Unauthorized construction - how to legalize it, procedure

How to legalize unauthorized construction on your own property? September 1 once again became not only the “Day of Knowledge” and the beginning of the new academic year, but also the date when important changes to the Civil Code of the Russian Federation came into force.

This time, the legislator determined the fate of unauthorized buildings (FZ of July 13, 2020 No. 258-FZ amended Article 222 of the Civil Code of the Russian Federation).

The conditions for legalizing illegal buildings for residential and non-residential purposes are specified. Let's look at the amendments to Art. 222 of the Civil Code of the Russian Federation.

Unauthorized construction of real estate in violation of the law

There is a great love for unauthorized construction of houses in our country.

Considering the previously existing difficulties and various bureaucratic obstacles in obtaining a plot of land for construction and obtaining permits, both citizens and legal entities often resorted to a method that now has the specific name “bypassing the law.”

How to recognize ownership of an unauthorized building

First, you should determine your capabilities. This will require the following conditions to be met:

Ownership of a land plot with one of the following rights: indefinite use, lifelong ownership, property;
Compliance of the object with the requirements stipulated by the technical plan, rules of land use and development;
Preservation of the building cannot violate the rights and interests of other citizens and does not have the right to create a threat to the life and health of citizens;
Carrying out measures to obtain permits;
To prove that the object exists, it is necessary to submit cadastral documentation;

When preparing a claim, it is important:

Indicate the rights to use the land;
Explain in detail the technical plan of the building;
Specify the subject;
Reasons determining unauthorized construction;
Facts preventing its registration as property;
Compliance with all regulations;
Were measures taken to register it and what prevented this?

Legal capacity for unauthorized construction is established in court.

The right to a self-construction erected without permission can be issued by virtue of prescription by the owner, who has used it in good faith, openly and continuously for fifteen years.

What will now be recognized as unauthorized construction?

The concept includes only buildings, structures or other structures. The wording “and other real estate” has disappeared.

It is still difficult to say unambiguously what the legislator had in mind.

But it can be assumed that it will now be in principle impossible to legitimize unfinished construction projects as unauthorized buildings.

Although another question arises in parallel: is it possible to demolish such objects according to the rules of Art. 222 of the Civil Code of the Russian Federation in this case will also be impossible? On this issue, apparently, we will have to wait for a comment from the highest court.

What documents must be attached to a claim for recognition of ownership of an unauthorized construction?

When preparing a statement of claim to the court for recognition of ownership of an unauthorized construction, it is recommended to attach the following documents:

documents confirming construction costs, construction contracts and acceptance certificates for construction work;
an extract from the Unified State Register of Rights to Real Estate and Transactions with It, indicating that the rights to this object do not belong to third parties;
an extract from the Unified State Register of Urban Development Objects;
documents confirming the compliance of the erected building with sanitary and epidemiological, fire safety, technical, environmental standards (environmental audit conclusions, documents from state environmental protection bodies, conclusion of a technical inspection or, more simply, to conduct a construction and technical examination)
other documents confirming that the preservation of unauthorized construction does not violate the rights and legitimate interests of third parties (letters from owners of neighboring land plots).

This list of documents is not exhaustive and may be supplemented depending on actual circumstances.

What is AWOL?

Signs of unauthorized construction of a house:

The land plot was not provided in accordance with the established procedure for construction.
The permitted use of the land plot does not allow the construction of this facility on it.
The structure was erected (created) without obtaining the necessary permits or in violation of town planning and building codes and regulations.

In the latter case, the legislator excluded the word “significant” violations.

This means that now any violations of urban planning and building codes and regulations can serve as grounds for classifying an object as an illegal building.

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Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 19 years of experience.

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Recommendation! If you need to file a claim in court for self-construction, please contact us by phone. Our lawyers have positive judicial practice in resolving this issue.

What does the court pay attention to when considering cases of unauthorized construction?

