Responsibility for unauthorized construction

Unauthorized seizure of someone else's land grossly violates the rights of owners land plots and prevents their free use or disposal. The law establishes liability for such violations. What is meant by land squatting?

What responsibility comes in these cases? And also about how to protect your rights in the event of a violation of your property rights to land plot, see below.

The Constitution of the Russian Federation guarantees the inviolability of private property of citizens of any objects. While granting them the right to be owners of land plots, at the same time, it limits the powers of owners and stipulates that their use of land should not cause damage to the environment and the interests of other persons (Article 36). After all, land is a special object that supports human life and is especially protected by the state.

All issues related to the receipt, possession and use of land are regulated by law. However, cases of unauthorized seizure of land plots by citizens are very common. What is meant by this and what responsibility is provided for it?

Citizens who begin construction of residential buildings on empty land mistakenly believe that this land is owned by no one and no one has control over it. In fact, this is not true. Land, if not already owned by citizens or legal entities, is owned by the state. Therefore, the construction of houses, dachas, or simply occupying free territory for storage building materials or other objects is regarded as an encroachment on state property.

Land squatting also includes the unreasonable transfer of the boundaries of one’s plot beyond its borders. For example, the construction of utility rooms, extensions to the house on the territory adjacent to the house, or its use for placing garden plantings.

It is important to know that such unauthorized construction is not subject to legalization. After all, it is located on land that does not belong to you. It follows from this that you will not be able to make any transactions with these unauthorized buildings.

Having spent large sums and time on construction, you will not be able to sell it, donate it or leave it as an inheritance. Moreover, all funds used for construction may be irrevocable.

These actions entail bringing the unauthorized developer to administrative liability according to the norms of the Code of Administrative Legal Relations of the Russian Federation (hereinafter referred to as the Administrative Code).

For the same offense, the Code of Administrative Offenses establishes different liability depending on who committed it: a citizen, an official or a legal entity. Stricter liability is provided for legal entities and officials.

Cases of this category are considered by the authorities responsible for monitoring the proper use of land. If we are talking about forest lands, then bringing to justice those responsible for encroaching on such lands falls within the competence of the authorities ensuring the protection and protection of the forest fund.

Administrative responsibility for land squatting

Any use of someone else’s territory or at least part of it without legal grounds (in the absence of title documents for the land) is grounds for bringing violators of the law to administrative liability in the form of fines.

Their sizes are indicated in Article 7.1 of the Code of Administrative Offenses and are determined in percentage to the cadastral value of land:

• citizens will pay from one to one and a half percent. In this case, the amount of the fine should not be less than 5,000 rubles;
• for officials, different amounts are established: from one and a half to two percent (the minimum fine is 20,000 rubles);
• a fine of two to three percent (not less than one hundred thousand rubles) is imposed on legal entities.

In the absence of data on the cadastral value of land plots, the amounts of fines are accordingly:

• from 5,000 to 10,000 rubles (citizens);
• from 20,000 to 50,000 (officials);
• from 100,000 to 200,000 (for legal entities).

Unauthorized seizure of land is the illegal use of a land plot owned by someone else by erecting various buildings on it, fencing it, planting agricultural or garden plantings, and storing various items. All these actions are carried out against the will of the land owner or without documents allowing implementation on it economic activity.

Criminal liability for land squatting

According to the laws of the Russian Federation, unauthorized use of someone else’s land does not constitute an independent criminal offense. Although in some countries former USSR For example, in Ukraine it is provided for by the Criminal Code.

If land squatting is associated with another criminal act, then the perpetrator will be held liable according to the norms of criminal rather than administrative legislation. For example, the culprit received the right to land as a result of abuse of trust or deception, thereby committing fraud, liability for which is provided for in Article 159 of the Criminal Code of the Russian Federation. As a result, he will have to bear criminal liability in the form of a fine, correctional labor, restriction of freedom, up to imprisonment for up to two years.

Criminal liability also arises when a plot is taken over as a result of registering a transaction that does not comply with the law, or by introducing false information into documents.

Land squatting can be associated with any criminal offense. Therefore, the punishment in each specific case depends on under which article of the Criminal Code of the Russian Federation the perpetrators are held criminally liable. And also on the circumstances under which the crime was committed.

