The RF Armed Forces did not allow the legalization of unauthorized construction through a claim for recognition of ownership rights
Even if the unauthorized construction meets all the requirements and does not violate anyone’s rights, this is not a reason to legalize it through the court. The plaintiff must also prove that he did everything possible to register the property in accordance with the law. Trying to obtain a building permit when the property has already been built is not good faith conduct.
Two entrepreneurs were the owners of a plot of land with several buildings. They decided to reconstruct these buildings in such a way that they ended up with one building of a larger area.
Having completed the reconstruction, they applied for permits - first for reconstruction, and then for putting the facility into operation - but were refused.
The essence of the dispute
The entrepreneurs did not challenge the refusal, but immediately went to court demanding recognition of ownership of the reconstructed building.
A forensic examination determined that the new building:
- complies with urban planning, technical, sanitary rules, as well as fire safety rules,
- does not pose a threat to the lives of citizens, their health and property,
- does not violate the rights and interests of other persons,
- located on a plot of land owned by entrepreneurs,
- corresponds to the permitted use and intended purpose of the site.
Court positions
The court of first instance concluded that the only sign of unauthorized construction in this case was the absence of a permit for reconstruction and an act of putting the facility into operation. However, he denied the entrepreneurs' claim. The court concluded that the plaintiffs did not do everything in their power to obtain the documents necessary for the lawful reconstruction of the property. This was evidenced, in particular, by the fact that they applied for permission after they had reconstructed the object.
The appeal did not agree with this decision. She considered that there was every reason to legalize the unauthorized construction.
The cassation supported the first instance. Additionally, she drew attention to the fact that the fire inspector, during the inspection, revealed violations of fire safety rules at the facility and brought the owners to justice under Part 1 of Art. 20.4 Code of Administrative Offenses of the Russian Federation.
Conclusions of the RF Armed Forces
The Supreme Court of the Russian Federation agreed with the courts of first and cassation instances and noted the following.
- Current legislation obliges developers to obtain the necessary permits when constructing real estate (Article 51 of the Civil Code of the Russian Federation).
- A claim for recognition of ownership of an unauthorized construction is an exclusive way to protect the right. It cannot be used only to simplify the registration of rights to real estate and bypass the licensing procedure for its creation.
- Applying for a building permit after the completion of reconstruction does not indicate the good faith of the applicants and is not a basis for legalizing unauthorized construction in court.
The RF Supreme Court also took into account that the plaintiffs did not challenge the refusal to issue a construction permit, and also that violations of fire safety rules were recorded at the site.
Determination No. 306-ES20-118 dated December 17, 2020 in case No. A57-26100/2018
Tags: Supreme CourtGrK RF Fisk on recognition of rightsright of ownershipreconstructionunauthorized constructionshortrid
Unauthorized buildings // Judicial practice in cases of recognition of property rights
Cases of unauthorized buildings (in particular, demolition and recognition of ownership rights to them) quite often become the subject of consideration in the Supreme Court of the Russian Federation, since the issue of them is not sufficiently regulated by the current legislation.
Nevertheless, legislative attempts to resolve the problem of so-called “samostroy” were made regularly. Article 222 of the Civil Code of the Russian Federation underwent the most extensive regulation in 2015 by Federal Law N 258-FZ “On Amendments to Article 222 of Part One of the Civil Code of the Russian Federation” and the Federal Law “On the Entry into Force of Part One of the Civil Code of the Russian Federation.”
Then the Civil Code was supplemented with paragraph 4, according to which the conditions and procedure for the demolition of a building by a local government body were regulated. At the same time, the procedure for recognizing ownership of unauthorized buildings was changed, according to which recognition of ownership of such a building was carried out only if a number of conditions were met regarding the rights to the land plot, the compliance of the building with the layout of the territory and the absence of violation of the rights of other persons.
