All about self-construction: formalize, legitimize, judicial practice

Having a permit issued by an authorized government body is a prerequisite for the construction of any real estate property. But citizens do not always want to spend money and time to obtain the necessary documents. They unauthorizedly install garages, bathhouses and other objects, violating current legal norms. But illegal construction can cause a lot of inconvenience to other residents, impede access to communications or provoke an emergency. Therefore, having identified such a building, you should file a complaint with the regulatory authorities, who will conduct an inspection and punish the offender.

What can you complain about?

Even if the constructed object is located on the territory that belongs to the person who built it (for example, on a personal plot), the construction is considered illegal in the absence of the necessary permits. You should also file a complaint with the authorized agencies if:

• suspicions arose that the building was erected in violation of current rules and regulations (according to SNiPs and SaNPins);
• the stability of other structures located on the territory has been compromised;
• the object is located close to another house or fence;
• fire safety regulations were violated;
• construction was carried out on the boundary;
• communications were disrupted in such a way that there was a threat of flooding of neighboring areas with sewage;
• illegal construction makes it difficult to access common communications used by other residents (this will make it difficult to eliminate the accident), etc.

Where to go

The first thing to do in such a situation is to try to peacefully resolve the issue with the construction initiator. He should explain what consequences the illegal construction may have and inform him of his intention to complain about his actions to the regulatory authorities. If the property owner does not want to make contact or refuses to satisfy the requirements, you should contact:

1. Local government body.
2. Management company.
3. State housing inspection.
4. Rospotrebnadzor.
5. The prosecutor's office.
6. Court.

If we are talking about the threat of an accident or non-compliance with fire safety requirements, it is better to file a complaint with the Prosecutor's Office.

Local government

Unauthorized construction on a land plot is a reason to file a complaint with the local administration. If a bathhouse or outbuilding was erected on the territory of Moscow, the application should be sent to the State Inspectorate for Control over the Use of City Real Estate. It can be done:

• by fax;
• Bring it in person to the address: Lubyansky Proezd, 3/6 bldg. (entrance from Lubyansky Proezd);
• through the Internet reception https://www.mos.ru/feedback/reception/. It is important to correctly indicate the recipient of the claim, otherwise you will have to wait a long time for its consideration;
• by email;
• send by mail: 101000, Moscow, Lubyansky proezd, 3/6 b6.

The document must be drawn up in writing, indicating all the facts and circumstances indicating that the building was erected illegally.

Based on the results of consideration of the complaint, the local government body may decide to demolish the unauthorized structure.

Management Company

If the object was erected on a staircase, in the entrance or courtyard of an apartment building, its residents can complain about the unauthorized construction to their Management Company. Such a statement must be made in writing and submitted to:

• by mail with a notification letter;
• personally bring to the secretary or head of the company;
• via fax.

Information about where and to which official to address the appeal can be found on the website of the Management Company or in the service agreement. Upon acceptance of the application, she is obliged to create a commission to inspect the property. Based on its results, a decision may be made to dismantle or transfer the case to other regulatory authorities.

State Housing Inspectorate

A resident of an apartment building on whose territory an unauthorized building has appeared has the right to directly contact the State Housing Inspectorate of the region. He can do this even if the Management Company refused to consider his application or did not satisfy his request to liquidate the unauthorized construction. If the apartment building is located on the territory of Moscow, you can submit the complaint to:

• by post. The document drawn up in writing must be sent to the address: 129090, Moscow, Mira Ave., 19;
• personally hand over to the Inspectorate employee at the reception, which is held according to the schedule posted on its website. Admission is carried out only if you have a prior appointment and an identity document.
• through the electronic reception at the link https://www.mos.ru/feedback/reception/?department=20197090. In a special field of the form, you should describe the illegal construction and explain what legal norms were violated during its construction.

Rospotrebnadzor

In accordance with the norms of relevant legislation, Rospotrebnadzor is authorized to exercise supervision in the field of sanitary and epidemiological welfare. Therefore, if an object was erected on a land plot, the operation of which is carried out in violation of SanPinov standards (for example, a neighbor built a pigsty, installed a compost or cesspool next to another house, etc.), it is worth contacting Rospotrebnadzor. You can make a complaint:

• send by mail: 127994, Moscow, Vadkovsky lane, 18, building 5 and 7;
• hand over at a personal reception in your territorial unit. You can get up-to-date information about the reception desk’s work schedule on the official website of the Department;
• send online through the form “Accepting Citizens’ Appeals” https://petition.rospotrebnadzor.ru/petition/.

