Individual residential building. What is individual housing construction: theory and practice

Individual housing construction(IZHS) - first of all, this is the type of permitted use of a land plot, which determines the status of the land from a legal and legal point of view.

Also, individual housing construction is a form of providing citizens with housing through the construction of houses with the direct participation of citizens or at their expense. As a rule, land plots for these purposes are provided in cities and towns. In many cases, the size of the plot provided for individual housing construction allows not only to place a house, but also to use the land for agricultural production.

Clause 3 of Article 48 of the Town Planning Code of the Russian Federation (Architectural and construction design) defines the object of individual housing construction, namely: preparation project documentation not required during construction, reconstruction, major repairs of individual housing construction projects (detached residential buildings with no more than three floors, intended for one family).

Developer for own initiative has the right to ensure the preparation of design documentation in relation to individual housing construction projects.

In this article I would like to dwell on both the advantages of this type of permitted use and reflect the problems that citizens have when applying this permitted type of use of a land plot. This is especially true today, when master plans for the development of territories and the category of land are being actively adopted settlements allows the owner to choose the type of permitted use such as individual housing construction.

As mentioned above, this type permitted use is optimally combined with the lands of populated areas.

Among the main advantages of individual housing construction:

such lands can be included in a variety of government programs to support low-rise construction;
the owner of such land is not dependent on other members of the partnership;
accordingly, the owners in whose possessions such land plots are located are not burdened with fees for security, roads, etc. expenses;
the owner of the plot always has the right to permanent registration on its territory;
it is quite possible to use the services of local government institutions (for example, a school or a clinic);
This category of plot is already intended for the construction of housing on it.

Thus, individual housing construction is optimal for running an independent household, independent of neighbors.
Now let’s look at the problematic situations that citizens face during individual housing construction, for which we will analyze judicial practice about this question.

Thus, the Appeal ruling of the Smolensk Regional Court dated July 3, 2012 in case No. 33-2048 summarized the following. Refusing to satisfy the application, the court rejected the plaintiff’s demands to provide ownership of the land plot free of charge for individual housing construction. As the court indicated, according to Art. thirty Town Planning Code RF (Land Use and Development Rules) urban planning regulations establish types of permitted use land plots located within the corresponding territorial zone. Requested land plot located in the territorial residential development zone residential buildings mixed number of storeys. Only one type of residential building can be located in this zone. Thus, the court came to the conclusion that there are no grounds for applying to the disputed territory town planning regulations residential area intended for development of individual residential buildings, due to the lack of predominance of this type of development in the nearby territory. Thus, the requested land plot must be in the category that allows for the permitted type of use - individual housing construction.

Collegium of Judges of the Supreme Arbitration Court Russian Federation composed of presiding judge Kulikova V.B., judges Medvedeva A.M., Popov V.V., considered at a court hearing the application of the Vladivostok City Administration for a supervisory review of the decision of the Fifth Arbitration Court of Appeal dated November 22, 2011 in case No. A51-1215 /2011 of the Arbitration Court of the Primorsky Territory and the resolution of the Federal Arbitration Court of the Far Eastern District dated 04/09/2012 in the same case on the claim of the Vladivostok City Administration (hereinafter referred to as the Administration), the Department of Urban Planning and Architecture of the Vladivostok City Administration, the Department of Land Relations, State Construction Supervision and Control in region of shared construction of the Primorsky Territory, Vladivostok to the defendant - individual entrepreneur Yu. M. Bolshakov, Vladivostok (hereinafter referred to as Yu. M. Bolshakov; entrepreneur) for recognition unauthorized construction store with an approximate area of 20 sq. m, which has signs of a permanent structure, located in the area of 20 in the Kanal village of Russky Island in the city of Vladivostok, and oblige the defendant to demolish by dismantling the said unauthorized construction.

The court invited the Federal State Institution “Far Eastern Directorate of the Ministry of Regional Development of the Russian Federation” (now the Federal State Institution “Far Eastern Directorate of the Ministry of Regional Development of the Russian Federation”; hereinafter - FKU) to participate in the case as a third party who does not make independent claims regarding the subject of the dispute "Far Eastern Directorate").
The court found: by the decision of the Arbitration Court of the Primorsky Territory dated August 8, 2011, the stated claims were satisfied.

