unauthorized construction Legalize

Legalize unauthorized construction

What is the unauthorized construction

Illegal Buildings are a dwelling house, other building, structure or other real estate, created on land not designated for that purpose in the manner prescribed by law and other legal acts, or created without obtaining the necessary permits or is a material breach of town planning and building rules and regulations (* 1). These buildings are not subject to real estate and not subject to registration as an object of ownership in real estate. Carries out the unauthorized construction person does not acquire the right of ownership and, therefore, not entitled to dispose of it - to sell, give, rent, lease, engage in other transactions.
Unauthorised building does not have the status of the object under construction and not subject to registration as such.

As stated by the Supreme Court of the Russian Federation, to acquire ownership of illegally constructed buildings, located on illegally occupied land, by virtue of acquisitive prescription is not possible (* 2). The position of the prescription means that a person who is not an owner of real estate, but conscientiously and continuously owned it for 15 years, acquires title to it (Art. 234 CC RF). The legal position of the Supreme Court was confirmed by the Constitutional Court of Russia, who indicated that guarantees property rights and housing rights are granted only in respect of any property owned entity lawfully (* 3).
The construction of unauthorized buildings entails responsibility. Article 58 of the Town Planning Code stipulates liability (disciplinary, property, administrative and criminal) for persons guilty of violating the law on urban planning.

Citizens or legal persons engaged in unauthorized construction bear responsibility under the Code of Administrative Offences of the Russian Federation (* 4). Thus, in this case, citizens imposed an administrative fine of from 3 to 5 minimum wages (* 5).
Draw up reports on administrative offenses provided for Part 1, Art. 05.09 of the Administrative Code, have the right to officials of the State Architectural and Construction Supervision (Part 1 of Art. 28.03 of the Administrative Code) and officials of the Interior (Police) (Section 1, Part 2, Art. 03.28 of the Administrative Code).

The demolition of unauthorized buildings

A person who carries out the unauthorized structure shall at his own expense to demolish it or to bring land to its original condition (* 6). Issues involved in the demolition of unauthorized buildings local administration and courts. Construction in any case be subject to demolition, if it violates the rights and legitimate interests of others or poses a threat to life and health.

These standards were previously in the Russian legislation. Thus, according to the Decision of the CPC of the RSFSR 22.05.1940 № 390 "On measures to combat unauthorized construction in the cities, workers, resorts and holiday villages" (in the red. From 07/23/1993) unauthorized developers must immediately on receipt of the relevant requirements of the local executive authority stop construction and within one month on their own and at their own expense to demolish all the buildings erected by them, or parts of buildings and tidy plot. This rule applies to the extent not inconsistent Art. 222 of the Civil Code.

A similar situation exists in the land laws - the demolition of unauthorized construction of the guilty party must fully compensate the damage caused as a result of its land violations and bring the land into usable condition at his own expense (* 7).
The demolition of unauthorized buildings be made only by court order. Disputes related to the demolition, arising from claims of private individuals and local authorities (local authorities).

Pay attention!
If the unauthorized construction violates the rights and legitimate interests of others or poses a threat to life and health of citizens, interested persons may apply to the court for its demolition.

As an example extract from the decision of the Moscow Regional Court, which, inter alia, the following conclusion: "The fact that the buildings were built without proper permits and have not been taken into operation, is not sufficient grounds for the relevant law, the decision to demolish them, while the cottage is in the use of defendant's construction does not violate the interests of others "(* 8).

The recognition of property rights to arbitrarily constructed buildings

Claims for recognition of rights for unauthorized buildings served to legalize such facilities. In the case of positive decision making, you can register ownership of real property. Without going to court the person who carries out such a construction is entitled to it only as a set of materials (bricks, boards, nails, glass, etc.).
Earlier in the article. 222 of the Civil Code were given two cases may the court decision on the recognition of property rights to unauthorized construction.

1. In carrying out construction on the person not belonging to him the land, if this site will be provided in due course he erected a building (this provision from September 1, 2006 no longer in effect (* 9).

2. If the plot of land where construction carried out, is owned by the (lifetime inheritable possession or use) of a citizen. In this case, the owner of the site, which shall be entitled to ownership of the building, shall reimburse the person to carry out its construction costs in the amount determined by the court.
Ownership of the unauthorized construction can be found by a court only on the condition that its retention does not violate the rights and lawful interests of other persons who do not pose a threat to human life and health.

