Who is the proper plaintiff in the case of the demolition of unauthorized construction? - Civil-law ways to protect property rights to real estate

Who is the proper plaintiff in the case of the demolition of unauthorized construction?

The figure of the proper plaintiff depends on the basis of the recognition of the building unauthorized. If the building is erected on a land plot not allocated for these purposes in accordance with the procedure established by law and other legal acts, the proper plaintiff will be the owner of the land plot or the person owning it on the right of lifetime inheritable possession, permanent (unlimited) use, and also another person , whose right is violated by the existence of the structure. It is necessary to pay attention to the fact that the circle of proper plaintiffs here does not coincide with the circle of persons for whom the right of ownership can be recognized (para 2 of clause 3 of Article 222 of the Civil Code of the Russian Federation). The proper plaintiff in this case may be, for example, a tenant of a site occupied by unauthorized construction, the owner of an easement.

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If the building is erected by a person on the land plot belonging to it, but without obtaining necessary permits or with a significant violation of town-planning and building codes and norms, the court usually considers the court as the controlling and supervisory bodies and organizations. First of all in the field of construction. For example, local administrations. This approach must be recognized as true. Yes, with a superficial glance at the problem, it may seem that they will not be proper plaintiffs, as their civil rights and obligations are not violated. However, it should be borne in mind that an unauthorized construction is not in the narrow sense an object of civil rights. In addition, one of the conditions for recognizing her unauthorized may be a violation of the public order of creation. All this in aggregate testifies to the large share of the public element in relations with regard to unauthorized construction. Consequently, the practice of courts that regard public education as a proper respondent is correct. In particular, in the Reference on the practice of courts of the Kaliningrad region on civil cases of disputes over unauthorized construction, reconstruction and redevelopment of living quarters prepared by the judicial collegium for civil cases of the Kaliningrad Regional Court, it is correctly stated that the bodies of local self-government can also demand demolition municipalities, it is in their competence includes the issues of planning and development of the territories of the municipality; possession, use and disposal of municipal property; issuance of construction permits; provision of land for construction and reconstruction (Article 8 of the US GRK, Articles 11, 28-30, 32 of the RF LC). In this regard, the requirements of the local government can be motivated only by public interest: violation of town planning and other norms, the threat to life and health of citizens, distortion of the architectural ensemble, etc., and this is enough to recognize such person as an appropriate plaintiff.

Persons whose rights and legitimate interests are violated by the preservation of unauthorized construction, for example, the owners of neighboring land plots, buildings, structures, if the violations committed during construction threaten damage (destruction) of their property (for example, if fire regulations are not observed ), create obstacles to the use of the thing or otherwise violate their rights (in particular, the unauthorized construction is erected at an intolerably close distance from the border of the neighbor's site, which is limited he is in possession of that part of the plot that he could use if the construction was erected on the distance set by SNiP). Similarly, the practice of courts of general jurisdiction. For example, in the Certificate on the practice of courts of the Kaliningrad region on civil cases of disputes over unauthorized construction, reconstruction and redevelopment of living quarters prepared by the Judicial Collegium for Civil Cases of the Kaliningrad Regional Court, it was noted that the rightful claimants for claims for the demolition of unauthorized buildings are also persons, rights and whose protected legitimate interests are violated by the conduct of unauthorized construction. The said persons, as well as the owners and owners of the land plots on which the buildings are unauthorized, may be subjects of a negator claim, which follows from the requirements of Art. 304 of the Civil Code of the United States. Thus, the Leningrad District Court correctly accepted the claim of G., who appealed to the court with the requirements for SL I. about the demolition of the unauthorized construction - an extension to the neighboring apartment building, citing the fact that the annexe was built in such a way, that visibility from the plaintiffs 'windows is limited, as well as violations of the insolation rules of the plaintiffs' apartment.

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The higher courts share this approach. So, according to clause 22 of the decision of the Plenum of the Supreme Court of the USA, Plenum of the Supreme Arbitration Court of the USA from 29.04.2010 No. 10/22 the owner of the land plot, the subject of other proprietary right to the land plot, its legal owner or the person whose rights and legitimate interests violate the preservation unauthorized construction, has the right to apply to the court on the general rules of jurisdiction of cases with the claim for demolition of unauthorized construction (para 2). With a claim for the demolition of unauthorized construction in public interests, the prosecutor, as well as the authorized bodies, are entitled to apply in accordance with the federal law (para 3).

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