New rules to recognize a structure as unauthorized

On 1 September 2015, the amendments to Article 222 of the Civil Code of the Russian Federation (CC RF), Federal Law of 13 July 2015, No. 258-FL, On Amendments to Art. 222 of the Civil Code of the Russian Federation and the Federal Law “On enforcement of the first part of the Civil Code of the Russian Federation,” came into effect. The amendments clarify rules to determine what constitutes unauthorized construction.

The rules have changed in the following ways: more objects will qualify as unauthorized construction, it will be more difficult to legalize construction, and demolition will be possible as an administrative or out-of-court order.

The new definition of the term “unauthorized construction”

Now, the definition of unauthorized construction is:

1. a building, structure, or construction built on land not provided for in accordance with established procedures or built on the land which does not allow for the construction of the object on it (a list of objects that can be considered as unauthorized construction is closed, and the CC RF does not have any definition aside from “other immovable property”); and

2. objects constructed without obtaining the necessary permits or in violation of planning and building regulations (the previous version of Article 222 of the CC RF dealt with substantial violations of these rules and regulations, while now, because of the word “essential” does not appear in the text, any breach is enough to recognize a structure as unauthorized).

For example, according to the planning documents (a master plan or rules of land use and development) of a municipality, an individual apartment house must be located on a particular plot of land, but the construction of the store is taking place, which the city administration has approved. Such an object may fall into the category of unauthorized construction because it contradicts planning documents of the municipality.

For the first time, the legislation considers objects in compliance with a formal procedure but have functions contrary to what the planning documents have specified for the land as being eligible for classification as unauthorized construction.

The procedure of legalizing unauthorized construction has become more complicated

The legislature introduced additional requirements for courts to declare unauthorized construction as legal:*

1. the law now requires that documents of title to a plot of land should allow for the construction of an object that the authorities have classified as unauthorized construction; and
2. on the day of filing with the court, the unauthorized construction must not contradict parameters that the planning documents of the municipality establish.

The amendments introduce an administrative (nonjudicial) procedure to demolish unauthorized construction

Now, the demolition of unauthorized construction is possible through an administrative procedure, that is, without trial and on the basis of a local government’s decision.

This procedure is only possible in the case when a structure in question has a purpose not prescribed for the land and if the land is located:

1. in the area with special conditions for land use;

2. on common areas, that is, public space; and

3. on the right-of-way (ROW) of federal, regional, or local utility services.

Within seven days from when a local government makes the decision to demolish an unauthorized construction, the body that made the decision must send a copy of its decision to the person who undertook the unauthorized construction. The decision must inform the recipient about the period of voluntary demolition of the unauthorized construction, which may not exceed 12 months.

If a person who built the unauthorized construction is unknown and the local government cannot determine the identity of this person, it shall publish the information about the decision to demolish the structure in the media. In this case, the body which disclosed the unauthorized construction may demolish it.

* There is one additional requirement that applies to judicial practice and appears in Paragraph 2 of Point 26 of the Resolution of the Plenum of the Supreme Court, dated 29 April 2010, No. 10b, and of the Plenum of the Russian Federation, dated 29 April 2010, No. 22, On some issues arising in judicial practice pertaining to the resolution of disputes relating to the protection of property rights and other proprietary rights, according to which the court must determine whether a person who had built an unauthorized building attempted to legitimize it through an administrative procedure, i.e., the individual tried to obtain a building permit or an act of commissioning. The court also may examine the legitimacy of a refusal to authorize construction.