Responsibility for arbitrariness. Penalty for unauthorized construction. Self-built garage

14. Is the erection of unauthorized construction an offense?

Unauthorized construction - an object that physically falls under the characteristics of a real estate object, but the creation of which occurs in violation of established legal norms, since the developer ignores the requirements of the law and other legal norms during land acquisition (builds on a land plot not intended for these purposes), or in preparation to construction (does not receive the appropriate permit), or in the process of construction itself (does not adhere to urban planning norms and rules), in connection with which, in its legal essence, unauthorized construction is an offense (Savina A.V. Legal regime of unauthorized construction: Dis. ... Candidate of Law, Samara, 2010, p. 74).

As a result of unauthorized construction, there is a violation of absolute property and personal non-property rights and, as a result, an obligation arises to compensate for it, arising from the tort.

The owner of the land plot, as well as other persons who have been harmed by unauthorized construction, have the right to count on its compensation (Soboleva A.V. On the problem of compensation for harm caused by unauthorized construction // Notary. 2006. N 5. P. 26 - 27).

However, the civil law consequences of this offense consist not only in causing harm, but also in the impossibility of actually using the land plot on which the unauthorized real estate object is located, which is not subject to introduction into civil circulation.

15. What types of liability are entailed by the erection of an unauthorized structure?

Article 222 of the Civil Code of the Russian Federation provides for a number of measures of civil liability for the implementation of unauthorized construction. Firstly, from the point of view of private law, violation of the relevant provisions of the law and administrative acts entails a sanction due to the impossibility of recognizing the right of ownership of an unauthorized building. Secondly, as a sanction for the unauthorized construction of a building, paragraph 2 of Art. 222 of the Civil Code of the Russian Federation establishes a rule according to which the commission of any transactions with this property is expressly prohibited. Thirdly, the general legal consequence of erecting an unauthorized structure is its demolition at the expense of the developer.

The Constitutional Court of the Russian Federation in Ruling of 03.07.2007 N 595-O-P "At the request of the Sormovsky District Court of the city of Nizhny Novgorod to verify the constitutionality of the second paragraph of paragraph 2 of Article 222 of the Civil Code of the Russian Federation" indicated that "unauthorized construction is an offense that consists in violation of the norms of land legislation regulating the provision of a land plot for construction, or urban planning norms regulating design and construction. Therefore, the person who carried out the unauthorized construction is not, contrary to the applicant's opinion, the legal owner. Introducing the legal regulation of unauthorized construction, the legislator fixed in paragraph 1 of Article 222 of the Civil Code of the Russian Federation three signs of unauthorized construction, namely: the building must be erected either on a land plot not allocated for these purposes in the manner prescribed by law, or without obtaining the necessary permits, or with a significant violation of urban planning and building norms and rules (moreover, to determine it as such, the presence of at least one of these signs is sufficient), and established in paragraph 2 of the same article the consequences, i.e. a sanction for this offense in the form of a refusal to recognize the right of ownership of the developer and the demolition of an unauthorized building by the person who carried it out or at his expense.

It should be noted that civil liability measures are also provided for:

- Clause 1 of Article 24 of the Federal Law "On Architectural Activities in the Russian Federation", which provides that a citizen or legal entity constructing an architectural object without a building permit (unauthorized construction) or in violation of the approved urban planning documentation, is liable in accordance with the Code of the Russian Federation of Administrative Offenses;

- Article 76 of the Land Code of the Russian Federation, indicating that legal entities and citizens are obliged to fully compensate for the damage caused as a result of their committing land offenses. Unauthorized occupied land plots shall be returned to their owners, land users, landowners, tenants of land plots without reimbursement of expenses incurred by persons guilty of violating land legislation during the illegal use of these land plots. Bringing land plots into a usable condition when they are littered, other types of damage, unauthorized occupation, demolition of buildings, structures, structures during unauthorized occupation of land plots or unauthorized construction, as well as the restoration of destroyed boundary marks is carried out by legal entities and citizens guilty of these land offences, or at their expense.

Thus, the above provisions of the legislation provide for the onset of both property and administrative liability for unauthorized construction.

16. What types of liability are provided for the use of land plots not in accordance with their intended purpose?

Article 42 of the Land Code of the Russian Federation establishes that owners of land plots and persons who are not owners of land plots are obliged to use land plots in accordance with their intended purpose and belonging to a particular category of land and permitted use in ways that should not harm the environment , including the earth as a natural object.

In case of violation of these requirements, these persons may be held administratively liable under Art. 8.8 of the Code of Administrative Offenses of the Russian Federation, according to which the use of a land plot not for its intended purpose in accordance with its belonging to a particular category of land and the permitted use or non-use of a land plot intended for agricultural production or housing or other construction, for the specified purposes in the passage of the term established by federal law, with the exception of the case provided for by part 1.1 of this article, shall entail the imposition of an administrative fine on citizens in the amount of one thousand to one thousand five hundred roubles; for officials - from two thousand to three thousand rubles; for legal entities - from forty thousand to fifty thousand rubles (as amended on July 28, 2012).

Also, Article 285 of the Civil Code of the Russian Federation provides for the possibility of withdrawing a land plot from the owner if the use of the land plot is carried out with a gross violation of the rules for the rational use of land established by land legislation, in particular, if the land plot is not used in accordance with its intended purpose or its use leads to a significant decrease in fertility of agricultural lands or a significant deterioration of the environmental situation.

17. Who has the right to bring a claim for the demolition of an unauthorized structure?

An analysis of the current legislation allows us to conclude that the legal nature of a claim for the demolition of an unauthorized building is closest to the so-called negatory claim (Article 304 of the Civil Code of the Russian Federation), according to which the owner can demand the elimination of any violations of his right, even if these violations were not associated with dispossession.

However, as follows from the content of clause 22 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 of 04/29/2010 "On some issues that arise in judicial practice in resolving disputes related to the protection of property rights and other property rights", Claims for the demolition of an unauthorized structure may be filed not only by the owner of the land plot, but also by the subject of another real right to the land plot, its legal owner, or a person whose rights and legitimate interests are violated by the preservation of an unauthorized structure, have the right to apply to the court according to the general rules of jurisdiction cases with a claim for the demolition of unauthorized buildings. Also, the prosecutor, as well as other authorized bodies in accordance with federal law, may file a claim for the demolition of an unauthorized building in the public interest.

Owner.

The erection by a developer on someone else's land of a building or structure without obtaining the express and documented consent of the owner or without his knowledge entails the recognition of the object as an unauthorized construction on a private law basis in connection with a violation of civil and land law. By virtue of Art. 209 of the Civil Code of the Russian Federation, the owner, at his own discretion, owns, uses and disposes of his property. The consent of the owner to the construction on the land plot belonging to him cannot be assumed. His consent to the construction of a particular real estate object must be explicit. The promise of the owner to provide a land plot for the erected project is not considered evidence of consent and has no legal significance.

The authority of the owner to freely use his land plot is significantly limited by the arbitrary location of someone else's building on it. In this case, a property conflict often arises between the owner of a land plot and a person who intends to carry out state registration of ownership of the property he has built. In this case, the law recognizes the requirement to demolish the unauthorized building as the main way to protect the rights of the owner from unauthorized construction.

The subject of another real right to a land plot, its legal owner.

The person who owns a limited real right to the land plot on which the building is located (the subject of the right of permanent (perpetual) use or lifelong inherited possession of the land plot, the tenant) has the right to bring a claim for the demolition of an unauthorized structure, including because the unauthorized the building (even erected in compliance with building codes and regulations) violates his rights. The normative justification for this thesis is the provision of Art. 305 of the Civil Code of the Russian Federation, which gives the rightful owner the right to protect his possession of property from any violations. It is also assumed that such a claim can be brought by the owner of a limited property right even against the owner of the site, who illegally erected a structure on it, since Art. 305 of the Civil Code of the Russian Federation allows you to protect the possession of holders of limited real rights from the owner of the property (Stanislavov D.I. Some issues of the demolition of unauthorized buildings // Laws of Russia: experience, analysis, practice. 2011. N 1. P. 75 - 80).

A person whose rights and legitimate interests are violated by the preservation of an unauthorized structure.

As follows from paragraph 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N 143 "Review of judicial practice on certain issues of application by arbitration courts of Article 222 of the Civil Code of the Russian Federation", the right to demand the demolition of an unauthorized building along with the owner, the subject of another real right to a land plot , the legal owner of the land plot on which an unauthorized structure is erected, is also possessed by other persons whose rights and legally protected interests are violated by the preservation of an unauthorized structure. Thus, the joint-stock company applied to the arbitration court with a claim against the limited liability company for the demolition of the building erected by the defendant on the land plot leased by him.

In support of his claim, the plaintiff referred to the fact that the disputed object is an unauthorized construction, since it was erected with significant violations of urban planning and building codes and regulations. The land plot of the plaintiff borders on the land plot on which the defendant erected an unauthorized building. The preservation of this building violates the rights of the plaintiff.

By the decision of the court of first instance, left unchanged by the decision of the court of appeal, the claim was dismissed due to the fact that the plaintiff does not have the right to bring a claim for the demolition of the building as unauthorized construction.

The courts indicated that, in accordance with paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, an unauthorized construction is such a structure or structure that was created on a land plot not allocated for these purposes in the prescribed manner, or erected without obtaining the necessary permits or with a significant violation of urban planning and building codes and regulations.

It follows from this that the erection of an unauthorized structure may violate the rights and legitimate interests of the owner or other legal owner of the land plot on which the unauthorized structure is erected, or citizens, if the preservation of such a structure creates a threat to their life and health.

The plaintiff has no rights to the land on which the building is erected. The owner of the land plot did not object to the construction of the disputed object. In addition, the plaintiff is not the subject that has the right to go to court to protect the rights and legitimate interests of other persons.

The court of cassation annulled the judicial acts of the first and appellate instances, and remanded the case for a new trial, proceeding from the following.

By virtue of the last paragraph of paragraph 3 of Art. 222 of the Civil Code of the Russian Federation, the right of ownership of an unauthorized building cannot be recognized if the preservation of the building violates the rights and legally protected interests of other persons or creates a threat to the life and health of citizens.

It follows from this norm of the law that not only the owner or other legal owner of the relevant land plot has the right to apply to the court with a demand for the demolition of an unauthorized building, but also persons whose rights and legitimate interests have been violated by the preservation of the building, as well as citizens, life and health which are threatened by its preservation. A different interpretation of the provisions of Article 222 of the Civil Code of the Russian Federation means a denial of judicial protection of the violated rights and legitimate interests of these persons.

The court of cassation indicated that the court did not evaluate the evidence presented by the plaintiff, indicating his interest as an adjacent land user in the statement of the specified requirement, as well as evidence of a significant violation of urban planning and building codes and regulations during the construction of the disputed building.

In this regard, the case was sent for a new trial, in which the court had to assess the plaintiff's interest in filing these claims and consider the dispute on the merits, as well as involve the owner of the land plot in the case, either as a third party on the side of the defendant, or taking into account the fact that he actually approved the actions of the person who carried out the unauthorized construction as a co-defendant (at the request or with the consent of the plaintiff).

Prosecutor.

According to paragraph 1 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of March 23, 2012 N 15 “On Certain Issues of the Prosecutor’s Participation in the Arbitration Process”, arbitration courts should keep in mind that the prosecutor has the right to apply to the arbitration court, in particular with a demand to liquidate a legal entity due to repeated or gross violation by this legal entity of exclusive rights to the results of intellectual activity and to means of individualization, as well as with the requirement to demolish an unauthorized building in order to protect public interests (Articles 1253, 222 of the Civil Code of the Russian Federation).

This position can also be derived from the provisions of paragraph 4 of Art. 27 of the Federal Law of January 17, 1992 N 2202-1 "On the Prosecutor's Office of the Russian Federation", according to which, in the event of a violation of the rights and freedoms of a person and a citizen, protected in civil proceedings, when the rights and freedoms of a significant number of citizens are violated or in due to other circumstances, the violation has acquired a special social significance, the prosecutor presents and maintains a claim in court or arbitration court in the interests of the victims. In addition, according to paragraph 3 of Art. 35 of this Law, the prosecutor, in accordance with the procedural legislation, has the right to apply to the court with a statement if this is required by the protection of the rights of citizens and the interests of society or the state protected by law.

As part of the clarifications on the practice of the issue, paragraph 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N 143 “Review of judicial practice on certain issues of application by arbitration courts of Article 222 of the Civil Code of the Russian Federation” states that the prosecutor has the right to apply to the arbitration court with a claim for demolition unauthorized construction in order to protect the public interest. Thus, the prosecutor filed a lawsuit against a joint-stock company with an arbitration court for the demolition of a gas station with a shop and a washing unit erected by the defendant as an unauthorized building (Article 222 of the Civil Code of the Russian Federation).

In support of his claim, the plaintiff referred to the fact that construction norms and rules were significantly violated during construction, which could result in the collapse of these facilities. According to the prosecutor, the preservation of the building poses a threat to the life and health of citizens.

