As a general rule, the construction of capital construction projects is carried out on the basis of a construction permit, the procedure for issuing which requires, among other things, the submission of a title document for the land plot (parts 2, 7 of Article 51 of the Town Planning Code of the Russian Federation).
The completion of the construction of a capital construction project is confirmed by a permit for its commissioning (Article 55 of the Town Planning Code of the Russian Federation), which, by virtue of the provisions of paragraphs. 1 clause 3 art. 14 of Law N 218-FZ is the basis for state cadastral registration and state registration of rights.
From the moment the construction of a capital facility begins and until permission is received to put the facility into operation, such a facility, subject to certain conditions, will be considered an unfinished construction facility .
An unfinished object is considered a capital construction object.
Capital construction projects (abbreviated OKS) include:
- building,
- structure,
- construction,
- unfinished construction site.
It is clear from the list that an unfinished object, like a building, is a capital construction project.
The source of information is paragraph 10 of Article 1 of the Civil Code of the Russian Federation.
Thus, an unfinished object that does not belong to the OKS cannot be considered an object of unfinished construction.
2nd sign.
An unfinished object is real estate.
What property is considered real estate? The answer is found in Article 130 of the Civil Code of the Russian Federation.
The list of types of real estate is not long:
- land,
- subsoil areas,
- objects firmly connected to the ground, the movement of which is impossible without disproportionate damage to their purpose,
- building,
- buildings, structures
- objects of unfinished construction.
As can be seen from the list, the unfinished object is directly classified as real estate.
From the fact that unfinished property is classified as real estate, two conclusions follow.
First conclusion.
An unfinished construction project is subject to cadastral registration and registration in Rosreestr.
Cadastral registration allows you to identify an unfinished object as an individually defined thing.
The conducted cadastral registration confirms the existence of an unfinished construction project.
Registration of unfinished construction as a real estate object secures the rights to the object.
In other words, registration allows you to enter information about the ownership of an unfinished object into the Unified State Register of Real Estate.
Second conclusion.
How is ONS preserved?
Conservation means the suspension of construction or, in other words, its freezing. The law establishes certain requirements according to which this procedure must be carried out.
The decision on conservation is made solely by the customer or developer. First of all, he formalizes his decision in writing in the form of an order, which, as a mandatory item, must indicate the deadlines for conducting a thorough inventory of the public health service. Then the developer prepares other papers necessary to complete the conservation procedure, and works together with the contractor to freeze the construction.
After this, the developer concentrates his efforts on creating a special commission that will be in charge of inventory issues and will also be involved in preparing an inventory list, which should describe the following:
- Name ONS.
- Elements that are an integral part of an unfinished construction project.
- Indication of the stage at which construction was frozen.
The final document, after drawing up and signing of which conservation can be officially declared accomplished, is considered to be an Act in the KS-17 form on the temporary stop of construction. This paper must be signed by both the contractor and the customer.
You can find out how to find out the inventory value of a property here
The degree of readiness of an unfinished construction project.
An unfinished property is the only type of real estate that has this parameter.
The degree of readiness of an unfinished construction project is indicated in the real estate cadastre as a percentage.
The percentage of readiness of an unfinished object is determined by a cadastral engineer using a formula.
Source: paragraph 43 of the Requirements approved by Order of the Ministry of Economic Development of Russia dated December 18, 2015 N 953.
The degree of readiness of the object, first of all, depends on the volume of work performed at the site.
The higher the degree of completion of work, the higher the readiness of the facility.
Registration of unfinished construction
According to Article 22 of the said law, in order to take into account the ONS in the State Property Committee, you need to bring a technical plan for unconstruction (done by a cadastral engineer, with a disk) to the MFC or local cadastral chamber, present your passport and write an application. The registrar will copy the disk, take the application, make a copy of your passport and give you a receipt. Using it, on the appointed day it will be possible to obtain a cadastral passport of the ONS.
The registration procedure can be carried out directly on the Rosreestr website online: select, fill out the fields, attach an electronic technical plan (from disk) and send the application.
Now, with the technical plan, technical passport and your civil passport, you need to come to the local branch of Rosreestr or to the MFC, where, on the basis of Article 25 of Article 122 of the Law (on registration of rights), the unfinished vehicle will be registered in your name.
The application can also be submitted online on the Rosreestr website, but you need to choose a different service - “registration of rights to real estate.”
Important. If the site is not allocated for individual housing construction, a building permit will be required.
Complete completion of foundation construction or similar work.
To recognize an object as unfinished, the foundation must be completely erected.
Partial construction of the foundation or incomplete completion of similar work excludes the recognition of the construction as an unfinished construction project.
In other words, there is no finished foundation, which means the object cannot be recognized as an unfinished construction project.
In this case, it does not matter what percentage of readiness the constructed foundation gives.
The degree of readiness as a percentage is unimportant. The main thing is that the foundation is completely ready.
2nd condition.
What to do if documents are missing?
If you try hard, it is possible to register an “incomplete” document even in the absence of the necessary papers. In this situation, you should act as if the construction of the cottage was just beginning. The step-by-step action plan consists of:
- Writing an application to obtain all the necessary permits, without which you will be just an unauthorized developer.
- Placing an order for a finished house project similar to the one built, with mandatory approval.
- Drawing up, together with a representative of the BTI, a technical plan for the structure.
- Ordering a passport of the object from the cadastral chamber.
