Protection against recognition of the construction as unauthorized and declaration of ownership in court
Unauthorized structure is an object of real estate that was built as a result of illegal construction. Illegal construction, in turn, can be both formal violations (without permits or land rights allowing construction), and technical deviations from the planned characteristics of the property (for example, due to non-compliance with building codes during construction and reconstruction). For more details about unauthorized construction, you can see article 222 of the Civil Code of the Russian Federation. Juridically, “unauthorized structures” is not at all an object that can be used, owned and otherwise, or transferred under various kinds of transactions (under a contract of sale, exchange, donation, etc.).
In fact, from a legal point of view, such an object simply does not exist, but this is exactly until the moment someone applies to court with a lawsuit to recognize it as an unauthorized construction. In practice, there are more common cases of so-called unauthorized structures on a formal basis. It usually means that they were built without an appropriate building permit and (or) without any construction rights of the developer to the land plot (ownership, lease, etc.). Indeed, there are such situations when a property is already in the process of construction, or even built, and the building permit for one reason or another (sometimes really objective) has not been received by the developer. This is an extremely difficult case, but even here it is possible for an “unauthorized” developer or other landowner to legitimize this property in court.
In litigation in this category of cases, the applicant, foremost, needs to prove the status of honest housing developer. It means that the developer, took action to apply for the necessary permits, but for objective reasons, could not get it. Unfortunately, the usual formalities are not important here. Legal practice often does not recognize the honest behavior of the housing developer, for example, sending an application for a building permit without attaching to it all the necessary documentation according to urban planning legislation.
These points are carefully examined by the courts, and the slightest negligence by the developer or other deviation from the standard of honest prior to the construction or already during of such generally, can be qualified as dishonesty and can be punished (for example, in the form of refusal of a claim declaration of ownership of a constructed property). Along with this, the courts in cases of recognition of ownership of the unauthorized structure establish that the developer has construction rights to the land plot, the compliance of the constructed object with the technical requirements, and the absence of a threat to life and health as a result of the preservation of this building. Generally, such cases are considered by the courts, involving the help of special knowledge in the area of construction, for which appropriate construction and technical judicial examinations are appointed. Litigation on the recognition of real estate as unauthorized structures and the obligation to demolish or put in order are also based on a similar subject of proof. In this case, the defendant's side (usually a developer) foremost, should present the evidence of the legality of construction to refute the arguments of the plaintiff. It should be understood that the application of article 222 of the Civil Code of the Russian Federation can be used not only to construction, but also to the rebuilding of existing real estate. After all, rebuilding is a change in the parameters of a capital construction object, its parts (height, number of floors, area, volume), including a superstructure, restructuring, expansion of a capital construction object, as well as replacement and (or) restoration of load-bearing building structures of a capital construction object. Like construction, it is regulated by urban planning legislation and requires obtaining permits.
Meanwhile, the provisions of article 222 of the Civil Code of the Russian Federation on unauthorized structures can not be used for redevelopment and reconstruction, because as a result of these works a new real estate object is not formed. The rules on “unauthorized structures” can not be used for the objects that are not real estate (article 130 of the Civil Code of the Russian Federation). Disputes about unauthorized structures and the declaration of ownership of them present a high risk to developers, because the non-compliance of the constructed object with at least one of the criteria for construction permitted by law can lead not only to a refusal to declare the ownership of the object, but also to its physical loss with the shifting costs of its demolition on the developer
Declaration of ownership for unauthorized structures with the specialists of the Tsentralny Okrug Law FIrm gives many opportunities:
- it saves your time, and it needs minimal involvement of the client in the procedure;
- there is no need to independently prepare the entire package of documents;
- significant minimization of legal risks during the dispute on unauthorized structures and development of a legal view;
- Representation in the courts on cases in the area of unauthorized structures.
How can you contact us
You can call us + 7 (473) 20-30-161 or send a request using the feedback form on our website
Our e-mail: info@centraldep.ru
Office in Voronezh: lane Detskiy, b. 24, of. 44
Office in Moscow: Holodilny building 3, construction 8, of. 8304, phone number: +7 (495) 118-27-79.
Author is Alexander Tarkhnov