Unauthorized buildings judicial practice degree of readiness 18. Recognition of rights and legalization of unauthorized buildings. Judicial practice, expert advice, step-by-step instructions

The Supreme Court of the Russian Federation published the second review of judicial practice this year. It includes the most significant decisions in criminal, civil, administrative and arbitration cases. Now the courts must be guided by the positions expressed in these decisions. The RF Armed Forces assigned a significant role to disputes related to real estate and construction, in particular, issues of unauthorized construction, the procedure and conditions for its legalization, as well as disputes arising from obligations, social and labor relations. Experts in the theme of the issue analyzed the positions of the highest instance.
Questions about the status of an unauthorized building in civil circulation, the procedure and conditions for its legalization, as well as the grounds for the court's decision to demolish it have been repeatedly considered and explained by the higher courts. And in the latest Review of the Supreme Court's jurisprudence Russian Federation from 06.07.2016 N 2, these issues were not ignored.

For new consideration

As follows from the materials of the court case, the co-owners of the shares in the ownership of the three-story residential building erected three additional floors, as well as ground floor on a plot of land belonging to them on the basis of common shared ownership, and then they went to court with a claim against one of the co-owners, who avoided concluding an agreement on the termination of common shared ownership of this house, with the requirement to allocate real shares in the form of isolated parts of the house (apartments and non-residential premises) to each of the co-owners.
The courts of first and appellate instances, having considered this dispute, satisfied the claims of the plaintiffs, recognizing that each of them had ownership of the premises in this house. However, the administration municipality disagreed with this decision and applied to the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation with a cassation appeal, as a result of which the case was sent for a new consideration to the court of appeal.
So what led the Supreme Court of the Russian Federation to the conclusion that the acts adopted by the lower instances in this case were unreasonable and what circumstances must be proved to the plaintiffs in order to resolve the issue of the possibility of recognizing the ownership of the premises in the six-story building erected by them?

Demolition or legalization?

First of all, it should be noted that the transformations of the three-storey residential building made by the plaintiffs were recognized by the courts as reconstruction, as a result of which an unauthorized construction appeared, which is consistent with the established last years judicial practice.
So, in paragraph 28 of the Resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of 04/29/2010 N 10/22 it was indicated that the provisions of Art. 222 of the Civil Code of the Russian Federation apply to unauthorized reconstruction real estate, which resulted in a new object. At the same time, in paragraph 29 of this Resolution it was noted that the provisions of Art. 222 of the Civil Code of the Russian Federation does not apply to redevelopment, reorganization (re-equipment) of real estate, as a result of which a new real estate object has not been created.
According to the Review of Judicial Practice of the Supreme Court of the Russian Federation dated 03.19.2014, the courts have difficulty distinguishing between the concepts of reconstruction and redevelopment (redevelopment) of living quarters. In the Definition of 06/23/2015 N 24-KG15-6, the Supreme Court of the Russian Federation clarified that the creation of a new object is a change in the characteristics that individualize the real estate object (height, area, number of storeys, etc.), while the redevelopment of a dwelling is a change in it. configurations, such as moving and dismantling partitions, installing additional kitchens and bathrooms, expanding living space with auxiliary rooms, etc.
It clearly follows from the current judicial practice that the presence of any of the following signs is the basis for the recognition of a building, structure or other structure as an unauthorized building, namely:
1) the construction of immovable property on a land plot not allotted for these purposes, in the manner prescribed by law or other legal acts. In the case under consideration in this article, the courts did not assess the fact that the land plot on which the controversial structure was erected has a designated purpose for an individual housing construction, and as a result of the reconstruction carried out by the co-owner of the three-story building, a six-story apartment house.
As previously stated in the Review of Judicial Practice of the Supreme Court of the Russian Federation dated 03.19.2014, an unauthorized change in the permitted use land plot not allowed. In cases where the use of a land plot occupied by an unauthorized construction does not correspond to the permitted use, and the competent authority has refused to change it, the court cannot satisfy the requirement to recognize the ownership of the unauthorized construction erected in violation of the intended purpose of the land plot;
2) the construction of immovable property without obtaining the necessary permits for this. As follows from the Definition of the Armed Forces of the Russian Federation of 06/23/2015 N 24-KG15-6, the preservation of an unauthorizedly reconstructed real estate object and the recognition of ownership of it are possible if the only signs of an unauthorized construction of an unauthorizedly reconstructed object are the absence of a building permit and (or) the absence of an act of putting the object into operation, to the receipt of which the person who carried out the unauthorized reconstruction took measures. At the same time, the preservation of the object in a reconstructed state should not violate the rights and interests of other persons protected by law and pose a threat to the life and health of citizens;
3) the construction of immovable property with a significant violation of urban planning and building codes and regulations. The ambiguity of the concept of the materiality of the violation of the above-mentioned rules and regulations creates additional difficulties for persons wishing to legalize an unauthorized structure, and for the courts when deciding whether to classify a particular violation as significant, especially since the issues of the materiality of violations of the rules and regulations made during the construction of an unauthorized buildings, cannot be put on the permission of an expert, as indicated in the Review of the judicial practice of the Supreme Court of the Russian Federation of 03/19/2014.
The sign of the materiality of a violation of norms and rules is established by the courts on the basis of a set of evidence in relation to the specifics of a particular case, while, among other things, compliance with the requirements of sanitary, fire, environmental legislation is assessed depending on the purpose and location of the facility. The courts include, for example, such irreparable violations that may lead to the destruction of a building, causing harm to life, human health, damage or destruction of the property of other persons, to significant violations.
Thus, a person wishing to acquire ownership of an unauthorized building must convince the court that this building does not threaten the life and health of citizens; does not violate the rights of third parties, and the person himself attempted to legalize the unauthorized structure in the form in which it was erected.
As the Supreme Court of the Russian Federation noted in the Review of Judicial Practice of 06.07.2016, the above circumstances were not established by the courts of lower instances, which was the reason for the return of the case for a new trial.

