222 article of the Civil Code of the Russian Federation supplements the legislative acts regulating the sphere of construction, including issues related to the provision of sites for the construction of structures. Violation of the established requirements in this area entails a specific sanction: the property right does not arise on the object.
Thus, article 222 of the Civil Code of the Russian Federation does not cancel the measures of responsibility provided for by special rules. For example, administrative fines apply to violators. Let us consider in detail the provisions of article 222 of the Civil Code of the Russian Federation on unauthorized construction with comments.
Terminology
What is an unauthorized building? Article 222 of the Civil Code of the Russian Federation in the first paragraph contains a definition of this concept.
An unauthorized building is a structure or other structure created (erected) on a site:
- not allocated to a citizen according to the established rules;
- permissible use of which does not provide for the construction of an object on it.
Unauthorized buildings also include buildings created without the necessary permits or with non-compliance with building rules and norms.
Liability measures
As mentioned above, the sanctions for unauthorized construction of an object under article 222 of the Civil Code of the Russian Federation are very specific. If there is no property right, the person who built the object cannot make any transactions with it. In particular, rental, donation, sale, etc. are not allowed.
In addition, as indicated in the second paragraph 2 of article 22 of the Civil Code of the Russian Federation , the object is subject to demolition either by the person who built it, or at its expense. An exception to the rule is established in paragraphs 3, 4 of the analyzed norm.
Property Recognition
According to the latest amendments to Article 222 of the Civil Code of the Russian Federation, the court can recognize for the person whose allotment with the created object is in perpetual use, property, inherited possession, ownership of the building. In this case, the following conditions must be met simultaneously:
- The person who has built the facility has rights to the building with regard to the site.
- On the date of appeal to the court, the building complies with the rules of development and land use, the parameters fixed by the design documents for the planning of the territory or the mandatory requirements for the parameters that are present in other regulatory acts.
- Preservation of the object does not infringe on the rights and interests of other persons, does not create a danger to their health and life.
In such a situation, the entity that obtained the ownership of the structure compensates the construction costs to the entity that carried it out.
Local government action
Territorial self-government structures may decide to demolish a structure built without permission if the site is located in a zone with a special regime of use, on a common territory or within the boundaries of the engineering communications allotment zone. An exception is provided for zones of protection of objects of cultural and historical heritage of the peoples of the Russian Federation.
Within a week after the approval of the demolition order, the structure that adopted it sends a copy of the act to the subject who built the facility. The decision shall indicate the period by which the demolition is due. It is calculated taking into account the nature of the object, but should not exceed 12 months.
Additional Rules
If the entity that built the facility in violation of the established rules has not been identified, the procedure for action of the authorized structure of local authorities, as enshrined in new article 222 of the Civil Code of the Russian Federation, is applied. Within seven days from the date of the decision on the demolition, the authorized body must ensure:
- Publication of the act in accordance with the rules enshrined in the charter of the administrative-territorial unit (municipal district or city district).
- Posting on the website of the authorized structure and information board within the area on which the structure is located, messages about its demolition.
If in this case the person who completed the construction is not identified, the demolition may be organized by the body that issued the decision, but not earlier than 2 months. from the date the information was posted on the Internet.
Article 222 of the Civil Code with comment
Land plots classified as municipal or state property are allocated for construction according to the rules of 30-32 LC. The Code divides the provision of plots by prior coordination of the location of the facility and without it. In the latter case, the organization of bidding is provided.
Subject to the rules of the , , and other regulatory acts, the allocation of an allotment for construction is recognized as legitimate.
It must be said that Russian legislation also applies in the territory of Crimea. Article 222 of the Civil Code of the Russian Federation , accordingly, extends its effect to buildings erected without permission on the territory of the republic.
Developer
This term has no special legal content at present, since the previously existing institution of development in the current legislation is not fixed. In modern standards, building construction activities are recognized as buildings.
It is traditionally believed that a developer can be a legal entity or a citizen. He carries out the construction for himself or on his own, or with the involvement of a contractor. In the latter case, the developer is the customer.
The construction of the facility may also be carried out by the person to whom the allotment was granted or a long-term lease with subsequent transfer of the facility to third parties.
Mandatory documents
In the Law "On Architectural Activities" (Federal Law No. 169), a person who intends to carry out the construction or reconstruction of an architectural object is recognized as a developer. For the construction of the building, you must obtain a permit and develop a project. The latter is performed on the basis of the architectural planning task. It, in turn, should include:
- provisions of urban planning documentation approved by the established rules;
- compulsory sanitary-hygienic, fire-prevention, environmental, facility requirements;
- prescriptions for the protection of cultural and historical complexes;
- indications of special construction conditions (seismic zone, permafrost, etc.);
- requirements for observing the interests and rights of individuals and legal entities, if they are affected by construction.
A refusal to issue and issue an architectural and planning assignment and permission to erect an object may be challenged in a court or body of territorial (regional) authority.
Nuances
Lack of permission to build an object, architectural and planning assignment or non-compliance with the conditions set forth in these documents is regarded as a violation entailing the recognition of the building as unauthorized. Meanwhile, legislation allows for the possibility of eliminating deviations from the project.
The main consequence of the recognition of unauthorized construction is the impossibility of state registration of property rights. At the same time, this right is reserved for the building materials from which the construction is made.
It follows that only the rightful owner of these materials can disassemble the building. Other persons are entitled to carry out demolition (dismantling) of an object only by a court decision. Moreover, materials are allowed to be held only in accordance with article 359 of the Civil Code in order to ensure the rights of claim.
If the property, the right to which was registered, has signs of unauthorized construction, this fact does not exclude the possibility of presenting a demolition request.
Acquisition of rights
The property can be registered by the developer if the site on which the structure is located was provided to him in the prescribed manner for construction. Accordingly, in disputes, the court should require evidence of the allotment for the construction of the facility. Supporting documents must be provided by the developer.
A person who has the rights to allotments specified in Section 222 is entitled to take ownership of the object. At the same time, he must compensate the costs of the developer. The application of this rule assumes that the developer has occupied the site and construction has begun against the will of the rightful owner.
Arbitrage practice
If the construction was carried out with the consent (at will) of the owner of the allotment, and an agreement was signed between the parties fixing the construction conditions, the dispute must be resolved based on the content of the agreement.
For example, the plant has a plot in perpetual use. The company enters into an investment agreement with AO. Under the terms of the transaction, the company is building a terminal for reloading fertilizers on the territory of the plant.
The terminal is built on poles installed on the site belonging to the enterprise. It is not possible to conduct a real division of the territory.
And after the construction is completed, the plant, referring to the fact that the joint-stock company has not been granted a land plot for construction in the prescribed manner, sends a claim for recognition of the terminal as an unauthorized building. At the same time, the enterprise requires the ownership of the building.
The court in this case will not reveal violations of regulatory requirements and deviations from the project. Since the agreement between the parties was not contrary to the law, the developer occupied the site to the extent that it was required for the construction. In this case, the actions were agreed with the owner of the allotment. Accordingly, there are no grounds for recognizing the terminal as an unauthorized building. His fate in this and similar cases should be decided in accordance with the terms of the agreement itself.