By the decision of the court of first instance, the claim was denied, since the prosecutor, by virtue of Article 52 of the Arbitration Procedure Code of the Russian Federation, does not have the right to bring a claim for the demolition of an unauthorized building.

This decision was overturned by the Court of Appeal for the following reasons.

According to paragraph 4 of Art. 27 of the Federal Law "On the Prosecutor's Office of the Russian Federation", in the event of a violation of the rights and freedoms of a person and a citizen, protected in civil proceedings, when the rights and freedoms of a significant number of citizens are violated, or due to other circumstances the violation has acquired special social significance, the prosecutor presents and supports in court or arbitration court claim in the interests of the victims. Based on paragraph 3 of Art. 35 of the said Law, the prosecutor, in accordance with the procedural legislation, has the right to apply to the court with a statement if this is required by the protection of the rights of citizens and the interests of society or the state protected by law.

The Court of Appeal pointed out that, within the meaning of these norms, as well as the provisions of Article 52 of the Arbitration Procedure Code of the Russian Federation, the latter cannot be considered as a prohibition for the prosecutor to file a demand with the arbitration court for the demolition of an unauthorized building in the interests of an indefinite circle of persons, including citizens. With a different interpretation of these legal norms, the prosecution authorities will be deprived of the opportunity to implement the functions assigned to them, and an indefinite circle of persons, in whose interests the prosecutor has filed a demand, will be deprived of the opportunity to protect their violated rights and legitimate interests.

The Court of Appeal also took into account that the grounds for bringing a lawsuit to the court for the demolition of the gas station were numerous appeals from citizens living near the disputed facility.

In connection with the foregoing, the appellate court considered the prosecutor's claim on the merits.

In another case, the prosecutor filed a lawsuit against a limited liability company with an arbitration court for the demolition of a warehouse erected by the defendant as an unauthorized building.

As the prosecutor pointed out, the building was created on a land plot owned by a state institution on the right of permanent (unlimited) use, while there is no consent for construction given by this institution and an authorized representative of the owner of the property of the institution.

The decision of the court of first instance dismissed the claim on the basis of the following.

The prosecutor has the right to apply to the arbitration court with a claim for the demolition of an unauthorized building in the public interest. Thus, the prosecutor has the right to demand the demolition of an unauthorized building, the preservation of which poses a threat to the life and health of citizens.

Authorized bodies in accordance with federal law.

Based on the content of Art. 2, 54 of the Town Planning Code of the Russian Federation, the authorities exercising state construction supervision have the right to demand the demolition of an unauthorized building, while local governments also have similar powers. This conclusion follows from the provisions of Art. 125 of the Civil Code of the Russian Federation, art. 53 of the Arbitration Procedure Code of the Russian Federation, art. 46 of the Civil Procedure Code of the Russian Federation, art. 14 of the Federal Law of October 6, 2003 N 131-FZ "On the General Principles of the Organization of Local Self-Government in the Russian Federation", Art. 8 of the Town Planning Code of the Russian Federation, Art. 11, 28 - 30, 32, 62 of the Land Code of the Russian Federation, according to which the competence of local authorities includes: control over the planning and development of territories of municipalities; possession, use and disposal of municipal property; issuance of building permits; provision of land plots for construction and reconstruction. In practice, such demands on behalf of these bodies are most often made by local governments.

Paragraph 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N 143 “Review of judicial practice on certain issues of application by arbitration courts of Article 222 of the Civil Code of the Russian Federation” determines that the body exercising construction supervision has the right, in defense of public interests, to apply to the arbitration court with a claim on the demolition of an unauthorized building, created without obtaining the necessary permits or with a significant violation of urban planning and building codes and regulations. Thus, the body exercising construction supervision applied to the arbitration court with a claim against the joint-stock company for the demolition of an unauthorized building erected by the defendant (shop building).

In support of the stated claim, the plaintiff pointed out that the disputed building was erected with significant violations of building codes and regulations, and its preservation poses a threat to the life and health of citizens. In addition, the joint-stock company, despite the refusal to put the store building into operation and repeated warnings from the plaintiff, uses the building for trade.

The decision of the Court of First Instance dismissed the claim for the following reasons.

In accordance with Article 53 of the Arbitration Procedure Code of the Russian Federation, state bodies, local governments and other bodies have the right to file claims or applications with an arbitration court in defense of public interests in cases provided for by federal law.

For the body exercising construction supervision, the right to file a lawsuit for the demolition of an unauthorized building is not expressly secured by law.

The Court of Appeal reversed the decision for the following reasons.

According to paragraphs. 1 and 2 of Article 54 of the Town Planning Code of the Russian Federation, state construction supervision is carried out during the construction, reconstruction of capital construction facilities, during their overhaul. The subject of state construction supervision is to verify the compliance of the work performed in the process of construction, reconstruction, overhaul, capital construction facilities with the requirements of technical regulations and project documentation.

By virtue of Art. 222 of the Civil Code of the Russian Federation, unauthorized construction is carried out without obtaining the necessary permits or with a significant violation of urban planning and building codes and regulations.

Thus, the result of construction supervision may be the establishment of the fact of a significant violation of urban planning and building norms and rules in the construction process, which is one of the grounds for classifying a building as unauthorized.

An unauthorized building is subject to demolition (clause 2, article 222 of the Civil Code of the Russian Federation). Forced demolition of an unauthorized building may be carried out only on the basis of a court decision that satisfies the claim for demolition.

The Town Planning Code of the Russian Federation defines the general powers of the bodies exercising construction supervision, which are necessary for the performance of the supervisory functions assigned to them.

The possibility of filing a claim for the demolition of an unauthorized structure in court follows from the objectives of supervision, determined by the principles of legislation on urban planning. To such principles, according to Art. 2 of the Town Planning Code of the Russian Federation, in particular, include: the implementation of town planning activities in compliance with the requirements of technical regulations; implementation of urban planning activities in compliance with the requirements for the security of territories, engineering and technical requirements, civil defense requirements, ensuring the prevention of natural and man-made emergencies, taking measures to counter terrorist acts; implementation of urban planning activities in compliance with the requirements of environmental protection and environmental safety.

In this regard, the body exercising construction supervision should be recognized as having the right to bring a lawsuit in the public interest in court for the demolition of an unauthorized structure. Art. 53 of the Arbitration Procedure Code of the Russian Federation cannot be considered as not allowing the exercise of the powers of the named body, enshrined in law.

18. Who will be the proper defendant in a claim to demolish a unauthorized structure?

As follows from paragraph 24 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 of 04/29/2010 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights", within the meaning of the paragraph second paragraph 2 of Art. 222 of the Civil Code of the Russian Federation, the defendant in a claim for the demolition of an unauthorized building is the person who carried out the unauthorized construction. When creating an unauthorized building with the involvement of contractors, the defendant is the customer as the person on whose instructions the unauthorized building was carried out.

If an unauthorized building is in the possession of a person who did not carry out unauthorized construction, the defendant in a claim for the demolition of the unauthorized building is the person who would have become the owner if the building had not been unauthorized. For example, in the case of the alienation of an unauthorized building, its acquirer; when making an unauthorized construction as a contribution to the authorized capital - the legal entity that received such property; in the event of the death of an individual or the reorganization of a legal entity, the person who received the property into possession.

If the ownership of the unauthorized building is registered not with the owner, but with another person, such a person must be brought as a co-defendant to participate in the case for the demolition of the unauthorized building (paragraph two of part 3 of article 40 of the Civil Procedure Code of the Russian Federation or part 2 article 46 of the Arbitration Procedure Code of the Russian Federation).

19. What is the territorial and tribal jurisdiction of claims for the demolition of unauthorized buildings?

Based on the content of paragraph 1 of Art. 30 of the Civil Procedure Code of the Russian Federation, part 1 of Art. 38 of the Arbitration Procedure Code of the Russian Federation, it can be concluded that claims for the demolition of unauthorized buildings are brought to the court at the location of these objects, since these requirements are directly related to the rights to land plots, buildings, including residential and non-residential premises, buildings, structures, other objects firmly connected with the land (exclusive jurisdiction).

Subject to the provisions of Art. 23 of the Civil Procedure Code of the Russian Federation, art. 27 of the Arbitration Procedure Code of the Russian Federation, it must be borne in mind that if an unauthorized building belongs to an individual, then the statement of claim is filed with the district court of general jurisdiction at the location of the object, if the defendant is an organization or an individual entrepreneur, then the issue of its demolition is decided by the arbitration court at the location of the building.

20. Is there a statute of limitations on the requirement to demolish an unauthorized structure?

As stated in paragraph 22 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 of 04/29/2010 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights", the requirement for demolition of an unauthorized structure that poses a threat to the life and health of citizens, the limitation period does not apply.

Also, within the meaning of Articles 208 and 304 of the Civil Code of the Russian Federation, the limitation period does not apply to the claims of the owner or other owner to eliminate violations of his right (by demolishing an unauthorized property), if these violations were not connected with deprivation of possession.

Practical aspect

According to paragraph 6 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N 143 “Review of judicial practice on certain issues of application by arbitration courts of Article 222 of the Civil Code of the Russian Federation”, the limitation period does not apply to the requirement to demolish a building created on the plaintiff’s land plot without its consent if the plaintiff owns the land.

An individual entrepreneur - the owner of a land plot - filed a lawsuit with an arbitration court against a limited liability company for the demolition of buildings erected by the latter on part of the plaintiff's land plot.

In support of their claims, the plaintiff, referring to the provisions of Art. 222 of the Civil Code of the Russian Federation, indicated that he did not give consent to the construction of the disputed buildings.

The defendant, without disputing that the buildings are unauthorized, asked the court to dismiss the claim due to the fact that the plaintiff missed the limitation period, since the disputed buildings were erected and have been located on the plaintiff's land for more than five years.

Objecting to the application of the statute of limitations, the plaintiff pointed out the following. He is not deprived of ownership of the land as a whole. The stated requirement for the demolition of unauthorized buildings, in essence, is a requirement to remove obstacles to the owner in using this site, and therefore - a way to protect property rights, provided for in Art. 304 of the Civil Code of the Russian Federation. The limitation period does not apply to such claims by virtue of a direct indication of the law (Article 208 of the Civil Code of the Russian Federation).

The Court of First Instance found the defendant's arguments about the expiration of the limitation period reasonable and dismissed the claim on this basis.

At the same time, the court indicated that the requirement for the demolition of an unauthorized building is not a type of negatory claim, since from Art. 222 of the Civil Code of the Russian Federation it follows that it can be declared not only by the owner or other legal owner of the land plot on which the disputed building was erected. The law does not name among the claims to which the limitation period does not apply, the claim for the demolition of an unauthorized building.

The Court of Appeal annulled the decision of the Court of First Instance, and satisfied the claim on the basis of the following.

By virtue of Articles 304, 305 of the Civil Code of the Russian Federation, an owner or other person who owns property on the grounds provided for by law or an agreement may demand the elimination of any violations of his right, even if these violations were not connected with deprivation of possession. The limitation period does not apply to such a requirement (Article 208 of the Civil Code of the Russian Federation).

A claim for the demolition of an unauthorized structure, filed in defense of its right to a land plot by a person who has not been deprived of possession of this plot, should be considered as a demand similar to the claim of the owner or other legal owner to eliminate any violations of his rights in relation to the land plot belonging to him, not related with dispossession. Therefore, the rules of Art. 208 of the Civil Code of the Russian Federation.

In this case, the demand for the demolition of unauthorized buildings was filed by the owner of the land plot on which they were erected, in connection with which the court had to apply to him the provisions of the Civil Code of the Russian Federation on a negatory claim (Articles 304, 208).

In another case, a municipal entity filed a lawsuit against a limited liability company for the demolition of a warehouse building in an arbitration court, substantiating its claim by the fact that the warehouse was erected by the defendant on a municipal land plot in the absence of the consent of the authorized representative of the owner, and therefore, is an unauthorized construction (Art. 222 of the Civil Code of the Russian Federation).

The defendant objected to the claim, referring to the fact that earlier the plaintiff had been denied satisfaction of the claim for the recovery of the disputed land plot from the defendant's possession (Article 301 of the Civil Code of the Russian Federation) due to the expiration of the limitation period. Therefore, the plaintiff has no interest in demolishing the warehouse, and the statute of limitations for the claim has also expired.

The plaintiff filed a counter-objection: the claim for the demolition of an unauthorized structure is not subject to the limitation period.

In refusing to satisfy the claim, the court of first instance pointed out that, within the meaning of Articles 208 and 304 of the Civil Code of the Russian Federation, the limitation period does not apply to the claims of the owner or other owner to eliminate violations of his right, if these violations were not connected with deprivation of possession.

Since the plaintiff, who considers himself the owner of the disputed land plot, does not actually own it, the question of the legality of erecting the disputed building without his consent could be resolved either when considering a vindication claim, or after satisfying such a claim. Consequently, if such a violation of the right of the owner or other legal owner of the land plot is connected with the deprivation of possession, then the demand for the demolition of a building created without the consent of the plaintiff can be brought only within the limitation period for a claim for the recovery of property from someone else's illegal possession (Art. 301 of the Civil Code of the Russian Federation).

