What is an arbitrary structure
Arbitrary structure is a dwelling house, other structure, building or other immovable property, created on land not allocated for these purposes in the manner prescribed by law and other legal acts, or created without obtaining the necessary permits, or is a substantive violation of town planning and building norms and rules (* 1). These buildings are not subject to estate and not subject to registration as an object of ownership of real property. Carries out the unauthorized construction of a person does not acquire the right of ownership and, therefore, not entitled to dispose of it - to sell, give, lease, to perform other transactions.
Unauthorized building does not have the status of assets under construction and not subject to state registration in this capacity.
As stated by the Supreme Court of Russia, to acquire ownership of the illegally erected structure, located on illegally-occupied land, by virtue of acquisitive prescription can not (* 2). Terms of acquisitive prescription means that the person who is not the owner of real property, but faithfully and steadily held it for 15 years, acquires ownership of it (Art. 234 CC RF). 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 the property which belongs to the entity legally (* 3).
The construction of unauthorized buildings entails responsibility. Article 58 of the Town Planning Code, establishes the responsibility of the RF (disciplinary, property, administrative, criminal) for persons guilty of violating the legislation on urban development.
Citizens or legal persons engaged in unauthorized construction, the responsibility under the Code of Administrative Violations of Russia (* 4). Thus, in this case to impose administrative civil penalty in the amount of 3 to 5 minimum wages (* 5).
Draw up reports on administrative violations under part 1 of Art. 9.5 Code of Administrative Offenses shall have the right officials from the State Architectural and Construction Supervision (Part 1 of Art. 28.3 Administrative Code of the RF) and officials of the Interior (police) (Section 1 Part 2, Art. 28.3 of the Administrative Code of RF).
The demolition of unauthorized buildings
A person who carries out the unauthorized construction shall at his own expense to demolish it or bring land to its original state (* 6). The issues involved in the demolition of unauthorized constructions local administration and courts. Construction in any case be subject to demolition if it violates the rights and legitimate interests of others or endanger the life or health of citizens.
Such standards were previously in Russia's legislation. Thus, according to the Resolution of the SNK of the RSFSR of 22.05.1940 № 390 "On measures to combat unauthorized construction in the cities, workers, resorts and holiday villages (in the red. From 23.07.1993) unauthorized developers must immediately upon receipt of the relevant requirements of the local executive body stop the construction and within one month on its own and at their own expense to demolish all the buildings erected by them or parts of buildings and bring order to the land. This rule applies to the extent not inconsistent with Art. 222 Civil Code.
A similar situation exists in the land law - the demolition of unauthorized structures, the guilty party must pay the full damage caused as a result of its violations of land, and bring the land into usable condition at your expense (* 7).
The demolition of unauthorized constructions made only by court order. Disputes arising from the demolition, arising from the claims of individuals and local governments (local governments).
Note!
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 to 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 constructed without proper permits and do not put into operation, is not enough relevant legal grounds to take action on their demolition while the cottage is in the use of defendant's construction does not violate the interests of others "(* 8).
The recognition of ownership of illegally constructed buildings
Claims for recognition of the rights of unauthorized structures shall be submitted to the legalization of such objects. In the case of positive decision can register ownership of real property. Without recourse to the court a person to carry out such construction is entitled to it only as a set of materials (bricks, boards, nails, glass, etc.).
Earlier in this century. 222 of the Civil Code of Russia were shown two cases where the possible adoption of a court decision recognizing the right of ownership to an arbitrary structure.
1. In exercising the person is not built on land belonging to him, if this plot will be duly given to him under the elevated building (this provision from 1 September 2006 ceased to be effective (* 9).
2. If the land plot where the implemented building, is owned by (a lifelong inheritable possession or use) of a citizen. In this case, the owner of the plot, which recognized the right of ownership to the building, refunds effected her face construction costs in the amount determined by the court.
Ownership of an arbitrary structure can be found by a court only on the condition that its retention does not violate the rights and legitimate interests of others, does not pose a threat to human life and health.
Jurisdiction of cases of claims of citizens on the recognition of ownership of an arbitrary structure
Such cases are subject to review in a court of general jurisdiction at the place of erection of the structure (* 10).
