Regarding your question, please refer to the Letter from the Department of Real Estate:

Letter No. D23i-1663 dated April 16, 2015
issues of removal from the state cadastral registration buildings on
based on the decision of the owner to destroy the property (demolition,
dismantling), preparation of an inspection report confirming the termination
the existence of the property
Document type:
Letter
Document date:
May 29, 2015
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The Department of Real Estate of the Ministry of Economic Development of Russia considered, within its competence, the appeal informs.
In accordance with the Regulations on the Ministry economic development
Russian Federation, approved by the Government
Russian Federation dated June 5, 2008 No. 437, Ministry of Economic Development of Russia
not empowered to clarify the legislation of the Russian
Federation, as well as the practice of its application.
At the same time, we consider it possible to note the following on the issues raised in the appeal.
Demolition and dismantling of buildings by urban planning legislation are considered as a type of construction activities.
At the same time, the procedure for the demolition and dismantling of capital facilities
construction is regulated by the legislation of the subjects of the Russian
Federation. In this regard, it should be noted that by the decision of the Gosstroy
Russia dated November 5, 1997 No. 18-65 approved the Approximate regulation on
body of architecture and urban planning of the executive branch of the subject
Russian Federation, according to which the body of architecture and
urban planning of the executive power of the subject of the Russian Federation
prepares initial and permit documentation for demolition
(dismantling) of buildings, structures and green spaces (point 3).
Article 235 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation)
the grounds for termination of the right of ownership are determined, the subjects
which individuals and organizations can act, regardless of
forms of ownership (legal entities), as well as the Russian Federation,
subjects of the Russian Federation and municipalities, represented by them
authorized bodies.
In view of the foregoing, as well as the provisions of Article 209 of the Civil Code of the Russian Federation, the right
ownership can be terminated based on the decision of the owner
(owners, in case common property) on the destruction of property,
which, in relation to capital construction projects, is demolition,
dismantling such an object.
It should be noted that under the death or destruction in accordance with
Civil law refers to irreversible physical
the cessation of the existence of a thing in its original form, which makes
impossible to satisfy the initial needs of the owner. Wherein
the termination of the existence of a thing upon its death or destruction must be
really irreversible.
For example, if as a result of a fire, landslide, flood or other
natural disaster buildings were partially destroyed this case
there will be a change in the properties of the property, and not its destruction
or death. The further fate of the property will depend on
the owner of the affected property, who can decide on
object restoration real estate, its demolition, and termination
ownership rights to it.
Please note that the demolition capital construction
associated with the dismantling of building structures, their
export and subsequent disposal, carrying out earthworks,
improvement land plot In addition, work on
dismantling must comply with the safety requirements for carrying out
such work in relation to life and health individuals, property
third parties located near the object being dismantled, which may
be damaged in the course of such work, environmental
security.