Paragraph 7 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N 143 “Review of judicial practice on certain issues of application by arbitration courts of Article 222 of the Civil Code of the Russian Federation” establishes that the requirement to demolish an unauthorized structure that poses a threat to the life and health of citizens is not subject to limitation of action spreads.

The body exercising construction supervision filed a lawsuit with an arbitration court against an individual entrepreneur for the demolition of an unauthorized building created by the defendant with a significant violation of building codes and regulations. Objecting to the stated requirements, the defendant stated that the plaintiff had missed the statute of limitations.

Satisfying the claim, the court proceeded from the fact that the limitation period does not apply to such claims due to the following.

Article 11 of the Civil Code of the Russian Federation establishes that the protection of violated or contested civil rights is carried out in court. In accordance with Art. 195 of the Civil Code of the Russian Federation, the limitation period is recognized as the period for protecting the right on the claim of a person whose right has been violated.

The claim for the demolition of an unauthorized building created with a significant violation of urban planning and building norms and rules or without obtaining the necessary permits, the preservation of which violates the rights and legally protected interests of third parties or poses a threat to the life and health of citizens, is considered according to the rules of civil proceedings. However, such a claim is not aimed at protecting the civil rights of a particular person. In the cases described, a demolition claim is brought, in particular, in order to prevent violations of the constitutional rights of a person and a citizen, for example, the right to a favorable environment (Article 42 of the Constitution of the Russian Federation), to eliminate the existing threat to the life and health of citizens (paragraph 3 of Article 222 Civil Code of the Russian Federation), as well as bringing the building in line with the requirements recognized in the law to ensure the prevention of emergency situations, the requirements for the preservation of specially protected natural areas, etc.

Since filing a claim for the demolition of an unauthorized structure in this case is not associated with a violation of the civil law of a particular person, but with the elimination of the constant threat posed by the preservation of the building, the rules on the limitation period established by the Civil Code of the Russian Federation are not subject to application.

In addition, the court did not agree with the argument of the defendant, who believed that the demolition of an unauthorized building after a long period of time is impossible, including due to the expiration of the statute of limitations for administrative liability under Art. 4.5 of the Code of the Russian Federation on Administrative Offenses. As the court pointed out, the demolition of an unauthorized building, created with a significant violation of urban planning and building norms and rules, cannot be recognized as a measure of administrative responsibility and is aimed at curbing a continuing offense.

In another case, the body exercising construction supervision filed a claim with an arbitration court against an individual entrepreneur for the demolition of a store building erected by the defendant on a land plot belonging to him without a building permit.

The defendant, in his response to the claim, pointed out that the preservation of the building does not violate the rights and legally protected interests of other persons and does not pose a threat to the life and health of citizens, since it was erected on his land plot in compliance with urban planning and building norms and rules. In addition, the defendant stated that the plaintiff missed the statute of limitations.

The court of first instance noted that in itself the creation of a building without obtaining the necessary permits for this means that it, by virtue of paragraph 1 of Art. 222 of the Civil Code of the Russian Federation is unauthorized and is subject to demolition. However, since the plaintiff demanded the demolition of the building only on this formal basis, and the defendant provided evidence that the building was created on a land plot owned by him by right of ownership, in compliance with urban planning and building codes and regulations, such a requirement is subject to the limitation period in relation to articles 195 and 196 of the Civil Code of the Russian Federation. There was evidence in the case file that four years before the filing of the claim, the plaintiff received a letter from the defendant containing a request to put the disputed object into operation. Under such circumstances, the court of first instance denied the claim to the body exercising construction supervision.

The Court of Appeal, upholding the decision of the Court of First Instance, noted that non-distribution of such a requirement of limitation period would lead to adverse consequences for civil circulation and violation of the interests of subsequent purchasers of land plots on which buildings were erected, since it would allow the demolition of buildings and structures on this ground (lack of administrative permission to build) without any reasonable time limit for filing a claim for the demolition of the unauthorized structure.

Meanwhile, it must be borne in mind that in the event of a complete seizure of someone else's land plot with the implementation of subsequent construction on it, judicial practice considers a vindication claim for the recovery of a land plot from someone else's illegal possession (Articles 301, 302 of the Civil Code of the Russian Federation), and also an additional claim for the demolition of the building. If the violation of the right of the owner or other legal owner of the land plot is connected with the deprivation of possession, then the demand for the demolition of a building created without the consent of the plaintiff may be brought only within the limitation period for a claim for the recovery of property from someone else's illegal possession. The violated right cannot be restored by satisfying the claim for eviction of the defendants without resolving the issue of the demolition of the erected object and the release of the land plot under it. Thus, the refusal to vindicate a land plot due to the expiration of the three-year limitation period entails the refusal to satisfy the claim for the demolition of the building located on it.

Also, in the event that authorized bodies apply for the demolition of an unauthorized structure on the grounds of lack of a building permit or the use of a land plot not in accordance with its intended purpose, then in this case, at the request of the party, the court may also apply a three-year limitation period.

Practical aspect

As follows from the Decree of the Federal Antimonopoly Service of the Far Eastern District dated June 15, 2011 in case N Ф03-2046/2011, the Administration of the city of Vladivostok (hereinafter referred to as the Administration), the Department of Urban Planning and Architecture (hereinafter referred to as the Administration) appealed to the Primorsky Territory Arbitration Court with a claim against the Vladivostok City defense sports and technical public organization (hereinafter - the Vladivostok OSTO), the public movement of the Primorsky Territory "Physical Culture and Sport" (hereinafter - the ODPC "Physical Culture and Sport") on recognizing as an unauthorized construction of an object of unfinished construction - the building of a sports club with a readiness of 94.6%, inventory N 05:401:002:000219710, lit. A, located at the address: Vladivostok, st. Cheremukhovaya, 40b, with a total area of ​​209.7 sq. m; on the demolition of the specified unauthorized structure by dismantling within a month at its own expense.

In accordance with Art. 48 of the Arbitration Procedure Code of the Russian Federation, the arbitration court replaced the defendant - the Vladivostok OSTO in connection with its reorganization in the form of transformation into a local branch of the All-Russian public-state organization "Voluntary Society for Assistance to the Army, Aviation and Navy of Russia" of the city of Vladivostok, Primorsky Territory (hereinafter - MO "DOSAAF of Russia" ).

By the decision of the Arbitration Court dated 12/13/2010, left unchanged by the Resolution of the Fifth Arbitration Court of Appeal dated 02/15/2011, the claim was completely denied.

In the cassation appeal, the Administration asks to cancel these judicial acts as adopted in violation of the norms of substantive law, not corresponding to the actual circumstances and the evidence available in the case, to send the case for a new trial to the arbitration court of first instance in a different judicial composition.

In support of the complaint, the applicant, referring to Article 75 (part 8) of the Arbitration Procedure Code of the Russian Federation and the presence in the case of a copy of the building permit dated 31.12.2004 N 181/4, issued by V.M. Taravkov, points to the inconsistency of the conclusion of the courts on the failure to prove the construction of the disputed building in the absence of a building permit. Disputing the conclusion of the courts on the allotment of the land plot on which this construction was carried out, the Vladivostok OST on the right of perpetual permanent use, indicates that the erected object goes beyond the boundaries of this land plot. Refers to the proof of the implementation of works on the reconstruction of the building in the absence of an agreed working project. Indicates an incorrect application of the statute of limitations.

In their responses to the cassation appeal, the MO "DOSAAF of Russia" and the ODPC "Physical Culture and Sport" expressed disagreement with the arguments set forth in it, they consider the appealed judicial acts legal and justified, and the cassation appeal is not subject to satisfaction.

At the court session of the cassation instance, representatives of the Administration and the ODPC "Physical Culture and Sport" supported the arguments set forth in the cassation appeal and in the response to it, respectively, giving explanations on them.

Having checked the legality of the contested judicial acts, taking into account the arguments of the cassation appeal, the Federal Arbitration Court of the Far Eastern District sees no grounds for their cancellation, provided for in Art. 288 APC RF.

As established by the courts, in accordance with the materials of the case, Decree of the Administration of the city of Vladivostok of the Primorsky Territory dated 10.09.1996 N 1238 granted the Vladivostok OSTO a land plot of 114 sq. m, located at the address: Vladivostok, Cheremukhovaya, 40.

On December 31, 2004, the Gosarchstroynadzor Inspectorate of the Department of Architecture, Urban Planning and Gosarchstroynadzor issued the Administration of Vladivostok, Primorsky Territory, ODPC "Physical Culture and Sport" construction permit N 181/04 valid until December 31, 2006 for the reconstruction of a non-residential building.

On the basis of these documents, a non-residential building was reconstructed, located at the address: Primorsky Territory, Vladivostok, st. Cheremukhovaya, 40b.

Subsequently, on September 22, 2006 and February 6, 2009, the state registration of the right of common shared ownership of the ODPC "Physical Culture and Sport" (share in the right - 7/8) and the Vladivostok OSTO (share in the right - 1/8) was carried out on the object of construction in progress (the building of the sports club ) readiness of 94.6% (lit. A), about which the relevant certificates were issued.

The Administration and the Administration, believing that the specified object is an unauthorized building subject to demolition, appealed to the arbitration court with this claim.

Refusing to satisfy the claims, the courts proceeded from the lack of evidence that the disputed object had signs of unauthorized construction.

In accordance with paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, an unauthorized construction is a residential building, other building, structure or other immovable property created on a land plot not allocated for these purposes in the manner prescribed by law and other legal acts, or created without obtaining the necessary permits for this or with a material violation urban planning and building codes and regulations.

According to paragraph 2 of Art. 222 of the Civil Code of the Russian Federation, a person who has carried out unauthorized construction does not acquire ownership of it. It has no right to dispose of the building - to sell, donate, lease, make other transactions. Unauthorized construction is subject to demolition by the person who carried it out or at his expense, except for the cases provided for in clause 3 of this article.

In support of the stated claims, the plaintiffs pointed out that the disputed building was created without obtaining the necessary permits for this and in the absence of rights to the land plot under part of the building.

These arguments were rejected by the courts for the following reasons.

In accordance with Part 1 of Art. 51 of the Town Planning Code of the Russian Federation, a construction permit is a document confirming the compliance of project documentation with the requirements of the town planning plan of the land plot and giving the developer the right to carry out construction, reconstruction of capital construction facilities, as well as their overhaul, except as provided by this Code.

In support of the argument about the reconstruction of the disputed object without a building permit, the plaintiffs referred to the copy of the building permit dated 31.12.2004 N 181/4, valid until 31.12.2011, issued by V.M. Taravkov for the construction of an individual residential building located at the address: Vladivostok, st. Lesnaya, 163; and a copy of an extract from the register of building permits issued by the Department of Municipal Property, Urban Planning and Architecture of the Administration of Vladivostok for 2004.

In turn, the defendants presented a notarized copy of the construction permit dated December 31, 2004 N 181/04, issued by the ODPC "Physical Culture and Sport", the original of which, as the Court of Appeal established, was reviewed by the Arbitration Court of First Instance.

The courts rejected the evidence presented by the plaintiffs with reference to Art. 71 (parts 1, 2, 3, 6) of the Arbitration Procedure Code of the Russian Federation as not meeting the reliability criterion. At the same time, the courts pointed out that in the information contained in the copy of the building permit dated 31.12.2004 N 181/04, issued by V.M. Taravkov, and in the copy of the book of issuing permits for 2004, there are contradictions in indicating the period of validity of this permit, the original of the book of issuing permits for 2004 was not submitted by the plaintiffs to the case file.

The plaintiffs' argument that the reconstruction of the disputed object was actually carried out after the expiration of the building permit was rejected by the Court of Appeal, pointing out that the period of validity of the building permit dated 12/31/2004 N 181/04 was set from 12/31/2004 to 12/31/2004 .2006. From the act of readiness dated 04.12.2005, documents on state registration of ownership of the object of construction in progress, carried out on 22.09.2006, it is seen that the main works on the reconstruction of the object, requiring a building permit, were performed during the period of validity of the permit dated 12.31.2004 N 181/04.

The plaintiffs' argument that the work on the reconstruction of the disputed facility was carried out in the absence of an agreed project was rejected by the Court of Appeal as refuted by the preliminary design available in the case file "Reconstruction of the building of the shooting range for the sports club "Metsar Olympus" of the ODPK "Physical Culture and Sport", agreed by the chief architect of the city Vladivostok 02.02.2005, Head of UAGiG 05.12.2004, project "Reconstruction of the building of the shooting gallery under the sports club" Metsar Olympus "ODPK" Physical Culture and Sport "in the area of ​​st. Cheremukhova in Vladivostok; pointing out that the lack of information about the approval of the draft and detailed designs in the Department of Urban Planning and Architecture of the Administration of Vladivostok does not indicate the absence of such an agreement and that there were no statements about the falsification of the projects submitted by the defendants by the plaintiffs in the prescribed manner.

