Recognition of ownership of unauthorized construction. Legalization of self-construction

Since 2015, the conditions for recognizing property rights to buildings classified as unauthorized have changed. In the Civil Code, 222 articles are devoted to the regulation of this sphere. On September 1 of the above-mentioned year, adjustments to this standard came into force. The amendments were introduced by Federal Law No. 258 of July 13, 2015. As a result, it is rather problematic to legalize an unauthorized structure at the moment. However, it should be said that the tightening of rules has developed much earlier. Many citizens built and continue to build unauthorized buildings. Judicial practice in cases concerning the status of such objects is quite extensive. As part of the proceedings, therefore, certain requirements were imposed on owners and other stakeholders. They were not fixed normatively. Since 2015, the rules have been fixed at the legislative level. . Let's consider further, as today the recognition of the property right to unauthorized construction is carried out.

The concept of

In the old version of art. 222 the following definition was present. – это объекты недвижимости, созданные на определенном наделе, не отведенном для данных целей в установленном законодательным либо иным нормативным актом порядке, или без получения необходимых документов, или при существенном несоблюдении предусмотренных правил. Unauthorized buildings on the land plot are real estate objects created on a specific plot not allocated for these purposes in accordance with the procedure established by legislative or other normative acts, or without obtaining the necessary documents, or if the rules provided for are not complied with. FZ No. 258 changed this definition. At present, unauthorized construction should be understood as a structure, a building, a different structure erected on a site not provided according to established rules, or at a site whose permissible use does not provide for construction. This category includes objects created without obtaining the necessary paper or violating the norms established in the regulations. . For example, under the action of 222 articles falls garage without documents .

Building

The changes made to article 222 touched, first of all, on the characteristics of the objects. Previously, "uninhabited buildings, other buildings, structures or other real estate" could be referred to unauthorized buildings, now - only "construction, building, other structure". To clarify the concepts, one should turn to federal legislation. The Federal Law №384 specifies that the building is the result of construction, expressed in the form of a voluminous building system. It has overground / underground parts, rooms, engineering and communication networks. The building is intended for people living, storing products, locating production, keeping animals. Specification of the types of such objects has developed by default. Buildings are thus considered to be residential or non-residential. " может применяться и к незавершенным объектам. Explanations on this issue are given by YOU in Resolution No. 12048/11 of January 24, 2012. The concept of " unauthorized building of a house " can also be applied to unfinished objects. The corresponding provision is present in the Plenary Decree of the Supreme Council # 10 and the Supreme Arbitration Court # 22 of April 29, 2010.

Buildings

This term is used in the new edition of article 222 instead of "other real estate." Definition of the structure is present in the Instruction on the implementation of housing accounting in the RF. It was approved by the Order of the Ministry of Construction of the Russian Federation No. 37 dated August 4. 1998. The building is a house, a building, service buildings, including those built separately and consisting of 1 or more parts, presented as one unit. This concept is more precise than "real estate". The latter, among other things, include allotments, minerals. Accordingly, it is somewhat incorrect to use the phrase "other real estate" in art. 222.

Reconstruction

This concept is explained in Article 1 of the Civil Code (paragraph 14). In June 2015 the Armed Forces indicated that, based on the meaning of Art. 222 CC, other norms, the creation of new objects is recognized and the change in their characteristics, according to which they are individualized. In particular, we mean the number of storeys, the area, the height. , выполнившие реконструкцию, должны соблюсти установленный порядок по регистрации объекта. Thus, the tenants of the old house who completed the reconstruction must observe the established procedure for registering the object. At the same time, this action should not be confused with the re-planning and reorganization of the premises. These concepts are delineated in the Review of the Practice of Courts in Disputes Regarding Unauthorized Buildings.

Characteristics of objects

As the first one, one can name the creation / erection on an area not allocated for these purposes according to the rules provided for in legislative and other normative acts. For clarification, one should again turn to judicial practice. The facility will be considered erected on an area not allocated for these purposes, if the construction was carried out with a violation of the order of the intended use or contrary to the order of zoning. The second sign is the creation of real estate without obtaining the necessary paper. или иного сооружения. In particular, the subject for the relevant work should be a permit to build a house or other structure. The description of this paper, the order of its receipt is in Art. 51 GK. или иного объекта подтверждает соответствие проекта плану территории или межевания и дает субъекту юридическую возможность осуществлять возведение/реконструкцию сооружения. The permit for the construction of a house or other facility confirms that the project meets the plan of the territory or land surveying and gives the subject a legal opportunity to erect / reconstruct the structure. One important point should be noted here. If the person did not take measures to receive this paper, then it would be extremely problematic to legalize the unauthorized construction. The third sign of objects in accordance with Article 222 is the creation / erection of structures in violation of town-planning rules and norms. Earlier in paragraph 1 there was an indication of materiality in case of non-compliance with requirements. This criterion is excluded from the new edition of the article. Accordingly, it is not necessary to prove it in disputes. This, in turn, tightens regulation of subjects. In the presence of at least one of the above characteristics, the object will be recognized as illegally erected. . Based on this, demolition of samostroi will be carried out.

Obtaining official status

, согласно 222 статье, осуществляется в настоящее время при соблюдении определенных условий. The legalization of samostroya , according to Article 222, is currently carried out under certain conditions. In doing so, they must be performed simultaneously. осуществляется: Recognition of ownership of unauthorized construction is carried out:

1. If, in relation to the allotment, the entity that created the facility has legal capabilities permitting the erection of the structure.
2. As of the date of the claim, the building parameters correspond to the values specified in the territory planning and the rules of the regulations, or mandatory requirements that are present in other regulatory acts.
3. The preservation of the structure will not violate the interests of third parties and threaten their health / life.