In this regard, the demolition of the object is carried out, as a rule, with the involvement of
specialized organizations with the conclusion of relevant agreements
(contracts with engineering services on disconnecting demolished buildings from
engineering networks, contracts for demolition, relocation, processing and
disposal of demolition waste) and the signing of acts of work performed on
agreements that confirm their performance.
In addition, the Regulations on the composition of sections of project documentation and
requirements for their content, approved by the Government
of the Russian Federation dated February 16, 2008 No. 87 (hereinafter referred to as the Regulation) demolition
(dismantling) of an object or part of a capital construction object
considered as a separate stage of construction (points 1, 8,
10 of the Regulations), in respect of which the “Project of the organization
demolition or dismantling of capital construction projects,
the composition and requirements for which are provided for in paragraph 24 of the Regulations.
Comprehensive analysis of the legislation of the constituent entities of the Russian Federation
allows us to conclude that the basis for the demolition (dismantling)
capital construction object is the order of the local authority
self-government on the demolition of such an object, which, including
the procedure and terms for the demolition of such an object are determined.
The list of documents required for approval by the local authority
self-government decisions on the demolition (dismantling) of a capital facility
construction is determined in accordance with the legislation of the subject
Russian Federation, in particular, such documents include: decision
the owner on the demolition (dismantling) of the capital construction object,
a project for the organization of work on the demolition or dismantling of such an object, a copy
contracts for the implementation of demolition (dismantling) works, as well as
waste disposal.
In view of the foregoing, the implementation of unauthorized demolition of capital construction facilities is not allowed.
According to Part 1 of Article 42 of the Federal Law of July 24, 2007 No.
221-FZ "On state cadastre real estate” (hereinafter referred to as the Law on
cadastre) survey act is a document in which
cadastral engineer as a result of an inspection of the location of the building,
structures, premises or construction in progress, taking into account
available cadastral information about such a property confirms
cessation of the existence of a building, structure or object in progress
construction in connection with the death or destruction of such an object
real estate or the termination of the existence of the premises due to the death
or destruction of the building or structure in which it was located,
destruction or destruction of a part of a building or structure within which
such a place was located.
It should be noted that the actual demolition (dismantling) of the object
real estate is preceded by cadastral works with the aim of
confirmation of the termination of the existence of such immovable property.
In accordance with paragraph 3 of the Requirements for the preparation of an inspection report,
approved by the order of the Ministry of Economic Development of Russia dated December 13, 2010 No.
627 (hereinafter referred to as the Requirements), the inspection report is prepared on the basis of
information obtained as a result of inspection of the location of the object
real estate, taking into account the information of the state real estate cadastre, and
as well as other documents confirming the termination of the existence of the object
real estate. These documents are included in the appendix to the act
examinations.
According to paragraph 9 of the Requirements in the line "List of documents,
used in the preparation of the Survey Report” information is entered on
the name and details of the documents included in the annex to
examination act. The specified list of documents is open,
however, such documents should include information allowing
identify the property.
Thus, the cadastral engineer, when preparing the survey report
uses documents confirming the termination of the existence of the object
real estate, which include, for example, a copy of the order
local authority for the demolition of the building, a copy of the closed order for
demolition work, copies of acts of acceptance of work performed on
demolition, relocation, processing and disposal contracts
demolition waste, etc.
In accordance with part 6 of article 20 of the Cadastre Law, with applications for
removal from the state cadastral registration of buildings has the right to apply
owners of such real estate, as well as owners of land
plots on which such properties were located.
According to part 2 of article 16 of the Cadastre Law, the removal from
state cadastral registration of the property is carried out,
unless otherwise provided by the Cadastre Law, on the basis of an application for
removal from the state cadastral registration of the property and
necessary in accordance with the Law on Cadastre for the implementation of such
document accounting. In accordance with paragraphs 4, 6 of part 1 of Article 22
of the Cadastre Law necessary for removal from the state cadastre
accounting by a document confirming the termination of the existence of the object
real estate is an act of inspection with a copy of the document attached,
establishing or certifying the right of the applicant to the relevant
real estate object (in the absence of information about the registered right
applicant for such a property in the state cadastre
real estate).
At the same time, the legislation of the Russian Federation does not establish a procedure
removal from the state cadastral registration of objects that do not meet
requirements established by Article 130 of the Civil Code of the Russian
Federations, i.e. not being real estate, but included in
as such.
It should also be noted that Article 8.18 of the Law of the City of Moscow dated
November 21, 2007 No. 45 "Code of the city of Moscow on administrative
offenses" for the unauthorized demolition of buildings,
located on the territory of the city of Moscow, provided
administrative responsibility.

Protection of the rights of owners of residential premises is currently provided for by the current legislation.
As for rights of owners of non-residential premises (offices, shops, pharmacies located in demolished buildings) - their rights are currently protected by the provisions of the civil code regarding the alienation of land for state or municipal needs (this is where we attributed the demolition of the house in connection with the "renovation"):
In accordance with paragraph 3 of Art. 239.2 of the Civil Code of the Russian Federation
"The alienation of buildings, structures, premises located in such buildings, structures, objects of construction in progress in connection with the withdrawal of a land plot for state or municipal needs is carried out according to the rules provided for the withdrawal land plots for state or municipal needs".
In accordance with paragraph 6 of Art. 279 of the Civil Code of the Russian Federation, the terms, amount of compensation and other conditions under which a land plot is withdrawn for state or municipal needs are determined by an agreement on the withdrawal of a land plot and real estate objects located on it for state or municipal needs (hereinafter referred to as the withdrawal agreement).
In the case of compulsory seizure, such conditions are determined by the court.
In accordance with Art. 56.9 of Chapter VII.1 of the Land Code of the Russian Federation, dated October 25, 2001 N 136-FZ, the agreement on the seizure of real estate for state or municipal needs contains ... the amount and procedure for paying compensation for real estate;
If there is the consent of the persons from whom real estate objects are confiscated, the agreement on the seizure of real estate may provide for the provision of other real estate objects to them in exchange for the confiscated ones.
At the same time, the agreement on the seizure of real estate specifies:
- market price real estate objects transferred or provided on the right of ownership in exchange for the withdrawn real estate objects;
- market value of other rights (for example, lease);
- the difference between the amount of compensation for the confiscated real estate objects and the market value of the real estate objects transferred or provided in exchange, the rights to them, the procedure for paying such a difference to the person from whom the real estate objects are confiscated.
At the same time, in accordance with Art. 56. 12 of the Land Code of the Russian Federation, a court decision on the seizure of real estate objects seized for municipal needs in order to integrated development territory, may be challenged in terms of the amount of compensation for the seized real estate objects.
Thus, at present, when a property is withdrawn, monetary compensation is due, and in the case of the AGREEMENT of the owner, the provision of another dwelling to replace the one being withdrawn, with the payment of the difference in value.

