The procedure for demolishing unauthorized buildings

The concept of unauthorized construction

A structure can be classified as unauthorized if it has the following characteristics:

It was built on land to which there is no title;
The structure is built on an area that has a different purpose and is provided for other purposes;
It was created without obtaining the appropriate permission from administrative authorities;
Its construction violates the norms of urban planning and architectural legislation;
Its construction threatens the life and health of other persons, and also infringes on their rights.

The provisions of Article 222 of the Civil Code of the Russian Federation determine that a real estate object erected without the coordination of such actions with the owner of the land territory can be recognized as an unauthorized construction. The basis for recognition of such status is in accordance with the definition of the RF Armed Forces dated March 10, 2016. No. 69-KG14-10 are violations, including the lack of legal rights to the site, the necessary permits and violation of town planning and construction rules.

All actions to create a building are considered illegal when it is determined that the structure meets at least one of the specified conditions.

Demolition of an illegally erected structure can be carried out in the following order:

Administrative proceedings;
By the tribunal's decision.

What is considered self-construction?

According to the law, a building or structure built on a plot of land that is not allocated in the prescribed manner, the purpose of which does not allow the construction of the facility, is considered unauthorized. Self-construction is characterized by the absence of the necessary permits from the competent authorities; during its construction, deviations from building standards were allowed.

If at least one of the listed characteristics relates to a real estate object, ownership of such an object does not appear, it cannot be disposed of, for example, sold, exchanged, or given away. It is prohibited to use an unauthorized construction; it must be brought into a condition that does not violate the requirements of current standards or demolished.

A structure is not recognized as unauthorized if, at the time of its creation, the owner of the land did not know and could not know about the existing restrictions on the use of land that prohibit construction.

Through the court, it is possible to legitimize an unauthorized building. The court may recognize the owner or other legal owner of a land plot as having ownership of the created object if its parameters at the time of application comply with building regulations, it does not violate the interests of third parties, and is not dangerous to the health and life of people. For a positive decision, it is necessary to prove in court that the plot of land belongs to the applicant with the right to construct the facility.

If the building was not built by the owner or owner of the land, and his ownership was recognized, the court may oblige him to reimburse part of the cost of the object to the person who incurred the costs.

The court or the administration of the municipality in which the facility is located has the right to make a decision on the demolition of a building erected without observing the law.

Administrative demolition of unauthorized buildings

The provisions of Article 222 of the Civil Code of the Russian Federation establish the legal regime of such a structure, and also establish the rules for its introduction into legal transactions.

In early 2015, the rule was changed to allow local municipalities to require demolition without a court order in certain situations. Now its demolition is expressed in sanctions for non-compliance with the provisions of land legislation or the Town Planning Code of the Russian Federation.

By the way, it is currently permitted to demolish structures that were erected in violation of the purpose of the building or when the following conditions are met:

Construction was carried out on the territory where engineering communications pass;
The area is used for general purposes and can be used by a wide range of people. It includes boulevards, streets, parks, coastal strip, etc.;
The structure was erected on a site where construction is possible only subject to certain conditions.

Bodies of the constituent entities of the federation that have authority do not have the right to expand the list of criteria for recognizing an immovable object as an unauthorized structure.

Local government services must notify the owner of an unauthorized building about its non-compliance with established requirements.

The demolition of an unauthorized building without a court decision must be justified. Administrative resources can only be used on the basis of the relevant requirements of the local government body, which sets a deadline for eliminating the problem. The action is carried out compulsorily if the violators do not independently correct the violation within a certain period.

Even the presence of a formalized right to a building cannot serve as an obstacle to its demolition when serious violations of legal requirements are identified that cannot be eliminated.

A copy of the demolition requirement is sent within seven days from the date of discovery of the relevant offense. Municipal staff are responsible for ensuring compliance with the deadline.

When specifying the period in which it is necessary to demolish a structure, it is necessary to take into account the features of the constructed object and its parameters. When making a decision, the controlling organization cannot exceed its powers.

What will happen to the site after the building is demolished?

The fate of the illegally built facility has been decided; the site remains. How will the situation develop?

