Overview of court practice on unauthorised construction in Russia

On 16 November 2022, the Supreme Court of the Russian Federation (“Supreme Court”) issued an overview of court practice on unauthorised construction (“Court Practice Overview”).

In the Court Practice Overview, the Supreme Court summarised a number of matters concerning unauthorised construction which were considered by the courts over the past years. In general, the courts tend to follow the guidelines formulated by the Higher Arbitrazh Court of the Russian Federation (this court no longer exists) and the Supreme Court in their resolution No. 10/22 dated 29 April 2010. At the same time there have also been certain new tendences in court practice driven by amendments to the rules on unauthorised structures made to the article 222 of the Russian Civil Code in 2018. These amendments, in particular, allow:

qualification of a building as an unauthorised structure out of court;
to bring an unauthorised structure in compliance with applicable requirements instead of their demolition; and
acquisition of the title to an unauthorised structure by the tenant of underlying land plot.

Below is a summary of the main conclusions of the Court Practice Overview that we consider the most important.

Demolition orders to be issued by the court

A decision to demolish an unauthorised structure the title to which is registered may only be made by court. The Supreme Court also reminds that a court decision is also required to demolish a building / facility if:

the title to such building / facility exists by virtue of law without registration (for example if the owner acquired it prior to the enactment of the state registration law or as a result of a corporate reorganisation in the form of accession); or
it was constructed prior to the entry into force of the Russian Land Code and is located on a land plot to which no rights have been formalised.

Demolition is an extraordinary measure

It is repeated in the Court Practice Overview a number of times that demolition is an extraordinary measure only to be taken when there is a significant and non-rectifiable breach of law. Therefore, not all violations of law will result in a structure being subject to demolition. More specifically:

the use of a building not in compliance with its permitted use is not sufficient to qualify the building as an unauthorised structure, provided that the building was initially constructed in compliance with the land plot’s permitted use (ie the relevant zoning of the land plot);
a building constructed on a land plot not in compliance with the permitted use of the relevant land plot is qualified as unauthorised structure. However, this building should not be subject to demolition if it can be brought into compliance with the land plot’s permitted use;
if an unauthorised structure is qualified as such due to a violation of town planning and construction rules, such structure should not be subject to demolition provided that the relevant violations are minor, do not create a threat to life or health and do not violate third parties’ rights. In particular, the court may conclude that demolition is not an adequate measure and third parties’ rights may be restored in another manner;
when an unauthorised structure can be made compliant with the applicable requirements, such option should be ordered by the court in the relevant decision as an alternative to demolition;
the absence of a construction permit will not serve as the sole ground for demolishing an unauthorised structure, provided that:

the developer of such structure attempted to obtain a construction permit; and
there are no obstacles for preserving the unauthorised structure (such as the absence of a threat to life or health and/or a violation of third parties’ rights). In our view, despite these clarifications of the Supreme Court, the absence of a construction permit is still a significant violation which may lead to demolition. This seems problematic to demonstrate after the construction completion that the developer has actually attempted to obtain a construction permit but its issuances was unlawfully refused.

Unauthorised structures located on leased land plots

Disputes related to unauthorised structures located on leased land plots are very common. The Court Practice Overview contains the following conclusions relevant for these disputes:

non-allocation of a land plot for construction purposes (ie when a land plot is leased for non-construction purposes or for the construction of a building with a different purpose) is a sufficient ground for the building located thereon to be qualified as an unauthorised structure subject to demolition. The non-allocation of a land plot for construction is treated by law and courts as of one of the most severe non-curable violations which therefore entails the demolition of the unauthorised structure regardless of other circumstances;
therefore, if a publicly owned land plot was allocated for construction purposes, its tenant has a chance of having its title to the unauthorised structure located thereon recognised in court provided that such structure complies (as of the date of the application to the court) with applicable requirements and does not violate third parties’ rights;
the landlord of a land plot may claim the demolition of an unauthorised structure located thereon without claiming the termination of the relevant land lease agreement;
when the landlord of the land plot claims the termination of the lease agreement due to the construction of an unauthorised structure thereon, the limitation period for a demolition claim commences no earlier than from the moment when the tenant under the terminated lease agreement refused to return the land plot to the landlord.

Limitation period for demolition claims

In addition to the clarification described above other rules may apply to the calculation of the limitation period for demolition claims depending on the circumstances. In particular:

when an unauthorised structure does not create a threat to life or health, the standard limitation period applies to a claim for its demolition (ie three years from the moment when the claimant learned or should have learned of the violation of his/her/its rights);
if a claimant believes that an unauthorised structure has been constructed on a land plot unlawfully acquired by the defendant, the limitation period for the demolition claim expires simultaneously with the expiration of the limitation period for a claim to have the land plot returned to the claimant (a so-called vindication claim).The limitation period for a vindication claim is the same as outlined in sub-section (a) above;
no limitation period applies to the claim of the owner of a land plot possessing such land plot for the demolition of an unauthorised structure located thereon.

Buildings constructed prior to 1 January 1995

The Court Practice Overview states that non-residential buildings and facilities constructed prior to 1 January 1995 may not be qualified as unathorised structures. At the same time, to have the title to such building (or facility) recognised in court, the following requirements must be met:

the building (or facility) owner must have possessed the building openly and continuously for at least 15 years;
the building (or facility) owner must hold rights to the underlying land plot; and
the building (or facility) must:

not create a threat to life or health,
not violate third parties’ rights, and
be constructed in accordance with applicable town planning and construction rules.

These clarifications appear to be somewhat confusing. On the one hand, a building constructed prior to 1 January 1995 may not be qualified as an unauthorised structure, but, on the other hand, in order to have the title thereto recognised the tests applicable to unauthorised structures should be passed.

Other matters

The Court Practice Overview also contains the following statements that are worth noting:

a court decision on the demolition of a residential building is not subject to enforcement if a person who was not involved in the demolition case is registered and residing in this building. This conclusion stresses the importance of revealing and involving in the court proceedings all interested persons;
the claimant in the demolition case must demonstrate its entitlement to bring the claim, and that the demolition would restore its violated rights;
partial location of an unauthorised structure on a land plot not allocated for construction purposes is a sufficient argument to refuse the recognition of the title to such unauthorised structure;
the court is not entitled to approve an amicable settlement in respect of a demolition claim without analysing the compliance of the relevant building with town-planning and construction rules.

We hope the above is helpful for you needs. Please contact us for further information.