By the decision of the Fifth Arbitration Court of Appeal dated November 22, 2011, upheld by the decision of the Federal Arbitration Court of the Far Eastern District dated April 9, 2012, the court decision dated August 8, 2011 was canceled and the claims were denied.

Appealing the decisions of the courts of appeal and cassation, the Administration (plaintiff) believes that these judicial acts are unfounded and illegal, adopted with an incomplete study of the case materials, as a result of an incorrect interpretation of the rules of substantive law. The applicant does not agree with the conclusions of the named courts, points out that the unauthorized construction created by the entrepreneur prevents the construction of the road network of the facility on this land plot capital construction- “Far Eastern Federal University” (site of the APEC Summit 2012), the construction customer of which is the Far Eastern Directorate. The administration presents arguments and requests, by way of supervision, to cancel the contested judicial acts as violating the uniformity in the interpretation and application of substantive and procedural law by arbitration courts and violating rights and legitimate interests municipality, an indefinite number of persons, public interests.

Having studied the contested judicial acts and the arguments set out in the submitted application, the panel of judges of the Supreme Arbitration Court of the Russian Federation came to the conclusion that the case is not subject to transfer to the Presidium of the Supreme Arbitration Court of the Russian Federation due to the lack of grounds provided for in Article 304 (Grounds for review in order to supervise judicial acts that have entered into legal force and award compensation for violation of the right to legal proceedings within a reasonable time) of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation).

When considering the case, the court of appeal established that, at the request of the Far Eastern Directorate, on the basis of the order of the head of the Department of Urban Planning and Architecture of the Vladivostok City Administration dated November 8, 2010 No. 3245 “On conducting an inspection of land legislation,” a corresponding inspection was carried out and an inspection report dated November 16 was drawn up .2010 No. 611, according to which on the land plot on the northern side of residential building No. 20 in the Kanal village of Russky Island in Vladivostok there is an object that has signs of a permanent structure, used by an entrepreneur as a store.

The plaintiffs, due to their lack of information about the provision of a land plot for the construction of the mentioned store and the lack of permits for the construction of such a facility, filed the indicated claims in court on the basis of Article 222 (Unauthorized construction) of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) .

In accordance with paragraph 1 of Article 222 of the Civil Code of the Russian Federation, an unauthorized construction is a residential building, other structure, structure or other real estate created on a land plot not allocated for these purposes in accordance with the procedure, established by law and other legal acts, or created without obtaining the necessary permits or with a significant violation of town planning and construction norms and regulations.

In the process of considering the dispute that arose, the appellate court also established that the land plot on which the disputed object is located was provided to Yu. M. Bolshakov for individual housing construction on the basis of the decision of the Executive Committee of the Russian Village Council of People's Deputies dated November 5, 1982 No. 522, and on this land plot was registered cadastral passport.

Bolshakov Yu. M.'s ownership of a residential building at the specified address was registered on 06/07/2011 in the manner prescribed by law, subject to a permit for the construction of a residential building, an act of acceptance for operation, a cadastral passport and a technical passport for the residential building. At the same time, the technical passport for the residential building listed the auxiliary buildings and structures related to it, among which the disputed structure was indicated.

According to paragraph 3 of part 17 of Article 51 (Building permit) of the Town Planning Code of the Russian Federation, the issuance of a building permit is not required in the case of construction of buildings and structures for auxiliary use on a land plot.

The decision of the Frunzensky District Court of Vladivostok dated September 16, 2011, which entered into legal force, declared the refusal to state registration Bolshakov Yu. M.'s ownership rights to the property - outbuilding, located at the address: Vladivostok, o. Russian, p. Kanal, 20.

Based on this court decision, Y. M. Bolshakov registered ownership of the disputed object on October 31, 2011, which is confirmed by registration entry No. 25-25-01/113/2011-096, made in the Unified State Register of Rights to Real Estate and Transactions with him, and certificate 25-AB No. 671942 issued to Bolshakov Yu.M. on registration of the right.

The Court of Appeal also established that the disputed building, which is an auxiliary structure, is located within the land plot that was provided to Yu.M. Bolshakov in 1982.

As the court of cassation indicated, on the day of consideration of the case in cassation proceedings, Yu. M. Bolshakov had registered ownership of the land plot granted to him in 1982, on which the buildings belonging to him are located.