If, in addition to what has been demolished, there are also objects on it, the construction of which does not contradict the law, the rights to it remain with the owner (for example, the right to lease).
The plot is empty, was leased or was under the right of permanent perpetual use - the right is terminated either through a unilateral refusal or seizure by a court decision.

After all rights to the site are terminated, it is put up for public auction. The proceeds will be transferred to the owner of the land plot (not to the tenant or the person who owns it on the right of permanent perpetual use). The amounts spent on organizing the auction are deducted from the proceeds.

A citizen/organization that has acquired a plot with such an encumbrance in the form of an illegal building is obliged to comply with the order of a local government body or court to demolish the building or restore it to its original condition at their own expense. They will not receive compensation from the budget.

This innovation by the legislator on the sale of plots with a new type of encumbrance is aimed at introducing into civil circulation plots that have been ownerless for a long time due to the impossibility of properly registering ownership rights to them.

If the person who carried out the illegal construction is not found

In a situation where such a person has not been identified, then within a week from the date of the decision, the relevant authority is obliged to ensure the publication of a message about the planned preparation for demolition and placement of such information on the official resources of the local municipality and on an information board within the land territory on which the structure is erected .

In such a situation, demolition is carried out by the local government, but not earlier than two months after posting a notice of the planned action on the Internet.

Demolition of an illegal structure is permissible only when the person who erected it has not been identified. Article 222 of the Civil Code of the Russian Federation establishes a mechanism for administrative bodies to independently implement their decisions regarding unauthorized buildings if the citizen who illegally built the structure has not been identified.

If any condition established by law is missing, the decision to demolish it cannot be made.

It should be noted that this norm allows the administration of the locality:

If a person is identified who has carried out the unauthorized construction of a building, oblige it to be demolished;
In the absence of such an entity, make a decision on demolition and independently implement the appropriate measures.

Who makes the decision about demolition?

The decision on demolition is made either by a court or a local government body

(hereinafter referred to as the local self-government body), on whose territory the construction site is administratively located, provided that the building was erected without obtaining permits on a site not designated for these purposes and located within the boundaries of:

areas for public use;
zones with special conditions.

From August 4, 2021, the legislator has narrowed the powers of local self-government bodies to make decisions on the future fate of illegally constructed facilities. This applies to cases where they can pass a demolition act without a court decision.

Such an innovation has been required since 2015, when the courts received a large number of complaints about the actions of the local self-government body to recognize buildings as illegal. Despite increasingly frequent clarifications from the Supreme Court of the Russian Federation, arbitrariness on the ground continued. Therefore, the legislator decided to transfer the most serious cases to the jurisdiction of the court to consider the issue on its merits, excluding a formal approach.

Judicial procedure for demolition

To carry out such a procedure, it is necessary to initiate its start. To do this, you will need to file a claim. The plaintiff can be an administrative body or an interested person when an unauthorized building violates the rights and interests of surrounding people or threatens their safety.

The consideration of the case ends with a decision, and the responsibility for demolition is assigned to the person found guilty . If the defendant does not take the necessary actions, then the interested parties can take them themselves. But the costs associated with the demolition of the premises in such a situation are obliged to reimburse the defendant.

Powers of the municipality

Bodies of district or village self-government are authorized in extrajudicial

order to decide to demolish a squatter building if the plot of land at its location does not have the necessary documents of title, its intended use does not allow the construction of such a structure, and it is located on public lands.

In addition, the municipality may decide to demolish an unauthorized structure if it is located in a special zone that prohibits its use for construction, for example, water protection, security, cultural heritage protection, and so on.

The municipal body is obliged to notify the person who built the object or the owner of the land plot about its decision.

Any interested person can report an unauthorized building to the local government authority if the presence of such an object threatens the health or life of people. Notifications of the discovery of illegal buildings are submitted by construction supervision authorities if violations of building regulations and lack of permits are detected, as well as by state supervision authorities in the field of specially protected natural areas, when a self-construction is located on special-use lands.

The municipality does not have the right to demolish a building that is registered in the real estate register, for which there is a court decision refusing demolition or recognizing ownership rights to the structure. Local authorities do not have the authority to decide the fate of residential or garden houses and religious buildings.

The decision of the local administration to demolish an unauthorized building can be appealed in court.

