Construction in progress: types, definition, requirements, documentation, ownership

What is construction in progress? In times of unstable economies, a number of facilities under construction contracts are “frozen” at the construction stage. This happens for various reasons - a lack of finance or building materials, etc. In such situations, we can talk about construction in progress.

Construction in progress - definition

What are these objects? The current legislation does not directly define this term. The Civil Code of the Russian Federation in its article number 130 (part 1) refers to real estate (real estate) everything that is connected with land (subsoil, land, etc.). The main sign of an immovable object is that it cannot be moved without inflicting disproportionate damage on the destination. This can also include erected buildings and the very "unfinished" objects that will be discussed. There is only one conclusion - the current legislation unequivocally classifies "incomplete" as a category of real estate.

Thus, the Town Planning Code of the Russian Federation interprets the concept of such an object as a building (or structure, construction), the construction process of which is not completed. This does not include temporary buildings - we are talking about kiosks, awnings, etc. Judicial practice shows that in specific disputes, judges have to refer to the legal status of construction in progress, that is, their legal regime.

For example, if there is already a foundation on the land with the walls of the building, then it is impossible to move this object without causing disproportionate damage to it. Such, by definition, refers to real estate. Conclusion: determining the status of a disputed object, the court first of all takes into account its essential physical properties, and only then - the presence or absence of state registration of rights to it.

Not so simple

At the same time, judicial practice is full of disputes on this issue. The range of opinions on this issue is very wide. Some jurists consider any building in the process of reconstruction or erection as yet not having permission to put into operation the object of construction in progress. This definition does not take into account the important fact that the construction process of an object can sometimes be stopped or mothballed for a variety of reasons.

Based on the latter definition, these real estate objects can no longer be called examples of construction in progress. At the same time, they cannot be assigned to the aggregate of building materials, since some of them, being used in the construction, have lost their original properties.

Article number 219 of the Civil Code of the Russian Federation states that the right of ownership must be registered, including for newly created property, which can be attributed to the category of real estate. It is under this definition that incomplete objects fall.

How to recognize the "incomplete"?

Consider the basic requirements for the construction in progress:

1. There is a strong connection with the land on which the object is being built (with the above impossibility of moving without causing damage).
2. Individual purpose of the object.
3. The fact of suspension, conservation or final termination of the construction process of this building (structure).

We’ll finally decide: under a similar object we can mean a certain unit of real estate, the construction work on which has been stopped, suspended or mothballed.

Recognition of ownership of the construction in progress

If earlier, such legislation was considered in the form of a combination of building materials together with the labor invested and did not relate to the subjects of civil law transactions, then with the introduction of amendments to the Civil Code of the Russian Federation (in its article number 130), they were included in the list of things related to real estate. According to one of the most common points of view, the initial state registration of an object of incomplete construction should be discussed from the moment the contract agreement is terminated with respect to it.

It is this approach that most often prevails in existing judicial practice. In the new version of the law, registration of ownership of such objects is no longer due to the need to make certain transactions with them. What conclusion follows from here? The degree of readiness of such an object refers only to descriptive criteria. After the state registration procedure is carried out in accordance with the procedure established by law, such a building can legally be classified as civil law objects with all the ensuing consequences.

That is, we can talk about the emergence of a completely new, holistic and independent legal object. Rights to the construction in progress are registered by administrative procedure on the basis of a list of certain documents. In addition, such a right may be recognized by court order.

Legislative subtleties

Such cases relate to arbitration courts and courts of general jurisdiction. The most difficult question in this category of disputes is to whom exactly to give the right of ownership to an investor, customer or contractor. In this situation, there are many contradictions and legal nuances. When considering this category of cases, a series of documents are accepted as evidence containing proof of ownership of the land, the availability of a building permit, a set of design and other documentation for the capital construction facility, etc.

Unfortunately, the legal norms in this area of ​​relations contain a number of contradictions, in connection with which the legislation in this part can be interpreted in a fairly broad sense. This leads to abuse by various stakeholders. It should be mentioned that these legal relations need additional more detailed regulation in order to eliminate the existing gaps in legal acts and achieve unity in the existing judicial practice.