When considering claims for recognition of ownership of an unauthorized structure, the court determines whether significant violations of urban planning and building codes and regulations were committed during its construction, and whether such a structure poses a threat to the life and health of citizens. For this purpose, the court, in the absence of the necessary conclusions of the competent authorities or if there is doubt about their reliability, has the right to order an examination according to the rules of procedural legislation.

The absence of a building permit in itself cannot serve as a basis for refusing a claim for recognition of ownership of an unauthorized construction. At the same time, the court must establish whether the person who created the unauthorized structure took appropriate measures to legalize it, in particular to obtain a construction permit and/or an act of putting the facility into operation, and whether the authorized body lawfully refused to issue such a permit or act of putting the facility into operation.

Unless otherwise established by law, a claim for recognition of ownership of an unauthorized structure is subject to satisfaction when the court determines that the only signs of an unauthorized structure are the absence of a construction permit and/or the absence of an act of putting the facility into operation, to obtain which the person who created the unauthorized structure, took measures. In this case, the court must also establish whether the preservation of the unauthorized construction does not violate the rights and legally protected interests of other persons and does not create a threat to the life and health of citizens.

How to legalize an illegal construction site

How to legalize self-construction in 2020?

The owner of the land where the building was erected, as well as the person to whom the plot was given the right of lifelong inheritable possession or permanent (indefinite) use, has the right to file a lawsuit to legitimize AWOL.

Recognizing ownership of an unauthorized construction through the courts has become much more difficult.

From September 1, this will be possible if the following conditions are simultaneously met::

In relation to a land plot, the person who carried out the construction has rights allowing the construction of this object on it.
On the day of going to court, the building complies with the standards established by the rules of territory planning, land use and development or mandatory requirements for the parameters of buildings contained in other documents.
Preservation of the building does not violate the rights and legally protected interests of other persons and does not create a threat to the life and health of citizens.

And all this must be preceded by the fact that the person who carried out the construction has a legal right to the land plot.

In addition, it would be useful to recall the joint recommendations of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation, set out in paragraph 26 of Resolution No. 10/22 of April 29, 2015 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other real rights."

The highest courts have indicated that the lack of a construction permit in itself cannot serve as a basis for refusing a claim for recognition of ownership of an unauthorized house.

The courts need to check whether the person who built the house illegally took appropriate measures to legalize it.

In particular, to obtain a construction permit and/or an act of putting the facility into operation, as well as whether the authorized body lawfully refused to issue it.

Expert commentary

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 19 years of experience.

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The amount of the state duty for a claim to legitimize an unauthorized construction depends on the market value of the object (clause 1, clause 1, article 333.19 of the Tax Code of the Russian Federation). To do this, you need to order an assessment from the BTI.

Documents for court

The statement of claim must be accompanied by:

copies of the claim for the defendant and third parties;
documents confirming ownership of the land plot;
documents confirming the presence of illegal construction on the site - an inspection report, documents from the BTI;
documents that confirm that during the construction of the structure there were no significant violations of urban planning and building codes and regulations;
this object does not pose a threat to the life and health of citizens, does not violate the rights and legally protected interests of other persons;
documents that confirm the application to the authorized bodies for documents on unauthorized real estate: construction permit, results of consideration of requests, if there was an attempt to legalize the construction, refusal of the administration;
document confirming payment of state duty;
power of attorney for a representative.

Expert commentary

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 19 years of experience.

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Note! Supporting documents include conclusions, inspection reports of authorized government bodies for architectural and construction (Department of Architecture and Urban Planning), fire (Ministry of Emergency Situations) and sanitary (SES) supervision.

The Supreme Court figured out how to legalize unauthorized construction

The entrepreneur built a store building on her site, but she was never able to obtain a building permit. Therefore, she filed a lawsuit to recognize the ownership of the unauthorized construction, but three authorities rejected her. The Supreme Court corrected them.

Individual entrepreneur Tatyana Sviridova built a non-residential store building on her site in 2014. She did this without a construction permit, although she applied to officials for such permission several times: before, during and after completion of construction. Officials in the administration of the Chapaevsky urban district refused each of these requests.