When demolition of an unauthorized building is carried out

Judicial practice in this area of law is based on the application of Article 222 of the Civil Code of the Russian Federation. The main positions are:

Only an immovable object after reconstruction is subject to demolition, when it cannot be returned to its original state (determination of the RF Armed Forces dated March 11, 2014 No. 18-KG13-184);
A co-owner of a site may demand the demolition of an unauthorized building by another owner in a situation where the use of the land violates the interests of an interested party or poses a threat to the life and health of surrounding people (Resolution of the Supreme Arbitration Court of the Russian Federation dated May 18, 2011 No. 15025/10);
An unauthorized construction must be demolished in case of a significant and irreparable violation of the rules of urban planning and construction legislation;
You cannot dismantle a building if procedural issues were violated when obtaining a construction permit or putting the premises into operation, if the owner took appropriate actions;
It is impossible to demolish an extension to a residential building if the only reason for this is the lack of coordination of such actions during its construction with other co-owners (determination of the RF Armed Forces dated January 24, 2012 No. 19-B11-21).

To prevent an unauthorized building from being demolished, it is necessary to apply to the judicial authorities for recognition of ownership of it. The rights of the owner may be recognized by the court if the following conditions are met:

The entity that built the immovable object has the right to erect such a structure on the land area.
On the day of going to court, the structure complies with the characteristics provided for by the territory planning documents, land use and development rules, etc.
Preservation of real estate does not violate the legitimate interests and rights of other entities, and also does not pose a threat to their life and health.

Fierce dispute

Conflicts over bathhouses, sheds, gazebos and outbuildings standing too close to other people’s fences are among the most common “dacha” lawsuits, according to judicial statistics. Therefore, the explanation of the Supreme Court of the Russian Federation on the norms of the law may be useful.

The essence of the legal dispute in question is this: a citizen filed a lawsuit in the district court, in which he asked to recognize his neighbor’s bathhouse as an unauthorized construction and force it to be demolished. The neighbors were the owners of their acres. But the one who had the bathhouse built it, although on his own land, but too close to his neighbor’s plot. By the way, the bathhouse was two floors high and had an area of 60 square meters.

RG experts explain complex construction issues in the “Legal Consultation” section

A dissatisfied neighbor wrote in his lawsuit that the bathhouse was built without the necessary permits and in violation of city planning regulations. And the bathhouse should be located at a distance of one meter from the boundary of the plots, but it is closer. The neighbor is also concerned about the water that pours from the roof of the bathhouse during rain, because it “can lead to the destruction of soil and soil.” The plaintiff’s conclusion: all these violations during the construction of the bathhouse pose a threat to his life and health.

A dissatisfied neighbor wrote in a lawsuit: the bathhouse was built without the necessary permits and threatens his life and health

The Ufa District Court considered the claim and refused to make a decision on the demolition of the bathhouse. The dissatisfied citizen appealed this decision to the Supreme Court of Bashkiria. There they did not agree with the opinion of their colleagues and made their decision - to demolish the bathhouse. The owner of the bathhouse reached the Supreme Court of the country and asked to leave his bathhouse alone.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation carefully studied the arguments of the owner of the “condemned” bathhouse and agreed with them. This is how the high court reasoned.

The district court, when it refused to recognize the neighbor’s bathhouse as an illegal building, proceeded from the fact that it did not receive any evidence that the bathhouse violated the “legitimate rights and interests” of the neighbor. The neighbor built a bathhouse on his plot, the district court said, and the Town Planning Code (Article 51) states that obtaining permission to build a building on his plot is not required. When an appeal to the Supreme Court of Bashkortostan overturned this decision, she stated that violations had been committed during the construction of the bathhouse. They were revealed by a repeated construction examination. She noticed that the washing facility did not comply with fire safety standards “in terms of the minimum fire distance” from the bathhouse to the neighbor’s gazebo. The minimum distance according to the rules is 10 meters, and in our case it is 9.7 meters. According to the expert’s conclusion, the minimum distance from the bathhouse to the plaintiff’s property line is also incorrect: it should be 1 meter, but in reality it is 0.27 meters.

