What a fine for illegal building of a house. Where to complain about illegal construction and what is the fine? If built illegally, for example, a neighbor

An unauthorized building includes, among other things, any uncoordinated extension to an individual house. When will the construction of a building be legal?

Get started construction works it is possible after it will be:

• formalized the right to acquire ownership of a plot of land;
• a project of the planned structure has been created and approved by the necessary authorities;
• an order for excavation work was received;
• permission to start construction was received.

All these activities include corresponding stages and sub-stages. If this rather lengthy process is abandoned, then the developer is threatened with liability established by law for unauthorized construction.

Consequences of unauthorized construction

Civil liability

Clause 3 of Article 25 of the Federal Law "On Architectural Activity" gives grounds to bring an individual to responsibility for unauthorized and unauthorized construction. First of all, a person is obliged to bring the land plot to its original form and demolish the illegally erected building.

All illegally erected buildings can be demolished only after a court ruling. The instructions issued by local administrations and district commissions to suppress unauthorized construction are not for the demolition of an unauthorized house.

Even if the ownership was somehow registered with the Rosreestr branch, this does not give grounds to avoid the forced demolition of the house in the event of a significant violation of the rules and regulations during the construction of the building.

The court may recognize the record of ownership of the erected real estate object invalid if it was erected on land plot, which previously belonged to another person without consent to the construction of the relevant body.

If the plaintiff, who unauthorizedly built the building, refers to the expiration of the three-year limitation period after the construction of the property, then these arguments will not be taken into account by the court, since this mandatory rule does not apply to the rights of the owner. The same limitation period does not apply to those buildings and structures that, after construction, may threaten the life and health of people living there. In this case statement of claim a commission for the suppression of unauthorized construction of buildings can file a lawsuit against the illegal construction of a house.

When constructing a building on someone else's land, the owner of the site may not declare a demand for its demolition, but has the right to ask Judicial authority recognize the right of ownership of this building. If such a requirement is satisfied, then the unauthorized developer has the right to receive compensation for the constructed object. The court as accurately as possible evaluates all the investments of the developer, determines market value object and sets the amount of compensation.

Administrative responsibility

An individual who has violated the building rule, in addition to civil liability, in accordance with the federal law "On violation of requirements in the process of building buildings and structures" may be brought to administrative responsibility on the basis of the Code on administrative offenses.

For construction without a permit, a fine is provided:

• for citizens from 2 to 5 thousand rubles;
• for officials and individual entrepreneurs from 20 to 50 thousand rubles;
• for legal entities from 0.5 to 1 million rubles.

Court actions when resolving the issue of unauthorized construction

The plenum of the Supreme Court of the Russian Federation explains that if it is impossible for an individual to provide a building permit, this cannot become a reason for the court to refuse the right to this building.

In the process of considering the claim, the court finds out whether the developer tried to take action in order to recognize the building as legal. To do this, an individual had to apply with an application to those authorized to make such a decision. government bodies... If such an appeal was made, the court finds out what answer was given and to which norms of law the state body referred. If only the refusal of the state body became the basis for not registering the building, then the court satisfies the statement of claim.

To avoid fines and other sanctions after the construction of an unapproved real estate object, you should seek advice from the lawyers of the Pravoved.ru service by calling or asking a question using the electronic form posted on the website.

In recent years, individual housing construction has been in great demand among citizens who, when acquiring land, try to build any buildings on it. Most often they are unauthorized.

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Few people think about what the consequences of illegal construction on.

Unauthorized buildings

Definition unauthorized construction given in, which recognizes the building as unauthorized if it was built on a site not intended for such purposes, or built without permission or in violation of the norms.

One violation is enough for the building to be recognized as being arbitrarily built:

1. Construction takes place on land not intended for these purposes.
2. During the construction of the building, the necessary procedures were not followed.
3. Used in construction have been violated.

In connection with the existing violations, the corresponding consequences may occur:

• ownership of the building cannot be acquired;
• all transactions with this real estate are considered null and void;
• the building will be demolished;
• an administrative fine may be imposed.

Construction standards

Before erecting buildings on plots for individual housing construction, you should know the construction standards that must be observed:

• the structure should not exceed;
• it is necessary to erect a building within three years, from the moment of ownership of the site;
• the constructed building must comply with the standards for a residential building;
• the entire construction project must be approved by the relevant authorities.

Getting permission

If construction is carried out without an appropriate permit, the actions of citizens will be regarded as illegal construction on lands IZHS.

You can get it after the project of the house has been agreed and approved, and that's all Required documents will be in stock.

To obtain a permit, the developer must apply to the local authority (for example, the building committee or the department of architecture).

Attached to the application:

• all available documents for the building (layout, etc.);
• documents for the site.

The permit is granted for 10 years if it is obtained for the first time.

The validity period of the permit can be extended by submitting an appropriate application. The extension may be refused if the construction has not been started for the entire period.

Obtaining a permit is a long and laborious process that requires collection a large number papers and visits to many instances to agree on these papers.

In many cases, it is better to entrust the implementation of such a procedure to real estate specialists.

Illegal construction on the land of individual housing construction

If during the construction of the building a building permit was not obtained, the developer may face problems, incl. material plan.

The consequences of the construction of buildings without approval most often leads to their demolition, especially if the violations are of a significant nature.

If private houses erected on the land of individual housing construction can still be legalized through the courts, then for developers of multi-apartment residential buildings there is practically no prospect of preserving the buildings.

Private buildings

In order for a private building to be legally erected on the land of individual housing construction, it is necessary at least to obtain the appropriate permits.

In fact, the construction of private houses does not require compliance with special rules, because has a simplified order:

1. No preparation required project documentation.
2. All project documentation is prepared by the developer only on his own initiative and is not subject to state registration.
3. For illegal construction of private buildings on the lands of individual housing construction, administrative liability is provided in the form of a fine.

Apartment buildings

V recent years In Russia, more and more often decisions are made to demolish unauthorized buildings of low-rise apartment buildings.

This is due to the fact that these buildings are being erected in violation of the established norms and rules, or are located on lands not provided for such buildings.

The question of the legality of unauthorized construction is decided only in judicial procedure.

The court can recognize it as legal if it does not violate the rights and interests of other citizens. Otherwise, the structure will have to be demolished.

Effects

Unauthorized erection of buildings can lead to the following:

1. A permit for commissioning will not be obtained, accordingly, communications will not be connected to the building, and it will not be possible to register it with the BTI.
2. The building will not be able to be used for living, as well as to carry out any legally significant actions with it (sell, rent, change, etc.).
3. The further fate of the erected house will be decided only in court.
4. Other consequences, depending on the circumstances.

Arbitrage practice

The court practice on illegal construction on the land of individual housing construction is quite extensive. Most of the disputes occur in areas where housing prices are very high. Especially extensive arbitrage practice developed in the Moscow and Leningrad regions.

Judicial practice in this category of cases is rather ambiguous. Courts often make opposing decisions.

Each case has its own specifics. When considering claims, the courts are guided by many factors, the presence or absence of which will determine the position in the case.

In most cases, the authorities are the plaintiffs, less often the owners of the plots, next to which the disputed objects are located, are the initiators.

Judicial practice does not give an unambiguous answer about which side the court is most often on. This is due to the fact that when considering cases, the courts are guided by the legality of the building.

For example, citizens file a lawsuit, indicating that the erected structure violates their rights:

• the court will primarily focus on how legal the construction of a building is, whether it really poses a threat to the life of others or violates the law;
• if the building was erected without the indicated violations, then the decision will be made in favor of its owner, who will be able to legitimize the rights to build without any problems.

The issue is different with apartment buildings on the plots of individual housing construction.

In most cases, the courts decide on the demolition of these buildings, which affects the rights not only of their owners, but also of those who managed to acquire apartments in the constructed house.

Perhaps in 2020 the number of claims of this kind will decrease and developers will begin to erect buildings in compliance with the law.

FAQ

Consider the questions that citizens often ask in connection with the construction of housing on the plots of individual housing construction.

Unfinished sale

A land plot was purchased for individual housing construction for construction one-storey house... The building itself was not properly formalized, and no building permit was obtained. At the time of the sale of the house, the house is unfinished (85%).

From the documents there is a passport, only not. Initially, there was a desire to sell only the house. There was a buyer who wants to buy both a house and a plot, but fears that there will be problems with the design of the house.

When a citizen is faced with a case of illegal construction, he immediately has a question - where to complain, and what kind of fine awaits the violator? There are several options here. As a rule, this is done either by the courts or by the municipal administration. To be sure, a complaint can be written there and there.

The amount of the fine is calculated depending on the severity of the violations and the amount varies from 1,000 to 10,000 rubles. Under certain conditions, the court may demand a larger payment, demolition of the object at the expense of the defendant, or even make a decision on criminal liability.

Liability for illegal construction

If the ongoing construction is recognized as illegal, then the developer is called to account in accordance with the law. In this case, there are three options for the outcome of the case.

At civil liability the developer is involved under article 222, paragraph 2, of the Civil Code of the Russian Federation. In this case, the illegally erected residential building must be demolished. This procedure must be carried out by the owner himself, or the demolition of the object must be paid in full.

At administrative responsibility imposed money penalty... The minimum is 1000 rubles, in case of environmental, technical or design violations under article 8.1 of the Administrative Code of the Russian Federation. The standard maximum is 10,000 rubles, when building a house on a land plot without the right to use. Also, the court can collect up to 1.5% of the total cadastral value land and real estate.

To attract to criminal liability illegal construction must be fraudulent of one kind or another. The least that awaits the defendant in this case is a fine, correctional labor for up to 240 hours or imprisonment for up to 1 year under Part 1, Article 159.4 of the Criminal Code of the Russian Federation. It should be remembered that the owner of the building can be brought to this type of responsibility only in case of planned or ongoing business activities on the specified site.