Talk about the unfinished building plot

In order to be able to complete construction in progress, the land plot where it is under construction must be owned, leased, or its owner must have the right of inherited lifetime possession or unlimited use. According to the definition (we recall that everything related to land is firmly connected to real estate and cannot be displaced without inflicting disproportionate damage on the property), it follows that the possession of a capital foundation is an indispensable requirement for an object that claims to be of such rank.

A construction project under construction cannot, by definition, be the subject of a contract of such a contract, the validity of which is not terminated. Otherwise (Civil Code of the Russian Federation, article number 740), the contractor continues to have the right to continue work, that is, the rights of the so-called third parties will take place. As the law number 122- states in its article number 25, the ownership of such construction in progress is impossible without a building permit, the availability of a project with a detailed description of the object and documents governing the rights to a land plot.

If all of the above conditions are met, the owner of the "unfinished" has every reason to register the capital construction project as a property. Prior to registration, any transaction related to the object will not be considered valid by law.

Another important point is to properly register the right to the land that is occupied under "unfinished". Article number 222 of the Civil Code of the Russian Federation states that if real estate was built on a land plot not intended for this purpose, then it receives the status of unauthorized construction. The acquisition of ownership of such property is not possible in this case, and the constructed facility is subject to demolition.

What documents are required to complete construction in progress?

The package of necessary papers consists of:

1. Applications for registration of an object of incomplete construction (property rights to it).
2. Identity document.
3. State duty receipts.
4. Documents on the land - evidence of ownership or lease.
5. Permits of the relevant authorities to conduct construction on this particular site.
6. The description received in the BTI bodies (technical plan of the construction in progress).

The entire package of documents is handed over to the registration chamber.

How do transactions with such objects take place?

As already mentioned, a properly executed “unfinished” facility is considered immovable property. That is why any transaction for the purchase or sale of construction in progress is similar to a transaction with any other real estate. A buyer who wants to purchase a "work in progress" should pay attention to the following points:

- the presence of documents confirming the registration of the object;

- the presence of the decision of the authorities on the allocation of land for the construction;

- a plan of the aforementioned construction in progress project;

- the availability of all relevant documentation (technical and design estimates);

- documents that confirm the termination of the contract for the construction of the facility.

All data with the characteristics of the property, including its location on the territory of the site, must be indicated in the contract for the sale of real estate.

A similar contract is drawn up according to a strictly defined model, which must be observed by all parties to the transaction.

Features of the preparation of the contract of sale "incomplete"

1. Its compilation is mandatory in writing with state registration. If the form of the contract is not followed, this leads to its invalidity.
2. As with any transaction, the details of the parties to the parties to the agreement must be indicated - with passport data, residential addresses, etc.
3. The subject of the contract must be clearly defined, that is, the data contained in it should allow to establish with accuracy what kind of object is being discussed. Such data primarily refers to the address at which the building is located.

Please note that there are both "building" and "postal" addresses. The “building” address is indicated in the building permit and determines the place in which the site for the construction of the facility is provided. The "postal" address may not correspond to it. It can be assigned to the house only upon completion of the acceptance procedure. Such discrepancies should be considered when preparing documentation for the planned acquisition.

Among other things, the price of the property must be indicated.

The circle of persons with the right to use is required to be listed in detail.

Third-party property rights for sale must be respected. When making a transaction, it is the seller’s responsibility to warn the buyer about this. It may be about the rights of tenants, tenants, existing collateral or life-long use. In the event of failure to fulfill such obligations, the buyer has the right to demand a reduction in the sale price or complete termination of the contract with compensation for all losses.

The final transfer of real estate between the seller and the buyer with the acceptance of the latter occurs at the time of signing by the parties of the so-called deed of transfer.

What objects are considered unauthorized buildings?

According to the law, any buildings, structures, houses built on land plots not designated for these purposes, created without permission, constructed with significant violation of town planning and other norms and rules can be considered as such. If at least one of the signs mentioned above is present, the structure refers to unauthorized buildings. The acquisition of ownership of it is impossible, except in the case of a decision of the judicial authority.

