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Real estate and construction Recognition of ownership rights for unauthorized construction

Kirilkin Radion

Head of real estate and commercial law practice

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kirilkin@prikhodko.com.ua

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Specialist in the field of commercial law and process. Real estate, construction support; land law and protection of property ownership.

Recognition of ownership rights for unauthorized construction

More and more of our clients are turning to us for legalization of self-construction (unauthorized construction) – a real estate object, the construction or major renovation of which is carried out without the appropriate permit or without an approved construction project. As a rule, when a citizen carries out unauthorized construction, a number of important issues arise, in particular, obtaining the appropriate permit from the DIAM (State Inspectorate for Architecture and Urban Planning) and recognition of ownership of the relevant real estate. If the appropriate procedure is not initiated, a number of negative consequences arise for the citizen, such as:

being held administratively liable for violation of construction legislation;
the inability to conclude agreements regarding the constructed property and commercialization of one’s own activities (its sale, lease, etc.).

Therefore, it is very important to take a responsible approach to the legalization of self-construction and achieve recognition of ownership of it in court.

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When is recognition of ownership of unauthorized construction required?

According to the Resolution of the Plenum of the High Specialized Court of Ukraine for Civil and Criminal Cases dated 30.03.2012, courts consider disputes regarding unauthorized construction, including claims for recognition of ownership rights:

firstly, to an unauthorized object built by the owner of the land plot;
secondly, to an unauthorized object built on a land plot that was not allocated to a person.

Let us dwell in more detail on the second option. In particular, according to the same Resolution No. 6, a mandatory condition for satisfying such a claim is the provision of a land plot to the person who carried out unauthorized construction for already constructed real estate. Such methods are recognized at the legislative level as free privatization of land, the conclusion of agreements (lease agreements or superficies) regarding it.

What documents are required to apply to the court?

To initiate the procedure, it is necessary to prepare:

a statement of claim in accordance with the requirements of current national legislation (appendices thereto);
a list of mandatory documents for the claim. Such documentation is a technical passport for the unauthorized construction object, an agreement with developers, documentary confirmation of taking measures to legalize the construction out of court (for example, a response to a relevant request from the territorial bodies of DIAM). In some cases, it will also be appropriate to provide an expert opinion on the technical feasibility of the safe operation of the object and its compliance with building codes.

The above is the main list of documents, but it may differ depending on the nuances of each case. For more detailed information, we also recommend contacting the lawyers of the company “Prikhodko & Partners” for professional advice.

It will also be useful: Legalize self-construction

From what point does a person have the right to apply to the court for recognition of ownership rights?

It is worth emphasizing that it is not necessary to apply to the court after the completion of unauthorized construction. As confirmed by case law, this must be preceded by a certain procedure, which looks like this:

a preliminary appeal to the competent authorities in the relevant area regarding the commissioning of completed facilities;
receiving an official refusal.

Therefore, such a refusal decision (on the grounds of non-compliance with building codes, lack of permission, etc.) is a key prerequisite for filing a lawsuit with the court. At the same time, even if the state body does not respond within a reasonable time, it is important to keep evidence of sending such an appeal in order to also be able to file a lawsuit.

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Claim for recognition of ownership of unauthorized construction

This statement of claim has a number of specific features that must be taken into account when preparing it:

first, the correct definition of the defendants. The defendant in the case may be a local government body, in some cases simultaneously with the owner of the relevant land plot where the unauthorized construction is being carried out;
secondly, the subject of the claim should be the requirement for recognition of ownership, and not the obligation of a state body or local government body to take appropriate actions;
thirdly, the main evidentiary basis will be the technical documentation for the unauthorized construction and confirmation of the application to the competent authorities and receipt of an official refusal to put the real estate into operation.

It is worth emphasizing that in the event of a decision to recognize ownership, this is not an automatic basis for putting the unauthorized construction into operation. After this, a special procedure is provided, in particular, conducting a technical inspection of the facility, submitting a declaration of readiness for operation, and state registration of ownership of this facility.

Therefore, the construction of an unauthorized building requires recognition of the right of ownership to it by filing a lawsuit in court to avoid possible negative consequences. Such a right officially arises after receiving a refusal from the competent authority to put the facility into operation. A statement of claim for recognition of the right of ownership to an unauthorized building, in turn, requires high-quality preparation and submission of properly executed documentation for unauthorized construction.

Due to the complexity of the process of recognizing the right of ownership of unauthorized construction, seeking qualified legal assistance is a guarantee of your confidence and reliable protection. To get a consultation with a real estate lawyer and find out the cost of legal support, fill out the form below.

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Were other lawyers handling your case?

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2 question

Are you in Kyiv or Kyiv region?

Yes

3 question

Do you need legal assistance urgently?

Yes

In which regions of Ukraine do you work?

The department of real estate and land law, as a rule, works in Kyiv and the Kyiv region.

We provide our services in all regions of the Kyiv region, for example:
Bilotserkiv district (towns of Skvira, Tarasha, Bila Tserkva, Uzyn, Tetiiv).
Boryspil district (the cities of Boryspil, Pereyaslav, Yagotyn).
Brovary district (the cities of Brovary, Berezan).
Buchansky district (towns of Bucha, Irpin, Vyshneve).
Vyshhorod district (the cities of Vyshhorod, Slavutych).
Obukhiv district (towns of Obukhiv, Boguslav,
Vasylkiv, Kagarlyk, Myronivka, Rzhyshchiv, Ukrainka).
Fastiv district (the cities of Fastiv, Boyarka).

It is worth noting that on some issues (services) we work throughout Ukraine, contact and clarify information by phone!

Do you provide consultations online or over the phone?

Yes! If you do not have the opportunity to come to the office in Kyiv, then you can pay and receive a consultation by phone or in one of the applications for conducting calls/conferences.

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