With all the collected package of documents, you must go through the registration procedure in the department of architecture and urban planning.
As an alternative, it is possible to write an application to the BTI authorities for the bureau employees to register the object - your unfinished house. This is a fairly expensive option, but it saves you time and nerves.
If we are talking about an unfinished dacha, the package of documents is somewhat simplified - you don’t have to present a building permit and limit yourself to only the cadastral plan. In the case of construction of a cottage or residential country house, the package of documents must be complete.
You can make it easier to complete all the necessary paperwork by ordering or purchasing a standard project for a residential cottage from a trusted construction company.
Legal construction of an unfinished construction project.
The condition on the legality of the construction of the object excludes the recognition of unauthorized construction as an object of unfinished construction.
As an example, I will give some criteria for the legality of constructing an object.
a) availability of a building permit, if a permit is required for the construction of an object,
b) submitting a notification about the start of construction of an individual housing construction project or a garden house,
c) existence of legal rights to the land plot.
Summarize.
The percentage of completion itself does not affect the recognition of an object as unfinished.
The legality of construction and the complete readiness of the foundation are the main conditions for recognizing the construction as an unfinished construction project.
We are done with the signs of an unfinished construction site.
Let's move on to restrictions.
Transfer of ONS
The transfer of the unfinished property to the buyer is carried out on the basis of a transfer deed signed by the parties to the transaction and attached to the main document - the purchase and sale agreement. The act mainly states that the buyer agrees with the technical condition of the purchased unfinished building and the absence of claims against the previous owner of the unfinished building (the seller). The moment of transfer of money under the transaction is also indicated here.
In fact, for both parties, such an act plays the role of a receipt, limiting the likelihood of disputes arising later.
An unfinished construction project does not provide the right to purchase the land plot from the lease without bidding.
The law allows for cases where it is possible to buy a plot of land without bidding.
One of such cases is the purchase of a plot under a real estate property.
Previously, we established that unfinished construction objects are classified as real estate.
However, the fact that an unfinished property is classified as real estate does not give the right to buy out the plot under “unfinished”.
The reason is this.
An article of the land code lists the types of real estate under which land is sold without bidding.
Source of information: subclause 6 of clause 2 of article 39.3 of the Land Code of the Russian Federation.
Objects of unfinished construction are not included in this list.
Consequently, the land plot under the unfinished construction project cannot be purchased without bidding.
Conclusion.
It makes no sense to harbor the illusion of buying out a plot of land from a lease on which only one foundation has been placed.
2nd limitation.
Signs and concept of ONS: conclusion
As a result of the analysis, we can conclude that the main features of an unfinished construction project include the following:
- The ONS has an attachment to the ground and a strong connection with it, and it cannot be moved without causing direct harm to its intended purpose.
- ONS have clearly defined individual characteristics and attributes.
- The construction of the ONS is in one of the following states: it is mothballed or completely stopped , or temporarily stopped.
As a result, it becomes possible to give a final definition of what an unfinished construction project is. It is a type of real estate with clearly defined individual characteristics and features, the construction of which is currently completely stopped or mothballed or suspended, or construction work is being carried out on it, the purpose of which is to construct it and transfer it for operation in accordance with target purpose.
It should also be noted that in the case of the ONS there is no completion of construction, which means there are no documents confirming the fact of completion of construction:
- Acceptance certificates , with the help of which the completion of real estate construction work is recorded. They must be drawn up in a form called KS-2. Such acts are drawn up after the completion of construction of civil or industrial structures.
- Certificate of acceptance of the ONS , on which the construction and installation work has already been completed. They are accepted in a form called KS-11. At such facilities, work was carried out that was carried out with the aim of replacing the technical equipment of any production association, expanding or reconstructing any real estate.
Can an unfinished object be divided into parts?
Until an unfinished construction project is put into operation, it is recognized as a single real estate object.
Let's take, for example, an unfinished office building or an unfinished apartment building.
As a rule, finished buildings and apartment buildings are divided into independent real estate objects.
Commercial buildings are divided into premises.
Apartment buildings consist of individual apartments.
Simply put, in the finished object, independent real estate objects are distinguished: premises, apartments, etc.
Peculiarities of drawing up a contract for the sale and purchase of “unfinished property”
- It must be drawn up in writing with state registration. If the form of the contract is not observed, this leads to its invalidity.
- As with any transactions, detailed information of the parties to the agreement must be indicated - with passport details, residential addresses, etc.
- The subject of the contract must be clearly defined, that is, the data contained in it must allow one to accurately determine which particular object is being sold. Such data primarily includes the address where the building is located.
It is necessary to take into account that there are both “construction” and “postal” addresses. The “construction” address is indicated in the building permit and determines the location where the site is provided for the construction of the facility. The “mailing” address may not correspond to it. It is assigned to the house only after completion of the acceptance committee procedure. Such discrepancies should be taken into account when drawing up documentation for the planned acquisition.
Among other things, the price of the object must be indicated.
The circle of persons who have the right to use must be listed in detail.
The rights of third parties to real estate for sale must be respected. When making a transaction, it is the seller’s responsibility to warn the buyer about this. We can talk about the rights of tenants, tenants, existing collateral or lifelong use. In case of failure to fulfill such obligations, the buyer has the right to demand a reduction in the sales price or complete termination of the contract with compensation for all losses.
The final transfer of real estate between the seller and the buyer with its acceptance by the latter occurs at the moment of signing by the parties of the so-called. transfer deed.
