Today, not only specialized organizations, but also ordinary citizens are engaged in individual housing construction. Having received a plot of land in possession, the satisfied owners begin to build on it any buildings just to have enough imagination and money. But few people think about the legality of such construction. Difficulties "drawn" later, if you suddenly need to sell, bequeath or donate property.
And this is not isolated cases. After all, the question of how to legitimize the unauthorized construction, did not arise yesterday. In any city, large or not, there are quarters of unauthorized construction (popular names - "Shanghai", "Nakhalovka", etc.). They consist of houses where people live for a long time without issuing the necessary documents of title.
The “dacha amnesty”, which, logically, was designed to make life easier for the owners of houses and land plots did not meet the expectations. The need for a huge mass of documents is able to extinguish the enthusiasm of anyone.
In this case, be the owner of "samostroya" can any of us. For example, having received a house as a legacy from relatives or “having bought” a plot together with a house in “former” times, when a technical passport and notarial clearance were enough. As well as erecting housing at your own risk and without any “paperwork”.
There are unique cases in which neither the land nor the buildings are in any way decorated, and people live in houses for decades.
What are these buildings?
The concept of “unauthorized construction” of the Civil Code of the Russian Federation is interpreted as a dwelling house, as well as any other building (structure) or immovable property built on a land plot not designated for such purposes. Or built without obtaining all the necessary permissions. Or with a serious (substantial) violation of town planning norms. Citizens to whom the land plot is not allocated for gardening or dacha farming are required to obtain a building permit.
If you are the person who started and implemented such a building, then you should know that you do not have any title to it. You can not dispose of it - to sell, donate or lease.
By law, the unauthorized construction must be demolished, and at the expense of who carried it out. If it creates a threat to the safety and health of other people, the court will require it to be demolished without taking into account the limitation period of the claim.
Where and under what conditions get this permission?
This document is issued by local authorities, the federal authority of the subject of the Russian Federation. Permission is given free of charge and indefinitely. The initial permit for individual housing development is given for ten years, then it is renewed at the request of the owner, filed in advance (at least 60 days before the expiration of the initial term). But the extension may refuse, if before the end of the term construction has not begun.
In addition, you will need permission to enter the house. It fixes (certifies) the completion of construction and compliance of the finished object of project documentation. It looks like an act of the commission on reception. To get it, you need to contact the same place where the first permit was issued.
Who can claim the demolition of illegal construction?
In the case when the recognition of an unauthorized construction has been fixed, the prosecutor shall file a lawsuit for its liquidation in the public interest. The defendant in this case will be the person who carried out this construction. That is, the customer, on the instructions of which the object is built. If the building is transferred to third parties, they will also be brought to justice.
However, there is also an exception - the right of ownership may be recognized by the court for a person who owns or owns a plot of land in which he has built a “samostroy”. But under no circumstances will such a right be recognized if the existence of the building violates the legitimate interests of others or endangers the health or life of people.
The customer, in case of recognition of his rights, shall reimburse the person who carried out the construction, all the costs of construction. Their size is set by the court.
There is good news
05/21/2010 Rossiyskaya Gazeta published a ruling of the Arbitration Court of the Russian Federation No. 22 dated 04.29.2010 related to the resolution of legal disputes on this topic. This document suggests how to legitimize unauthorized construction on completely legitimate grounds. It is clear from it that not any object among those erected without permission is subject to demolition.
Thus, paragraph 26 of this document states that the lack of an initial building permit is not a ground for refusal if the developer wants to legalize the right of ownership. But at the same time, the court is obliged to establish whether the developer has taken measures for its legalization, i.e., tried to obtain the necessary construction permit or commissioning act. And also, whether he was lawfully refused to extradite them.
From this it is clear that it is possible to legalize unauthorized construction by a court decision.
What do you need?
At a minimum, four conditions must be met:
1. During the construction process, town planning and other rules and regulations were not significantly violated.
2. The structure does not pose a threat to human life and health.
3. The rights and interests of unauthorized persons were not violated.
Few people know that (according to clause 17 of Article 51 of the Urban Planning Code) in some cases legalization of unauthorized construction will not be needed. You will not need to issue a building permit if:
- You build a garage on a plot of land provided to you for non-commercial purposes, or on your own garden (summer cottage) plot.
- Reconstruct or build something that is not an object of capital construction, for example, a kiosk.
- Build a structure (construction) auxiliary use.
- Change the capital construction object (its part) without violating their reliability and safety and exceeding the parameters of the permitted construction.
- In some other cases when under the law such permission is not required.