How to get your share

The owners of the three-story residential building, having applied with the requirement to allocate to each individual room in the structure they reconstructed, as well as the courts of first and appeal instances, which satisfied this requirement, did not take into account the fact that the unauthorized building is not an object of civil turnover and it cannot be done with it. or legally significant actions, civil transactions before its introduction into civil circulation.
A similar position was expressed by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 2404/10 of June 15, 2010, which states that the sale by Ralbek International LTD of an unauthorized construction of Flomis Trading Limited does not entail the acquisition of ownership of this object, regardless of whether the state registration of the right was made or not, since the unauthorized structure could not become an object of civil circulation.
In the Review of Judicial Practice of 06/07/2016, the Supreme Court of the Russian Federation emphasized that only the owner of this property can be the defendant in the claim for the allocation of a share in the property, while the person who carried out the unauthorized construction, by virtue of paragraph 2 of Art. 222 of the Civil Code of the Russian Federation does not acquire ownership of it, does not have the right to dispose of the building and make any transactions until such a right is recognized by the court. Neither can claims be made against him as an owner.
As follows from judicial practice, the plaintiff, who has filed a demand for the allocation of a share in an unauthorized building, must provide the court with evidence of the possibility of recognizing ownership of the corresponding unauthorized building, which will make it possible to establish that:
- unauthorized construction does not threaten the life and health of citizens and does not violate the rights of third parties;
- an unauthorized building was erected on a land plot in respect of which the plaintiff has rights allowing the construction of such an object;
- the building complies with the parameters established by the documentation for the planning of the territory, the rules of land use and development, or the mandatory requirements for the parameters of the building contained in other documents;
- the plaintiff attempted to legalize the unauthorized structure.
The absence of a threat to the life and health of citizens can be proved by a positive conclusion state expertise project documentation(clause 2 of the Review of the Supreme Court of the Russian Federation dated 06.07.2016), in accordance with which the construction or reconstruction of the facility was carried out. At the same time, the evidence of attempts to legalize unauthorized construction in accordance with the RF Armed Forces Definition of 06/23/2015 N 24-KG15-6 are the measures taken by the person to obtain a construction permit and (or) the act of putting the facility into operation.
Only after the court establishes the compliance of the unauthorized building with the conditions listed above for recognizing the ownership of it, the court can consider the issue of allocating a share in such a building and recognizing the ownership of this share.

Today, the number of people who own land plots, have country houses, sheds, baths, change houses and other buildings. They have problems with the legalization and registration of these buildings, which were built without permission, because after the ownership of the country buildings is registered, their owners are able to fully dispose of the property, that is, donate, sell or mortgage at any time.

The foundations, concepts and signs of the legal regime for unauthorized construction are spelled out in the Civil Code of the Russian Federation. The norms of the Civil Code of Russia, which relate to unauthorized buildings, did not become fundamentally new for the legislation of the fatherland, since even in the days of the USSR, construction in an unauthorized manner flourished. In the Decree of the Council of People's Commissars of the RSFSR dated May 22, 1940 No. 390 "On measures to combat unauthorized construction in cities, workers, resort and summer cottages ”, the first legal aspects of unauthorized construction were mentioned. Later, the provisions for unauthorized construction were enshrined in the Civil Code of the RSFSR in 1964. Later, the Plenum of the Supreme Court of the RSFSR emphasized the negative nature of unauthorized construction, and it was noted that such offenses affect both the interests of citizens and the state as a whole, as they impede the preservation of the surrounding nature, rational use of land, development and improvement of settlements, and also represents a danger in sanitary and fire terms. This was indicated in article 109 of the Civil Code of the RSFSR of March 19, 1975 “on the gratuitous seizure of a house without authorization” of the Resolution of the Plenum of the Supreme Court of the RSFSR.

Clause 1 of Article 222 of the Civil Code of Russia states that a residential house, structure, other structures or other immovable property is an unauthorized construction if it is built on a land plot that is not allocated for these purposes in the manner prescribed by law and other legal acts. Also, if these buildings were created without obtaining the necessary permits or with violations of building and town planning rules and regulations.

According to the above legal definitions, buildings are recognized as erected unauthorizedly if at least one of the following signs (conditions) is present:

• - in the case of the construction of a building on a land plot that is not allocated for such purposes;
• - in the absence of the necessary permission for reconstruction or construction;
• - in case of violation of specially established rules and regulations during the construction of the facility;

At the same time, when the constructed object is recognized as an unauthorized construction, the consequences are quite significant:

1) the right of ownership of the unauthorized construction by the person who carried out it is not acquired;

2) transactions for the disposal of such buildings are null and void;

3) the demolition of an unauthorized object will be carried out by the person who completed the construction or at his expense;

4) to bring to administrative responsibility under 9.5 article of the Code of Administrative Offenses RF "Violation of the established procedure for construction, reconstruction, overhaul of a capital construction object, its commissioning" the basis may be the recognition of the object as an unauthorized construction. This article provides for an administrative suspension of activities for up to 90 days, as well as a fine of up to 1 million rubles.

At the moment, such a definition as "unauthorized construction" is viewed as negative. Mainly, this is due to the fact that in the case of the construction of a building in the presence of signs of arbitrariness, which are established in Article 222 of the Civil Code of the Russian Federation, the person who carried out the construction of the unauthorized building cannot have ownership of this object. Such a person does not have the right to dispose of the building, since he does not acquire the right to it.