In cases of this category of the person concerned must prove to the court such facts as:
· Right to land, which is new construction, or permission of the owner of this site or the owner of the existing buildings for construction (reconstruction) (* 11);
· Compliance earmarked land;
· Presence of an established design and permitting documentation, which is the basis for issuance of building permits;
· Compliance with town planning regulations, building, environmental, sanitary, fire and other rules, regulations, rights and legitimate interests of owners, landowners, land users and tenants adjacent land and other real estate.
If the construction carried out in a designated area, but substantially violated the architectural standards and rules, the recognition of property rights could be resolved by the court in the circumstances and based on the possibility of correcting violations. The Court may require a specialist opinion or to appoint an appropriate examination.
Thus, the following options the court's decisions on claims of citizens on the recognition of ownership of an arbitrary structure:
ownership of an arbitrary structure can not be recognized by any of the perpetrator of the building, nor the owner (owners, users) of land as conservation construction violates the rights and legitimate interests of others or endanger the life or health of citizens;
- Ownership can be recognized for the perpetrator of the construction on land owned by him;
- Ownership can be recognized for the person in the property, inheritable possession for life, permanent (perpetual) use of which is the land where the construction carried out by another person not entitled to land. Person for whom recognized the right of property, reimburse the person carry out construction costs for the building in an amount fixed by the court.
After the entry into force of a court decision recognizing the right of property for the construction of this right is subject to state registration in the manner prescribed by the legislation (* 12).
Registration of ownership of some established or created by real estate in accordance with changes in existing legislation
From 01.09.2006 installed a new system of state registration of ownership of these objects (* 13):
· Real estate, construction, reconstruction, which does not require issuance of building permits;
· Individual housing construction object created or established on land designated for individual housing construction;
· Property caused by or created on the land located within the settlement and designed for keeping a personal subsidiary farms (on the farm land).
Should note that the issuance of a building permit is not required in cases of (* 14):
1) the construction of a garage on land granted to an individual for purposes not related to business activities, or construction on land plots allocated for gardening, dacha economy;
2) construction, reconstruction of objects that are not objects of capital construction (kiosks, canopies, etc.);
3) building on land with buildings and structures support the use;
4) changes in capital construction projects and (or) part thereof, if such changes do not affect the structural and other characteristics of their reliability and security and do not exceed the permitted limit parameters of construction, reconstruction, the existing town planning regulations;
5) Otherwise, if in accordance with the Urban Planning Code, the law of RF subjects of urban development permit for construction is not required.
The grounds for state registration of property rights are the documents (* 15):
• Declaration (* 16), supporting the establishment of the immovable property at designated for suburban farm 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, either in the decree of the RF Ministry of Economic Development 15.08.2006 № 232 is not specified, where a citizen can obtain a declaration which authority issued it. Probably a form of declaration will be made available to citizens in the authority responsible for state registration of rights.
When making the declaration must be a citizen of their own to write on it the information about the property: address, type (name), the purpose of construction, the cadastral number of land area construction, the year of its creation, the material of external walls, connection to network engineering and technical support.
• Technical passport (* 17), confirming the fact of creation, containing a description of an individual housing construction on land designated for private housing construction, or on land located within the settlement and intended for keeping a personal subsidiary farms (on the farm land) .
• entitlement to the land on which the facility is located real estate. Presentation of the title document to the specified land is not required if the applicant's right to that land formerly registered in the prescribed manner.
• Cadastral plan of land, which is the compliance of the created object or immovable property.
In the absence of title documents for land plots simplified procedure of registration of land ownership can take advantage of these citizens. 1. Individuals to whom the land belongs to the right of permanent or indefinite use of the right of lifetime inheritable possession. Documents on the land, held by such individuals, are the basis for state registration of ownership:
· Act for a citizen of this land, issued by a public authority or local government within its competence and in the manner prescribed by law in effect at the place of publication of such an act at the time of its publication;
· Act (certificate) on the right of a citizen in the land, issued by the authorized body of state authority in the manner prescribed by the legislation in force at the place of publication of such an act at the time of its publication;
· Issued by the local government extract from homestead book about the presence of a citizen's right to this land (if the land is provided for keeping a personal subsidiary farming);
· Other document establishing or confirming the right of a citizen in the land.
In addition to one of the following documents for registration of ownership of land must submit a cadastral plan of the land.
Before you undertake cadastral registration of land in the Federal Real Estate Cadastre Agency (Rosnedvizhimost), should hold land surveying work, including the surveying of boundaries (Payable citizen separately).