During the consideration of the case, they did not present any indisputable evidence confirming the applicant’s arguments about the partial overlap of the land plot owned by Yu. M. Bolshakov with another land plot on which the work indicated by the plaintiffs should be carried out.

Based on the circumstances established in the case, the norms of legislation, the courts of appeal and cassation gave a legal assessment to the plaintiffs’ arguments and established the legality of the owner’s actions and the correct interpretation and application of individual housing construction by him.

And here clear example violations during individual housing construction:

By ruling of the Moscow Regional Court dated January 31, 2012, case No. 33-472/12, the following was established:

The plaintiff filed a lawsuit against P. for the demolition of the unauthorized building. In support of the claim, he indicated that the defendant, by right of ownership, owns a land plot of the category of land: land of settlements; permitted use: for individual housing construction, total area 1255 sq. m. m, located at: (….). The defendant erected a three-story monolithic reinforced concrete residential building with a total area of 1308.0 square meters. m. Administration of Leninsky municipal district The Moscow Region believes that the specified structure is an unauthorized construction and is subject to demolition, since it does not correspond to the intended purpose of the land plot, sanitary and fire safety standards.

The plaintiff's representative supported the claim at the court hearing.

The defendant and his representative did not appear at the court hearing.

The third party, the Administration of the urban settlement of Vidnoye, Leninsky district, Moscow region, did not appear at the court hearing.

Third parties K., A., Zh. O., Zh. I. supported the claims at the court hearing.

A representative of the department of the chief architect of the Leninsky municipal district of the Moscow region supported the claims at the court hearing, explaining that the building has signs of multi-apartment housing, each room can be used as apartments, and the rooms have wiring for the kitchen.

By the decision of the Vidnovsky City Court of the Moscow Region dated October 31, 2011, the claims were satisfied. In his cassation appeal, P. asks to have the court decision overturned.

In accordance with Part 1 of Art. 347 (Limits of consideration of the case in the court of cassation) Civil Procedure Code of the Russian Federation, the cassation court verifies the legality and validity of the decision of the first instance court based on the arguments set out in the cassation complaint, presentation and objections to the complaint, presentation.

Having listened to the explanations of the persons who appeared, checked the case materials, and discussed the arguments of the cassation appeal, the judicial panel finds no reason to cancel the court decision.

The court found that P. owns a land plot, category of land: land of settlements, permitted use: for individual housing construction, total area 1255 square meters. m, address of the object: (...), about which a registration entry was made in the unified state register of rights to real estate and transactions with it on July 28, 2010.

Based on the order of the head of the Leninsky municipal district of the Moscow region dated November 1, 2010 No. 4240 “On the creation of an interdepartmental commission for the timely identification and cessation of illegal construction of capital construction projects on the territory of the Leninsky municipal district,” an inspection was carried out at the above address, as a result of which it was established: the specified land plot is carried out construction works without obtaining the necessary permits at the construction stage monolithic foundation, reinforced with reinforcement, measuring about 26 by 19 meters.

On November 23, 2010, the Administration of the Leninsky Municipal District of the Moscow Region sent a request to P. to stop construction work carried out without obtaining a construction permit in the prescribed manner. To properly resolve the issue, the court appointed a construction and technical examination.

According to the expert’s conclusion, it follows that there are signs indicating the possibility of using the object under study as apartment building: the space-planning solution of a residential building is organized in such a way that all rooms that can be used as living rooms are structurally separate rooms with only exits to the common room (corridor) and then through the stairs to the outside. These rooms have no connection with each other.

The case materials confirm that the disputed building is 4-story, surrounded by a metal fence. The construction of the building has not been completed.

By virtue of Art. 51 (Construction Permit) of the Town Planning Code of the Russian Federation, a building permit is a document confirming compliance of the project documentation with the requirements of the town planning plan of the land plot or the territory planning project and the land surveying project (in the case of construction, reconstruction of linear objects) and giving the developer the right to carry out construction, reconstruction of capital construction projects, except for cases provided for by this Code.

The court examined the expert opinions, assessed them in conjunction with other evidence in the case, in accordance with the norms of urban planning, land and civil legislation made a legal decision that satisfied the stated requirements, since P. had not been issued construction permits, and the disputed structure was erected on a land plot not intended for the construction of an apartment building.

