Since 2015, the conditions for recognizing ownership of buildings classified as unauthorized have changed. In the Civil Code, 222 articles are devoted to the regulation of this sphere. On September 1 of the year indicated above, adjustments to this norm entered into force. Amendments were made to Federal Law No. 258 of July 13, 2015. As a result, legalizing unauthorized construction is currently quite problematic. However, it is worth saying that the tightening of the rules happened much earlier. Many citizens erected and continue to build unauthorized buildings. Litigation in cases concerning the status of such facilities is quite extensive. As part of the proceedings, thus, certain requirements were deduced for the owners and other interested parties. They were not fixed regulatory. Since 2015, the rules have been fixed at the legislative level. Let us further consider how the recognition of ownership of unauthorized construction is carried out today.
The concept
In the previous edition of Art. 222 the following definition was present. Unauthorized constructions on a land plot are real estate objects created on a certain allotment, not set aside for these purposes in the manner prescribed by a legislative or other regulatory act, or without obtaining the necessary documents, or with significant non-compliance with the rules. Federal Law No. 258 changed this definition. Currently, unauthorized construction should be understood as a structure, building, other structure erected on an allotment not provided according to the established rules, or on a site, the permissible use of which does not include construction. This category also includes objects created without obtaining the necessary papers or in violation of the norms established in the regulations. For example, under the action of 222 articles, a garage without documents is included.
Building
Changes made to article 222 concerned, first of all, the characteristics of objects. Previously, “dwelling houses, other buildings, structures, or other real estate” could be attributed to unauthorized buildings, now only “a structure, building, other structure”. To clarify the concepts should refer to federal law. The Federal Law No. 384 indicates that the building is the result of construction, expressed as a volumetric construction system. It contains the above-ground / underground parts, premises, utilities. The building is intended for people to live, store products, locate production, and keep animals. Clarification of the types of such objects has developed by default. Buildings are thus considered residential or non-residential. Explanations on this issue are given by YOU in Decree No. 12048/11 of January 24, 2012. The concept of “ unauthorized construction of a house ” can also be applied to unfinished objects. The corresponding provision is present in the plenary Resolution of the Armed Forces No. 10 and the Supreme Arbitration Court No. 22 of April 29, 2010.
Buildings
This term is used in the revised article 222 instead of “other real estate”. The definition of the structure is present in the Instructions on the implementation of housing stock accounting in the Russian Federation. It is approved by the Order of the Ministry of Land Construction No. 37 dated Aug. 4. 1998. Building - a house, a building, office buildings, including those built separately and consisting of 1 or more parts, presented as a whole. This concept is more accurate than "real estate". The latter, among other things, includes allotments, bowels. Accordingly, it is somewhat incorrect to use the phrase "other real estate" in Art. 222.
Reconstruction
This concept is explained in article 1 of the Civil Code (paragraph 14). In June 2015, the Armed Forces indicated that, based on the meaning of Art. 222 of the Civil Code, other norms, the creation of new objects also recognizes a change in their characteristics, according to which they are individualized. In particular, this refers to the number of storeys, area, height. Thus, the residents of the old house who completed the reconstruction must comply with the established procedure for registration of the object. Along with this, this action should not be confused with the redevelopment and reconstruction of the premises. These concepts are delineated in the Review of Court Practices for Disputes Relating to Unauthorized Buildings.
Signs of objects
As the first, creation / erection on an allotment not reserved for these purposes according to the rules provided for in legislative and other normative acts can be called. For clarification, you should again turn to judicial practice. The object will be considered to be erected on an allotment not reserved for these purposes if the construction was carried out in violation of the order of intended use or contrary to the zoning order. The second sign is the creation of real estate without obtaining the necessary papers. In particular, the subject must have permission to build a house or other structure to carry out the relevant work. The description of this paper, the procedure for its receipt is present in Art. 51 GK. The permission to build a house or other facility confirms the compliance of the project with the plan of the territory or land surveying and gives the subject a legal opportunity to carry out the construction / reconstruction of the structure. One important point should be noted here. If the person did not take measures to obtain this paper, then legalizing unauthorized construction will be extremely problematic. The third sign of objects under article 222 is the creation / erection of structures in violation of urban planning rules and norms. Earlier in paragraph 1, there was an indication of materiality in case of non-compliance with the requirements. This criterion is excluded from the new edition of the article. Accordingly, there is no need to prove it in disputes. This, in turn, tightens the regulation on subjects. If there is at least one of the above signs, the object will be recognized as illegally constructed. Based on this, demolition of the self-construction will be carried out.
Obtaining official status
The legalization of self-construction , according to article 222, is currently under certain conditions. However, they must be performed simultaneously. Recognition of ownership of unauthorized construction is carried out:
- If, in relation to the allotment, the subject who created the object has legal capabilities allowing the construction of the structure.
- On the date of the claim, the building parameters correspond to the values defined in the layout of the territory and the rules of the regulations, or the mandatory requirements present in other regulatory acts.
- Preservation of the structure will not violate the interests of third parties and threaten their health / life.
The allotment at the same time should belong to the subject legally.