However, according to the draft federal law No. 120505-7 “On Amendments to the Law of the Russian Federation “On the Status of the Capital of the Russian Federation” and certain legislative acts of the Russian Federation in terms of establishing the features of the renovation of the housing stock in the capital of the Russian Federation - the city of federal significance Moscow (adopted by the State Duma in the first reading on April 20, 2017), now the owner of a non-residential premises located in apartment building included in the decision on renovation, the authorized executive body of the city of Moscow or the fund is invited to conclude an agreement that determines the transfer of ownership of non-residential premises, for one of equivalent non-residential premises owned by the city of Moscow or the fund.
An equivalent non-residential premises is a non-residential premises located on the territory of the city of Moscow, the area of \u200b\u200bwhich is not less than the area of the vacated non-residential premises .
In case of unreasonable evasion of the specified owner from the conclusion of this agreement within more than sixty days from the date of sending him the draft said agreement authorized body The executive authority of the city of Moscow or the fund has the right to apply to the court with a demand to compel the conclusion of an appropriate agreement that determines the transfer of ownership of non-residential premises.
It means that upon adoption of the law, the rights of the owner of such premises will not be protected by anything !
For a decent monetary compensation now you can not claim for your destroyed property.
One option for a room of the same size is offered, and you cannot refuse it.
Losses incurred during the move, upon termination lease relations, no one compensates for the difference in price between the old and the new (possibly much cheaper) premises.
We see in this situation a fundamental violation of the rights of the owner, guaranteed by the Constitution:

In accordance with Art. 35 of the Constitution of the Russian Federation,

The right of private property is protected by law.
Everyone has the right to own property, own, use and dispose of it both individually and jointly with other persons.
No one may be deprived of his property except by a court decision. The expropriation of property for state needs may be carried out only on the condition of prior and equivalent compensation.

The new draft law does not speak of equal compensation (equal cost), but of some “equivalent” residential premises of the same size, which, as we understand, will be located in a different district of the city of Moscow and there is no need to talk about equal cost.
In accordance with Art. 15 of the Constitution, the Constitution of the Russian Federation has the highest legal force, direct effect and is applied throughout the territory of the Russian Federation.
Laws and others legal acts adopted in the Russian Federation must not contradict the Constitution of the Russian Federation.
In this case, we are witnessing the adoption of a law that directly contradicts the Constitution of the Russian Federation.
Thus, it can be said that any decisions made courts on the compulsory conclusion of an agreement “determining the transfer of ownership of equivalent residential premises” will entail immediate complaints to constitutional Court RF.
Which will eventually lead to the abolition of the provisions of the unconstitutional law and, as a result, the abolition of hundreds of court decisions.

It is believed that the demolition of buildings is a necessary, important and sometimes quite costly part of almost any construction process. Issues related to construction activities in Russia are regulated by the Civil Code of the Russian Federation, the Civil Code of the Russian Federation, the Federal Law of November 17, 1995 N 169-FZ "On Architectural Activities in the Russian Federation", as well as other regulatory legal acts, including acts adopted on regional and local levels in accordance with federal legislation.

According to the current legislation, construction and reconstruction in the Russian Federation is carried out on the basis of a building permit. A building permit is a document confirming the compliance of project documentation with the requirements of the town-planning plan of the land plot and giving the developer the right to carry out construction, reconstruction of capital construction facilities, as well as their overhaul, except for the cases statutory(Article 51 of the Civil Code of the Russian Federation). This document is a legal basis for construction and some other types of construction activities. Construction without a properly issued permit can have negative consequences - first of all, the building can be recognized as unauthorized (it will be discussed later about unauthorized construction and its consequences).