The plaintiffs' argument that part of the disputed facility goes beyond the boundaries of the provided land plot was rejected by the Court of Appeal, referring to the fact that in this case there was a reconstruction of the existing property, and not the construction of a new one, the claims were filed for the demolition of the entire facility, while while there are no rights only to the land plot under a part of the building, taking into account the lack of evidence in the case file of the impossibility of freeing the land plot not owned by the defendants from individual elements of the building structure.

In view of the foregoing, the courts came to the conclusion that it was not proved that the disputed object had signs of unauthorized construction.

At the same time, the courts came to a correct and justified conclusion about the expiration of the general limitation period provided for by Article 196 of the Civil Code of the Russian Federation, the application of which was declared by the defendants, establishing that the plaintiffs represented by a single municipal institution should have learned about the violation of their rights on 02.03.2006 (the claim was filed on 28.07. .2010).

The conclusions of the courts are substantiated by reference to the letter of the Department of Municipal Property, Urban Planning and Architecture dated 02.03.2006 N 1451-v on the clarification of the postal address containing information that the building of the Vladivostok City Defense Sports and Technical Public Organization, located at the address: Vladivostok, st. Cheremukhovaya, 40, the postal address is assigned: Vladivostok, st. Cheremukhovaya, 40b, and to articles 196, 200 of the Civil Code of the Russian Federation.

In addition, the Court of Appeal pointed to the lack of evidence that the controversial object created a threat to the life and health of citizens, referring to the provisions of paragraph 22 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 dated April 29, 2010 “On Certain Issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights”, according to which the requirement to demolish an unauthorized structure that poses a threat to the life and health of citizens is not subject to limitation.

21. Does the demolition of an unauthorized construction site apply to unauthorized reconstruction of real estate that results in a new site?

According to clause 28 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 of 04/29/2010 “On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights”, the provisions of Art. 222 of the Civil Code of the Russian Federation apply to unauthorized reconstruction of real estate, as a result of which a new object has arisen.

The court obliges a person to demolish unauthorized reconstructed immovable property only if it is established that the object cannot be brought to the state that existed before such work was carried out.

Practical aspect

As follows from the Ruling of the Sverdlovsk Regional Court dated January 12, 2012 in case No. 33-538/2012, G. filed a lawsuit against the Administration of Yekaterinburg with a claim for recognition of ownership of the unauthorized construction, referring to the justification of the stated requirements that he is the owner of the property<…>with total area<…>sq. m, which is used as a store of food and industrial goods. The specified premises were transferred from residential to non-residential on the basis of the Decree of the head of Yekaterinburg dated<…>. In 2006, the plaintiff reconstructed a real estate object owned by him, dug a basement without obtaining a building permit. The reconstruction was carried out on the basis of the design decision of LLC<…>and in accordance with the technical opinion of LLC<…>. The basement is entered through a store owned by the plaintiff. By order of the Chief Architecture of the Administration of Yekaterinburg, the plaintiff was asked to legalize the completed reconstruction. The plaintiff's appeal for approval of the reconstruction was refused in issuing a building permit. Currently, work is underway to form a land plot under an apartment building, the owners of the premises of which do not object to the legalization of unauthorized construction. Considering that the preservation of the unauthorized building - the basement does not violate the rights and legitimate interests of other persons, does not pose a threat to the life and health of citizens, the building complies with building codes and regulations, fire safety requirements, the plaintiff asked the court to recognize the ownership of the unauthorized built real estate object - the basement with total area<…>sq. m of room N<…>, located at<…>, in accordance with the inventory data of EMUP BTI as of February 24, 2011.

By the decision of the Leninsky District Court of Yekaterinburg dated October 13, 2011, G.'s claims were dismissed.

Having checked the case materials, having discussed the arguments of the cassation appeal, the judicial board finds no grounds for canceling the decision, considers the court decision lawful and justified, and the cassation appeal is not subject to satisfaction.

When resolving the dispute, the court correctly established the circumstances relevant to the case, the evidence presented was assessed in their entirety in accordance with Art. 67 of the Civil Procedure Code (hereinafter referred to as CPC) of the Russian Federation and came to reasonable conclusions.

As established by the court, G. is the owner of the built-in non-residential premises<…>with total area<…>sq. m, which is used as a store of food and industrial goods.

The court also found that G. arbitrarily, as a result of the reconstruction of the non-residential premises owned by him, erected a basement under this non-residential premises, in the absence of permits.

In accordance with paragraph 1 of Art. 222 of the Civil Code (hereinafter referred to as the Civil Code) of the Russian Federation, an unauthorized construction is a residential building, other building, structure or other immovable property created on a land plot not allocated for these purposes in the manner prescribed by law and other legal acts, or created without obtaining on it is the necessary permits or with a significant violation of urban planning and building codes and regulations.

According to the explanations set out in paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 dated April 29, 2010 “On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights ”, the provisions of Article 222 of the Civil Code of the Russian Federation apply to unauthorized reconstruction of real estate, as a result of which a new object has arisen.

In accordance with Art. 1 of the Town Planning Code of the Russian Federation, reconstruction is a change in the parameters of capital construction objects, their parts (height, number of floors (hereinafter referred to as the number of floors), area, production capacity indicators, volume) and the quality of engineering and technical support.

Since the plaintiff reconstructed the non-residential premises belonging to him, as a result of which a new object was formed - a basement, the court of first instance correctly indicated that the basement erected by the plaintiff was an unauthorized construction.

According to paragraph 3 of Art. 222 of the Civil Code of the Russian Federation, the right of ownership of an unauthorized construction may be recognized by a court, and in cases provided for by law in another manner established by law, for a person who owns, inherits for life, whose permanent (unlimited) use is the land plot where the construction was carried out. The right of ownership of an unauthorized structure cannot be recognized for the said person if the preservation of the structure violates the rights and legally protected interests of other persons or poses a threat to the life and health of citizens.

Thus, declaring requirements for recognition of the right of ownership to an unauthorized building - a basement, the plaintiff, in accordance with Art. 56 Code of Civil Procedure of the Russian Federation had to prove that the basement he built under a residential building<…>does not violate the rights and legally protected interests of other persons, does not pose a threat to the life and health of citizens, complies with sanitary norms and rules, fire safety requirements, is located on a land plot, the right to use which belongs to the plaintiff.

According to paragraph 2 of Art. 40 of the Housing Code of the Russian Federation, if the reconstruction, reorganization and / or redevelopment of the premises is not possible without the addition of part of the common property in an apartment building to them, the consent of all owners of the premises in the apartment building must be obtained for such reconstruction, reorganization and / or redevelopment of the premises.

However, there is indisputable evidence that clearly indicates that the consent of all owners of premises in a residential building<…>for the reconstruction of non-residential premises owned by the plaintiff was received, the plaintiff did not submit. The references in the cassation appeal to the fact that all the owners of the premises of the house were notified about the reconstruction of the premises belonging to the plaintiff are untenable, since the fact of notification does not indicate the consent of all the owners of the premises in the house to the reconstruction of the premises by the plaintiff.

On the contrary, the owners of the premises in the above-mentioned building V.V.P., K.L.I., B.B.V., B.N.A., A.F.G., V.V. .V., UNS, pointing to the violation of their rights and legitimate interests, expressed their disagreement with the plaintiff's reconstruction of the non-residential premises, since such reconstruction, not provided for by the project of the house, could lead to the destruction of the residential building.

For violation of the rights and legitimate interests of the owners and residents of the house<…>as a result of the reconstruction carried out by the plaintiff, the protocol of the general meeting of residents also indicates<…>dated March 27, 2011, from which it follows that the owners of the premises of the said house decided to oblige G. to eliminate the violation of their rights by illegal construction of the basement and restore the structure of the house to its original state.

To confirm that the plaintiff's reconstruction of the premises belonging to him and the construction of the basement does not pose a threat to the life or health of citizens, the plaintiff submitted a technical opinion of LLC<…>, which was carried out based on the results of field surveys of the store premises.

Meanwhile, from a systematic interpretation of Articles 48, 49 of the Town Planning Code of the Russian Federation, it follows that a state examination is being carried out with respect to the design documentation of multi-apartment residential buildings with more than three floors.

Since the residential building<…>, built in 1965, has five floors, the court of first instance correctly pointed out that in order to reconstruct the premises belonging to the plaintiff, the plaintiff had to conduct a state examination of the project documentation.

However, the conclusion of the state examination by the plaintiff was not presented, the materials of the case do not contain evidence to the contrary. At the same time, there is no evidence in the case file indicating that the plaintiff took steps to obtain permits for the reconstruction of the premises.

Thus, the fact that the basement erected by the plaintiff does not pose a threat to the life and health of citizens is not confirmed by evidence corresponding to Art. 67 Code of Civil Procedure of the Russian Federation.

In addition, the materials of the case confirm that the land plot under the apartment building<…>has not yet been formed, therefore, the right of common shared ownership of the owners of premises in the indicated residential building to this land plot has not been formalized in the manner prescribed by law.

Considering the above, the trial court came to a reasonable conclusion about the absence of the provisions of paragraph 3 of Art. 222 of the Civil Code of the Russian Federation grounds for recognizing the plaintiff's ownership of an unauthorized building - a basement.

22. Is the presence of registration of ownership of an unauthorized structure an obstacle to filing claims for its demolition?

As stated in paragraph 23 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 of 04/29/2010 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights", in the case when real estate, the right to which is registered, has signs of unauthorized construction, the presence of such registration does not exclude the possibility of presenting a demand for its demolition. In the reasoning part of the court decision to satisfy such a claim, the grounds on which the court recognized the property as unauthorized construction must be indicated.

The decision of the court to satisfy the claim for the demolition of the unauthorized building in this case serves as the basis for making an entry in the USRR on the termination of the defendant's ownership of the unauthorized building.

If an unauthorized construction was encumbered with the rights of third parties, for example, the rights of a mortgagee, a tenant, the corresponding encumbrances also cease.

At the same time, the persons whose rights are burdened by the disputed object must be involved in the case as third parties who do not make independent claims regarding the subject of the dispute, on the side of the defendant, since a judicial act may affect their rights.

23. What are the features of the normative regulation of the procedure for the demolition of an unauthorized building?

Paragraph 2 of Art. 222 of the Civil Code of the Russian Federation establishes that an unauthorized building is subject to demolition by the person who carried it out or at his expense. This sanction is also reflected in Art. 62 of the Land Code of the Russian Federation, indicating that losses caused by violation of the rights of land owners, land users, land owners and tenants of land plots are subject to compensation in full, including lost profits, in the manner prescribed by civil law, while on the basis court decision, a person guilty of violating the rights of owners of land plots, land users, land owners and tenants of land plots may be forced to fulfill an obligation in kind (restoring soil fertility, restoring land plots within their former boundaries, erecting demolished buildings, structures, structures or demolishing illegally erected buildings, structures, structures, restoration of boundary and information signs, elimination of other land violations and fulfillment of arising obligations).

Based on Art. 76 of the Land Code of the Russian Federation, when demolishing an unauthorized property, the guilty party must compensate in full for the damage caused as a result of committing land offenses and bring the land plot into a usable condition at its own expense.

Paragraph 3 of Art. 25 of the Federal Law "On Architectural Activities in the Russian Federation" establishes that a person guilty of building or modifying an architectural object without an appropriate building permit is obliged at his own expense to carry out the demolition (complete dismantling) of an unauthorized structure or to bring the architectural object and the land plot into initial state.

It should be noted that in relation to Art. 12 of the Civil Code of the Russian Federation, a claim for the demolition of an unauthorized building is more in line with such a method of protecting civil rights as restoring the situation that existed before the violation of the right.

Thus, the legislator, within the framework of civil legislation, only in general terms determined the consequences of the decision to demolish an unauthorized building, while, as a rule, within the framework of the decisions made, questions about the timing and methods of their execution, resolved within the framework of enforcement proceedings, remain unresolved.

Historical aspect

Article 109 of the Civil Code of the RSFSR provided for objects of unauthorized construction that, by decision of the executive committee of the district, city, district Council of People's Deputies in the city, such a house (dacha) or part of the house (dacha) is demolished by the citizen who carried out the unauthorized construction, or at his expense or at By a court decision, they can be withdrawn free of charge and credited to the fund of the local Council of People's Deputies.

In the Decree of the Council of People's Commissars of the RSFSR dated 05/22/1940 N 390 "On measures to combat unauthorized construction in cities, workers, resort and summer cottages", currently used in the part that does not contradict Art. 222 of the Civil Code of the Russian Federation, it is stated that for unauthorized construction without proper written permission, the heads of state institutions and enterprises, cooperative and public organizations and individual developers are held liable in the manner prescribed by law.

Unauthorized builders who, after the publication of this Decree, began construction without proper written permission, are obliged immediately upon receipt of the relevant written request from the executive committee of the city or town Council of Workers' Deputies to stop construction and, within a month, on their own and at their own expense, demolish all buildings or parts of buildings erected by them and tidy up the land.