Intended use
Recognition of the right of ownership to unauthorized construction cannot be carried out if the territory is not operated for the intended purpose. At the same time, the competent authority denied the person a change in authorized use. Otherwise, the legalization of self-construction would be contrary to the provisions of Article 8 of the LC. This norm defines the procedure for assigning territories to one category or another and transferring allotments from one to another. When resolving one of the disputes, the Armed Forces indicated that the non-compliance of the construction with the intended purpose of the site within which it is located is a condition for refusing to satisfy the requirements for the recognition of property rights. In particular, a seven-story building cannot be created on an allotment intended for the construction of objects, the number of floors in which should not be more than 5.
Nuance
In some cases, the subject must have a building permit (commissioning act). However, the absence of this paper does not necessarily entail a refusal to satisfy the requirements. As part of the proceedings, the fact that the person took measures to obtain it is taken into account. In the Decree of the Armed Forces No. 10/22, the following is indicated. The lack of paper confirming the legal ability of a person to take measures for the construction of an object does not in itself act as a basis for refusal. At the same time, recognition of the right of ownership to unauthorized construction is impossible if the citizen did not take the necessary measures to obtain it, and the competent authority lawfully refused to issue it. In other words, it should be ascertained whether the subject carried out appropriate actions and what guided the authorized structure that did not provide the necessary paper.
Matching Parameters
The indicators defined in the planning documentation, building / land use rules or in the mandatory requirements present in other acts are taken as normative values. It seems that the latter include mainly various SNiPs. Meanwhile, it should be borne in mind that these rules and regulations apply to the edition that was in force at the time of the creation of the object.
Third condition
It concerns the observance of the interests of third parties and the exclusion of threats to their health and life. This condition logically follows from the previous one. For example, if during the reconstruction the established rules and norms were violated, then the residents of the old house may be at risk. Accordingly, the structure cannot be operated in the usual manner. The condition on the observance of the interests of third parties has found expression in judicial practice. So, when considering one of the cases, the Civil Disputes Board noted that one of the legally significant factors is the establishment of the fact that the preservation of the building does not violate the interests of related users allotment, as well as the procedure for placing objects on the ground established in the municipality. Moreover, the Sun explains that the presence of notarized consent of the owners of the plots does not exempt the subject who built the building from fulfilling the requirements contained in the urban planning rules and regulations. Violation of the latter in itself creates a danger to an unlimited number of persons.
conclusions
When correlating the features of structures and conditions under which the recognition of ownership of an unauthorized construction is permissible , the following can be noted. An object can obtain legal status in only one case. This is possible if the absence of a building permit is the only sign. The presence of other signs will automatically mean the failure to fulfill one or several of the conditions specified in clause 3 222 of the article. This is also stated in paragraph 26 of Resolution No. 10/22. In it, in particular, it is indicated that, unless otherwise provided by law, a claim demanding to recognize the ownership of the building must be satisfied if it is established that the absence of the necessary papers (the act of putting into operation or confirming legal the ability to conduct appropriate work on the ground), if the subject took measures to obtain them.
Demolition of the squatter
It is carried out in two ways. In the first case, work is carried out in accordance with a court decision. The general rules are established by article 222 in paragraph 2. In accordance with the norm, demolition of self-construction is carried out by the person who created it or at its expense. Clause 22 of Resolution No. 10/22 defines the circle of persons who may file a corresponding claim. Demand the liquidation of structures:
- Title owners put on.
- The owners of the territory.
- A subject whose interests are violated by the creation of a structure.
- Authorized body in accordance with federal regulations.
- Public Prosecutor.
Alternative option
Norms allowed the liquidation of buildings and out of court. For this, the local government takes an appropriate decision. The basis for its adoption is the erection or creation of a building on the allotment:
- Not provided for this purpose in accordance with the established procedure.
- Located in a zone with a special regime of use or in a common area. The exception is protected areas of cultural and historical monuments.
- Located within the allotment band of engineering networks of local, regional or federal significance.
The decision taken by the territorial authority can be appealed.
Conclusion
So, from the first of September 2015, new rules apply. Article 222 of the Civil Code introduces significant changes that tighten legal regulation in the field of construction. The new edition of this norm clarifies a number of concepts and concretizes the signs of objects. At present, the construction, building or other structure that has been created / built is acting as a self-building system:
- On the allotment that was not provided to the subject for this in the manner specified by the rules.
- In the territory, the intended use of which does not provide for the placement of structures.
- Without obtaining the necessary papers or in violation of urban planning rules and regulations.
In order for the structure to receive the appropriate status, at least one condition is sufficient. Ownership of a garage or other structure can be obtained in the prescribed manner. An appropriate legal opportunity may be assigned to specific individuals who meet the requirements. In particular, it should be an entity having an allotment on which the object is located, in a lifetime possession, property, unlimited use. At the same time, the available legal opportunities should allow the construction / construction of a structure in this territory. In addition, on the date the petition is filed, the building must comply with the parameters provided for in the planning, land use / development rules or the mandatory requirements present in other regulatory acts. Another prerequisite is the observance of the interests of third parties, the exclusion of danger to their life / health if the object is saved on the ground. For ownership to be recognized, all conditions must be met.