Many citizens of the country today are interested in how to legalize unauthorized construction. And this is no coincidence, because a lot of people build residential buildings without even owning land, much less without receiving any permits. This is because if buildings are erected in accordance with the law, this process can be very delayed.
Unauthorized construction in the Civil Code of the Russian Federation. How to legalize unauthorized construction?
How to register an unauthorized building? To recognize an unauthorized construction, certain steps must be completed.
Recognition of ownership rights to unauthorized construction
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The right to legitimize an unauthorized construction belongs to the owner of the plot of land where the construction of the object was carried out, to the person to whom the plot was given on the basis of the right of lifelong inheritable possession or the right of permanent use. If you own the land on another basis, then you do not have the right to demand recognition of the unauthorized construction.
This is also important to know:
Urban planning plan of a land plot, sample
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Your property rights will not be recognized when an unauthorized construction violates the rights and interests of other persons or threatens the health and lives of people. This provision is regulated by paragraph 3 of Article 222 of the Civil Code of the Russian Federation.
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File a claim for legalization of unauthorized construction and pay the state fee
The application indicates the type of right to own a plot of land, the type of structure, and the person who carried out the construction. In other words, in your application you must explain why the construction is unauthorized. If you erected an unauthorized building, then indicate whether you tried to legalize it.
What documents are needed to register an unauthorized building through the courts?
In addition to the statement of claim and receipt of payment of the state fee, it is necessary to prepare the following documents:
- certifying the right of ownership of a land plot;
- confirming the existence of a joint venture (for example, an inspection report);
- guaranteeing the absence of a threat and violation of the rights of citizens (for example, the conclusion of Rospozhnadzor, Rospotrebnadzor);
- proving the absence of significant violations of urban planning and architectural norms (for example, an expert opinion);
- a copy of the technical plan for the facility;
- confirming the refusal of government agencies to register ownership of a joint venture, to issue a construction permit (response to an application for a permit for construction and commissioning), etc.
The authorities issuing building permits can be found in our article - Who issues building permits?
Nuances of the procedure for recognizing unauthorized construction
The operative part of the court verdict on the legalization of an unauthorized construction must contain information that makes it possible to identify the structure and its copyright holder. Due to the lack of a description of the object in the court decision, state registration of rights to real estate will be difficult. Therefore, there may be a need to clarify the court’s verdict through additional proceedings.
By the way, it will be useful to learn about unauthorized redevelopment, what needs to be done to legalize the redevelopment yourself.
Legalization of unauthorized buildings through the court: what to pay attention to
When choosing recognition of the right to joint venture as a method of protection, it is necessary to pay attention to the conclusions of the law enforcement officer about in what situations the satisfaction of these requirements is excluded:
- it is unacceptable to justify the acquisition of rights to a joint venture by prescription of ownership (review of judicial practice, approved by the Presidium of the Supreme Court of the Russian Federation on March 19, 2014);
- It is impossible to recognize the right of ownership in the manner provided for in paragraph 3 of Art. 222 of the Civil Code of the Russian Federation, for real estate created before 01/01/1995 (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09/25/2012 No. 5698/12 in case No. A41-9398/11);
- if there are signs of a joint venture arising as a result of reconstruction, recognition of the right may be refused (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 26, 2005 No. 665/05 in case No. A55-13192/03-2);
- it is impossible to legalize the ownership of a part of the joint venture (review of judicial practice, approved by the Presidium of the Supreme Court of the Russian Federation on March 19, 2014).
Demolition of an unauthorized building
If your rights are violated, you can file a claim for the demolition of the unauthorized building. The list of plaintiffs in such cases is very long. Here are just the main categories:
- If the structure/building was erected in violation of rules and regulations, then representatives
- Owners of land plots on which AWOL arose (that is, almost any individual or legal entity).
- Owners of neighboring plots if their rights are violated.
Fact
Download a sample claim for demolition of an unauthorized building
Concept
The legislation establishes a strict definition of self-construction. It includes all buildings that:
- They were erected on a piece of land that was not provided in the prescribed manner.
- The plot of land on which the structure is erected is not intended for construction.
- They were built without approval or obtaining the necessary permits.
- During construction, basic urban planning and fire safety standards were violated.
It is for these reasons that owners of built houses often cannot legally register their buildings.
Depending on the reasons why the building was not legalized in a timely manner, there are certain ways to legalize your house.
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Recognition of unauthorized construction and registration of ownership, period 180 days.
