Unauthorized construction
Unauthorized building is a dwelling house, other building, structure or other immovable property created on a land plot not allotted for these purposes in the manner prescribed by law and other legal acts, or created without obtaining the necessary permissions or with essential infringement of town-planning and construction norms and rules.
In the norms of item 1 of article 222 of the Code exhaustively lists the evidence of unauthorized construction. It should be borne in mind, that proved the actual presence of at least one of the specified in this paragraph three features is sufficient for recognition of unauthorized building.
The list of real estate objects, which are created on the land and can be recognized as unauthorized construction, is open. To other buildings, structures or other immovable property can be attributed, in particular, baths, garages, barns, hangars, pavilions, communicating, etc.
Provision of land in accordance with their permitted use regulates Land code of the Russian Federation (RF LC). In particular, the provision of land for construction from the lands being in state or municipal ownership, determine V. 30 — 33 ZK the Russian Federation. Provision of land plots in state or municipal ownership, including for individual housing construction, carried out without prior approval of the location of the object exclusively at the auction (competitions, auctions).
The rules for obtaining the necessary construction permits shall be determined by law. In particular, the issuance of building permits shall be in accordance with article 51 of the town planning code of the Russian Federation (the Russian Federal UDC). A building permit is a document confirming compliance of design documentation with the requirements of the urban plan of the land and giving the developer the right to exercise construction, reconstruction of objects of capital construction and their capital repairs, with the exception of cases provided for by the UDC.
Building norms and rules determined in accordance with the urban planning code and other Federal laws, other normative legal acts of the Russian Federation, and also laws and other normative legal acts of constituent entities of the Russian Federation. Thus, in accordance with article 24 of the urban planning code, the adoption of regional standards of urban design shall be based on the characteristics of settlements, urban districts within the boundaries of the Russian Federation. The composition, manner of preparation and adoption of regional standards of urban design are established by laws of constituent entities of the Russian Federation. Approval of local standards of urban design shall be based on the characteristics of settlements in borders of municipal formations, inter-settlement territories. The composition, manner of preparation and adoption of local standards of urban design are established by normative legal acts of local self-government.
Building regulations (SNiP) the claims Commissioner on the Federal body in the field of construction. For example, Building codes, Russian SNiP 30-02-97 "Planning and development of territories of gardening (country's) unions of citizens, buildings and structures" approved by the Resolution of Gosstroy of the Russian Federation dated 10.09.1997 N 18-51; Construction norms and rules SNiP 3.04.03-85 "Protection of building designs and constructions from corrosion" approved by the Resolution of Gosstroy of the USSR from 13.12.1985 N 223. In some industries apply to departmental building codes (BCH). For example, the Departmental construction norms BCH 19-89 "acceptance of works in the construction and repair of roads" approved by the Minavtodor RSFSR 14.07.1989 N-18/266.
Under condition of observance of town-planning and construction norms and rules and the requirements of intended use of the land plot (item 2 of article 260 of the Code) the land owner may erect on it buildings and facilities, their reconstruction or demolition, to allow the construction on his land to others. Unless otherwise provided by law or contract, the owner of the land acquires ownership of the building, structure or other immovable property erected or created by him for himself on the site belonging to him (article 263 of the Code).
Notice that the unauthorized construction is not only the construction of the property, but also the implementation without a proper permit, the reconstruction of residential houses (parts of houses); the conversion of a lawfully erected non-residential buildings in the residential and Vice versa; construction of a new building with permission for the overhaul of the old; the erection of additional buildings <1>. Regarded as unauthorized and such buildings, which have been made with inconsistent deviations from the design.
-----------
<1> See: Instruction on accounting of housing stock in the Russian Federation, approved by Order of Minnestoa of the Russian Federation from August 4, 1998 No. 37.
Erected in violation of the Rules for the establishment and use of roadside strips of Federal highways of General use within roadsides and buildings are recognised in the prescribed manner an unauthorized construction, and in respect of the persons who built them, the measures stipulated by the legislation of the Russian Federation <1>.
-----------
<1> See: The resolution of the RF Government of 1 December 1998 N 1420 "On approval of Rules of establishment and use of roadside strips of Federal highways of General use" // Sz the Russian Federation. 1998. N 49. St. 6059; 2000. N 6. St. 776; 2006. N 23. St. 2526.
