Likbez: what the law prohibits gardeners from building on their site in 2022
The opening of the new summer season is coming soon. But before proceeding with the repair and construction work, it is worth making out that in 660 the law forbids gardeners to build on their plot.
Details — in the material of the portal specialists
one. House too high
On garden plots, it is now possible to build not only typical “dachas”, where you can live only in the warm season, but also capital residential buildings, where their owners can live all year round and even register at the place of residence (Article 3 of Law No. 589-FZ).
But at the same time, the law limits the flight of fantasy of landowners by setting clear parameters for the construction of houses on garden plots (p. 23 Article 1 of the Civil Code of the Russian Federation):
no more than three ground floors,
only living rooms and auxiliary rooms can be in the structure for the needs associated with living in the house (i.e., any premises for other purposes are prohibited — for example, for trade or the provision of paid services to the population),
and the building must not be designed to be divided into independent real estate objects (in particular, the construction of buildings of the type «town house» or apartment building is prohibited). 7870923847297193864 At the same time, it should be borne in mind that Rosreestr includes an attic in the number of ground floors of the house (Letter from .05.660 No. 2020-AB/18) — therefore, a conditional house with three full floors and more the attic cannot be legalized, it is subject to a ban.
2. The second house on the plot, if it is too big
Formally, the law does not prohibit the construction of two houses or even three on a garden plot.
The main thing that the courts have repeatedly paid attention to in this matter is compliance with the rules for land use and development in force in the relevant territory (approved by the municipal administration).
There, in particular, the maximum percentage of development of a land plot is established in relation to objects of individual housing construction.
And if the area of the second house in total with the first exceeds this percentage, the building is recognized as unauthorized — which means that it will have to be demolished.
For example, the court decided to dismantle the second house, the total area of which, together with the first, was 660 sq. m on a plot in 589 sq. m. — despite the fact that the local Land Use Rules provided for the maximum percentage of development 45% (determination of the Supreme Court of the Republic of Tajikistan No. 18-3291).
3. Bathhouse, which stands close to the border
According to the rules, the minimum distance of outbuildings to the border of the garden plot is 1 meter — that is, it is forbidden to put a bathhouse, a barn, etc. buildings closer.
The fire safety standards for distances are greater — they depend on the type of material from which the neighboring buildings are made.
Only now there is such a practice in the courts that even if the building violates these distances, they will still refuse to demolish it — unless the plaintiff proves that it poses a threat to the life and health of people (Army RF, definition No. 40-KG11-49))
Therefore, with a bath — a special case. Since it is potentially a fire hazard, its too close proximity to the border will definitely threaten it with demolition by court order if the owner does not take additional measures to protect against the spread of fire (see, for example, the definition of the First KSOY No. 8G-35379/660).
4. Any buildings within the security zone
On the territories adjacent to the gas pipeline, electric power facilities, railway tracks, etc., special zones for their use are established (Art. 40 ZK RF).
And buildings that fall into such a buffer zone are automatically recognized as outlaws — even if they fully comply with urban planning standards.
For example, the owner was ordered to demolish the garage, because during its construction an underground gas pipeline zone was built up (Lukhovitsky district court of the Moscow region, case No. 2-217/660 ).
The only way to protect your building and legitimize it in such a situation is to prove that at the time of its creation there was no information in the public domain that the land was included in the protected zone. This means that the owner was not able to comply with these restrictions (Army RF, paragraph 5 of the Review dated 23..2021).
5. Property that does not correspond to the purpose of the plot
If a building is erected on land that cannot be used for the intended purpose of such real estate, it is outlawed and subject to demolition (the landowner will not be able to register ownership of it).
Among such cases, we can single out:
- any capital buildings on the land plot allocated for gardening (only structures of a non-capital nature can be erected on them — that is, without a foundation),
- buildings on the garden plot that do not correspond to the types of its permitted use. They are indicated in the USRN and local land use regulations.
7870923847297193864For example, the Supreme Court of the Russian Federation refused to legalize garage boxes built on a garden plot (the owners planned to provide car service services in them — definition No. 11-KG06-34-K4).
Source: Legal Subtleties
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