It is important to know that committing crimes in a group of people or using an official position provides for more severe punishment.

What to do if land is squatted

What should be done if the ownership of a land plot is violated?

• First of all, clarify the situation and contact the direct offender. You can talk to him orally, but it is better to state your complaints in writing. Give one copy to the offender. It’s better to send the letter by mail, then you will have proof that the claim was sent to him. It may be possible to resolve the conflict situation at this stage through peaceful negotiations and all losses to the owner will be compensated. There are frequent cases of subsequent registration of ownership of an unauthorized plot;
• If you do not receive a response to a claim or the recipient refuses to eliminate violations of the law, contact government agencies that are authorized to control the use of land. They will initiate an administrative case, consider all the circumstances of the offense and make a decision on it;
• After the fact of an administrative offense has been certified, take up the issue of compensation for losses caused to you as a result of the illegal use of land. Prepare a statement of claim to the court with an attached calculation of the damage caused;
• If you have any doubts when determining the boundaries of plots, do not rush to go to court. First check the data regarding the disputed land plots in the Unified State Register of Real Estate. This will help you avoid frivolous claims and the costs associated with them.

Keep in mind that if we are talking about the seizure of unused land owned by the state, then an option to resolve the conflict may be to buy it into your own ownership. This is possible if there are no prohibitions on transactions with it. Certain categories of land are not allowed to be transferred to anyone's ownership.

To be fair, it is worth noting that disputes related to unauthorized seizure of land are not considered simple. Therefore, contact lawyers who specialize in land law to receive qualified advice and assistance in a positive outcome of the civil case.

After all, along with the Land Code of the Russian Federation, there are many laws and regulations that will be very difficult for an ignorant person to navigate.

Unauthorized occupation of land- a sufficiently serious offense for which Russian legislation liability is provided. Our article will tell you what the responsibility for this is and what to do if you are faced with land squatting.

Unauthorized occupation of land and responsibility for it

Legislation Russian Federation establishes many options for providing land plots for use to a citizen or organization:

• taking ownership;
• rental;
• easement;
• inherited possession, etc.

Each of these options has its own characteristics. However, unfortunately, there are still cases of unauthorized occupation of a land plot - the use of land by a person who does not have any rights. That is, when there is no agreement, no decision of the local municipality, no resolution or other act of federal or regional government... In practice, such situations are often called squatting.

Of course, the state is not going to put up with this kind of action. Land turnover is a topic that is in the field special attention authorities. There are several reasons for this, and the first of them is the cost of the object. Land, like any other real estate, is a fairly expensive object, and the owner may suffer considerable damage as a result of illegal use.

In addition, the status of the land must be taken into account. For example, agricultural land is actually one of the foundations of the very existence of the population in Russia: if the land is not used in agricultural production, there will be no food. However, if land for another purpose is seized, this is not much better, since the site may also belong to another protected category.

Civil consequences of land squatting

From the point of view of civil legislation, the characteristic feature of unauthorized occupation of a land plot is that this does not give rise to any rights for the persons who committed the squatting. This means that the invaders:

1. They cannot make any transactions with the site. Land cannot be sold, donated, mortgaged, or even bequeathed. The invader has no rights to this plot and therefore cannot dispose of it in any way.
2. They are obligated to vacate the site upon the first request of the legal owner. Liberation also implies the destruction of any traces of economic activity for which the owner did not give permission. This is what most often causes disputes, because if the unauthorized occupation of a land plot was accompanied by the construction of a house or other property on it, they must be demolished. If the demolition is not carried out voluntarily, the owner may involve the authorities to force the destruction of illegal buildings.
3. Obligated to pay the owner if the captured land was used for profit. This kind of situation can be interpreted as illegal enrichment - and civil law in this case gives the owner of the object the right to recover compensation. Its size will be equal to the income that the guilty person illegally extracted from the land.

In addition, it must be taken into account that unauthorized occupation of a land plot does not give the invader any rights to compensation for the expenses that he incurred, for example, to improve the land or erect buildings or structures on it.

