Kuban Judicial Information Agency

The concept of unauthorized construction

Civil legislation reveals the concept of the term unauthorized construction.

So in accordance with Art. 222 of the Civil Code of the Russian Federation is a building, structure or other structure erected, created on a land plot that was not provided in the prescribed manner, or on a land plot, the permitted use of which does not allow the construction of a given object on it, or erected, created without receiving a permit for this necessary permits or with a significant violation of urban planning and building codes and regulations.

Such buildings are demolished, except in cases where they are recognized as legal.

An unauthorized building is subject to demolition by the person who built it, or the demolition is carried out at his expense.

Demolition can also be carried out by the body that made the decision on such demolition.

Ownership of an unauthorized building is established in court.

To recognize an unauthorized construction as legal, the owner must take the following actions::

• To understand whether you have the right to claim recognition of ownership rights to an unauthorized construction site,
• File a claim
• Preparation of the necessary documents attached to the statement of claim,
• Filing a claim with the appropriate court,
• Participation in court and obtaining a positive result,
• Submission of documents to Rosreestr for registration of ownership of an unauthorized construction site,
• Obtaining an extract from the Unified State Register of Real Estate (USRN).

Now let's proceed to a detailed description of all the steps that need to be taken to realize the goal - registration of ownership of an unauthorized building.

In what cases can ownership of an unauthorized construction be recognized?

You can file a claim for recognition of ownership rights if an unauthorized building is created on a site that is your property, lifelong inheritable possession or permanent (indefinite) use (Clause 3 of Article 222 of the Civil Code of the Russian Federation).

In this case, the object (building, structure or other structure) could be:

• built;
• reconstructed If you have carried out reconstruction, for example, unauthorized addition of additional premises, you need to file a claim for recognition of the right to the object as a whole, and not to the extension.

If you have carried out redevelopment or redevelopment (re-equipment) of real estate, as a result of which a new object was not created, you cannot demand recognition of ownership.

If the construction on your site was carried out by a third party, you can also demand recognition of ownership rights to it, but you will be obliged to reimburse him for expenses in the amount determined by the court (Clause 3 of Article 222 of the Civil Code of the Russian Federation).

You will not be recognized as having ownership of an unauthorized structure if a court or local government body has made a decision to demolish it or a decision to demolish or bring the unauthorized structure into compliance with the parameters established by land use and development rules, territory planning documentation or mandatory requirements for the parameters of the building , provided for by law (clauses 2, 3.1 of Article 222 of the Civil Code of the Russian Federation).

If, based on an appropriate decision, the building is brought into compliance with the established requirements, you acquire ownership of it. This process differs from the process of recognizing ownership of an unauthorized structure. For example, ownership rights can be acquired not only by the one who owns the plot, for lifelong inheritable possession or permanent (perpetual) use, but also in certain cases by the one to whom the plot is transferred for construction for temporary possession and use (clause 3.2 of Art. 222 of the Civil Code of the Russian Federation).

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A building that violates established restrictions on the use of a land plot is not unauthorized if its owner did not know and could not know about such restrictions in relation to his site. We believe that in this case there is no point in demanding recognition of the right of ownership of an unauthorized construction. It is worth, for example, trying to register ownership of newly created real estate (Article 219, paragraph 1 of Article 222 of the Civil Code of the Russian Federation).

Recognition of ownership rights to unauthorized construction

Action 1. Determination of the right of a person who can demand recognition of an unauthorized building as property

Article 222 of the Civil Code of the Russian Federation specifies subjects who have the right to demand recognition of ownership of an unauthorized building , these include:

• owner of the land plot on which the unauthorized construction is located,
• a person to whom a land plot is granted the right of lifelong inheritable ownership,
• a person to whom the plot is granted the right of permanent (indefinite) use.

These persons must simultaneously meet the following conditions:

• if in relation to the land plot the person who carried out the construction has rights allowing the construction of this object on it;
• if on the day of going to court the building complies with the parameters established by the territory planning documentation, land use and development rules or mandatory requirements for building parameters contained in other documents;
• if the preservation of the building does not violate the rights and legally protected interests of other persons and does not create a threat to the life and health of citizens.

Note! The tenant of a land plot is not a person who has the right to demand recognition of an unauthorized construction as his property.

Action 2. Drawing up a statement of claim for recognition of ownership of an unauthorized construction

To draw up a statement of claim, it is necessary to indicate all the identifying characteristics of the object about which the subject is filing a lawsuit.

That is, the claim must indicate information about the person who built the object and the type of right to the land plot.

The claim must indicate the justification that the construction is unauthorized.

