Whether an unauthorised building can be legalised

Practice in 2017-2018. A CG expert view

What can a finding that a building is unauthorised be compared to? A death sentence: it has to be demolished, it ceases to be an object of commerce, and every transaction in it is void.

A finding that a building is unauthorised can be avoided if the court recognises title. The main conditions for granting such a claim were settled long ago, but court practice still produces nuances in how they are applied,

says Sergei Pivovarchik.

The basics: what is required before title to an unauthorised building is recognised?

A claimant can expect the court to recognise title to an unauthorised building if a number of conditions are met:

• the plot on which the building stands belongs to the claimant by ownership, by permanent perpetual use, or by lease;
• the building matches the construction parameters set out in the territory-planning documents and in the land-use and development rules;
• all safety requirements are met (building codes, fire-safety rules and others), and so are the rights of other persons.

Courts apply these conditions uniformly. If they are not met, the developer has no prospect of success.

There is a further requirement that the statute does not lay down, but that the Plenums of the Supreme Court and of the Supreme Commercial Court have set out in their explanations. The claimant must prove that it took the steps necessary to obtain a building permit or a permit to put the building into operation, or both. The Presidium of the Supreme Commercial Court made clear that title to an unauthorised building is not recognised if the developer never applied for a building permit. There is no point imitating those steps by filing an application without a complete set of documents.

Whether the steps taken to obtain the permits were sufficient is the only question on which different approaches are still possible.

Practice in 2017-2018 shows that the general line is unchanged, but exceptions do occur.

Courts continue to hold that a claim for title to an unauthorised building can be granted only if the application for the permit, and the necessary documents, were filed in time.

If the developer applied for a building permit after construction had started, it should not count on the court recognising title (see the practice of the Arbitration Court of the Urals District, the Arbitration Court of the North-Western District and the Arbitration Court of the Volga District). There are exceptions. The Arbitration Court of the North-Western District granted the claim of a developer who had erected the building before filing the application for a permit.

If the permit was refused, the court will not grant the claim. Steps to legalise the building may be treated as sufficient where the refusal to issue the permit was caused by reasons outside the claimant-developer's control. There is also a chance of legalising an unauthorised building that was refused permission to enter into operation because the application was made not by the developer but by a person who had bought the building from the developer.

Steps taken to obtain a permit cannot be replaced by other actions. Asking the authorities for advice on the issue of the permit, or corresponding with them, does not give grounds for recognising title.

The purpose of the unauthorised building can play an important part in whether a permit is issued. Courts tend to recognise title to an unauthorised building where the dispute concerns a building for social or religious use.

The conclusion from the above is that there are few ways for title to an unauthorised building to be recognised, so a claim is not an effective means of avoiding the need to obtain building permits.

Sergei Pivovarchik concludes.

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