In the event that an unauthorized developer fails to comply with the demand of the city or town executive committee to stop construction and to demolish buildings, the executive committee issues an order to the communal services department to demolish the unauthorized structure or part of the structure. The bodies of the Workers' and Peasants' Militia are obliged to render the necessary assistance in carrying out the order of the executive committee on the demolition of the building.

Buildings erected or started without proper permission before the issuance of this Decree, if they violate the approved city planning, interfere with passage, pose a fire or sanitary hazard, must be transferred by the developer at his own expense to another land plot assigned by the executive committee of the corresponding city or town Soviet of Workers' Deputies.

The transfer of the building must be completed no later than eight months from the date of the request of the executive committee.

In some exceptional cases, city and town councils of working people's deputies may decide on full or partial reimbursement to the developer of the costs associated with the transfer of the structure.

If the builder fails to move the building within the period established by this article, the building is subject to demolition, and the persons residing in it, to eviction without providing living space or other compensation.

Practical aspect

ON THE EXECUTION OF JUDICIAL ACTS ON THE DEMOLATION OF UNAUTHORIZED BUILDINGS(excerpts, p. 2, 3, 4, 6, 7)<*>

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24. Is it necessary to file claims for the eviction of persons registered in it when submitting claims for the demolition of an unauthorized building?

The answer to this question is given in the Review of the judicial practice of the Supreme Court of the Russian Federation dated 06/07/2006, 06/14/2006 "Review of the legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2006", which states that in accordance with paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, an unauthorized construction is a residential building, other building, structure or other real estate created on a land plot not allocated for these purposes in the manner prescribed by law and other legal acts, or created without obtaining the necessary permits for this or with significant violation of town-planning and building norms and rules.

In accordance with paragraph 2 of Art. 222 of the Civil Code of the Russian Federation, a person who has carried out unauthorized construction does not acquire ownership of it. It has no right to dispose of the building - to sell, donate, lease, make other transactions.

It follows from the provisions of this norm that unauthorized construction cannot be an object of civil rights.

Consequently, the specified building is not included in the housing stock and does not have the status of a dwelling, therefore, a person who erected an unauthorized building cannot be registered in it.

Since a person does not have the right to live in this premises, the decision by the court to demolish the unauthorized building does not affect his right to own and use the said residential premises, therefore there are no grounds for making a separate demand for the person to be evicted from the unauthorized buildings.

Therefore, when filing an application for recognizing a dwelling in the manner prescribed by law as an unauthorized structure, it is not required to additionally declare a demand for the eviction of citizens from residential buildings subject to further demolition, since the decision of the court to demolish the unauthorized structure does not violate the citizen's right to live in the specified residential premises .

If a citizen is registered in an unauthorized residential building, then in this case, when filing a claim for the demolition of an unauthorized structure, it is also necessary to present an eviction request.

25. What types of administrative responsibility arise in the event of the construction of an unauthorized structure?

Part 1 of Article 9.5 of the Code of Administrative Offenses of the Russian Federation.

In accordance with Art. 58 of the Urban Planning Code of the Russian Federation, persons guilty of violating the legislation on urban planning activities bear disciplinary, property, administrative, criminal liability in accordance with the legislation of the Russian Federation.

Part 1 Art. 9.5 of the Code of Administrative Offenses provides that the construction, reconstruction of capital construction objects without a construction permit, if the construction, reconstruction of capital construction objects provides for obtaining construction permits, entails the imposition of an administrative fine on citizens in the amount of two thousand to five thousand rubles; for officials - from twenty thousand to fifty thousand rubles; for persons engaged in entrepreneurial activities without forming a legal entity - from twenty thousand to fifty thousand rubles or an administrative suspension of their activities for a period of up to ninety days; for legal entities - from five hundred thousand to one million rubles or an administrative suspension of their activities for a period of up to ninety days (as amended by Federal Law No. 116-FZ of June 22, 2007).

In paragraph 6 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 17, 2011 N 11 “On Some Issues of the Application of the Special Part of the Code of the Russian Federation on Administrative Offenses”, it was noted that when considering cases related to bringing persons to administrative responsibility for the implementation of construction, reconstruction , overhaul of capital construction projects without a building permit in cases where obtaining an appropriate permit is mandatory, the courts should proceed from the following.

The subjects of responsibility for an administrative offense under Part 1 of Art. 9.5 of the Code of Administrative Offenses of the Russian Federation may be a developer (customer under a construction contract), since, by virtue of Art. 51 of the Town Planning Code of the Russian Federation, he is obliged to obtain a building permit, as well as other persons carrying out the relevant work, for example, a contractor or subcontractor, since they are obliged to make sure that the developer, involving them in the implementation of construction, reconstruction, overhaul of capital construction facilities, has the appropriate building permit.

Cases of administrative offenses are considered by officials of state construction supervision bodies. Article 23.56 of the Code of Administrative Offenses of the Russian Federation defines the executive authorities authorized to carry out state construction supervision. It is they who consider cases of administrative offenses under Art. 9.5 of the Code of Administrative Offenses of the Russian Federation.

To consider cases of administrative offenses on behalf of the bodies indicated above, the following are entitled: 1) the head of the federal executive body authorized to exercise state construction supervision, and his deputies; 2) heads of structural subdivisions of the federal executive body authorized to exercise state construction supervision, and their deputies; 3) heads of territorial bodies of the federal executive body authorized to exercise state construction supervision, and their deputies; 4) heads of executive authorities of the constituent entities of the Russian Federation authorized to exercise state construction supervision, and their deputies; 5) heads of structural subdivisions of the executive authorities of the constituent entities of the Russian Federation authorized to exercise state construction supervision, and their deputies.

In accordance with paragraph 2 of Decree of the Government of the Russian Federation of 01.02.2006 N 54 "On State Construction Supervision in the Russian Federation", the federal executive bodies authorized to carry out state construction supervision are: the Federal Service for Environmental, Technological and Nuclear Supervision - during construction, reconstruction of the objects specified in clause 5.1 of Art. 6 of the Town Planning Code of the Russian Federation, with the exception of those objects in respect of which the implementation of state construction supervision by decrees of the President of the Russian Federation is entrusted to other federal executive bodies; Ministry of Defense of the Russian Federation; Federal Security Service of the Russian Federation; The Federal Security Service of the Russian Federation and other federal executive bodies entrusted with state construction supervision by decrees of the President of the Russian Federation.

The procedure for exercising state construction supervision in the Russian Federation is established by the Regulations on the implementation of state construction supervision in the Russian Federation, approved by Decree of the Government of the Russian Federation of February 1, 2006 N 54.

State construction supervision is carried out: a) during the construction of capital construction facilities, if the design documentation for their construction is subject to state expertise in accordance with Art. 49 of the Town Planning Code of the Russian Federation, or is a standard design documentation or its modification, for which a positive conclusion of the state expertise has been received; b) during the reconstruction of capital construction objects, if the project documentation for the reconstruction of capital construction objects is subject to state expertise in accordance with Art. 49 of the Town Planning Code of the Russian Federation.

The task of state construction supervision is to prevent, identify and suppress violations of the legislation on urban planning activities, including technical regulations and project documentation, committed by the developer, customer, as well as the person carrying out construction on the basis of an agreement with the developer or customer.

Protocols on administrative offenses are drawn up by officials of state architectural and construction supervision bodies (part 1 of article 28.3 of the Code of Administrative Offenses of the Russian Federation) and officials of internal affairs bodies (police) (clause 1 of part 2 of article 28.3 of the Code of Administrative Offenses of the Russian Federation).

Part 1 of Article 9.4 of the Code of Administrative Offenses of the Russian Federation.

Part 1 of Art. 9.4 of the Code of Administrative Offenses of the Russian Federation for violation of the requirements of technical regulations, design documentation, mandatory requirements of documents in the field of standardization or the requirements of special technical conditions or violation of the mandatory requirements for buildings and structures established by the authorized federal executive body before the date of entry into force of technical regulations for buildings and structures during design, construction, reconstruction or overhaul of capital construction facilities, including the use of building materials (products), provides for liability in the form of a warning or the imposition of an administrative fine on citizens in the amount of one thousand to two thousand rubles; for officials - from twenty thousand to thirty thousand rubles; for legal entities - from one hundred thousand to three hundred thousand rubles.

Practical aspect

According to the Decree of the First Arbitration Court of Appeal dated 08.08.2011 N A43-3615 / 2011, the court satisfied the application of the State Construction Supervision Inspectorate of the constituent entity of the Russian Federation to bring the organization to administrative responsibility on the basis of Part 1 of Art. 9.4 of the Code of Administrative Offenses of the Russian Federation, indicating that the lower court made a legitimate conclusion that the organization, being the customer in the construction of the disputed facility, was obliged to ensure that the project documentation was sent to the state examination body in order to obtain a positive conclusion, and the violations identified by the inspection during the construction of the capital facility by the organization of construction are deviations from the requirements of regulatory documents in the field of construction during construction, reconstruction, overhaul of capital construction projects, including the use of building materials (products).

Article 7.1 of the Code of Administrative Offenses of the Russian Federation.

Also, the erection of an unauthorized building on a land plot not owned by the developer entails the onset of administrative responsibility under Art. 7.1 of the Code of Administrative Offenses of the Russian Federation, according to which unauthorized occupation of a land plot or use of a land plot without duly executed title documents for land, and, if necessary, without documents authorizing economic activity, entails the imposition of an administrative fine on citizens in the amount of five hundred to one thousand rubles; for officials - from one thousand to two thousand rubles; for legal entities - from ten thousand to twenty thousand rubles (as amended by Federal Law No. 116-FZ of June 22, 2007).

It should be borne in mind that, according to paragraph 1 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 N 11 “On Some Issues of the Application of the Special Part of the Code of the Russian Federation on Administrative Offenses”, when considering cases of challenging decisions of administrative bodies on bringing to administrative responsibility for these offenses courts should take into account that unauthorized occupation of land means the use of someone else's land in the absence of the will of the owner of this land (another person authorized by him), expressed in the prescribed manner.

According to Art. 23.21 of the Code of Administrative Offenses, cases of administrative offenses under Art. 7.1 consider the bodies exercising state control over the use and protection of land.

In accordance with Art. 71 of the Land Code of the Russian Federation, the Regulations on state land control, approved by the Decree of the Government of the Russian Federation of November 19, 2002 N 833, the Regulations on the Federal Agency for the Cadastre of Real Estate, approved by the Decree of the Government of the Russian Federation of August 19, 2004 N 418, state land control on the territory of the subject of the Russian The Federation is administered by the Administration.

In accordance with Article 72 of the Land Code of the Russian Federation, municipal land control on the territory of a municipal formation is carried out by the body of municipal land control.

Practical aspect

In the Resolution of the Seventeenth Arbitration Court of Appeal dated October 31, 2011 N 17AP-9847 / 2011-AK in the case N A50-13044 / 2011, the court explained that the objective side of the offense under Art. 7.1 of the Code of Administrative Offenses of the Russian Federation, consists in the fact that the guilty person arbitrarily occupies a land plot or uses a land plot without issuing title documents, and, if necessary, without documents authorizing the implementation of economic activities. According to the court, the use of a land plot without duly executed documents of title to land should be understood as the use of a land plot carried out with the permission of the owner or a person authorized by him, however, associated with the failure to fulfill the obligation stipulated by law to draw up documents of title to land.

Chapter 3

According to the legislation of the Russian Federation, the recognition of a construction as unauthorized, urban planning and building rules must be established on the date of construction and be valid on the date of its discovery, with which it does not comply. In addition, a structure is not recognized as an unauthorized construction if its owner did not know and could not know about the restrictions on his land.

Note that unauthorized construction- this is a real estate object built on land not intended for construction, or built without the necessary permits, in violation of urban planning standards. In this case, unauthorized buildings will be demolished in accordance with Art. 222 of the Civil Code of the Russian Federation, however, the court has the right to recognize an unauthorized construction as legal if the land is privately owned or in lifetime use.

Having built a real estate object, a citizen or legal entity is obliged to legalize unauthorized construction through a court or other state organizations. Contacting a law firm will allow you to find out how to legalize the unauthorized construction of a house built on your own site. Here it is important to find out whether the principles of construction have been violated, and whether there is a right of ownership or a lease agreement for a land plot, whether the rights of neighbors have been violated.

If a citizen has made an unauthorized construction on his own territory, without a building permit, he needs to file a claim with the court in order to avoid problems with the legalization of the building. The judge will consider the application for the preservation of unauthorized construction, and as a result, you will receive the necessary decision. To do this, the court must be provided with an evidence base in the form of examinations, certificates from various state organizations. There is such an important point: a lawsuit will be accepted if the developer made attempts to obtain a building permit during the construction process.

The development of land plots that are not in possession is illegal and all objects are subject to demolition on a voluntary or compulsory basis. City administrations are obliged to strictly monitor the intended use of land plots. Any unauthorized construction is unacceptable if there are no legal norms confirming the right to build. If the object was built in violation of sanitary standards, fire safety rules, in violation of the territory of the site, the right of ownership will not be recognized and unauthorized construction will not be legalized. The object will be demolished in accordance with Art. 222 of the Civil Code of the Russian Federation. Therefore, it is worth applying for the protection of your rights to the courts, their decision will be final.