Is it possible to legitimize the unauthorized construction in the process of construction? Yes you can. All of these provisions apply to construction in progress, which as real estate can also be recognized as an unauthorized construction.
How to legalize the unauthorized construction?
This procedure is not easy, but nevertheless, it is very real. You just need to follow a certain algorithm. So, we begin the legalization of unauthorized construction.
First of all, decide whether you belong to the category of persons who are entitled to demand official recognition of the right of this property. That is, do you own a plot “under construction” on the basis of the right of ownership, life tenure (inherited) or permanent (perpetual) use. If you rent this plot, for example, then the recognition of the right to unauthorized construction is an impossible dream. It is also unreal if your building violates the interests of others or threatens the life / health of people.
The next step is to make a claim demanding recognition of the right of your property and do not forget about the payment of state duty.
What does the claim contain?
It must indicate the type of right to the land plot, the type of construction, and who implemented it - you or another person. The reason for “willfulness” must be justified. For example, no permissions needed. It is important to note that during construction no town planning and other norms were violated and no threat to life (or health) of citizens was recorded, and the rights of third parties were not violated.
If you were engaged in construction yourself, indicate the measures taken for legalization. For example, an application for a construction permit, and later - an act authorizing the commissioning of the object. If a refusal was received - do not forget to mention about it. The defendant in this lawsuit will be a local government body. For example, the administration of the municipality.
How much to pay?
To legitimize the unauthorized construction through the court, you will need to make a state duty.
Its size when filing such a claim depends on the price of the object. With the “value” of the claim up to 20 000 rubles. it is 4 percent of the amount (at least 400 rubles), at a cost of 20,001 rubles. up to 100,000 rubles. - 800 rubles. (and plus an additional 3 percent of the amount of more than 20,000 rubles.). Further, the size of the duty grows proportionally, but ultimately cannot exceed the limit of 60,000 rubles.
The next stage is the preparation and filing with the court at the place of registration of the land plot a package of necessary documents.
What's in it?
In addition to the claim itself - documents on the ownership (or other right) of your land. Then those documents that confirm the fact of the presence at the site of construction. This is an inspection report and BTI documents.
Evidence of the absence during the construction of the object of significant violations of town planning and other norms, and that the building does not threaten anyone and does not violate anyone's rights. These may be conclusions and acts of inspection of the management of architecture and urban planning, fire and sanitary supervision.
Documents confirming the owner’s application for a building permit, etc., with the results of the consideration of requests.
Receipt of payment of state duty, personal passport and power of attorney in the case of representation in court on your behalf.
Where to carry the documents?
If the cost of unauthorized construction does not exceed the amount of 50 000 rubles. This action is brought against the magistrate at her place of location. In other cases, an appeal to the district court will be required.
After the end of the consideration of the case by the court, you will receive a court decision - either to recognize the right of your ownership of the building, or to refuse it.
In the event that the legalization of unauthorized construction is completed successfully, it will be necessary to register this ownership right.
The next step is the payment of the state fee in the amount of 1000 rubles. It is necessary to register the ownership of the unauthorized construction. Having paid it, you can carry to Rosreestr (its territorial body) the package of documents you have collected, necessary for registration.
This is an application for state registration, the applicant's passport (or other identity document), and in the case of actions through a representative - a power of attorney in his name confirming the authority. Be sure to - received a court decision.
Currently, the document on the payment of the fee does not necessarily provide simultaneously with the statement. But it’s still better to do it right away, since in the absence of information about payment within 18 days (calendar) the package of documents will be returned to the applicant.
Documents are submitted both personally and by mail. In addition, you can use the services of a multifunctional center.
Ending the epic
Recognition of the right to unauthorized construction took place. It remains to obtain a certificate of state registration of law or an extract from the USRR. Behind him after the specified time you will need to appear in the authorized body.
As you can see, registration of legal rights for own construction requires a lot of time, patience, communication with government officials, as well as basic legal literacy.
If you can hardly imagine how to legitimize the unauthorized construction on your own, then to save time and nerves it is recommended to contact agencies or law firms specializing in solving such issues.
The facilitator will need to bring all the necessary documents, notary to issue him a letter of attorney to conduct your Affairs and, of course, to pay for his services.
What else should I know?
The construction of a residential house in compliance with all requirements and regulations (building, sanitary, environmental, fire and others) requires the collection of a vast number of documents. This is the routine stage, at least because you will need to circumvent a lot of instances for approval.
The building permit must confirm compliance of project documentation with all the requirements of the urban plan of the site.
You should know that the project documentation is not required in the construction and reconstruction or major repairs of houses having no more than three floors (one family). But the developer has the right to prepare such documentation on their own initiative.