The debt should be repaid immediately, since an increase in the fine in case of delay is provided. An urgent loan on the day of circulation is a way out of this situation.

Where to complain about construction without a permit

In order to bring to legal responsibility a citizen who conducts construction without a permit, you can file a lawsuit in court with a demand to prohibit the construction of a building, or to demolish it at the expense of the developer. You can also file a complaint with the administration. All this will lead to proceedings under the Civil or Criminal Code.

But where to go with a complaint about illegal construction of real estate, if there are serious legal violations? Here the issue is resolved in accordance with the Criminal Code of the Russian Federation, and here the complaint is written to the prosecutor's office under Article 10 of January 17, 1992, or to the inquiry officer, under the aforementioned part 1 of Article 159 of the Criminal Code of the Russian Federation. In the presence of corpus delicti, the statement is written to the name of the investigator of the Department of Internal Affairs of the Russian Federation, in accordance with parts 2 and 3, article 159 of the Criminal Code of the Russian Federation.

Sample construction complaint without permission

In addition to evidentiary documents and papers, it is necessary to write and issue a statement to the architecture about the illegal construction of a house. The addressee may be the prosecutor's office, magistrate, cadastral chamber or local administration. The design of the document will be the same.

An application for construction without permission should be issued not from one person, but from the collective, with the maximum possible number of signatures. Only then will this paper be valid in court proceedings.

There is no exact form for such a complaint, but it should contain the following information:

• From whom the appeal comes. For example, from residents of a separate house or housing estate;
• Who is the application addressed to? Cadastral Chamber, architecture, local court, district administration or prosecutor's office;
• Date of filing the complaint. Standard item any document;
• Reasons for applying. Among the most common options are the danger that the building poses to the health or life of citizens, as well as the infringement of their rights. Finally, the developer has no permission to build real estate.

For reliability, it is better to hand over a copy and the original of the paper, as well as leave one copy in your hands.

Illegal construction objects

To obtain a permit for the construction of a particular property, you need a whole package of documents, together with a corresponding application. Their registration is a long, tedious and costly process. Therefore, many are trying to save time and effort, and miss this moment. As a result - bringing to responsibility of one kind or another. But you need to figure out under what circumstances certain construction objects are considered illegal?

In the case of the construction of a private house, the developer must obtain an appropriate permit from the local administration by submitting documents of title to the land plot. For violations in this case, a citizen can only be brought to administrative responsibility.

For permission to build an apartment building, a much larger list of papers from municipal administration... The basis is the same documents of title to the site, plus consent from all other rightholders of the construction, certificates from the fire and sanitary inspection, confirmation of the design documentation of the structure. If all these standards are not met, the building is subject to immediate demolition at the expense of the defendant.

Registration of a package of documents for the construction commercial real estate on a plot of land is the most difficult task. This requires additional extracts from the USRIP, the Unified State Register of Legal Entities, the town-planning plan of the existing site, all the project documentation, plus the documents specified in the previous cases. If all this is not observed, the building, again, is subject to demolition at the expense of the developer himself.

The list of cases when construction can be recognized as illegal:

• If a building, structure or other structure was erected on a site not intended for construction.
• In the absence of a building permit from the relevant authorities, which must correlate the request with urban planning and building codes.
• The person who carried out the construction does not have a building permit from the owner of this territory and / or he is not its owner.
• Construction is carried out using illegal sources of income and labor resources, or in violation of a number of urban planning and building codes... This may include the construction of an illegal extension in an existing development environment.

Fines for illegal construction

If we talk about the amount of fines for illegal construction, then their size varies depending on the type of structure being built, as well as the severity of the violations. In case of unauthorized construction of a private house, everything is limited to 1000-5000 rubles and full payment for the demolition of the building. But this is if we talk about a fine for illegal construction on your site. On someone else's, the amount can be increased by compensation to the owner.

In the event that the object of illegal construction is an apartment building, or the violation consists in the absence of rights to land, the amount may increase to 10,000 rubles. In some cases, a certain part of the cadastral value of the structure is charged - from 1 to 1.5%. And this is logical - the responsibility for the illegal construction of a residential building should be higher, for obvious reasons. If the developer has committed serious violations that can lead to the collapse of the building, he may even be brought to criminal liability.

When it comes to the construction of commercial real estate or fraud of one kind or another, the size of the fine grows dramatically. Here the amounts are about 0.5-1 million rubles. In addition, the owner can be involved in correctional labor or imprisonment for up to 1 year. Therefore, it is not always possible to get off with just a fine for unauthorized construction.

If we talk about a fine for illegal construction for a legal entity, then it is much higher when compared with the amounts for which individuals can be fined. If ordinary citizens have to pay from 2 to 5 thousand rubles for illegal construction, then legal entities pay from half a million to one million rubles. The difference is significant.

14. Is it an offense to erect an unauthorized building?

An unauthorized construction is an object that physically falls under the characteristics of a real estate object, but the creation of which occurs in violation of established legal norms, since the developer ignores the requirements of the law and other legal norms during land acquisition (builds on a land plot not intended for these purposes), or when preparing for construction (does not receive the appropriate permission), or in the process of construction itself (does not adhere to town-planning norms and rules), in connection with which, by its legal essence, unauthorized construction is an offense (Savina A.V. Legal regime of unauthorized construction: Dis. ... Candidate of Legal Sciences, Samara, 2010, p. 74).

As a result of unauthorized construction, there is a violation of absolute property and personal non-property rights and, as a result, there is an obligation to compensate it arising from a tort.

The owner of the land plot, as well as other persons who have suffered damage by unauthorized construction, have the right to count on its compensation (Soboleva A.V. To the problem of compensation for damage caused by unauthorized construction // Notary. 2006. N 5. P. 26 - 27).

However, the civil law consequences of this offense consist not only in causing harm, but also in the impossibility of actual use of the land plot on which the unauthorized real estate object is located, which is not subject to introduction into civil circulation.

15. What kinds of responsibility does the erection of an unauthorized building entail?

Section 222 Civil Code RF provides for a number of measures of civil liability for the implementation of unauthorized structure... First, from the point of view of private law, violation of the relevant provisions of the law and administrative acts entails a sanction due to the impossibility of recognizing the ownership of an unauthorized building. Secondly, as a sanction for unauthorized erection of a building, paragraph 2 of Art. 222 of the Civil Code of the Russian Federation establishes a rule according to which the commission of any transactions with this real estate object is expressly prohibited. Thirdly, the general legal consequence of the construction of an unauthorized building is its demolition at the expense of the developer.

The Constitutional Court of the Russian Federation in the Definition of 03.07.2007 N 595-О-П "At the request of Sormovsky district court the city of Nizhny Novgorod on the verification of the constitutionality of the second paragraph of paragraph 2 of Article 222 of the Civil Code Russian Federation"Pointed out that" unauthorized construction is an offense, which consists in a violation of the norms of land legislation governing the provision of a land plot for construction, or urban planning norms governing design and construction. Therefore, the person who carried out the unauthorized construction is not, contrary to the opinion of the applicant, the legal owner. Introducing legal regulation unauthorized construction, the legislator fixed in paragraph 1 of Article 222 of the Civil Code of the Russian Federation three signs of unauthorized construction, namely: the building must be erected either on a land plot not allocated for these purposes in established by law order, or without receiving required permissions, or with a significant violation of town planning and building codes and regulations (moreover, to determine it as such, it is sufficient to have at least one of these signs), and established the consequences in paragraph 2 of the same article, i.e. a sanction for this offense in the form of refusal to recognize the ownership of the developer and the demolition of an unauthorized building by the person who carried it out or at his expense. "

It should be noted that measures of civil liability are also provided for:

- paragraph 1 of Article 24 Federal law"On architectural activity in the Russian Federation", which provides that a citizen or a legal entity carrying out the construction of an architectural object without a building permit (unauthorized construction) or in violation of the approved urban planning documentation shall be held liable in accordance with the Code of Administrative Offenses of the Russian Federation;

- Article 76 of the Land Code of the Russian Federation, indicating that legal entities, citizens are obliged to compensate in full for the damage caused as a result of committing land offenses. Unauthorized land plots are returned to their owners, land users, landowners, tenants land plots without reimbursement of costs incurred by persons guilty of violating land legislation for the time illegal use these land plots. Bringing land plots to a usable condition when littering, other types of damage, unauthorized occupation, demolition of buildings, structures, structures during unauthorized occupation of land plots or unauthorized construction, as well as restoration of destroyed boundary marks is carried out by legal entities and citizens guilty of these land offenses, or at their expense.

Thus, the above provisions of the legislation provide for the occurrence of both property and administrative liability for unauthorized construction.

16. What types of liability are provided for the use of land plots not in accordance with their intended purpose?

Article 42 of the Land Code of the Russian Federation establishes that owners of land plots and persons who are not owners of land plots are obliged to use land plots in accordance with their intended purpose and belonging to a particular category of land and permitted use in ways that should not harm the environment. , including the earth as a natural object.

In case of violation of these requirements, these persons may be held administratively liable under Art. 8.8 of the Code of Administrative Offenses of the Russian Federation, according to which the use of a land plot not for its intended purpose in accordance with its belonging to a particular category of land and the permitted use or non-use of a land plot intended for agricultural production or housing or other construction, for the indicated purposes in during the period established by federal law, with the exception of the case provided for in part 1.1 of this article, shall entail the imposition of an administrative fine on citizens in the amount of one thousand to one thousand five hundred rubles; for officials - from two thousand to three thousand rubles; for legal entities - from forty thousand to fifty thousand rubles (as revised on 28.07.2012).

