Pavilion without a passport
Our story began in the courts of the Krasnodar region, and ended in the capital, in the Supreme Court. And given that we have a lot of unauthorized buildings of various sizes and purposes in our country, such an explanation from highly qualified judges can be very useful to a considerable number of citizens.
The story began a long time ago - in the late 90s. Then the local administration leased a plot of land for use as a shopping pavilion. But there was an important caveat - the pavilion was not supposed to be a permanent structure. Over the years, the tenants changed, until the next tenant decided that he wanted to have a permanent building. He built a reinforced concrete foundation, erected brick walls and went to court to recognize ownership of the property. The regional court did not see anything illegal in this and satisfied the demand. But the Supreme Court did not agree with this decision and stated that the will of the owner must be taken into account.
And now the details of the dispute. In 1996, the administration leased the site to a certain local company for five years. The documents said: “For the installation and operation of a trade pavilion.” The tent was built and the lease was extended.
In 2003, the land was given to a certain citizen on lease from the administration for three years “to accommodate a trade pavilion made of lightweight structures.” But the citizen reconstructed the facility: he made a foundation from a reinforced concrete slab and erected brick walls. The new tenant eventually came to the conclusion that his, now permanent, pavilion had become real estate. And if so, he asked the court to recognize ownership of this building.
The one who erected an unauthorized structure does not acquire actual ownership of it.
At first, this request was considered by the Prikubansky District Court of Krasnodar. The court rejected the citizen's claim. In its decision, the district court indicated that the land plot was provided to the plaintiff for three years for the “temporary placement of a trade pavilion made of lightweight structures.” The plaintiff does not have any permitting documentation for capital construction required in such cases. And he is not the owner of the land plot.
According to the court, this capital structure is a real unauthorized construction, erected without the appropriate permission. As a result, the district court wrote in its decision that the citizen violated the legal rights and interests of the owner of the land plot - the municipality of Krasnodar.
The offended owner of the pavilion went to challenge the decision. And he succeeded. The Krasnodar Regional Court overturned the decision and adopted a new decision. Namely, it satisfied the claims. In its decision, the regional court stated verbatim the following: on the basis of the purchase and sale agreement for the shopping pavilion, the plaintiff became its owner, carried out reconstruction, after which the pavilion began to have “features of real estate.”
Thus, according to the appeal, it is quite possible for a citizen to recognize the right of ownership of the pavilion as a newly created thing. And he referred to articles 218-219 of the Civil Code of the Russian Federation.
The administration of the municipality of the city of Krasnodar was already indignant at this decision. And she filed a cassation appeal to the Supreme Court. There they examined the complaints and stated that the person who erected the unauthorized structure does not acquire ownership of it and does not have the right to dispose of it. The Supreme Court reminded its colleagues about another article of the Civil Code, which is more suitable for this case - Article 222.
And this article says that if a site is leased for the construction of temporary buildings or easily erected structures, then there is no reason to recognize ownership of the “actually erected capital type structure.” By concluding a lease agreement, the owner must clearly express his will to erect buildings of a specific type.
According to the Supreme Court of the Russian Federation, when considering the issue of recognizing the ownership of an unauthorized object, the will of the owner of the land plot is of particular importance. Our hero received land lease for the temporary placement of a trade pavilion made of lightweight structures. Without the right of capital construction and without corresponding permitted use. The right of ownership of newly created real estate is recognized only if all legal norms are observed during its creation. Consequently, we are no longer talking about unauthorized construction. Therefore, the Supreme Court of the Russian Federation canceled the appeal ruling and upheld the decision of the trial court.
Let's remember the four reasons
For the court to recognize the construction as unauthorized, one of four conditions is sufficient :
- The first condition is that it was built on a plot of land that was not received in the prescribed manner
- The second condition is that it was built on a site not intended for construction.
- The third foundation was built without permission or approvals
- The fourth foundation was built in violation of town planning and building codes and regulations
Compliance with one condition = one reason for demolition, and that is enough
Two conditions are met - two reasons, three conditions - three reasons, four conditions - all possible reasons.
