03.08.2015 — New Test for Unauthorized Construction
Amendments to the civil law rules on unauthorized constructions will enter into force in September 2015.
To recall, if your building is qualified as an unauthorized construction you will not acquire property rights with respect to it. Such a construction may be demolished under a court decision. Any interested person or supervisory authority may file a claim for demolition. Only the landowner is able to make such a construction legitimate, if he proves that the preservation of the object does not pose a threat to human life and health.
Starting from September 2015, the test of an unauthorized construction will change. Below we examine these changes and their possible consequences. For a better illustration, the changes are presented in track changes mode:
Unauthorized construction is an object which is constructed:
On a land plot,
which was not allotted for these purposes in accordance with the procedure set out in the relevant laws and other legal acts, which was not granted in accordance with the relevant procedure, or a land plot, whose permitted use does not allow construction of an object of such kind;
Without the necessary permits;
With a material violation of the city-planning and construction rules.
The new wording of the first bullet specifies the key characteristic and reflects the interpretation established in the court practice. In other words, if someone arbitrarily occupies a land plot and constructs an object there, such an object will be an unauthorized construction. Similarly, the object will be unauthorized if the person was provided with land for agricultural purposes, but constructs a shopping center in it.
The second bullet was not amended. As a general rule, development of any major project (building, construction, installation) requires an official permit. If a person constructs an object without such a permit, the object is regarded as an unauthorized construction.
The change in the third bullet can entail important consequences. If this provision is to be interpreted literally, it means that any violation of construction rules (even a non-material one) implies that such an object is an unauthorized construction and should be demolished. Such an approach is obviously excessive. The courts have to establish on a case-by-case basis, whether it is possible to keep the object despite the violation. We hope that the courts will not apply these provisions literally, and on the contrary will evaluate the severity of violations and recognize objects as unauthorized only in extreme cases when their preservation poses a threat to human life and health.