Jurisdiction of cases of claims of citizens of the recognition of property rights to unauthorized construction

Such cases are subject to review in a court of general jurisdiction where the erection of an appropriate structure (* 10).
When considering cases of this type the person concerned must prove to the court such facts as:

· The right to land, which is new construction, or permission of the owner of this site or the owner of the existing building on the construction (reconstruction) (* 11);
· Compliance with the purpose of land;
• availability of the duly approved design and permits, which is the basis for the issuance of building permits;
· Compliance with town planning regulations, construction, environmental, sanitary, fire and other rules, regulations, rights and lawful interests of the owners, landowners, land users and tenants of adjacent land and other real estate.

If construction is carried out on the designated area, but significantly disrupted the architectural rules and regulations, the question of recognition of property rights can be resolved by the court with regard to the circumstances of the case and based on the possibility of eliminating violations. The court may require a specialist opinion or assign the appropriate expertise.

Thus, the following options for the court decisions on the claims of citizens of the recognition of property rights to unauthorized construction:

title to unauthorized construction can not be considered for any person to construct or for the owner (owner, user) of land, as the preservation of buildings violate the rights and lawful interests of others or endanger the life or health of citizens;
- Ownership can be recognized for the perpetrator of the building on the land belonging to him;
- Ownership may be considered for a person to own, lifetime inheritable possession, permanent (perpetual) of which the land when the construction carried out by another person not holding the rights to the site. The person for whom recognized the right of property to construct a person reimburses the cost of construction in the amount determined by the court.

After the entry into force of the court to recognize the right of property to build this right is subject to state registration in the manner permitted by law (* 12).

Registration of property rights in some developed or created by real estate in accordance with changes in the law

On the 01.09.2006 a new procedure for state registration of ownership on the following items (* 13):
· Real estate, construction, reconstruction, which do not require issuance of building permits;
· Objects of individual housing construction, caused or created on the land designated for private residential construction;
· Real estate created or created on the land located within the boundaries of the settlement and intended for ancillary facilities (on the farm land).

Note, however, that the issuance of a building permit is not required in cases where (* 14):

1) construction of a garage on land provided by the individual for purposes not related to business activities, or construction on the land provided for the conduct of horticulture, cottage industry;
2) Construction, reconstruction, not being the objects of capital construction (kiosks, canopies, etc.);
3) building on the land, buildings and structures auxiliary use;
4) changes in capital construction and (or) part thereof, if such changes do not affect the structural and other characteristics of their safety and security and do not exceed the permitted limit options for construction, reconstruction, urban development established by the regulations;
5) Otherwise, if in accordance with the Town Planning Code and the legislation of the Russian Federation on the town planning permit for the construction is not required.

The grounds for state registration of property rights are the documents (* 15):

• Declaration (* 16), confirming the establishment of the real estate at designated for suburban agriculture or horticultural land or the establishment of a garage or other immovable property (if its construction or reconstruction does not require a building permit) and containing a description of the object .
However, neither the Federal Law of 21.07.1997 № 122-FZ, nor in the Order of the Ministry of Economic Development on 15.08.2006 № 232 is specified, where a citizen can get the declaration form, which gives it body. Probably the declaration form will be provided to citizens in the body to make state registration of rights.
When making a declaration of their own citizens should write to her information about the property, address, type (name), the purpose of construction, cadastral number of the land, building area, year of its creation, the material of external walls, connected to the network engineering and technical support.
• Data Sheet (* 17), confirming the fact of creation, containing a description of the object of individual housing on land designated for private residential construction, or on the land located within the boundaries of the settlement and intended for ancillary facilities (on the farm land) .
• Title documents for the land on which the immovable property is situated. Submission of a title document to the specified land is not required if the applicant's right to this land previously registered in the prescribed manner.
• Cadastral plan of the land on which the associated object is created or established real estate.


In the absence of title deeds to land simplified procedure for registration of title to land can take advantage of these citizens.

1. Individuals who owned land on the right of permanent perpetual use or the right of lifetime inheritable possession. Documents on land located in such individuals, are the basis for state registration of ownership:
· Act granting a citizen of the land, issued by public authority or local authority within its competence and in accordance with the legislation in force at the place of publication of this Act at the time of its publication;
· Act (certificate) on the right of a citizen in this land, issued by the authorized body of state power in accordance with the legislation in force at the place of publication of this Act at the time of its publication;
· Issued by the local government an excerpt from the book of Households have a citizen's rights to the land (if the land granted for ancillary facilities);
· Any other document that establishes identity and the citizen's right to this land.

