Official website of the Supreme Court of the Russian Federation
The Supreme Court of the Russian Federation has prepared a review of judicial practice concerning the specifics of disputes about the fate of buildings located in the security zones of pipelines and within the boundaries of the minimum distances to main or industrial pipelines.
The highest authority, in particular, explained which houses are not subject to demolition, which decisions on the liquidation of buildings need to be reviewed, and how to distinguish self-construction from a legal object.
Presumption of good faith defense
“A court decision on the demolition of a building located within the minimum distances to a main or industrial pipeline, made before August 4, 2021, may be revised due to new circumstances in accordance with paragraph 6 of part 4 of Article 392 of the Code of Civil Procedure of the Russian Federation, paragraph 6 of part 3 of Article 311 of the Arbitration Procedure Code RF, if, when it was issued, the circumstances related to the presence or absence of awareness of the owner of such a structure about the existence of restrictions on the use of the land plot were not established, or it was established that he did not know and could not know about the existence of these restrictions,” explains the Supreme Court.
He cites as an example a trial where the court refused to review, due to new circumstances, a decision to demolish a residential building, considering that the motive was the construction of a house in the area of minimum distances from the axis of the main gas pipeline.
“At the same time, the court of first instance did not check whether the residential building was an unauthorized construction in accordance with Article 222 of the Civil Code of the Russian Federation, but proceeded only from the fact that in violation of Part 6 of Article 28, Part 4 of Article 32 of the Law on Gas Supply, the building was erected within the zone of minimum distances to a gas pipeline belonging to production facilities of hazard class I, without obtaining the prior consent of the operating organization,” the highest authority indicates.
The review notes that the Supreme Court overturned the rulings of the courts of first and appellate instances, recalling that new circumstances include the establishment or change by federal law of the grounds for recognizing a building, structure or other structure as an unauthorized structure, which served as the basis for the adoption of a judicial act on the demolition of an unauthorized structure (introduced Law No. 340-FZ).
“The decision of the district court, which entered into legal force, satisfied the demands of society to the citizen to demolish the building. Moreover, at the time of consideration of the case, the person’s awareness of the existence of certain restrictions in relation to his land plot had no legal significance.
As amended by Article 222 of the Civil Code of the Russian Federation, which came into force on August 4, 2018, the presumption of protection of a bona fide creator of an object is enshrined: by virtue of the second paragraph of paragraph 1 of Article 222 of the Civil Code of the Russian Federation, a building, structure or other structure erected or created in violation of established rules is not an unauthorized construction in accordance with the law of restrictions on the use of a land plot, if the owner of this object did not know and could not know about the effect of these restrictions in relation to the land plot owned by him.
Article 222 of the Civil Code of the Russian Federation at the time the court made the decision to demolish the building did not provide for such a possibility, and therefore the person’s ignorance of the existence of certain restrictions in relation to the land plot could not exclude the recognition of the construction as unauthorized. From August 4, 2021, it is precisely the grounds for recognizing a building, structure or other structure as unauthorized construction that have changed,” explains the Supreme Court.
He emphasizes that, thus, in cases of demolition of buildings located within a zone with special conditions for the use of the territory, including within the boundaries of the minimum distances to main and industrial pipelines, from August 4, 2021 it is necessary to establish whether he knew and could the owner of the building should know about the existence of restrictions on the land plot he owns.
“If the defendant is aware, the erected structure may be recognized as unauthorized in accordance with the rules of Article 222 of the Civil Code of the Russian Federation, which does not provide for compensation for losses to the person who carried out the construction. If he did not know and could not know about the effect of the relevant restrictions, then the building may be demolished, but not as unauthorized and only with appropriate preliminary compensation.
Considering that the federal law has currently changed the grounds for recognizing an object as an unauthorized construction, the legally significant circumstances for resolving the question of whether a disputed object is an unauthorized construction include clarification of the circumstances, whether the citizen knew and could have known about the existence of relevant restrictions in regarding the land plot.
