THE RESOLUTION OF THE PLENUM OF THE SUPREME SPECIALIZED COURT OF UKRAINE ON CONSIDERATION OF CIVIL AND CRIMINAL CASES OF UKRAINE

of March 30, 2012 No. 6

About practice of application by courts of Article 376 of the Civil code of Ukraine (about legal regime of illegal construction)

For the purpose of the correct and identical application of provisions of Article 376 of the Civil code of Ukraine (further - group of companies) by consideration of the civil cases connected with illegal construction, the plenum of the Supreme specialized court of Ukraine on consideration of civil and criminal cases DECIDES to make to courts such explanations:

1. The provision of Article 376 of group of companies extends to cases of illegal construction of apartment houses, buildings, constructions, other real estate both physical, and legal entities.

In case of the solution of cases of this category and application of Article 376 of group of companies courts shall be guided by regulations of the legislation of Ukraine on town planning which consists, in particular, of the Constitution of Ukraine, the relevant GROUP OF COMPANIESprovisions Land code of Ukraine (further - ZK), the laws of Ukraine of November 16, 1992 No. 2780-XII "About fundamentals of town planning" (further - the Law No. 2780-XII), of May 20, 1999 No. 687-XIV "About architectural activities" (further - the Law No. 687-XIV), of September 16, 2008 No. 509-VI "About modification of some legal acts of Ukraine concerning assistance to construction", of December 25, 2008 No. 800-VI "About prevention of influence of the global financial crisis on development of construction industry and housing construction", of February 17, 2011 No. 3038-VI "On regulation of town-planning activities" (further - the Law No. 3038-VI), of May 22, 2003 No. 858-IV "About land management", of June 19, 2003 No. 963-IV "About the state control of use and protection of lands" and other regulatory legal acts which are published on their accomplishment with which observance construction of facilities of the real estate shall be performed.

Application of the specified regulations shall be performed with observance of requirements about operation of acts of the civil legislation in time.

2. According to Article 376 of group of companies courts consider disputes on illegal construction, in particular:

- about recognition of the property right on samochinno the built real estate the owner of the parcel of land;

- about recognition of the property right on samochinno the constructed property on the parcel of land which was not allocated for person who performed illegal construction;

- about expense recovery for the construction performed on the parcel of land which was not allocated for person;

- about demolition samochinno the built real estate;

- about the obligation of person which performed (performs) illegal construction, to carry out the corresponding reorganization;

- about collection of the expenses connected with reduction of the parcel of land to the previous condition.

3. The property right according to the procedure, the Civil Code provided by part three of Article 376, can be acknowledged only on the new built real estate or real estate which is created in connection with demolition of the previous building and according to construction regulations and rules is complete construction.

Recognition of the property right to incomplete object of illegal construction is not allowed as it contradicts content both Article part three 376, and Article 331 of group of companies.

4. By hearing of cases of the specified category courts should mean that the construction of the apartment house, building, construction, other real estate is considered illegal if they are constructed (are under construction) on the parcel of land which was not allocated for person who performs construction; or it is taken away not for this purpose; or without the relevant document which grants the right to perform construction works, or the project properly approved; or with fundamental breach of construction regulations and rules.

Also the construction though based on the project, but in the presence of fundamental breaches of the specified regulations and rules both in the project is considered illegal, and in case of construction, in the presence of decisions of specially authorized bodies on elimination of violations.

Real estate asset construction on the parcel of land which was not taken away for this purpose the construction of such objects on the parcel of land which is not carried to lands of the housing and public building, in particular, provided for conducting truck farming, of mowing, cattle vypasaniye, etc. is considered, purpose or type of use of which it is not changed in the procedure established by the law.

It is necessary to understand the decision of competent authority of the power or local government body on transfer of the parcel of land to property or provision to use, or right to use transfer of the parcel of land based on civil contracts with physical person or legal entity as provision of the parcel of land.

Only the decision of competent authority of the power on provision of permission to project development of land management concerning assignment of the parcel of land or for building project development cannot be considered as provision of the parcel of land.

It is necessary to understand type of use of the parcel of land as the purpose of provision of the parcel of land (article 19 ZK, the Classification of types of purpose of lands approved by the order of the State committee of Ukraine on land resources of July 23, 2010 No. 548) specified in the decision of the relevant competent authority of the government or local self-government on provision of the parcel of land in use or transfer into the ownership taking into account purpose of the parcel of land.

