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Planning and environmental issues
Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?
Specific regulations about zoning and related matters concerning the use and occupation of land are decentralised to regional governments, as well as to provincial and district municipalities. The main regulations regarding the procedures followed by these authorities to organise urban and rural development are in the Regulation of Territorial Planning and Urban Development, approved by Supreme Decree 022-2016-VIVIENDA.
What are the eligibility, procedural and documentary requirements to obtain planning permission?
Any real estate project must be in accordance with the zoning of the respective area where it would be executed. Otherwise, the corresponding municipal licences will be denied by the competent municipality. Zoning is regulated by the provincial municipalities, as established in the Organic Law of Municipalities (Law 27972).
A modification to the corresponding zoning can be achieved, either on the initiative of the municipality or at the request of a third party. In the latter case, the results of a neighbourhood consultation must be provided. These results are not binding on the municipality but will be considered during evaluation of the request.
If the project is in accordance with the zoning, the next step is to evaluate whether the property is rural or has already been urbanised. In the first scenario, an urban habilitation procedure (ie, land development) must be carried out before starting to build any urban construction. In principle, constructions that will serve for human urban activities (eg, residential, commercial or industrial activities) can only be carried out on an already urbanised property.
To obtain either a land development licence or a building licence, the local municipality verifies whether the project complies with zoning regulations and permitted uses, as well as with urban and building regulations. It is not necessary to perform a public consultation for these purposes. It can also be requested that the competent municipality approve the draft building project, which involves making a decision on the viability of the real estate project before granting a definitive licence.
Can planning decisions be appealed? If so, what is the appeal procedure?
With regard to municipal licences, an adverse decision from the municipality can be appealed first at the administrative level. If the decision is confirmed by the corresponding municipal authority, it is then possible to appeal such decision at a judicial level.
On the other hand, a municipality decision regarding a change of zoning request can only be judicially appealed to overturn irregularities in the procedure which might have affected the result of the request.
What are the consequences of failure to comply with planning decisions or regulations?
A failure to comply with planning decisions or regulations will cause the denial of the requested construction licence for the execution of the project. An unlicensed construction is subject to demolition by the competent municipality, in addition to an economic sanction imposed on the offender.
If a licence has been granted and this contravenes the planning regulation, the licence will be nullified. If this happens, any construction carried out under the licence may be demolished by the competent authority.
What regime governs the protection and development of historic and cultural buildings?
Protection of historic monuments in Peru is mainly regulated by the General Law of National Cultural Heritage (Law 28296). The transfer of ownership between particular individuals of any real estate which forms part of the national cultural heritage must be notified to the competent authorities, under penalty of nullity, given that the state has a first right in any onerous transfer.
In addition, prior authorisation from the Ministry of Culture is needed to dismember, alter, construct, modify or restore, wholly or partly, any real estate which is part of the national cultural heritage.
What regime applies to government expropriation of real estate?
Article 70 of the Constitution provides that the state can expropriate real estate for reasons of national security or public necessity provided by the law, on payment of fair compensation and proven damages incurred by the owner.
Legislative Decree 1192 regulates the expropriation procedure, stating that it must be expressly authorised by the law issued by Congress and only in favour of the state.
Fair compensation includes the appraised commercial value of the property, determined by the Ministry of Housing, and proven damages incurred by the owner.
What is the required notice period for expropriation and how is compensation calculated?
Regarding the vacancy and delivery of the properties subject to expropriation, the notice period is as follows:
- In the case of unoccupied properties, the vacancy and delivery of the expropriated property must be carried out within a maximum period of 10 business days from the notification to the owner with the administrative resolution which ordered the execution of the expropriation procedure.
- In the case of occupied properties, the term is 30 business days.
In both cases this must take place under the warning of initiating a coercive enforcement procedure for the eviction or takeover of the property subject to expropriation.
Compensation must be deposited in favour of the owner within a maximum of 10 business days from the issuance of the administrative resolution. In cases of payments linked to trust funds or other complex operations, the term may be extended to up to 60 working days. Compensation is determined through a commercial appraisal, carried out by experts appointed by the corresponding authority.
The right of expropriation of the public entity in whose favour the expropriation was approved by law expires within 60 months from the date on which said law entered into force if the corresponding expropriation procedure has not been initiated.
What environmental certifications are required for the development of real estate and how are they obtained?
The Environmental Regulations for Projects related to Housing, Urbanism, Construction and Sanitation Activities (approved by Supreme Decree 015-2012-VIVIENDA and amended by Supreme Decree 019-2014-VIVIENDA) establish that title holders of new projects must submit an environmental management instrument before the Ministry of Housing, Construction and Sanitation before their development in order to obtain corresponding environmental certification.