Administrative responsibility for squatting

Most often, persons convicted of unauthorized occupation of a land plot are subject to liability established by administrative legislation. It is a fine, the amount of which will depend on whether the plot is registered in the cadastral register and whether its cadastral value has been determined. So, in accordance with Art. 7.1 of the Code of Administrative Offenses of the Russian Federation, if the site is registered and the value according to the cadastre is determined, a fine will be imposed in the following amounts:

• for citizens - 1-1.5% of the cost, but not less than 5,000 rubles;
• for officials - 1.5-2%, but in any case more than 20,000 rubles;
• for organizations - 2-3%, but not less than 100,000 rubles.

If the land plot is not registered in the cadastral register and, accordingly, the cost has not been determined, the amount of the fine will be different:

• for ordinary citizens - from 5,000 to 10,000 rubles;
• for officials - from 20,000 to 50,000 rubles;
• for organizations - from 100,000 to 200,000 rubles.

It should be noted that individual entrepreneurs in the event of this offense are considered as organizations, and accordingly, the same amount of the fine is applied to them. If unauthorized occupation of a land plot is committed in relation to part of the plot, then the calculation of the cost on which the calculation of the fine depends is made based on the ratio of the area that was illegally occupied to the total size of the plot.

In general, the mechanism for applying administrative liability for land squatting looks something like this:

1. The competent government agency discovers the fact of an offense.
2. The offender is given a period to voluntarily correct the situation. He is obliged to stop all activities on the site, move fences, remove structures, etc.
3. If the order is not fulfilled within the specified period, a full fine will be imposed.

Depending on the specific circumstances, the procedure may be different, but most often government agencies act this way.

It is also important to remember that the application of administrative punishment does not mean that the offender will avoid other measures of responsibility. The fact that the invader has been fined does not prevent the owner from collecting payment from him for unauthorized occupation of the land plot - on the contrary, the resolution that imposed the fine will even serve as additional evidence in a civil or arbitration court.

Criminal liability for illegal use of land

Unauthorized occupation of a land plot may also result in liability under criminal law. Self-capture is not directly a crime in Russia (unlike some other post-Soviet countries, Ukraine, for example, where such an article in the Criminal Code was introduced back in 2007), however, if it turns out to be connected with the commission of another criminal act, the perpetrator must prepare for punishment according to the Criminal Code of the Russian Federation.

Criminal liability for unauthorized occupation of land plots may arise in cases where such actions were, for example, part of fraud (in this case, the culprit, by virtue of Article 159 of the Criminal Code of the Russian Federation) may be imprisoned for up to 2 years if he was alone, or up to 6 years, if the crime was committed by a criminal group or using official position).

In addition, for unauthorized occupation of a land plot, liability under criminal law may also arise in relation to special types of crimes related to violations of real estate rules. In particular, if the squatting was accompanied by the registration of an illegal transaction or the deliberate substitution of false data in boundary documents, this will be a separate crime.

It is important to note that these are just some of the possible crimes that land squatting may be part of. Unfortunately, the imagination of criminals is very rich, so such actions may well turn out to be part of many other acts punishable by criminal law.

Resolving problems related to squatting

In the event that you are faced with squatting of your land, the algorithm of actions should be approximately as follows:

1. Contact the invader. Best option here it means filing a claim in writing, preserving evidence that the document was sent (for example, sending it by mail with a list of the attachments). If you're lucky, at this stage you can conclude an agreement with mutual benefit: either officially formalize the transfer of the site, or peacefully agree on compensation.
2. If there is no response to the claim or the violator refuses to compensate for the losses, you should file a complaint with the competent government agency responsible for land supervision. It may be Rosselkhoznadzor (if we are talking about agricultural land), Rosreestr (if the violation is related to the procedure for registering plots) or Rosprirodnadzor (if a special regime of use is provided for the plot).
3. After a decision has been made in an administrative case, you can file a civil lawsuit in court and demand both the return of property and recovery of damages.
4. In some cases, additional land surveying or verification of the data contained in the Unified State Register of Property about the boundaries of the site may be required. This is necessary in order to determine whether your land was squatted or whether you unreasonably consider land that does not really belong to you to be yours.