In one of the letters, the administration advised the entrepreneur to go to court for recognition of ownership of the unauthorized construction. Referring to the construction of an object without a construction permit and in the absence of the possibility of obtaining it in the prescribed manner, Sviridova filed a claim with the arbitration court in case No. A 55-12718/2018.

The courts rejected the claim. Three authorities decided that Sviridova applied for a construction permit after she had completed the construction. Under such circumstances, taking measures to obtain permits after the completion of construction of the disputed facility does not indicate the good faith of the entrepreneur’s behavior and is not the basis for legalizing a civil offense, which is unauthorized construction, the courts decided and refused to recognize Sviridova’s ownership of the building.

The businesswoman appealed to the Supreme Court. In her opinion, the courts should have applied Art. 222 of the Civil Code, according to paragraph 3 of which the right of ownership of an unauthorized structure can be recognized by the court for the person who owns the land plot on which the structure was created, but at the same time the following conditions are met:

if the entrepreneur could build a building on the land;

if on the day of going to court the building meets the established requirements;

if the preservation of the building does not violate the rights and legally protected interests of other persons and does not create a threat to the life and health of citizens.

All the conditions listed in this rule have been met, and the necessary documents have been submitted to the case file, the applicant indicated. Sviridova pointed out the error of the lower authorities, which, despite the evidence available in the case file, made the incorrect conclusion that she did not apply for a construction permit before it began.

The Economic Board checked the businesswoman’s arguments, agreed with them and sent the case for review to the Arbitration Court of the Samara Region. The first instance, according to the instructions of the Supreme Court, will have to check whether the building complies with the established urban planning and construction norms and rules, whether the preservation of the building violates the rights and legally protected interests of other persons and whether such a building poses a threat to the life and health of citizens. The court also needs to involve the co-owner of the land plot in the case.

Source: Pravo.ru

Local governments have the right to demolish AWOLs without trial

The local government body (LGU) may decide to demolish a house or other object if it is created or erected on a land plot that is not provided in the prescribed manner for these purposes.

If the site is located:

In a zone with special conditions for the use of territories, with the exception of places of protection of cultural heritage sites (historical monuments) of the peoples of the Russian Federation.
On public territory or in the right of way of utility networks of federal, regional or local significance.

Thus, if an AWOL is built entirely or partially on public lands, then the likelihood of its demolition is very high.

What is unauthorized construction - signs

An unauthorized construction is a structure erected on a plot of land without the appropriate permits or the knowledge of the owner of this plot of land.

We looked in more detail at what unauthorized construction is; in September 2020, a new article in the Civil Code came into force.

Let us note what signs an unauthorized construction may have:

First of all, a building will be considered unauthorized if it is located on land not intended for construction. This will be indicated by the type of permitted use of the land plot.
The structure will be erected without accompanying permits.
The structure was created in violation of urban planning, building codes, requirements, and rules.
The building was erected on a site that was not provided for this by law or by decision of the judiciary.

Legal status of unauthorized construction - why you shouldn’t build an unauthorized building?

Please note that an unauthorized building cannot constitute a residential structure. The construction is recognized as unauthorized if it satisfies at least one of the above criteria.

How is demolition carried out?

The legislator has provided two options for local governments to demolish illegal buildings.

If the compulsory medical insurance was able to establish who built.

Makes a decision on the demolition of the AWOL, sets a period for compliance with the order - no more than 12 months. A copy of the decision is sent to the developer within 7 days from the date of adoption.

If the developer could not be identified.

The compulsory medical insurance makes a decision on the demolition of the AWOL, publishes it in a printed publication and places it on its official website. In addition, a message about the planned demolition is posted on the information board within the boundaries of the site where the illegal building was created.

If the developer never shows up, the local self-government body will have the right to demolish the AWOL on its own, but not earlier than 2 months from the date of posting a message about the planned demolition on the official website.

These are the new rules in the fight against AWOLs. And now it’s worth once again weighing the risks of a “workaround” maneuver.