However, “de facto”, certain nuances that arise when considering disputes about demolition and recognition of property rights were summarized by the Supreme Court of the Russian Federation in the “Review of the Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2017)” (approved by the Presidium of the Supreme Court of the Russian Federation on April 26, 2017 ), “Review of judicial practice in cases related to unauthorized construction” (approved by the Presidium of the Supreme Court of the Russian Federation on March 19, 2014), “Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2007” (approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation from 01.08.2007), etc.
At the same time, over the two years of amendments to the Civil Code of the Russian Federation, judicial practice on recognizing the right of ownership of unauthorized buildings has revealed a number of problematic issues in resolving disputes that arise in the practical application of Article 222 of the Civil Code of the Russian Federation.
Judicial practice on unauthorized construction in 2017: catching the last carriage
Most of the cases considered by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation in 2021 concerned the recognition of buildings as unauthorized construction and the demolition of unauthorized buildings, and the requirement for recognition of ownership of unauthorized construction was considered as a counterclaim.
In 2021, the Judicial Collegium, in most cases of demolition of unauthorized buildings, pointed out that the courts ignored the factual circumstances of the case and their incorrect legal qualification, namely, the investigation of the question of the presence of any of those specified in Art. 222 of the Civil Code of the Russian Federation of real rights to land:
- when considering the case, it is necessary to establish whether the violations committed during the construction of an unauthorized structure (in particular, violation of municipal land use and development rules) are significant, whether their presence could serve as the basis for satisfying a claim for recognition of ownership of an unauthorized structure and, if so, then whether these violations required elimination and in what ways (determination in case No. 18-KG17-21 dated March 21, 2017, determination in case No. 19-KG17-11 dated May 16, 2017).
- the court, upon a new consideration, must establish the compliance of the type of unauthorized structure erected with the intended purpose of the land plot and the possibility of erecting blocked buildings on it (determined in case No. 19-KG17-11 of May 16, 2017).
Representative is the tendency of the Judicial Collegium to study the grounds for recognizing the ownership of unauthorized buildings, which can be traced in case No. 47-KG17-18 on the demolition of an unauthorized building, recognizing the right to a land plot as absent. The panel of judges pointed out the fact that, in accordance with Part 4 of Art. 67 and part 4 of Art. 198 of the Civil Code of the Russian Federation, when considering a case, it is necessary to establish circumstances that are essential for qualifying the legal relations of the parties, related to the location of the land plot, the right to which arose in the defendant on the basis of a contract for the sale and purchase of a residential building, the demolition of which the administration is asking for.
However, several cases considered by the judicial panel were related to the recognition of the right of ownership of unauthorized buildings as an independent claim.
In case No. 18-КГ17-64, the Judicial Collegium for Civil Cases pointed out that the courts came to the wrong conclusion, wrongfully ignoring the factual circumstances of the case and their correct legal qualifications. In addition to the study of legally significant circumstances, the consideration of which is required in cases of recognition of ownership of unauthorized buildings, provided for in Art. 222 of the Civil Code of the Russian Federation, the court wrongfully ignored the issue of the possibility of violating the rights and legally protected interests of other persons, namely the heirs of the co-owner of the erected building.
At the same time, the cornerstone of consideration of cases on recognition of the right of ownership of an unauthorized construction is also the investigation of the question of whether a person has any of those specified in Art. 222 of the Civil Code of the Russian Federation of real rights to land. The panel of judges also pointed this out in case No. 18-КГ17-64, emphasizing this as a basis for re-examination in the appropriate court.
A similar legal position was expressed by the panel of judges in case No. 66-KG16-13, in which the appellate court did not take into account that buildings located entirely or partially outside the red lines cannot be recognized as complying with the territory planning project and the rules of land use and development.
Thus, in 2021, the Judicial Collegium for Civil Cases focused its attention on investigating the existence of any proprietary rights to a land plot under unauthorized construction, even in cases of demolition of unauthorized buildings.
At the same time, the division of competence in the matter of demolition of unauthorized buildings between the court and the local government is provided for by bill No. 301924-7 on amendments to the Civil Code of the Russian Federation in terms of clarifying the provisions on unauthorized buildings. In particular, the bill assigned the following powers to the jurisdiction of local government bodies:
(a) for the demolition of an unauthorized building if such a building was created or erected on a land plot in respect of which there are no title and (or) title documents.