Thus, the court of first instance correctly established the circumstances relevant to the resolution of the case, applied the law to be applied in disputed legal relations, in accordance with Art. Art. 56 (Obligation of Proof), 67 (Assessment of Evidence), 86 (Expert Conclusion) of the Code of Civil Procedure of the Russian Federation, the evidence presented by the parties was given a proper assessment.

Taking into account the above, the judicial panel believes that the court’s decision does not contradict the circumstances collected in the case and the requirements of the law.
The panel of judges finds the argument of the cassation appeal to consider the case in the absence of the defendant and his representative untenable, since the court of first instance was not presented with evidence confirming the existence of valid reasons for failure to appear.

Other arguments in the cassation appeal about procedural violations committed by the court, in the opinion of the cassator, were the subject of study by the judicial panel and do not contain circumstances leading to the reversal of the court decision.

Guided by Art. 361 (the rights of the cassation court when considering cassation complaints and presentations) of the Code of Civil Procedure of the Russian Federation, the judicial panel determined: The decision of the Vidnovsky City Court of the Moscow Region of October 31, 2011 is left unchanged, the cassation appeal is not satisfied.

Thus, the owner of a residential building had to strictly comply with all legislative norms and rules established for such a permitted type of use as individual housing construction.

The ruling of the St. Petersburg City Court dated January 24, 2012 No. 33-793/2012 established the following:

The defendant's arguments about the need for the plaintiff to present a construction permit, provided for in Art. 51 (Construction permit) of the Town Planning Code of the Russian Federation, and about the impossibility of registering ownership of an object created as a result of reconstruction in the simplified procedure provided for in Art. 25.3 of the Federal Law “On state registration of rights to real estate and transactions with it” No. 122-FZ of July 21, 1997, were rightfully declared insolvent by the court of first instance. The court came to the conclusion that, within the meaning of paragraph 4 of Art. 25.3 specified Federal Law the simplified procedure temporarily includes the condition that the cadastral passport of an individual housing construction project is the only basis for state registration of rights (in the event that the applicant’s right to the land plot on which the facility was created was previously registered in the prescribed manner).

Thus, the court granted the application to declare illegal and cancel the registration authority’s refusal to state registration of the plaintiff’s ownership of an individual residential building and ordered the defendant to carry out state registration of ownership of the specified object.

Thus, there is another advantage of this type of permitted use - a simplified procedure for registering ownership of a property.

Resolution of the Federal Antimonopoly Service of the Ural District dated June 15, 2012 No. F09-3689/12 in case No. A07-16470/2011 established the following:

The court granted the application to declare illegal the actions expressed in the refusal to issue a permit for the construction of a capital construction project, agreeing with the lower court, which indicated that, within the meaning of Article 30.1 (Particulars of the provision of land plots for housing construction from lands in state or municipal ownership) According to the Land Code of the Russian Federation, only an individual can act as a tenant of a land plot provided for individual housing construction, and an organization does not belong to this category of persons, therefore, there are no grounds for issuing a building permit for a period of 10 years, provided for individual housing construction.

Thus, summarizing all of the above, it is necessary to understand the following:

When registering individual housing construction objects located on a land plot intended for individual housing construction and located within the boundaries of a populated area, there are some peculiarities.

The grounds for state registration of ownership of an individual housing construction project in this case are: documents confirming the fact of creation individual housing construction object and containing its description; title document for the land plot on which the individual housing construction project is located.

In accordance with paragraph 4 of Article 25.3 of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It” No. 122-FZ of July 21, 1997, documents confirming the fact of the creation of an individual housing construction project are the cadastral passport of such an object and permission to enter the object Individual housing construction into operation.

In other words, in order to register ownership of an individual housing construction project, you only need to provide the registration authority with a cadastral passport for the property itself, permission to put it into operation and a title document for the land plot. A construction permit is not required, except in cases of registration of ownership of an unfinished construction project.

What is individual housing construction? How and where can I get permission to construction of individual housing construction? What are the requirements for choosing a land plot for individual housing construction? We will address these and many other issues related to individual construction in the article below.