Statement of claim for recognition of ownership of unauthorized construction sample

How in practice to register an unauthorized building as a property? The legislation classifies some individual construction projects as illegally constructed. In relation to the property of citizens, this includes country houses, garages, and permanent extensions to their own real estate.

For example, it happens that a citizen, instead of an old dilapidated building, builds a new permanent dwelling in its place. And often permitting documents are not issued. Accordingly, it is impossible to put real estate into operation and then legally secure its ownership.

However, there is still a way out. It consists of filing a claim to recognize the ownership of the property that the legislator classifies as illegal construction. To make it easier to assert your rights, below is a statement of claim for the legalization of unauthorized construction.

Zheleznodorozhny City Court of Balashikha

st. Oktyabrskaya, 23

Plaintiff: Pavlov Nikolay Ilyich

st. Revolution, 17

Defendant: Administration of the Balashikha Urban District

st. Lenina, 11

Statement of claim

on recognition of ownership rights to an unauthorized house

I, Pavlov Nikolay Ilyich, live with my family in an individual household located at the address: Balashikha, st. Revolutions, 17.

Until August 2020, there was an individual residential building at this address, which I inherited from my father in 2020. The land under the house is registered in my name, which is confirmed by the cadastral passport and an extract from the Unified State Register of Real Estate dated 06/03/2018 with registration number No. 1456378.

According to the conclusion of the expert organization Construction and Repair LLC dated July 3, 2018, the house had fallen into disrepair and was in need of major reconstruction. I ordered design documentation from the Stroyproekt Research Institute, but I did not obtain permission to carry out construction due to lack of time due to being very busy at work.

On August 15, 2020, I entered into a contract agreement with the Black Sea Fleet “Rhythm” for construction work. They were completed on December 25, which is confirmed by the act of completion of the work. In fact, a new home was created.

Meanwhile, I have in my hands the conclusion of the State Enterprise “Expert” that the work done by the contractor does not conflict with building codes.

On January 9, 2020, I made an appeal to the defendant with a request to put the reconstructed property into operation. However, the Administration of the Balashikha City District received a written refusal dated January 12, 2019, with outgoing number 422/8. The document states that these actions are impossible due to the lack of a building permit.

Article 222 of the Civil Code of the Russian Federation defines the range of objects that are classified as unauthorized construction. These include real estate built without first obtaining the required permits.

Paragraph 3 of this norm states that ownership of a self-construction can be recognized by the court, provided that it meets all the parameters, and the mode of use of the existing land plot allows construction on it. On my part, the described conditions have been met.

Therefore, I believe that there is every reason to recognize the ownership of my residential building after its reconstruction. Guided by the above and Article 222 of the Civil Code of the Russian Federation,

I ask the court:

1) Recognize for me, Nikolai Ilyich Pavlov, the ownership of a residential building located at the address: Balashikha, st. Revolution, 17 in a state after reconstruction.

2) To recover from the defendant the costs of state duty.

Application:

1) Confirmation of payment of state duty.

2) A copy of the certificate of inheritance in part of the residential building.

3) Documents on the land plot.

4) A copy of the conclusion from Construction and Repair LLC, issued on July 3, 2018.

5) A copy of the design documentation.

6) A copy of the contract with the Black Sea Fleet "Rhythm" and the certificate of work performed.

7) A copy of the conclusion of the State Enterprise “Expert”.

A copy of the application to the Administration of the Balashikha City District

9) Copy of the defendant’s letter dated January 12, 2019 No. 422/8.

10) Claim with attachments for the second party.

Plaintiff: N. I. Pavlov

Claim for recognition of ownership rights to self-construction

Registration of ownership of unauthorized construction through the court.

This is the more preferable way, because you do not need to visit authorized bodies and authorities in an attempt to collect a set of documents, but rather file a claim in court, and even if you receive a negative court decision, you have the opportunity to appeal it. All procedures are clearly regulated and understandable.

Issues of recognizing the right of ownership of an unauthorized building in court are reflected in the Resolution of the 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.”