However, the state has provided for the possibility of the emergence of ownership of unauthorizedly erected buildings, subject to the legalization of such buildings. So, within the framework of the "dacha amnesty" program, according to the Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation on the Issue of Simplified Registration of Citizens' Rights to Certain Real Estate Objects" dated June 30, 2006 No. 93-FZ, in 2006 year, amendments were made to the Civil Code of Russia and the Federal Law of July 21, 1997 No. 122-FZ "On state registration rights to real estate and transactions with it ”, which significantly simplified the procedure for registering citizens' rights for a number of real estate objects.

The ownership of buildings and residential buildings, garages and other outbuildings, from September 1 of the same year, became possible to register, on the basis of documents of title to the relevant land plot and documents that confirm the fact of the construction of objects.

The registering authority can register the ownership of a land plot by the state on the basis of the following documents:

• - an act on the provision of a land plot, which was issued by local self-government or state authorities within the competence of the body, as well as in the manner prescribed by the law in force at the time of its publication and at the place of publication of this act;
• - a certificate (act) on the right of ownership to a land plot, which was issued in accordance with the procedure established by law, which was valid at the time of issuance of such an act and at the place of its publication, by an authorized government body;
• - an extract from the household book stating that the citizen has the right of ownership to this land plot for maintaining personal subsidiary plots, which is issued by the local government;
• - other documents that certify the citizen's ownership of the land plot;

In addition to the above documents, for the state registration of a citizen's ownership of a land plot, the following documents may serve as the basis:

• - the above documents establishing the right of a person - any previous owner of a structure, building, structure that is located on the land plot;
• - a certificate of inheritance or any other documents establishing the right of a person to own buildings, structures, structures that are located on this land plot.

However, not every document on a land plot can be the basis for the state registration of ownership of a land plot. Such a document must certainly include data that the corresponding land plot located at a specific address has been given to the possession of a specific person.

In addition to the above documents, which may be the basis for state registration of a citizen's ownership of a land plot, cadastral passport this land plot must be submitted to the registering authority.

After the amendments were made to the Civil Code of the Russian Federation and the Law “On State Registration of Rights to Real Estate and Transactions Therewith,” the procedure for registering property rights to land plots by the state has been significantly simplified. Individuals, thanks to the amendments made to the legislation, which have the rights of life-long inherited possession, permanent (indefinite) use, property, have acquired the opportunity to legalize all the buildings they have erected in an unauthorized manner. Previously, before the introduction of changes to the laws, individuals and legal entities had to go to court to legitimize unauthorized buildings, while the most difficult issue arising in court was the question of the developer's rights to the land plot, but now the need to go to court has disappeared. Clause 3 of Article 222 of the Civil Code of the Russian Federation stipulates that the ownership of an unauthorized object is established for the person who built it on a land plot that does not belong to him, subject to the provision of this site to this person in accordance with the established procedure for the erected building. ... The legalization of the object was largely determined by the prospect of a fundamental solution to the issue of providing a land plot. But, the question arises: what is the order established by law?

According to the Land Code of Russia, the procedure for providing land plots for construction lies the fact that the construction of a real estate object is only planned, its location, as well as the possibility of erecting this building, have been agreed with interested persons and municipal, state structures. However, it was quite clear that, given the existence of an unauthorized object, this procedure was at least illogical to apply. In addition, a contradiction arose in subparagraph 1 of paragraph 1 of Article 1 of the Land Code of Russia, which establishes the principle of primacy of land in relation to other real estate, unless otherwise provided by law.

Using, by analogy, the provisions of Article 36 of the Land Code of the Russian Federation and Article 271 of the Civil Code of Russia, which establish the right of the owner of a building to use and own a land plot, within the boundaries occupied by the object, and in the amount that is necessary for the operation of the object, due to the legal regime of construction unauthorized, was also dubious.

Then, there was no special, specially established order at the federal level in conjunction with the provision of paragraph 3 of Article 222 of the Civil Code of Russia. In practice, due to the lack of a precisely regulated procedure for the provision of land plots under unauthorized buildings, it seriously hampered the implementation of the possibilities for recognizing the developer's ownership of the unauthorizedly constructed object.

There was no clarity on the timing, it was not precisely determined when exactly the plot of land is provided to the developer for the erected building: before the court makes a decision on the recognition of ownership (how necessary condition its adoption in favor of the developer) or after a decision is made, with the presentation of evidence to the court about the willingness of the authorized person to provide such a plot of land (for example, a letter from the local administration about the readiness to provide the plot, if the court recognizes the ownership of the building).

The first paragraph of paragraph 3 of Article 222 of the Civil Code of the Russian Federation, from September 1, 2006, has lost its force and the question of the timing of when exactly a plot of land for an unauthorized building should be provided has been resolved. Now, only the person in whose ownership, in perpetual use, life-long inherited possession is the plot of land where the unauthorized object is located, is recognized as having the right to ownership of this unauthorized building. At the same time, the exclusion of this paragraph from paragraph 3 of Article 222 of the Civil Code of Russia created the conditions for another question to arise about the possibility of applying the rule of the excluded paragraph after September 1, 2006, in the case when the grounds for classifying the building as unauthorized arose before that date. The reason was that according to paragraph 1 of Article 4 of the Civil Code of the Russian Federation, acts civil law do not have retroactive effect and apply only to relations that arose after their entry into force, and the effect of the law applies to relations that arose before the entry of this law into force, only in cases where it is directly provided for by law. The law “On Amendments to Certain Legislative Acts of the Russian Federation on the Issue of Simplified Registration of Citizens' Rights to Certain Real Estate Objects” dated June 30, 2006 No. 93-FZ did not apply to those relations that arose before this law was enacted. However, this issue has not yet been resolved and remains open.

Today, it should be noted that a person who rented a plot of land and carried out the unauthorized construction of an object on it, without having purchased this plot from the owner, cannot formally claim the recognition of ownership. Recognition of ownership of an unauthorizedly erected object for organizations, as before, is possible only in court.