(b) and also if the building was created or erected on a land plot, the type of permitted use of which does not allow the construction of such an object on it, and this building is located within the boundaries of a zone with special conditions for the use of the territory.
At the same time, this bill leaves without attention the conflict of powers of the court and local governments associated with resolving the problem of demolishing an unauthorized building or bringing it into compliance with the parameters established by the rules of land use and development, documentation on the planning of the territory or mandatory requirements for the parameters of the building (paragraph 2, part 2, article 222 of the Civil Code of the Russian Federation as amended by the said bill).
Innovations in 2021:
a closed list of cases of demolition by decision of a local government body and simplification of legal proceedings in cases of “squatter construction”
Bill No. 301924-7 on amendments to the Civil Code of the Russian Federation (in terms of clarifying the provisions on unauthorized buildings) provides for a number of additions to the Civil Code, in particular in Art. 222 of the Civil Code of the Russian Federation, which changes the very concept of “unauthorized construction”.
At the same time, the bill proposes to supplement Art. 222 of the Civil Code of the Russian Federation, paragraphs 31 and 32 are largely of a procedural nature, despite the fact that judicial practice has indicated the need to clarify the conditions for recognizing the ownership of unauthorized buildings.
However, these changes assume that the competence in the matter of demolition or bringing an unauthorized building into compliance with established requirements is divided between the court and the local government body.
The legislator has made the possibility of preserving an unauthorized building dependent on the parameters established by land use and development rules, territory planning documentation or mandatory requirements for the parameters of a building provided for by law through its demolition or bringing it into compliance with established requirements.
By the bill on amendments to the Civil Code of the Russian Federation (in terms of clarifying the provisions on unauthorized buildings), the legislator significantly expands the legal regulation of unauthorized buildings, gives a detailed definition of this concept in Article 222 of the Civil Code of the Russian Federation, supplements it with a mechanism for compensation in connection with the loss of ownership rights to acquired property in the event of a decision to demolish an unauthorized building. It is noteworthy that this bill establishes the responsibility of the state registrar for entering false information and rights to such a property.
Legislative measures agreed upon by the Government are aimed, first of all, at simplifying legal proceedings in cases concerning so-called “squatters”. Secondly, the bill is intended to simplify the issue of a local government body making a decision on the demolition of “squatter buildings”; it outlines the range of cases when a local government body has the right to make an appropriate decision.
These changes, in general, should have a positive impact on the legal regulation of the construction industry, as well as on the consideration of cases of “self-construction” in court, streamlining judicial practice in this matter. The bill details the range of circumstances to be proven when considering cases on recognition of ownership of unauthorized buildings. In particular, this will apply to circumstances in which the owner did not know and could not or was not obliged to know about the effect of restrictions on the land plot owned by him.
At the same time, the legislator makes the possibility of preserving an unauthorized building dependent on the parameters established by land use and development rules, territory planning documentation or mandatory requirements for the parameters of a building provided for by law through its demolition or bringing it into compliance with established requirements. In the event of a judicial hearing of a case on bringing a building in accordance with the requirements of the law, the court may oblige the party to obtain permits for the construction. It also seems that if the building does not comply with any construction and technical requirements, the court will make a decision based on the results of the forensic construction examination.
Taking into account the above, the establishment of an exhaustive list of cases when the demolition of unauthorized buildings will be carried out by decision of local governments, through their legislative codification in civil legislation, will establish the limits of the powers of local governments in this matter.
Thus, in the bill on amendments to the Civil Code of the Russian Federation (in terms of clarifying the provisions on unauthorized buildings), the legislator divides the competence of the court and local governments in relation to unauthorized buildings, which will have a direct impact on the methods of protecting the right of ownership of unauthorized buildings. And its adoption will lead to a revision of the procedural methods of protecting the right of ownership of unauthorized buildings, in particular, and of judicial practice in general.