The first situation when the limitation period does not apply (paragraph 6 of the letter)
This paragraph of the information letter discusses a legal situation where two conditions are met:
- Built on the plaintiff’s (owner’s) land plot without his consent
- The plaintiff owns this land
A typical example: a neighbor built a garage and partially “climbed” onto your property.
The neighbor does not have consent, the plot is in your possession
In essence, the situation looks like “the site was not provided, but they built on it” - this is the first basis in Article 222 of the Civil Code of the Russian Federation.
If everything is clear with the wording “without consent,” for non-lawyers I’ll explain what “own” means.
Possession is one of the three components of property rights (possession, use and disposal). This part can be transferred while remaining the owner.
To possess = to actually possess a thing
The demands of the owner of the land to demolish an unauthorized building are essentially a demand to eliminate a violation of the right that is not associated with deprivation of possession of the land plot.
And this is already a negative claim, the statute of limitations does not apply
What if the owner did not give consent to the construction of the building, but also does not own (in fact does not possess) the site?
In this case, the question of the legality of the construction of the building can only be resolved :
- As part of a claim for reclaiming a land plot from someone else’s illegal possession
- Or after satisfying such a claim
Claiming from illegal possession is a vindication claim
The statute of limitations for a vindication claim is three years. Accordingly, the non-possessing owner's demand for demolition can also be made within these three years.
The second situation when the limitation period does not apply (paragraph 7 of the letter)
Failure to comply with town planning and building codes and regulations is the fourth basis for recognizing a structure as an unauthorized construction.
Violations can be different: some are minor and can be easily eliminated, others are significant and there is nothing better than demolishing them.
When considering cases of demolition of illegal buildings, it is significant violations that matter.
Significant or not - determined by the expert
The main criterion of materiality is the presence of a threat to the life and health of citizens .
Much depends on the answer to the question whether the building creates such a threat.
What kind of building is considered dangerous for people to stay in?
This question was again answered by the Supreme Arbitration Court of the Russian Federation.
A building with significant violations of urban planning and building codes and regulations creates a threat to the life and health of citizens.
It's dangerous to be there
Just imagine , people could get hurt or even die in the building or near it, and the court denies the claim for demolition due to the expiration of the statute of limitations.
At the same time, protecting the rights of the defendant turns into a kind of connivance, the assumption of a threat against an unlimited number of citizens.
Of course the courts cannot allow this to happen.
the statute of limitations does not apply to demands for the demolition of an unauthorized building that is dangerous to life and health .
An important legacy of the Supreme Arbitration Court of the Russian Federation
Back in 2010, the Supreme Arbitration Court of the Russian Federation issued a review on some issues regarding the application of Article 222 of the Civil Code of the Russian Federation.
The review was issued in an information letter dated December 9, number 143 .
In 2014, the Supreme Arbitration Court of the Russian Federation was abolished, its powers were transferred to the Supreme Court of the Russian Federation.
However, most of his explanations are still used today.
Interesting points 6 and 7 of the information letter
These paragraphs provide two legal situations where the statute of limitations does not apply to demands for the demolition of an unauthorized building.
In 2021, the Supreme Court of the Russian Federation, in review of judicial practice No. 3, referred to these two points of the information letter, which once again confirmed the position of the Supreme Arbitration Court of the Russian Federation.
Be ready for anything
The court considers the case based on the subject and grounds stated in the claim. The subject of the claim is about what, the basis is why.
However, the plaintiff has the right to change the subject OR the basis of his claims - one or the other.
A simple example.
The demands are motivated by the fact that the defendant did not approve the construction of the building and did not receive a construction permit - on the third ground .
The defendant claimed that the statute of limitations had passed.
The plaintiff countered this procedural move - he added the reasoning that construction standards were also violated during construction, and the building itself poses a threat to the life and health of citizens.
Supplemented the third with a fourth base
As a result, the statement about the limitation period lost its meaning.