Based on this, the judicial panel for civil cases of the Supreme Court of Bashkiria concluded that the bathhouse “creates a threat to the life and health of citizens, violates the rights and legitimate interests of the plaintiff.” In her opinion, it is impossible to correct the situation without demolishing the bathhouse.

It is impossible to agree with the conclusions of the appeal, the Supreme Court of the Russian Federation said and explained why.

A man built a bathhouse on his property. The category of land in this area is land of settlements. Its permitted use is for individual housing construction.

The Civil Code (Article 263) states that the owner of a plot of land can erect buildings on it, rebuild them or demolish them without asking permission for this. But this can be done subject to compliance with building codes and regulations, as well as requirements “on the intended purpose of the site.”

The High Court recalled that there was a resolution of the plenum of the Supreme Court (No. 10) and the Supreme Arbitration Court (No. 22) in April 2010. There they talked about disputes over the protection of property and it was said that the courts should take into account if the owner demands the elimination of violations of rights, but they are not connected with deprivation of possession. Articles of the Civil Code (304th and 305th) state that claims not related to deprivation of possession are subject to satisfaction if the plaintiff proves that he is the owner, owns the property by law, and the actions of the defendant violate his property rights. The aforementioned resolution of the Supreme Court of the Russian Federation (clause 46) states that when considering such claims, the court must establish the fact of compliance with urban planning norms and rules during the construction of the facility.

Failure to comply with these standards, even minor ones, may be grounds for a claim if the plaintiff's property rights are violated.

The owner who has made such a demand must prove a violation of his rights to own and use the site by the person against whom he made the demand.

The appeal decided to satisfy the claim of a disgruntled neighbor, since the bathhouse behind the fence, according to him, threatened life and health. The Supreme Court of Bashkiria referred to SNiP 2.07.01-89 in the paragraph where it talks about the distance between the bathhouse and the neighbor's gazebo. A local commercial company made a conclusion about violation of standards based on old SNiPs.

The Supreme Court noted that the standards cited by the company were either no longer in force or were optional.

And he emphasized: the local court did not establish, as required by Article 304 of the Civil Code, whether any significant obstacles were created for the plaintiff in using his land because of the neighbor’s bathhouse.

Here is the conclusion of the Supreme Court of the Russian Federation: “Since the demolition of an object is a last resort, and the elimination of the consequences of violations must be proportionate to the violation itself and the infliction of disproportionate losses, a minor violation of norms, as the only basis for demolition, cannot indisputably indicate the impossibility of preserving the building.”

According to the Supreme Court, the local courts “did not determine in what other way, other than the demolition of the building, it is possible to restore the violated right of the plaintiff.”

The construction violation of which he was accused in the appeal was described by the Supreme Court as presumptive.

How to file a claim for demolition of an unauthorized building?

If the dispute arises from their civil legal relations, before filing a claim in court, it is necessary to comply with the claims procedure. In this case, a claim is sent to the defendant demanding that the issue regarding the unauthorized construction be resolved peacefully. This can be done in two ways: in person, by handing over a document against signature, or by sending a claim by mail. The shipment must have a delivery receipt. This document is attached to the claim as evidence of proper notification of the defendant.

If the plaintiff fails to achieve a result that will satisfy him peacefully, it is necessary to apply to the court of general jurisdiction at the location of the illegal building with a statement of claim.

General information

Signs of unauthorized construction

Unauthorized construction differs from other buildings in the following ways:

Located on a piece of land that is not the property of the owner of the building,
Be located on an area that is not intended to accommodate this type of buildings, has a different purpose and purpose,
There is no permission from the city or district administration,
The construction contradicts the established norms of architectural or town planning legislation,
Unauthorized construction or its construction poses risks to the health and life of people or infringes on their rights.

Regulatory and legal framework governing the demolition of unauthorized buildings

Civil Code of the Russian Federation as amended in 2021,
Decree of the Supreme Court of April 29, 2010, with amendments that came into force in 2015.

According to Article 222 of the Civil Code of the Russian Federation, unauthorized construction means a construction project that was erected on a particular plot of land without the consent of its owner. Demolition of an unauthorized building is possible if one of two grounds is present

By the tribunal's decision,
In the presence of administrative proceedings.