In practice quite often you can face a situation when the construction objects erected with infringements, for example: without obtaining a building permit or with a permit for the construction of the assignment coincides with the target purpose and permitted use of the land, where work is underway, etc. Subsequently, as a rule, there are difficulties with registration of title documents for real estate objects and objects of incomplete for one reason or another construction.
So, what legally can I solve this problem?
In the consideration of this question I would like to note that not every "unfinished" can apply for the position of the property. This, clearly, is not the tiling of the land, does not meet the characteristics of the structure. For the recognition of objects of unfinished construction of immovable thing requires full completion of works on construction of foundations or similar works (clause 38 of the Resolution of Plenum of the Supreme Court of 23.06.2015 g. № 25 "On application by courts of certain provisions of section I of the Civil code of the Russian Federation").
In our view, if there are "gaps" or inconsistencies in the documents for the construction of the object, you can attempt registration of ownership in two ways: 1) to obtain the necessary documents in administrative procedure; 2) to demand recognition of title in court.
The administrative procedure is regulated by the town planning code of the Russian Federation and, as a rule, reduced to the re-issuance of existing documents. In particular, if the "unfinished" or finished object construction is erected on land not designated for that purpose, that is, having a different permitted use, the owner of the land (the developer) can apply:
■ a statement about its change to another permitted use;
■ either a statement of granting permission for conditionally permitted use of land.
The first variant is carried out in accordance with the town planning regulations and observing the requirements of technical regulations (clause 3, article 37 of the urban planning code). Basically, each municipality developed its own administrative regulations on provision of service which contains a complete list of required documents and the procedure for its provision. Sometimes you may set a fee for changing the permitted use of the land. For example, in Moscow such fee is provided in the form of the difference between the cadastral value of the land with the established on the date of filing of the application the permitted use and cadastral value of a land plot with a modified type of permitted use (clause 1, article 22 of the Federal law from 05.04.2013 n 43 – FZ "On peculiarities of regulation of separate legal relationship in connection with accession to the subject of the Russian Federation – city of Federal significance Moscow and on amendments to certain legislative acts of the Russian Federation").
The second option you can use, when installed in a territorial area conditionally permitted uses coincide with the appointment of "unfinished" or erected object. To apply for granting permission for conditionally permitted use of land should, in the Commission on land tenure and building of the municipality, in whose territory the land plot. The review said application is carried out with mandatory public hearings. Therefore, a person interested in obtaining such permission, you should be prepared to bear the costs associated with their organization and conduct. The decision on granting or refusal to grant permission to conditionally permitted kind of land use is taken by the head of the local administration on the basis of the results of such public hearings and recommendations of the Commission on land use and development regulations (article 39 of the urban planning code). In any case, it should be justified and motivated. The absence in the decision the reasons for denial of the permission to conditionally permitted kind of land use is grounds for annulment (Decision FAS East – Siberian district from 16.08.2013 № A33 – 14020/2012).
In addition, the person filing the application for granting permission to conditionally permitted kind of use of the land should remember that its consideration will take into account the requirements of technical regulations. Installed the prohibitions or limitations even in the presence of positive results of public hearings can admit a valid reason for refusal to grant the appropriate permission either to serve as a basis to challenge the decision of the head of the local administration (the Decision of Arbitration court of East Siberian district from 17.03.2016 on the case № A78 – 8867/2015).
After conform the permitted use of the land and the future of the property prior to submission of package of documents for the implementation of cadastral registration and state registration of such a facility will need to amend the information, the Unified state register of real estate (egrn) on the land (the authorised use).
As for judicial procedure, the more often developers are trying to "recapture" their rights to the construction project by filing lawsuits on the recognition of the rights of ownership, in accordance with the rules of exception of unauthorized construction.
So, unauthorized construction recognized building, structure or other structure that:
— created on land not granted in prescribed manner;
— do not conform to the permitted use of land;
— built without obtaining the necessary permits;
— built in violation of urban planning and building regulations.
Unauthorised building subject to demolition to achieve its face or at his expense, except in certain situations (section 2 of article 222 of the civil code). In particular, the legislator and judicial practice has formed virtually the only approach to the possibility of recognizing ownership rights in a court order on unauthorized construction in the absence of a building permit and/or the act of putting the object into operation in case if both of the following conditions are met:
a) the facility meets the construction standards and design documentation;
b) preservation of the object does not violate the rights of third parties and does not create a threat to the life and health of citizens;
C) a person who has erected unauthorized construction, have not been idle and has taken appropriate measures for its legalization, including obtaining permits;
g) the refusal of the authorized body on issuance of permits is unlawful in nature (paragraph 26 of the Resolution of Plenum of the Supreme Court of the Russian Federation No. 10 of the Plenum of the Russian Federation No. 22 dated 29.04.2010, "On certain questions arising in judicial practice when resolving disputes relating to the protection of the right of ownership and other real rights").
Failure to comply with even one of these points, the courts take a categorical position, and deny the person who created the unauthorized construction, the recognition of property rights (Definition of the Supreme Court of 08.04.2014, № 18 — КГ14 – 12).
It is worth noting that, despite the lack of a normal article 222 of the Civil code an explicit reference to the object under construction, the courts consider the possible recognition of property rights in a judicial order on the "unfinished" (paragraph 30 of the Resolution of Plenum of the Supreme Court of the Russian Federation No. 10 of the Plenum of the Russian Federation No. 22 dated 29.04.2010, "On certain questions arising in judicial practice when resolving disputes relating to the protection of the right of ownership and other real rights"; the Decision of Arbitration court of the Central district on 18.03.2015 No. F10-277/2015).
Quite often we are received with the claim about demolition from the city Administration, refuting the arguments of the plaintiff "dacha Amnesty". Every time we hold an outreach advice and say no Amnesty, but there is Federal law No. 93-FZ of 30 June 2006 "On amendments to some legislative acts of the Russian Federation for the issue of a simplified procedure the rights of citizens on separate objects of real estate".
This Federal law does not negate the imperative rules, the established norms of the town planning Code of the Russian Federation, for obtaining permits for the construction of all real estate (including country structures, excluding garage and outbuildings).
It is important to separate the legal requirements for obtaining a building permit, in the absence of which was guaranteed to demolish the buildings, and just simplified procedure for the registration of property rights (the so-called "dacha Amnesty"), which minimizes the set of documents for submission to registration authorities (excludes design and permits), however, does not give the right to the future owner does not get a building permit.
Quite a lot of cases when "dacha Amnesty", the titular owners of record in the egrn received claims from the Administration and were forced to demolish their buildings and to exclude information from the egrn.
Summarizing all the above, we can say that "imperfection" or the lack of documentation on construction site is not an unconditional basis of impossibility of registration of property rights. However, starting the construction works under these conditions, developers need to understand that the risks of recognition of the constructed object of unauthorized construction are quite large, and the cases of recognition of ownership rights to such objects is limited. However, one should not neglect seem at first sight formal administrative procedures for obtaining permits, because in some situations you were a victim of abuse to the appropriate authority may favorably affect the resolution of the further question of the right of ownership.