Therefore, in a response to the statement of claim, it is better to immediately give arguments for each of the four grounds established by Article 222 of the Civil Code of the Russian Federation.
This will not prevent the plaintiff from changing the cause of action. However, it will save you from preparing additions to the review. It may discourage the plaintiff from changing or adding to the justification of the claims.
Using the example of Moscow
The store is located on a leased plot of land.
The owner of the site is the city of Moscow (subject, public legal entity).
The owner of the store is an entrepreneur who rents land from the owner.
During the inspection of the land plot, the State Inspectorate for Real Estate of the city of Moscow identified an unapproved capital extension to the store.
A protocol was drawn up against the entrepreneur, a decision was made to bring him to administrative responsibility, and a fine was imposed.
Despite the fact that the inspection is state, it is an executive body of the city of Moscow and exercises the powers of the owner in terms of control over the use of lands owned by the city of Moscow.
It turns out that a public legal entity - the city of Moscow - learned about the violation of its rights on the day of the inspection of the land plot by the inspectorate .
First day of the limitation period = next calendar day after the examination
Another executive body of the city of Moscow, the Moscow City Property Department, filed a claim with the arbitration court to recognize the extension as unauthorized and demolish it.
It is he who is entrusted with such functions - to represent the interests of the city in the courts on issues of unauthorized construction.
What if, second and fourth
It may turn out that the demands for recognition of a building as an unauthorized construction are made on several grounds.
For example, for the second and fourth:
- It was impossible to build on the site, this is not provided for by the type of permitted use
- During construction, building codes and regulations were violated, as a result of which the construction poses a threat to the life and health of citizens
On one basis - three years, on another - the limitation period does not apply
The fact is that the limitation period applies to claims, not to grounds .
The plaintiff asks to recognize the building as an unauthorized construction - this is his demand.
It is to “admit” the statute of limitations is applied (or not applied).
In relation to “why this needs to be done,” the term “limitation period” is not appropriate.
A statement about the application of the limitation period and the absence of valid reasons for missing the limitation period is a refusal to satisfy the claim.
This should be the end of the case
However, a judge cannot simultaneously apply a statute of limitations to a claim on one basis and continue to consider the same claim on another.
Therefore, the court will consider the case on its merits, in full, with an examination of all the circumstances and evidence.
At the same time, in the decision, the judge is still obliged to evaluate the argument about the expiration of the statute of limitations.
The limitation period depends on the basis
First of all, you need to look at the basis on which the plaintiff asks to recognize the building as unauthorized.
For example, the plaintiff claims that the defendant erected a structure:
- Without approvals and permits
- On a land plot not intended for construction - in violation of the type of permitted use
In this case, the requirements are stated on the second and third grounds .
The fact is that the statute of limitations applies to claims on these two grounds.
However, there are two legal situations when the claim does not apply
This is possible if the claim is brought on the first or fourth ground (or both at once), but under certain conditions.
We'll look at this in more detail later. We will also consider what will happen if there are two grounds in the claim: one is that the statute of limitations applies, the other is not (for example, the second and fourth).
Therefore, the basis of the claim in such disputes is important
In other cases - three years, but from when
In other legal situations, a general limitation period of three years .
For example, “built on a site on which construction is prohibited” or “built without a building permit” - three years.
It’s not difficult to count them, but something else is more difficult.
From what day do these three years begin?
The limitation period is calculated from the day when the plaintiff learned or should have known :
- About violation of your right
- About who is the proper defendant in a claim for the protection of this right
“Who to sue” - this rarely poses a problem.
But with “when they found out” it’s more difficult, even more difficult with “when they should have found out.”
This requires legal analysis and assessment of the circumstances.
The lion's share of disputes about unauthorized construction takes place with the participation of public legal entities - owners of land plots that are not privately owned.
Public legal entities include the Russian Federation, its constituent entities, and municipalities.
They can only find out about a violation of their rights through authorized bodies .
The three-year period is calculated from the day when the bodies of public law education learned or, by virtue of the powers vested in them, should have learned about the violation and the violator.