Individual housing construction (IHC) is a form of providing citizens with housing through a separately constructed residential facility at the expense of citizens and with their participation (SP 30-102-99). The object of individual housing construction is separate residential standing house, in which one family can live, with the possibility of registration at the place of residence. The number of floors in such a house according to the permitted layout should not exceed three, the land permitted for use individual construction, as a rule, belongs to cities, workers' settlements or located in rural areas (Article 48 of the Town Planning Code of the Russian Federation).

We also note that individual housing construction objects may include attics, outbuildings, garages, private residential buildings, and various extensions on the property’s property. No special permit is required for the construction and operation of these auxiliary use facilities. At the same time, the law allows for the possibility of reconstruction and redevelopment of previously erected structures, however, these changes should not affect the structural characteristics of the object and the permissible parameters of permitted construction, and also should not violate the interests of third parties.

Land plots for individual housing construction: how to make the right choice

Russian legislation provides for several categories of land, each of which has a specific type of permitted use. For those who have decided to build a detached residential country house, the most suitable category is lands of settlements that do not have restrictions in the field of urban planning. Therefore, when choosing land plots for individual housing construction, first of all, it is necessary to find out the category and purpose of use of the land, in particular, the possibility of constructing a residential building for temporary or permanent residence with obtaining a postal address and official registration, or the absence of such an opportunity.

In accordance with paragraph 2 of Article 49 of the Town Planning Code of the Russian Federation, lands with permitted use for individual housing construction, belonging to the category of land in settlements, do not provide for the possibility of constructing high-rise multi-entrance residential buildings on them with the further sale of apartments in them.

How to obtain a building permit on a private housing construction site

The procedure for obtaining permission for individual housing construction includes several stages. A package of documents (see list below) and an application for a permit for individual housing construction are submitted to the department of architecture of the local government located at the location of the selected land plot.

The application is considered within 10 working days, then the applicant developer is issued either a written permit for individual housing construction (valid for 10 years) or a reasoned refusal, which can be challenged in court.

Upon completion of construction on the individual housing construction site, the developer receives a certificate of compliance of the constructed facility with all norms and requirements of regulatory and technical documentation.

Add to list necessary documents To obtain a construction permit, individual housing construction includes:

urban plan land plot based on survey materials;
a schematic plan of the land plot with a mandatory mark on the place where the residential building will be built (the diagram is drawn up by the relevant organization with the appropriate permission to carry out this type design work) art. 41 No. 221-FZ of July 24, 2007 “On the State Real Estate Cadastre”;
title documents for a land plot (in particular, a certificate of ownership, a certificate of the right to perpetual use of a land plot or a certificate of inheritable lifelong ownership of a plot).

In accordance with Part 4, Art. 25.3 No. 122-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with it” ownership individual individual housing construction is carried out on the property on the basis of the title document for the land plot and documents that confirm the fact of construction of the property (BTI cadastral passport, permission to commission).

A permit for the construction of an individual housing construction project is not required, with the exception of cases of registration of ownership of unfinished construction projects.

Assigning a postal address

The assignment of a postal address to an individual housing construction project is carried out by the local government body. The basis for this is a written application and documents included in the administrative list (construction permit, BTI passport for the object, ownership of the land plot, etc.).

Permission to put an individual housing construction project into operation

The construction of a residential building on an individual housing construction site ultimately requires the mandatory completion of the construction registration procedure with obtaining permission to put the facility into operation. In accordance with Art. 55 of the Town Planning Code of the Russian Federation this concept is explained as a document certifying the completion of work in full for construction, reconstruction, major renovation object, as well as confirming the compliance of this object with the urban planning plan of the land plot and design documentation.

Permission to put the facility into operation is issued administrative body based on the relevant application and the main package of documents, which includes:

documents confirming the right of ownership of a land plot for individual housing construction;
urban planning plan of the site;
permission to build an individual housing construction project on this site;
acceptance certificate for the construction of this facility;
documents that confirm the compliance of the constructed (repaired, reconstructed, etc.) facility with the requirements and standards of technical regulations; signed by representatives of organizations that operate networks of engineering and communication technical support;
a diagram indicating the location of the constructed house and the engineering and communication networks in it, as well as a planning map of the land plot for individual housing construction; the scheme is signed by the person who performed the construction work (developer, customer).

Please note that until January 1, 2012, permission to put an individual housing construction project into operation is not required, nor is it required to submit a permit to carry out technical registration of this structure.