Individual housing construction today is not only specialized organizations, but also ordinary citizens. Having taken possession of a piece of land, satisfied owners begin to build on it any buildings just enough imagination and money. But few people think about the legality of such construction. Difficulties "will be drawn" later, if you suddenly need to sell, bequeath or give real estate.
And this is by no means isolated cases. After all, the question of how to legalize an unauthorized structure did not arise yesterday. In any city, large or not, there are blocks of unauthorized development (popular names - "Shanghai", "nahalovka", etc.). They consist of houses where people live for a long time without the necessary legal documents.
"Dacha amnesty", designed, logically, to facilitate the lives of the owners of houses and plots, did not meet the expectations. The need to design a huge mass of documents can extinguish the enthusiasm of anyone.
Anyone can become the master of "self-construction". For example, having received a house as an inheritance from relatives, or by "buying" a plot together with the house in "former" times, when there was enough technical passport and notarial registration. And also erecting houses at your own risk and without any "papers".
There are unique cases when neither the land nor the buildings are not decorated, and people live in houses for decades.
What are these buildings?
The concept of "unauthorized construction" of the Civil Code of the RF treats as an apartment house, as well as any other structure (construction) or real estate erected on a land plot not allocated for such purposes. Or built without obtaining all the necessary permissions. Or with a serious (significant) violation of town-planning standards. Citizens, to whom the site is allocated not for gardening or country houses, must obtain a building permit.
If you are the person who started and carried out such construction, then you should know that you do not have any property right to it. You can not dispose of it - sell, donate or lease it.
By law, unauthorized construction is necessarily subject to demolition, and at the expense of the one who carried it out. If it creates a threat to the safety and health of other people, the court will demand that it be demolished without taking into account the limitation period for the claim.
Where and on what terms do you get this permission?
This document is issued by local authorities, the federal authority of the subject of the Russian Federation. Permission is granted free of charge and indefinitely. The initial permit for individual housing development is given for ten years, then its validity is extended at the request of the owner, submitted in advance (not less than 60 days before the expiry of the initial period). But the extension may be refused, if the construction is not started before the end of the term.
In addition, you will need permission to put the house into operation. It fixes (certifies) the completion of construction and the compliance of the finished object of design documentation. It looks like an act of the reception committee. To get it, you need to apply to the same place where the first permit was issued.
Who can demand the demolition of illegal construction?
In the event that the recognition of the building is unauthorized is recorded, the prosecutor shall file a claim for its liquidation in the public interest. The respondent 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 handed over to third parties, they will also be brought to justice.
However, there is also an exception - the right of ownership can be recognized by a court as a person who owns or owns a part of the land where he built himself "samostroy". But under no circumstances will such a right be recognized if the existence of the building violates the legitimate interests of others or threatens the health or life of people.
The customer, in the event of the recognition of his rights, reimburses the person who carried out the construction, all the costs of erection. Their size is determined by the court.
There is good news
05/21/2010 Rossiyskaya Gazeta published the resolution of the Arbitration Court of the Russian Federation No. 22 dated April 29, 2010, related to the resolution of litigations on this topic. This document suggests how to legalize an unauthorized structure on a legitimate basis. From it it is clear that not every object from the number erected without permission is subject to demolition.
Thus, paragraph 26 of this document states that the lack of an initial construction permit is not a ground for refusal, if the developer wants to legalize the property right. But at the same time the court is obliged to establish whether the developer took measures to legalize it, ie, whether he tried to obtain the necessary permission for construction or commissioning act. And also whether he was rightly refused to extradite them.
From this it is clear that it is possible to legitimize unauthorized construction by judicial decision.
What do you need?
At a minimum, four conditions must be fulfilled:
1. During the construction process, city planning and other rules and regulations were not significantly violated.
2. The structure does not endanger the life and health of people.
3. The rights and interests of outsiders have not been violated.
A little hint
Few know that (in accordance with Clause 17 of Article 51 of the Town Planning Code), in some cases, the legalization of unauthorized construction will not be necessary. You will not need to issue a building permit if:
- You build a garage on a piece of land provided to you for non-commercial purposes, or on your own garden (cottage) plot.