Any building erected in violation of the law is illegal, including unauthorized construction. This means that the person who carried out the unauthorized construction does not have ownership rights to it. This means that he cannot dispose of the construction: sell, donate, lease, or make other transactions. But is it possible to somehow recognize the rights to unauthorized construction? We will talk about this in our article.
Is it possible to recognize the rights to unauthorized construction?
These rights can be recognized in two cases, both of which are listed in paragraph 3 of Art. 222 of the Civil Code of the Russian Federation: 1) the right of ownership of an unauthorized construction can be recognized for a person who has carried out construction on land that does not belong to him, if the land is provided to this person for the erected structure; 2) the right of ownership of an unauthorized construction can be recognized for the person who owns, possesses or uses the land plot where the construction was carried out.
Note. What is an unauthorized construction? An unauthorized construction is a residential house, building, structure, or other real estate built on a land plot not allocated for these purposes by law, or built without obtaining the necessary permits or in significant violation of town planning and building codes and regulations. This definition is given in paragraph 1 of Art. 222 of the Civil Code of the Russian Federation.
Example 1. Based on a resolution of the mayor of the city, an entrepreneur was given a plot of land on lease for three years without the construction of capital structures on it. Nevertheless, the entrepreneur built a parking lot on it. And since, in his opinion, the parking lot cannot be moved to another location, the entrepreneur decided to go to court to be given the land plot on which the parking lot is located, after his ownership of the parking lot property has been recognized. However, the court rejected the entrepreneur's claim. The court indicated that the right of ownership of an unauthorized structure can be recognized for a person who has carried out construction on a land plot that does not belong to him, provided that this plot will be provided to this person for the erected structure. But in this case, the entrepreneur was unable to prove that he would be provided with land for the unauthorized construction. The court's conclusion is enshrined in the Resolution of the Federal Arbitration Court of the Ural District dated February 24, 2005 N F09-324/05-GK.
However, it should be taken into account that in the first and second cases that we indicated, the ownership of an unauthorized construction can be recognized by a person if the preservation of the building does not violate the rights and interests of other persons and does not create a threat to the life and health of citizens.
Example 2. A company built a depot building for parking and repair of a locomotive. By decree of the head of the administration, the society was allocated land for the depot building. However, believing that the depot building was an unauthorized construction, the company filed a lawsuit to recognize its ownership of the said building. The court found that the land plot where the construction was carried out is in constant (indefinite) use of the society. In addition, the preservation of the building does not violate the rights and legally protected interests of other persons, and does not threaten the life and health of citizens, which is confirmed by the conclusion of specialists and a letter from the fire department. Thus, the claims for recognition of ownership of an unauthorized construction - an unfinished object - were satisfied. This decision is enshrined in the Resolution of the Federal Arbitration Court of the Ural District dated February 24, 2005 N F09-292/05-GK.
How to register rights to unauthorized construction?
As stated above, there are two exceptions to the general rule when it is possible to register ownership of an unauthorized structure, but they all involve litigation. Therefore, in order to obtain ownership of an unauthorized construction, it is necessary to initiate legal proceedings. To do this, you need to file a claim in court - the one to which the territory where the constructed facility is located is assigned (Clause 1, Article 38 of the Arbitration Procedural Code of the Russian Federation).
The statement of claim must contain the following data (clause 2 of article 125 of the Arbitration Procedural Code of the Russian Federation):
1) the name of the court to which the statement of claim is filed;
2) the name of the plaintiff, his location or place of residence;
3) the name of the defendant, his location or place of residence;
4) the plaintiff’s demands against the defendant with reference to laws and other regulatory legal acts, and when a claim is brought against several defendants - demands against each of them;
5) the circumstances on which the claims are based, and evidence confirming these circumstances;
6) list of attached documents.
The application may also contain other information, including telephone numbers, fax numbers, and email addresses, if they are necessary for the correct and timely consideration of the case. After the judicial act comes into force, you need to contact the state registration authorities to register ownership of the unauthorized construction. Such rights are registered on a general basis, that is, upon payment of a state fee - specified in paragraph 1 of Art. 28 of the Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it.”
Note. Filing a claim in court. When filing a statement of claim in a court of general jurisdiction, it is necessary to submit two packages of necessary documents, one of which is sent to the defendant by the court itself. And you need to submit a receipt to the arbitration court stating that you yourself sent these documents to the defendant.
The only peculiarity is that the registrar is prohibited from refusing state registration of a right established by a court decision. However, if the court decision does not contain the information necessary for registration, the registrar or copyright holder has the right to ask the court about the procedure for executing this decision.
The cost of the service is from 25,000 rubles + monthly payment.