If during the inspection it turns out that sanitary and epidemiological standards are violated during the operation of an illegal building, the authorized officer will draw up an administrative protocol (under Article 6.3 of the Code of Administrative Offenses of the Russian Federation).

Rospotrebnadzor is not authorized to make decisions on the demolition of illegal buildings. But the presence of a protocol on violation of SanPinov is the basis for contacting the Prosecutor’s Office.

Prosecutor's office

Serious problems rarely arise with the dismantling of unauthorized buildings in entrances, stairwells and courtyard areas. The object is demolished after the appropriate decision of the authorized body. But it is not always possible to do without the involvement of the Prosecutor's Office. A complaint to this office is submitted if:

• unauthorized construction caused a serious accident;
• fire safety and sanitary standards were violated;
• the owner of the land plot where the object is located refuses to demolish it, despite the presence of a decision of the authorized body;
• the owner of the site does not allow members of the commission of the controlling agency to check the fact of illegal construction.

In order for the complaint to be considered within the period established by law, it is important to contact your territorial unit, guided by the information https://genproc.gov.ru.

New amendments to the Civil Code for owners of land and summer cottages

Court

If all the authorities to which the applicant applied did not help with solving the problem or he wants to receive material/moral compensation for the damage caused by unauthorized construction, he will have to go to court. But the initiator of legal proceedings can also be the regulatory authority to which complaints about illegal construction were filed (for example, if the owner of the land plot ignores the requirement to demolish the object).

In order for a decision to be made in favor of the plaintiff, he will have to collect a sufficient amount of evidence indicating that the construction was carried out illegally. If he plans to receive monetary compensation, the amount specified in the claim must be fully justified, otherwise the claim will be denied.

You can prepare the claim and all the necessary documents yourself. But it is better to take the help of a lawyer who specializes in such cases.

Responsibility for illegal construction in the Russian Federation

The types of liability vary depending on the specific actions, the consequences and their severity.

The legislation of the Russian Federation provides for the following sanctions:

• administrative – Art. Art. 7.1, 8.1, part 1 and part 2 of Art. 9.4, part 1 art. 9.5 Code of Administrative Offenses of the Russian Federation. The main type of punishment is a fine;
• criminal - provided for in Art. 216 of the Criminal Code of the Russian Federation. If, as a result of construction work, human health was harmed;
• civil law - an illegally erected structure is subject to demolition at the expense of the person who erected it.

For all questions, we recommend that you contact our urban planning lawyers. Specialists will solve your problems both in court and out of court in the shortest possible time.

Complaint about construction without maintaining distance

The owner of a land plot has the right to construct any objects, subject to the availability of permits. But, at the same time, the law establishes the minimum permissible distance to the fence for the placement of certain buildings. So, for example, if the owner wants to build a residential building, then he must retreat at least 3 meters from the border with the adjacent land plot; for outbuildings there is a limit of 1 meter, and for drainage pits and composting toilets - at least 8 meters. Any deviation from established standards or construction on the boundary is a reason to contact the regulatory authorities.

Regardless of where the citizen decides to apply, when drawing up a complaint he must indicate:

• the exact name of the organization and details of the official to whom the document is addressed;
• information about the violator (his address, personal and contact information);
• information about the object (garage, utility room, etc.);
• existing standards that were violated during the construction of an illegal building;
• requirements based on the problem of the appeal (take response measures, conduct an inspection, dismantle, etc.).

The document should be accompanied by materials (for example, photographs, video footage), with the help of which the authorized body will be able to assess the adequacy of the requirements put forward.

Recognition of property rights by the court

When considering claims for recognition of ownership of a self-construction, the court determines whether during its construction there were significant violations of urban planning and building codes and regulations, and whether such a building poses a threat to the life and health of citizens. For this purpose, the court, in the absence of the necessary conclusions of the competent authorities or if there is doubt about their reliability, has the right to order an examination according to the rules of procedural legislation.