A building permit is issued by local authorities (with the exception of certain cases established by the Civil Code of the Russian Federation) at the location of the land plot. For the purpose of construction, reconstruction, repair of a capital construction facility, the developer applies to the authorized bodies with an application for a construction permit. TO this statement the developer, in addition to documents such as title documents for a land plot, urban plan of the site, positive conclusions of the state and state environmental expertise, also attaches the materials contained in the design documentation, among which the project for the organization of work on the demolition or dismantling of capital construction objects, their parts is mandatory. - demolition country houses and dachas.

In addition, the Civil Code of the Russian Federation fixed the possibility of issuing permits for certain stages of construction, reconstruction. The construction phase is usually understood as a wide range of works, including those related to the demolition of buildings and structures on the site intended for the construction of a new facility.

Based on the Civil Code of the Russian Federation in the constituent entities of the Russian Federation and municipalities, various regulatory legal acts were developed and approved that determine the procedure for preparing documents for issuing permits for the demolition or dismantling of capital construction projects on the territory of the respective municipalities. Despite the wide variety of such acts, after their systematization, it is possible to single out defining points regarding the basic rules for issuing demolition permits.

Thus, a separate stage of construction is the demolition or dismantling of capital construction projects for:

release of land for new construction;
liquidation of objects that have lost their technological necessity or have fallen into disrepair;
elimination of engineering networks and communications.

As a rule, the preparation and issuance of permits for the demolition or dismantling of objects is assigned to the appropriate department local administration(for example, the department of architecture and urban planning, the department of architecture and urban economy, etc.).

Preparation of documents for issuing a permit is carried out on the basis of an application from the owner of the facility, which is submitted to the head of administration. In this case, the applicant must provide the following documents:

title documents for the land;
title documents for the demolished or dismantled object;
protocols of the commission (determined by the owner) during the demolition or dismantling of objects that have lost their technological necessity or have fallen into disrepair; - demolition of country houses and dachas
a project for the organization of demolition or dismantling works, indicating the fencing of storage areas, etc.

In some cases, they may require some additional documents, for example, the conclusion of the relevant department (or committee) of the administration on changing or maintaining the status of a land plot or its parameters. About the results of the review adopted documents the administration notifies the applicant, as a rule, within thirty days. Completion of the demolition or dismantling is confirmed by the documents of the service technical inventory and an act of inspection of the results of the demolition or dismantling of the object, drawn up by the owner of the object (signed by representatives of the fire supervision, engineering services, chief architect, etc.). In addition, such acts briefly indicate the demolition of objects in individual housing construction sites.

Demolition of houses and outbuildings on plots of individual development is carried out by the owner at his own discretion. The basis for registration of the demolition of such buildings are the documents of the technical inventory service.

According to Art. 48 of the Civil Code of the Russian Federation, the design documentation for capital construction facilities also includes the section "Project for the organization of work on the demolition or dismantling of capital construction facilities, their parts (if necessary, demolition or dismantling of capital construction facilities, their parts for construction, reconstruction of other capital construction facilities)" .

In pursuance of the provisions of Art. 48 of the Civil Code of the Russian Federation Decree of the Government of the Russian Federation of February 16, 2008 N 87 "On the composition of sections of project documentation and requirements for their content" approved the Regulations on the composition of sections of project documentation and requirements for their content. According to this provision, project documentation for capital construction facilities for industrial and non-industrial purposes should consist of twelve sections, the requirements for the content of which are established by the said Regulations. Section II contains a list of documents required for the preparation of project documentation for a capital construction facility, among which the following documents are also indicated: acts (decisions) of the owner of the building (structure, structure) on decommissioning and liquidation of the capital construction facility - if demolition is necessary ( dismantling); the decision of the local government on the recognition of a residential building as emergency and subject to demolition - if necessary, the demolition of a residential building.

Section 7 of the design documentation "Project for the organization of work on the demolition or dismantling of capital construction objects" is carried out if it is necessary to demolish (dismantle) an object or part of a capital construction object. Paragraph 24 of the said Regulation defines the list of information that this section should contain. So, among the specified information, for example, the following are named:

the basis for the development of a project for the organization of work on the demolition or dismantling of buildings, structures and structures of capital construction facilities;
a list of buildings, structures and structures of capital construction objects subject to demolition (dismantling);
a list of measures to decommission buildings, structures and structures of capital construction facilities;
a list of measures to ensure the protection of liquidated buildings, structures and structures of capital construction objects from the penetration of people and animals into the danger zone and inside the facility, as well as the protection of green spaces;
description and justification of the adopted demolition (dismantling) method, etc.