For example , the required permissions are missing. During the construction of the building, the basic rules established by the town planning code, as well as building codes, were not violated. Thus, the residential building does not pose a threat to the life and health of citizens and does not violate the legal rights and interests of other persons.

The defendant in the claim is the person who built the unauthorized structure. If it itself files a claim, then the administration of the municipality. This instruction is contained in the Resolution of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court No. 22 of April 29, 2010).

When filing a claim, you must pay a state fee.

The amount of the state duty depends on the value of the claim:

• up to 20,000 rub. - 4 percent of the claim price, but not less than 400 rubles;
• from 20,001 rub. up to 100,000 rub. — 800 rub. plus 3 percent of the amount over 20,000 rubles;
• from 100,001 rub. up to 200,000 rub. — 3200 rub. plus 2 percent of the amount over 100,000 rubles;
• from 200,001 rub. up to 1,000,000 rub. — 5200 rub. plus 1 percent of the amount over RUB 200,000;
• over 1,000,000 rub. — 13,200 rub. plus 0.5 percent of the amount over 1,000,000 rubles, but not more than 60,000 rubles. (Clause 1, Clause 1, Article 333.19 of the Tax Code of the Russian Federation).

Action 3. Preparation of documents that must be attached to the claim

When filing a statement of claim in court, it is necessary to attach documents that confirm and substantiate certain facts and the applicant’s demands:

1. copies of the statement of claim in accordance with the number of persons participating in the process,
2. documents confirming ownership of the land plot,
3. acts of inspection of the site for the presence of unauthorized construction or documents from the BTI,
4. documents that confirm the absence of any violations of standards for the construction of the building. These may be inspection reports of government authorities for architectural construction, fire and sanitary supervision,
5. any documents confirming that you tried to legalize unauthorized construction (refusal to issue a building permit, ...),
6. document confirming payment of state duty,
7. if interests are represented by a representative, then a document confirming such authority.

Action 4. Filing a claim in court and participating in the process

The jurisdiction of the case on a claim to determine the ownership of an unauthorized construction is the magistrate's court, if the cost of the unauthorized construction does not exceed 50 thousand rubles . In other cases, the district court.

Upon completion of consideration of the claim for recognition of ownership of the unauthorized construction, receive a court decision.

It is necessary to pay attention to the fact that the identifying characteristics of the object must be specified in the court decision.

Action 5. Submission of documents for registration of ownership rights to the authorized government body

To state register an unauthorized building as property, you will need to collect the following set of documents:

• application for state registration,
• a document proving the identity of the applicant, and for the representative a notarized power of attorney,
• a court decision recognizing ownership of an unauthorized construction,
• receipt of payment of the state duty (2 thousand rubles - clause 22, clause 1, article 333.33 of the Tax Code of the Russian Federation).

It is not necessary to attach a receipt for payment of the state duty, since information about payment is sent to the state information system.

In the absence of such information, the authorized body, after 5 days from the date of receipt of the application, returns the documents back to the applicant without considering them.

Documents can be submitted in several ways:

1. personally,
2. through the MFC,
3. to an authorized person during an on-site reception,
4. by mail,
5. via the Internet in electronic form (Unified portal of public services (https://www.gosuslugi.ru/285286/43/info), Rosreestr website (https://rosreestr.ru/wps/portal/p/cc_present/reg_rights#/) .

Registration of an application for the provision of services by an authorized body is carried out within 30 minutes.

When applying in person, the waiting period is no more than 15 minutes .

After submitting the documents necessary for registration of unauthorized construction, the applicant is notified that the documents have been accepted for consideration.

The issue is reviewed within 10 working days.

After 10 days have passed, you can apply for an extract from the Unified State Register of Real Estate.

The emergence of ownership rights to unauthorized construction

To find out how ownership (hereinafter referred to as IP) of a joint venture arises, it is worth turning to the letter of the law. According to the provisions described therein, the IP may be recognized:

• according to the conclusion of a judicial organization;
• in a different manner described in this legislative act.

The joint venture is recognized as the person whose land territory with the joint venture is located (the conditions of the points must be met simultaneously):

• owned;
• in a lifelong inherited estate.

In this case, the one who legally owns the joint venture (the owner of the site) must reimburse all expenses to the person who erected the structure.

How to legitimize self-construction

If the owner of the land files a claim in court to have him recognized as a joint venture, then the citizen who created the joint venture has the right to file a counterclaim for reimbursement of construction costs. Also, the person who created the joint venture can independently, without waiting for a counterclaim, file a claim with a request to reimburse him for the costs of constructing the building.