Register the ownership of such land may be in the manner prescribed by Art. 25.2 of the Federal Law of 21.07.1997 № 122-FZ. Decision-making on the provision of these citizens in the ownership of these lands in this case is not required (* 18).
2. Individuals who own the parcel in the horticultural, vegetable allotments, country partnership or cooperative, but do not have any papers had been on land rights.
This is a fairly common situation is the fact that the country houses were allocated long ago, and membership in a partnership or co-op confirmed only book a gardener or other similar documents.
If the land, the constituent territories of gardening, horticulture, or dacha non-profit organization, provided this non-profit association or organization, under which prior to the entry into force of 01.09.2006 Law of 30.06.2006 № 93-FZ, was established (organized) the non-profit association citizen who is a member of the non-profit organization, is entitled to acquire ownership of land given to it in accordance with the project organization and development of the territory of the non-profit organization in any other setting the distribution of land in the non-profit association document (* 19).
The provision in this case, the land ownership of the citizen by the executive government or local government body having right of land, based on the application of that national or his representative. This statement following documents:
Softpedia location boundaries of land, prepared by this citizen;
* Conclusion of the Board of the non-profit organization with an indication of the citizen, which is fixed for such land, and the confirmation of the compatibility of the description of the location of boundaries of the land location of land plots boundaries, actually used by a citizen.
If previously, none of the members of this non-profit organization did not apply for granting of land ownership, the organ has the right to request the following additional documents:
1) certified by the board of the non-profit organization a copy of the title document to the land, the constituent territories of the non-profit organization;
2) an extract from the Unified State Register of Legal Entities containing the information about this non-profit association. Please note that the jurisprudence of the Federal Law of 30.06.2006 № 93-FZ is only formed because since its launch was a little time. In conclusion, garages, summer houses (with right of residence registration and without), auxiliary buildings and other newly constructed property, for construction that do not require the issuance of construction permits, legalized by the simplified procedure in accordance with applicable law to reflect changes made by the Federal Law of 30.06.2006 № 93-FZ. For objects that fall under the category of unauthorized construction, the existing procedure for legalization under Art. 222 of the Civil Code.
* 1) Art. 222 CC RF
* 2) Determination of number 11-G03-14 Review of legislation and judicial practice of the Armed Forces for the I quarter of 2003, ratified. Decree of the Presidium of the RF Armed Forces from 09.07.2003
* 3) Definition of the Constitutional Court of Russia from 25.03.2004 № 85-On
* 4) Federal Law of 17.11.1995 № 169-FZ "On the architectural activities in Russia"
* 5) Art. 9.5 Code of Administrative Offenses
* 6) Clause 3, Article. 25 of the Federal Law of 17.11.1995 № 169-FZ "On the architectural activities in Russia"
* 7) Clause 3, Article. 76 Land Code
* 8) Resolution of the Presidium of the Moscow Regional Court dated 20.02.2006 № 141
* 9) Part 1 Art. 2 of the Federal Law of 30.06.2006 № 93-FZ "On amendments to some legislative acts on the issue of simplified registration of citizens rights to some objects of immovable property"
* 10 n. 1 hour 1 tbsp. 22, para 1, Art. 30 GIC RF
* 11) paragraph 34 Ruling of the Plenum of the Supreme Court of Russia, number 6, Plenum HAC RF № 8 of 01.07.1996 "On some issues relating to the application of the Civil Code of RF"
* 12) Art. 28 of the Federal Law of 21.07.1997 № 122-FZ "On state registration of rights to immovable property and transactions with it"
* 13) Federal Law of 30.06.2006 № 93-FZ "On amendments to some legislative acts on the issue of simplified registration of citizens rights to some objects of immovable property"
* 14) h. 17 st. 51 of the Town Planning Code of the RF
* 15) Art. 25.3 of the Federal Law of 21.07.1997 № 122-FZ
* 16) The form of declaration, ratified. Order of the Ministry of Economic Development of Russia from 15.08.2006 № 232
* 17) Form of registration certificate, ratified. Order of the Ministry of Economic Development of Russia from 17.08.2006 № 244
* 18) Clause 3, Article. 28 of the Federal Law of 15.04.1998 № 66-FZ "On gardening, horticulture and suburban non-profit associations of citizens"
* 19) Clause 4, Article. 28 of the Federal Law of 15.04.1998 № 66-FZ
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