Real Estate, Unauthorized Constructions, and Forensic Examination

Abstract

This article examines the conceptual understandings of property law, specifically real estate, as advanced by prominent civil law scholars across various historical periods and as reflected in Russian legislation from the late 19th to the early 21st century.

Despite the temporary marginalization of property rights within the civil law system, the article notes a departure in Russian legal theory and legislation from the established classical doctrine recognizing the multiplicity of real estate objects. The current Civil Code of the Russian Federation is presented as a logical progression in the evolution of these conceptual ideas on property law.

The opinion is put forward that future development of legislation concerning real estate and property law, in general, will follow this main trajectory. One path is the implementation of the “Concept for the Development of Legislation on Property Rights”, developed by leading Russian civil law scholars. This Concept is evolving and undergoing changes but is nevertheless being phased into the civil law system. It proposes expanding the scope of limited in rem rights, particularly by implementing the principle of unity of fate for a land plot and the structures located on it.

Within the legal and law enforcement community, the multiplicity of real estate objects has created the problem of unregistered structures (unauthorized constructions). The most recent amendment to Article 222 of the Russian Civil Code on unauthorized constructions was made in 2018 (as revised by Federal Law No. 339-FZ of August 3, 2018) and has since generated extensive case law. Relevant cases have been heard by both the Supreme Court of the Russian Federation and the Constitutional Court.

Judicial review of disputes involving unauthorized constructions invariably necessitates the appointment of a forensic construction-technical expert examination. While this examination is typically a fundamental piece of evidence for the court's ruling, there are instances where a judicial act is rendered contrary to or independently of the expert opinion. The article reviews specific legal disputes that were resolved independently of the findings from the court-ordered forensic technical examinations, with the final rulings issued by the Supreme Court of the Russian Federation.