In addition to one of the following documents for registration of title to land must submit a cadastral plan appropriate land.
Before you undertake cadastral registration of land in the Federal Agency for Real Estate Cadastre (Rosnedvizhimost), there should be land-management work, including surveying of land boundaries (paid separately citizen).
Register ownership of the land may be in the order established by Art. 25.2 of the Federal Law of 21.07.1997 № 122-FZ. Making decisions about the provision referred to citizens in their own data plots in this case is not required (* 18).

2. Individuals who own a plot in gardening, horticulture, cottage partnership or cooperative, but do not have any documents had been on land rights.
This is quite a common situation is the fact that the garden plots were distributed long ago, and membership in a partnership or co-op confirmed only book a gardener or other similar documents.
If the plot of land, constituting the territory of gardening, horticulture or suburban non-profit organization, provided this non-profit association or other organization in which the entry into force of the Law of 01.09.2006 30.06.2006 № 93-FZ has been created (organized) this non-profit organization , a citizen who is a member of the nonprofit association, shall be entitled to acquire ownership of land granted to him in accordance with the project organization and development of the territory of any other non-profit organization establishes the distribution of land in this document, non-profit organization (* 19).


The provision in this case the land in the ownership of a citizen by executive authority or local authority having power to grant land on the basis of application of the citizen or his representative.

By this declaration the following documents:

· A description of the location of land boundaries, prepared by this citizen;
· Finally, the board of the non-profit organization with an indication of the citizen, for whom such land is fixed, and confirmation of compliance with the specified description of the location of land boundaries location of the boundaries of land actually used citizen.

If the above none of the members of the nonprofit association does not apply for the provision of land ownership, that body may request the following additional documents:

1) certified by the board of the nonprofit association a copy of the title document to land, constituting the territory of the non-profit organization;

2) an extract from the Unified State Register of Legal Entities containing information about the non-profit association. Please note that the practice of application of the Federal Law of 30.06.2006 № 93-FZ, yet composed, as from the date of its entry into force some time has passed.

In conclusion, garages, summer houses (with the right of residence registration and without), auxiliary buildings, and other newly constructed real property, for the erection of which do not require issuance of building permits, legalized by the simplified procedure in accordance with applicable law to reflect changes made to the Federal Law of 30.06.2006 № 93-FZ. For objects that fall under the category of unauthorized construction, the previous procedure for legalization under Art. 222 of the Civil Code.

* 1) Art. 222 of the Civil Code
* 2) Determination of number 11-G03-14 Review of legislation and judicial practice of the Russian Armed Forces for the I quarter of 2003, ratified. Resolution of the Presidium of the Russian Armed Forces 07/09/2003
* 3) Definition of the Constitutional Court of 25.03.2004 № 85-ON
* 4) The Federal Law of 17.11.1995 № 169-FZ "On Architectural Activity in the Russian Federation"
* 5) of Art. 05.09 of the Administrative Code
* 6) of section 3 of Art. 25 of the Federal Law of 17.11.1995 № 169-FZ "On Architectural Activity in the Russian Federation"
* 7) of section 3 of Art. 76 Land Code
* 8) Resolution of the Presidium of the Moscow Regional Court of 20.02.2006 № 141
* 9) Part 1 of Art. 2 of the Federal Law of 30.06.2006 № 93-FZ "On Amending Certain Legislative Acts of the Russian Federation on a simplified procedure of registration of citizens' rights to individual objects of immovable property"
* 10 paragraph 1 of Part 1 of Art. 22, paragraph 1 of Art. 30 Code of Civil Procedure of the Russian Federation
* 11) § 34 Resolution of the Plenum of the Supreme Court number 6, the Plenum of the RF № 8 of 01.07.1996 "On some issues relating to the application of the first part of the Civil Code"
* 12) of Art. 28 of the Federal Law of 21.07.1997 № 122-FZ "On state registration of immovable property and transactions with it"
* 13) The Federal Law of 30.06.2006 № 93-FZ "On Amending Certain Legislative Acts of the Russian Federation on a simplified procedure of registration of citizens' rights to individual objects of immovable property"
* 14) hours 17 of Art. 51 of the Town Planning Code
* 15) of Art. 25.3 of the Federal Law of 21.07.1997 № 122-FZ
* 16) form of the declaration, approved. Order of the Ministry of Economic Development on 15.08.2006 № 232
* 17) The form of registration certificate, approved. Order of the Ministry of Economic Development on 17.08.2006 № 244
* 18) of section 3 of Art. 28 of the Federal Law of 15.04.1998 № 66-FZ "On the horticultural, gardening and country-profit Citizens' Associations
* 19) of § 4 of Art. 28 of the Federal Law of 15.04.1998 № 66-FZ