How local self-government will use the legal instrument of extrajudicial demolition of unauthorized buildings, time will show.
The administrations of the cities of the Caucasian Mineral Waters occupy different positions with regard to the right to administrative demolition of unauthorized buildings, granted them last year's amendments to the Civil Code. In Pyatigorsk, the authorities are determined to act decisively in this direction, in Essentuki and Kislovodsk they are still afraid to struggle with unauthorized construction in the style of the Moscow mayor's office, famous for the nighttime demolition of shopping facilities near the subway. Meanwhile, the legal society insists that the main mechanism for demolishing unauthorized buildings must be judicial, since the administrative order of demolition affects the constitutional rights of citizens.
Violence disguised as demolition
New aspects of the "eternal" topic for the North Caucasus were the subject of discussion as part of the scientific roundtable "Demolition and Legalization of Unauthorized Buildings: Trends in Legislation and Judicial Practice" held in Pyatigorsk, organized by the National Law Company “Mitra” under VI St. Petersburg International Legal Forum. This event is annually held in St. Petersburg on the initiative of the Ministry of Justice of the Russian Federation and with the support of the Russian President.
"As our round table was included in the program of St. Petersburg International Legal Forum, the results of the discussion will be evaluated by leading jurists of the country and will be important for the development of the law according to the stated subject," said Yury Mirzoev, CEO of “Mitra”. "Therefore, I would like to express my gratitude to all participants of the round table, who took the time in their work schedules for taking part in our event."
The main discussion in Pyatigorsk was about paragraph 4 of Article 222 of the Civil Code of the Russian Federation (unauthorized construction), introduced by Federal Law No. 258-FZ of July 13 last year.
This clause gave the bodies of local self-government the power to make decisions on the demolition of unauthorized constructions on land plots that were not provided in according with the established procedure for these purposes and located in zones with special conditions for use of the territories or on the territory of common use or in the zone of right-of-way of utility networks.
The first case of application this norm was the demolition of shopping complexes near the subway stations, carried out by the Moscow Mayor's Office in February this year.
"Amendments to Article 222 of the Civil Code were introduced and continue to be introduced. These innovations have made a lot of noise, and perhaps we will observe this with us. Therefore, it would be nice to prepare for this, "Konstantin Serdyukov, the head of private law practice of “Mitra”, said in the opening speech of the forum.
According with him, the main task in connection with the latest amendments to Article 222 of the Civil Code of the Russian Federation is to establish a dialogue between the business that risks to have huge losses and the authorities. As local governments supervise the construction and often appear in court with demands for demolition. The third key participant in this discussion should be the courts, which are to assess the lawfulness of the actions of developers and local governments.
A well-known lawyer and attorney, Doctor of Law Konstantin Sklovsky, speaking at the conference as the main invited expert, believes that the demolition of unauthorized construction should be carried out exclusively in court - except in cases where it is impossible to identify its owner.
"The question of administrative demolition is constitutional," Sklovsky said. "It only seems to us that this is a demolition of unauthorized construction." In fact, the point of dispute is that the plaintiff has the right to drive out the defendant, and then to demolish.
Demolition always assumes that the defendant will be kicked out, but driving out people is violence against the owners of the building. Violence is not against the structure, but against the person. Therefore, the case of demolition of unauthorized buildings must go to court, because we can`t demolish it if we do not get permission for violence, and this can only be done by the court. "
At the same time, Konstantin Sklovsky noted that the amendments to Article 222 of the Civil Code of the Russian Federation are formulated very vaguely, which leaves a room for the "creativity" of the authorities.
"The Moscow authorities understood paragraph 4 of Article 222 literally not by stupidity, but because they wanted to understand so. But if they acted correctly, then why was the demolition carried out at night? "- commented Sklovskii the situations in the capital.
"It is clear that paragraph 4 was lobbied by local authorities, but this is a fairly dubious conquest. It is necessary to read this rule literally, but literally it does not provide for demolition, except for the case of an absent builder, said "the lawyer, expressing the hope that the local self-government authorities themselves are not interested in conflicts with owners of unauthorized buildings, since it is easier for them to obtain decisions on demolition Court order, and they are unlikely to refuse their courts.
Officials at the Crossroads
Meanwhile, some representatives of city administrations who took part in the conference did not hide their welcoming attitude to the new powers that the legislator granted them. In the opinion of Angelina Ivanova, Deputy Head of the Legal Department of the Pyatigorsk Administration, the granting to municipalities of the right to demolish unauthorized buildings in administrative order is "an attempt to somehow quickly put in order the architecture of settlements."