The absence of a building permit in itself cannot serve as a basis for refusing a claim for recognition of ownership of a building. At the same time, the court must establish whether the person who created the illegal construction took appropriate measures to legalize it, in particular to obtain a construction permit and/or an act of putting the facility into operation, and whether the authorized body lawfully refused to issue such a permit or act of putting the facility into operation.

Unless otherwise established by law, a claim for recognition of ownership of an unauthorized construction is subject to satisfaction when the court establishes that the only signs of unauthorized construction are the absence of a construction permit and/or the absence of an act of putting the object into operation, to obtain which the person who created the illegal construction undertook measures. In this case, the court must also establish whether the preservation of the structure 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.

Question answer

Question: Do I need a permit if we are talking about a canopy for a permanent garage made of plywood and awning?

Answer: Based on clause 17 of Art. 51 of the Civil Code of the Russian Federation for non-capital construction not related to business activities, a permit is not required.

Question: An outsider (not the owner) has been using the land plot for more than 4 years. Moreover, he built a house and garage on it. What can be done in this case?

Answer: First you should contact the owner of the land plot. Perhaps an outsider is using it legally and has received all the necessary documents for construction. If there are good reasons to believe that the house and garage were built without permission, and the owner refuses to intervene in the conflict, it is worth filing a complaint with the local government.

Question: The owner of the land plot built a bathhouse at a distance of 1 meter from the fence. Most likely, he does not have permits for the construction of the facility. What to do in such a situation?

Answer: The law provides for a minimum distance to the fence of 3 meters. In addition, construction is prohibited on the boundary without the consent of neighbors. Accordingly, erecting a bathhouse near a fence is a direct violation of the current law. First, it is better to directly contact your neighbor with a request to dismantle the bathhouse. If he does not respond to such an appeal, he will have to file a complaint with the local administration or court.

Question: How to stop illegal construction at the initial stage?

Answer: In such a situation, you should submit an application to local government authorities with an application to provide information about the legality of construction. It is possible that all documents were received in the manner prescribed by current legislation. If there are no permits, it is worth going to court to demand the demolition of the object. At the same time, the claim should demand a ban on construction work until a decision is made.

How to register a squatter building as your property?

The ability to legalize (register, legitimize) self-construction is included in clause 3 of Art. 222 of the Civil Code of the Russian Federation. Thus, the right of ownership of an unauthorized construction can be recognized by a court for a person whose ownership, lifelong inheritable possession, permanent (perpetual) use is the land plot on which the object 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 parameters contained in other documents;
• if the preservation of the structure does not violate the rights and interests protected by law of other persons and does not create a threat to the life and health of citizens.

The developer must own the land plot by right of ownership, lifelong inheritable ownership, or permanent (perpetual) use. In judicial practice, positions have been developed where judicial protection of the rights of the tenant of a land plot provided for the construction of a certain facility is possible if he has met other conditions for recognizing the right of ownership of an unauthorized construction (Decision of the Supreme Court of the Russian Federation dated October 20, 2016 in case No. 305-ES16-8051, A40-30372/2013; Ruling of the Supreme Court of the Russian Federation dated April 14, 2015 in case No. 32-KG14-19; Ruling of the Constitutional Court of the Russian Federation dated September 27, 2016 No. 1748-O; Ruling of the Constitutional Court of the Russian Federation dated March 24, 2015 No. 658-O).

Thus, today it is possible to legalize (register) a self-construction ONLY by filing a statement of claim in court. Those. samotroy can only be legitimized through the courts.

Self-construction must comply with the rules of land use and development adopted by the municipal legislative (representative) body.

The legislative framework

To correctly file a complaint, you can be guided by the following legislative acts:

1. Code of the Russian Federation on Administrative Offenses dated December 30, 2001. N 195-FZ (as amended on July 31, 2020).
2. Housing Code of the Russian Federation dated December 19, 2004. N 188-FZ (as amended on July 31, 2020).
3. 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” dated August 3, 2018 No. 339-FZ.
4. Land Code of the Russian Federation dated October 25, 2001. N 136-FZ (as amended on July 31, 2020).
5. Federal Law “On the procedure for considering appeals from citizens of the Russian Federation” dated May 2, 2006. N 59-FZ (as amended on December 27, 2008).