition only capital unauthorized construction can be carried out on the basis of a court decision that has entered into legal force.

3.) Ownership of an unauthorized building can only be recognized by a court, subject to the conditions specified in Art. 222 of the Civil Code of the Russian Federation.

Illegal construction. Demolition or clearance?

Currently, the problems of legalization, demolition, operation, both capital and non-capital illegal buildings, the acquisition of property rights to them are relevant for many businessmen and individuals. Someone acquired such real estate as a result of civil transactions, someone, in the absence of the necessary approvals and permits, created such an object or reconstructed an old one (superstructure, extension, etc.).

The issue of demolishing unauthorized buildings and (or) vacating land plots is very painful for their owners and owners. Often, construction, reconstruction, etc., are carried out in the absence of the necessary permits established by the Law. The essence of the problem is hidden not only in the unwillingness of developers to contact the authorized bodies, but also in the complexity and duration of the procedure for obtaining a building permit. In Moscow, only at the preparatory stage, approvals of about 50 organizations are required. For this reason, preparatory stage construction or renovation takes several years. It is not uncommon for unauthorized construction to begin with the tacit “permission” of officials or “good” and “competent” owners or owners of a land plot and their promises to “help with legalization”. However, even in this case, the case for the owner of an unauthorized building does not always end well.

The developer, as a rule, consciously takes risks, trying to save time, effort and money. Relies on dubious opportunity or promises to issue paperwork either during construction or after completion. And postpones only as a last resort, the opportunity to legalize the created object through the Court, in spite of the fact that it is, as a rule, POSSIBLE to legalize an unauthorized object ONLY ON THE BASIS OF THE COURT'S DECISION.

In December 2013, the Moscow Government issued Resolution No. 819-PP, which is the basis for the demolition of illegal buildings and the release of land in Moscow. The said Resolution contains a list of objects to be demolished and land plots to be vacated. The list is regularly updated.

In accordance with this Resolution, more than 50% of the listed objects are subject to demolition. without a court decision, as the saying goes "without trial or investigation." During 2014, more than 1200 illegal construction projects were demolished in Moscow. And only in relation to 67 such objects were the statements of claim sent to the judicial authorities. In respect of 19, positive decisions of the courts were issued. A certificate of ownership was received or the objects were excluded from the list to the Decree of the Moscow Government No. 819-PP. A similar situation is developing in St. Petersburg, Sevastopol and other cities of the Russian Federation.

A common mistake of property owners unauthorized construction, is a self-confident hope for an independent "settlement" of the problem and for help different kinds legally semi-literate and, as a rule, corrupt "assistants" and a lack of understanding of the severity of the consequences.

The search for a legal, individual way of registering ownership of an unauthorized construction object and its effective implementation is the business of exclusively highly qualified specialists - real estate lawyers specializing only in cases of self-construction.

Loris-Melikoff Legal Group's experts in unauthorized construction have extensive positive experience in the investigation of unauthorized actions and will be able to understand the most difficult problem.

If we have not convinced you. If you want to independently resolve the issue of unauthorized construction - we remind you of some aspects of the problem:

On persons authorized to file a claim in court, on the demolition of unauthorized buildings:

With an application for the demolition of an unauthorized building and / or the release of a land plot, the following persons have the right to apply to the court:

A person who owns a life-long inherited possession, whose permanent (indefinite) use is the land plot on which the construction was carried out.

Prosecutor, in order to protect public interests.

State Construction Supervision is a body exercising construction supervision in order to protect public rights and interests from a building created without obtaining the necessary permits and / or with a significant violation of urban planning and building codes and regulations.

On the legality of a building permit:

In itself, the recognition of the existing building permit as illegal and the recognition of the building (extension, superstructure) as unauthorized does not always entail the demolition of the latter. However, if during the creation of a building or by the very fact of its existence, urban planning and construction norms and rules are significantly violated, and its preservation poses a threat to the life and health of citizens, such a building, of course, is subject to demolition.

On obtaining a certificate of ownership of an unauthorized building:

State registration of ownership of an immovable property (availability of a certificate of ownership), erected without title documents, is not a reason for refusing to satisfy a claim for the demolition of an object as an unauthorized building.

The presence of a Certificate of Ownership, obtained by hook or by crook, does not protect an unauthorized building from being demolished by the decision of the Court. Moreover, if the Court decides to demolish such a structure, the ownership will be declared null and void, i.e. not valid from the moment you receive it. The registration record of such ownership will be canceled by the registering authority and a criminal case will be initiated.