Recognition of the unauthorized construction

Issues related to the consideration of legal disputes on the recognition of unauthorized construction are increasingly being heard in courtrooms. With the advent of the market for the sale and purchase of land, privatization, rent, intensive housing construction began, which is often carried out without a building permit or in violation of urban planning standards. Due to the large number of land plots, territories transferred from the state to the private sector, it became possible to independently build houses and garages. However, any structure built on a land plot that is not allocated for these purposes or in violation of the development rules will be recognized as an unauthorized structure subject to demolition at the expense of the developer.

Since a citizen who has carried out unauthorized construction does not have the right to dispose and inherit, he must and is obliged to apply to state authorities for registration and registration of the building. Consider the term unauthorized construction - it can be a separately erected building, unauthorized reconstruction with the construction of additional floors, attics, additional buildings to existing facilities that violate the norms of the original technical documentation. Such real estate objects are recognized as unauthorized buildings, according to the Town Planning Code of the Russian Federation and are subject to demolition (Article 222 of the Civil Code of the Russian Federation). The courts do not formally approach the resolution of such situations, the right to independently protect their interests in the judicial instances is recognized. If the change in area occurs as a result of reconstruction inside the building, this will not be considered an unauthorized construction and Art. 222 of the Civil Code of the Russian Federation. This article is the foundation that determines the legal side of the building.

Currently, citizens have a large number of land plots in their hands, which are privately owned or under a lifetime lease agreement. Due to the intensive construction and development of the real estate market, rising real estate prices, the number of unauthorized buildings has increased. Most often, without a building permit, they build a house or a cottage, utility rooms, garages, baths. As a rule, citizens do not attach importance to the fact that the unauthorized construction of a house can be demolished in accordance with Art. 222 of the Civil Code of the Russian Federation. If the land plot belongs to a citizen on the basis of ownership or life lease, the built house does not automatically receive ownership rights until the unauthorized construction is legalized and a document on ownership is received from the registration chamber. No legal actions can be carried out with such an object: sale, donation, inheritance. All that is property is the building materials from which the unauthorized building was erected. In order for an unauthorized house to be legally legal, it is necessary to apply to the court or state bodies for the recognition of ownership. The Civil Code of the Russian Federation and the Code of Civil Procedure of the Russian Federation in the articles indicate how to formalize an unauthorized construction through a court or through an interdepartmental commission on misuse of land.

The Town Planning Code of the Russian Federation indicates in the articles that during construction it is necessary to comply with the norms of SNiP and the norms of GOST, non-compliance with the norms entails the recognition of the object as an unauthorized construction of a house that does not have any legal right. Many objects were built in summer cottages and with the extension of the law on the legalization of unauthorized buildings until 2018, it gave the right to citizens to legalize unauthorized construction according to the rules of law. In connection with the dacha amnesty, the number of lawsuits to the courts has increased dramatically, and the procedure for obtaining ownership is very long and complicated, since it is necessary to collect a lot of certificates, expert and technical documents for the trial. In most cases, an unauthorized building will be formalized if a citizen uses the services of specialists from a law firm, otherwise it will be demolished, according to Art. 222 of the Civil Code of the Russian Federation.

Self-built garage

One of the most common appeals is the unauthorized construction of a garage on land plots not allocated for these purposes. Citizens occupy vacant land in large cities, such as Moscow, put up temporary metal structures, while not having the right to own or lease the land. As a result: the constructed garage will be considered unauthorized construction. This object cannot be sold or inherited, as it is located on the land plot illegally, but no one bothers to contact the city administration to allocate a land plot for construction, however, in big cities every square meter is registered and a citizen is unlikely to receive the right to this plot, and the unauthorized garage will be dismantled in accordance with Art. 222 of the Civil Code of the Russian Federation.

When building a garage, it is important to have documents confirming the ownership of the land or a lease for life. A land plot may belong to a gardening partnership, the construction of a garage on these lands is subject to Federal Law No. 210-FZ and it is not difficult to recognize ownership of the unauthorized construction of a garage, several documents from the authorities are required. If the object was built on a land plot owned by a citizen, then an unauthorized garage is registered as an auxiliary building.

A land plot may belong to a garage cooperative, in such cases, you can recognize the ownership of the unauthorized construction of a garage by contacting state bodies as a member of the cooperative. The owner of the cooperative garage has the exclusive right to lease and privatize the land.

The unregistered ownership of the land allows in the future to recognize the garage as an illegal building. All cases of legalization of the garage go practically through the courts. The complexity of cases often lies in violation of building standards and violation of the Town Planning Code of the Russian Federation, a large amount of evidence is required, including construction and technical expertise, certificates. In any such complex case, legal assistance cannot be dispensed with. Law firms offer their services to citizens in the preparation of statements of claim, the collection of a package of documents, which includes: a technical passport, a declaration confirming the fact of construction, an extract from the BTI, financial documents. The number of these documents will be no less than the number of documents required to obtain a building permit.

Unauthorized fence construction

Sometimes they file claims for the unauthorized construction of a fence in a summer cottage or in a gardening partnership. The constructed fence must comply with the norms of land legislation, be not solid, lattice, raised above the ground, be no more than 1.5 meters high, comply with construction standards and not pose a threat to human life and health.

Any land that is owned must have a certificate from the BTI on land surveying, according to which the territory of the land is determined. The right of ownership is protected by law.

If unauthorized construction of a fence in a summer cottage was carried out in violation of the basic requirements, the fence must be demolished or dismantled. A citizen may apply in writing to a neighbor and the board of the dacha association with a demand to violate his rights to the intended use of land. If the situation does not change, the injured person applies to the courts. To confirm the fact of unauthorized construction of the fence in violation of the norms, an examination is carried out. A land management specialist, independently of anyone, draws up an act that indicates all violations, if any.

At the court session, the judge will rely on the acts of expertise, if these violations are significant, the unauthorized construction of the fence is subject to demolition or dismantling.

The laws on urban planning and land management clearly describe the rules for erecting fences, the observance of which will not lead to a controversial situation. Violation of the territory of the neighboring site during the installation of the fence will have consequences, all buildings should not violate the technical data of the sites, according to the land surveying standards. All costs associated with the conduct of the trial, the costs of the examination can be recovered through the court from the losing party. Consultation with a land management lawyer will help analyze the case and assess the legality of going to court.

Basically, all unauthorized constructions are carried out on their own plots, however, there are precedents when municipal lands are occupied for construction. This may be a permanently built house or an extension to the house, by capturing some part of the municipal land.

Unauthorized construction can be legalized only on your own site. In the courts there are claims from self-government bodies for the demolition of unauthorized buildings on municipal land, erected in violation of urban planning standards and violation of the use of urban land. In such cases, it is quite difficult to obtain ownership of the object, but it is possible to apply to the city administration to allocate this site for construction. However, the courts conclude that the preservation of buildings that do not comply with Art. 222 of the Civil Code of the Russian Federation lead to even more construction of unauthorized buildings. Citizens hope that the court will not formally approach and give permission for the preservation of unauthorized construction and recognition of ownership, offering the administration to lease the land plot for life. But basically, all objects will be demolished, as they often violate urban development plans.

The Code of Administrative Offenses of the Russian Federation established liability for unauthorized constructions on municipal land in the form of fines. To stop the trend of unauthorized buildings, it is proposed to significantly increase administrative fines and take them as a percentage of the cadastral value of the land. In addition, an administrative penalty may be imposed and an order will be issued to demolish the facility at its own expense. If this is not done, then the demolition is carried out by force.

Unauthorized construction on someone else's site

The intensive pace of construction led to the emergence of unauthorized buildings on someone else's land without obtaining a special building permit. They began to appear on private plots, leased lands, and even on other people's land. Considering these facts from a legal point of view, it is difficult to obtain ownership of such an object; unauthorized construction on someone else's site will be especially controversial. When filing a claim for recognition of ownership, the package of documents includes a document confirming the ownership of the land. It follows that, without having the right to own land, a citizen does not have a legal right to build.

The constructed building will be demolished at the expense of the developer or sold to the owner of the land. An object can be built if the citizen has a documented building permit obtained directly from the owner of the site.
Litigation for unauthorized buildings on other people's plots is a rather complicated process and it is very difficult to solve it in favor of the developer, since land ownership is protected by law and guaranteed by the Constitution of the Russian Federation. You can try to legally arrange an object on someone else's site, with the help of a specialist in land management and urban planning. A professional lawyer, as a rule, is aware of all changes in the rules and regulations of the law and can, using his experience, help resolve complex issues.

In turn, the owner of the land plot can apply to the court with a claim for the demolition of someone else's object on his site. In this case, by a court decision, the object will be demolished voluntarily or involuntarily at the expense of the developer.

To obtain ownership of a house, garage or other property, you need to collect a package of documents. Especially important is the examination of unauthorized construction, which includes requirements on the state of the building structure of the object, the safe structure of the object.

If an extension was erected to the main building, the examination should establish the influence of the extension on the main object. If an unauthorized addition of floors was carried out at the facility, the experts will have to find out the impact of this on the load-bearing structures of the building, and whether this will lead to damage to the engineering structures of the facility.
Particular attention deserves the examination of fire and sanitary safety, which must comply with urban planning standards.

Before carrying out an examination of an unauthorized construction, the interested person must check the operability of the object. If the object is in a state of disrepair, it is not advisable to invite an expert. The decision made by him will be clearly not in favor of the plaintiff, which will naturally affect the decision of the court.

According to the law, the construction expertise of an unauthorized construction must be independent, it must not be pressured by the developer. Conducting technical expertise is carried out in the presence of the owner of the object. In his report, the expert must set out, point by point, the compliance of the unauthorized facility with safety standards and other construction requirements. All violations are also recorded in the report. Serious violations of the norms of building or structures of engineering and technical communications will allow the court to reject the claim for the preservation of unauthorized construction.

Construction and technical expertise examines the property from the standpoint of compliance with technical and building codes. The main purpose of the examination is to study the possibility of safe operation of the building, which are documented. The condition of the supporting structures must comply with the norms of SNiP and GOST.

Any expertise: construction or technical, is a paid service, its cost depends on the object of unauthorized construction. When making a decision on recognition of the right of ownership, the technical examination of the unauthorized construction will be the key in the case of unauthorized construction if the land plot is privately owned.

Acceptance of unauthorized construction into operation

An object erected with violations of norms or without permission can take a long time to obtain ownership. Therefore, in order to make a profit faster, the developer begins to operate the facility. This is especially true for high-rise buildings and shopping malls. Such facilities pose a danger to people, as they do not have an act of commissioning. Such an act should be issued by a commission, which indicates in the document whether it is possible to operate the facility. But first of all, the developer must formalize the right of ownership, and only after that can the unauthorized building be accepted for operation on a legal basis.

The developer must carry out technical and engineering examinations at his own expense, load-bearing structures, roof, foundation, fire safety and sanitary standards must be checked. Experts put their signatures in the act, it indicates the shortcomings that need to be eliminated, and only after elimination will an act be signed on putting the unauthorized building into operation in accordance with the law. The operation of real estate objects is not allowed without the permission of the commission for putting the unauthorized building into operation. The developer is responsible for his object up to the criminal.

Any building constructed in violation of urban planning standards, without a documentary permit for construction on land plots not allocated for these purposes, can be considered an unauthorized construction. It must be understood that an unauthorized building is considered to be a constructed object erected through a major overhaul of an old building, extensions to already built buildings, building floors, rebuilding non-residential objects into residential ones and vice versa. Everything that was built without permission must be demolished at the expense of the person who built this object. Any illegal construction entails the responsibility of persons who may be required to demolish the unauthorized structure and persons who have the right to demand demolition.

Judicial practice highlights several situations when the requirements for the demolition of unauthorized buildings are presented to the customer or buyer.

For example, construction was carried out with the involvement of contractors, for violation of the norms, all claims are sent to the customer, by whose order the object was built. In the event that an unauthorized building is sold, claims are made against the buyer, and in the event of a reorganization of a legal entity, they are addressed to the person who received this object in possession.

In any case, the owner of the unauthorized object is responsible. Dismantling and demolition of unauthorized buildings will be carried out at his expense. Citizens have the right to apply to the court with claims for damages from the person who built this object. According to Art. 222 of the Civil Code of the Russian Federation, it is possible to demolish an unauthorized building by force.

In the case when an unauthorized construction threatens the life and health of citizens, the demolition of this object does not have a statute of limitations, even if the right of ownership of the object has been obtained in court. In this case, by decision of the court, the right of ownership is terminated, and the object is subject to demolition.

Citizens who have erected an unauthorized building and have all the necessary expertise, documents, certificates, but do not have a building permit, file claims with the courts of general jurisdiction. The court recognizes the building as unauthorized, but does not formally approach the case when the issue of demolition of the unauthorized building is being considered. The court will decide on the recognition of ownership of the unauthorized object. Most importantly, the claim must indicate that the plaintiff wants to keep the unauthorized building.