Also, article 285 of the Civil Code of the Russian Federation provides for the possibility of seizure of a land plot from the owner if the use of the plot is carried out in gross violation of the rules for the rational use of land established by land legislation, in particular, if the plot is not used in accordance with its intended purpose or its use leads to a significant decrease fertility of agricultural land or significant deterioration of the ecological situation.

17. Who has the right to file a claim for the demolition of an unauthorized building?

An analysis of the current legislation allows us to conclude that legal nature a claim for the demolition of an unauthorized building is closest to the so-called negative claim (Article 304 of the Civil Code of the Russian Federation), according to which the owner can demand the elimination of any violations of his rights, even if these violations were not connected with the deprivation of ownership.

However, as follows from the content of clause 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, Plenum of the Supreme Court of the Russian Federation N 22 dated 04/29/2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights", not only the owner of the land plot, but also the subject of another property right to the land plot, its legal owner, or a person whose rights and legitimate interests are violated by the preservation of the unauthorized building, may apply to the court on general rules the jurisdiction of cases with a claim for the demolition of an unauthorized building. Also, the prosecutor, as well as other authorized bodies in accordance with federal law.

Owner.

The construction by a developer on someone else's land plot of a building or structure without obtaining the explicit and documented consent of the owner or without his knowledge entails the recognition of the object as an unauthorized construction on a private law basis in connection with a violation of civil and land law... By virtue of Art. 209 of the Civil Code of the Russian Federation, the owner at his own discretion owns, uses and disposes of the property belonging to him. The owner's consent to construction on the land plot belonging to him cannot be assumed. His consent to the construction of a specific immovable property must be explicit. The owner's promise to provide a land plot for the erected project is not considered a proof of consent and has no legal value.

The owner's authority to freely use his land plot is significantly limited by the arbitrary location of someone else's building on it. At the same time, a property conflict often arises between the owner of the land plot and the person intending to carry out state registration of ownership of the property he has built. In this case, the law recognizes the requirement to demolish an unauthorized building as the main way to protect the owner's rights from unauthorized construction.

The subject of other property rights to a land plot, its legal owner.

The right to file a claim for the demolition of an unauthorized building belongs to a person who owns a limited property right to the land plot on which the building is located (the subject of the right of permanent (perpetual) use or inherited ownership of the land plot for life, the tenant), including because the unauthorized the building (even erected in compliance with building codes and regulations) violates his rights. The normative justification for this thesis is the provision of Art. 305 of the Civil Code of the Russian Federation, which gives the rightful owner the right to protect his ownership of property from any violations. It is also assumed that such a claim can be brought by the owner of a limited property right even to the owner of the site who illegally erected a building on it, since Art. 305 of the Civil Code of the Russian Federation allows you to protect the possession of owners of limited property rights from the owner of the property (Stanislavov D.I.

A person whose rights and legitimate interests are violated by the preservation of an unauthorized building.

As follows from clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N 143 "Review of judicial practice on certain issues of the application by arbitration courts of Article 222 of the Civil Code of the Russian Federation", the right to demand the demolition of an unauthorized building along with the owner, the subject of other property rights to a land plot , the legal owner of the land plot on which the unauthorized building was erected also belongs to other persons whose rights and legally protected interests are violated by the preservation of the unauthorized building. Thus, the joint-stock company applied to the arbitration court with a claim against the limited liability company for the demolition of the building erected by the defendant on the land plot leased by him.

In support of his claim, the plaintiff referred to the fact that the disputed object is an unauthorized building, since it was erected with significant violations of town planning and building codes and regulations. The plaintiff's land plot borders on the land plot on which an unauthorized building was erected by the defendant. Preservation of this building violates the rights of the plaintiff.

By the decision of the court of first instance, upheld by the ruling of the court of appeal, the claim was dismissed due to the fact that the plaintiff does not have the right to file a claim for the demolition of the building as an unauthorized structure.

The courts indicated that, in accordance with paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, an unauthorized building is a structure or structure that was created on a land plot that was not allocated for these purposes in accordance with the established procedure, or was erected without obtaining the necessary permits or with a significant violation of urban planning and building codes and regulations.

It follows from this that the erection of an unauthorized building may violate the rights and legitimate interests of the owner or other legal owner of the land plot on which the unauthorized building was erected, or citizens, if the preservation of such a building creates a threat to their life and health.

The plaintiff has no rights to the land plot on which the building was erected. The owner of the land plot did not object to the construction of the disputed object. In addition, the plaintiff is not the entity that has the right to apply to the court to protect the rights and legitimate interests of others.

The court of the cassation instance canceled the judicial acts of the first and the appellate instance, sent the case for a new consideration, proceeding from the following.

By virtue of the last paragraph of clause 3 of Art. 222 of the Civil Code of the Russian Federation, the right of ownership to an unauthorized building cannot be recognized if the preservation of the building violates the rights and legally protected interests of others or poses a threat to the life and health of citizens.

It follows from this norm of the law that not only the owner or other legal owner of the relevant land plot has the right to go to court with a claim to demolish an unauthorized building, but also persons whose rights and legitimate interests are violated by the preservation of the building, as well as citizens, life and health. threatened by its preservation. A different interpretation of the provisions of Article 222 of the Civil Code of the Russian Federation means a denial of judicial protection of the violated rights and legitimate interests of these persons.

The court of cassation indicated that the court did not evaluate the evidence presented by the plaintiff, testifying to his interest as a related land user in the statement of the specified requirement, as well as evidence of a significant violation of town planning and construction norms and rules during the construction of the disputed building.

In this regard, the case was sent for a new consideration, in which the court had to assess the plaintiff's interest in the statement of these requirements and consider the dispute on the merits, as well as involve the owner of the land plot in the case either as a third party on the defendant's side, or taking into account the fact that he actually approved the actions of the person who carried out the unauthorized construction as a co-defendant (at the request or with the consent of the plaintiff).

Prosecutor.

According to clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 03.23.2012 N 15 "On some issues of the participation of the prosecutor in the arbitration process", the arbitration courts should bear in mind that the prosecutor has the right to apply to the arbitration court, in particular with a request to liquidate a legal entity due to repeated or gross violation by this legal entity of exclusive rights to the results of intellectual activity and to means of individualization, as well as with the requirement to demolish an unauthorized building in order to protect public interests (Articles 1253, 222 of the Civil Code of the Russian Federation).

This position can also be derived from the provisions of paragraph 4 of Art. 27 of the Federal Law of January 17, 1992 N 2202-1 "On the Prosecutor's Office of the Russian Federation", according to which in case of violation of human and civil rights and freedoms protected in civil proceedings, when the rights and freedoms of a significant number of citizens are violated either due to other circumstances, the violation has acquired special social significance, the prosecutor brings and maintains a claim in court or arbitration court in the interests of the victims. In addition, according to paragraph 3 of Art. 35 of this Law, in accordance with procedural legislation, the prosecutor has the right to apply to the court with a statement if this is required by the protection of the rights of citizens and the interests of society or the state protected by law.

As part of clarifications on the practice of the issue in paragraph 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N 143 "Review of judicial practice on some issues of the application by arbitration courts of Article 222 of the Civil Code of the Russian Federation" it is indicated that the prosecutor has the right to apply to the arbitration court with a claim for demolition unauthorized construction in order to protect public interests. Thus, the prosecutor filed a claim with the arbitration court against the joint-stock company for the demolition of a gas station with a shop and a washing unit erected by the defendant as an unauthorized building (Article 222 of the Civil Code of the Russian Federation).

In support of his claim, the plaintiff referred to the fact that construction norms and rules were substantially violated during the construction, which could result in the collapse of these objects. According to the prosecutor, the preservation of the building poses a threat to the life and health of citizens.

By the decision of the court of first instance, the claim was denied, since the prosecutor, by virtue of Article 52 of the Arbitration Procedure Code of the Russian Federation, does not have the right to file a claim for the demolition of an unauthorized building.

This decision was overturned by the court of appeal on the following grounds.

According to paragraph 4 of Art. 27 of the Federal Law "On the Prosecutor's Office of the Russian Federation", in case of violation of human and civil rights and freedoms protected in civil proceedings, when the rights and freedoms of a significant number of citizens are violated or due to other circumstances, the violation has acquired special public significance, the prosecutor presents and supports court or arbitration court a claim in the interests of the victims. Based on paragraph 3 of Art. 35 of the said Law, in accordance with procedural legislation, the prosecutor has the right to apply to the court with a statement if it is required by the protection of the rights of citizens and the interests of society or the state protected by law.

The court of appeal indicated that, within the meaning of these norms, as well as the provisions of Article 52 of the Arbitration Procedure Code of the Russian Federation, the latter cannot be considered as a prohibition for a prosecutor to file a demand in an arbitration court to demolish an unauthorized building in the interests of an indefinite circle of persons, including citizens. With a different interpretation of these legal norms, the prosecutor's office will be deprived of the opportunity to implement the functions assigned to them, and an indefinite circle of persons in whose interests the prosecutor has declared the demand will be deprived of the ability to protect their violated rights and legitimate interests.

The appellate court also took into account that the grounds for filing a claim with the court for the demolition of a gas station were numerous appeals from citizens living near the disputed object.

In connection with the foregoing, the appellate court considered the prosecutor's claim on the merits.

In another case, the prosecutor applied to the arbitration court with a claim against a limited liability company for the demolition of a warehouse erected by the defendant as an unauthorized building.

As the prosecutor pointed out, the building was created on a land plot belonging to a state institution on the right of permanent (unlimited) use, while there is no consent for the construction given by this institution and the authorized representative of the owner of the institution's property.

By the decision of the court of first instance, the claim was denied on the basis of the following.