In addition, the design documentation in the graphic part must also contain:

a plan of the land plot and adjacent territories indicating the location of the demolished object, engineering and technical support networks, collapse zones and dangerous zones during the demolition (dismantling) of the object, indicating the places of storage of dismantled materials, structures, products and equipment;
drawings of protective devices for engineering infrastructure and underground utilities;
technological maps-schemes of the sequence of demolition (dismantling) of building structures and equipment.

It should be noted that in accordance with Decree of the Government of the Russian Federation of March 5, 2007 N 145 "On the procedure for organizing and conducting state examination of project documentation and results engineering surveys"the absence in the project documentation of the sections provided for in Article 48 of the Civil Code of the Russian Federation, or the inconsistency of the sections of the project documentation with the requirements for the content of the sections of the project documentation, are grounds for refusing to accept the project documentation and (or) the results of engineering surveys submitted for state expertise.

Project documentation is approved by the developer or customer. If the project documentation is subject to mandatory state expertise, it is approved by the developer or customer only if there is a positive expert opinion (Article 48 of the Civil Code of the Russian Federation). - demolition of country houses and dachas

In order to make it easier in the future to consider the relationship of persons one way or another connected with the problems of the demolition of buildings, it is first necessary to get acquainted with the main participants in the construction process.

According to the legislation regulating investment activity in the Russian Federation, subjects investment activity are:

investors;
customers;
contractors;
users of capital investment objects;
other persons (Federal Law of February 25, 1999 N 39-FZ "On investment activity in the Russian Federation, carried out in the form of capital investments").

Often in practice, one organization combines the functions of several participants in the construction process: an investor, a customer (developer) or a contractor. Relations between the subjects of investment activity are carried out, as a rule, on the basis of agreements (or government contracts) concluded in accordance with the legislation of the Russian Federation.

Investors make capital investments in the territory of the Russian Federation using their own and (or) borrowed funds in accordance with the legislation of the Russian Federation. They can be individuals and legal entities created on the basis of an agreement on joint activities and unincorporated associations of legal entities, government bodies, local governments, as well as foreign entities entrepreneurial activity(foreign investors).

Placement of orders for contractors construction works for state needs at the expense of funds federal budget and funds from the budgets of the constituent entities of the Russian Federation in the implementation of investment projects is carried out by state customers through tenders in accordance with the legislation of the Russian Federation. Local governments provide the necessary conditions for the development, approval and financing of investment projects implemented municipalities at the expense of funds local budgets placed on a competitive basis. The costs of financing investment activities carried out in the form of capital investments by local governments are provided for by local budgets.

As for the customer, the following should be noted. In various regulations (and, accordingly, in the literature), the terms "customer", "developer" or "customer-developer" are used.

The customer-developer directly implements investment project, provides the construction process. An investor usually attracts some specialized organization as a customer-developer, as a rule, for a long time and successfully working in this segment of the economy, having specialists on staff who have necessary knowledge, skills and qualifications.

Customers-developers who are not at the same time investors are vested with the rights of ownership, use and disposal capital investments for the period and within the limits of authority, which are determined by the contract for capital construction or government contract. The customer bears the responsibility established by the current legislation and (or) the contract to the investor for intended use his funds.

During the preparation of construction, the customer performs many functions, including necessary actions for the development of the territory and the allocation of land. In this case, the customer:

draws up documents for cutting down and replanting trees, fruit and berry plantations, demolition of buildings, clearing the territory from objects that interfere with construction; - demolition of country houses and summer cottages
conducts negotiations with the owners of buildings, structures, structures and agricultural land on the issue of demolition of objects;
ensures the resettlement of citizens from houses subject to demolition;
calculates the residual value of demolished buildings, structures, structures or receives a certificate of the residual value of demolished buildings from their owners;
reimburse citizens and legal entities the cost of seized buildings, land plots, plantations, etc., provided for by the current legislation of the Russian Federation - demolition of country houses and summer cottages

The customer determines the costs for the preparation and development of the construction area.