On the basis of the above, it is advisable to formulate general conditions under which it is possible to satisfy a claim for the recognition of ownership of an unauthorized building. The presence in the legislation of the right to legalize unauthorized construction, as well as the fact of unauthorized construction of objects, is certainly not sufficient grounds to satisfy the relevant claim. Elimination of signs that characterize a building as unauthorized, in addition to a building permit, is a guarantee of a "positive" judgment.

So, according to Article 222 of the Civil Code of Russia, the main conditions for recognizing the ownership of an unauthorized building are:

• - the plaintiff must have real rights (ownership and perpetual use) to the relevant plot of land, which are provided for in paragraph 3 of Article 222 of the Civil Code of the Russian Federation;
• - the functional purpose of the building must correspond to the intended purpose, as well as the permitted use of this plot of land;
• - while preserving an unauthorized building, the rights and interests of third parties (primarily the owner and users of adjacent land plots), which are protected by law, should not be violated;
• - unauthorized construction must be safe and not pose a threat to the life and health of citizens.

The plaintiff, in accordance with Articles 65 and 66 of the Arbitration Procedure Code of Russia, is obliged to provide evidence of the above conditions when applying to the court.

The documents of title confirm the ownership of the land plot. The rights that arose after the entry into force of the Law on State Registration must be registered in the Unified State Register of Rights to Real Estate and Transactions with It.

The fact that the functional purpose of the unauthorizedly erected object corresponds to the intended purpose, as well as the permitted use of the corresponding plot of land, can be confirmed by urban planning documentation ( general plan settlement, land use and development rules), as well as extracts from the state cadastre of real estate objects.

The fact that the rights and interests of third parties, which are protected by law, have not been violated due to the unauthorized construction of the building, can be confirmed by appropriate letters, as well as statements, and in the case of involving interested parties in the trial, responses to the statement of claim.

The fact that the unauthorized construction is safe and does not pose a threat to the life and health of citizens, and also complies with special rules and regulations, can be confirmed by the presentation by the plaintiff of the positive conclusions of the authorized bodies of state power for fire, sanitary, architectural and construction supervision. Moreover, according to the Resolution of the 17th Arbitration Court of Appeal dated May 26, 2008 No. 17AP-3228/2008-GK in case No. signed by authorized officials. According to the same ruling, due to the fact that the only way to protect the right is the recognition in court of ownership of the unauthorized building, the plaintiff should preferably provide the court with evidence that the developer's actions were aimed at obtaining the necessary approvals and permits for the construction of the disputed object or receipt by the developer from the authorities authorized to issue such documents, an unjustified refusal.

• The bankruptcy of a developer is not yet a verdict. How do I get my money back?
• Chargeback is a mechanism for refunding payments by bank cards. It is easy to get a refund for any product or service paid for with a bank card.
• Individual bankruptcy: subtleties, nuances and advice.
• The bank's license was revoked? How to get your money back: instructions for individuals and legal entities.
• What to do after an accident? When and what documents need to be collected?
• The procedure for the division of personal accounts in municipal and privatized apartments.
• What to do in case of bankruptcy of a tour operator or travel agency? Complaint. Lawsuit. Everything about insurance compensation.

Recently, the Supreme Court summarized the practice of disputes related to unauthorized construction. The general points of this document are as follows.

Possible options for registration of an unauthorized building in ownership

If the site is owned by the developer, then the house can be issued in two ways - without a trial or through a court.

Option without trial - in a simplified manner, under the so-called dacha amnesty (Article 25.3 of the Federal Law of July 21, 1997 No. 122-FZ "On state registration of rights to real estate and transactions with it", hereinafter - Law No. 122-FZ). The simplified version applies not only to cases when the house is built on a site intended for a summer cottage economy or gardening (on the territory of a summer cottage or garden partnership, a summer cottage building cooperative), but also when the house is erected on a site intended for individual housing construction or running a personal subsidiary farms (personal plot). Depending on the type of building (for example, a residential building or country house) and the type of permitted use of the site (dacha or housing construction, etc.) there is a difference in some nuances, but in general, the procedure consists in contacting the territorial administration of Rosreestr with certain documents, among which the main one is a document on the ownership of the land plot ... In this case, a building permit is not required.

If the extrajudicial procedure did not give results, that is, when the Rosreestr authority refused to register the right or it was not possible to collect some documents (for example, sometimes a certificate from the dacha cooperative is needed that during the construction there was no exit from the boundaries of the site, but due to some This certificate is not given a conflict), then only the second option remains - the judicial order.

If the house is an object of capital construction, and not some kind of switchboard utility block, that is, it is an object for the construction of which a building permit was required, and it did not fall under the exceptions named in part 17 of Art. 51 Urban Development Code, then the fact of its construction without a permit means that the house is an unauthorized building. It is possible to legalize it, that is, to achieve recognition of the ownership of such a building, through the court (clause 3 of article 222 of the Civil Code of the Russian Federation), and then, on the basis of a court decision, register the ownership in Rosreestr.

Conditions for the legalization of unauthorized construction through the court

There are four conditions for the legalization of unauthorized construction. If at least one of them is not observed, then the claim for recognition of ownership of the unauthorized building will be refused. The first three conditions are named in paragraph 26 of the resolution of the Plenums The Supreme Court and the Supreme Arbitration Court dated April 29, 2010 No. 10/22 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights, as well as in the Review of judicial practice in cases related to unauthorized construction approved by the Supreme Court on March 19, 2014 ...

First, the court checks whether there have been significant violations of town planning and building codes and regulations and whether the disputed building poses a threat to the life and health of citizens. That is, in order to legalize a building, it is required to prove that it was built in compliance with all the rules and its only problem is the lack of a formal building permit. But in order to confirm this, it is required either to collect opinions from all competent authorities, or to conduct a comprehensive forensic and technical examination in the framework of the trial (paragraph 26 of Resolution No. 10/22, review of 03/19/14).

