G. Alekseev Author of the article
Unauthorized construction of various buildings and structures on a plot of land is a fairly common phenomenon. Some people fail to obtain permission to carry out construction work on time, others simply do not know that construction on privately owned territory requires some additional documents, etc. In a word, the reasons enough. The main thing is to start registering unauthorized construction on time in order to avoid possible problems with the executive authorities of government.
Unauthorized construction in the context of Russian legislation
The procedure and conditions for recognizing ownership of unauthorized construction projects are established by the Civil Code of the Russian Federation (Part I, Section No. 2). Current decisions of the plenums of the Supreme Court of the Russian Federation are used as additional grounds.
What is “samostroy”?
Unauthorized construction in Russian legislation means buildings, residential buildings or other immovable structures that:
- were built on a site not intended for certain objects;
- were built without the developer obtaining the necessary permits;
- were built with serious violations of state-established urban planning standards and technical norms.
To recognize a building as a self-construction, it is sufficient that it meets at least one of the above criteria.
Reconstruction and redevelopment
A change in the design characteristics of a property made without the consent of the relevant authorities and obtaining permission can also be equated to unauthorized construction. This usually happens in cases where reconstruction and/or redevelopment affect the safety and reliability of the building.
Consequences of unauthorized construction
Any unauthorized construction has its consequences. Thus, a person who has carried out the illegal construction of a particular structure does not have the right to fully dispose of it (donate, sell, inherit, lease, etc.). An unauthorized building is subject to demolition at the expense of the developer, unless otherwise established as a result of court proceedings. Plaintiffs in the case of demolition of unauthorized buildings can be both owners of land plots and representatives of the municipality or prosecutor's office.
Since such construction is also a civil offense, the developer may be held administratively liable. The maximum fine in a case of unauthorized construction is 1,000,000 rubles.
Risks of carrying out construction work without a building permit
Today, the issue of conducting construction work on capital construction projects (CCS) without the appropriate permit is relevant. Let's consider this situation from the perspective of the General Contractor's risks.
To begin with, let’s define what a construction permit is, what threatens the entity that violates this requirement and who is the subject of this violation.
According to Part 1 of Article 51 of the Town Planning Code of the Russian Federation, a building permit is a document confirming compliance of the project documentation with the requirements of the town planning plan of the land plot or the territory planning project and the land surveying project (in the case of construction, reconstruction of linear objects) and giving the developer the right to carry out construction, reconstruction of capital construction projects, except for cases provided for by this Code.
In accordance with part 1 of Art. 9.5. of the Code of Administrative Offenses of the Russian Federation, construction, reconstruction of capital construction projects without a construction permit, if the construction or reconstruction of capital construction projects requires obtaining construction permits, entails the imposition of an administrative fine on legal entities - from five hundred thousand to one million rubles or administrative suspension of their activities for up to ninety days.
The fine in itself is quite significant, but worse than that is the suspension of activities, which can lead to more serious consequences for the General Contractor and the implementation of the project as a whole.
The Town Planning Code presupposes that the developer must obtain a construction permit, so a fair question arises: will the General Contractor be held liable if the developer has not received a construction permit?
Part 3 of Article 52 of the Town Planning Code of the Russian Federation stipulates that persons carrying out construction, reconstruction, and major repairs of capital construction projects may be a developer or an individual or legal entity engaged by the developer or customer on the basis of an agreement that meets the requirements provided for in Part 2 of this article.
Part 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 11 “On some issues of application of the Special Part of the Code of the Russian Federation on Administrative Offenses” directly establishes that the subjects of liability for an administrative offense provided for in Part 1 of Article 9.5 of the Code of Administrative Offenses of the Russian Federation can be a developer (the customer under a construction contract), since by virtue of Article 51 of the Town Planning Code of the Russian Federation he is obligated to obtain a construction permit, as well as other persons carrying out the relevant work, for example, a contractor or subcontractor, since they are obliged to ensure that that the developer, when involving them in construction work and reconstruction of capital construction projects, has the appropriate construction permit.
Thus, the General Contractor carrying out the construction of an OKS without a construction permit is the subject of an administrative offense under Part 1 of Art. 9.5. Code of Administrative Offenses of the Russian Federation.
If the General Contractor decides to carry out construction work without a permit, you need to understand that the very fact of construction work is unlikely to be hidden, since the developer or technical customer will have to provide a significant amount of documents to the state construction supervision authorities before the start of construction no later than seven working days, including a copy of the construction permit (Part 5 of Article 52 of the Town Planning Code of the Russian Federation). In this regard, state supervisory authorities will not be able to ignore that the general contractor has been carrying out construction all this time without a construction permit. Then, most likely, the question will arise about bringing the General Contractor to administrative liability on the grounds of Part 1 of Art. 9.5 of the Code of Administrative Offenses of the Russian Federation, if for some reason this does not happen earlier.