In the same case, if land owned by the state or municipality is subject to seizure, the problem can be resolved by purchasing it. In many cases this is allowed, but we must remember: not all lands located in state property, can be privatized or bought out. Moreover, in some cases the status of the object directly prohibits this.

In general, if you are faced with the fact of squatting, we recommend contacting a competent specialist in the field of land law. There are quite a lot of interrelated acts in this area, adopted both at the federal, regional or local levels, so the risk of error is high.

Unauthorized buildings are not uncommon in today's Russia. In the same time legal status such objects are defined in the legislation very vaguely. This gives rise to a number of difficulties with turnover unauthorized buildings and registration of ownership of them.

In accordance with paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, unauthorized construction is understood as real estate(residential building, other building, structure, etc.) 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.

Thus, an unauthorized construction has the following characteristics:

The land plot on which the building was created was not allocated for its construction in the manner prescribed by law;

The necessary permits for its creation were not obtained;

The unauthorized structure was created in significant violation of town planning and building codes and regulations;

As a result of the construction of this building, the rights and interests protected by law of other persons are violated or a threat to the life and health of citizens arises.

In this case, the presence of one of the listed signs is sufficient for the building to acquire the status of unauthorized construction.

The main legal consequence of unauthorized construction is that the person who carried it out does not acquire ownership rights to it. It is only the owner of the materials used during construction. An unauthorized construction is not considered real estate and is not subject to state registration. Transactions aimed at disposing of it are void as illegal (Article 168 of the Civil Code of the Russian Federation).

In its legal essence, unauthorized construction is a civil offense, because, as the legislator emphasizes in paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, the perpetrator of this act ignores the requirements of the law and other legal acts either during land allotment (builds on a site not intended for these purposes), or during preparation for construction (does not obtain the necessary permits), or during the construction process itself (does not adhere to building and urban planning norms and rules).

However, Article 222 is placed in Sec. 14 of the Civil Code of the Russian Federation “Acquisition of property rights”, in which, strictly speaking, we should be talking about exclusively lawful activities, since it serves as the basis for the acquisition of such a “strong” property right as ownership. Perhaps the legislator considers unauthorized construction as one of the grounds for the emergence of property rights? Of course, this assumption is erroneous: such a basis should be exclusively lawful activity aimed at creating new things (including real estate), and its civil consequence, as emphasized in paragraph 1 of Art. 218 of the Civil Code of the Russian Federation, becomes the acquisition of ownership of a new thing from the person who created it. Unauthorized construction is an illegal action, and the law is designed to provide for adequate civil consequences. These are formulated in paragraph 2 of Art. 222 of the Code: an unauthorized construction is subject to demolition by the person who carried it out or at his expense.

Currently, the news about the demolition of houses in one of the villages of the Moscow region has sounded like a bolt from the blue. The scandal erupted due to the fact that in the 50s. XX century on the territory of the Moskvoretsky park gardening partnership small plots of land were allocated for “collective apple orchards” for gardening purposes without the right to build houses on this land. However, this right was violated: the territory was built up, and already in the 70s. The first orders to demolish buildings were issued. It should be noted that the village that formed on this site was founded in accordance with the Decree of the USSR Council of Ministers of 1955 “On further development gardening and viticulture of workers and employees." According to the department of Rosprirodnadzor, the village occupies 5.53 hectares of urban land owned by the State Public Enterprise "PIP Moskvoretsky" and 29.64 hectares of federal land, which is in constant perpetual use of the Federal State Unitary Enterprise "Moscow Canal". the scandal surrounding the village broke out already in 2006. Then Rosprirodnadzor initiated an audit of the legality of 400 erected buildings, and since then legal proceedings between the residents of the village and the authorities have continued.