- Reconstruct or build something that is not an object of capital construction, for example, a kiosk.
- Build the structure (construction) of auxiliary use.
- Change the object of capital construction (its part) without violating their reliability and safety and exceeding the parameters of permitted construction.
- In some other cases, when such permission is not required by law.
Is it possible to legalize an unauthorized construction in the process of erection? Yes, you can. All the above provisions apply to the objects of unfinished construction, which, as real estate, can also be recognized as unauthorized construction.
How to legalize an unauthorized construction?
This procedure is not easy, but nevertheless, it is quite real. It is only necessary to follow a certain algorithm. So, we begin the legalization of unauthorized construction.
First of all, decide if you belong to the category of persons who have the right to demand the official recognition of the right of this property. That is, do you own the site "under construction" on the right of ownership, lifelong possession (inherited) or permanent (perpetual) use. If you rent this site, for example, then the recognition of the right to unauthorized construction is an impossible dream. It is also unrealistic if your structure violates other people's interests or threatens the life / health of people.
The next step is to make a statement of claim demanding recognition of the right of your property and do not forget to pay the state fee.
What does the statement of claim contain?
It necessarily indicates the type of right to land, type of construction, and who carried it out - you or another person. The reason for "unauthorized" should be justified. For example, there are no necessary permits. It is important to note that during construction, urban and other norms were not violated, and threats to life (or health) of citizens were not recorded, nor were the rights of third parties violated.
If the construction was carried out by you, indicate the measures taken for legalization. For example, a request for a building permit, later - an act that allows the commissioning of the facility. If a refusal was received, do not forget to mention this. The respondent for such an action will be the local self-government body. For example, the administration of the municipal formation.
How much to pay?
To legalize the unauthorized construction through the court, it will be necessary to pay a state fee.
The size of it when filing a similar claim depends on the price of the object. At the "cost" of the claim up to 20 000 rubles. this is 4 percent of the amount (not less than 400 rubles.), with 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 amount of the fee proportionately increases, but in the end it can not exceed the limit of 60,000 rubles.
The next stage is the preparation and submission of a package of necessary documents to the court at the place of registration of the land plot.
What's in it?
In addition to the statement of claim itself - documents on ownership (or other right) on your land. Then those documents that will confirm the fact of the presence on the site of construction. This is an inspection report and BTI documents.
Evidence of the absence of significant violations of town planning and other norms in the construction of the facility, and the fact that the building does not threaten anyone and does not violate anyone's rights. It can be the conclusions and acts of the survey of the management of architecture and town planning, fire and sanitary supervision.
Documents confirming the owner's application for a building permit, etc., with the results of the examination of requests.
Receipt for payment of state duty, personal passport and power of attorney in case of representation in court on your behalf.
Where should I carry the documents?
If the cost of unauthorized construction does not exceed the amount of 50,000 rubles. then the action is brought to the justice of the peace at the place of its location. In other cases, you will need to apply to the district court.
After the end of the court case, you will receive a court decision - either on recognizing the right of your property to build, or on refusing it.
In the event that the legalization of the unauthorized building is completed successfully, this property right will be required to be registered.
The next step is payment of the state fee of 1000 rubles. It is needed to register the ownership of the unauthorized construction. Having paid for it, you can bring to the Rosreestr (its territorial body) the package of documents you need to register.
This application for state registration, the passport of the applicant (or other identity document), and in the case of actions through a representative - a power of attorney in his name, confirming the credentials. Obligatory - the court decision received.
At present, it is not necessary to provide the document for payment of the fee at the same time as the application. But it is better to do it immediately, since in the absence of information on the payment within 18 days (calendar), the package of documents will be returned to the applicant.
Documents are submitted in person or by mail. In addition, you can use the services of a multifunctional center.
Completion of 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 Unified State Register. After this time, you will need to report to the authorized body.
As you can see, registration of legal rights to own construction requires a lot of time, patience, communication with representatives of the authorities, as well as elementary legal literacy.
If you have a hard time imagining how to legalize an 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.