According to article 24 of the Federal law of 17.11.1995 N 169-FZ "About architectural activity in the Russian Federation" <1> a citizen or legal person engaged in the construction of architectural object without a building permit (unauthorized construction) or in violation of the approved planning documentation, shall be liable in accordance with Russian Federation Code of administrative offences (Cao RF).
-----------
<1> SZ THE RUSSIAN FEDERATION. 1995. N 47. St. 4473; 2002. N 1. St. 2; 2003. N 2. St. 167; 2004. # 35. St. 3607; 2006. N 52. Part I. St. 5497, 5498; 2009. N 1. St. 17.
Paragraph 3 of article 25 of the Federal law of 17.11.1995 N 169-FZ "About architectural activity in the Russian Federation" established the liability of the person responsible for the construction or change of the architectural object without proper permission. He shall bear the responsibility at his own expense to carry out demolition (full disassembly) unauthorized construction or bring the architectural facility and the land to its original state.
Administrative responsibility for violation of requirements of design documentation and normative documents in the field of construction are stipulated in article 9.4, and for violation of the established order of building, reconstruction, major repairs of object of capital construction, its input in operation — article 9.5 of the administrative code.
In accordance with paragraph 2 of article 222 of this Code, a person who carries out unauthorized construction shall not acquire the right of ownership. It is not entitled to dispose of the building — to sell, give, rent, or commit any other transactions. Unauthorised building subject to demolition to achieve its face or at his expense, except the cases specified in paragraph 3 of this article.
It should be borne in mind that the unauthorised development is an offence in violation of the land legislation, regulating the provision of land for construction, or urban planning and building regulations governing the design and construction.
In section 2, article 222 of the Code provides civil legal consequences of recognition of unauthorized building. The penalties are, on the one hand, the refusal to recognize ownership rights for the developer, and with another — necessity of demolition of unauthorized construction carried out her face or at his expense.
According to the General rule of paragraph 2 of article 222 of this Code, a person who carries out unauthorized construction, does not recognized its owner. In connection with this unauthorized construction cannot be the object of a civil turn (standing for a thing shall be entitled to only its owner). Deals with unauthorized construction are prohibited, except cases when the right of ownership to unauthorized construction recognized in court or otherwise established by law according to the rules of paragraph 3 of this article. Transaction aimed at the disposal of the unauthorized building, invalid as contrary to law (see article 168, 169 of the Code). In the case of recognition of the right of ownership of persons unauthorized construction corresponding to the property included in the civil circulation on a General basis.
Unauthorized construction may not be included in the composition of the housing stock, does not have the status of premises. Therefore, the person who has erected unauthorized construction cannot be registered and to obtain the right to reside in it.
Therefore, when applying for recognition of premises in accordance with the law unauthorized construction is not required to declare the requirement about eviction of citizens from dwellings, subject to further demolition, as the court's decision to demolish illegally constructed buildings do not violate the rights of a citizen to reside in that dwelling. If a citizen was illegally constructed in a residential area, in this case, filing a lawsuit on demolition of illegally constructed buildings must also be presented a claim for eviction <1>.
-----------
<1> See: Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2006, Approved by the Decree of the Presidium of the Supreme Court dated 7 and 14 June 2006 // the Bulletin of the Supreme Court. 2006. N 9; Bulletin of international treaties. 2007. N 1.
Cases on the demolition of unauthorized constructions shall be considered at the location of illegally constructed buildings, since the issue of demolition we are talking about the rights of a person on immovable property (see article 30 GPK the Russian Federation) <1>.
-----------
<1> Cm. also: Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2006, approved by the Decree of the Presidium of the RF Supreme Court dated 27 September 2006 // Bulletin of international treaties. 2007. N 1.
As follows from the Definition of the constitutional Court of the Russian Federation of 3 July 2007 No. 595-O-P "At the request of the Sormovo district court of Nizhny Novgorod about the verification of constitutionality of the paragraph of second point 2 of article 222 of the Civil code of the Russian Federation" <1> contained in paragraph 2 of article 222 of the Code, the rate, as a sanction for the offense, does not preclude the establishment of guilt of the person who carried out unauthorized construction, and allows for the laying on him the burden of demolition of buildings in the presence of a fault.
-----------
<1> Bulletin of the constitutional Court of the Russian Federation. 2007. N 6.