Other costs include:

payment of compensation for demolished buildings and horticultural plantings;
payment for land upon withdrawal (purchase) of a land plot for construction, as well as for payment land tax(or rent) during the construction period;
payment of compensation for agricultural work performed on the confiscated land plot (sowing, etc.).

To determine the amount of material damage in connection with the demolition (transfer) of buildings, structures, structures and the destruction or damage to plantings, a certain act is drawn up. This act (form N KS-10, approved by the Decree of the Russian Statistical Agency of November 11, 1999 N 100 "On approval unified forms primary accounting documentation on the accounting of works in capital construction and repair and construction works") is compiled by a commission, which should include the owner (owner) of the building, structure, structure, planting to be demolished, or his representative, a representative of the customer (developer) of the newly constructed facility, a representative bureau of technical inventory If necessary, the commission may include representatives of other interested organizations.

Let us now turn to the issue of reconstruction of buildings, structures, structures. Quite often, in practice, reconstruction is understood as the demolition of an existing property and the construction of a new object in its place. This approach is wrong and contrary to the norms. current legislation RF.

According to Art. 1 of the Civil Code of the Russian Federation, construction is understood as the creation of buildings, structures, structures (including on the site of demolished capital construction projects). The Civil Code of the Russian Federation also defines the concept of reconstruction, which refers to a change in the parameters of capital construction objects, their parts (height, number of floors, area, production capacity indicators, volume) and the quality of engineering and technical support. The analysis of these concepts, their comparison allows us to conclude that the reconstruction, that is, the change in the capital construction object, does not require the demolition of this object. Therefore, if demolition is carried out during reconstruction, then it indicates new construction, but not reconstruction in the sense given by the Civil Code of the Russian Federation. In addition, in this case, the question invariably arises of acquiring ownership of a newly built property (however, such a situation can be created intentionally, most often in the interests of the investor). By virtue of Art. 235 of the Civil Code of the Russian Federation, from the moment of demolition (destruction) of the property, the right of ownership to it is terminated. Therefore, if the investor (customer) initially drew up documentation for the reconstruction of the property (with possible solution issues with owners, tenants, tenants, etc.), and as a result, the object was demolished, then in the future, at the stage of paperwork and registration of the right to the erected object, the interested person (investor, customer) may experience problems, which, quite likely, will have to be decided by the courts.

There are situations when a person, having just started reconstruction, discovers that given object in my own way technical condition not subject to reconstruction (for example, before the start of work, a complete survey of the object was not carried out, an error in calculations, etc.). The correct behavior of the person in this case will be the complete cessation of work on the reconstruction of the object. If the object also poses a danger to others, for example, it threatens to collapse, it is necessary to take measures aimed at ensuring safety (install barriers, set guards, etc.). The further fate of the object is decided by the owner or the relevant authorized body. If a decision is made to demolish, preparations will begin. required documents for a demolition permit.

Consider the issue of withdrawal of land for state or municipal needs. The legislation allows for the alienation of immovable property in connection with the withdrawal of a land plot.

Current Russian legislation establishes the procedure for the withdrawal of a land plot for state or municipal needs from the owner. According to Art. 49 of the Land Code of the Russian Federation, the seizure, including by way of redemption, of land plots for state and municipal needs can be carried out in the following cases:

fulfillment of international obligations of the Russian Federation;
placement of objects of state or municipal significance in the absence of other options for their possible placement;
under other circumstances in accordance with federal laws, and in relation to the seizure, including by redemption, of plots from lands owned by the constituent entities of the Russian Federation or municipal property, in accordance with the laws of the constituent entities of the Russian Federation (for example, the seizure from owners, land users, landowners of land plots occupied by natural complexes and objects, declared monuments of nature).

Publications, 14:27 10.02.2016

FAQ: how to demolish property in Moscow without a trial

Arkady Smolin, RAPSI Staff Correspondent

On the night of February 9, the demolition of trade pavilions, recognized by the city authorities as unauthorized construction, began in Moscow. To make it easier to understand the reasons, the degree of compliance with the law and the legal consequences of this decision, we have prepared answers to the most significant questions in this story.

Who got demolished?

On February 8, 104 objects in different districts of Moscow fell under emergency demolition. Most of these structures are located in the Central (25 objects) and Northern districts (28). The main part of the trade pavilions from the list was built in the nineties of the last century. Among the "victims" are both small stalls and shopping centers with several floors. 97 objects out of 104 have already been demolished or are currently being demolished.

