Changes of legislation on unauthorised structures
Starting from 4 August 2018, a range of major legislation changes came into force in relation to unauthorised structures (in particular, amending the definition of "unauthorised structure", allowing an unauthorised structure to be made compliant with applicable requirements, determining the competence of municipal authorities on this subject): (i) revision of Article 222 of the Russian Civil Code1 and (ii) addition of Chapter 6.4 to the Russian Town-Planning Code, which established the procedure for demolishing capital structures (see section 2.1 below for details on the definition of "capital structures")2. Key changes include:
Amendment of the definition of an unauthorised structure
A building or other capital structure can be qualified as an unauthorised structure only if it was constructed in violation of rules and regulations effective both at the moment (i) the construction began, and (ii) such unauthorised construction was detected. A building or other capital structure cannot be qualified as an unauthorised structure if it was constructed in violation of the restrictions for the use of a land plot and the owner of this building or other capital structure did not know and could not have known about such restrictions.
Introduction of an alternative to a demolition order - a decision on making an unauthorised structure compliant with applicable requirements and other amendments of regulations on unauthorised structures
As an alternative to a demolition order, a court or municipal authorities may take a decision to either demolish an unauthorised structure or make it compliant with (i) rules for land use and development, (ii) area planning documentation, (iii) maximum construction parameters established by law (Decision). Following the Decision, the affected person or entity appears to be free to choose between the two options above.
The mechanism of making and enforcing the Decision is vague and its practical implementation might prove difficult. In particular it is not clear whether the court or municipal authorities must take the Decision (when it is allowed by law) or this is left at their discretion.
New procedure for qualifying a building as an unauthorised structure
When the supervisory authority (the number of which is limited) detects an unauthorised structure, it shall report to a municipal authority. Once the municipal authority conducts its own investigation, it may: (i) issue a demolition order; (ii) issue a Decision; (iii) file a claim in a court to demolish an authorised structure or make it compliant with applicable requirements; or (iv) conclude that there are no grounds to qualify a building or other capital structure as an unauthorised structure.
It is not clear whether the procedure above will be the only possible way to qualify a capital structure as an unauthorised structure, or it can coexist in parallel with the currently established practice when interested entities or persons (for instance the public prosecutor or individuals) may file a demolition claim in a court directly without first applying to supervisory or municipal authorities.
Persons/entities affected by a demolition order or the Decision
A demolition order or the Decision can primarily be addressed to the persons/entities who/which constructed an unauthorised structure or at their expense.
If there is no information on such entities / persons - a demolition order or a Decision is to be issued in the name of the following right holders of a land plot under an unauthorised structure: (i) a holder of property rights (ownership, permanent (perpetual) use, lifetime inherited possession); or (ii) a lessee of a state or municipally owned land plot (Public LP).
Acquisition of title to an unauthorised structure
The rule that only a property right holder of a land plot may claim in court recognition of its title to an unauthorised structure remains unchanged.
Such right holder also acquires title to an unauthorised structure by making it compliant with applicable requirements based on the Decision. The same rule shall apply to the lessee of a Public LP, if (i) this land plot is allocated for construction purposes, and (ii) acquisition of the title to an unauthorised structure does not contradict any law or contract.
Enforcement of a demolition order and the Decision
The time-limits for demolishing an unauthorised structure may not be shorter than three months and longer than twelve months, and for making it compliant with applicable requirements may not be shorter than six months and longer than three years.
If a Decision is adopted in respect of an unauthorised structure, such structure shall be made compliant with applicable requirements in accordance with a procedure established for reconstruction.
The failure to demolish an unauthorised structure or make it compliant with applicable requirements within the specified time-limits may result in:
- Depriving a private owner of a land plot on which an unauthorised structure is located through a sale by auction
- Terminating a lease agreement of a Public LP, and
- Demolishing an unauthorised structure or making it compliant with applicable requirements by municipal authorities at the expenses of a (i) person/entity that built an unauthorised structure or (ii) right holder of a land plot on which an unauthorised structure is located
Competence of municipal authorities related to unauthorised structures
Municipal authorities do not have authority to take any decisions related to an unauthorised structure if:
- Title to such "unauthorised structure" is registered in the Unified State Register of Immovable Property or recognised by a court;
- A court has previously dismissed the claim for qualification of a capital structure as an unauthorised structure;
- The Decision relates to a multi-family residential house, residential house or garden cottage;
- A capital structure (i) is located on a privately owned land plot and (ii) does not pose a threat to human life and health.