To date, the Moscow prosecutor's office has filed lawsuits in court regarding unauthorized construction in the Rechnik gardening partnership. The Kuntsevsky District Court ordered the demolition of illegal buildings. And the whole point is that in 1998, by Decree of the Moscow Government of December 29, 1998 N 1012 “On project proposals for establishing the boundaries of specially protected natural areas: the Moskvoretsky natural-historical park, the Ostankino natural-historical park and complex reserve "Petrovsko-Razumovskoye" a specially protected natural territory (SPNA) park "Moskvoretsky" was organized, which included these lands. However, since 1998, the re-registration of land legal relations has not yet occurred. And what to do in this situation ?Many houses were built before 1998. And it cannot be that an entire village could be built without the approval of the current authorities. Now a situation is developing in which the residents are hostages current laws, in this case, turned in favor of officials rather than citizens.

As noted above, the legislation quite strictly defines the legal consequences of unauthorized construction. Thus, in accordance with the Civil Code of the Russian Federation, an unauthorized building is subject to demolition by the person who carried it out or at his expense. Despite the current situation, in practice there remain quite rare cases when the court obliges the person who carried out the unauthorized construction to demolish it. Often, a court, refusing to satisfy a claim for recognition of property rights, does not impose an obligation on the plaintiffs to demolish the building. In addition, when deciding the issue of demolition of an unauthorized building, the court must establish that the person to whom this demand is made carried out the construction. Here, serious complications await the plaintiffs; they are maximum when no projects or plans have been agreed upon at all, no applications for construction permits have been submitted, etc. If no one formalized anything, evidence can only confirm the construction actions themselves. However, as a rule, such opportunities are absent for various reasons - for example, because construction is completed before the plaintiff acquires the land where the building is erected. Another difficulty in the obligation to demolish an unauthorized building is the fact of its transfer to another person, i.e. when the defendant states: “I didn’t build it, I already got this from the one who built it.” Here, obvious difficulties arise with the content of the law, because according to Article 222 of the Civil Code of the Russian Federation, it is the one who erected it and who is guilty of violating the law who must demolish an unauthorized building.

Taking this into account, the following provision should be included in Article 222 of the Civil Code of the Russian Federation: the fact of exploitation of an unauthorized structure assumes that the person using the structure erected it himself until the contrary is proven. In addition, it is necessary to include a rule stating that a demand for demolition can be presented to a person who operates a structure but did not build it, indicating at the same time that he has the right of recourse to the one from whom he received the unauthorized construction.

Meanwhile from general rule on civil penalties for self-construction there is an exception formulated in paragraph 3 of Art. 222 of the Civil Code of the Russian Federation. Its essence lies in the possibility in court to obtain the coveted right of ownership of real estate created in violation of established procedures and rules: “The right of ownership of an unauthorized construction can be recognized by the court for a person who has carried out construction on a land plot that does not belong to him, provided that this the plot will be provided to this person in accordance with the established procedure for the erected building.” Such a civil law consequence cannot be called anything other than unexpected. However, it is installed and in effect. Moreover, this exception has quietly become the rule.

The current practice of considering cases on recognition of property rights varies radically. Often, owners of garages, extensions and summer verandas easily obtain recognition of ownership of these properties in court, even in the absence of documents for the land, because some judges consider it a minor offense to build an extension measuring 2 x 3 m on a plot of land not allocated for these goals. In the Oryol region, there are also frequent cases of recognition of ownership rights to unauthorized construction of real estate. Thus, the Factory Court of Orel satisfied the demands of gr. M. on recognition of the ownership right to a cold extension to the house, despite the fact that the town planning conclusion contained a conclusion that part of the cold extension was located outside the zone of permissible placement of individual objects housing construction. However, assessing all the evidence in the case together, the court came to the conclusion that the identified deviations from urban planning and construction norms and rules are not significant, since all other conclusions of the competent authorities do not indicate violations of the rights and legitimate interests of third parties. In addition, the court found: despite the fact that during construction there was a deviation from the original project, the significance of such deviation is insignificant and, in general, the constructed property corresponds to the intended purpose of the land. How Article 222 of the Civil Code of the Russian Federation, which clearly provides for the criteria for the possibility of recognizing ownership of an unauthorized construction, is interpreted in this case remains unclear. This position of the courts is, to say the least, strange, since in essence it allows offenders to avoid established civil liability. In accordance with civil law A circumstance that, in any case, excludes the recognition of ownership of an unauthorized structure is a situation in which the preservation of the structure violates the rights and legitimate interests of other persons or creates a threat to the life and health of citizens. If no such obstacles are found, there are two options for recognizing ownership.