The second condition is that the plaintiff must, before going to court, take possible measures to formalize the building out of court (try to obtain a building permit, carry out the necessary approvals or issue a dacha amnesty). If there were no such attempts, then the claim will be denied. That is, it is assumed that the judicial legalization of an unauthorized building is the last measure after all possible administrative measures have been exhausted (the authorized bodies refused to legalize the building).

The third condition is that the controversial building must not violate the rights and legally protected interests of third parties (primarily neighbors).

The fourth condition is that the construction of a building should not contradict the intended purpose of the land plot or the rules of urban planning zoning established for this territory.

In practice, people have conflicts with their neighbors, who willfully erect any structures on their land plots that create a fire hazard, shade the ingress of sunlight, violate the boundaries of the land plot, etc. What can be done in such situations?

In such cases, a claim should be filed for the recognition of the erected structure as an unauthorized construction and oblige the neighbors to demolish it. Such a claim can be filed by anyone who believes that his rights and legitimate interests violate the preservation of the unauthorized building (paragraph 22 of Decree No. 10/22).

In addition to the issue of compliance with urban planning and building codes and regulations, the courts are trying to find out whether the requirements of sanitary, fire, environmental legislation, etc., were taken into account in the construction of a controversial building (review of 03.19.14). Therefore, you need to prove that the construction of a bathhouse violates fire safety or other norms or, for other reasons, creates a danger to your life and health. Hence, it is better to start by inviting an inspector from the state fire service to establish and record the fact of violations. By the way, when you go to court, you can immediately ask him to prohibit the implementation of construction works(review from 03/19/14). Then there is a chance that the construction site will be frozen even before the outcome of the litigation.

Is it possible to legitimize an unauthorized building erected on someone else's land plot for acquisitive prescription

If a residential building was once erected on a part of a neighboring empty land plot without the necessary permits, then the issue of legalizing the construction can only be resolved through a court.

If the owners of the neighboring land plot did not show up, they do not make any claims about the erected building, i.e. this site is practically abandoned, then it will not work to legalize the house, since by virtue of the provisions of clause 3 of article 222 of the Civil Code of the Russian Federation, only an unauthorized construction can be legalized, which is erected on a land plot belonging to the developer on the right of ownership, inherited life or permanent (indefinite) use. That is, one of the prerequisites for the legalization of unauthorized construction is not met. Although in the Civil Code there is such a basis for the recognition of ownership as acquisitive prescription, in this case, a long period of actual ownership of the house will not help.

According to acquisitive prescription, recognition of ownership of real estate can only be achieved in cases where the person who built the structure in good faith, openly and continuously owned for 15 years as his own. But, according to the Supreme Court, acquisitive prescription does not apply to unauthorized buildings located on an unlawfully occupied land plot. Moreover, unauthorized construction cannot be legalized through acquisitive prescription, even if this building was erected on its own site. It is believed that in this case the prerequisite for the good faith of ownership is not met (starting a construction project without permission, the developer knows that he is acting illegally).

Conflict with neighbors over unauthorized construction

Often, citizens erect auxiliary buildings on their land plots without a permit. A neighbor with whom he has a long-standing conflict learns about this, and he begins to threaten, which will force him to demolish the building through court.

In such cases, the neighbor will be able to achieve the demolition of the unauthorized building only if he proves that this building in any way substantially violates his rights. The fact of unauthorized erection of a building in itself is not yet an unconditional basis for its demolition. Even if it is established that during the construction of the garage there were violations of town planning and building codes and regulations, this will not automatically mean the need to demolish it. The basis for satisfying the demand for the demolition of an unauthorized building is only the materiality and inevitability of the violations committed (review of 03/19/14).

The courts include, for example, such irreparable violations that may lead to the destruction of a building, causing harm to life, human health, damage or destruction of the property of others, to significant violations of building codes and regulations. In other words, if the unauthorized construction does not create any serious inconvenience to neighbors and others, does not threaten their safety and the safety of neighboring buildings, then the court cannot oblige to demolish it just because it was built without permission.

In addition, the Supreme Court clarified that the courts must take into account Art. 10 of the Civil Code of the Russian Federation, which does not allow the actions of citizens and legal entities carried out solely with the intent to harm another person, or abuse of right in other forms. And if your neighbor tries to file a claim for the demolition of an unauthorized building, without having any objective reasons for this, then this will be precisely an abuse of the right.

How to legalize an apartment in an apartment building purchased from a developer

A very part of citizens buy apartments from the developer apartment building, which has not yet formalized its rights to the land. Later it turns out that the developer was not issued a permit for the construction of a residential building on this land plot; during the construction of an apartment building, urban planning and other norms were violated.

In such a situation, it will not be possible to formalize the ownership of the apartments even through the courts. This situation differs from those when the developer received a building permit, but simply delays the date of putting the house into operation (in this case, it is indeed possible to issue apartments through the court).

As the Supreme Court explained (review dated 03.19.14), the current legislation does not provide for the possibility of recognizing ownership of a part of an unauthorized construction object. In your case, the entire apartment building as a whole is considered an unauthorized building, which means that it is impossible to recognize in court the ownership of individual premises in it (apartments). In addition, the buyer of the apartment does not have the right to bring such a claim also because the land plot under the disputed object does not belong to him, and this is one of the conditions for the legalization of unauthorized construction.

Only the developer himself, in the presence of ownership of the land plot on which he built the house, and subject to other mandatory conditions for the legalization of unauthorized construction, can try to obtain recognition of his ownership of the house through the court. This is possible only on the condition that violations of town planning and building codes and regulations, due to which he was denied a permit for construction and putting a house into operation, are not material and are removable (see review of 03.19.14). Only after the developer formalizes the ownership of the erected house, the persons who bought the apartments from him can try to defend their rights to the apartments.

