In a new issue of newspaper “Kommersant” was published an interview of the lawyer of National Law Company “Mitra” Roman Adilhanov, where he shared his voice on the actual questions, which were linked with real estate and law enforcement practice.
- The Federal Center has expanded the authorization list of local authorities to demolish illegal buildings. What consequences, in your opinion, can such rules cause?
- New edition of Art. 222 of the Civil Code of the Russian Federation simplified the work on combating unauthorized construction. Withholding and the anticipatory effect of this rule: the practice of erecting objects with violation of town planning legislation and land self-seizure should be determined to decrease. With this point, the will of the legislator is also understandable, which is aimed at applying civilized approaches to the development of territories and preventing violations in the sphere of land use and urban development.
However, the law enforcement practice art. 222 of the Civil Code of the Russian Federation has already revealed a number of contradictions. They concern compliance with the balance of property interests of developers or owners of buildings, states, as well as the interests of third parties.
Can you give an example?
- In according with Art. 35 of the Constitution of the Russian Federation, no one can be deprived of his property except by a court decision. However, in according with the new edition, residential and non-residential properties can be demolished by order of the municipality without a court decision, if they don`t meet certain criteria. For example, if an object is located on a land plot not intended for this purpose. Thus, conflicts of law arise, the imputation of guilt without a proper trial and the violation of the interests of the persons who raised the disputed objects.
So, local government bodies are obliged to send a copy of such decision to the developer within seven days from the date of the decision to demolish the unauthorized building, indicating the time for demolition of the unauthorized construction. The term is set taking into account the nature of the unauthorized construction, but can`t be more than 12 months. In practice, there are often cases when the time for the demolition of a disputed object is up to 20 days.
Of course, a person whose rights are violated, have the right to apply to the court. But the time for consideration by the court of the claims of the plaintiff does not allow to provide timely protection from the unjustified decision of the municipality to demolish or at least suspend the action of such a decision until the case is examined by the court on its merits.
In addition, a number of objects built in the 1960s and 1970s with violation of the current town planning norms and land use rules can be demolished by local authorities for several weeks. After all, in the absence of any documents, no one knows when this property was built and, accordingly, what legislation operated during that period.
- What changes are necessary to eliminate contradictions?
- It is necessary to work out in more detail the mechanism of practical implementation of the new edition of Art. 222 of the Civil Code of the Russian Federation. However, I will add that many experts in the legal society prejudice the constitutionality of this norm.
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