About the limitation period:

The limitation period does not apply to the requirement to demolish a building created on a land plot of a third party without his consent, if this person owns this land plot, as well as to objects posing a public danger - a threat to the life and health of citizens.

An important circumstance is the very fact of creating a building without appropriate approvals and obtaining permits in whole or in part, which clearly indicates the presence of public danger.

On the recognition of ownership of an unauthorized building:

If an object of immovable property was created with a significant violation of urban planning and building codes and regulations, the ownership of such an object cannot be recognized by the court.

On the declaration of rights, by the owner of the land plot, to an unauthorized building, erected without his consent:

If the owner of the land plot has filed a claim for the recognition of ownership of an unauthorized building created without his consent, the person who carried out the construction (developer) has the right to file a counterclaim for reimbursement of his expenses or go to court with an independent claim for reimbursement of such expenses.

On the mandatory pre-trial procedure for registration of an unauthorized building:

The ownership of an unauthorized building erected without appropriate permits cannot be recognized by the person who created it if this person could obtain permits, but did not take all the necessary measures for this.

On acquisitive prescription for unauthorized construction:

Ownership of an unauthorized building created without obtaining the necessary permits arises by virtue of acquisitive prescription a person who conscientiously, openly and continuously owns her as his own real estate within 15 years, provided that the preservation of such a building does not pose a threat to the life and health of citizens. An important factor in this case is the presence of an ideal combination of such circumstances as: the absence of claims from the regulatory authorities, compliance with the intended purpose and actual use of the land plot, the characteristics of unauthorized construction, the absence of violations of the legal rights and interests of adjacent land users.

However, the very fact of creating a building without appropriate approvals and obtaining permits clearly proves the existence of a public danger of the building. Given the complexity of this construction of evidence in court, The legalization of unauthorized construction through the use of the institution of acquisitive prescription is a very dubious undertaking.

About commercial construction projects:

Today in the Moscow region the most widespread and gross violation urban planning legislation is the placement of a capital structure without the necessary documentation on the site of a non-stationary (non-capital) trade pavilion, for the placement and operation of which there is a short-term lease of a land plot. As a result, such an unauthorized capital object, through the help of various kinds of "solved", is registered as property. As a result, the newly minted owners of capital buildings or shopping complexes have the appearance of settling the question of unauthorized construction and bringing their affairs into legal order. However, it should be understood that this method of construction and registration of property rights will not protect against the demolition of such a building, from administrative and criminal liability.

The peculiarities of such actions and typical errors have been described above.

As practice shows, such objects are demolished by the authorities without any problems. The Civil Code of the Russian Federation imposes the responsibility for the demolition of an unauthorized building and compensation for damage caused by such a building on the developer, and as a result, on the owner. The material cost of demolishing such structures is generally comparable to the market value of similar but legitimate structures.

The fate of the unauthorized non-capital buildings Moscow is much easier to solve. In December 2013, the Moscow Government issued a revolutionary Resolution No. 819 - PP, establishing and facilitating the procedure for their demolition. Now the district interdepartmental commissions have the right to make a decision on demolition and demolish without judgment any non-capital objects that are not included in the deployment scheme, do not have permits for placement and operation. As the saying goes, "without trial or investigation."

Moreover, on 08.12.2015, the Government of the city of Moscow issued Resolution No. 829-PP "On measures to ensure the demolition of unauthorized buildings in certain areas of the city of Moscow." This Resolution establishes the following: any building, including those registered with Rosreestr, located in violation of urban planning norms, as well as building codes and regulations, is recognized as posing a threat to the life and health of citizens and, for this reason, is subject to unconditional demolition. This Resolution is based on the changes made to Article 222 of the Civil Code of the Russian Federation and is fully consistent with the current legislation. In this regard, the demolition or dismantling of buildings included in the list of the annex to the said Resolution is carried out without a court decision and no later than three months.

Be carefull! Without studying the legislation, you can accelerate the onset of harmful consequences. We wish you good luck in your endeavors !!!

By entrusting the solution of your problem to Loris-Melikoff Legal Group, you will significantly reduce your material expenditures on the legalization of unauthorized buildings, gain personal peace of mind and stability of your business, property, property, and protect yourself from possible adverse consequences.