If the developer is not even going to try to legalize the house or he goes to court for this purpose, but the court will refuse him, then the buyers of the apartments can only demand a refund from the developer.

In such cases, the contract for the sale and purchase of an apartment is initially illegal, since the developer who erected the unauthorized building does not receive ownership of it and cannot dispose of it, therefore, the developer did not have the right to sell apartments in this house at all.

ФЗ dated December 31, 2004 No. 214-ФЗ "On participation in shared construction apartment buildings and other real estate objects ”does not apply to relations arising from unauthorized construction (clause 12 of the Review of the practice of resolving disputes by courts arising in connection with the participation of citizens in the shared construction of apartment buildings and other real estate objects, approved by the Presidium of the Supreme Court on 04.12.13).

From September 1, 2015, the procedure for recognizing ownership of an unauthorized building will become even more complicated due to changes in Article 222 of the Civil Code of the Russian Federation. From that date, the plaintiff will need to prove that they have met two more conditions:

1. The claimant's right to a land plot allows him to erect buildings on it;
2. The building must meet the requirements established in the rules of land use and development. Thus, now the preservation of an unauthorized building is possible in the presence of three prerequisites: 1. the building was erected on a land plot on which the construction of buildings is allowed. 2. at the time of going to court, the building meets the requirements established by the documentation for the planning of the territory, the rules of land use and development, or the mandatory requirements for the parameters of the building, which are available in other documents. 3. preservation of the building does not violate the rights and legitimate interests of others, does not pose a threat to the life and health of people.

From September 1, 2015, amendments to the legislation on unauthorized buildings 1 . New norms clarify the definition of the concept of unauthorized construction - from clause 1 of Art. 222 of the Civil Code of the Russian Federation removed the binding of an unauthorized building to a real estate object. In addition, now in Art. 222 of the Civil Code of the Russian Federation specifies the conditions under which an unauthorized construction can be legalized, and municipalities are given the right to make a decision on the demolition of unauthorized buildings out of court. About specific changes in legislation - in this article.

In accordance with the new edition of clause 1 of Art. 222 of the Civil Code of the Russian Federation, an unauthorized construction is a building, structure or other structure, erected, created on a land plot that was not provided in the prescribed manner, or on a land plot, the permitted use of which does not allow the construction of this object on it, or erected, created without obtaining for this necessary permits or in violation of town planning and building codes and regulations.

First of all, the changes affected the range of objects that can be recognized as unauthorized construction. If the previous version of clause 1 of Art. 222 of the Civil Code of the Russian Federation made it possible to classify objects as a residential building, other structure, structure or other immovable property as unauthorized buildings, then the new edition of this rule no longer emphasizes that unauthorized construction is exclusively immovable property. The new wording should resolve a number of issues that have arisen in judicial practice as a result of linking the concept of "unauthorized construction" to the concept of "immovable property" (in the previous version of clause 1 of article 222 of the Civil Code of the Russian Federation). The fact is that, depending on whether the unauthorizedly erected object had signs of real estate, the method of protecting the violated right also differed.

If the unauthorized building had signs of immovable property, the owner of the land plot had to go to court with a claim to demolish the object under Art. 222 of the Civil Code of the Russian Federation. If the building did not possess such signs, then the owner of the land plot should have gone to court with a negative claim under Art. 304 of the Civil Code of the Russian Federation (clause 29 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated 04/29/2010"On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights", Determination of the RF Armed Forces dated July 21, 2015 No. 304-ES15-7659 in case No. A46-7540 / 2014). As a result, the owner of the land plot was often in a difficult situation, since he could not always unambiguously determine whether the object was classified as real estate or not.

For example, a common case was when an easily erected structure, which is inherently movable property, is passed off as real estate. Often such objects also have a legal justification for their existence as real estate. They are registered in the cadastral register as real estate objects, with regard to them there are records of registered rights in the Unified State Register of Legal Entities and, accordingly, issued certificates of registered ownership (see, for example, the resolution of the Arbitration Court of the Moscow District dated 01.20.2015 No. F05-14330 / 2014 in case No. A40-94349 / 2013-9-923). In accordance with Art. 130 of the Civil Code of the Russian Federation, immovable things include land plots, subsoil plots and everything that is firmly connected with the land, that is, objects, the movement of which is impossible without disproportionate damage to their purpose, including buildings, structures, objects of unfinished construction. If problems with land plots cannot arise, at least due to their natural properties, then with objects created as a result of human activity, not everything is so transparent.

Judicial practice provides answers to some controversial questions. For example, when resolving the issue of recognizing a legally constructed object as an immovable thing, it is necessary to establish that at least the work on the construction of the foundation or similar work has been completed on it (clause 1 of article 130 of the Civil Code of the Russian Federation), and the paving of the land plot is not that meets the characteristics of a structure, is a part of it and cannot be recognized as an independent immovable thing (clause 1 of article 133 of the Civil Code of the Russian Federation) 2. However, even these attempts by the courts to clarify the differences between immovable property and movable property were still not enough so that the owners of land plots did not face the problem of determining the method of protecting the violated right.

By the way, there is a small but significant difference between a claim for the demolition of an unauthorized building and a negative claim. For a negative claim, as well as a claim of the owner who owns a land plot, limitation period does not apply (Article 208 of the Civil Code of the Russian Federation, clause 6 information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 No. 143). At the same time, if the site is not in the possession of the owner, a claim for the demolition of an unauthorized building must be filed within the general limitation period (Articles 196, 200 of the Civil Code of the Russian Federation). Thus, the application of Art. 222 of the Civil Code of the Russian Federation to all claims for the demolition of unauthorized buildings, regardless of whether they are real estate or not, will limit the owners of the land plot in terms of filing the relevant claims.

Signs of unauthorized construction in the new edition of Art. 222 of the Civil Code of the Russian Federation

An unauthorized building is a building, the creation of which was associated with certain vices. Compared with the previous version of paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, the new norm modified these defects and partly made them concrete.