Subject to the restrictions above, municipal authorities may issue:
- A demolition order if an unauthorised structure was built on a land plot (i) in respect of which no rights had been formalised at the time when construction commenced; or (ii) within a territory of common use provided that permitted use of such land plot does not allow construction of a capital structure in question
- A Decision, if an unauthorised structure was constructed on a land plot the permitted use of which does not allow its construction, and at least one of the following conditions is satisfied: (i) an unauthorised structure is located within a zone of restricted use that does not allow its construction; or (ii) a construction permit is absent
Other changes introduced by Law No. 340-FZ3
Introduction of a procedure for demolishing capital structures
A unified procedure for demolishing capital structures was introduced. This procedure does not apply to demolition for the purposes of new construction, where the general construction rules apply. The new procedure sets forth the following main rules:
- Entities carrying out demolition works must be members of self-regulated organisations in the field of construction
- A work organisation plan is required to be prepared for the purposes of demolition
- Municipal authorities must be informed about planned and completed demolition
- Prior to demolition a capital structure shall be disconnected from public utilities
Simplification of the procedure for constructing private individual houses
A "private individual housing object" (Individual Residential House) is defined as a stand-alone building with a height of up to 3 above-ground floors (20 meters) constructed for residential purposes.
It is established among other things that construction or reconstruction of the Individual Residential House does not require a construction permit. Instead, municipal authorities must be informed about planned construction or reconstruction and completion of such construction or reconstruction.
Law No. 342-FZ4
Subject to few exceptions the amendments introduced by Law No. 342-FZ will come into force on 1 January 2019.
Clarification of the definition of "capital structure"
A capital structure does not include non-capital buildings and structures, nor non-removable improvements of a land plot such as pavement, surfacing, etc.
Non-capital buildings and structures are defined as objects (i) that are not attached permanently to the land, and (ii) technical characteristics of which allow their movement, dismantling and subsequent assembly without significant damage to their purpose and change of their main parameters.
Establishment of a new regulation of zones with restricted use
The Russian Land Code was supplemented with a new chapter on the legal status of zones with restricted use. A number of new provisions in this respect were also introduced to other parts of the Russian Land Code and various other laws. Main changes are outlined below:
- An exhaustive list of zones with restricted use was established. The Government of the Russian Federation shall adopt individual regulations for each such zone (excluding those zones status of which is governed by federal laws), where the status of the zones will be defined in greater detail
- A zone with restricted use is deemed to be established at the moment it is recorded in the Real Estate Register. However, prior to 1 January 2022, if the Real Estate Register does not contain information about a zone with restricted use, such zone will nevertheless be deemed established if a normative act establishing such zone with restricted use entered into force before the publication date of Law No. 342-FZ (4 August 2018)
- The consequences of establishing a zone with restricted use are as follows:
- An owner of a capital structure that does not comply with the regime of this zone shall either make it compliant with the applicable regime, or demolish the capital structure
- A right holder of a land plot that cannot use this land plot due to establishing a zone with restricted use may demand that the owner of a capital structure around which this zone was established, or state authorities, or municipal authorities buy out the relevant land plot. The same rule applies to the owner of a capital structure in relation to which no demolition order or the Decision was issued
- A right holder of land plot and capital structure that suffered loss due to establishment of a zone with restricted use is entitled to receive compensation for such loss from an owner of a capital structure around which this zone was established, or state authorities, or municipal authorities
Law No. 342-FZ introduced a large number of transitional provisions that will be effective until the new rules fully come into force.
Establishment of the new requirements for preparation of design documentation
The changes include the requirements to composition of design documentation and the content of its sections.
Capital structures will be classified in a classifier according to their designated use and other technical characteristics. The classifier is intended to optimise architectural and construction design and maintain the unified state register of expert opinions of design documentation.
The criteria for recognising design documentation as cost-effective and suitable for repeated use have been revised.
Improvement of the information system in the field of town-planning
The volume of information to be included in the state information systems on town-planning activities (this system will be called "GISOGD" - starting from 1 January 2019) was expanded.
Currently, the information systems include data on the development of territories, existing capital structures and those under construction, as well as other data related to town-planning activities. Regional authorities maintain these systems. The Russian Town-Planning Code provides a possibility to obtain data from these systems upon request of interested persons and entities.
Starting from 1 January 2019 data from mentioned information systems shall be accessible via on-line services.
Law No. 342-FZ5
Law No. 341-FZ sets the rules for establishing, changing and terminating public easements for placing linear facilities (power transmission lines, pipelines, etc.). Certain changes were also introduced to the general provisions on public easements. In particular, such easements will only be regulated by the Russian Land Code and the provisions of the Russian Civil Code shall not apply.