Is the decision to demolish legal? Business Version

According to the chairman of the branch office commercial real estate"Business Russia" Eduard Gulyan, at least 27 objects from the list for demolition were taken out judgments about the lack of autonomy.

In 2015, the Moscow mayor's office was defeated in almost all litigations for the demolition of real estate. In particular, the authorities lost the cassation on claims against the Albatros company (5 court decisions in favor of the owners of Albatros in 2014-2015), the owner of the Passage Albatros shopping complex near the Schelkovskaya metro station, as well as claims against the owners of pavilions near metro stations Arbatskaya and Ulitsa 1905 Goda.

Supported property owners even Supreme Court RF. He refused to review the decision on Moscow's lawsuit against the owner of the 254 sq. m on st. People's Militia - LLC "TDKM". As a result, the building was also not recognized as a squatter.

Is the decision to demolish legal? Version of the Moscow City Hall

Finding no support in the courts, the Moscow authorities succeeded in amending Civil Code RF. In September 2015, Clause 4 of Article 222 of the Civil Code of the Russian Federation came into force, according to which the local governments of the city district have the right to independently decide on the demolition of an unauthorized building. Previously, only the court could do this. Now it is enough to recognize that the land plot on which the building was erected was originally provided for other purposes. Or should it be located in an area with special conditions use of the territory.

On December 8, 2015, the Moscow government adopted a resolution “On measures to ensure the demolition unauthorized buildings in certain areas of the city of Moscow. It provides for the demolition of facilities recognized metropolitan authorities self-building, due to incorrect paperwork, being on the lands common use or in areas with engineering communications.

Reasons for demolition

According to Timur Zeldich, First Deputy Head of the State Inspectorate for Control over the Use of Real Estate in Moscow, the demolished shopping pavilions pose a threat to the health of citizens in case of accidents or emergencies. "These objects are engineering communications, which means that they are potentially dangerous both in themselves and from the point of view of the operation of engineering networks.

According to the leadership of the Moscow Metro, "objects located in the technical zone of the metro ... create loads on the load-bearing structures of the metro, make it difficult to carry out anti-terrorist measures."

However, in a number of court decisions, the results of the examination are cited, which proved that the disputed objects do not threaten the life and health of citizens.

Why was it demolished at night?

On February 8, the deadline for voluntary dismantling of squatters expired. Demolition work could begin at midnight on 9 February. Around this time they started. Many have a question: why so hurry?

Some trade pavilions were demolished along with furniture, appliances, goods and even people inside. According to the testimonies of witnesses, as well as video filming, the procedure for liquidating the building, which was recognized as unauthorized construction, was not observed at all. According to the law, for this, access to the premises must first be restricted, then an inventory and evacuation of property to a safekeeping warehouse should be made, after which, in fact, direct dismantling is possible.

Timur Zeldich, in an interview with the media, explained such a rush by saying that “every hour of the existence of such an object threatens the life and health of not only those who work in it, but also all the people nearby, and, understanding this, the prefectures should strive to get rid of them a city."

The statement looks doubtful, given that most of the demolished buildings were built more than 20 years ago, so another couple of weeks or even months required to comply with all legal procedures would hardly be a significant risk to the life and health of citizens. Much more damage to them, it seems, was caused by the night noise of construction equipment, the operation of which at that time is also prohibited by law.

The version of fears that the task of demolition will become more difficult due to the threat of rallies looks more likely. The owners, who had court orders in their hands recognizing the building as legal, had every reason to defend their properly registered property by almost any non-violent means.

And what about property rights?

Delovaya Rossiya checked 50 addresses from the list of demolished retail spaces and found out that property rights were registered for all objects. They are protected by Article 35 of the Constitution. Paragraph 3 of the Basic Law states: “No one may be deprived of his property except by a court decision. The expropriation of property for state needs may be carried out only on the condition of prior and equivalent compensation.”

Recall once again: there is not a single valid court decision in favor of the demolition of these objects.

Moreover, even new edition The Civil Code of the Russian Federation, to which the Moscow authorities refer, although it narrows the possibilities of legalizing unauthorized buildings, does not cancel the decisions made earlier. Thus, the ownership of the buildings is preserved.

Lawyers believe that the norms of the Civil Code of the Russian Federation do not give local authorities the right to recognize capital construction objects as self-construction without a court decision, since this conflicts with the Constitution of the Russian Federation.