The sanction can be applied if proven guilty of the citizen in the implementation of unauthorized construction. The implementation of unauthorized construction is the actus Reus, evidence of the Commission of which is the establishment of at least one of the three signs listed in clause 1 of article 222 of the Code. The need to establish fault of the developer is confirmed by the provisions of paragraph 3 of article 76 of the land code of the Russian Federation, according to which bringing the land into usable condition when they are littering, and other types of damage, unauthorized occupation, the demolition of buildings, structures, unauthorised occupation of land or unauthorized construction is carried out by the perpetrators of these offenses land or at their expense.
Unauthorized construction the General rule is subject to demolition. However, to this rule there are exceptions allowing under certain circumstances to recognize the right of ownership to an unauthorized building.
In accordance with section 3 of article 222 of the Code the right of ownership to an unauthorized building may be recognized by the court, and in cases provided by law otherwise established by law for the person in ownership, lifetime inheritable possession, permanent (perpetual) use of which is land plot where the building was made. In this case, the face, for which recognized the right of ownership to a building, shall compensate the Builder for face cost of construction in amount determined by the court.
The right of ownership to an unauthorized building may not be recognised for the specified person if construction preservation breaks the rights and legitimate interests of other persons or creates a threat to the life and health of citizens.
Note that in the previous edition of the Code (par. 1 clause 3, article 222) provides for the possibility of recognition by court of the right of ownership to an unauthorized building by a person who carries out building not belonging to him, the land plot provided that the parcel is in the prescribed manner provided that person is under constructed building. This rule applied to 01.09.2006 and was abolished by the Federal law from 30.06.2006 N 93-FZ "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 property" <1>.
-----------
<1> SZ THE RUSSIAN FEDERATION. 2006. N 27. St. 2881; 2008. N 20. St. 2251; 2009. N 29. St. 3611, N 52 (h. I). St. 6410.
Currently, if a person owns the land on which is erected unauthorized construction, on legal grounds (he owns the right of ownership, lifetime inheritable possession, permanent (perpetual) use of land), it is entitled to claim acquisition of title to such construction in a judicial or other procedure under the rules of item 3 of article 222 of the Code.
This provision does not preclude the recognition in the courts of the right of ownership to an unauthorized building for the perpetrator of the unauthorized construction in the place belonging to him by right of ownership, lifetime inheritable possession, permanent (perpetual) use the land without obtaining the necessary permissions.
If a person who carries out the unauthorized construction, is not subject to any of the rights to the land, it can only rely on the reimbursement of the costs of construction in amount determined by the court, but not on the recognition of property rights to unauthorized construction. Thus, it can not be recognized the right of ownership of person in property, if such an object was illegally constructed them in a foreign land.
Other than litigation, the procedure for the recognition of the right of ownership to an unauthorized building is determined by Federal law from 30.06.2006 N 93-FZ "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".
To initiate recognition of the right of ownership to an unauthorized building may be the person to whom the right of ownership, lifetime inheritable possession or permanent (perpetual) use of owned land occupied by such construction.
The right of ownership to a dwelling house, erected by a citizen without the required permission, on the land, which granted him lease for housing may be recognized, if the residential structure is created without significant violations of town-planning and construction norms and rules, and if preservation of this structure does not violate the rights and legally protected interests of other persons, does not create a threat to the life and health of citizens (see the Review of legislation and court practice of the Supreme court of the Russian Federation for the II quarter of 2007, approved by the Decree of the Presidium of the Supreme Court of the Russian Federation from 01.08.2007).
Thus, the court recognized the right of ownership to an unauthorized building: if a person has the right to land and they met the purpose of the land, if the preservation of the unauthorized construction violates the rights and legitimate interests of other persons and does not pose a threat to the life and health of citizens, and also, if the person complied with established construction, ecological, sanitary-hygienic, fire and other rules and regulations. In the case of non-compliance with these requirements to the unauthorized construction apply the consequences provided for by paragraph 2 of article 222 of the Code, that is, the demolition of the structure, the prohibition of the disposal structure. If there is no dispute about the right, subordinated to court, the person who has carried out unauthorized construction on the allotted to him in accordance with the law of the land, in case of refusal in registration of unauthorized buildings have the right to challenge in court the actions of state or municipal bodies according to the rules provided by Chapter 25 of the code of civil procedure of the Russian Federation (see the Review of judicial practice of the Supreme Court of the Russian Federation for the II quarter of 2005 (civil law), approved by the Decree of the Presidium of the Supreme Court of the Russian Federation from August 10, 2005)