Self-appeal to the court, without having legal knowledge, will delay the process for a long time. As a rule, a citizen or legal entity will need to go through several instances, up to the Supreme Court of the Russian Federation.

The process of recognition of ownership takes a long time, from several months to several years. To save an unauthorized building, it is worth contacting a specialist in urban planning law, who will be able to do everything necessary in the case of the demolition of an unauthorized building and will be able to win in favor of legalizing the object.

Forced demolition of unauthorized buildings

There is a certain process of forced demolition of an unauthorized building, which is determined by the laws of the Russian Federation. Elimination of violation of the use of the site is a method of punishing a citizen or organization that violated urban planning legislation. The final decision on the demolition of the building is made by the courts or a state organization that has the right to make such decisions. The administration creates a special commission, which is given powers and duties to suppress violations in the field of unauthorized construction, and judicial appeals for the demolition of illegal buildings. Such a commission is a collegial body, but control over the actions of the commission is entrusted to the urban planning department. Such commissions exercise control over the use of lands that are the property of the city administration, control their designated purpose, as well as the prevention of illegal construction.

When illegal unauthorized buildings are identified, this commission collects documents and takes measures for judicial review of the dispute on the demolition of the unauthorized building and the release of the site. The authorized commission has the right to apply to the judicial authorities in the event that the decision of the urban planning control commission on the dismantling of illegally constructed objects is not implemented.

An individual or legal entity that does not comply with the decision of the commission, as a result, receives a court decision on the forced demolition of an unauthorized building, the implementation of which is entrusted to the developer and, in case of non-compliance, is assigned to the administration. Building materials after the demolition of the object are preserved. The violator is obliged to reimburse the city administration for the costs of demolition of unauthorized buildings and storage of building materials.

Part 2 of Article 222 of the Civil Code of the Russian Federation categorically affirms the demolition of an unauthorized building at the expense of the owner of the object, and if he does not comply with the requirements, the forced demolition of the object is provided for by the city administration or local governments.

It is important to know that the owner of an unauthorized building has the right to protection by going to court with a statement of claim to preserve the object. Unauthorized building cases are usually complex and going to court on your own may not bring results. Such cases under urban planning legislation usually require the legal assistance of specialists, as well as their representation and support in court. Documents containing technical expertise and certificates from other organizations must be correctly submitted to the courts. This is a very time-consuming process that requires going through several instances. It is important to know that any demolition can only be carried out by a court order.

Application for the demolition of unauthorized buildings

Claim proceedings for demolition are ambiguous and therefore, in order to draw up an application for the demolition of unauthorized buildings, it is worth contacting a lawyer in the land and town planning code. In our country, at present, the courts have accumulated a huge number of cases of unauthorized buildings on privatized, municipal, leased lands. According to Article 222 of the Civil Code of the Russian Federation, all unauthorized objects are subject to demolition. There are several reasons why an object should be demolished. This is not the intended use of land, a violation of construction standards, a court decision.

Such cases are territorial, appeal at the location of the object, citizens should know the claim for the demolition of an unauthorized building falls under the jurisdiction of the district court, and is filed in a court of general jurisdiction, all objections to the claim are based on solid arguments proving that the violations are insignificant. Most often, neighbors of adjacent plots apply to the court for the demolition of unauthorized buildings, regarding the construction of utility rooms, for example, baths. In some cases, fire safety rules and sanitary standards are not observed, as well as a controversial situation regarding the establishment of a fence between sites without respecting the boundaries of the territory according to land surveying. These disputes are examined by experts in land management, the owner of the site. The act of examination indicates whether there are violations during construction. Having in hand the results of the examination and a claim for unauthorized construction, a citizen goes to court. Further, on the basis of this examination, a decision is made on the legality of the structure, it must be formalized or demolished. No building should pose a threat to health and life, violate the norms for the intended use of land.

Today, on the lands of the city of Moscow, there are 1.7 thousand illegal unauthorized buildings of capital and non-capital construction with an area of ​​570 thousand square meters. The government of the city of Moscow issued a decree on the suppression of the illegal use of land in Moscow and the fight against unauthorized buildings, with increased responsibility for developers. It is believed that unauthorized construction should be prevented, since it is much harder to deal with built objects. Often an unauthorized building is erected without taking into account the opinion of the inhabitants, living space is taken away, i.e. the rights of third parties are violated. This applies not only to small structures of a non-capital type, but also to large capital objects of well-known brands. To account for unauthorized buildings, lists containing information about objects are compiled. If unauthorized construction is suspected, specialists send all information to the district commission for combating unauthorized construction. Further, a decision is made on the demolition of an unauthorized building in Moscow based on the conclusion of the commission. Many cases of unauthorized buildings are under consideration by the courts of various instances or lawsuits are directed to make a decision on the demolition of the object.

Illegally constructed properties, especially on plots of land not subject to development, are unlikely to receive ownership and will be subject to demolition.

However, if the object is located on its own site, the demolition of an unauthorized building in Moscow is carried out by a court decision, however, the developer is given the right to protect his interests. In cities like Moscow, it is almost impossible to keep unauthorized construction, especially garages. A citizen is warned in writing to dismantle the object, otherwise it will be forcibly demolished at the expense of the developer, so any construction must be coordinated with government organizations.

Illegal demolition of unauthorized buildings

In Russia, the number of unauthorized buildings is increasing every year. During the construction of such an object, as a rule, there are violations in the documentation or in violation of urban planning standards. If an unauthorized building is erected on a land plot that has the right of ownership or a lifetime lease, but without a building permit, it can be legalized in court. The main thing is that all engineering and technical expertise should not find violations in the norms of GOST and SNiP.

If an illegally built object has serious violations that cannot be corrected or it occupies foreign land, such property is subject to demolition. Legislation clearly stipulates the rules for the demolition of unauthorized buildings. It is possible to demolish an object only by a court decision; this can be done voluntarily or involuntarily. The Constitution of the Russian Federation protects the rights of citizens, therefore, illegal demolition of an unauthorized building is not allowed under any circumstances. Bailiffs are required to warn the violator in the presence of witnesses, and sometimes the police carry out the demolition of unauthorized buildings. The presence of the owner himself is not necessary, all building materials are stored for three months.

There are cases when there was an illegal demolition of an unauthorized building without a court order. A citizen can apply to the court with a claim for violation of the right to protect unauthorized construction. An organization or person that violates this law is liable under civil law. The courts can punish you with a fine for illegal actions, as well as force you to compensate for material damage.

Legalization of unauthorized construction

The number of unauthorized buildings erected is growing every year, especially in the southern corners of Russia. Such buildings are built on land that is owned or owned by the state. Unauthorized buildings are not alienated, since citizens do not have ownership rights to them. Only the right of ownership allows you to dispose of real estate at your own discretion. In order to avoid any disputes during the alienation, it is necessary to legalize unauthorized construction on a legal basis.

You can bring your object into legal compliance by contacting the courts. Turning to the legal issue of how to legalize unauthorized construction for legal advice in a law firm, you need to find a specialist with the necessary experience in housing law. A specialist in land management and civil law will give clarifications and form a position on the registration of unauthorized construction in accordance with the legislation of the Russian Federation. It is possible to legalize an uncoordinated building if there are documents confirming the right of ownership or possession of a land plot, even in the absence of documents permitting construction on this site. The court will consider the claim if it is accompanied by a document confirming that the subject made efforts to obtain such a building permit, but he was denied it. The court will consider the claim and the documents provided by the plaintiff, and on the basis of the evidence base will make a decision. The final decision of the court will indicate whether the unauthorized building has the right to recognition of ownership and if it is not required to appeal the court decision, the citizen must apply for registration of the unauthorized building with state bodies.

Currently, there is a law on amnesty for unauthorized buildings, extended until 2018, this law must be used, otherwise then fines will be taken as a percentage of the cadastral value of the object.

Ownership of an unauthorized building

The legal concept - the right of ownership, which is the foundation of private law relations, includes the right to dispose, possess and use an object, and transfer it by inheritance at one's discretion. However, individuals and legal entities, due to various circumstances, erect unauthorized buildings, while not observing urban planning standards, and even operate the facility. Unfortunately, there is no uniform legal practice in this matter, and the courts consider that even if there is ownership of the site, the constructed object is subject to demolition under certain circumstances. Such an unauthorized building can go through all the stages of official legalization when recognizing the ownership of the building in court and subsequently register with a state body.

When the constructed object is located on a site owned by another owner or municipality, then the ownership of the unauthorized construction cannot be recognized due to circumstances, namely the absence of the most important criterion - the existence of ownership of the land. This right can be replaced by a lease agreement, which will allow the use of the land, including for the construction of facilities. If the building poses a possible threat to the life or health of third parties, then it is subject to demolition, regardless of the statute of limitations.

The legislator provided for the right of citizens to recognize the right of ownership of unauthorized construction in a judicial proceeding or as an alternative in state bodies. It must be understood that it is impossible to go to court with a demand for recognition of the right, in the absence of a procedure for applying to state bodies involved in the legalization of unauthorized buildings. The lawsuit indicates a request to preserve the property, and recognition of ownership of the property. After receiving a decision that has entered into force, a citizen must apply to Rosreestr to recognize his ownership right.

Recognition of ownership of unauthorized construction

Regulatory legal acts regulate the special allocation of land plots from the land fund, the procedures for erecting facilities and putting them into operation. Often the requirements are not met, the construction and commissioning of residential buildings are allowed, without documents allowing the use of this object in a legal manner. The legislation of the Russian Federation leaves the citizen the opportunity to use the action for recognition of ownership of unauthorized construction in court and appeal the decisions made in the appellate instance.

Unauthorized is a building erected on a land plot not legally allocated for this purpose or a building that does not meet urban planning standards. During the construction of the object, the following provisions of urban planning must be observed:

• the developer's ownership of the land;
• the developer has a building permit;
• the object should not pose a danger to the health and life of people;
• the rights of neighbors (third parties), etc., should not be violated.

Failure to comply with these requirements causes difficulties in registration of ownership of unauthorized construction. Any such building is subject to demolition on a voluntary or compulsory basis at the expense of the developer, in accordance with Art. 222 of the Civil Code of the Russian Federation.

However, Part 3 of Article 222 of the Civil Code of the Russian Federation allows recognizing the right to unauthorized construction in a judicial proceeding if a citizen owns a land plot for life lease or ownership.

So the Supreme Court of the Russian Federation, considering cases of different categories on unauthorized buildings, gives clarifications on the consideration of cases on the recognition of unauthorized buildings by the courts. So in the cases it is indicated that citizens wishing to legalize the object in a judicial proceeding are required to submit documents proving that attempts were made to obtain a permit for the construction of the facility and draw up an act of putting the facility into operation. In the absence of such a pre-trial procedure, the statement of claim is subject to return to the plaintiff with an indication of the reason.

The Supreme Court of the Russian Federation also clarifies that it is impossible to legalize an object located on land illegally occupied by the developer, even if the time of open possession of the object exceeds the time of acquisitive prescription.
The law separates the rights to property owned by a citizen as his own, openly, for a long time, and property that appeared during the unauthorized construction of buildings and does not equate them. An important point in recognizing the ownership of an unauthorized construction will be respect for the territory and compliance with the purpose of the land. Any non-compliance with these standards is not allowed, and it will be impossible to obtain ownership of the erected object.

How to arrange an unauthorized building on a designated site

In recent years, construction has experienced a huge upsurge, this is due to the transfer of land plots to private ownership, the allocation of shares to former collective farmers. Currently, the land has risen in price, due to the fact that it has become allowed to build capital buildings, with further obtaining ownership. Citizens, building up a land plot owned, postpone obtaining a permit for "later", as a result, an unauthorized construction appears. The building is not alienated and real estate cannot be disposed of, the ownership right belongs only to building materials and the question immediately arises of how to legally arrange an unauthorized building on a registered plot. Otherwise, it will be demolished at the expense of the developer or owner who built this object on a voluntary or compulsory basis, but only by a court decision.

However, there are ways to legalize unauthorized buildings if the land is privately owned or there is a contract for lifetime use. It is based on the federal law on dacha amnesty. The law provides a simplified version of how an unauthorized building is formalized on a registered site without recourse to the courts. In this case, the owner or the person representing him collects a package of documents and submits it to the state authorities, in the event that all legal norms are met, they receive a certificate of registration of unauthorized construction.

If this option is not suitable and Rosreestr does not register real estate for any reason, you should go to court. Based on a court decision, obtain the right to property. There are four conditions under which unauthorized construction on one's own plot can be legalized legally. But first there will be a pre-trial settlement in the administrative order. If such actions were not taken, the court will refuse to accept the claim. To protect their rights, a citizen can apply to the courts of various levels.

Judicial practice considers the issue of how to legalize unauthorized construction on your site in accordance with legal norms is not as simple as it seems. The most difficult thing is to provide all the documents: certificates, examinations - carried out by independent state specialists, which take a lot of time. Using the law on amnesty for unauthorized residential buildings, it is already worth starting the registration procedure now.