In connection with the entry into force of Law No. 340-FZ, paragraph 6 of part 4 of Article 392 of the Code of Civil Procedure of the Russian Federation, the right to review court decisions made before the introduction of the new legal regulation was given to the owners of buildings subject to demolition on the basis of previously issued court decisions,” the Supreme Court points out.
Main positions of the Armed Forces
In total, the Supreme Court in a 24-page review outlined 13 positions on disputes of this kind:
— the establishment of the boundaries and legal regime of a zone with special conditions for the use of the territory before approval by the Government of the Russian Federation on the basis of Article 106 of the Land Code of the Russian Federation of the relevant provision is carried out taking into account the transitional norms of Law No. 342-FZ in the manner that was in force until the day of its official publication;
— determination of the territory included within the boundaries of the minimum distances to the main or industrial pipeline, before establishing this zone in the manner established by Article 106 of the Land Code of the Russian Federation, is carried out taking into account the provisions of SNiP 2.05.06-85 *;
- until the day the zone of minimum distances to main or industrial pipelines is established in accordance with Article 106 of the Land Code of the Russian Federation, construction, reconstruction of buildings and structures within the boundaries of the minimum distances to these pipelines is allowed only in agreement with the organization that owns the pipeline or an organization authorized by it;
- a building erected in a pipeline security zone or within the minimum distances to a main or industrial pipeline is not unauthorized if the person did not know and could not know about the effect of restrictions on the use of the land plot, in particular, if public access to information about a zone with special conditions for the use of the territory and the boundaries of such a zone;
- the authorized body does not have the right to refuse to assign an address to a building or structure on the grounds that it is located on a land plot located within the boundaries of the minimum distances to the main gas pipeline;
— real estate objects located within the minimum distances to main or industrial pipelines, information about which is not included in the Unified State Register of Real Estate, are not subject to demolition;
— objects located within the minimum distances to main and industrial pipelines, information about which is included in the Unified State Register of Real Estate, are not subject to demolition, in cases established by Part 39 of Article 26 of Law No. 342-FZ;
— objects located within the minimum distances to main and industrial pipelines, information about which is included in the Unified State Register of Real Estate, are not subject to demolition, if it is possible to bring these objects into compliance with the restrictions on the use of the site;
— demolition of buildings, structures, unfinished construction projects (with the exception of unauthorized structures) located within the minimum distances to the main or industrial pipeline, information about which is entered into the Unified State Register of Real Estate after the construction of such real estate objects, is possible only subject to prior compensation;
- in the case of demolition, on the basis of a court decision made before August 4, 2021, of a building, structure, or unfinished construction site erected within the boundaries of the minimum distances to a main or industrial pipeline, a person who did not and could not know about the effect of the relevant restrictions in relation to land plot belonging to him, has the right to compensation for losses by the owner of such a pipeline or a government body, local government body at the expense of the relevant treasury;
- losses caused by the demolition of a building erected in the pipeline security zone or within the boundaries of the minimum distances of a main or industrial pipeline on a land plot provided for gardening before the division of public authority into municipal and state are compensated by local authorities and relevant state authorities in equal shares , unless a different distribution of the burden of property liability between them is established by federal laws;
— there are no grounds for compensation for losses caused by the demolition of a building, structure or other structure if the developer knew or should have known that the construction of the disputed object on the land plot was inadmissible.
Who will be affected by the law on forced seizure of housing?
MOSCOW, September 21 – PRIME, Natalya Karnova. Giving the authorities in the regions the right to resettle and demolish almost any housing increases the risk of Russians suddenly losing their usual property. The authorities promise that no one will be left on the street, but the displaced will have many problems. However, one can not only lose from the demolition of housing, but also win, according to experts interviewed by Prime.
A bill has been submitted to the State Duma allowing local authorities to adopt programs for the demolition and reconstruction of any housing, not just emergency housing. According to this document, renovation can be carried out with the consent of two-thirds of the total number of apartment owners in the building. Residents will be offered a choice - to receive an equivalent property in return or monetary compensation.