These regulations classify the environmental management instruments as follows:
- environmental impact statement (declaración de impacto ambiental or DIA) – Category I;
- semi-detailed environmental impact assessment (estudio de impacto ambiental semidetallado or EIA-sd) – Category II; and
- detailed environmental impact assessment (estudio de impacto ambiental detallado or EIA-d) – Category III.
The applicable environmental management instrument for a real estate project will depend on the damage that such a project could do to the environment.
Annex II of the Regulations of the Law of the National System of Environmental Impact Assessment (Law 27446) approved by Supreme Decree 019-2009-MINAM, as modified, contains a list of real estate projects which require the approval of an environmental management instrument.
Given that the Ministry of Housing has yet to issue any special guidelines or regulations regarding specific environmental management instruments (ie, DIA, EIA-sd or EIA-d), the holders of these investment projects must request the project’s classification by submitting a preliminary environmental assessment (evaluación ambiental preliminar or EVAP) following the provisions set out by the Environmental Regulations for Projects related to Housing, Urbanism, Construction and Sanitation Activities.
After the EVAP has been evaluated, the ministry may determine:
- that the project is included in Category I, and therefore the text of the EVAP becomes the approved DIA; or
- that the project is included in Categories II or III, and therefore the title holder must elaborate either an EIAsd or EIAd, as appropriate, pursuant to the terms of reference approved by the ministry, and later submit it for its approval.
What environmental disclosure obligations apply to real estate sales?
There are no environmental disclosure obligations that apply to real estate sales. In a purchase or sale of real estate in Peru, it is not common to carry out environmental surveys and searches, or to obtain environmental insurance. However, buyers could carry out environmental due diligence to verify, among other things, that environmental licences are necessary for the development of the real estate project and ongoing administrative procedures and litigation regarding environmental matters (ie, contaminated land). This occurs mainly in transactions were, due to the nature or location of the land, a potential risk of environmental issues could be expected (a site visit performed by a technical adviser could be necessary).
What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?
There are no specific regulatory measures with respect to environmental clean-up.
However, under the cost internalisation principle and environmental liability principle embedded in the General Environmental Law (Law 28611), an agent who, by use or exploitation of an asset or carrying out an activity, causes degradation to the environment, its components or the quality of life, health or assets of one or more individuals is required to adopt measures for its restoration, rehabilitation or reparation, as appropriate, and to assume all the costs related to prevention, mitigation, surveillance and monitoring of such activities. These measures could involve clean-up actions.
Therefore, the polluter is always liable for clean-up, regardless of whether it is the occupier or owner of the property. In this regard, in a purchase of real estate the buyer is not liable for investigation and clean-up of contamination on the land.
If the original polluter cannot be identified, is insolvent or is otherwise unable to undertake the clean-up, the buyer cannot assume liability for the environmental pollution as the current owner or occupier.
Without prejudice to this, environmental liability, responsibility or risk can be contractually transferred to a third party in the sale contract of the property, but this would only legally bind the parties to the contract.
Additionally, the Environmental Regulations for Projects related to Housing, Urbanism, Construction and Sanitation Activities provide that the Ministry of Housing’s General Bureau of Environmental Affairs shall promote decontamination plans and the recovery of deteriorated/altered sites regarding activities in this sector. Decontamination plans shall be formulated under the criteria established for this purpose by the Ministry of the Environment. However, to date, the ministry has yet to develop applicable criteria for said remediation instruments.
Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?
There is no specific legislation requiring buildings to meet certain minimum efficiency criteria. However, the National Environmental Policy has, as part of its objectives, fostered appropriate technologies to adapt to climate change and the mitigation of greenhouse gas emissions. The government has enacted Supreme Decree 009-2009-MINAM to implement eco-efficient measures in the public sector. These measures are binding on all public entities and are also intended to apply to anyone offering their services to the state.
The Environmental Regulations for Projects related to Housing, Urbanism, Construction and Sanitation Activities include some environmental measures that apply to new and existing buildings. Title holders of activities in this sector which were operating before October 14 2012 and have no environmental certification must submit an environmental management and adequacy programme (programa de adecuación y manejo ambiental or PAMA) before the competent authority, in this case the Ministry of Housing.
On the other hand, as mentioned above, title holders of new projects, before their development, must submit an environmental impact assessment before the ministry to obtain environmental certification.
The ministry’s General Bureau of Environmental Affairs is responsible for promoting, among other things, research and scientific and technological development in sectoral environmental matters in order to generate clean environmental technologies applied to construction activities.
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