The first sign of an unauthorized building is its creation on a land plot that was not provided in the prescribed manner. From the content of Art. 263 and 264 of the Civil Code of the Russian Federation, it follows that either the owner of such a site can erect buildings on a land plot, or a person who has received the owner's permission, formalized by an appropriate civil law transaction. Thus, the owner of an unauthorized building can eliminate this defect: for this it is enough to conclude an appropriate agreement with the owner of the land plot.

The second sign of unauthorized construction is its creation on a land plot, the permitted use of which does not allow the construction of this object on it. Article 263 of the Civil Code of the Russian Federation establishes that the owner of a land plot must comply with urban planning and construction norms and rules, as well as requirements for the use of the land plot in accordance with its intended purpose.

According to sub. 2 p. 1 art. 40 of the Labor Code of the Russian Federation, the owner of a land plot has the right to erect residential, industrial, cultural, domestic and other buildings, structures, structures in accordance with the intended purpose of the land plot and its permitted use in compliance with the requirements urban planning regulations, construction, environmental, sanitary and hygienic, fire-prevention and other rules and regulations. According to paragraph 2 of Art. 7 of the Labor Code of the Russian Federation, the legal regime of lands is determined based on their belonging to a particular category and permitted use in accordance with the zoning of territories, general principles and the procedure for which is established by federal laws and the requirements of special federal laws. Accordingly, if a building was erected in violation of a specific established type of permitted use of a land plot, which is established for each plot individually in accordance with the rules for the intended use of land (Article 7 of the RF Labor Code), in violation of the rules of urban planning zoning (Article 35-40 of the Civil Code of the RF, Article 85 of the Labor Code of the Russian Federation), then it will be recognized as unauthorized. Information about the permitted use of the land plot can be found by requesting a cadastral extract 3.

It will not be possible to independently change the type of permitted use of the land plot. This can be done only on the basis of a decision of the competent authority - the head of the local administration, taking into account public hearings 4.

It will not be easy for the owner of an unauthorized building to eliminate this defect, so there is a high probability that it will not be possible to legalize it. Here it is necessary to pay attention to the position of the Supreme Court of the Russian Federation, set out in the Review of judicial practice in cases related to unauthorized construction 5.

The issues of changing one type of permitted use of land plots to another type of such use, issuing a permit for a conditionally permitted use of a land plot, deviations from the limiting parameters of permitted construction are permitted in the manner prescribed by Art. 37, 39, 40 of the Civil Code of the Russian Federation, and decisions of the relevant authorities can be the subject of a court audit both in the manner prescribed by the provisions of Chapter 25 of the Code of Civil Procedure of the Russian Federation, and in the procedure for action (in case of such claims). Consideration of these issues by the court in the course of proceedings in a case related to the legalization of an unauthorized structure, without establishing facts indicating that an interested person has applied for a corresponding permit in an administrative manner, is unacceptable. Thus, in order to legalize a building in such a situation, its owner will first need to at least apply for a change in the permitted use of the land plot on which the building is erected. Then, even if the competent authority refuses to change the type of permitted use, the owner of the unauthorized building will be able to challenge such a refusal in court, and then, if the case is successful, legalize the unauthorized building.

The third sign is the creation of a building without obtaining the necessary permits for this. Just like the previous one, this defect can persist when the interested person applies to the court for recognition of the ownership of the unauthorized building. In this case, the owner of the unauthorized building must provide evidence to the court that he took measures to obtain the necessary permits for the construction and commissioning of the facility 6.

The fourth sign of unauthorized construction is its creation in violation of town planning norms and rules. If the building was erected in violation of town-planning norms and rules in the edition that was in force at the time of the construction of the building, this is the basis for both the demolition of the building and for refusing to satisfy the claim for recognizing the ownership of the unauthorized building. Courts, as a rule, assign construction and technical expertise, which determine the presence or absence of violations of urban planning norms and rules. Of course, we are talking about such violations that are significant and ultimately lead to a violation of the rights and legally protected interests of others or pose a threat to the life and health of citizens. Insignificant violations cannot be a sign of unauthorized construction, and removable violations can be corrected by an interested person in order to legalize unauthorized construction.

What to expect for the owner of a building recognized as unauthorized

The main consequence of the erection of an unauthorized building and in the new edition of Art. 222 of the Civil Code of the Russian Federation, the rule remains that a person who has carried out an unauthorized construction does not acquire ownership of it. It does not have the right to dispose of the building - to sell, donate, lease, make other transactions. An unauthorized building is subject to demolition by the person who carried it out or at his expense. Thus, unauthorized construction is excluded from civil circulation. Note that it will not be possible to acquire ownership of an unauthorized building due to acquisitive prescription, since within the meaning of Art. 225, 234 of the Civil Code of the Russian Federation, the right of ownership by virtue of acquisitive prescription can be acquired for property owned by another person, as well as ownerless property. The legislation distinguishes between the grounds for the emergence of property rights by virtue of acquisitive prescription and in connection with the implementation of unauthorized construction. This conclusion was consolidated in the Review of the Supreme Court of the Russian Federation of judicial practice in cases related to unauthorized construction of 03/19/2014.

As for the possibility of legalizing an unauthorized building and acquiring ownership rights to it, clause 3 of Art. 222 of the Civil Code of the Russian Federation retains this possibility while observing the conditions provided for by the article, which will be discussed below.