Families may have new options for using housing subsidies
The authors of the initiative refer to the capital’s experience of renovation, where all these standards have already been tested.
They are also trying to promote a controversial decision that was postponed in 2021 - declaring certain territories as integrated development zones. Moreover, municipalities can be given the right to do this.
Territories for integrated development may include those in which half of the development is occupied by unsafe, unauthorized buildings or buildings suitable for renovation. In this case, the remaining property may be forcibly seized for municipal needs.
According to experts interviewed by Prime, the main goal of the innovation is to renew real estate not only in the capital, but also in the regions. “There is a large volume of dilapidated and dilapidated buildings there, so one of the potential results of the program could be a reduction in the number of such objects and improvement of living conditions in the regions,” says managing partner Maria Litinetskaya.
In addition, if this law is adopted, it will be possible to free up attractive sites for developers. In Moscow, the system works exactly this way - developers fully or partially finance the resettlement of residential buildings and in return get the opportunity to build residential buildings, a shopping or business center.
WHOSE HOUSING WILL BE DEMOLISHED?
According to experts, the adoption of such a law increases the risk for Russians of suddenly finding themselves in housing doomed to demolition without notice. “However, in any case, this will be an exceptional situation, and the authorities will not use such an option without reason. Most likely, the bill will spell out all the grounds under which an apartment can be taken away from the owner,” believes Litinetskaya.
The authorities will not leave anyone on the street, but the proposed housing may not suit the displaced. Based on the experience of the Moscow renovation program, owners of apartments in buildings earmarked for demolition are offered a list of options for future resettlement. Therefore, an adequate replacement can only be chosen among these proposals. If desired, you can purchase additional meters.
Most likely, in the regions the process will be organized in a similar way, which means that complaints about poor-quality repairs, insufficient compensation, lack of infrastructure and inconvenient layout are quite likely.
To be fair, it is worth noting that many Muscovites are satisfied with the new apartments - at least they are more spacious. By law, equal and equivalent housing must be provided, based on city standards for each family member registered in the residential area. But, as a rule, modern apartments are larger in total square footage than those in demolished buildings, so the authorities “donate” several square meters, especially when it comes to two- and three-room apartments.
Renovation in Moscow will take place in three stages
“If we talk about demolition, it will affect the owners and tenants of residential premises in apartment buildings, owners of non-residential premises, as well as business entities renting premises in such buildings,” says Associate Professor of the Department of Civil Law Disciplines of the Russian Economic University. G.V. Plekhanova Natalya Svechnikova.
POSSIBLE PROBLEMS
In addition to the hassle associated with moving, new owners will have to re-obtain licenses and permits “tied” to the new address. Most likely, there will be a separate procedure for small and medium-sized businesses renting space in such buildings from the city, for example, as was the case in Moscow during renovation.
Banks that issued real estate loans will also face difficulties in re-registering collateral or in terms of closing loans due to the borrowers receiving cash compensation, the expert added.
Moscow's experience of paying compensation for housing sent for demolition suggests that difficulties are possible here too. So, if an apartment or house is pledged, it is necessary to obtain the consent of the pledge holder for such a replacement.
The owner of a residential premises in respect of which restrictions on rights or encumbrances are registered in the prescribed manner does not have the right to demand monetary compensation. For example, “Moscow law” prohibits taking money if minor children or dependent relatives are registered in the apartment, Svechnikova said.
STAY IN PLUS
It is worth noting that there is not enough funding in the regions, so the emergence of new residential complexes and the resettlement of citizens waiting for apartments is happening slowly. It is unlikely that the new program will significantly change this trend.
However, those who are eventually resettled may experience benefits as well as problems. Thus, their housing may become more expensive. After the launch of the renovation program in the capital, prices for housing in dilapidated buildings increased, since in the future it is possible to move from such apartments to more comfortable conditions.
In addition, the apartments that residents of such houses subsequently receive are valued much more expensive. The average price increase for houses on the renovation list ranged from 10% or more, depending on the area. A similar trend may be observed in the regions in the future.
