Limitation periods applicable to claims for demolition of unauthorized structures

I built a building illegally - demolish it?

Arbitration courts of three instances rejected the claim for the demolition of the unauthorized building and came to the conclusion that there was no provision provided for in Art. 222 Civil Code grounds. In this case, the courts proceeded from the following:

– permits for the construction and commissioning of the facility are not recognized as illegal, therefore the construction of the facility is legal;

– the inconsistent actions of the plaintiff, who discovered the construction of a hypermarket in a security zone in 2014, connected it to the networks in 2015 and filed a lawsuit in May 2021 with a claim for the demolition of the hypermarket, contradict the essence of normal economic relations, cannot be considered in good faith and due to Art. 10 of the Civil Code are not subject to judicial protection;

– the electric grid company has free access to power lines to carry out repair work;

– the demand for the demolition of a shopping center built in the power transmission line protection zone is disproportionate to the violated rights of the electric grid company.

The Supreme Court did not agree with such conclusions, reacted negatively to the courts’ conclusions about the dishonest behavior of the electric grid company and, on the contrary, indicated that it was the electric grid company that took all reasonable measures to resolve the controversial situation: it offered the defendant to reconstruct the power lines into an underground cable line. The corporation did not respond to this proposal.

According to the Supreme Court, the courts unreasonably refused to order an examination for the plaintiff. The latter suggested that experts resolve the issue of whether the location of a hypermarket in the security zone of a power line poses a threat to the safety of life and health of an indefinite number of people.

In my opinion, it will be very difficult to preserve the building unchanged due to the fact that, even if the building does not pose a threat to the life and health of citizens, it will still not comply with urban planning norms and rules.

What should the developer do in this case? I believe that we will negotiate with the electric grid company and move the overhead cable line underground (in accordance with the technical conditions of such a conversion).

This case is significant in that it obliges developers to be attentive to the rules and regulations governing the possibility of constructing or reconstructing buildings in areas with special conditions for the use of the territory. Deviation from the protected zone is unacceptable, even when the authorities meet the developers halfway and issue permits for construction. The law is the same for everyone.

It is surprising how the authorized bodies, despite the obvious violation of urban planning and building codes and regulations, issue the necessary construction permits and approvals. But this is also the risk of the developer himself, who, having received such permission, hopes that the owner of the site, the security territory of which the developer has encroached on, will allow such a neighborhood.

In any case, the construction of buildings (structures) in protected zones must be eliminated by demolishing the building or moving a linear object to a safe distance at the expense of the person who allowed construction in the zone with a special use of the land.

Another question is what to do in a situation where the owner of the building (structure) did not and could not know about the existence of a security zone.

It's good to have power lines on the surface of the ground because it's hard to miss a power pole or utility pole. What to do when underground networks are laid near your land plot and no signs about the security zone are installed, and the owners of gas pipelines, oil pipelines, and heating networks demand the demolition of your house.

Until recently, the courts decided the issue of demolition of unauthorized buildings in this way: if the constructed building is in a security zone, demolish it.

But the situation changed with the adoption of the new version of Art. 222 of the Civil Code (the edition is valid from August 3, 2021). According to the norm, a building erected in violation of established restrictions on the use of a land plot is not considered an unauthorized construction if the owner of the object did not know and could not know about the effect of these restrictions in relation to the land plot owned by him.

Not long ago, the Supreme Court considered a dispute between an oil company and an individual. The plaintiff asked to demolish a private house located in the security zone of the oil product pipeline (Determination of the Armed Forces of the Russian Federation dated June 23, 2020 No. 4-KG20-15).

What legally significant circumstances did the Supreme Court establish when overturning judicial acts of lower authorities?

Firstly, the Supreme Court came to the conclusion that in order to resolve a dispute about the demolition of a building or structure, it is necessary to find out whether the owner of the building knew or could not have known about the existence of restrictions on the use of his land plot when he erected a residential building on it.

Secondly, the plaintiff’s side did not present a single cartographic document, poster or sign on the ground publicly indicating the existence of any restrictions related to the presence of the security zone.

Thirdly, the Unified State Register of Real Estate lacked information about the boundaries of the security zone that would have prevented the construction of a building on the land plot.

Fourthly, at the time of construction of the residential building, there was no government-approved regulation on a zone with special conditions.

Such conclusions of the Supreme Court contribute to the suppression of abuse of rights by the owners of specially protected objects. The court established the presumption of protection for a bona fide developer of such a facility.

For example, if a building is discovered in the security zone of an oil pipeline, the owner of the linear facility has the legal right to demand the demolition of the building. However, such a right is given to the owner of the network only if he proves the fact of publicly informing interested parties about the location of the gas pipeline and the establishment of the boundaries of the security zone.

Currently, it is often not possible to reliably know what legal restrictions exist in relation to a particular plot of land. Unfortunately, not all authorities promptly and fully fulfill their responsibilities in terms of interdepartmental information interaction to enter into the Unified State Register the necessary and up-to-date information about the zone with special conditions for the use of the territory.

Moreover, there are situations where such information is not available at all in the USRN information, the provisions of the PZZ or the GPZU, therefore, obtaining information directly from the authorized bodies operating networks in the immediate vicinity of your land plot can help reduce legal risks.

• Pravo.ru

Features of demolition of residential buildings

The owner can independently decide to demolish his house in several situations:

1. If you plan to build new housing.
2. There are no plans to build another house, but the old one is not needed either.

The reasons may be different, but the main thing is that everyone is free to dispose of their real estate as they please.

Private houses can also be demolished by decision of the municipal administration if they are recognized as unsafe or seized for municipal needs. But in this case, the owners are paid monetary compensation or provided with other housing.

Important! If the owner himself decided to demolish the house, he is not entitled to other housing or compensation.

Do neighbors need consent to demolish a private house?

According to the law, the consent of neighbors for the demolition of a private house is not required. But there are exceptions:

1. A house for two owners, each given a share in kind.
2. The property was acquired during marriage and was not divided between the spouses. The consent of the applicant's spouse will be required, even if he is not listed as the owner.
3. The house belongs to a child or disabled person. First you need to find another place to live and get permission from the guardianship authority, because... When demolished, ownership rights are terminated.

Legal advice: it is better to take care in advance about the procedure for carrying out the planned work. It is important that garbage is removed after work, and that quiet hours are not disturbed during work, so that there are no problems with neighbors.

Buildings that can be legalized

In the case where a permanent building was erected on land with a permitted category (individual housing construction), with a construction permit received from the municipality, but development standards were violated, it is possible to legalize the construction.

For legalization, it will be necessary to take into account the comments of the responsible authorities, make changes and document them. After approval and completion of the act of putting the building into operation, ownership of the building must be obtained through the court.

At the time of the creation of the facility, building codes and regulations differed from the current ones, but a construction permit was not obtained and violations were identified. To legalize it, it is necessary to submit documents through the court recording the date of construction of the building and eliminate violations. If the court decision on the building is positive, it will be allowed to register ownership; if the decision is negative, compensation will be issued.

A building was erected on a site with a permitted land use category without obtaining a building permit. In this situation, it is necessary to assemble a commission, which will draw up an act on the compliance of the building parameters with current urban planning standards, and officially register the building.

Register the construction officially - avoid moral and material costs Source zen.yandex.com

Buildings subject to mandatory demolition

If, during development on private land, the building is recognized as threatening the life and health of others, such a building is subject to administrative demolition. If the owner refuses to comply with the requirements to demolish the building within the established period, the land plot may be forcibly taken away.

Buildings illegally erected on land plots located in zones with special conditions of use will be subject to clear demolition.

Such zones include lands on which cultural heritage sites protected by law are located, railway tracks, pipelines, power grid lines, water protection, forest park strips, fisheries protection districts and similar territories.

Demolition of illegally erected buildings on lands with special conditions of purpose Source ugra-tv.ru

If the building was erected before the moment when the land in this district began to enter a zone with special conditions and all permits for the house are available, then they do not have the right to demolish such a structure. If the homeowner did not know about the status of the land plot or acquired the land with an existing building (residential building) with documented ownership, he is required to compensate* for expenses.

*Compensation will be paid by the state or an unscrupulous developer (in case of purchasing an apartment in multi-apartment buildings or a country house).

How to obtain permission to demolish a building under the Town Planning Code?

The procedure for demolishing a house is regulated by Ch. 6.4 Town Planning Code.

What should be done:

1. Request conditions for disconnecting housing from communications, disconnect them.
2. Provide notice of planned demolition work.
3. Demolish housing.
4. Dispose of garbage.
5. Send notification of demolition completion.
6. Terminate ownership rights in Rosreestr.

Let's look at each step in more detail.

Step 1: obtaining conditions for disconnecting the house from communications

The procedure for disconnecting houses from utility networks is regulated by Decree of the Government of the Russian Federation of July 3, 2019 No. 850 and regional legislative acts. It specifies the rules for disconnecting water, electricity, gas, heating and sewerage networks. If the owner wants to demolish the old house and build a new one, these rules do not apply.

To obtain shutdown conditions, you need to submit an application to the operating organization along with other documents:

1. Extract from the Unified State Register of Real Estate.
2. The document on the basis of which the right of ownership arose: contract of sale, gift, exchange, rent, certificate of inheritance.
3. Passport.

Conditions are issued no later than 10 working days from the date of submission of the application. Disconnection is made free of charge within 30 working days from the date of issue of the conditions.

Note: there may be several operating organizations. For example, electricity is provided by the electric grid company, gas supply by Gazpromezhregiongaz LLC. And each has different shutdown conditions that need to be agreed upon and fulfilled.

Step 2: disconnecting the house from utility networks

The operating organization will notify the owner about this at least three days before the start of work. It is not necessary for the home owner to be present during the dismantling of utility networks; the main thing is to provide workers with access to them.

Based on the results of the shutdown, a corresponding act is drawn up and sent to the owner within five days.

Step 3: Submit Notification of Planned Demolition

The notification is drawn up in the name of the head of the administration of the municipality or settlement. Its form is approved by the Order of the Ministry of Construction and Housing and Communal Services, and it is sent no later than 7 days before the start of demolition work.

Contents and sample notice

What information is indicated in the notification:

1. Date of preparation.
2. The name of the local government body to which it is submitted.
3. Information about the applicant: Full name, place of residence, TIN.
4. Information about the land plot: cadastral number, address, information about title documents.
5. Information about the house being demolished: cadastral number, address, title documents.
6. Contact email or postal address.
7. Confirmation of consent to the processing of personal data.
8. List of attached documents.
9. Applicant's signature.

Important! The notification can be submitted personally to the administration, through the MFC or State Services.

Documentation

When submitting a notification, you will only need your passport. Home inspection results are not required.

Step 4: demolition of a residential building and disposal of construction waste

After submitting the notification, the administration, within 7 days, places the information in the information system for supporting urban planning activities and notifies the construction supervision authority. Any organization or individual entrepreneur has the right to carry out dismantling; SRO approval is not required for such work.

Upon completion of work, construction debris must be removed. This is done by the owner or organization that carried out the demolition.

Step 5: Send Demolition Complete Notification

Notification of completion of demolition is also filled out according to the form and sent to the administration no later than 7 days after completion of the work.

Contents and sample notice

What is stated in the notice:

1. Name and address of the authority to which it is submitted.
2. Full name, passport details, address of the applicant.
3. Information about the land plot.
4. Work completion date.

Sample notification

Demolition of an unauthorized building

The most common cases are:

The owner of the site believes that someone else's building or part thereof was erected within his property

The owner of the site believes that the structure on the site adjacent to it does not meet sanitary, fire or other safety requirements. It is possible that the structure was erected without a construction permit or such a permit was issued illegally.

The owner of the plot believes that the construction on the neighboring plot does not allow him to fully use his property.

In all these cases, the court may order an examination. Or you can order it yourself from a specialized organization before filing a claim. This will make the prospects for litigation clearer. An expert's opinion will help you argue your position in pre-trial debates with the opposing party - it is unlikely, but it is possible to resolve the dispute voluntarily. The cost of the expert examination ordered by the court may be compensated by the losing party of the case by decision of the court.

In all cases, forensic evidence will be decisive. If she proves the above-described legal positions, judicial practice in this type of case will be positive.