Acquisition of the right of ownership to an unauthorized building is allowed by a person who owns a life-long inherited possession, whose permanent (indefinite) use is the land plot on which the building was created. The list of rights listed in clause 3 of Art. 222 of the Civil Code of the Russian Federation, on the basis of which the owner of an unauthorized building will be able to legalize it, is not closed - this is the opinion of the Supreme Court of the Russian Federation in the Review of judicial practice in cases related to unauthorized construction of 03/19/2014. For example, in accordance with the interrelated provisions of sub. 2 p. 1 art. 40 and paragraph 1 of Art. 41 of the Labor Code of the Russian Federation, the lessee of a land plot has the right to erect residential, industrial, cultural and domestic and other 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, regulations. The possibility of providing state or municipal land plots for rent for housing construction is provided for in Art. 30.1 of the RF Labor Code. By virtue of paragraph 1 of Art. 615 of the Civil Code of the Russian Federation, the use of leased property, including a land plot, must be carried out by the lessee in accordance with the terms of the lease agreement, and if such conditions are not specified in the agreement, in accordance with the purpose of the property. Thus, it is possible to recognize the ownership of an unauthorized building erected by a person without the necessary permits on a land plot provided to him under a lease agreement for the construction of a corresponding real estate object. In addition to the requirements established by paragraph 3 of Art. 222 of the Civil Code of the Russian Federation, it is also necessary to take into account the terms of the lease agreement. When concluding a lease agreement, the owner must definitely express his will to provide a land plot for lease for the construction of buildings of a specific type.

The first condition of the new edition of clause 3 of Art. 222 of the Civil Code of the Russian Federation that the acquisition of ownership of an unauthorized construction is allowed if, in relation to the land plot, the person who carried out the construction has the rights allowing the construction of this object on it. We are talking about the absence or elimination by a person of the first sign of an unauthorized building, which was mentioned above.

The second condition for the legalization of unauthorized construction, provided for by the new edition of clause 3 of Art. 222 of the Civil Code of the Russian Federation, is the compliance on the day of going to the court of construction with the parameters established by the documentation for the planning of the territory, the rules of land use and development or the mandatory requirements for the parameters of the building contained in other documents. It is not only about the absence or elimination by the person of the second sign of unauthorized construction, but also about the compliance of the building with other requirements, for example, urban planning land plot.

The third condition for acquiring ownership of an unauthorized building is that the preservation of the building does not violate the rights and legally protected interests of others and does not pose a threat to the life and health of citizens. Here we are talking about the mandatory absence of the fourth sign of unauthorized construction, which was discussed above.

An unauthorized building can now be demolished out of court

Separately, it should be noted the new provision of paragraph 4 of Art. 222 of the Civil Code of the Russian Federation on the powers of local self-government bodies of the urban district ( municipal district in the event that an unauthorized building is located in an inter-settlement area) make a decision to demolish an unauthorized building if it is created or erected on a land plot that has not been provided in the prescribed manner for these purposes, if this land plot is located in a zone with special conditions for the use of territories (for exclusion of the protected area of ​​objects cultural heritage(historical and cultural monuments) of the peoples of the Russian Federation) or on the territory common use or in the right-of-way of engineering networks of federal, regional or local significance. With the cumulative interpretation of this provision with other provisions of paragraph 4 of Art. 222 of the Civil Code of the Russian Federation, one can come to the conclusion that we are talking about an extrajudicial procedure for the demolition of an unauthorized building. Of course, the decision of the local government to demolish an unauthorized building can be appealed by an interested person in court in accordance with Art. 197 APC RF or Art. 254 of the Code of Civil Procedure of the Russian Federation, depending on the subject composition of the persons involved in the case.

The new regulation provides for two cases of implementation of the decision of the local government to demolish an unauthorized building. In the first case, it is assumed that the person who carried out the unauthorized construction is known. Within seven days from the date of the decision on the demolition of the unauthorized building, the local government that made such a decision shall send the person who carried out the unauthorized construction a copy of this decision containing the time limit for demolition of the unauthorized building, which is established taking into account the nature of the unauthorized building, but cannot be more than 12 months. The law does not answer the question of what authority is granted to the local government after this period and whether it should go to court with a claim to demolish the unauthorized building. However, from the logic of the superstructure of this norm over general provisions Art. 222 of the Civil Code of the Russian Federation, it follows that a specially facilitated procedure for making a decision on the demolition of an unauthorized building in these cases does not require the local government to go to court. It is likely that a clarification of the enforcement of this clause will be issued in the near future.

In the second case, it is assumed that the person who carried out the unauthorized construction cannot be identified. In this case, the local government body that made the decision to demolish the unauthorized building, within seven days from the date of such a decision, is obliged to ensure the publication of the decision and the message about the planned demolition of the unauthorized building, posting it on the Internet and on an information board within the boundaries of the land plot on which an unauthorized building was created. After two months from the date of implementation of these requirements of the law, the demolition of an unauthorized building can be organized directly by the body that made the appropriate decision.

Thus, the norms of Art. 222 of the Civil Code of the Russian Federation have undergone changes in terms of clarifying some formulations of the concept of unauthorized construction, its signs and conditions for its legalization. At the same time, in Art. 222 of the Civil Code of the Russian Federation, significant additions were made, expanding in certain cases the powers of local authorities in relation to unauthorized buildings and allowing their demolition out of court.

1 Federal Law of 13.07.2015 No. 258-FZ“On Amendments to Article 222 of Part One of the Civil Code of the Russian Federation and the Federal Law“ On the Enactment of Part One of the Civil Code of the Russian Federation ””.

2 Clause 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 06/23/2015 “On the application by the courts of some provisions of Section I of Part One of the Civil Code of the Russian Federation”.

3 Clauses 13, 14, part 2 of Art. 7, paragraph 3 of Art. fourteen Federal Law of July 24, 2007 No. 221-FZ"On the State Real Estate Cadastre".

4 Clause 1 of Art. 4 Federal law dated December 29, 2004 No. 191-FZ "On the Enactment of the Town Planning Code of the Russian Federation".

5 Approved by the Presidium of the RF Armed Forces on 03.19.2014.

6 Clause 26 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated April 29, 2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights."