The Survey gives a positive answer to the question as to whether the right of ownership to an unathorised building may be conferred upon a lessee of the land plot on which such unathorised building is made, and not only upon its owner. In view of the Presidium, this is possible only in the event of meeting concurrently three conditions flowing from Art 222, Civil Code:
- the land plot was leased for the purpose of constructing the building in dispute;
- the building was made without essential violations of urban and construction norms and rules;
- the building does not violate rights and lawful interests of third persons, and also does not endanger life and health of citizens.
If an unathorised building does not meet even one of these conditions, the right of ownership to the building mat not be recognized for the lessee.
Practical consequence: this extension may be widely used for circumventing the legislative requirement to obtain the building permission prior to the start of construction work, keeping in mind that developers often have the land under long-term lease contracts.
Besides, the Presidium believes that:
- acquisitive prescription (Art 234, Civil Code) may not extend to buildings constructed without authorisation, including the ones situated on an unlawfully occupied land plot, because the bona fide of developer, which is a necessary condition for acquisition of the right by way of prescription, lacks in such cases;
- placing the duty to demolish the structure upon the developer constitutes a sanction for an offence, that is, its unathorised building. Therefore, such sanction applies only in case of developer’s being guilty of it; individual violations which may occur when allocating the land for building may not serve as an absolute ground for demolishing the structure;
- the possibility of recognition of the right of ownership for a part of an object of unathorised building is not envisaged by current legislation;
- in case of unathorised change in the original object of immovable property by way of adding new premises to it, the owner may demand to recognise his right of ownership to the rebuilt object as a whole, and not the addition to it. An addition to dwelling house or an apartment does not constitute an independent object of immovable property.