It is necessary to understand the allowing document provided by the Law of Ukraine No. 3038-VI as proper permission (Article 35 - 37) which grants the right to perform preparatory and construction works of that object and on that parcel of land which is transferred for this purpose to certain person.

It is necessary to understand as the project depending on category of construction object the corresponding structure of documentation determined by Articles 1, 7 and 8 Laws of Ukraine No. 687-XIV received according to articles 29, of 31 Law No. 3038-VI, and also the construction passport and specifications received according to Articles 27, 30 specified the Law.

The construction which is performed with fundamental breach of construction regulations and rules is considered including construction which though is performed in the presence of the project, but with violation of state and construction regulations and health regulations which threaten life and health of the person in case of failure to carry out of instructions of inspection of the state architectural construction supervision about elimination of violations of requirements of the legislation in the field of town-planning activities, construction regulations, state standards and governed, etc.

5. According to requirements of Article 376 of group of companies with the claim for demolition or reorganization samochinno of the constructed real estate object both public authorities, and local government bodies have the right to appeal to the court.

In cases of violation of the rights of other persons the right to appeal to the court belongs also to such persons provided that they will prove availability of the violated right (Article 391 of group of companies), and also to the owner (user) of the parcel of land if he objects to recognition for person who performed illegal construction on its parcel of land, the property rights to samochinno the built real estate (part four Article 376 and Article 391 of group of companies).

According to provisions of article 38 of the Law No. 3038-VI the right to appeal to the court with the claim for demolition samochinno of the constructed objects of town planning belongs to also relevant inspectorates of the state architectural construction supervision. Such claim can be made in court if person voluntarily did not fulfill at the scheduled time the requirements established in the instruction about elimination of violations of requirements of the legislation in the field of town-planning activities, construction regulations, state standards and rules with determination of term for voluntary accomplishment of the instruction and/or if reorganization of object is impossible.

Considering the specified claims according to requirements of the specified regulation and provisions of part seven of Article 376 of group of companies, courts shall establish whether it was issued to person who performed illegal construction, the instruction about elimination of violations whether reorganization of object is possible and whether person who performed illegal construction, from such reorganization refuses.

6. On samochinno the built apartment houses, buildings, constructions, other real estate do not acquire the property right as persons who performed this construction, and their heirs. The rights of heirs rather samochinno of the constructed property are determined by court according to provisions of Article 1218 of group of companies and taking into account the explanations provided in Item 7 of the resolution of the Plenum of the Supreme Court of Ukraine of May 30, 2008 to No. 7 "About court practice on cases on inheritance".

This property is not property right object, it cannot be subject of separation and establishment of procedure for use judicially; on it collection according to executive documents, including its sale from the public biddings cannot be turned.

Requirements of person which samochinno built real estate or the interested person which are not connected with the property right to these buildings, in particular, about recognition the rights to materials acquired in case of their demolition are subject to consideration by courts in accordance with general practice.

7. Rules of Article 376 of group of companies in case of the solution of cases on claims cannot be applied:

- about recognition of the property right on samochinno the re-equiped apartments in apartment houses of different housing stocks as such legal relationship are settled by other regulations of the legislation, in particular Article 383 of group of companies and the relevant standards of the Housing code of Ukraine concerning owners of apartments;

- about recognition of the property right on samochinno the constructed shoddy constructions;

- about recognition of the property right on samochinno the constructed belongings to the main thing (porch, verandah, penthouse, etc.).

8. (Building) owners of the parcels of land (article 90 ZK), land users (article 95 ZK), persons who acquired right to use others parcel of land (superficies) under the contract with the owner of the parcel of land (article 102-1 ZK) or on other bases provided by the law have the right to construction of real estate.

The right to its building (construction) is exercised by the owner or the land user of the parcel of land on condition of use of the parcel of land on its purpose and type according to the town-planning conditions and restrictions set by the legislation.

The right to building arises at person who acquired the right to the parcel of land on legal causes, after implementation of the actions provided by Articles 26 by it - 32 Laws No. 3038-VI.