"The possibility of demolishing unauthorized buildings in administrative order is a plus, and this practice has begun. Of course, the process is not indisputable, it is not smooth, but it has a positive tendency, and we, the resort cities of federal significance, in this case have priority, since we a priori are special zones. You can blame me for being an interested person, but you know how the face of our cities is disfigured, "Ivanova said, without excluding, however, the possibility of the appearance of grounds for administrative arbitrariness.
At the same time, a representative of the administration of Pyatigorsk acknowledged that the priority order in the demolition of unauthorized buildings is judicial, and this caused logical questions from the legal society.
"How will you distinguish between objects for which you will demolish in administrative order and for which you will go to court? - One of the conference participants asked the official. "We have the principle of equality before the law, and administrative and judicial approaches should not differ".
"Criterion - the existence of a judicial act or a registered right. If there is a fact of registration of a right or the court recognizes the illegal decision to demolish the court order is mandatory, "Angelina Ivanova replied.
"We can almost demolish any unauthorized structure in resort cities, since we are all covered by security zones," Dmitry Margaryan, the head of the legal department of the Pyatigorsk administration, supported the colleague, saying that the provision for administrative demolition in the city was made even earlier than in Moscow. At the moment, more than 40 objects have been considered in total, and more than 20 of them have already been demolished.
However, the administrative impulse of Pyatigorsk is not supported by all the administrations of the cities of Caucasian Mineral Waters. "We have the administrative demolition regulations, but the practice has not been worked out yet," said Sergei Pavlov, chairman of the municipal property committee of Essentuki, who explained that the Essentuki administration was neatly approaching this issue. Because the demolition without results of a court decision could be named as arbitrariness.
According with opinion of Pavlov, a commission for unauthorized construction was created in Essentuki, but it has not yet reached the courts. As the city administration hopes that the "self-willers" themselves will clean their facilities. At the same time, the official is sure that it is forensic expertise that will give more convincing arguments in favor of the demolition, since unilateral expertise by local authorities does not give full confidence in the validity of such actions.
Similar position is in the administration of Kislovodsk. "We took the provision on administrative demolition, put it in front of us, formed a list of objects, but now we are afraid to take these measures," Tatyana Zagumennova, deputy head of the city administration, confessed.
"As an official and a bureaucrat I can say that the administrative order of demolition is convenient," she said. - But as a lawyer, I treat him more conservatively, because each such case is individual. No matter how much we discuss this topic, the main thing is judicial practice. "
Developer in the risk zone
Representatives of city administrations, upholding a cautious position, separately noted that today there is no possibility to provide executive lists to bailiffs on the basis of administrative demolition acts, and without the bailiff's writ of execution they will not be demolishing unauthorized buildings. While the relevant amendments will not be included in legislation on enforcement proceedings, the actions of administrations will be subject to appeal in court and attract the attention of both the population and law enforcement agencies, Tatyana Zagumennova said.
Representatives of the legal society fully agree with this position. According with the partner of the head of land and town planning practice of the company "Mitra" Roman Djakov, the practice of applying clause 4 of Article 222 has not yet been formed, as long as there are no legal disputes on it, and how local self-government authorities will use the instrument of extrajudicial demolition of the unauthorized constructions, time will show.
"Generally, the practice of demolishing capital construction projects on the territory of Caucasian Mineral Waters is ambiguous," Roman Djakov notes. - There are precedents when the developer in according with the established procedure leases a land plot, receives the necessary approvals from all authorities and a building permit, starts the building of the object, but the court still recognizes it as unauthorized construction - for example, on the grounds that part of the land plot Is occupied by a water body. "
Actually, this is recognized by the representatives of administrations. "If there is at least one of the signs of unauthorized construction, then it can be officially recognized as unauthorized - so is the judicial practice", - noted Angelina Ivanova.
Therefore, lawyers state that granting administrations the right to demolish unauthorized buildings at their own discretion creates additional risks even for bona fide developers who may at any time encounter the fact that their buildings will be deemed unauthorized.
For example, courts of general jurisdiction now have accumulated a lot of cases, linked with the abolition of building permits by administrations in connection with citizens' appeals, and in this case one can`t exclude that the administration will choose a formal approach and take a decision on demolition.
"The exchange of views on the prospects for using the administrative order for the demolition of unauthorized buildings revealed an ambiguous attitude of lawyers towards this method of fighting unauthorized construction," Yury Mirzoev said - At the same time, a common opinion was expressed that the point in the discussion on the admissibility of demolition of unauthorized constructions in an out-of-court order is still too early to be established, since the practice of using the mechanism of demolition of unauthorized buildings, formed by local governments, should be assessed by the judicial power in the consideration of specific disputes ".
Materials were taken from "Kavpolit"
