Judicial practice on indentations from the boundaries of a land plot. The procedure and judicial practice for the demolition of unauthorized buildings: how it happens How to force a neighbor to demolish an unauthorized building

A federal law with amendments to the civil code regarding unauthorized constructions has come into force. The definition of unauthorized construction and the conditions for demolition have changed. This applies to those who built real estate on an abandoned plot or without a building permit.

Previously, such buildings could be demolished, even if they did not bother anyone. Now the rights of owners are a little better protected, and it has become more difficult to demolish an unauthorized house. But this does not mean that you can build on someone else’s land, violate regulations and erect buildings that disturb your neighbors.

This is how things stand now with unauthorized buildings.

Oh, can I have a yellow plate on which you always clearly lay out everything on the shelves?

Easily:

Previously, it was possible to build a building, seemingly according to the law, and then the land under it could be reclassified as some kind of nature reserve, and that’s it - the house had to be demolished. Now no: if you built it when it was possible, then you can’t demolish it anymore.
They used to love to demolish everything. Now, before demolishing, they will look for ways to put it in order.
It has become easier to legalize self-construction.
On private property, something can only be demolished by court or if the building threatens someone. Just demolish it, because it’s no longer possible to “not be allowed.”
In general: before, “tear it down and that’s it.” Now “let’s try to fix it first, and we’ll have time to demolish it.”

What is unauthorized construction?

Earlier. Any building that was erected without documents of ownership or without a building permit was considered unauthorized. It doesn’t matter whether it’s on your own site or somewhere in a vacant lot: if a house is without permission, a plan and land surveying, it’s an unauthorized construction. And there are special conditions for it in the civil code.

Ekaterina Miroshkina

economist

Or they bought a plot of land with permitted use for residential construction, and built a house there, and then the authorities took it and changed the purpose - now it is a water protection zone. And the house is already illegal.

This could be the case with various restrictions. There was no road, power plant or gas pipeline near the gardening community, and the dachas stood there for years. And then one day - and dachas are no longer allowed to stand here.

It’s the same with commercial real estate: kiosks, pavilions, hangars, garages.

From August 4th. Now only those buildings that were erected without permits and without taking into account restrictions are considered unauthorized, if at the beginning of construction such restrictions already existed, and when the building was discovered, they were still in effect. If there was no gas pipeline or security zone, and then restrictions appeared, then houses, dachas and kiosks cannot be recognized as unauthorized buildings and simply demolished at the expense of the owners.

If the owner could not know about any restrictions regarding construction on his site and built something, then even if such restrictions are later discovered, the construction is not considered unauthorized. It will not be possible to apply the same rules to it as to unauthorized buildings - for example, demolition at the expense of the owner.

Previously, there was no such provision in the civil code at all, and people lost property. It was different: the owners of the plots went to court to recognize the power line pole as an unauthorized construction and remove it from their plot. In general, there were enough problems, but no exact rules of law.

Ownership of unauthorized construction

Unauthorized construction cannot be disposed of at your own discretion. For example, sell, give or lease - there is no right of ownership to it at all. Building a house on your site does not mean becoming its owner. You cannot come to Rosreestr and automatically register ownership of a house or dacha just because it is on your site. Nothing has changed here.

When an unauthorized building can be demolished

Earlier. An unauthorized building was demolished, almost always at the expense of the one who built it. That’s what it was written: subject to demolition. If you built it without documents or permits, demolish your house or legalize it.

From August 4th. Now they have written in more detail about the demolition of unauthorized buildings. By default, such a building cannot be used. This means that a kiosk built without permission cannot be used for trade.

But now the demolition is not so categorical. An unauthorized building may be demolished, or it may be brought into compliance with development requirements. But all this is at the expense of the one who built or uses the site. To demolish or bring into compliance is almost always decided by the court. Sometimes - local authorities.

Now there is a legal basis not to demolish the unauthorized building, but to bring it into compliance with the requirements of the law and the purpose of the site. For example, reduce the number of floors of a house or reconstruct a dacha so that part of it does not extend into another area or is not so close to a gas pipeline.

How to register ownership of an unauthorized building

Both before and now this must be done through the courts. The owner of an unauthorized building becomes the owner of the site where it is located.

You cannot build a house on someone else’s land and recognize your ownership of it in court.

If the land belongs to the parents and the children have built a house there, then only the parents can become the owners of the house. Or you need to divide the plot, get a new address - and only then register the house in the name of the real owners. All this takes a lot of time and money, so it is better to take such nuances into account before starting construction.

Not any unauthorized construction can be legalized, but only one that meets all these requirements.

Such an object can be built on the site. For example, the construction of a residential building must have its own purpose, for a summer house - its own purpose, for a garage or kiosk too. You cannot simply change the purpose of a site. Although sometimes cunning developers buy land in the private sector and begin to build a seven-story apartment building there. It is illegal. An apartment building cannot be built on a plot for individual housing construction.

The building complies with the development parameters. For example, on a plot for individual housing construction, you can build a maximum of three floors. And sometimes they build five and even sell apartments in such houses.

If you buy an apartment in such a building at the construction stage, you may never get it. The neighbors will go to court, and the permission to build an apartment building will be revoked. At best, only those who bought an apartment up to the third floor will move in. Moreover, they will become not the owners of the apartment, but the owners of a share in the house. Then there will be many problems with the sale.

If they offer you such an apartment and say that they will soon legalize the house, they are lying to you. They won’t legalize anything, and if they do manage to do this, the neighbors will challenge it and the construction will be banned. The law on shareholders will not work here.

The construction does not violate anyone's rights and does not interfere with anyone. You cannot build a house and occupy part of a neighbor’s plot, and then go to court to legalize a summer kitchen, veranda or bathhouse - supposedly whoever built it is the owner.

This will not work: you will have to demolish, reconstruct or negotiate with the neighbors.

If it was not built by the owner of the site, you can do without demolition

Now it is possible to legalize unauthorized construction, even if there are no documents on the ownership of the site.

For example, if something was built on municipal or state land, now you can legitimize such a building and become its owner - but only if the building meets all the requirements, and there are no restrictions in the agreement for the use of the site.

If one built it, and another became the owner

Anyone who becomes the owner of an unauthorized building must reimburse the costs of its construction. This condition existed before. For example, if someone built a house on someone else’s land, and then the owner of the land legalized it and took ownership of it, it can be proven that in fact he did not pay for the construction - let him reimburse the expenses.

In this regard, an addition has appeared: expenses must be reimbursed minus the amount spent on legitimizing this building.

When a building can be demolished by decision of local authorities

In general, unauthorized buildings can be demolished by court decision. But there are exceptions when the administration decides. This point has changed and become more detailed.

For example, an administration decision is sufficient if:

Before construction began, it was necessary to register ownership of the site, but this was not done.
The building is located on a site where such real estate cannot be built.

There are cases when the administration decides whether to demolish a building or bring it into compliance with the requirements and legalize it. If you have such a situation and have a dispute with the authorities, it is better to look for a lawyer and do nothing. The law has complex formulations that cannot be understood without an expert, but officials can take advantage of this and follow their line.

Timing: if the building is decided to be demolished or remodeled

It happens that demolition is indispensable, and the administration decides to demolish it. The one who built it must demolish it, or they will do everything for him and then issue a bill. The deadline for demolition will be set taking into account the type of construction, but this will be a maximum of a year.

If the site is owned, can the authorities force the building to be demolished?

No, and this is a very important amendment. No administration can come to your site and force you to demolish your house, garage, bathhouse or dacha. Without a trial, you can decide to demolish buildings only on municipal and state plots, but not on your personal ones.

There is only one exception: the construction threatens the life and health of people. If your cottage does not harm anyone, it can only be demolished by a court decision. And the court will still see whether it needs to be demolished, or you can reach an agreement with the neighbors, or rebuild it.

If the court refuses to demolish it, the authorities have no right to insist, or even worse, demolish the building anyway and charge the costs. The same situation applies to objects for which ownership has already been registered. There can be no decisions by the administration about demolition. Now the civil code explicitly states this.

And here are some more special conditions when the administration does not have the right to demolish someone else’s property without a court decision:

There are no documents for the land plot if the building appeared on it even before the land code came into force.
There is no construction permit for a building that was built before May 14, 1998.

When the decision to demolish cannot be made at all

Sometimes the ownership of a building is registered, but it is still recognized as unauthorized. For example, if it turns out that some requirements for distance from security zones, forests, gas pipelines, roads or power grids have not been met.

Now it is impossible to demolish such a building if the following conditions match:

The plot is intended for individual housing construction or is it a garden plot of land. That is, it is allowed to build private residential buildings there.
The owner of the plot has documents for it.
Ownership of a residential building was registered before September 1, 2018.
The building parameters do not violate anything.

If such a house was not only registered, but also purchased before September 1, 2018, it will not be demolished.

When can a plot be seized?

If the plot is owned, it can still be taken away.

Earlier. They could only seize the plot where something needed to be grown, but it was abandoned. For example, someone bought agricultural land to open a farm and plant a garden there, and then stopped caring for it. Or the land was given for one purpose, but it is used in some other way.

From August 4th. Now these conditions have been added to the threat to the environment and the construction of unauthorized buildings. But the fact of illegal construction alone is not enough for seizure. The plot will be taken away if the building is ordered to be demolished or rebuilt, and the owner of the plot ignores the requirements.

Are these all changes regarding unauthorized buildings and houses?

No, this is only what was introduced into the civil code by a separate law. But there is also a town planning code, and it was also amended on the same day - by three federal laws at once. There is more information about the demolition procedure, the powers of the authorities and the layout of the territories.

What is considered unauthorized construction? How can I force my neighbor to tear it down?

If you believe that such a building violates your rights, legitimate interests or poses a threat to health, then you have the right to demand its demolition at the expense of your neighbor.

First, try to resolve this issue peacefully, perhaps your neighbor will accommodate you. It would not be amiss to remind the violator that, in accordance with the Code of Administrative Offenses (Article 9.5), a fine of 2 to 5 thousand rubles is provided for illegal construction. If not, then the law provides you with several ways to protect your rights.

Article 9.5. Code of Administrative Offenses of the Russian Federation

Code of Administrative Offenses of the Russian Federation, Article 9.5. Violation of the established procedure for the construction, reconstruction, overhaul of a capital construction project, its commissioning (as amended by Federal Law No. 232-FZ of December 18, 2006)

1. Construction, reconstruction of capital construction projects without a construction permit, if construction or reconstruction of capital construction projects requires obtaining construction permits, shall 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; for persons carrying out entrepreneurial activities without forming a legal entity - from twenty thousand to fifty thousand rubles or administrative suspension of their activities for a period of up to ninety days; for legal entities - from five hundred thousand to one million rubles or administrative suspension of their activities for a period of up to ninety days. (as amended by Federal Law dated June 22, 2007 N 116-FZ)

2. Violation of the deadlines for sending to the federal executive body authorized to carry out state construction supervision, the executive body of a constituent entity of the Russian Federation a notice of the start of construction, reconstruction of capital construction projects or failure to notify the federal executive body authorized to carry out state construction supervision, the executive authority of a constituent entity of the Russian Federation about the timing of completion of work that is subject to inspection - entails the imposition of an administrative fine on citizens in the amount of five hundred to one thousand rubles; for officials - from ten thousand to thirty thousand rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from ten thousand to forty thousand rubles; for legal entities - from one hundred thousand to three hundred thousand rubles. (as amended by Federal Law dated June 22, 2007 N 116-FZ)

3. Continuation of work until reports are drawn up on the elimination of deficiencies identified by those authorized to carry out state construction supervision by the federal executive body, executive bodies of the constituent entities of the Russian Federation in the construction, reconstruction, and major repairs of capital construction projects - entails the imposition of an administrative fine on citizens in the amount of two thousand to five thousand rubles; for officials - from ten thousand to thirty thousand rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from ten thousand to forty thousand rubles or administrative suspension of their activities for a period of up to ninety days; for legal entities - from fifty thousand to one hundred thousand rubles or administrative suspension of their activities for a period of up to ninety days. (as amended by Federal Law dated June 22, 2007 N 116-FZ)

4. Issuance of a permit to put an object into operation in the absence of conclusions of the federal executive body authorized to carry out state construction supervision, or the executive body of a constituent entity of the Russian Federation in the event that during the construction or reconstruction of a capital construction project, the legislation of the Russian Federation on urban planning activities provides for the implementation of state construction supervision, - entails the imposition of an administrative fine on officials in the amount of twenty thousand to fifty thousand rubles. (as amended by Federal Law dated June 22, 2007 N 116-FZ)

5. Operation of a capital construction project without permission to put it into operation, with the exception of cases where the construction, reconstruction, and major repairs of capital construction projects do not require the issuance of a construction permit, 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 dated June 22, 2007 N 116-FZ)

Contacting local authorities

Article 222 of the Civil Code of the Russian Federation provides that local government bodies have the right to decide on the demolition of an unauthorized building in the event of:

creating or erecting it on a plot of land that was not allocated for these purposes at all,
if this land plot is located in an area with special conditions for the use of territories or on public territory or in the right of way of utility networks of local, regional or even federal significance.

If in your case there was a similar violation, then without any trial you can achieve demolition.

Article 222 of the Civil Code of the Russian Federation

Article 222. Unauthorized construction

1. An unauthorized construction is a building, structure or other structure erected, created on a land plot that was not provided in the prescribed manner, or on a land plot, the permitted use of which does not allow the construction of a given object on it, or erected, created without obtaining the necessary permits or in violation of town planning and construction norms and rules. (Clause 1 as amended by Federal Law dated July 13, 2015 N 258-FZ)

2. A person who has carried out an unauthorized construction does not acquire ownership rights to it. It does not have the right to dispose of the construction - 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 paragraphs 3 and 4 of this article. (as amended by Federal Law dated July 13, 2015 N 258-FZ)

3. The right of ownership of an unauthorized structure may be recognized by a court, and in cases provided for by law, in another manner established by law, for the person in whose ownership, lifelong inheritable possession, permanent (indefinite) use is the land plot on which the structure was created, while simultaneously meeting the following conditions :

if in relation to the land plot the person who carried out the construction has rights allowing the construction of this object on it;
if on the day of going to court the building complies with the parameters established by the territory planning documentation, land use and development rules or mandatory requirements for building parameters contained in other documents;
if the preservation of the building does not violate the rights and legally protected interests of other persons and does not create a threat to the life and health of citizens.

In this case, the person whose ownership of the building has been recognized shall reimburse the person who carried it out for the costs of construction in the amount determined by the court. (clause 3 as amended by Federal Law dated July 13, 2015 N 258-FZ)

4. Local government bodies of a city district (municipal district if an unauthorized building is located on an intersettlement territory) have the right to make a decision on the demolition of an unauthorized building if it is created or erected on a land plot that is not provided in the prescribed manner for these purposes, if this land plot is located in a zone with special conditions for the use of territories (with the exception of the zone for the protection of cultural heritage sites (historical and cultural monuments) of the peoples of the Russian Federation) or on public territory or in the right of way of utility networks of federal, regional or local significance.

Within seven days from the date of the decision to demolish the unauthorized structure, the local government body that made such a decision sends to the person who carried out the unauthorized construction a copy of this decision containing the deadline for the demolition of the unauthorized structure, which is established taking into account the nature of the unauthorized construction, but cannot be more than 12 months.

If the person who carried out the unauthorized construction has not been identified, the local government body that made the decision to demolish the unauthorized construction is obliged, within seven days from the date of such decision:

ensure publication in the manner established by the charter of the city district (municipal area if the unauthorized building is located on an intersettlement territory) for the official publication (promulgation) of municipal legal acts, a message about the planned demolition of the unauthorized building;
ensure that a message about the planned demolition of an unauthorized building is posted on the official website of the authorized local government body on the Internet information and telecommunications network;
ensure that notices about the planned demolition of the unauthorized structure are posted on the information board within the boundaries of the land plot on which the unauthorized building has been created.

If the person who carried out the unauthorized construction has not been identified, the demolition of the unauthorized construction can be organized by the body that made the relevant decision no earlier than two months after the date of posting on the official website of the authorized local government body on the Internet information and telecommunications network " reports of the planned demolition of such a building.

Going to court

If the pre-trial procedure for resolving the dispute is not successful, then you can go to court. To do this, you need to draw up a claim, attach to it all the documents provided for in Articles 131-132 of the Code of Civil Procedure, evidence of compliance with pre-trial procedure (letters, notes, etc.). You must also provide evidence that the illegal construction violates your rights, legitimate interests or harms your health. For example, if the building limits access to sunlight to the site, you can attach photographs. If plants are damaged as a result, then an expert opinion may be needed to confirm the cause-and-effect relationship. Then you can demand financial compensation. If the building causes damage and destroys, for example, the wall of your site, provide a conclusion from the Landslide Prevention Service. Without evidence that your rights have been violated, the court will deny your claim, even if the construction is illegal.

Articles 131 and 132 of the Civil Procedure Code of the Russian Federation

Article 131. Form and content of the statement of claim

1. The statement of claim is submitted to the court in writing.

2. The statement of claim must indicate:

name of the court to which the application is filed;
the name of the plaintiff, his place of residence or, if the plaintiff is an organization, its location, as well as the name of the representative and his address, if the application is submitted by a representative;
the name of the defendant, his place of residence or, if the defendant is an organization, its location;
what is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his demands;
the circumstances on which the plaintiff bases his claims and evidence supporting these circumstances;
the price of the claim, if it is subject to assessment, as well as the calculation of the collected or disputed amounts of money;
information about compliance with the pre-trial procedure for contacting the defendant, if this is established by federal law or provided for by the agreement of the parties;
list of documents attached to the application.

The application may indicate telephone numbers, fax numbers, email addresses of the plaintiff, his representative, the defendant, other information relevant to the consideration and resolution of the case, as well as the plaintiff’s requests.

3. The statement of claim brought by the prosecutor in defense of the interests of the Russian Federation, constituent entities of the Russian Federation, municipalities or in defense of the rights, freedoms and legitimate interests of an indefinite number of persons must indicate what exactly their interests are, what right is violated, and must also contain reference to a law or other regulatory legal act that provides ways to protect these interests.

If the prosecutor appeals to protect the legitimate interests of a citizen, the application must contain a justification for the impossibility of bringing a claim by the citizen himself or an indication of the citizen’s appeal to the prosecutor. (as amended by Federal Law dated April 5, 2009 N 43-FZ)

4. The statement of claim is signed by the plaintiff or his representative if he has the authority to sign the statement and present it to the court.

Article 132. Documents attached to the statement of claim

The following are attached to the statement of claim:

its copies in accordance with the number of defendants and third parties;
a document confirming payment of the state duty;
power of attorney or other document certifying the authority of the plaintiff’s representative;
documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for defendants and third parties, if they do not have copies;
the paragraph became invalid on September 15, 2015. - Federal Law dated 03/08/2015 N 23-FZ;
evidence confirming the implementation of the mandatory pre-trial dispute resolution procedure, if such a procedure is provided for by federal law or agreement;
calculation of the recovered or disputed amount of money, signed by the plaintiff, his representative, with copies in accordance with the number of defendants and third parties.

When filing a claim, you must refer to Article 206 of the Code of Civil Procedure, according to which the court may oblige the defendant to perform certain actions. According to the law, the demolition of an illegal building must be carried out at the expense of the defendant.

Appeal to the prosecutor

The prosecutor has the right to file a claim in court for the demolition of an unauthorized building in order to protect public interests. According to the Federal Law of January 17, 1992 N 2202-1 “On the Prosecutor’s Office of the Russian Federation”, in case of violation of the rights and freedoms of man and citizen protected in civil proceedings, when the rights and freedoms of a significant number of citizens are violated or the violation has acquired special public significance, the prosecutor presents and supports claims in the courts in the interests of victims.

It follows from this that if not only you, but also other neighbors suffered from unauthorized construction, then you can file a collective complaint with the prosecutor. Based on the results of the inspection, if violations of your rights are identified, the prosecutor will initiate a case to protect public interests.

Legislative package to regulate situations with unauthorized construction

The state has struggled and is struggling with the problem of unauthorized construction, be it a shopping pavilion, an unauthorized building on agricultural land, or a house on plots of individual housing construction and private household plots in populated areas, and even worse, if this house on such a plot for some “miraculous” reason turned out to be multi-apartment. administrative and judicial means.

Developers who have not eliminated urban planning violations are obligated to demolish the erected buildings independently and at their own expense, and due to their negligence, administrations previously had to solve this problem, so to speak, “without ceremony,” but, as is clear, with the imposition of financial costs and administrative responsibility on “ construction freethinkers."

At the state level, regulation of issues related to the elimination of unauthorized construction of all scales occurs constantly, as well as regulation of issues related to illegal development of sites, including sites intended for the construction of private residential buildings, with the practiced illegal construction of multi-apartment residential buildings on land not intended for this purpose earth.

At the present time, an example of such regulation can be a legislative package that provides for amendments to the Civil, Urban Planning, Land Code, the Code of the Russian Federation on Administrative Offenses and other legislative acts:

signed by the President of the Russian Federation, the draft federal law “On Amendments to the Civil Code of the Russian Federation (in terms of clarifying the provisions on unauthorized buildings)” - draft Federal Law No. 301924-7, regulating the rules for the demolition of unauthorized buildings and defining measures to protect bona fide owners of buildings, which became the basis for the Federal Law “On amendments to part one of the Civil Code of the Russian Federation and Article 22 of the Federal Law “On the entry into force of part one of the Civil Code of the Russian Federation” No. 339-FZ of August 3, 2018.
The draft Federal Law “On amendments to the Town Planning Code of the Russian Federation and certain legislative acts of the Russian Federation (in terms of simplifying the construction of individual housing construction projects, improving the mechanism of state construction supervision and demolition of capital construction projects)” was adopted in the 1st reading in the State Duma. Federal Law No. 302153-7, establishing the procedure for supervision of the construction of individual residential and garden houses, demolition of houses and seizure of plots,
the draft Federal Law adopted in the 1st reading in the State Duma “On Amendments to the Code of the Russian Federation on Administrative Offenses (in terms of improving the mechanism for suppressing unauthorized construction) - draft Federal Law No. 301854-7, establishing liability for those cases where unauthorized construction or reconstruction led to violation of urban planning regulations.

New rules for the demolition of unauthorized buildings

The period for legalizing a building is from 6 months to 3 years (depending on the specifics of the object).

During this entire period, it is impossible to use and dispose of either the building or the land plot - it will be impossible not only to exploit the building, but also to sell, donate, lease, and no transactions can be carried out with the land plot.

Upon completion of registration of the building in accordance with the requirements of the law, it must be registered with the State Property Committee and the ownership of it must be registered. After this, of course, the rights to use and dispose of both the former self-built building, transformed into a legally legal structure, and the land plot, the construction on which has become legitimate, appear.

9. Measures to protect bona fide owners during the demolition of unauthorized buildings

In cases where a building, structure or other structure with already registered ownership rights was acquired, but subsequently the structure was recognized as an unauthorized construction and a decision was made to demolish it or bring it into compliance with established requirements, the owners have the right to compensation for losses from the treasury of the Russian Federation .

This is a one-time compensation that covers:

loss of ownership of a building, structure, other structure,
expenses for demolition (bringing into compliance) to persons or bodies at whose expense the unauthorized building was demolished or brought into compliance with established requirements.

About the amount of compensation for losses

In cases where the owner carries out a decision on demolition or in the event of bringing a building recognized as unauthorized with a previously registered right of ownership into compliance with established requirements, the calculation of the amount of losses compensated from the state treasury may include:

market value - upon demolition of an unauthorized building,
the difference between the original market value of the building and its market value after bringing it into compliance with established requirements,
losses arising in connection with the impossibility of the owners of unauthorized buildings to fulfill their obligations to third parties, including those based on agreements concluded with such persons,
lost profit.

Responsibility for unauthorized construction

Unauthorized construction, in addition to demolition or elimination of non-compliance with established requirements, is fraught with the imposition of administrative fines on the owners of unauthorized construction.

Currently, administrative liability is established only for construction and reconstruction carried out without a building permit. This situation will change in the near future and not for the better for owners of unauthorized buildings, since the State Duma is considering and has already approved in the first reading draft Federal Law No. 301854 “On amendments to the Code of the Russian Federation on Administrative Offenses (in terms of improving the mechanism for suppressing unauthorized construction )".

According to this forthcoming law, administrative liability will extend to a larger number of cases related to various features of unauthorized construction. Let's list them.

Unauthorized construction or reconstruction led to a violation of the maximum parameters of the property established by land use and development rules, or territory planning documentation, or federal laws. For this case, fines are established in the amount of:
1. for citizens - in the amount of 2 to 5 thousand rubles
2. officials - from 20 to 50 thousand rubles
3. entrepreneurs without forming a legal entity - from 20 to 50 thousand rubles or administrative suspension of their activities for up to 90 days
4. for legal entities - from 500 thousand to 1 million rubles or administrative suspension of their activities for up to 90 days.
Operation of unauthorized construction. If the unauthorized building is located on the site:
1. provided for rent,
2. acquired as a result of a public auction with an obligation to demolish it or bring it into compliance with established requirements, then the amount of fines for the operation of the building will be similar to those determined for the case of violation of the established limit parameters of the construction site.
For failure to comply with a decision to demolish an unauthorized building or to bring it into compliance with the requirements. Sanctions involve the imposition of a fine in the following amounts:
1. for citizens - from 20 to 50 thousand rubles. or compulsory work for up to 50 hours
2. for entrepreneurs without forming a legal entity and officials - from 20 to 50 thousand rubles.
3. for legal entities - from 100 to 300 thousand rubles.
For the construction, reconstruction of capital construction projects that lead to violation of the maximum parameters of permitted construction, reconstruction established by the PZZ, territory planning documentation, or the parameters of capital construction projects established by federal laws. In this situation, the fine may be:
1. for citizens - from 2 to 5 thousand rubles.
2. for officials and individual entrepreneurs - from 20 to 50 thousand rubles.
3. for organizations - from 500 thousand to 1 million rubles. with an alternative to a fine in the form of administrative suspension of the activities of an entrepreneur or legal entity for up to 90 days.

In conclusion of all of the above, it is necessary to once again emphasize that the main goal of the introduced legislative initiatives is to suppress the most common violations in the field of urban planning activities and achieve a favorable impact on the development of the construction industry without establishing additional administrative barriers, protecting the rights and legitimate interests of bona fide developers and purchasers of real estate. .

Helpful information

Why the “forest amnesty” is interesting for land owners - read
You can familiarize yourself with the characteristics of capital and non-capital (temporary) objects.
The calculation of taxes on real estate according to the new rules for 2019 can be found.
You can familiarize yourself with the dangers of improper use of land plots.
Simplified procedure for the construction/reconstruction of residential buildings - 2018 - you can familiarize yourself with it.

Before you build anything, you need to clear the area of everything unnecessary. Often this “unnecessary” becomes an old house or capital outbuildings. And getting rid of them is not as easy as getting rid of excess wood or a pile of construction waste. How to demolish an old private house on your site, what is needed for this and what points should you pay special attention to? All this is in our article.

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Preparing for house demolition

Of course, breaking is not building. But in order to properly demolish any structure, good preparation is also needed. There are legal and technical tricks here.

What is needed when demolishing a country or country house?

Inspect the structure, assess its strength, accident rate, the possibility of recycling building materials, take measurements to the nearest buildings that cannot be demolished and should not be damaged.
Choose a dismantling method (ideally, develop a detailed demolition project).
Coordinate with utility services the shutdown of gas, electricity, water supply and sewerage. Otherwise, accidents may occur on communications, and the property owner will suffer additional losses because of them.
Obtain the necessary permits.

Many people are concerned about whether permission is needed to demolish a private house. Some owners do without permitting papers - they simply demolish an unnecessary building, and then call employees of the technical inventory authority, who draw up a demolition report. Next, you should contact the local office of the Federal Registration Service to record the fact that the house has ceased to exist (remove the building from the cadastral register). Here, in addition to the application, they also provide a technical passport of the old house, an act of its commissioning and an act that it has already been demolished.

But this “simple” method can only work when there are no complicating circumstances. That is, the person who wants to demolish the house is its sole owner and the owner of the site, the house is not connected to general communications, and when it is dismantled, the neighbors' sites and buildings will not be affected. And it is not always possible to register demolition after the fact without problems.

To demolish a building legally, you need to do the opposite. This method is more complicated, but more reliable: first, documents are submitted to obtain a demolition permit, and then dismantling is carried out. You should contact local architectural bureaus (in the city) or self-government bodies (in the village) with questions. Here you will also need a number of papers; the main ones are documents confirming ownership of the house and land. In addition, you need to provide a project for the demolition of the building.

Whatever path you choose, the dismantling of the house must be registered and legalized. If this is not done, taxes will continue to be assessed on the demolished structure. And the worst thing is that it will not be possible to build a new house on the site - you simply will not be given a building permit while the old building “exists” in the documents.

Demolition methods: break or disassemble?

There are three main ways to dismantle unnecessary buildings:

Manual disassembly.
Demolition using special equipment.
Explosive method.

The latter option is not used in private construction, so you will have to choose between “manual” and mechanized demolition. What's better? Of course, disassembling a house takes a long time and requires a lot of manual work. But you will be able to save some of the building materials and not damage the surrounding property.

You can demolish an old building with a bulldozer quite quickly. True, all materials will turn into a pile of construction waste. In addition, you have to pay for renting special equipment. But the price will not be the determining factor here, since handmade work is even more expensive, and disassembling even a small house alone is almost impossible. At a minimum, you will have to hire help.

Before choosing a dismantling method, you need to answer the following questions:

What is the condition of the house? Is it safe to disassemble it by hand or is it better to just break it with a bulldozer?
Are you going to reuse (sell) building materials from the old building?
What is the house made of? Dismantling methods are closely related to the material of the walls and foundation.
How close are other buildings, neighbors' properties, trees, etc.? Sometimes you have to dismantle old houses by hand to avoid damaging the surrounding property.
Do you have enough time and assistants to dismantle the structure yourself, or is it easier to hire special equipment and a team of workers?

Often, after evaluating all the pros and cons, owners (or contractors) combine both methods. For example, windows, doors and roofing are dismantled by hand, and walls and foundations are broken.

Mechanized demolition

The building can simply be broken down and broken into small parts using special equipment. The resulting debris is then taken to a construction waste landfill. This is the fastest, easiest and cheapest way to get rid of an unnecessary building.

As a rule, for such scrapping you need a truck crane with a heavy steel blank suspended from the boom. If the building has a reinforced concrete frame with strong reinforcement, you will also need a cutting torch. It is used to cut steel elements that cannot be destroyed by a blank. Concrete bases of columns, foundations, and basement walls are broken with a pneumatic jackhammer. It is also attached to the crane boom.

In addition, bulldozers and excavators are used to demolish buildings. You cannot do without special trucks for removing construction waste. With the help of such special equipment, you can demolish buildings made of any materials - from completely dilapidated boards and logs to durable monolithic reinforced concrete and brickwork.

Of course, this method of demolishing buildings cannot be used independently. After all, you will need a whole fleet of special equipment and professionals who know how to work with it. Therefore, all the owner of the site needs to do is agree on a demolition service with specialists. Good professionals know all the rules for demolishing a private house, have sufficient experience, and know how to organize the work safely and efficiently. Depending on the size and strength of the building, everything will be done in a day or two.

How to disassemble an old house manually: step-by-step instructions

This method, unlike the previous one, can be used independently. Although here everything depends on the complexity of the work. Don't forget that demolishing a house is not so much a difficult task as it is a dangerous one. And saving on professional services here can result not only in wasted time, but also in more serious consequences. Therefore, when dismantling a house with your own hands, you should work as carefully and carefully as possible, and at the first sign of danger, delegate this task to specialists.

House dismantling is carried out in several stages. We will describe an option that allows you to save building materials as much as possible:

Disabling communications. To avoid breakdowns and accidents, the first step is to disconnect the house from electricity and gas. Do not attempt to use the power supply of the building being dismantled for dismantling work.
Dismantling of finishing. Remove finishing materials from interior and exterior walls - siding, plastic and wood panels. Try to carefully unscrew the screws and pull out the nails that hold the sheathing in place. This way the boards and panels will remain undamaged. Immediately place wooden materials in a dry room for storage.
Removal of external communication elements. When dismantling the trim, cut off external pipes and remove telephone and electrical cables.
Dismantling thermal insulation. If there is a layer of insulation under the sheathing, remove it. As a rule, in old houses glass wool is used for this purpose, and it must be disassembled very carefully. First, wear protective clothing. Secondly, constantly moisten the insulation before handling it. Immediately place the removed pieces of glass wool on a trailer or in bags to prevent them from spilling around the area.
Removal of doors and windows. Remove the glass frames. Boxes are more difficult to dismantle, especially if you want to preserve them. Otherwise, each box is simply sawed in one place and then knocked out of the opening.
Dismantling the roof. If the roof is slate, pull out the nails and remove the slate sheets. To avoid damaging the material, place a piece of thick, soft rubber under the nail puller. Disassemble the metal tiles; dismantling should begin from the edge where installation was completed. Asphalt shingles simply need to be cut. After removing the roofing material, dismantle the roof sheathing by tearing off the boards with a crowbar. After this, disassemble the rafters.
Dismantling the ceiling. This is one of the most dangerous stages; ideally, it is better to use a crane here. With great care, you can disassemble the structures manually. True, if the floor is reinforced concrete, you will still have to use special equipment to cut the slabs. In any case, first the slabs (backfill, boards) are dismantled, then the auxiliary beams, and finally the load-bearing beams. During work, it is important to take into account the loads created by workers and dismantling equipment: make sure that the ceiling elements can withstand them. Often beams require additional reinforcement during dismantling.
Dismantling the walls. The procedure depends on what material the partitions are made of. The bricks are knocked down one at a time, and then cleaned of large pieces of mortar (a hammer drill will help here). The log house can also be dismantled log by log (before dismantling an old log house, it is necessary to clean the walls of finishing materials). But to dismantle concrete partitions you will need diamond cutting.
Demolition of the foundation. Foundation structures are usually concrete, so they are simply broken down. This is a very labor-intensive job, and it is best to use special equipment, for example, an excavator with a hydraulic hammer. However, small strip foundations can be broken with a jackhammer, hammer drill, sledgehammer, or crowbar. Strong brick foundations are broken in the same way. Steel reinforcement is cut with diamond cutting. If the foundation is slab or recessed with a large width, diamond drilling will be needed. Occasionally, foundations are demolished using explosives, but this method is not suitable in urban or suburban areas.
Removal of construction waste. No matter how carefully you work, some of the building materials will still be irretrievably damaged. Some of them can still be used in the construction of other objects (for example, broken bricks and concrete are suitable as drainage or a cushion for the foundation). But everything unnecessary will have to be removed from the site. Construction waste is removed exclusively to special landfills.

An individual entrepreneur purchased a plot of land. In fact, there were unfinished construction objects on the land plots: unfinished wooden houses. However, the specified objects do not appear either in the contract or in the transfer and acceptance certificate. The contract contains a clause that the site is not burdened with the rights of third parties. No one issued a construction permit; the specified objects (houses) also do not appear in the Unified State Register data. Question: does the new owner of the land plot have the right to demolish the buildings and dispose of the remains?

Answer

Yes, as a general rule, the owner of a site has the right to demolish unauthorized objects located on the site.

However, the procedure for demolition of such objects should be taken into account.

The fact is that such objects can be classified as unauthorized. In turn, demolition of an unauthorized building, as a general rule, is possible only on the basis of a court decision. In the absence of a court decision, the demolition of buildings is carried out only in exceptional cases, for example, from September 1, 2015, such an opportunity became available to the local government of the urban district - see "".

At the same time, the demolition of unauthorized objects and in the absence of a court decision can also be recognized as lawful (these actions can be qualified as self-defense of civil rights - Civil Code of the Russian Federation, Civil Code of the Russian Federation). But still, this entails the risk of presenting claims to the owner of the site from the owner of the object (for example, compensation for losses, compensation for the cost of materials, etc.).

In practice, such disputes do occur. In a number of cases, if the owner of a plot dismantles an object that is used by the owner of the object on the owner’s land plot, in the absence of any legal grounds, the court may conclude that the actions of the plot owner to dismantle and move the object in this case are a way of self-defense of the violated right owner of the land plot, are lawful and did not go beyond the actions necessary to suppress it (see Resolution of the FAS SZO dated 04/14/2014 No., Determination of the Supreme Arbitration Court of the Russian Federation dated 02/17/2014 No., Resolution of the FAS Moscow Region dated 09/21/2004 No., Resolution of the FAS PO dated 01.09.2009 No.).

If the building is owned by a person who did not carry out unauthorized construction, then the defendant in the claim for the demolition of the unauthorized building is the person who would have become the owner if the building had not been unauthorized. “For example, in the case of alienation of an unauthorized building - its acquirer; when making an unauthorized construction as a contribution to the authorized capital - the legal entity that received such property; in the event of the death of an individual or reorganization of a legal entity - the person who received the property into possession.” This is stated in paragraph 24 of resolution No. 10/22.*

How is the limitation period calculated for a claim for demolition of an unauthorized building?

For a claim for the demolition of an unauthorized structure, the statute of limitations is three years. This is the general period for protecting the right in a claim of a person whose right has been violated (Art., Civil Code of the Russian Federation).

It should be taken into account that there are two cases when the statute of limitations does not apply to the requirement to demolish an unauthorized building:

1) unauthorized construction poses a threat to the life and health of citizens (; “Review of judicial practice on some issues of the application by arbitration courts of Article 222 of the Civil Code of the Russian Federation”; hereinafter - letter No. 143);

2. Arbitration court

The state duty is 6 thousand rubles. ().

At the same time, state bodies and local government bodies (regardless of whether they act as defendants or plaintiffs) are exempt from paying the state duty on a claim for the demolition of an unauthorized building.

4. During construction, urban planning and building codes and regulations were violated.

Until September 1, 2015 only significant violations of town planning and building codes and regulations could become the basis for recognizing the construction as unauthorized (). Courts consider significant violations of building codes and regulations to include such irreparable violations that may lead to:

destruction of a building;
causing harm to human life or health;
damage or destruction of property of others.

From September 1, 2015 even a minor violation of the norms is grounds for recognizing the construction as unauthorized and, accordingly, its demolition.

The legislator excluded the word “significant” in the context of violations of urban planning and building codes and regulations. Therefore, from September 1, 2015, buildings erected even with minor violations of these standards are recognized as unauthorized buildings.

The fact of registration of ownership of an unauthorized building does not prevent consideration of the issue of its demolition (). In the reasoning part of the court decision to satisfy such a claim, the court indicates the grounds on which it recognized the property as an unauthorized construction.

Grounds for refusal of a claim for demolition of an unauthorized building

The following grounds for refusal can be identified.

1. Objects built before January 1, 1995, by force of law, cannot be recognized as unauthorized buildings and demolished on the basis Civil Code of the Russian Federation

This legal position is set out in the resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation and.

3. The object is not real estate

Therefore, if the court determines that the disputed object is not real estate, it will refuse the request to demolish the unauthorized building. At the same time, the fact that an object is connected to utilities is not in itself a determining criterion for classifying a disputed object as real estate ().

4. The plaintiff’s legal successor has already exhausted all procedural possibilities for filing a demand for the release of the site from unauthorized construction

The legal successor in a transaction cannot again go to court on a dispute that has already been resolved by the claim of his legal predecessor. This position is set out in.

Thus, the court in one of the cases, referring to this position of the Presidium of the Supreme Arbitration Court of the Russian Federation, refused the plaintiff (legal successor) request to demolish the building. The former owner of the plot, having filed a lawsuit based on articles of the Civil Code of the Russian Federation, has already exercised his right to judicial protection (the case was refused to be transferred to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation for review in cassation proceedings).

The defendant does not comply with the court decision to demolish the unauthorized building. Can the plaintiff demolish the building himself?

Yes, it can (and the plaintiff has the right to recover the costs that he incurs).

To do this, you need to file a motion during the trial asking the court to:

set a specific date when the defendant is obliged to demolish the unauthorized construction (or the period within which this must be done), and
allowed the building to be demolished if the defendant did not comply with this requirement.

If the defendant does not comply with this decision within the prescribed period, the plaintiff will be able to demolish the unauthorized construction and then recover the necessary expenses from the defendant.

This legal position is indicated in.

In Moscow, there has already been a practice of considering claims from authorized bodies for the demolition of an unauthorized building, when the pleading part of the claim, in addition to the requirement to recognize the object as an unauthorized building, immediately contains the following requirements:

oblige the defendant to demolish the unauthorized building within one month after the decision enters into legal force;
in case of failure to comply with the court decision within the prescribed period, grant the plaintiff (or a third party in the claim) the right to demolish the said unauthorized building with the subsequent attribution of costs to the defendant.”

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