9. By hearing of cases of the specified category courts should mean that according to article 26 of the Law No. 2780-XII disputes over questions of town planning are solved councils, inspections of the state construction architectural supervision within their powers, and also court according to the legislation.

By the general rule each person has right of defense of the civil law only in case of its violation, non-recognition or contest (part one of Article 15 of group of companies, part one of Article 3 of the Code of civil procedure of Ukraine (further - GPK). With respect thereto appeal to the court with the claim for recognition of the property right to illegal construction shall be performed in the presence of data that the raised question was subject of consideration of competent state body which solution or its absence give the grounds to consider about availability of dispute on the right.

Considering brought whether in case of the solution of question of opening of proceeedings in the claim for recognition of the property right on samochinno the constructed objects the court shall pay attention are specified in the action for declaration according to requirements of Article 119 GPK of circumstance concerning the appeal of the claimant to inspectorate of the state construction architectural supervision about acceptance of object to operation and the reference to proofs concerning the specified circumstances. In case of lack of the reference to such circumstances or proofs the court shall according to requirements of Article of 121 GPK leave the action for declaration without movement and provide term for remedial action with the effects provided by part two of Article of 121 GPK.

If the claimant did not file in competent state body petition for acceptance of object to operation, the court solves dispute over being taking into account the given circumstances and requirements of the law.

10. The claim for recognition of the property right to samochinno the built real estate on others parcel of land can be made in public authority or local government body and to the owner (user) of the parcel of land in case of building on the parcel of land which belongs to the state-owned or utility property or physical person or legal entity.

In case of presentation of the claim for the recognition of the property right on samochinno the constructed real estate object to the unseemly defendant (for example, bureau of technical inventory count or only to the certain physical person) court depending on subject of action and the facts of the case according to the procedure provided by Article part one 33 GPK shall resolve issue of its replacement by the proper defendant or on own initiative according to the procedure, provided by Article part two 35 GPK, attracts the relevant state body or local government body as the third party who does not declare independent requirements concerning subject of action also according to Article part three 45 GPK attract to participate in case the relevant inspectorate of the state architectural construction supervision for provision of conclusions to accomplishment of its powers.

11. According to item 4 of Article 26, article 27 of the Law No. 3038-VI the right to building of the parcel of land is exercised by its owner or the user on condition of use of the parcel of land according to requirements of the necessary town-planning documentation received by the builder prior to accomplishment of construction works, in particular: output data, specifications, the construction passport, development of the project documentation and carrying out in cases, the stipulated in Article 31 this Law, its examination; approval of the project documentation; accomplishment of preparatory and construction works.

At the same time the court shall pay attention that according to article 32 of the Law No. 3038-VI reference of construction to category of complexity of construction objects is performed by the project organization and the customer; the structure of allowing documentation (Article 26 - 31 specified Laws), necessary to start construction depends on the specified category.

Solving case, the court shall differentiate the bases of the beginning of preparatory and construction works which, except articles 34 and 35 of the Law of Ukraine No. 3038-VI, are regulated also by the resolution of the Cabinet of Ministers of Ukraine of April 13, 2011 No. 466 "About some questions of accomplishment of preparatory and construction works" and to pay attention that to start construction works the direction of the message or declaration in territorial authority of the state arkhitekturnostroitelny inspection taking into account category of complexity of construction objects is enough.

Besides, the court shall mean that Item 9 of Final provisions of the Law No. 3038-VI determines the simplified procedure for acceptance to operation of the individual (farmstead) housing houses built till December 31, 2009, garden, country houses, economic (home) buildings and constructions, extensions to them, etc. which are constructed without the permission on accomplishment of construction works and applications about which acceptance are submitted till December 31, 2012.

12. On the cases connected with illegal construction of real estate, courts shall consider that by the general rule person who performed or performs such construction, does not acquire the property right to it (part two of Article 376 of group of companies).

Together with it the owner of the parcel of land acquires the property right to the buildings built by it, constructions and other real estate (part two of Article 375 of group of companies) therefore upon the demand of the owner (user) of the parcel of land the court can recognize behind it the property right to real estate which is samochinno constructed on it if it does not violate the right of other persons (part five of Article 376 of group of companies).

