The Supreme Court of the Russian Federation has given clarifications on the issues of unauthorized construction

In the aforementioned review, the RF Armed Forces gave clarifications on the issues of procedural and substantive law using examples of specific cases, determined a uniform approach to controversial situations arising in the course of the application by courts of legislation regulating legal relations in this area.

In particular, the Supreme Court of the Russian Federation clarified that when determining jurisdiction in cases related to unauthorized construction, it is necessary to take into account the subject composition of the parties to the dispute and the nature of legal relations in their entirety.

Guided by the provisions of Article 22 of the Civil Code of the Russian Federation, 27 A of the Russian Federation, it should be borne in mind that the specifics of the real estate object cannot influence the choice of the court considering the dispute. Thus, the fact that the subject of the claim is non-residential premises, including those that can be used for entrepreneurial activity, does not determine the jurisdiction of the dispute, and cannot serve as an automatic basis for referring the case to the competence of the arbitration court. In order to resolve the issue of choosing a court considering a dispute of this category, the status of the defendant, who can be a business entity or an individual, and the proof of the fact of the defendant’s entrepreneurial activity using the object of unauthorized construction, matters. Only by assessing the above factors as a whole, it is possible to correctly establish the jurisdiction of the dispute in question.

In this review, the Supreme Court of the Russian Federation indicated the possibility of imposing a ban on construction work as a measure to secure a claim for the demolition of an unauthorized building, both against the defendant and other persons actually carrying out construction work at the disputed object. The expediency of applying such a measure to secure claims is confirmed by judicial practice, in which there are often cases when, despite the ban on the execution of construction work adopted against the defendant, construction is carried out by third parties, which reduces the efficiency and effectiveness of the measures taken.

With regard to the application of acquisitive prescription, the court clarified that it cannot apply to an unauthorizedly erected structure located on an unlawfully occupied land plot, since in such a situation there is no such necessary condition as the conscientiousness of the developer, who had to realize that he had no grounds for the emergence of ownership …

Citing possible grounds for the demolition of an unauthorized building, the Supreme Court of the Russian Federation in this review highlighted such circumstances as significant and irreparable violations of town planning norms and building rules during the construction of an unauthorized building. At the same time, it was noted that the courts need to apply the rules and regulations in the wording that were in force during the construction of the unauthorized building.

The construction of new buildings in the presence of encumbrances of property rights in the form of prohibition of new construction is the basis for recognizing the building as unauthorized and its demolition.

The Supreme Court of the Russian Federation explained that the legislation does not provide for the possibility of recognizing the ownership of a part of an unauthorized building. When considering disputes related to the recognition of ownership of an unauthorized building, in addition to evidence of ownership of the land plot by the plaintiff, the court should also verify compliance with its intended purpose. In the event of an unauthorized addition to the original property of additional premises, the owner’s right can be protected by recognizing this right as a whole to the property in the reconstructed form.

This review is of significant practical importance, since it clarified the controversial issues of law enforcement, orienting the courts towards making decisions in a single legal channel.