The main regulatory legal acts on the basis of which the judicial organization makes a decision on the execution of a legal settlement:

1. clause 3 art. 222 Code of Civil Procedure.
2. Clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court, number 143.
3. Clause 26 of the Resolution of the Plenums numbered 10/22 <2>.

A joint venture cannot be issued for any person if the existence of a joint venture:

• violates the personal interests of various individuals;
• life threatening.

A joint venture has the right to be registered for the owner if he has taken all the necessary measures to legitimize the joint venture. This is an important criterion when registering rights.

It is important to clarify that the lack of permission to place a joint venture in itself cannot serve as a reason for rejecting a request for recognition by a judicial organization of a joint venture on a joint venture. The latter must make sure that the owner of the site has taken measures to legalize the structure.

In this case, if the exclusive feature of the joint venture is the absence of permitting documents for construction, the judicial organization will satisfy the claim of the person wishing to formalize the joint venture.

How to prepare and file a claim for recognition of ownership of an unauthorized construction

File a claim with the arbitration court at the location of the object (parts 1 and 2 of article 27, part 1 of article 38 of the Arbitration Procedure Code of the Russian Federation).

However, if the disputed object is not used and will not be used for business activities, file a claim in a court of general jurisdiction. The fact that you have the status of an entrepreneur does not in itself constitute grounds for refusal to accept a claim by such a court.

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How to prepare a statement of claim with attachments

When drawing up a claim, comply with the requirements for its content and form established by Art. 125 of the Arbitration Procedure Code of the Russian Federation and Art. 131 Code of Civil Procedure of the Russian Federation.

The defendant in this claim is the authorized body of the municipality (or federal city) on whose territory the unauthorized building is located if you erected it on your site without the necessary permits. If a building on your site was created by a developer and permits were obtained for its construction, file a claim against him.

In the main part of the claim, clearly formulate the requirements and confirm all the circumstances that allow you to legalize the unauthorized construction. Justify your requirements with references to regulatory legal acts.

Lists of required documents are contained in Art. 126 of the Arbitration Procedure Code of the Russian Federation and Art. 132 Code of Civil Procedure of the Russian Federation. If the claim and attachments do not comply with the mandatory requirements, the court will leave the claim without progress (part 1 of article 128 of the Arbitration Procedure Code of the Russian Federation, part 1 of article 136 of the Code of Civil Procedure of the Russian Federation). In this case, he will give you time to correct the shortcomings, and if you do not eliminate them on time, he will return the claim (Parts 2, 4 of Article 128 of the Code of Civil Procedure of the Russian Federation, Parts 1, 3 of Article 136 of the Code of Civil Procedure of the Russian Federation).

How to file a claim in court

The claim with attachments can be sent by mail to the address of the court of first instance, which is indicated on its website, or you can submit a set of documents directly to the court (clause 3.1 of the Instructions for paperwork in arbitration courts of the Russian Federation). If you decide to use postal services, we recommend sending documents by letter with a declared value and a description of the attachment (clause 10 of the Rules for the provision of postal services).

You also have the right to file a claim with attachments in electronic form (Part 7, Article 4 of the Arbitration Procedure Code of the Russian Federation, Part 1.1, Article 3 of the Code of Civil Procedure of the Russian Federation). A claim can be filed in an arbitration court on the website https://my.arbitr.ru/#index, in a court of general jurisdiction – on the website of the relevant court.

When submitting, comply with the requirements established, respectively, by the Procedure for submitting documents to arbitration courts in electronic form or the Procedure for submitting documents electronically to courts of general jurisdiction.

You can obtain an electronic signature or be limited to an individual's account. In the latter case, you need to prepare documents in paper form (with the necessary signatures) and send scanned copies of them to the court.

What state duty must be paid in a claim for recognition of ownership of an unauthorized building?

To file a claim with the arbitration court, you need to pay 6,000 rubles. (Clause 4, Clause 1, Article 333.21 of the Tax Code of the Russian Federation). If you ask to recognize ownership of several unauthorized buildings, then the state duty is paid for each of them. For example, if you file a claim against three objects, you must pay 18,000 rubles.

To file a claim in a court of general jurisdiction, the state fee must be paid according to the rules for property claims subject to assessment (clause 1, clause 1, article 333.19 of the Tax Code of the Russian Federation). For example, an estimate of the cost of a building can be ordered from the BTI.

If you pay the state duty according to other rules, the court will leave the claim without progress (Part 1 of Article 136 of the Code of Civil Procedure of the Russian Federation). If you do not pay the required amount, he will return your claim (Part 3 of Article 136 of the Code of Civil Procedure of the Russian Federation).

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