The prosecutor has the right to appeal to an arbitration court with a claim for the demolition of an unauthorized building in the public interest. Thus, the prosecutor has the right to demand the demolition of an unauthorized building, the preservation of which poses a threat to the life and health of citizens.

Authorized bodies in accordance with federal law.

Based on the content of Art. 2, 54 Urban Development Code RF authorities exercising state construction supervision have the right to file demands for the demolition of an unauthorized building, while local authorities also have similar powers. This conclusion follows from the provisions of Art. 125 of the Civil Code of the Russian Federation, art. 53 of the Arbitration Procedure Code of the Russian Federation, Art. 46 of the Civil Procedure Code of the Russian Federation, Art. 14 of the Federal Law of October 6, 2003 N 131-FZ "On general principles organization of local self-government in the Russian Federation ”, Art. 8 of the Town Planning Code of the Russian Federation, Art. 11, 28 - 30, 32, 62 of the Land Code of the Russian Federation, according to which the competence of local authorities includes: control over the planning and development of territories of municipalities; ownership, use and disposal of municipal property; issuance of building permits; provision of land plots for construction and reconstruction. In practice, such requirements on behalf of these bodies are most often made by local self-government bodies.

Clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N 143 "Review of judicial practice on certain issues of the application by arbitration courts of Article 222 of the Civil Code of the Russian Federation" it is determined that the body exercising construction supervision has the right to file a claim with an arbitration court in defense of public interests on the demolition of an unauthorized building created without obtaining the necessary permits or with a significant violation of town planning and building codes and regulations. Thus, the body exercising construction supervision applied to the arbitration court with a claim against the joint-stock company for the demolition of the unauthorized building (store building) erected by the defendant.

In support of the stated claim, the plaintiff indicated that the controversial building was erected with significant violations of building codes and regulations, its preservation poses a threat to the life and health of citizens. In addition, the joint-stock company, despite the refusal to commission the store building and repeated warnings from the plaintiff, uses the building for trade.

By the decision of the court of first instance, the claim was rejected in view of the following.

In accordance with Article 53 of the Arbitration Procedure Code of the Russian Federation, state bodies, local self-government bodies and other bodies have the right to file claims or statements with an arbitration court in defense of public interests in cases provided for by federal law.

The body exercising construction supervision does not have the right to file a claim in court for the demolition of an unauthorized building by law.

The appellate court canceled the decision on the following grounds.

According to paragraphs. 1 and 2 of Article 54 of the Urban Planning Code of the Russian Federation, state construction supervision is carried out during the construction, reconstruction of capital construction facilities, during their overhaul... The subject of state construction supervision is checking the compliance of the work performed in the process of construction, reconstruction, overhaul, capital construction facilities with the requirements technical regulations and project documentation.

By virtue of Art. 222 of the Civil Code of the Russian Federation, unauthorized construction is a construction carried out without obtaining the necessary permits or with a significant violation of town planning and building codes and regulations.

Thus, the result of construction supervision may be the establishment of the fact of a significant violation of urban planning and building codes and regulations during the construction process, which is one of the grounds for classifying the building as unauthorized.

The unauthorized building is subject to demolition (clause 2 of article 222 of the Civil Code of the Russian Federation). Forced demolition of an unauthorized building can be carried out only on the basis of a court decision, which satisfied the claim for demolition.

The Urban Development Code of the Russian Federation defines the general powers of the bodies exercising construction supervision, which are necessary to perform the supervisory functions assigned to them.

The possibility of filing a claim for the demolition of an unauthorized building in court follows from the purposes of exercising supervision, defined by principles legislation on urban planning. To such principles, according to Art. 2 of the Town Planning Code of the Russian Federation, in particular, include: implementation of town planning activities in compliance with the requirements of technical regulations; implementation of urban planning activities in compliance with the safety requirements of territories, engineering and technical requirements, civil defense requirements, ensuring the prevention of natural and man-made emergencies, taking measures to counter terrorist acts; implementation of urban planning activities in compliance with the requirements of environmental protection and ecological safety.

In this regard, the authority exercising construction supervision should be recognized as having the right to file a claim for the demolition of an unauthorized building in court in the public interest. Art. 53 of the Arbitration Procedure Code of the Russian Federation cannot be considered as preventing the exercise of the powers of the named body, enshrined by law.

18. Who will be the proper defendant in the claim for the demolition of an unauthorized building?

As follows from paragraph 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, Plenum of the Supreme Court of the Russian Federation N 22 dated 04/29/2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights", within the meaning of the paragraph second paragraph 2 of Art. 222 of the Civil Code of the Russian Federation, the defendant in the claim for the demolition of an unauthorized building is the person who carried out the unauthorized construction. When creating an unauthorized building with the involvement of contractors, the defendant is the customer as the person on whose instructions the unauthorized construction was carried out.

If an unauthorized building is in the possession of a person who did not carry out unauthorized construction, the defendant in the claim for the demolition of the unauthorized building is the person who would become the owner if the building was not unauthorized. For example, in the case of alienation of an unauthorized building - its acquirer; when making unauthorized construction as a contribution to authorized capital- a legal entity that has received such property; in the event of the death of an individual or the reorganization of a legal entity - the person who received the property in possession.

If the ownership right to the unauthorized building is registered not with the owner, but with another person, such a person must be brought in as a co-defendant to participate in the case for the demolition of the unauthorized building (paragraph 2 of part 3 of article 40 of the Civil Procedure Code of the Russian Federation or part 2 article 46 of the Arbitration Procedure Code of the Russian Federation).

19. What is the territorial and tribal jurisdiction of claims for the demolition of unauthorized buildings?

Based on the content of paragraph 1 of Art. 30 of the Civil Procedure Code of the Russian Federation, Part 1 of Art. 38 of the Arbitration Procedure Code of the Russian Federation, it can be concluded that claims for the demolition of an unauthorized building are brought to court at the location of these objects, since these requirements are directly related to the rights to land plots, buildings, including residential and non-residential premises, buildings, structures, other objects firmly connected to the ground (exclusive jurisdiction).

Taking into account the provisions of Art. 23 of the Civil Procedure Code of the Russian Federation, Art. 27 of the Arbitration Procedure Code of the Russian Federation, it must be borne in mind that if an unauthorized building belongs to natural person, then the statement of claim is filed with the district court of general jurisdiction at the location of the facility, if the defendant is an organization or an individual entrepreneur, then the issue of its demolition is decided by the arbitration court at the location of the building.

20. Is it distributed limitation of actions to the demand for the demolition of an unauthorized building?

As indicated in paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Court of the Russian Federation N 22 dated 04/29/2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights" the demolition of an unauthorized building that poses a threat to the life and health of citizens is not subject to limitation of actions.

Also, within the meaning of Articles 208 and 304 of the Civil Code of the Russian Federation, the limitation period does not apply to the claims of the owner or other owner to eliminate violations of his rights (by demolishing an unauthorizedly erected real estate object), if these violations were not combined with deprivation of ownership.

Practical aspect

According to clause 6 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N 143 "Review of judicial practice on certain issues of the application by arbitration courts of Article 222 of the Civil Code of the Russian Federation" consent if the plaintiff owns this land.

An individual entrepreneur - the owner of a land plot - applied to an arbitration court with a claim against a limited liability company for the demolition of buildings erected by the latter on a part of the plaintiff's land plot.

In support of his claims, the plaintiff, referring to the provisions of Art. 222 of the Civil Code of the Russian Federation, indicated that he did not give consent to the construction of controversial buildings.

The defendant, without disputing that the buildings were unauthorized, asked the court to dismiss the claim due to the fact that the plaintiff had missed the statute of limitations, since the disputed buildings had been erected and have been on the plaintiff's land plot for more than five years.

Objection to the application of the limitation period, the plaintiff indicated the following. He is not deprived of land ownership as a whole. The stated requirement for the demolition of unauthorized buildings, in essence, is a requirement to remove obstacles to the owner in the use of this site, and therefore - a way to protect the property right, provided for in Art. 304 of the Civil Code of the Russian Federation. The limitation period does not apply to such claims by virtue of the direct indication of the law (Article 208 of the Civil Code of the Russian Federation).

The court of first instance recognized the arguments of the defendant about the expiration of the limitation period as justified and, on this basis, dismissed the claim.

At the same time, the court indicated that the requirement to demolish an unauthorized building is not a kind of negative claim, since from Art. 222 of the Civil Code of the Russian Federation, it follows that it can be declared not only by the owner or other legal owner of the land plot on which the controversial building was erected. The law does not name a claim for the demolition of an unauthorized building among the claims to which the limitation period does not apply.

The court of appeal canceled the decision of the court of first instance, satisfied the claim, proceeding from the following.

By virtue of Articles 304, 305 of the Civil Code of the Russian Federation, the owner or other person who owns the property on the basis provided for by law or contract can demand the elimination of any violations of his rights, even if these violations were not connected with the deprivation of ownership. The limitation period does not apply to such a requirement (Article 208 of the Civil Code of the Russian Federation).

A claim for the demolition of an unauthorized building, filed in defense of his right to a land plot by a person who is not deprived of ownership of this plot, should be considered as a requirement similar to the requirement of the owner or other legal owner to eliminate any violations of his rights in relation to the land plot belonging to him, not related with deprivation of ownership. Therefore, the rules of Art. 208 of the Civil Code of the Russian Federation.

In this case, the demand for the demolition of unauthorized buildings was declared by the owner of the land plot on which they were erected, in connection with which the court had to apply the provisions of the Civil Code of the Russian Federation on a negative claim to him (Articles 304, 208).

In another case, the municipality filed a claim to an arbitration court against a limited liability company for the demolition of the warehouse building, justifying its claim by the fact that the warehouse was erected by the defendant on the municipal land plot in the absence of the consent of the authorized representative of the owner, and therefore, is an unauthorized building (Art. 222 of the Civil Code of the Russian Federation).

The defendant objected to the claim, referring to the fact that earlier the plaintiff was denied the claim for reclaiming the disputed land plot from the possession of the defendant (Article 301 of the Civil Code of the Russian Federation) due to the expiration of the limitation period. Therefore, the plaintiff has no interest in the demolition of the warehouse, and the limitation period for the claim has also expired.

The plaintiff presented a counter-objection: the limitation of action does not apply to the demand for the demolition of an unauthorized building.

Refusing to satisfy the claim, the court of first instance indicated that, within the meaning of Articles 208 and 304 of the Civil Code of the Russian Federation, the statute of limitations does not apply to the claims of the owner or another owner to eliminate violations of his rights, if these violations were not connected with deprivation of ownership.

Since the plaintiff, who considers himself the owner of the disputed land plot, does not actually own it, the question of the legality of the construction of the disputed building without his consent could be resolved either during the consideration of the vindication claim, or after the satisfaction of such a claim. Consequently, if such a violation of the right of the owner or other legal owner of the land plot is connected with the deprivation of ownership, then the demand for the demolition of the building, created without the consent of the plaintiff, can be presented only within the limitation period for the claim for the reclamation of property from someone else's illegal possession (Art. 301 of the Civil Code of the Russian Federation).

Clause 7 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N 143 "Review of judicial practice on certain issues of the application by arbitration courts of Article 222 of the Civil Code of the Russian Federation" establishes that the requirement to demolish an unauthorized building that poses a threat to the life and health of citizens is not distributed by.

The body exercising construction supervision filed a claim with an arbitration court against an individual entrepreneur for the demolition of an unauthorized building created by the defendant with a significant violation of building codes and regulations. Opposing the stated claims, the defendant declared that the plaintiff had missed the statute of limitations.

Satisfying the claim, the court proceeded from the fact that the statute of limitations does not apply to such claims in view of the following.

Article 11 of the Civil Code of the Russian Federation establishes that the protection of violated or contested civil rights carried out in court. In accordance with Art. 195 of the Civil Code of the Russian Federation, the limitation period is the term for protecting the right at the claim of a person whose right has been violated.

A claim for the demolition of an unauthorized construction created with a significant violation of urban planning and building codes and regulations or without obtaining the necessary permits, the preservation of which violates the rights and legally protected interests of third parties or poses a threat to the life and health of citizens, is considered according to the rules of civil proceedings. However, such a claim is not aimed at protecting the civil rights of a particular person. In the cases described, a claim for demolition is brought, in particular, in order to prevent violations of constitutional human and civil rights, for example, the right to favorable environment(Article 42 of the Constitution of the Russian Federation), elimination of the existing threat to the life and health of citizens (clause 3 of Article 222 of the Civil Code of the Russian Federation), as well as bringing the development in line with the requirements for the prevention of emergencies that have been recognized in the law, requirements for the preservation of specially protected natural areas etc.

Since filing a claim for the demolition of an unauthorized building in this case is not associated with a violation of the civil law of a specific person, but with the elimination of the constant threat posed by the preservation of the building, the rules on the statute of limitations established by the Civil Code of the Russian Federation are not applicable.

In addition, the court did not agree with the argument of the defendant, who believed that the demolition of the unauthorized building after a long period of time was impossible, including due to the expiration of the statute of limitations for bringing to administrative responsibility under Art. 4.5 of the Code of Administrative Offenses of the Russian Federation. As the court pointed out, the demolition of an unauthorized building, created with a significant violation of urban planning and building norms and rules, cannot be recognized as a measure of administrative responsibility and is aimed at suppressing a continuing offense.

In another case, the construction supervision authority filed a lawsuit against an individual entrepreneur with an arbitration court for the demolition of a shop building erected by the defendant on a land plot belonging to him without a building permit.

The defendant, in his response to the claim, indicated that the preservation of the building does not violate the rights and legally protected interests of others and does not pose a threat to the life and health of citizens, since it was erected on his land plot in compliance with urban planning and building codes and regulations. In addition, the defendant stated that the plaintiff had missed the statute of limitations.

The court of first instance noted that the creation of a building in itself without obtaining the necessary permits for this means that it, by virtue of paragraph 1 of Art. 222 of the Civil Code of the Russian Federation is unauthorized and subject to demolition. However, since the plaintiff demanded the demolition of the building only on this formal basis, and the defendant presented evidence that the building was created on a land plot belonging to him on the right of ownership, in compliance with urban planning and construction norms and rules, then such a requirement is subject to the statute of limitations in relation to Articles 195 and 196 of the Civil Code of the Russian Federation. The case file contained evidence that four years before the filing of the claim, the plaintiff received a letter from the defendant containing a request to put the disputed object into operation. In such circumstances, the court of first instance dismissed the claim to the building supervision authority.

The court of appeal, upholding the decision of the court of first instance, noted that non-proliferation of such a limitation requirement would lead to adverse consequences for civil circulation and violation of the interests of subsequent purchasers of land plots on which buildings were erected, since it would allow the demolition of buildings and structures on this ground (lack of an administrative building permit) without any reasonable limitation of the time limit for filing a claim for the demolition of an unauthorized building.

Meanwhile, it should be borne in mind that in the event of a complete seizure of someone else's land plot with subsequent construction on it, an appropriate method of protecting property rights, judicial practice considers a vindication claim to reclaim a land plot from someone else's illegal possession (Articles 301, 302 of the Civil Code of the Russian Federation), and also an additional claim for the demolition of the building. If the violation of the right of the owner or other legal owner of the land plot is connected with the deprivation of ownership, then the demand for the demolition of the building, created without the consent of the plaintiff, may be presented only within the limitation period for the claim for the reclamation of property from someone else's illegal possession. The violated right cannot be restored by satisfying the claim for eviction of the defendants without resolving the issue of demolishing the erected object and vacating the land plot under it. Thus, the refusal to vindicate the land plot due to the expiration of the three-year limitation period entails a refusal to satisfy the claim for the demolition of the building located on it.

Also, if the authorized bodies file claims for the demolition of an unauthorized building on the grounds of a lack of a construction permit or the use of a land plot not in accordance with its intended purpose, in this case, at the request of a party, the court may also apply a three-year limitation period.

Practical aspect

As follows from the Resolution of the FAS of the Far Eastern District of June 15, 2011 in case No. F03-2046 / 2011, the Administration of the city of Vladivostok (hereinafter referred to as the Administration), the Department of Urban Planning and Architecture (hereinafter referred to as the Office) applied to the Arbitration Court of the Primorsky Territory with a claim against the Vladivostok City defense sports and technical public organization (hereinafter - the Vladivostok OSTO), the public movement of the Primorsky Territory "Physical culture and sport" (hereinafter - the ODPK "Physical culture and sport") on the recognition of the unauthorized construction of the object of unfinished construction - the building of the sports club readiness 94.6%, inventory N 05: 401: 002: 000219710, lit. A, located at the address: Vladivostok, st. Cheryomukhovaya, 40b, with total area 209.7 sq. m; on the demolition of the specified unauthorizedly erected structure by means of dismantling within a month at their own expense.

In the order of Art. 48 of the Arbitration Procedure Code of the Russian Federation, the arbitration court replaced the defendant - the Vladivostok OSTO in connection with its reorganization in the form of transformation into the local branch of the All-Russian public-state organization "Voluntary Society for Assistance to the Army, Aviation and Navy of Russia" of the city of Vladivostok, Primorsky Territory (hereinafter - MO "DOSAAF of Russia" ).

By the decision of the arbitration court dated 13.12.2010, upheld by the Resolution of the Fifth Arbitration Court appellate court from 15.02.2011, the claim was rejected in full.

In the cassation appeal, the Administration asks to cancel these judicial acts as adopted in violation of substantive law, not corresponding to the actual circumstances and the evidence available in the case, to send the case for a new trial to the arbitration court of first instance in a different judicial composition.

In support of the complaint, the applicant, referring to Article 75 (part 8) of the APC RF and the presence in the case of a copy of the building permit of 31.12.2004 N 181/4, issued by V.M. Taravkov, points to the inconsistency of the conclusion of the courts about the lack of proof of the construction of the controversial building in the absence of a building permit. Disputing the conclusion of the courts on the allotment of the land plot on which this construction was carried out, the Vladivostok OSTO on the right of indefinite permanent use indicates that the erected object goes beyond the boundaries of this land plot. Refers to the proof of the implementation of work on the reconstruction of the building in the absence of an agreed working design. Indicates an incorrect application of the statute of limitations.

In their responses to the cassation appeal, the DOSAAF of Russia and ODKK Fizkultura i Sport expressed disagreement with the arguments set out in it, consider the contested judicial acts to be lawful and justified, and the cassation appeal not subject to satisfaction.

At the court session of the cassation instance, representatives of the Administration and the ODPK "Physical culture and sport" supported the arguments set out in the cassation appeal and in the response to it, respectively, giving explanations on them.

Having checked the legality of the contested judicial acts, taking into account the arguments of the cassation appeal, the Federal Arbitration Court of the Far Eastern District sees no grounds for canceling them, provided for in Art. 288 APC RF.

As established by the courts, in accordance with the case file, the Vladivostok City Administration of the Primorsky Territory dated 09/10/1996 N 1238 of the Vladivostok OSTO provided a land plot with an area of ​​114 sq. m, located at the address: Vladivostok, Cheryomukhovaya, 40.

On December 31, 2004, the Inspectorate of Gosarkhstroynadzor of the Office of Architecture, Urban Planning and State Architectural Supervision issued the Administration of Vladivostok, Primorsky Krai, ODPK "Physical Culture and Sport" building permit N 181/04 valid until 31.12.2006 for the reconstruction of a non-residential building.

On the basis of these documents, the reconstruction of a non-residential building, located at the address: Primorsky Territory, Vladivostok, st. Cheryomukhovaya, 40b.

Subsequently, on 22.09.2006 and 06.02.2009, the state registration of the right of general shared ownership UDPK "Fizkultura and Sport" (share in the right - 7/8) and Vladivostok OSTO (share in the right - 1/8) to the object of unfinished construction (building of a sports club) with a readiness of 94.6% (letter A), about which relevant evidence.

The Administration and the Office, believing that the specified object is an unauthorized building subject to demolition, applied to the arbitration court with this claim.

Refusing to satisfy the claims, the courts proceeded from the lack of evidence that the disputed object had signs of unauthorized construction.

In accordance with paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, an unauthorized building is a residential building, other structure, structure or other real estate created on a land plot not allotted for these purposes in the manner prescribed by law and other legal acts, or created without obtaining the necessary permits for this or with a significant violation of urban planning and building codes and regulations.

According to paragraph 2 of Art. 222 of the Civil Code of the Russian Federation, the person who carried out the unauthorized construction does not acquire ownership of it. It does not have the right to dispose of the building - to sell, donate, lease, or make other transactions. An unauthorized building is subject to demolition by the person who carried it out or at his expense, except for the cases provided for in paragraph 3 of this article.

In support of the stated claims, the plaintiffs indicated that the disputed building was created without obtaining the necessary permits for this and in the absence of rights to the land plot under the part of the building.

These arguments were rejected by the courts in connection with the following.

In accordance with Part 1 of Art. 51 of the Urban Planning Code of the Russian Federation, a construction permit is a document confirming the compliance of the project documentation with the requirements of the urban planning plan of a land plot and giving the developer the right to carry out construction, reconstruction of capital construction facilities, as well as their major repairs, except for the cases provided for by this Code.

In support of the argument about the implementation of the reconstruction of the disputed object without a building permit, the plaintiffs referred to the copy of the building permit from 31.12.2004 N 181/4, which was valid until 31.12.2011, issued by V.M. Taravkov for the construction of an individual residential building located at the address: Vladivostok, st. Lesnaya, 163; and on a copy of an extract from the register of building permits issued by the Department of Municipal Property, Urban Planning and Architecture of the Administration of Vladivostok for 2004.

In turn, the defendants presented a notarized copy of the building permit dated 31.12.2004 N 181/04, issued by the ODPK "Physical culture and sport", the original of which, as established by the court of appeal, was reviewed by the arbitration court of first instance.

The courts rejected the evidence presented by the plaintiffs with reference to Art. 71 (parts 1, 2, 3, 6) of the Arbitration Procedure Code of the Russian Federation as not meeting the reliability criterion. At the same time, the courts pointed out that in the information contained in the copy of the building permit from 31.12.2004 N 181/04, issued by V.M. Taravkov, and in the copy of the book of issuing permits for 2004, there are contradictions in the indication of the period of validity of this permit; the plaintiffs did not submit the original book of issuing permits for 2004 in the case file.

The plaintiffs' argument that the work on the reconstruction of the disputed object was actually carried out after the expiration of the construction permit was rejected by the Court of Appeal, pointing out that the validity period of the construction permit from 31.12.2004 N 181/04 was established from 31.12.2004 to 31.12 .2006. From the act of readiness dated 04.12.2005, documents on state registration of ownership of the object of unfinished construction, carried out on 22.09.2006, it is seen that the main work on the reconstruction of the object requiring obtaining a building permit was carried out during the period of validity of the permit dated 31.12.2004 N 181/04.

The plaintiffs' argument that the work on the reconstruction of the disputed object was carried out in the absence of an agreed project was rejected by the court of appeal as refuted by the draft design "Reconstruction of the shooting gallery building for the sports club" Metsar Olympa "of the ODKK" Physical culture and sport " Vladivostok 02.02.2005, head of UAGiG 05.12.2004, project "Reconstruction of the shooting gallery building for the sports club" Metsar Olympa "ODKK" Physical culture and sport "in the area of ​​st. Cheremukhova in Vladivostok; pointing out that the lack of information on the approval of draft and detailed designs in the Department of Urban Planning and Architecture of the Administration of Vladivostok does not indicate the absence of such approval and the fact that the plaintiffs did not declare claims of falsification of the projects submitted by the defendants in the prescribed manner.

The plaintiffs' argument that part of the disputed object goes beyond the boundaries of the land plot provided was rejected by the court of appeal, citing the fact that in this case there was a reconstruction of the existing real estate object, and not the construction of a new one, the claim was declared about the demolition of the entire object, while while the rights are absent only to the land plot under the part of the building, taking into account the absence in the case materials of evidence of the impossibility of releasing the land plot not belonging to the defendants from individual elements of the building structure.

Taking into account the above, the courts came to the conclusion that it was not proven that the disputed object had signs of unauthorized construction.

At the same time, the courts came to the correct and reasonable conclusion about the expiration of the general limitation period provided for in Article 196 of the Civil Code of the Russian Federation, the application of which was declared by the defendants, having established that the plaintiffs represented by a single municipal institution should have learned about the violation of their right on 03/02/2006 (the claim was filed on 07/28/19 .2010).

The conclusions of the courts are substantiated by reference to the letter of the Department of Municipal Property, Urban Planning and Architecture dated 02.03.2006 N 1451-v on clarifying the postal address containing information that the building of the Vladivostok City Defense Sports and Technical Public Organization, located at the address: Vladivostok, st. Cheryomukhovaya, 40, assigned a postal address: Vladivostok, st. Cheryomukhovaya, 40b, and on articles 196, 200 of the Civil Code of the Russian Federation.

In addition, the Court of Appeal pointed out the lack of evidence that the disputed object created a threat to the life and health of citizens, referring at the same time to the provisions of paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, the Plenum of the Supreme Of the Arbitration Court Of the Russian Federation N 22 dated 04/29/2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights", according to which the requirement to demolish an unauthorized building that poses a threat to the life and health of citizens is subject to limitation of actions does not apply.

21. Do the provisions on the demolition of an unauthorized construction site apply to unauthorized reconstruction of immovable property, as a result of which a new site arose?

According to clause 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, Plenum of the Supreme Court of the Russian Federation N 22 dated 04/29/2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights", the provisions of Art. 222 of the Civil Code of the Russian Federation apply to unauthorized reconstruction of real estate, as a result of which a new object arose.

The court obliges a person to demolish the unauthorizedly reconstructed immovable property only if it is established that the object cannot be brought to the state that existed before such work was carried out.

Practical aspect

As follows from the Ruling of the Sverdlovsk Regional Court of 12.01.2012 in case N 33-538 / 2012, G. applied to the court to the Administration of Yekaterinburg with a claim for recognition of ownership of the unauthorized building, citing in support of the stated claims that he is the owner non-residential premises <…>with total area<…>sq. m, which is used as a grocery and industrial goods store. The specified premises were transferred from residential to non-residential on the basis of the Resolution of the head of the city of Yekaterinburg from<…>... In 2006, the plaintiff reconstructed the property he owned, dug a basement without obtaining a building permit. Reconstruction was carried out on the basis of the design decision of LLC<…>and in accordance with the technical opinion of LLC<…>... The entrance to the basement is through a shop owned by the plaintiff. By the order of the Glavarkhitektura of the Administration of Yekaterinburg, the plaintiff was asked to legitimize the performed reconstruction. On the appeal of the plaintiff for approval of the reconstruction, a refusal to issue a building permit was received. Currently, work is underway to form a land plot for an apartment residential building, the owners of the premises of which do not object to the legalization of unauthorized construction. Considering that the preservation of an unauthorized building - a basement room does not violate the rights and legitimate interests of others, does not pose a threat to the life and health of citizens, the building complies with building norms and rules, requirements fire safety, the plaintiff asked the court to recognize the ownership of the unauthorizedly erected real estate object - a basement with a total area<…>sq. m room N<…>, located at<…>, in accordance with the inventory data of the EMUP BTI as of February 24, 2011.

By the decision of the Leninsky District Court of Yekaterinburg dated October 13, 2011 G.'s claims were dismissed.

After checking the case materials, discussing the arguments of the cassation appeal, the judicial board finds no grounds for canceling the decision, considers the court decision to be lawful and justified, and the cassation appeal not subject to satisfaction.

Resolving the dispute, the court correctly established the circumstances relevant to the case, the presented evidence was assessed in their totality in accordance with Art. 67 of the Civil Procedure Code (hereinafter - the Code of Civil Procedure) of the Russian Federation and came to reasonable conclusions.

As established by the court, G. is the owner of the built-in non-residential premises<…>with total area<…>sq. m, which is used as a grocery and industrial goods store.

The court also found that G. unauthorizedly as a result of the reconstruction of the non-residential premises belonging to him by right of ownership, a basement room was erected under this non-residential premises, in the absence of permits.

In accordance with paragraph 1 of Art. 222 of the Civil Code (hereinafter referred to as the Civil Code) of the Russian Federation, an unauthorized construction is a residential building, other structure, structure or other immovable property created on a land plot not allotted for these purposes in the manner prescribed by law and other legal acts, or created without receiving these are necessary permits or with a significant violation of urban planning and building codes and regulations.

According to the explanations set out in clause 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, Plenum of the Supreme Court of the Russian Federation N 22 dated April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights ", The provisions of Article 222 of the Civil Code of the Russian Federation apply to unauthorized reconstruction of real estate, which resulted in a new object.

In accordance with Art. 1 of the Urban Planning Code of the Russian Federation, reconstruction is a change in the parameters of capital construction objects, their parts (height, number of floors (hereinafter referred to as the number of floors), area, indicators production capacity, volume) and the quality of engineering and technical support.

Since the plaintiff reconstructed the non-residential premises belonging to him, as a result of which a new object was formed - a basement, the court of first instance correctly indicated that the basement erected by the plaintiff was an unauthorized building.

According to paragraph 3 of Art. 222 of the Civil Code of the Russian Federation, the right of ownership to an unauthorized building can be recognized by a court, and in cases provided for by law, in a different manner prescribed by law, to a person in ownership, inherited life possession, whose permanent (unlimited) use is the land plot where the construction was carried out. The right of ownership to an unauthorized building cannot be recognized for the specified person if the preservation of the building violates the rights and legally protected interests of other persons or poses a threat to the life and health of citizens.

Thus, stating the requirements for the recognition of ownership of the unauthorized building - the basement, the plaintiff in the manner of Art. 56 of the Code of Civil Procedure of the Russian Federation had to prove that the basement built by him under the residential building<…>does not violate the rights and legally protected interests of other persons, does not pose a threat to the life and health of citizens, complies sanitary standards and the rules, fire safety requirements, is located on the land plot, the right to use which belongs to the plaintiff.

According to paragraph 2 of Art. 40 Housing Code Of the Russian Federation if the reconstruction, reorganization and / or redevelopment of premises is impossible without attaching a part to them common property in an apartment building, the consent of all owners of premises in an apartment building must be obtained for such reconstruction, reorganization and / or redevelopment of premises.

However, there is indisputable evidence that unequivocally indicates that the consent of all owners of premises in a residential building<…>for the reconstruction of the non-residential premises owned by the plaintiff was received, the plaintiff was not presented. References in the cassation appeal to the fact of notifying all the owners of the premises of the house about the reconstruction of the premises belonging to the plaintiff are untenable, since the fact of the notification does not indicate the presence of the consent of all the owners of the premises in the house to the plaintiff for the reconstruction of the premises.

On the contrary, the owners of the premises in the above-mentioned house, V.V.P., K.L.I., B.B.V., B.N.A., A.F.G., V.V. .V., U.N.S., pointing out the violation of their rights and legitimate interests, expressed their disagreement with the reconstruction of the non-residential premises made by the plaintiff, since such reconstruction, not provided for by the project of the house, could lead to the destruction of a residential building.

Violation of the rights and legitimate interests of the owners and residents of the house<…>as a result of the reconstruction carried out by the plaintiff, indicates the protocol general meeting residents<…>dated March 27, 2011, from which it follows that the owners of the premises of the said house made a decision on the obligation of G. to eliminate the violation of their rights by the illegal construction of a basement and to restore the structure of the house to its original state.

In confirmation that the reconstruction of the premises belonging to him and the construction of the basement premises carried out by the plaintiff does not pose a threat to the life or health of citizens, the plaintiff presented a technical conclusion of the LLC<…>, which was carried out according to the results field surveys store premises.

Meanwhile, from the systemic interpretation of Articles 48, 49 of the Urban Planning Code of the Russian Federation, it follows that with regard to the design documentation of apartment buildings with more than three floors, a state examination is being carried out.

Since dwelling house<…>, Built in 1965, has five floors, the court of first instance correctly indicated that in order to carry out the reconstruction of the premises belonging to the plaintiff, the plaintiff had to conduct a state examination of the project documentation.

However, the conclusion of the state examination was not presented by the plaintiff, and the case materials do not contain evidence to the contrary. At the same time, there is no evidence in the case materials indicating that the plaintiff took steps to obtain permits for the reconstruction of the premises.

Thus, the fact that the basement erected by the plaintiff does not pose a threat to the life and health of citizens is not confirmed by evidence in accordance with Art. 67 Code of Civil Procedure of the Russian Federation.

In addition, the materials of the case confirm that the land plot under the apartment building<…>Until now, it has not been formed, therefore, the right of common shared ownership of the owners of premises in the said residential building to this land plot has not been formalized in the manner prescribed by law.

Considering the above, the court of first instance came to a well-grounded conclusion about the absence of those provided for in paragraph 3 of Art. 222 of the Civil Code of the Russian Federation of the grounds for recognizing the plaintiff's ownership of an unauthorized building - a basement.

22. Is the existence of registration of ownership of an unauthorized building an obstacle to filing claims for its demolition?

As indicated in paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, Plenum of the Supreme Court of the Russian Federation N 22 dated 04/29/2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights", in the event that when the immovable property, the right to which is registered, has signs of unauthorized construction, the presence of such registration does not exclude the possibility of filing a demand for its demolition. The reasoning part of the court decision to satisfy such a claim must indicate the grounds on which the court recognized the property as an unauthorized building.

The court's decision to satisfy the claim for the demolition of the unauthorized building in this case serves as the basis for making an entry in the USRR on the termination of the defendant's ownership of the unauthorized building.

If the unauthorized building was encumbered with the rights of third parties, for example, the rights of the mortgagee, the lessee, the corresponding encumbrances also cease.

In this case, the persons whose rights are encumbered by the disputed object should be brought to participate in the case as third parties who do not declare independent claims regarding the subject of the dispute on the defendant's side, since a judicial act may affect their rights.

23. What are the features of the normative regulation of the procedure for demolishing an unauthorized building?

Clause 2 of Art. 222 of the Civil Code of the Russian Federation establishes that an unauthorized construction is subject to demolition by the person who carried it out or at his expense. This sanction is also reflected in Art. 62 of the Land Code of the Russian Federation, indicating that losses caused by violation of the rights of owners of land plots, land users, landowners and tenants of land plots are subject to compensation in full, including lost profits, in the manner prescribed by civil law, while on the basis of a court decision, a person guilty of violating the rights of owners of land plots, land users, landowners and tenants of land plots may be forced to fulfill the obligation in kind (restoration of soil fertility, restoration of land plots within the former boundaries, erection of demolished buildings, structures, structures or demolition illegally erected buildings, structures, structures, restoration of boundary and information signs, elimination of other land violations and fulfillment of obligations arisen).

Based on Art. 76 of the Land Code of the Russian Federation, when demolishing an unauthorized property, the guilty party must compensate in full for the damage caused as a result of committing land offenses, and bring the land plot into a usable condition at its own expense.

Clause 3 of Art. 25 of the Federal Law "On Architectural Activity in the Russian Federation" establishes that a person guilty of building or altering an architectural object without an appropriate building permit is obliged at his own expense to carry out the demolition (complete disassembly) of an unauthorized building or bring an architectural object and a land plot into original condition.

It should be noted that in relation to Art. 12 of the Civil Code of the Russian Federation, a claim for the demolition of an unauthorized building is more consistent with such a method of protecting civil rights as restoring the situation that existed before the violation of the law.

Thus, the legislator, within the framework of civil legislation, only in general outline determined the consequences of making a decision to demolish an unauthorized building, while, as a rule, within the framework of the decisions made, questions about the timing and methods of their execution, resolved within the framework of enforcement proceedings, remain unresolved.

Historical aspect

Article 109 of the Civil Code of the RSFSR provided for the objects of unauthorized construction that, by decision of the executive committee of the district, city, district Council of People's Deputies in the city, such a house (dacha) or part of a house (dacha) shall be demolished by a citizen who carried out unauthorized construction, or at his expense, or by a court decision may be withdrawn free of charge and credited to the fund of the local Council of People's Deputies.

In the Decree of the Council of People's Commissars of the RSFSR of 05/22/1940 N 390 "On measures to combat unauthorized construction in cities, workers, resort and summer cottages", which is currently applied in the part that does not contradict Art. 222 of the Civil Code of the Russian Federation, it is indicated that for unauthorized construction without proper written permission, the leaders government agencies and enterprises, cooperatives and public organizations and individual developers are held accountable in the manner prescribed by law.

Unauthorized developers who have started construction after the publication of this Resolution without proper written permission are obliged to immediately upon receipt of the corresponding written request from the executive committee of the city or village Council of Workers' Deputies to stop construction and, within a month, on their own and at their own expense, demolish all structures or parts of buildings erected by them. and put in order the land.

If the unauthorized developer fails to comply with the requirements of the city or village executive committee to stop construction and to demolish buildings, the executive committee gives an order to the communal services department to demolish the unauthorizedly erected structure or part of the structure. Bodies of the Workers 'and Peasants' Militia are obliged to provide the necessary assistance in enforcing the order of the executive committee on the demolition of the building.

Buildings erected or started without proper permission before the publication of this Resolution, if they violate the approved city planning, interfere with passage, pose a fire or sanitary hazard, must be transferred by the developer at his own expense to another land plot at the request of the local executive committee. assigned by the executive committee of the corresponding city or village Council of Working People's Deputies.

The transfer of the building must be completed no later than eight months from the date of the request of the executive committee.

In some exceptional cases, city and village Soviets of Working People's Deputies may decide to fully or partially reimburse the developer for the costs associated with the relocation of the building.

If the developer does not transfer the building within the period established by this article, the building is subject to demolition, and the persons living in it - to eviction without providing living space or other compensation.

Practical aspect

ON THE EXECUTION OF JUDICIAL AGREEMENTS ON THE DEMOLISHMENT OF THE AUTHORIZED BUILDINGS(excerpts, p. 2, 3, 4, 6, 7)<*>

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24. Is it necessary, when filing a claim for the demolition of an unauthorized building, to present demands for the eviction of the persons registered in it?

The answer to this question is given in the Review of the judicial practice of the Supreme Court of the Russian Federation of 07.06.2006, 14.06.2006 "Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2006", which indicates that in accordance with paragraph 1 of Art. 222 of the Civil Code of the Russian Federation, an unauthorized building is a residential building, other structure, structure or other immovable property created on a land plot not allotted for these purposes in the manner prescribed by law and other legal acts, or created without obtaining the necessary permits for this or with significant violation of urban planning and building codes and regulations.

In accordance with paragraph 2 of Art. 222 of the Civil Code of the Russian Federation, a person who has carried out an unauthorized construction does not acquire ownership of it. It does not have the right to dispose of the building - to sell, donate, lease, or make other transactions.

It follows from the provisions of this norm that an unauthorized construction cannot be an object of civil rights.

Consequently, the specified building is not included in the composition housing stock and does not have the status of a dwelling, therefore the person who erected the unauthorized building cannot be registered in it.

Since the person does not have the right to live in this room, the court's decision to demolish the unauthorized building does not affect his right to own and use the said living space, therefore there are no grounds for making a separate claim to evict the person from the unauthorized buildings.

Consequently, when filing an application for recognizing a dwelling as an unauthorized construction in accordance with the procedure established by law, it is not required to additionally declare a demand to evict citizens from dwelling buildings subject to further demolition, since a court decision on the demolition of an unauthorized building does not violate the citizen's right to live in the said dwelling. ...

If a citizen is registered in an unauthorized residential building, then in this case, when filing a claim for the demolition of an unauthorized building, an eviction requirement must also be presented.

25. What types of administrative liability occur in the event of the erection of an unauthorized building?

Part 1 of Article 9.5 of the Administrative Code of the Russian Federation.

In accordance with Art. 58 of the Urban Planning Code of the Russian Federation, persons guilty of violating the legislation on urban planning activities bear disciplinary, property, administrative, and criminal liability in accordance with the legislation of the Russian Federation.

Part 1 of Art. 9.5 of the Administrative Code provides that construction, reconstruction of capital construction objects without a construction permit, if construction permits are provided for the implementation of construction, reconstruction of capital construction facilities, entail the imposition of an administrative fine on citizens in the amount of two thousand to five thousand rubles; for officials - from twenty thousand to fifty thousand rubles; on persons carrying out entrepreneurial activity without forming a legal entity - from twenty thousand to fifty thousand rubles or administrative suspension of their activities for up to ninety days; for legal entities - from five hundred thousand to one million rubles or administrative suspension of their activities for up to ninety days (as amended by Federal Law of 22.06.2007 N 116-FZ).

In clause 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 17, 2011 N 11 "On some issues of the application of the Special Part of the Code of the Russian Federation on Administrative Offenses", it was noted that when considering cases related to bringing persons to administrative responsibility for construction, reconstruction , overhaul of capital construction projects without a building permit in cases where obtaining a permit is mandatory, the courts must proceed from the following.

The subjects of responsibility for an administrative offense under Part 1 of Art. 9.5 of the Code of Administrative Offenses of the Russian Federation, may be a developer (customer under a contract construction contract), since by virtue of Art. 51 of the Urban Planning Code of the Russian Federation, it has the obligation 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 make sure that the developer, by involving them in the implementation of construction, reconstruction, overhaul of capital construction projects, has a corresponding building permit.

Cases of administrative offenses are considered by officials of the state construction supervision bodies. Article 23.56 of the Code of Administrative Offenses of the Russian Federation defines the executive authorities authorized to exercise state construction supervision. They are the ones who consider cases of administrative offenses under Art. 9.5 of the Administrative Code of the Russian Federation.

The following are entitled to consider cases of administrative offenses on behalf of the bodies indicated earlier: 1) the head of the federal executive body authorized to exercise state construction supervision, his deputies; 2) leaders structural units the federal executive body authorized to exercise state construction supervision, their deputies; 3) heads of territorial bodies of the federal executive body authorized to exercise state construction supervision, their deputies; 4) heads of executive bodies of the constituent entities of the Russian Federation, authorized to exercise state construction supervision, and their deputies; 5) heads of structural divisions of executive authorities of the constituent entities of the Russian Federation, authorized to exercise state construction supervision, and their deputies.

In accordance with clause 2 of the Decree of the Government of the Russian Federation of 01.02.2006 N 54 "On state construction supervision in the Russian Federation" the federal executive bodies authorized to exercise state construction supervision are: federal Service on environmental, technological and nuclear supervision - during the construction, reconstruction of facilities specified in clause 5.1 of Art. 6 of the Urban Planning Code of the Russian Federation, with the exception of those objects in respect of which the implementation of state construction supervision by decrees of the President of the Russian Federation is entrusted to other federal executive bodies; Ministry of Defense of the Russian Federation; Federal Security Service of the Russian Federation; Federal Security Service of the Russian Federation and other federal executive bodies, which are entrusted with the implementation of state construction supervision by decrees of the President of the Russian Federation.

The procedure for the implementation of state construction supervision in the Russian Federation is established by the Regulations on the implementation of state construction supervision in the Russian Federation, approved by the Decree of the Government of the Russian Federation of 01.02.2006 N 54.

State construction supervision is carried out: a) during the construction of capital construction projects, if the design documentation for their construction is subject to state examination in accordance with Art. 49 of the Urban Planning Code of the Russian Federation, or is a typical project documentation or its modification, for which a positive conclusion of the state expertise has been received; b) during the reconstruction of capital construction facilities, if the project documentation for the reconstruction of capital construction facilities is subject to state examination in accordance with Art. 49 of the Town Planning Code of the Russian Federation.

The task of the state construction supervision is to prevent, identify and suppress violations of the legislation on urban planning activities, including technical regulations and project documentation, committed by the developer, customer, as well as by the person carrying out construction on the basis of an agreement with the developer or customer.

Protocols on administrative offenses are drawn up by officials of the state architectural and construction supervision bodies (part 1 of article 28.3 of the Administrative Code of the Russian Federation) and officials of the internal affairs bodies (police) (paragraph 1 of part 2 of article 28.3 of the Administrative Code of the Russian Federation).

Part 1 of Article 9.4 of the Administrative Code of the Russian Federation.

Part 1 of Art. 9.4 of the Code of Administrative Offenses of the Russian Federation for violation of the requirements of technical regulations, project documentation, mandatory requirements of documents in the field of standardization or special requirements technical conditions or violation of the mandatory requirements for buildings and structures established by the authorized federal executive body before the date of entry into force of technical regulations in the design, construction, reconstruction or overhaul of capital construction facilities, including when applying building materials(products), liability is provided in the form of a warning or the imposition of an administrative fine on citizens in the amount of one thousand to two thousand rubles; for officials - from twenty thousand to thirty thousand rubles; for legal entities - from one hundred thousand to three hundred thousand rubles.

Practical aspect

According to the Resolution of the First Arbitration Court of Appeal dated 08.08.2011 N А43-3615 / 2011, the court satisfied the application of the State Construction Supervision Inspectorate of the constituent entity of the Russian Federation on bringing the organization to administrative responsibility on the basis of Part 1 of Art. 9.4 of the Code of Administrative Offenses of the Russian Federation, indicating that the lower court made a legitimate conclusion that the organization, being the customer during the construction of the disputed object, was obliged to ensure that the design documentation was sent to the state examination body in order to obtain a positive conclusion, and the violations revealed by the inspection during the construction of the capital construction are deviations from the requirements normative documents in the field of construction during construction, reconstruction, overhaul of capital construction facilities, including the use of building materials (products).

Article 7.1 of the Administrative Code of the Russian Federation.

Also, the erection of an unauthorized building on a land plot that does not belong to the developer entails the onset of administrative responsibility, provided for in Art. 7.1 of the Code of Administrative Offenses of the Russian Federation, according to which the unauthorized occupation of a land plot or the use of a land plot without duly drawn up documents of title to the land, and, if necessary, without documents authorizing the implementation economic activity, shall entail the imposition of an administrative fine on citizens in the amount of five hundred to one thousand rubles; for officials - from one thousand to two thousand rubles; for legal entities - from ten thousand to twenty thousand rubles (as amended by Federal Law of 22.06.2007 N 116-FZ).

It should be borne in mind that, according to clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 17, 2011 N 11 "On some issues of the application of the Special Part of the Code of Administrative Offenses of the Russian Federation", when considering cases on challenging decisions of administrative bodies on bringing to administrative responsibility for these offenses the courts should take into account that the unauthorized occupation of land means the use of someone else's land plot in the absence of the will of the owner of this plot (another person authorized by him), expressed in the prescribed manner.

According to Art. 23.21 Administrative Code, cases of administrative offenses, provided for by Art. 7.1 are considered by the bodies exercising state control over the use and protection of lands.

In accordance with Art. 71 of the Land Code of the Russian Federation, the Regulation on State Land Control, approved by the Decree of the Government of the Russian Federation of November 19, 2002 N 833, the Regulation on Federal Agency the cadastre of real estate objects, approved by the Decree of the Government of the Russian Federation of August 19, 2004 N 418, state land control on the territory of a constituent entity of the Russian Federation is carried out by the Office.

In accordance with article 72 of the Land Code of the Russian Federation, municipal land control in the territory municipality carried out by the body of municipal land control.

Practical aspect

In the Decree of the Seventeenth Arbitration Court of Appeal dated 31.10.2011 N 17AP-9847/2011-AK in case N A50-13044 / 2011, the court explained that the objective side of the offense under Art. 7.1 of the Code of Administrative Offenses of the Russian Federation, is that the perpetrator arbitrarily occupies a land plot or uses a land plot without registration of title documents, and, if necessary, without documents authorizing the implementation of economic activities. According to the court, the use of a land plot without duly executed land title documents should be understood as the use of a land plot carried out with the permission of the owner or a person authorized by him, however, associated with non-fulfillment prescribed by law obligations for registration of documents of title to land.

Chapter 3. RESPONSIBILITY FOR ESTABLISHMENT OF AN INDIVIDUAL CONSTRUCTION OBJECT