In the recent past, all architectural structures in our country were erected by citizens at their own discretion. But such a problem as red tape with state registration of real estate and building permits did not concern anyone. Any free space could be occupied by sheds, warehouses, outbuildings, garages, whatever, documentary support for these buildings was not supposed.
But times are changing, legislation is also expanding, undergoing significant amendments. In this regard, many are faced with the problem of disposing of their property, which by law does not exist. But this is not so bad. Some have retained their outdated legal awareness and habits; according to tradition, they pave the buildings brick by brick, while avoiding the necessary government procedures in order to legitimize their activities.
What is it about
The conversation is, as you might guess, about unauthorized buildings. This category of buildings is regulated by the Civil Code of the Russian Federation. In addition, the legislator carefully considered the issue of recognizing ownership of unauthorized construction and the liability regime for offenses in this area.
Why do self-builds are recognized as such
The fact is that any real estate in the Russian Federation becomes an object of ownership only from the moment of state registration, otherwise it is impossible to achieve this result. Unauthorized buildings are called real estate, erected:
- on land plots on which construction is unacceptable for one reason or another;
- without a building permit, although by law its existence is assumed;
- in violation of established norms and rules, including urban planning.
How to distinguish movable from immovable
The basis for distinguishing between these properties is the criterion for the strength of communication with the earth, the ability to physically move or move an object in material space.
Given this, the legislator in the Russian Federation does not recognize movable objects by unauthorized construction. So, for example, by the decision of the arbitration court, trading wooden tents are not capital construction facilities, as they can be easily dismantled and moved to another place.
What can be said about land for construction
How to allocate a piece of land for development and how to get permission for this? These issues are of particular interest.
Judicial practice often encounters such a situation: the developer, at his own expense, organizes construction on rented land and asks to recognize the right to his offspring. However, in the framework of the trial, the owner of the territory does not agree to the registration of the relevant allotment of the land. As a result, the court decision in such cases is always not in favor of the plaintiff. Why is that? It's simple: no permissions, no registration, no land rights.
Problems can arise with the seemingly proper form of the lease agreement and with the consent of the landlord to the challenge. However, the fact is that the subject of the agreement will be land that has not been registered with the cadastral authorities. In other words, she herself will not become a registered real estate. And this means that such transactions are unreliable.
Land use is important
It is also necessary to know that if a land plot is provided for the construction of a residential building, then the construction of industrial complexes or easily collapsible pavilions for exhibition, entertainment and other purposes on it will also qualify as an unauthorized building, recognition of property for which is not allowed.
All courts in cases of this kind invariably come to this conclusion. They refer to the principle of the impossibility of violating the rights of one person in the interests of another.
Here is a real example. One municipality allowed a legal entity to build a trade pavilion, the construction of which would allow dismantling using low energy and financial resources. However, the principle of permitted land use was violated - U / L turned the building into a capital building, which the court drew attention to. Of course, subsequently he was denied a claim for recognition of the right to unauthorized construction.
Unauthorized redevelopment of the building
In this case, everything is individual. As a general rule, reconstruction without prior official permission will be considered illegal. But the opinion of the court here remains decisive. The arbitral tribunal in one of the disputes recognized that the creation of an additional third floor is for the benefit of citizens, it is expanding housing, and since it does not violate norms and rules, it is recognized as legal.
If the internal structure of the building is changed and this threatens the safety of citizens and the stability of the building, then it will not work to legalize such a brainchild. We are talking, for example, about adding new premises to the building, even if its appearance has not been changed. But any innovation changes the structural relations in the system, the skeleton scheme.
In addition, the room, although it does not have a material nature, is an independent thing (in the legal sense) and is simply located inside the architectural structure. Allocation of an additional item without notification to the special bodies of the state gives rise to a violation.
If the rules and regulations are not followed
Recognition of an unauthorized building may also occur in connection with the violation of certain imperative indisputable rules. For example, this object goes beyond the permissible limits in the use of power lines, and impedes their stable operation. The building may be located in the railway right of way, which is also prohibited by the Land Code of the Russian Federation. That is why, subject to other conditions, the developer will be recognized as an offender, and the construction project will be recognized as unauthorized construction using all measures of responsibility, which will be described below.
Building on your own land, but still against the law
Sometimes it happens. Yes, the property is in the territory, the facility has been accepted for operation, all standards have been met, but there is no building permit in place. Construction in this case will be declared unauthorized.
Legal implications
As already mentioned, the right to unauthorized construction arises only after state registration with the necessary permits and a number of conditions. Otherwise:
- The developer has the right to dispose of only construction tools and materials, but he will not be the owner of the building.
- The joint venture is not considered real estate; it cannot be registered. All transactions made in connection with it are recognized as void, as contrary to law.
- Although unauthorized construction is the primary way of acquiring ownership of property, this is again subject to a number of grounds (documents, permits, etc.).
- This object is not covered by acquisitive prescription. She should not be dragged into this sphere at all. This civil law category is subject to the fair and continuous ownership of real estate (15 years).
- Persons who have ordered illegal construction are subject to administrative punishment and undertake to demolish the brainchild or bring it into initial condition at their own expense.