Solving case on the claim of the owner (user) of the parcel of land on recognition of the property right to samochinno the built real estate, courts shall establish all facts of the case, in particular: whether the claimant is the owner (user) of the parcel of land; whether he addressed to competent state body about acceptance of building to operation; whether the refusal in such acceptance is legal; whether the broken construction regulations and rules are essential.

13. Solving claims for demolition self-willedally constructed (attached, built on) balconies, penthouses, attics, etc. in multi-storey apartment houses, courts shall consider that provisions of Article 376 of group of companies are not applied to these legal relationship.

However in case the apartment in such house is located on the ground (socle) floor and the owner performed extension to it with simultaneous zanimaniye of part of the house adjoining parcel of land, the dispute shall be solved according to rules of Article 376 of group of companies.

14. Based on part three of Article 376 of group of companies the court can satisfy the claim for recognition of the property right to samochinno the built real estate on the parcel of land which was not provided in property or use to person who constructed it if to it in the procedure established by the law the parcel of land was transferred to the possession or is provided in use under already built real estate according to its purpose and provided that the construction was conducted with observance of architectural, construction, sanitary, environmental and other standards and rules according to the legislation, the town-planning and project documentation and also if these circumstances were subject of consideration of competent state body (part three of Article 375 of group of companies).

At the same time the court shall consider that lack of objections of the owner against recognition of the property right to real estate for person who performed illegal construction or recognition of such claim shall be proved by the corresponding proofs confirming the right to making of such legal proceedings, in particular, with purchase and sale agreements of the parcel of land, lease, exchange.

15. Proceeding from content of part three of Article 376 of group of companies, in case of proof of the conditions determined by it the court can recognize the property right on samochinno the constructed property also for person who constructed it if upon termination of construction the parcel of land to this person was transferred to the possession or is provided in use, or with the owner of the parcel of land on which the property is placed, the agreement superficies (part one of Article 413 of group of companies) according to its purpose is signed.

Solving cases of such category, the court shall recognize from the fact that provision of the parcel of land under already built real estate or the conclusion of the agreement superficies can take place as before presentation of the claim in court, and after that.

16. The claim of person who samochinno built real estate on the parcel of land the owner or the user of which is other person, about recognition of the property right to this real estate can be satisfied with court based on part three of Article 376 of group of companies if it is determined that the owner or the user of the parcel of land does not object to it, the construction does not violate the right of other persons and satisfies construction, architectural, sanitary, environmental and other standards and rules, state standards.

17. The claim for demolition samochinno of the built real estate can be made by the owner or the user of the parcel of land or other person whose rights are violated, in particular, by the owner (user) of the adjacent parcel of land on the bases provided by Articles 391, of 396 groups of companies, article 103 ZK.

If the claim for recognition of the property right to samochinno the built real estate is made to the owner (user) of the parcel of land who objects to recognition of the property right to this property for person who constructed it, the owner (user) has the right according to requirements of Article 123 GPK to make the counter claim about demolition of real estate.

The claim can be made to person who performed construction, both about the obligation of demolition of building, and about building demolition by a court decision by the owner (user) of the parcel of land at the expense of person who performed illegal construction, with simultaneous compensation of the confirmed expenses on its demolition.

18. In case of the solution of the claim for recognition of the property right to samochinno the built real estate based on part three of Article 376 of group of companies the court shall not consider time of transfer of the parcel of land to property or its provisions in use, or the conclusion of the agreement superficies, including during consideration of the case as such actions demonstrate recognition for the claimant of the right to building from the owner (user) of the parcel of land.

If during consideration of the case the parcel of land was provided to the claimant according to the legislation of Ukraine or the agreement superficies is signed, the court shall estimate the specified actions of the defendant taking into account Article part four 174 GPK (recognition by the defendant of the claim).

Provision to the claimant during consideration of the case of the parcel of land according to the procedure, the superficies established by the legislation of Ukraine, or the conclusion of the contract with it in the presence of refusal of competent state body in acceptance of building to operation on the bases of lack of the parcel of land at it can be the basis for refusal in the claim. Under such circumstances the claimant is not deprived of opportunity to file in the relevant state bodies petition for the acceptance of building to operation according to the procedure established by the legislation of Ukraine.