The allotment should belong to the subject on legal grounds.

Intended use

не может осуществляться, если эксплуатация территории осуществляется не по установленному назначению. Recognition of ownership of an unauthorized construction can not be carried out if the operation of the territory is not carried out for a specified purpose. At the same time, the competent authority refused to change the permitted use. противоречила бы положениям 8 статьи ЗК. Otherwise, the legalization of samostroya would be contrary to the provisions of Article 8 of the LC. In this rule, the order of assigning territories to one or another category and transfer of allotments from one to another is determined. In resolving one of the disputes, the Armed Forces indicated that the mismatch of the structure to the designated purpose of the site within which it is located serves as a condition for refusing to satisfy the claims for recognition of property rights. In particular, a seven-story building can not be created on a site intended for erecting objects, the number of floors in which there should not be more than five.

Nuance

In some cases, the entity must have a building permit (act of commissioning). However, the absence of this paper does not necessarily entail a refusal to satisfy the requirements. The proceedings take into account the fact that the person has taken steps to obtain it. The Decree of the Armed Forces No.10 / 22 states the following. The absence of a document confirming the legal possibility of a person to carry out measures to erect an object does not in itself act as a ground for refusal. невозможно, если гражданин не предпринимал необходимых мер для ее получения, а компетентный орган правомерно отказал ему в выдаче. At the same time, the recognition of ownership of an unauthorized construction is impossible if the citizen has not taken the necessary measures to obtain it, and the competent authority has lawfully refused to extradite him. In other words, it is necessary to find out whether the subject has performed the proper actions and what was the motivation of the authorized structure that did not provide the necessary paper.

Correspondence of parameters

As the normative values, the indicators defined in the planning documentation, building / land use rules or in mandatory requirements present in other acts are adopted. It seems that the latter include, mainly, a variety of SNiPs. Meanwhile, it is worth considering that these rules and norms will be applied in the edition that operated at the time of the creation of the object.

The third condition

It deals with ensuring the observance of the interests of third parties and eliminating threats to their health and life. This condition follows logically from the previous one. могут подвергаться опасности. For example, if the rules and regulations were violated during the reconstruction, the tenants of the old house may be at risk. Accordingly, the structure can not be operated in the usual manner. The condition about observance of interests of the third parties has found the expression and in judicial practice. Thus, when considering one of the cases, the Collegium for Civil Disputes noted that as one of the legally significant factors it is the establishment of the fact whether the preservation of the building of interests of adjacent users of the allotment, as well as the order of location of objects on the ground established in the municipality, violates the building of the building. Moreover, the VS explains that the presence of the notary consent of the owners of the plots does not relieve the subject who built the building from fulfilling the requirements contained in town-planning rules and norms. Violation of the latter in itself creates a danger to an unlimited number of persons.

conclusions

, можно отметить следующее. When referring to the characteristics of structures and conditions under which the recognition of ownership of an unauthorized construction is permissible , the following may be noted. The object can only receive legal status in one case. This is possible if the absence of a building permit is the only indication. The presence of other characteristics will automatically mean the failure of one or several of the conditions specified in paragraph 3 of article 222. The same is said in paragraph 26 of Resolution No. 10/22. It states, in particular, that, unless otherwise provided by law, a claim requiring recognition of ownership of a building must be satisfied if it is determined that the only indication is the absence of necessary papers (an act of putting into operation or confirming a legal The ability to conduct relevant work on the ground), if the subject has taken steps to obtain them.

Demolition samostroya

It is carried out in two ways. In the first case, the work is carried out in accordance with the court decision. The general rules establish 222 clause in clause 2. In accordance with the norm, the demolition of self-construction is carried out by the person who created it or at his expense. In the 22nd paragraph of Resolution No. 10/22, a circle of persons has been identified who can file a corresponding suit. Require the liquidation of structures entitled:

1. Title owners put it on.
2. Owners of the territory.
3. The subject whose interests are disturbed by the creation of the structure.
4. Authorized body, according to federal regulations.
5. Prosecutor acting in the public interest.

Alternative option

Norms allow the liquidation of buildings and extrajudicially. For this, the local power structure takes an appropriate decision. The basis for its issuance is the erection or the creation of a structure on the vestibule:

1. Not provided for this purpose in accordance with the established procedure.
2. Located in a zone with a special regime of use or on a common territory. The exception is protected areas of monuments of culture and history.
3. Located within the range of the diversion of utility networks of local, regional or federal significance.

The decision taken by the territorial authority can be appealed.

Conclusion

So, from September 1, 2015 new rules apply. In 222, the article of the Civil Code introduced significant changes that toughen the legal regulation in the construction sector. The new edition of this rule clarifies a number of concepts and specifies the features of objects. As samostroya currently stands building, building or other structure that are created / erected:

1. On an allotment that has not been granted to the subject for this in the manner specified by the rules.
2. On the territory, the intended use of which does not provide for the accommodation of structures.
3. Without obtaining the necessary securities or in violation of town-planning rules and regulations.

In order for the structure to receive the appropriate status, it is sufficient to have at least one condition. The right of ownership of a garage or other structure can be obtained in accordance with the established procedure. The corresponding legal possibility can be assigned to specific persons who meet the requirements. In particular, it should be a subject who has an allotment on which the object is located, in lifelong possession, property, perpetual use. At the same time, the available legal possibilities should allow the erection / creation of a structure in the given territory. In addition, at the date of the claim, the building must comply with the parameters stipulated in the planning, land use / building regulations or mandatory requirements that are present in other regulatory enactments. Another mandatory condition is the observance of the interests of third parties, the exclusion of the danger to their life / health in case of preservation of the object on the ground. In order for the property right to be recognized, it is necessary to fulfill all the conditions.