The first of them is recognition of the ownership rights of the person who carried out the construction (in this case, it is necessary to provide a land plot for the constructed object). In this case, one should keep in mind the explanations set out in paragraph 34 of the joint Resolution of the Plenum Supreme Court RF, Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation”, according to which when considering the requirement for recognition of ownership of real estate in accordance with Article 222 of the Civil Code Russian Federation courts are recommended to request from the plaintiff evidence confirming the provision of the land plot on which the unauthorized construction is located. In paragraph 2 of the Review of the Supreme Court of the Russian Federation, in connection with this recommendation, it is stated that clarification of this issue is possible not only at the stage of preparing the case, but also during the trial before a decision is made.

The second option for recognizing the right of ownership of an unauthorized construction project is for the person who owns, has lifelong inheritable possession, and whose permanent (perpetual) use is the land plot where the construction was carried out (in this case, the court determines the amount of compensation that the recognized owner must pay to the person who carried out the construction unauthorized construction).

Let us examine the judicial procedure for making a decision on recognition of ownership of an unauthorized construction in more detail. In accordance with the Review of judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2005 (in civil cases) (approved by the Resolutions of the Presidium of the Supreme Court of the Russian Federation dated May 4, 11 and 18, 2005), since when recognizing the right of ownership of an unauthorized construction, we are talking on recognition of the right of ownership of property that has a monetary value, then these disputes are of a property nature and are subject to consideration by the courts in the manner of claim proceedings. In accordance with Article 22 of the Code of Civil Procedure of the Russian Federation, courts consider and resolve claims involving citizens, organizations, state authorities, local governments for the protection of violated or disputed rights, freedoms and legitimate interests, in disputes arising from civil, family, labor, housing , land, environmental and other legal relations. In accordance with Article 23 of the Code of Civil Procedure of the Russian Federation, the magistrate court, as a court of first instance, considers cases on property disputes, with the exception of cases of inheritance of property and cases arising from relations on the creation and use of the results of intellectual activity, with the cost of the claim not exceeding one hundred thousand rubles. Otherwise, by virtue of Article 24 of the Code of Civil Procedure of the Russian Federation, civil cases within the jurisdiction of the courts are considered by the district court as a court of first instance. Fundamental in making a decision on recognizing ownership of an unauthorized construction is the question of ownership of the land plot. According to the Civil Code of the Russian Federation, a land plot can be provided to the right holder on the right of ownership, on the right of lifelong inheritable possession or the right of permanent perpetual use.

The Land Code of the Russian Federation provides for the rights of the following groups of persons to use land plots:

In accordance with Article 40 of the Land Code of the Russian Federation, the owner of a land plot has (along with other rights) the right to erect residential, industrial, cultural and other buildings, structures, structures in accordance with the intended purpose of the land plot and its permitted use in compliance with the requirements town planning regulations, construction, environmental, sanitary and hygienic, fire safety and other rules and regulations;

According to Article 41 of the Land Code of the Russian Federation, land users, landowners and tenants of land plots can also exercise the rights of land plot owners specified earlier.

That is, in accordance with the specified provisions of the Land Code, owners, land users, landowners and tenants of land plots have the right to erect buildings, structures, structures in accordance with the intended purpose of the land plot and its permitted use in compliance with the requirements of town planning regulations, construction, environmental, sanitary and hygienic, fire safety and other rules and regulations.

Thus, a mechanism for regulating civil legal relations is legislatively established, based both on the legal consolidation of the right of ownership of land and the recognition, along with this right, of the existence of other real rights to land: the right of lifelong inheritable ownership of a land plot and the right of permanent (perpetual) use of a land plot ( Article 216 of the Civil Code of the Russian Federation).