19. In case of recognition for the owner (user) of the parcel of land of the property right to samochinno the real estate built on it by other person the size of construction expenses of this property, the right to which compensation by the owner (user) of the parcel of land according to part six of Article 376 of group of companies person who performed such construction has, is determined by court based on the provided proofs and consists as of the incurred expenses on construction materials, and of expenses for the performed works and the paid services.

20. Solving cases on the illegal construction (new construction, reconstruction with change of the area and zanimaniye of the parcel of land, extension, superstructure) real estate object performed in case of refusal in issue of the documents granting the right to perform construction works (the message on the beginning of construction works, registration of the declaration on the beginning of accomplishment of construction works, issue of specifications, issue of output data, etc.), but with respect for state standards, regulations and rules, local rules of building of settlements and procedure for consideration of these questions, the court shall consider that the refusal in provision of allowing documents can be appealed in court by the interested person according to the procedure of administrative legal proceedings.

If such actions are judicially not appealed, it is not the basis for refusal in the claim, however the court when considering the case shall give legal treatment to such refusal, in particular, by rules of Article 212 GPK.

21. In case of the solution of the claim for recognition of the property right to samochinno the built real estate the court shall recognize that the right to accomplishment of construction works arises at the builder only in the presence of the documents granting the right to perform construction works and 29 - 31 Laws No. 3038-VI provided by Articles 27,, and also in the cases of receipt of permission to accomplishment of construction works provided by the law (the article 34, of the 37th this Law).

The project is not properly the local body of town planning and architecture and positive conclusion of state examination approved on condition of lack of approval of architectural and planning part of the project in case its carrying out is obligatory (article 7 of the Law No. 687-XIV, article 31 of the Law No. 3038-VI).

22. Demolition of illegal construction is last resort and is possible only when all are used measures for reaction and involvement of the perpetrator to responsibility are stipulated by the legislation Ukraine.

Requirements of relevant organ of the government or local government body about the obligation of person which, having the permission for construction of real estate, assumed at the same time essential variation from the project that contradicts public concerns or violates the rights of other persons, or fundamental breach of construction regulations and rules carry out the corresponding reorganization can be declared as in case these variations were allowed in case of real estate construction, and as a result of reorganization during its operation (part seven of Article 376 of group of companies).

It is necessary to understand as fundamental breach of construction regulations and rules, in particular, non-compliance with architectural, health, ecological, fire-proof and other requirements and rules, and also change of separate structural elements of the apartment house, building, construction which influences their durability and safety.

23. In case of the solution of question of whether the variation from the project is essential and such which contradicts public concerns or violates the rights of other persons, courts shall find out in each case, in particular, how built building by the size answers the area, superficiality, placement and other conditions provided by the project; as the allowed violation taking into account local rules of building, public and private concerns influences planning, building, improvement of the street, convenience of content of adjacent sites, etc.

In necessary cases for clarification of the questions arising by consideration of such cases and needing special knowledge, the court according to the statement of persons who are taking part in case can appoint the corresponding examination according to requirements of Article 143 GPK.

Lack of the corresponding examination in case of need of its carrying out can be the basis for refusal in the claim, at the same time from the project and violation of construction regulations and rules person who made the claim for demolition of illegal construction shall prove the variation fact (part seven of Article 376 of group of companies, Article part one 60 GPK).

24. Demolition of the real estate built with essential variation from the project which contradicts public concerns or violates the rights of other persons, fundamental breach of construction regulations and rules (including in the absence of the project), is possible only on condition that reorganization of the real estate according to the project or according to the regulations and rules determined by the state rules and sanitary standards is impossible or if person who performed (performs) construction, refuses such reorganization.

In other cases the court in the claim of the relevant state body or local government body can oblige to perform based on part seven of Article 376 of group of companies the builder reorganization of the apartment house, building, construction or other real estate object which is built or is under construction with essential variations from the project or with fundamental breach of the main construction regulations and rules, in that case when such construction contradicts public concerns, violates the rights of other persons when violation of construction regulations and rules is essential, and also there is technical capability to execute reorganization.

If technical capability of reorganization of real estate object is absent or the builder refuses such reorganization, court, irrespective of respectfulness of causes of failure, in the claim of the specified bodies or persons, the rights or the interests of which are violated by such construction, makes the decision on demolition of the apartment house or other real estate.