How to declare a building legal
The object of unauthorized construction can obtain full legal status exclusively in court. To do this, it is necessary to send a statement of claim on recognition of the right to unauthorized construction to the first instance.
In addition, a number of the following official papers should be attached to it:
- Documents that confirm the fact that the developer performed the work. This may include work contracts or cashier's checks and receipts indicating the purchase of building materials and the hiring of workers and other expenses.
- Documents proving that no third parties can apply for the construction, no one except the developer has the right to land. Most likely it will be an extract from the Unified State Register (Unified State Register of Rights to Real Estate and Transactions with It). She will confirm the absence of restrictions and burdens on the rights of unauthorized construction by other subjects of civil law.
- Documents determining that the building complies with certain standards and norms. For example, these include the conclusions of the sanitary and epidemiological station, audit services, documents of environmental authorities, formalized results of technical expertise, confirmation of compliance with fire safety requirements and more.
- Documents registering the absence of violations of the rights of others. This will be the letters of consent of the neighboring owners, the owner of the land, or co-owner, if any.
- For non-property developers, documents confirming the fact that in the future land will be provided to them for the purpose of operating the building.
It should be noted that the specified list of documents is large, but incomplete, in each individual situation it will be different.
In addition to the lawsuit for the consideration of this case, in exceptional cases, a special algorithm is possible, as provided for by procedural legislation. (It is used, for example, in the case of loss of title documents for an architectural structure and the inability to prove their presence in the past).
When can I assign a joint venture?
Recognize the right to unauthorized construction for the builder is possible only if the following conditions are taken together:
- A person owns a plot of land where construction was carried out.
- This building does not affect or violate the rights of other citizens.
- The new construction site does not threaten anyone's life and health.
- The developer attempted to obtain all the necessary permits for construction and operation.
Statute of limitations
In cases of this kind, the statute of limitations does not apply.
The fact is that such a category in civil law is important for persons whose rights are violated; here, the offender himself is the subject.
What the court decision depends on
The court decision in this matter depends on:
- An object of unauthorized construction, movable or immovable in its characteristics.
- The developer is the owner of the land, or this territory is owned by another person.
- Does the facility comply with the norms and rules established in accordance with the requirements of the law.
The presented list of questions that the court asks itself is exhaustive and closed.
Variability of legalization of joint ventures
If the court finds that there are grounds for legalizing an unauthorized construction project and the absence of all the signs that impede this (except for a building permit. It is received before the start of the process and then it cannot be done), then the lawsuit will be satisfied.
Differences should be understood: a court decision is necessary to legitimize unauthorized construction, and a building permit is a stage that precedes the construction and makes it lawful from the very beginning.
A decision in the case, if the plaintiff's requirements are satisfied, will probably be implemented in several options, we will consider this issue in more detail:
- The right to unauthorized construction goes to the one who was responsible for the construction of the building. It should be borne in mind that the site must be in state or municipal ownership. But only not in private ownership, although this is possible, but only after forcible removal of it from the owner or alienation on a contractual basis. When a court considers a claim for unauthorized construction, it is not extremely important that the right to a joint venture be in the developer’s pocket. A written notification of the owner of the further provision of the land plot for operation is sufficient. From judicial practice on unauthorized buildings, we can conclude that this method is frequent in use.
- If a building was erected on someone else’s territory and it complies with the necessary rules and requirements and does not threaten others, then the person who has the right to property can apply not for demolition of the building, but for recognition of the right to it. The owner of the land will own the unauthorized construction. In this case, he will be obliged to reimburse the developer all the money spent on the construction. The amount of compensation is determined in court. To use such an object will be possible only in accordance with its permitted purpose. Ownership of an unauthorized construction is recognized by the owner of the site also in the event that when the purchase there was already an illegal structure.
Who can be the other side of the dispute
If a person is confident that an unauthorized building can not be legalized, then it can enter into a dispute over the forced demolition of the unauthorized construction. Who can be the subject of such a relationship?
- Firstly, they can be the owner of the land where the building was built.
- Secondly, a person living or carrying out his activities in the neighborhood and believes that his rights, freedoms and legitimate interests are violated by the new facility. He must defend the idea that the preservation of the building will be contrary to the Constitution and the current legislation in the Russian Federation.
- Thirdly, the law enforcement officer - the prosecutor has such authority, thereby he will pursue the goal of protecting the interests of society.
Legal responsibility for self-construction
Public services found that every year the percentage of unregistered buildings increases. Nobody complains about their owner, and they themselves do not want to legitimize their activities. Since 2017, air control was introduced in Moscow and the Moscow Region. Pictures taken during aerial photography are compared with data from the Bureau of Technical Inventory (BTI). The frames clearly show buildings that are not in the BTI base. Thus, violations are revealed.
Persons going against the law will have to undergo tax liability. In addition to tax refunds for three years, they are entitled to a fine of 20% of this amount.
If the object has not been registered within 10 years from the date of land acquisition, then the tax will be charged in double amount.
Demolition procedure
Demolition is forcibly carried out only in court proceedings.
Decisions taken by authorities in an administrative order are unacceptable and will be invalid, for the reason that it does not comply with Article 35 of the Constitution of the Russian Federation.