What documents confirm the expiration of the construction contract?

They can be:

1. An agreement of the parties or a court decision to terminate such an agreement.
2. The act of acceptance and delivery of the object upon completion by the contractor of a certain stage of work together with an agreement on the suspension of further validity of the contract.
3. Other documents on the termination of the contractual relationship in a legal way (we can talk about the impossibility of execution, liquidation of the contractor, etc.)

If the construction of the property took place by several persons, a simple partnership agreement could be concluded between all participants in the construction. We are talking in this case about the common ownership of the specified object. In the case of attracting financial resources of investors by the developer, we are talking about non-fulfillment of customer obligations to investors due to the impossibility of completing construction. Then investors do not have rights to a specific part of the object.

How to make a house in the "unfinished"?

If you want to draw up your unfinished construction object (residential building) properly, you should visit the address where the territorial department of urban planning and architecture is located. Do not forget to bring along a package of documents consisting of:

1. Applications for registration or commissioning.
2. Passports (other identification document).
3. The necessary documents on the ground.
4. All necessary permits and approvals for the development of this site.
5. The project of the construction of your cottage.
6. Technical conditions regarding the provision of the facility with utilities.
7. State duty payment receipts.
8. Cadastral passport for your building.

The latter contains brief information about the house being built with a graphic plan of the territory. Such a document must necessarily include a cadastral passport of the site on which the house is located. In the case of the sale of a house without such a passport, the transaction will not be carried out. In this case, a technical passport of the construction in progress object is not required, but as an appendix to the cadastral passport, there must be a technical plan for any house, even unfinished.

What to do if there are no documents?

If you try hard, it is possible to draw up an "incomplete" even in the absence of the necessary papers. In this situation, you should act as if the construction of the cottage is just beginning. A step-by-step action plan consists of:

1. Writing an application for all necessary permits, without which you will be just an unauthorized developer.
2. Placement of an order for a finished house project, similar to the completed one, with its mandatory approval.
3. Drafting, together with a representative of BTI, a technical plan of the structure.
4. Order in the cadastral chamber of the object's passport.

With all the collected documents, you should go through the registration procedure in the Department of Architecture and Urban Planning.

As an alternative, it is possible to write a statement to the BTI about the execution by the bureau employees of the object - your unfinished house. This is a fairly cost option, but it saves your time and nerves.

If we are talking about an unfinished summer cottage, the package of documents is somewhat simplified - you can not show a building permit and confine yourself to a cadastral plan. In the case of the construction of a cottage or a residential country house, the package of documents must be in full force.

To facilitate the design of all the necessary papers, you can order or purchase a typical project of a residential cottage from a trusted construction company.

How is construction in progress transferred?

As in the case of the completed object, the transfer is made by drawing up and signing the corresponding act, called the act of reception and transmission. When it comes to construction in progress, requiring completion or completion of certain works (for example, finishing), the entire composition of such deficiencies should be reflected in the contract signed at the time of acceptance.

Based on the approved acceptance certificate, work performed under the terms of the contract can be finally paid.

On the rights to the "incomplete"

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Moreover:

- In his statement of claim, the shareholder cannot demand recognition of the ownership rights to the entire object of "incomplete". His right is to claim only a proportionate part of the object, indicated in the contract concluded with the developer. Often legally illiterate real estate investors draw up a claim for recognition of ownership of an “apartment”, “garage” or “parking place”. It should be clarified that while the unit of shared construction has not been officially commissioned, in the legal sense it cannot be regarded as a full-fledged real estate.

- The emergence of this right of ownership is possible only on an object that is available, the location within the framework of the object under construction (building, house) which can be clearly identified. This is done based on the terms of the contract and the available design documentation.

- The shareholder has the right to appeal to the court with a similar claim only in the case of full fulfillment of his own obligations under the contract with the developer regarding payment.

In the event of bankruptcy proceedings against the developer, the recognition of such a right to an apartment or other unit of shared construction is possible only when there is permission to put it into operation, and the parties signed a deed of transfer until the date when the arbitration court accepted the bankruptcy petition.