Almost all residents once built and continue to build unauthorized buildings. Legal practice in cases that relate to the status of such objects is quite widespread. In accordance with the adopted law, within the framework of this issue certain requirements were deduced. But from year to year there is the erection of thousands of buildings, which at the legislative level are considered unauthorized, that is, subject to demolition. Can the ownership of unauthorized construction be recognized? How can such a structure be demolished and what can be done to prevent this from happening? The answers to these questions are presented in the article.
What is an unauthorized building?
The Civil Code of the Russian Federation (in particular, paragraph 1 of Article 222) directly decrypts this concept. The article of the code says that if on an area that was not allocated in the order established by current legislation, for any structure, or the structure was erected without permission, or in violation of operating standards, such a structure has the status of an unauthorized building.
After the erection of an unauthorized building, the person who has committed this illegal act liquidates the ownership right to the erected structure. Such a construction can be an object in any transactions: gift, sale, lease, exchange, and so on.
How is unauthorized construction determined?
As the first sign of an object, construction on an area not designated for such tasks according to the rules that were provided for in normative and other legislative acts can be called. Will give clarifications and comments on the recognition of ownership of unauthorized construction practice of lawyers. The building will be considered to be erected on an allotment not reserved for these tasks if the construction was carried out in violation of the order of motivated use or contrary to the division order.
The second sign is the construction of a building (real estate) without obtaining permits required by law for this action. To carry out work, there must be a permit for the construction of a house or other structure. In the Town Planning Code, in particular in article 51, you can familiarize yourself with this documentation and find out the procedure for recognizing ownership of unauthorized construction.
A building permit for a house or other facility certifies the conformity of the project to a plan or land survey and provides the legal or natural person with the legal right to construct a building or reconstruction of the construction. It is worth noting that if the land owner does not take any measures to obtain this permission from the relevant authorities, then its construction will not be considered legalized and will incur a number of penalties and problems.
What is included in the concept of reconstruction?
The urban planning code takes into account this characteristic of the object. As can be seen from paragraph 14 of the first article, the category of reconstruction includes a change in the number of storeys, height or area of the object, redevelopment of the object. It turns out that the owner who completed the reconstruction in his house is obliged to fix new changes on the living space as soon as possible in the established manner.
Recognition of ownership
How to get recognition of ownership of unauthorized construction? First you need to determine if you can, in principle, claim ownership.In order to be able to obtain the relevant documents, you must have at least one of the following conditions for the recognition of ownership of unauthorized construction:
- You are the owner of the land;
- you own a land plot under the right of lifelong use;
- you own a land plot under a perpetual title right.
Any other options, for example, if you rent land, do not give legitimate reasons to claim a self-built building.
Lawsuit
The next step will be to file a claim for recognition of ownership of the unauthorized construction. The following points should be emphasized in the text of the statement of claim:
- fidelity directive of law, on the basis of which the owner uses the land;
- describe in detail the technical construction project, and also show the type of construction;
- indicate exactly who completed the construction (independently or another person);
- show the premises according to which the building cannot be classified as unauthorized;
- show, in fact, that there are no precedents that have every chance of hindering the registration of the property right to the building (that is, all generally accepted measures have been taken, the building does not bear danger to other people, is not located on lands for which a third party has the right to property).
In addition, it is necessary to indicate whether the owner searched for measures to legitimize the object. If so, it is worth noting that impeded the implementation of this process. The defendant may be physical. or jur. the person who carried out the construction or, on self-construction, the local authorities to which the land belongs.
State duty on the recognition of ownership of unauthorized construction
After drawing up the application, you need to pay a fee. The amount of state duty will be determined based on the total price of the application, corresponding to the price of unauthorized construction. Details of this relationship between the amount of state duty and the value of the claim are reported in the Tax Code of the Russian Federation:
- Up to the cost of 20 thousand rubles, 4% of the price of the claim will be charged, but the size of the state duty will be at least four hundred rubles.
- From 20 thousand rubles to one hundred thousand rubles - 900 rubles + three percent of the cost in excess of 20 thousand rubles.
- From one hundred thousand rubles to 200 thousand rubles - 3400 rubles + two percent of the cost in excess of one hundred thousand rubles.
- From 200 thousand rubles to a million rubles - 5300 rubles + one percent of the cost in excess of 200 thousand rubles.
- More than one million rubles - a state duty of 13,500 + half a percent of the cost exceeding 1 million rubles, but not more than 60 thousand rubles.
Filing an application with the court
If the price of construction varies within fifty thousand rubles, then the application can be submitted to the court at the place of construction of the building.
Together with the application, the following are submitted to the court:
- Summary of land title.
- Papers from the Bureau of Technical Inventory or inspection report - to prove the presence of the building.