In this case, you should not even try to prove that the General Contractor is not at fault when carrying out work without a construction permit, since this is not possible in view of the fact that the General Contractor is supposed to be obliged to ensure that the developer has a construction permit for the corresponding land plot before starting work.
However, if the General Contractor has taken the risk and performs work without permission, you need to understand that the procedural aspect will play a significant role in the procedure for engaging.
In practice, the provisions on the procedural procedure for bringing persons to administrative responsibility are used when challenging decisions on bringing to administrative responsibility, and therefore it is possible to avoid bringing to administrative responsibility only if the procedural procedure for bringing it is violated, for which it is recommended to involve lawyers in this process as soon as possible earlier.
Of course, everyone decides for themselves whether to carry out work without a building permit or not, based on personal considerations, but our recommendation in this case is clear: carrying out work without a permit is unacceptable.
Therefore, before starting work and when concluding general contracting agreements, it is worth seeking advice from lawyers with experience in the construction industry to minimize risks and prevent negative consequences.
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Legalization of unauthorized construction
What to do if, for one reason or another, you have carried out unauthorized construction of a house? How to legalize your ownership of it?
There is only one way out - to go to court. Today, this is perhaps the only legal way to confirm your rights to an unauthorized construction project.
Who can register property rights?
Only the person who is the owner of the land plot on which the building is erected can be recognized as the owner of a self-built building. If the territory was rented or transferred for temporary use free of charge, the right to unauthorized construction belongs not to the developer, but to the direct owner of the land.
The process of legalizing self-construction and obtaining a certificate
Stage I: preparation of documents
Before going to court, you must collect a standard package of papers. It includes:
- title documents (donation agreement, purchase and sale agreement, etc.);
- a technical report from a licensed organization confirming the construction’s compliance with all current building codes;
- act on establishing the boundaries of the site;
- BTI plan;
- certificates from the sanitary-epidemiological station and fire inspection (not mandatory, but required from time to time by some courts), etc.
Stage II: going to court
Documents must be photocopied and attached to the statement of claim for recognition of ownership of unauthorized buildings. The plaintiff must indicate the owner of the site, and the defendants must indicate the district administration. Before submitting an application, a state fee is paid, the amount of which depends on the value of the property.
Documents are submitted to the judicial authorities either personally by the plaintiff or his legal representative, or by Russian Post.
Stage III: Trial and Registration
After consideration of your appeal, you will be sent a summons. Based on the results of the preliminary meeting with the judge, a court date is set.
If the only obstacle to registration is the owner’s lack of building permits, and the building itself fully complies with all established standards, the court will confirm the plaintiff’s ownership of the unauthorized construction. After receiving the court decision, you must contact the Rosreestr authorities and obtain the appropriate certificate.
If the land owner’s claim is denied for one reason or another, he has the right to appeal the court’s decision within the period prescribed by law. This can be done either independently or through a representative.
Illegal building permit
The company (tenant) and the authorized municipal body (lessor) entered into a lease agreement for a plot of land from the lands of settlements with the type of permitted use (intended purpose) “for organizing recreation for the population.”
Then, by order of the administration of the municipality (hereinafter referred to as the administration), the permitted type of use of the land plot was changed to the type “for the construction of facilities for organizing recreation for the population.”
After this, by an additional agreement to the lease agreement, the parties made changes regarding the permitted type of use of the land plot “for the construction of facilities for organizing recreation for the population.”
The company was issued a building permit on this land plot.
Subsequently, apparently, after a change in the head of the administration, the building permit was canceled due to violations identified during the provision of the land plot, as well as during the issuance of the building permit.
Based on the results of the legal proceedings, the Supreme Court of the Russian Federation indicated that in fact the actions of the company and the municipal body were aimed at circumventing the procedure established by the Urban Planning Code of the Russian Federation for providing land plots for construction.
...the courts did not take into account that the Land Code of the Russian Federation established different procedures and procedures for the lease of land plots from lands in state or municipal ownership for construction purposes and for purposes not related to construction.
The procedure for providing land plots in state or municipal ownership for construction is regulated by the provisions of Art. 30, , Land Code of the Russian Federation, and its compliance is necessary in order to ensure efficiency, fairness, and publicity of the provision of such land plots.
Based on the above, the Supreme Court of the Russian Federation came to the following conclusion:
Review of the RF Armed Forces No. 4 (2018)
Clause 19. An additional agreement to a lease agreement that changes the type of permitted use of a land plot not related to construction to one used for construction purposes cannot be considered a document of title when obtaining a construction permit if this agreement was concluded bypassing the procedures provided for by land legislation for provision of land plots for the purposes of real estate construction.
