Is it possible to recognize the right of ownership to an unauthorized...

Is it possible to recognize the ownership right to an unauthorized construction for a subject of the law of common shared ownership, if the unauthorized construction is a reconstructed object of the right of common shared ownership?

In court practice, it is not uncommon for one of the "owners of half of a house", in fact, owning a half share in the right of common share ownership, who has completed ("reconstructed") his half of a dwelling house ", goes to court with the claim: 1) on the recognition of the ownership of 1/2 of the residential building, or 2) 1/2 share in the right of common share ownership, or 3) the recognition of the ownership of the extension as unauthorized in the manner of Art. 222 of the Civil Code of the United States. All these requirements are unpromising for the following reasons. Firstly, the requirement to recognize the ownership of 1/2 residential premises can not be satisfied, since the object of the right of individual property may be individually identified property, but not in part its half. Secondly, the requirement to recognize the ownership of 1/2 share in the right of common share ownership can not be satisfied, since the plaintiff is already such an owner. And his household understanding of the share in the law of common shared property as an individual property in the form of a completed half of the house is erroneous. Thirdly, the right of ownership can not be recognized in the order established by Art. 222 of the US Civil Code, as it is not an independent real estate object.

In such circumstances, the plaintiffs must be explained that they need: 1) either to apply jointly with the other participants of the right of common shared property with the requirement to recognize the ownership of the whole residential building as an unauthorized building as a result of the reconstruction, and then (or simultaneously with it) ) to demand in the manner provided for in Clause 3, Art. 245 of the US Civil Code, increasing its share in the right to common property; 2) or carry out the division (allocation) of common property (Article 252 of the Civil Code of the United States), thereby acquiring the right of individual ownership, and then (or simultaneously with it) to require the recognition of ownership of the allocated and completed (reconstructed) premises as a single object in order Art. 222 of the Civil Code of the United States.

However, we note that the second way is not entirely perfect, since, having implemented an extension, one of the co-owners created a new real estate object. Therefore, the whole house, and not only the extension should be considered an unauthorized construction. Unauthorized construction is not an object of civil rights, therefore, can not belong to anyone on the right of ownership, and therefore, the division (separation) is impossible, since its purpose is the emergence of the right of individual property.

Can the right of ownership of an unauthorized construction be recognized by a court for a person who completed the construction on a site that does not belong to him, provided that the given site is provided in accordance with the procedure established by law to this person for erection?

Paragraph 1, paragraph 3 of Art. 222 of the Civil Code of the United States (as amended on 27.07.2006) contained a provision according to which the ownership of an unauthorized structure can be recognized by a court for a person who completed the construction on a land plot that does not belong to him, provided that this section is provided in due course to this face of the erected building. Federal Law No. 93-FZ, dated June 30, 2006, "On Amending Certain Legislative Acts of the United States Concerning the Issue of the Rights of Individuals to Certain Real Estate Objects in Simplified Order" para. 1 p. 3 of Art. 222 of the US Civil Code is recognized as invalid. Federal Law No. 93-FZ of 30.06.2006 entered into force on September 1, 2006. In this connection, the question arose about the operation of para. 1 p. 3 of Art. 222 of the US Civil Code in time.

According to Art. 4 Civil Code acts of civil law are not retroactive and apply to relations that arose after their implementation. The effect of the law extends to the relations that arose before its introduction into force, only in cases when it is expressly provided by law (paragraph 1). To relations that arose before the introduction of the act of civil law, it applies to rights and obligations that arose after its introduction into force (paragraph 2).

Under such circumstances, if the construction was erected before September 1, 2006, and with the demand for recognition of the right of ownership, the developer applied (initiated a dispute) after this date, the grounds for application of para. 1 p. 3 of Art. 222 of the US Civil Code (as amended on 27.07.2006) is not available, since the right to unauthorized construction is recognized, and not confirmed by a court decision. In other words, the ownership of an unauthorized structure can arise only by virtue of a court decision establishing the totality of circumstances specified in Art. 222 of the US Civil Code, but not before going to court. Consequently, we apply paragraph 2 of Art. 4 of the US Civil Code.

Hence, the right to own an unauthorized structure can not be recognized by a court for a person who completed the construction on a site that does not belong to him, even if the plot is provided in accordance with the procedure established by law to the person under the erected building, if the unauthorized construction is erected to September 1, 2006, and with the requirement to recognize the ownership of the developer turned after this date.

The above conclusion is confirmed by the highest courts. In accordance with paragraph 31 of the resolution of the Plenum of the Supreme Court of the United States and the Plenum of the Supreme Arbitration Court of the United States of 29.04.2010 No. 10/22, recognition of ownership of an unauthorized construction is the basis for the emergence of property rights by a court decision. In this regard, when considering a claim for the recognition of ownership of an unauthorized construction, the provisions of Section 3, Art. 222 of the US Civil Code in the version that was in effect at the time of the adoption of the court's decision.

It should also be noted here that the provisions of the previous legislation that had already gone to oblivion, allowing the recognition of the ownership of the building, carried out by a person on a land plot that does not belong to him, can be restored, albeit with significant changes. Thus, in the Concept of the Development of Civil Legislation of the United States, it is proposed to liberalize the legal regime of unauthorized construction (Article 222 of the Civil Code of the United States), for the erection of which the necessary administrative permits were not drawn up, including through the fault of authorized bodies, if it was erected on a land plot located in state or municipal ownership and allocated for construction in accordance with the established procedure. The demolition of such a structure, according to the authors of the Concept, is only useful if its preservation violates the rights or legally protected interests of other persons or creates a threat to the life and health of citizens or when the construction is erected on a land plot whose construction is prohibited by law. In addition, it is proposed to expand the possibilities for recognizing the property rights of the developer for an unauthorized construction built on a land plot that does not belong to it. In particular, the Concept allows the recognition of the property rights of the developer for unauthorized construction, subject to payment of compensation to the owner of the land plot and compliance with the construction of town-planning and building codes and regulations.

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