Own home - every third Russian citizen dreams of it. A lot of space, their communications, no unnecessary utility bills, a garage nearby, a gazebo, a bathhouse - this is just a small list of what is worth deciding on this. I want to build quickly with minimal investment and without unnecessary paperwork. However, the law requires thorough compliance with all procedures and obtaining permits. What to do if the building is erected, bypassing the designated authority, how to legitimize it? Until recently, Art. 222 of the Civil Code was a lifesaver in this, now everything has changed.
"Blinded from what was ..."
Unauthorized construction is in itself a violation of the law, because it is carried out in the absence of proper permits from the relevant authorities.
The law refers the following structures to such buildings:
- erected on a land plot not received in due order;
- if the category of land excludes the possibility of their construction;
- created contrary to the procedure for obtaining permits / without complying with general building regulations.
You will not legitimize unauthorized buildings in the usual administrative procedure (through the MFC, etc.), since there is one or more of the signs mentioned above, and the documents simply will not be accepted. The only option is only through the court, and it’s not as simple as it seemed some 3 years ago. Currently, the law has been tightened.
For illustrative purposes, we give a simple example. You are the owner of a land plot category IZHS, decided to build a residential building measuring 90 square meters. m, you have a project, however, they did not receive permissions from the local administration. Thus, it turns out that everything is in order with the land, but the procedure is violated, so from the moment the foundation is laid, the construction will be arbitrary and legally subject to demolition if you do not recognize the ownership of it.
What structures can be recognized as unauthorized
These buildings always include only capital immovable buildings that are firmly connected to the ground, they cannot be kiosks, change houses, arbors, awnings, sheds, etc.
What if not a new building was built, but, for example, an extension was made?
These actions are a reconstruction of existing facilities. If they are committed in the absence of permits, then the newly received building, coupled with superstructures, is unauthorized.
According to the provisions of the Civil Code of the Russian Federation, permission is also required for reconstruction.
The same article establishes that permission is not required for construction, changing garages, auxiliary premises, non-capital buildings (kiosks, etc.), for overhauls, boreholes, etc.
Also, you do not need to go through the specified procedure if you make changes that do not affect the structural and other parameters of the capital building, which are responsible for safety.
Letter of the law
When the previous wording of Art. 222 of the Civil Code of the Russian Federation, gaining the right to unauthorized construction was relatively simple. Some took advantage of this, bypassing the stage of obtaining documents in an administrative order, immediately appealed to the court. In 2015, amendments were made to Art. 222 of the Civil Code of the Russian Federation, as a result of which the requirements were tightened.
Currently, this institution is regulated by the following laws: codes (civil, urban, land), federal laws (dated July 21, 1997 No. 122-FZ on state registration of real estate rights), other regulatory documents (Resolution of the Plenum of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22).
Let's look at the changes made to this article since 2015:
- a detailed concept of the term "unauthorized construction" is given;
- secured the conditions under which it is possible to approve ownership of it;
- demolition of an unauthorized building by decision of the local self-government (local government).
Bit of history
An interesting fact is that earlier, in 1964, the Civil Code of the RSFSR recognized only citizens who built houses and summer cottages as subjects of unauthorized construction. There was no question of proving the right; the law said that they must either be demolished or withdrawn to the fund of local deputies at the expense of developers. In this area, Soviet law prescribed that these actions be carried out without trial, in an administrative order.
Until 2006, the old version of the Civil Code of the Russian Federation stated that the right to self-construction can be achieved through a court for the builder even in the absence of a right to land, provided that the land will be provided to him properly.
Numerous developers of high-rise buildings began to use it at that time, which substantially contradicted all urban planning standards. In this regard, in 2006, significant changes were made to the article, in particular, specific conditions were determined under which the “autocratic will” should be legitimized.
At present, the operation of Art. 222 of the Civil Code applies to all.
Who is the master of the house?
As a general rule, the builder of the "autonomy" does not acquire ownership, use, or disposal rights to it.
The law provides 3 exceptional conditions under which a building can be legalized and put into civil circulation, which we will discuss below.
At the same time, the developer will always be a priori forced to apply to the judicial authorities for recognition of rights to it, since unauthorized construction in itself is a violation.
Without a positive court decision, he will not be able to dispose of it: sell, exchange, give, rent, etc. Art. 222 of the Civil Code of the Russian Federation with comments says that if the contracts are already concluded, they are recognized as null and void by virtue of law.
The builder is obliged to demolish the building at his own expense, with the exception of cases of its legalization in a certain order. Both land owners and authorized state bodies can put forward these requirements.
Legalization Terms
First of all, the person-builder must have the relevant rights to the land: property / inherited possession / unlimited use.
Art. 222 of the Civil Code of the Russian Federation gives the following 3 conditions that must be observed simultaneously:
- construction is allowed on this land (you need to look at the category and permitted use of the site);
- for the period of going to court, the structure complies with the dimensions and standards of the relevant technical documentation;
- abandonment of the building in this form does not violate the rights and interests of other persons, does not harm life and health.
The law provides for the following procedure of legalization: through a court of law or otherwise provided by law.
If the right to build is recognized for the owner of the land, then he is obliged to reimburse the costs to the developer.
Only through court?
The legitimization of unauthorized buildings is a rather serious process, affecting not only property issues, but also the topics of life, health and safety of others, therefore, the court is mainly involved in the investigation of these situations. Art. 222 of the Civil Code of the Russian Federation says that some other way is possible, but so far it is not known what it is.
Recently, the servants of Themis have been carefully studying the reasons why you could not get permits out of court, there may have been some refusal from the local authorities, etc. The relevant supporting documents should be submitted to the case file.
In this process, a special role is played by the collection of evidence at the pre-trial stage, on which 99% success will depend, since the process will be difficult.
In the worst case, the party to the defendant may file a counterclaim for the demolition of the structure, and if you do not provide evidence of the safety of your structure, the court can satisfy it.
But let's not talk about sad things, demolition is a necessary measure, which is resorted to in extreme cases, we’ll talk better about how to build this pre-trial base and the nuances.
Procedural subtleties
Claims under Art. 222 of the Civil Code of the Russian Federation relate to the jurisdiction of both general jurisdiction and arbitration depending on the subject composition.
Claims for recognition of the right to “self-willed” are always property, therefore, when applying to the court, you must pay the state fee.
You can assess the cost of the building as an independent expert, or in the local BTI.
The lawsuit should indicate compliance with all the above necessary conditions. The fact that the building will not be able to harm life and health, its structures are safe, can be evidenced by the corresponding expert opinion, which you can order before the court or petition in the process. It is important for the court that the bureau of specialists you found is a member of the SRO and has the right to evaluate capital structures.
Thus, today it can be stated that the trial is not a guarantee of recognition of rights to this building. This is the last resort where you should go if you can’t defend your property interests or the threat of demolition of an unauthorized building. Art. 222 of the Civil Code of the Russian Federation, the legislator changes each time - introduces new toughened conditions for legalization, thereby trying to instill into the builders legal literacy, respect for the administrative mandatory procedures for obtaining permits. If you are faced with this situation, it is better to get the support of a professional in this field.