In Which Cases Can An Unauthorized Structure Be Demolished?
Property owners often believe that if they hold an ownership title certificate to a structure, they can be sure that it will not be demolished. However, this is not always true: unauthorized structures not only include the structures that have no underlying documents, but also the structures, whose construction was based on documents that were obtained with violations, or involved violations of building norms and rules. Moreover, of late, in some cases such a structure may be demolished even without a court judgment – that is, under an administrative procedure.
This Newsletter provided by Mosgo & Partners discusses the amendments into Article 222 of the Russian Civil Code.
1. FORMER VERSION OF ARTICLE 222 OF THE RUSSIAN CIVIL CODE
According to the previous version of Article 222 of the Russian Civil Code, an unauthorized structure meant real property created in a land plot, not allocated for such purposes, without obtaining the necessary permits, or involving material violations of city-planning norms and rules.
The availability of an ownership title certificate does not guarantee the inviolability of the structure.
In general, the person who has completed an unauthorized structure, shall demolish it. However, where certain conditions are met, the structure may be legalized, by having a court recognize an ownership title thereto, if such a structure does not violate the rights and legal interests of other persons and creates no threats to the life and health of individuals.
2. WHAT HAS CHANGED?
The notion of “unauthorized structure”
From the standpoint of concept, the group of properties that fall under the definition of “unauthorized structure” has not changed; however, the notion itself has become more detailed. Thus, the legal definition has been supplemented with the criterion of incompliance with the type of permitted use of the land plot, allowing to facilitate the declaration of structures as unauthorized in practice. In addition, the definition no longer includes the criterion of material breach of (city-) planning norms and rules, which allows declaring any structure that deviates from the applicable planning rules by its technical properties, an unauthorized structure. Perhaps, this provision will be adjusted by the judicial practice in case of manifestly minor violations.
The new version of the law has legalized the demolition of unauthorized structures under an administrative procedure, in case the structure has been erected:
- in a land plot situated in a use-restricted zone that has not been allocated in the manner prescribed for such purposes;
- in a common area;
- in the right-of-way areas for utility systems of federal, regional or local importance.
In some cases, an unauthorized structure may be demolished without a court judgment.
The local self-government body may have an unauthorized structure demolished irrespective of whose ownership (federal, municipal ownership, the ownership of a constituent territory of the Russian Federation) the land plot underlying it belongs to.
Criteria for recognition of ownership title
It is now more difficult to legalize the structure; this will require simultaneous fulfillment of the following conditions:
the person who completed the structure, shall hold rights, permitting construction of such a structure in the land plot, with respect to such a land plot;
as of the date of submission to court, the structure shall conform to the area planning rules, the rules for use of land and development, or the mandatory requirements applicable to the characteristics of the structure, set out in other documents;
the continued existence of the structure does not violate the rights and legally protected interests of other persons and creates no threat to the life and health of citizens.
Property owners should be aware that even if they hold documents to the structure (ownership title certificates, commissioning permits), these do not provide guarantees that the structure will not be demolished if its construction involved violations of any legal rules.
Moreover, demolition is at present possible without a court judgment, albeit only in cities and inter-settlement territories of municipal districts.