In accordance with paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, an interested person has the right to construct real estate only on a land plot allocated for these purposes in the manner established by law and other legal acts, so that it does not receive unauthorized status. In paragraph 2 of the Review of judicial practice of the Second Arbitration Court of Appeal on resolving disputes related to the application of Article 222 of the Civil Code of the Russian Federation, approved at a meeting of the presidium of the Second Arbitration Court of Appeal on December 25, 2007, it is stated that a mandatory condition for recognizing the right of ownership of an unauthorized construction is the provision to the person who carried out to her person a plot of land in the prescribed manner for unauthorized construction. Often, a claim for recognition of ownership rights is filed by the tenant of the land plot on which the building is erected. When determining whether the established procedure for the provision of land has been followed, it is necessary to clarify the intended purpose of the land plot provided for lease. At the same time, judicial practice reasonably proceeds from the fact that if a land plot is leased for the construction of temporary buildings or from easily erected structures, then there are no grounds for recognizing ownership of the actually erected capital type structure. The owner of a land plot must clearly express his will to lease a land plot for the construction of permanent buildings. Therefore, the extension of a previously concluded lease agreement, according to which the use of the land plot for non-stationary type buildings was provided, for a new period for the use of erected capital type buildings cannot be considered as the owner’s consent to change the intended purpose of the land plot transferred under the lease agreement. Similarly, the administration’s resolution on approval of the act of acceptance of a real estate property for operation cannot serve as a basis for concluding that it is ready to provide a plot of land for unauthorized construction.

In addition, in accordance with Article 222 of the Civil Code of the Russian Federation, ownership of an unauthorized construction cannot be recognized by the specified person if the preservation of the structure violates the rights and legally protected interests of other persons or creates a threat to the life and health of citizens. Thus, the second condition for recognizing the right of ownership of an unauthorized construction is compliance with the rights and legally protected interests of other persons or the absence of a threat to the life and health of citizens. In claims for recognition of ownership of an unauthorized construction, the court must be presented with evidence confirming compliance with environmental protection requirements, development rules, environmental, sanitary and hygienic, fire safety, construction and other mandatory norms and regulations, the implementation of which is required for the construction and operation of a specific building. the buildings. Recognition of ownership of a building is not unconditional. The interested party must prove that the relevant rights and interests of third parties have not been violated, and the construction itself does not pose a threat to their life and health. As such, supporting permits from sanitary inspection, fire, architectural or construction control and other competent authorities.

Thus, by Resolution of the Federal Arbitration Court of the West Siberian District dated May 27, 2009 N F04-3062/2009 (7275-A75-45), the court, refusing to satisfy the request for recognition of ownership of an unauthorized building, proceeded from the fact that this structure does not comply with sanitary and epidemiological norms and rules and poses a threat to the life and health of citizens.

In law enforcement practice, problems also arise in distinguishing the concepts of a newly erected structure and reconstruction of an already constructed building. It is possible to recognize ownership of an unauthorized reconstructed object according to the rules of Article 222 of the Civil Code of the Russian Federation if, as a result of reconstruction, a new object has appeared that is significantly different from the object before the start of reconstruction. The building must have a certain independence in relation to existing objects. The Federal Antimonopoly Service of the Central District, in Resolution No. A62-2432/2007 of April 25, 2008, came to the conclusion that, by refusing to satisfy the plaintiff’s claims for the demolition of the building as an unauthorized construction, the court rightfully indicated that in this case we are talking about demolition not again erected building, and the building in which reconstruction was carried out, i.e. the object parameters (height, number of floors, area) and the quality of engineering and technical support have changed. Consequently, such an object cannot be recognized as an unauthorized construction.

In accordance with the law, ownership of an unauthorized construction can only be recognized by a court. In this regard, it is not uncommon for interested parties to apply to the court to invalidate the ownership of an object that is supposed to be an unauthorized construction that has already been registered by the relevant department of the Federal Registration Service. Although state registration rights to real estate and transactions with it - a legal act in which the state recognizes and confirms, among other things, the emergence of rights to real estate, is the only evidence of the existence of a registered right, the court can declare the registered ownership of disputed objects invalid.

Thus, the provisions of the law relating to unauthorized constructions, as well as arbitrage practice to a certain extent aimed at streamlining construction activities, stimulating those involved in construction to timely and in the proper manner draw up Required documents related to the construction of a particular property. In addition, executive authorities are given the opportunity to suppress identified violations of legal requirements related to the construction of real estate, and today they exercise this right in full.