Statement of claim for recognition of ownership of unauthorized construction

When transferring the housing stock and land plots to private ownership, citizens began to file a claim for recognition of the ownership of an unauthorized building in order to legalize the building in court. Now real estate can be disposed of and inherited legally. It is not uncommon for privatized summer cottages to carry out the construction of a house or utility room, in which a lot of money has been invested, most often this is a capital structure. However, such a house cannot be disposed of, i.e. sell or inherit, do not take any legal action. Immediately the question arises about the legalization of this house. To do this, they turn to the courts according to the territorial affiliation of the object. If the cost of the object is less than 50,000 rubles, then they apply to the world court, if more, to the district court.

The main citizen must understand that going to court with a statement of claim to recognize ownership of an unauthorized building is not such an easy procedure. In such cases, a specialist in unauthorized buildings can help. Based on the legislation and legal norms, he will evaluate the case. Further, it will help to correctly draw up a statement of claim for recognition of the right to unauthorized construction on the preservation of the building and recognition of ownership. The defendant at the hearing will be the owner. And only after collecting a package of documents, a correctly drawn up statement of claim for ownership of the unauthorized building, payment of the state fee, the court accepts the case for consideration. In some cases, by a court decision, ownership of an object can be terminated if it threatens people's lives. The object is demolished or dismantled, but only by a court decision.

Objection to the demolition of unauthorized buildings

The erection of unauthorized construction is not allowed by law, and the developer is responsible for this object. Responsibility arises in case of violation of the right to ownership of a land plot, in violation of urban planning norms, the rights of other citizens. There are especially many disputes between neighbors due to the improper construction of utility rooms of garages and baths. A citizen may file a claim for the demolition of such an object to the district court at the location of the object. Having received a subpoena from the court, the defendant may file an objection to the demolition of the unauthorized structure, arguing that there are no violations or they are not significant. For proof, it is necessary to conduct an independent examination with the participation of land management specialists, an act must be drawn up indicating the presence of violations, if any.

It is best to contact a law firm to draw up an objection to the demolition of an unauthorized building, here they will give a legal assessment of your case and advise on the case of unauthorized construction. Further, you can conclude an agreement for the provision of legal services on a paid basis. The legal service will include a service for drafting an objection to a lawsuit against an unauthorized facility built in accordance with the laws of the Russian Federation. The court will hear both parties and make a decision based on the documents provided by the plaintiff and the defendant, based on the results of the examinations. And only by a court decision can you legally demolish an unauthorized building.

Customers often want to start construction as soon as possible. But the start of construction before obtaining the appropriate permits is fraught with problems with the law.

Nevertheless, many builders follow the lead of customers and often do not wait for permits, but start building at the stage of filing documents.

In our article, we will analyze the consequences of such a decision - what is the penalty for building without a building permit?

What you need to start building work

To begin with, let's figure out what is needed to legally start construction work:

All these steps must be completed in order to start construction legally. But each of these stages contains its sub-stages. The process of going through all the circles of bureaucratic structures is not fast, which is why many people have a desire not to wait for official permissions even if no one planned to break the law at first.

It is easier for those who build non-permanent structures - permission is not required for them at all.

What is considered unauthorized construction

The definition of the Civil Code, article 222 states that this is a structure erected illegally. Such a structure has only two options for the future - it will either be demolished or legalized.

Unauthorized construction is considered if:

• it was built without observing the building code;
• sanitary standards are not observed;
• there is no building permit;

If at least one of these signs is present, then the building is unauthorized.

Before legalization, such a building cannot be donated, sold or used in other transactions.

Let's count the money

It is worth facing the truth and saying that most people start construction even before receiving official papers, thereby violating the current legislation.

Illegal construction threatens with administrative liability. About this in the Code of Administrative Offenses there is article 9.5.

The fine for unauthorized construction without permission for citizens will be from two to five thousand rubles. The fine for unauthorized construction for officials is already more significant - from twenty to fifty thousand. For individual entrepreneurs, the fine is the same, but in addition to the fine, they also face an administrative suspension of activities for a period of up to ninety days.

If a legal entity decided to build a capital structure without permission, then the fine “shines” is quite large - from five hundred thousand to one million rubles. In addition to the fine, legal entities may also be subject to an administrative suspension of activities for the same period as in the case of individual entrepreneurs.

What else can be punished

In addition to construction, it will be illegal to carry out excavation, construction, economic and other types of work without obtaining permission from the cultural heritage protection authorities, when it is required. This applies to the reconstruction of the old fund, which belongs to the objects of cultural heritage. You can see more information in the same Code "On Administrative Offenses" article 7.14 and in article 52 of the Town Planning Code.

Fines - from fifteen thousand to one hundred thousand for citizens, from twenty to three hundred thousand for officials, from one hundred thousand to one million for legal entities.

Construction of a private house

As we have already understood, the fine for the illegal construction of a private house for a citizen is small. But there is another opportunity to break the law - to build up the site in a discrepancy with the intended purpose. This type of violation is discussed in detail in the Land Code - articles 40 and 42.

According to the Administrative Law Code, article 8.8, in this case, the fine for a citizen will be from one thousand to one and a half, for officials - from two to three, and for legal entities from forty to fifty thousand rubles.

If the problem of illegal construction has already arisen or is just brewing, we recommend that you seek professional advice from specialists in the field of law and the construction business.

Illegal construction of a house on a land plot entails administrative liability in the form of a fine. In complicated situations, the outcome may be tougher - the complete elimination of the building. It is quite possible to avoid problems if you take care of the legalization of the property in advance. It is important to remember that the category of land on which construction is supposed to begin must correspond to the intended goals.

Article 222 of the Civil Code defines squatting on a plot of land as a structure erected as a result of illegal construction in the absence of an appropriate permit or without observing the prescribed rules and regulations.

Such arbitrariness is not only illegal, but in addition it has no benefits - it is not possible to dispose of the rebuilt object at one's own discretion. Rent, donate, sell - these legal actions will not be available.

At the same time, construction without the consent of the authorities cannot be called something extraordinary. Increasingly, cases of squatting are being discovered. This is mainly due to the ignorance of the population. A citizen, buying land, does not even suspect that the development of the site requires additional permission and registration of ownership of the erected building.

Types of illegal buildings

Varieties of unauthorized structures are identified based on the types of violations, in connection with which their existence is defined as illegal.

The main types include:

1. Lack of documents permitting construction. The most common case when the issue of legalization is completely resolved.
2. Construction on the territory not provided in accordance with the established procedure. And here there are 2 options. The first is that the building was built on a site obtained in the 90s and not properly designed. There are usually no problems with legalization. In the second case, the land can be occupied without permission, so there are no title documents. And in such a situation, it will not be possible to legalize the squatter, most likely, the building will be obliged to demolish.
3. Development of land with a different purpose. For example, a residential building in a forest area. It will be possible to legalize the construction only after changing the category of permitted use of the land allotment. This procedure is lengthy, costly and not always feasible.
4. Violation of the rules and town planning norms during construction. Legalization is acceptable, but only after the elimination of defects.

Another option is to deliberately start construction before obtaining a permit. This is due to the difficulties of coordinating the procedure with the administration. For this reason, a person proceeds with the construction of a building and in the process is engaged in the settlement of all formalities. Most often, this method is used by developers of large real estate objects.

The punishment for illegal construction of structures is considered quite severe. And this is understandable, since relaxation in such a matter would entail the seizure of territories and the chaotic development of land areas.

By law, unauthorized construction is subject to liquidation. The care of the procedure falls on the shoulders of the person responsible for its construction. In addition, you will need to pay a fine.

Article 9.5 of the Code of Administrative Offenses of the Russian Federation defines the following amounts of monetary punishment in the event of the construction of an object without the consent of the local authorities:

• for individuals - from 2,000 to 5,000 rubles;
• for individual entrepreneurs and officials - 20,000 - 50,000 rubles;
• for organizations - from 500,000 to 1 million rubles.

The use of a building without its permission for operation entails a fine in the amount of:

• for individuals - up to 1,000 rubles;
• for individual entrepreneurs - 1000 - 2000 rubles;
• for enterprises, organizations - from 10,000 to 20,000 rubles.

Since 2015, local governments have been allowed to decide on the demolition of unauthorized buildings without recourse to the judiciary. The owner of the object is notified of the liquidation within 7 days.

In addition, liability to the tax authorities cannot be ruled out. The authority can recalculate for the last 3 years and present a receipt for payment of previous contributions. This may include penalties for ignoring tax obligations.

​Despite the fact that cases of unauthorized construction are considered as a negative phenomenon, the practice of legalizing such structures is quite large and at the same time positive. If the fact of the presence of an unauthorized building is not hidden and the owner himself wants to legalize the structure, he is usually met halfway, provided that the rules and norms of construction are observed.

And here there are 2 ways to legalize an object:

1. Simplified procedure with the application of the law on dacha amnesty. In this case, all issues are resolved with the local administration.
2. Appeal to the court. Here you will need to prepare a statement of claim and collect a lot of additional documents, the main of which is the refusal of the administration to provide consent for the construction. Without this paper, the issue will not be considered at the court session.

In addition, in order for a property to be recognized as legal, a number of conditions must be met:

• the owner of the house has rights to the land allotment;
• compliance of the building with established urban planning standards, land use rules, safety and other requirements;
• no threat to the well-being of third parties from the object.

If in the first two cases, the situation can be changed, then the last point, one way or another, will lead to the forced demolition of the building.

The construction of a house or other structure without the appropriate permit can lead to a number of serious problems, ranging from a fine to the liquidation of the object forcibly. In such a situation, it is recommended that the legalization of unauthorized construction be started as soon as possible through the court or through negotiations with local authorities. And let the procedure for recognizing the building as legal will be long, but in the future, this will free the owner of the house from a number of numerous problems.

Judicial practice shows that self-builds are not uncommon. Someone erects them out of ignorance of the laws, and someone does it on purpose, hoping that he will be able to avoid any punishment for his actions. In this article, we will consider what, according to the law, unauthorized construction can lead to on their own land plot, as well as on state plots. Let's pay attention to judicial practice and fines that can be received for such activities. Let's also consider the phenomenon of IZHS.

To begin with, it is worth saying that if you are interested in the self-construction of a non-residential building on your own land, then you should remember the following very important nuances:

• Self-construction of a non-residential building on its own site in the form of a bathhouse / extension to the house / other technical premises is completely legal and does not require any additional approval.

• If you decide to build a non-residential commercial building on the territory of your own land plot, then the situation will be more complicated. Even if the land plot is yours according to the documents, you will still need a specialized permit to build a commercial building on your own plot. Otherwise, this construction will be considered illegal due to violation of the intended purpose of the land. In fact, the execution of such documents for commercial construction does not take much time.

The formatting methods are as follows:

• Retroactive arrangement.

• Appeal to a specialized commission.

• Legalization of construction through the court.

In the first case, all the documentation for construction is drawn up for you retroactively (these are IRD documents, building permits, etc.)

In the second case, you can apply to the commission, which understands the Urban Planning Code. Immediately after the appeal, the commission will decide whether to give you permission or not. By the way, you must have a good reason to build a non-residential commercial building on your own territory.

The third case is similar to the procedures of the second, only the decision is made through the court. Usually, the third case is resorted to when there are any problems with the first two. In court, for a successful decision, you may need:

• Documents that confirm the fact of construction.

• Documents that confirm that other persons do not claim your commercial squatter.

• Documents that describe in detail the technical characteristics of an object.

• Documents that state that your unauthorized construction does not violate the rights and interests of third parties.

Judicial practice and fines for unauthorized construction at their summer cottage

Now let's move on to the specifics about what could threaten for illegal squatting, for example, in a summer cottage. Even if you managed to build a squatter in order to avoid any legal procedures at your summer cottage, then remember the following:

• Illegal squatting is not considered immovable property and cannot be registered with state authorities in the future.

• Such an object cannot be officially sold or issued an inheritance on it.

• The so-called acquisitive prescription does not apply to such an object.

Depending on the size of the squatter, the land on which it was built, and the time it was discovered, fines can range from 50,000 to 1,000,000 Russian rubles. As you can see, the fines for unauthorized buildings are not comic. Also, the possibility of withdrawing a land plot in favor of the state is attributed to the fine.

What is IZHS?

Lastly, we'll talk about IHS. Many have heard this abbreviation, but did not understand what it means. IZHS is an individual housing construction. It represents the provision of legal housing for citizens no more than 3 floors high and designed for one family. In IZHS, registration at the place of residence is usually possible. Also in IZHS, in almost all cases, the presence of extensions, superstructures and other things is legal.

As legal practice shows, IZHS becomes purely your personal area, which the other party does not have the right to encroach on if there are no specific violations (illegal increase in area, completion of more floors, etc.).

As a result of this short article, I would like to say that we have considered the main legal nuances regarding unauthorized construction. We dismantled what an illegal squatter construction on our own site can carry, talked about judicial practice and fines. This information will allow you personally to avoid all sorts of mistakes regarding the construction of a self-build, if any, in your plans. Remember that in the actions of such a plan, you should still be guided by the law and common sense. Good luck!