- Documents confirming the absence of facts that impede the acquisition of a building right.
- Documents confirming an attempt to obtain a building permit.
- State duty receipts.
- Copies of the appeal indicating the number of participants in the process (defendant, witnesses, third parties).
After studying the application and all documents, the court will make an informed decision at the request of an individual or legal entity.
Upon recognition by the court of the right of ownership of unauthorized construction, registration of the right of ownership of the construction should be performed. To do this, you need to pay a fee (1800 rubles), and then submit the following documents to the Rosreestr:
- appeal for state registration;
- internal passport;
- decision on recognition of ownership of unauthorized construction;
- confirmation of full payment of state duty.
The employee who accepts the documents will appoint the applicant a date when it will be possible to obtain a certificate or extract from the USR of rights to real estate and the right to deal with him. And this will recognize the ownership of the unauthorized construction.
Sample application to the court
The heading of the application must indicate the name and address of the court where the paper is sent, name, address and telephone number of the plaintiff, the same data of the defendant, other persons (if any), the price of the claim (in rubles). Next, in the middle, the name of the document is written: Statement of claim. The next line indicates: the recognition of ownership of unauthorized construction.
The text of the application must indicate the date of construction, type of construction (residential building, garage, outbuilding), area, address, person who conducted the construction, the reason for recognizing the building as unauthorized, the amount of money that was invested in the construction. In the “I ask” block, it is indicated “recognize the Claimant's ownership of (type of construction) at: ___ indicate address ___.
Evidence base
Documents or testimonies proving the pre-emptive right to build should be attached to the application. This can be a certificate of a large family, a job with a record of reduction or dismissal from your last job, a certificate of low income, testimony in the direction of an illegal builder. You can provide a certificate of the presence of a disabled person in the family, the court may recognize the presence of elderly parents, an unemployed spouse, three or more young children, and the status of a poor family as the basis for erecting an illegal building.
Very play on the hand evidence that before you built up and ennobled the territory, it was abandoned. In addition, it is worth trying to prove that the building does not violate the rights of third parties, documents confirming that there was no violation of the urban development plan, evidence of financial investments in the construction of the building.
Unauthorized construction of a garage
One of the most common cases in legal practice is the unauthorized construction of a garage on land plots not reserved for these tasks. Residents occupy free lands in huge cities, for example, Moscow, install temporary iron structures, although they do not at all recognize the ownership of the unauthorized construction of a garage. As a result, this property cannot be sold or inherited due to the fact that it is located on a land plot illegally. It is likely that a self-constructed garage will be eliminated, according to Article 222 of the Town Planning Code of the Russian Federation.
Recognition of ownership of the garage
In principle, when recognizing ownership of the unauthorized construction of a garage, have documents confirming the right of ownership of the land to an individual or a lease for unlimited use. The plot may be owned by a horticultural cooperative, the construction of a garage on such lands is subject to Federal Law No. 210, and it is easy to recognize the ownership of unauthorized construction of a garage; several documents from authorized structures are required. In the event that the object was built on a land plot owned by an individual or legal entity with the right of ownership, a garage built without prior permission is legally registered as an auxiliary utility room such as a shed.
The land plot may belong to the cooperative; in this case, it is possible to recognize the ownership right to the unauthorized construction of the garage by sending an appeal, as a member of the cooperative, to the state structures of the Russian Federation.
How is the liquidation of an independent building carried out?
As a rule, the demolition of a structure erected without permission is carried out by two methods. In the first case, work is carried out according to a court decision. The rules are established by article 222 in paragraph 2.In accordance with the norm, demolition of self-construction is carried out by the person who erected the building, or at its expense.
The twenty-second paragraph of Decree No. 10/22 defines the categories of persons who are entitled to apply. The right to seek the elimination of buildings is:
- owners of the allotment;
- owners of the territory;
- individuals whose interests are violated by the construction of the building;
- municipal authority, in accordance with national standards;
- public interest prosecutor.
The second option is the demolition of illegal construction
Legislation allows the elimination of unauthorized buildings and out of court. For this, the municipal authority makes a decision. The basis for the decision is the construction of the facility on the site:
- without permission to conduct construction for this task in accordance with the procedure established by law;
- located in a zone with a special regime of use or on a common territory - an exception in this case can be considered cultural and historical zones protected by the state;
- located within the strip of engineering networks of local, federal or national significance.
Always remember that a decision made by a municipal authority can well be appealed. Before you file a second application, you need to analyze the results of the previous lawsuit and determine what could have caused the refusal. The evidence base should be strengthened, additional papers should be collected, and witnesses should be found if they were not at the first hearing. A new application can be submitted within the next ten days after a negative decision.