The refusal of the builder of reorganization should be considered both its statement for it, and its actions or the divergence concerning it made to or after decision making of court about the obligation to perform reorganization.

Approval of the builder on reorganization when considering the case about demolition of illegal construction in case of possibility of reorganization if it is confirmed, is the basis for refusal in the claim only when the judgment which took legal effect about the obligation to perform reorganization is able because of the builder about what the state contractor draws up the relevant statement.

25. Variation from the project of building of real estate object or from requirements of construction regulations and rules which are not essential also interests of society do not violate the right of other persons, do not contradict sanitary requirements and service regulations, do not influence durability and safety of this object (in particular, variation in the apartment house from internal planning with preserving or insignificant variation from the size of living space established by the project, minor change of its external dimensions, the locations, etc.), cannot be reason for satisfaction of requirements about reorganization or about real estate asset demolition.

26. Involvement of person to administrative or criminal liability for illegal construction does not deprive the relevant state bodies, local government bodies or persons whose rights are violated by illegal construction of real estate, opportunities to make the claim for reorganization or demolition of self-willedally constructed real estate object, and also for expense recovery, connected with reduction of the parcel of land to the previous condition.

27. The hozyaystvennobytovy buildings and constructions located on the parcel of land near the apartment house: sheds, garages, summer kitchens, etc. according to provisions of Articles 186, of 381 group of companies are accessory of the main thing (house). With respect thereto provisions of part five of Article 376 of group of companies are not the basis for recognition for the owner of such apartment house of the independent property right to samochinno the built economic and household buildings and constructions which were built after acquisition by it of the property right to the house or the estate. Acceptance in operation of such real estate objects shall be performed by the relevant inspectorate of the state architectural construction supervision in the method determined by Procedure for acceptance in operation of individual (farmstead) housing houses, garden, country houses, economic (home) buildings and constructions, extensions to them, public buildings of I and II categories of complexity which are built without the permission on accomplishment of construction works and carrying out technical inspection of their building constructions and engineering networks, the approved order of the Ministry of regional development, construction and housing and communal services of Ukraine of June 24, 2011 No. 91.

28. According to article 27 of the Law No. 3038-VI building of the personal, seasonal, garden parcels of land can be performed based on the construction passport of building of the parcel of land, designing of such building is performed at the request of the customer without receipt of town-planning conditions and restrictions.

By hearing of cases about demolition of illegal construction which is performed by person on own personal, seasonal or garden parcel of land the court shall pay attention to availability of the construction passport, the specifications, documents granting the right to perform preparatory and construction works, observance when building construction regulations and rules, and also on availability of violation of the rights of other persons.

29. Considering that by the general rule person who performed or performs illegal construction of real estate, does not acquire the property right to it, term of limitation period according to requirements about carrying out reorganization samochinno constructed or it which is under construction, the apartment house, extension to it, buildings, construction or other real estate, and also about demolition of such objects is not considered passed irrespective of duration of time which expired after completion or the beginning of construction.

To the solution of case on being court taking into account the bases of the claim for the plaintiff's declaration according to Item 2 parts one of Article 152 GPK can resolve issue of providing the claim by imposing of prohibition on operation of such real estate object.

30. According to item 4 of Final and transitional provisions of group of companies of rather civil relations which arose before entry into force of this Code provisions of group of companies are applied to those rights and obligations which arose or continue to exist after its introduction in force. Therefore rules of Article 376 of group of companies about effects of illegal construction are applied also to the objects constructed before entry into force of group of companies and the Law No. 3038-VI.

31. The correct and timely solution of cases on claims for carrying out reorganization or demolition samochinno of the constructed real estate objects is important for strengthening of law and order in the field of land use and town planning and prevention of such violations.

During consideration of such put court, having revealed violation of the law in this sphere and having established the reasons and conditions which led to making of offense, shall decide according to Article 211 GPK separate determination and send to his corresponding persons or bodies for taking measures to elimination of such reasons and conditions.

 

The chairman of the Supreme specialized court of Ukraine on consideration of civil and criminal cases

L. I Fesenko

The secretary of plenum of the Supreme specialized court of Ukraine on consideration of civil and criminal cases

D. D. Luspenik

 

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info