Taking into account all these dubious interpretations of laws, we should expect in the near future a mass appeal of owners to the Constitutional Court of the Russian Federation. Until now, all the courts have been on their side, so there are quite a few objective reasons to doubt what decision according to the law can be made in this case.

Amount of compensation

If the Constitutional Court of the Russian Federation decides in favor of the owners of destroyed real estate, the issue of compensation for losses incurred by businessmen will be especially acute. Obviously, these costs will have to be borne by the Moscow budget (it is highly unlikely that specific officials will bear the responsibility). Thus, the damage caused is likely to be paid directly by the taxpayers.

If the authorities achieve an assessment of the damage from the destroyed property at its cadastral value, then entrepreneurs will not be able to compensate for their losses in any way, since it can be 10-20 times less than the market value. For example, according to the latest data that can be found in open sources, the cadastral value of the building of the Piramida shopping complex on Tverskaya is 58.2 million rubles, with market valuation- about 1.5 billion rubles. The cadastral value of 25 objects in the Central Administrative District is a little more than 250 million rubles (with a market value of more than 5 billion rubles).

Thus, the total cadastral value of all demolished "squatters" is about 1 billion rubles. Although lawyers estimate the market size of claims for lost property at 22 billion rubles or more.

According to the law, even without a decision of the constitutional judges, the authorities must pay compensation to the owners, which is equivalent to the market value of the object, if the building has cadastral value and received a certificate of ownership.

Since the mayor's office is talking about concern for the safety of residents (that is, it actually seizes land for state needs), one could refer to Article 281 of the Civil Code of the Russian Federation. According to its second paragraph: “When determining the redemption price, it includes the market value of the land plot and real estate located on it, as well as all losses caused to the owner by the withdrawal of the land plot, including losses that he incurs in connection with the early termination of his obligations to third parties. individuals, including lost profits.

It may be possible to do without the courts, since the decision of the Moscow City Hall refers to the payment of compensation for the demolition, but their amount has not yet been determined. However, this is unlikely: from the comments of media officials, it is now known that the methods of compensation such expenses does not exist, which calls into question their voluntary payment in the foreseeable future.

A clear example of the readiness of the capital's mayor's office to compensate for the losses of entrepreneurs can be a similar story of the liquidation of landing stages on the Moscow River. As far as we know, for a year and a half, the owners of landing stages did not receive any compensation at all.

Responsibility of officials

Perhaps it would be more correct to lay responsibility for these losses on the officials who issued numerous permits that allowed the construction of this "squatter".

Since the erection capital buildings in the center of Moscow, for obvious reasons, it would be impossible without certificates from the Moscow Architecture Committee, the prefecture, the district council, Mosenergo, Mosvodokanal, OATI, IGASN, APU, etc., then at least a hundred should probably be initiated ) criminal and administrative cases for corruption, negligence or abuse of office (maximum punishment - imprisonment for a period of four years).

It is also important to note that abroad, in similar cases, it is customary to first publicly cancel the decision of officials, bringing them to justice. And after the court approves the demolition, buy the property at market price at the owner.

The Moscow authorities are still silent about the punishment of those responsible for the emergence of “squatter construction”, as well as measures to prevent similar situations in the future (in particular, during the promised issuance of places for new construction to affected entrepreneurs). The only answer to the question of how the documents on ownership were obtained was given by the head of the State Inspectorate for Real Estate, Sergei Shogurov. He stated that this would be the subject of a separate investigation.

Consequences

In addition to the need to compensate entrepreneurs and city investors (including foreign ones) for the cost of demolished real estate, the Moscow authorities should prepare for a wave of lawsuits demanding compensation for shop windows, furniture, goods, and moral damages.

However, the main damage - the loss of confidence of the population and entrepreneurs in the force of the law and the guarantee of the execution of a court decision - is unlikely to be covered in the foreseeable future. As entrepreneurs themselves admit, small businesses are tired of the ever-changing rules of the game. The law is becoming more and more difficult to perceive precisely as stable rules games, and the court - as a real arbiter and real power.

And there is no certainty that small businesses in general will now risk creating a new urban environment, filling the first or second floors of houses, even if this civilized development strategy is supported by the authorities. In the context of the rapid change in laws during the holidays, as well as the adoption of fateful decisions in the New Year's bustle, when court decisions are ignored, and the Constitution is interpreted as a horoscope, it is difficult to imagine who else could act as a guarantor for small and medium-sized businesses.