An owner of a building may carry out reconstruction, conversion and reconfiguration, and major repairs. Each type of work has its own limits. If those limits are breached, the building may be recognised as an unauthorised building. How can that be prevented?
Reconstruction
Reconstruction of capital construction objects (other than linear objects) is a change in the parameters of the object or of its parts (height, number of storeys, area, volume), including the addition of storeys, rebuilding and extension of the object, and also the replacement and/or restoration of load-bearing structures. The exception is the replacement of individual elements of such structures with similar elements, or with other elements that improve performance, and the restoration of those elements (paragraph 14 of Article 1 of the Town-Planning Code).
A capital construction object created in the course of reconstruction will therefore always involve a change in some characteristic. Reconstruction differs from other types of work (major repairs or reconfiguration) in that a building permit is required for it. A reconstructed building may therefore turn out to be an unauthorised building if the owner does not obtain approval for the necessary changes or breaches mandatory town-planning rules.
A further feature of reconstruction is that it changes the parameters of the capital construction object. That does not happen in the course of major repairs or a reconfiguration. It is not easy, though, to establish what the legislator means by that change. It is worth turning to the way the rules are applied in practice.
- If, as a result of the works, the total area of the capital construction object changes (increases), for example if an extension appears or the external boundaries of the building change, that change will be treated as reconstruction.
- The placing of suspended systems on the facade of a building may also be treated as reconstruction, even though the building's construction volumes and areas do not change as a result of such works. Works to install suspended facade systems that affect the structural and other characteristics of the reliability and safety of a capital construction object should, however, be carried out on the basis of the relevant building permit (letter of the Ministry of Regional Development of 22 February 2012 No. 3706-ДШ/08). A positive conclusion of the state expert review of the design documentation is also required (if a state expert review is required by Article 49 of the Town-Planning Code).
- Works to convert a technical underground into a usable basement may also be treated as works for which a building permit is required (resolution of the Arbitration Court of the Urals District of 1 June 2015 in case No. А50-14365/2014).
The Town-Planning Code does set out cases in which a building permit is not required: where the changes do not affect the structural and other characteristics of the reliability and safety of the objects and do not exceed the limit parameters of permitted construction or reconstruction set by the town-planning regulations (paragraph 4 of part 17 of Article 51 of the Town-Planning Code). To establish whether a permit is required for particular works (especially after they have been carried out), a full examination is needed,
— Sergei Pivovarchik clarifies
If the design for the works does provide for a change in the characteristics of the capital construction object (its area, height or number of storeys), the developer will certainly need a building permit. Corresponding changes will also have to be made to the permitted use (VRI) of the land plot.
How to obtain the permits
Step 1. Obtain a town-planning plan for the land plot. It will set out the limit parameters of permitted construction.
Step 2. Carry out a technical survey of the building.
Step 3. Obtain a certificate approving the architectural and town-planning solution, stage P design documentation, and the other permits.
Step 4. Pay the fee for lifting the ban on construction and for changing the permitted use of the land plot to one that provides for the construction (reconstruction) of capital construction objects.
The amount of the fee depends on the difference between the cadastral value of the land plot with the permitted use in place on the day the owner of the land plot files the application, and the cadastral value of the land plot with the changed permitted use. The following formula is used for the calculation:
П = С × (КС2-КС1), where
П is the amount of the fee for changing the permitted use of the land plot (roubles);
С is the rate used to calculate the fee for changing the permitted use;
КС1 is the cadastral value of the land plot on the date of the application to change the permitted use of the land plot (roubles);
КС2 is the cadastral value of the land plot with the changed permitted use. The figure is calculated from the maximum specific indicator of the cadastral value of a land plot for the types of permitted use being established, approved in the prescribed manner by a legal act of the Moscow Government as at the date of the application (roubles).
It should be borne in mind that a ban on construction (reconstruction) may be imposed on some land. In the capital, for example, such a ban is imposed by the Moscow Government (or a body it authorises; Moscow City Law of 19 December 2007 No. 48 "On Land Use in the City of Moscow").
The ban on construction and reconstruction can be lifted on an application by the owner of the land plot. That is possible only after payment of 80% of the cadastral value of that plot. If construction of the object does not change the permitted use of the plot, the ban is lifted on an application by the owner of the land plot, without payment. A ban on construction and reconstruction can be lifted, with a prior change to the permitted use of the land plot, on the owner's application within the town-planning regulations that have been established.
Major repairs
Major repairs are always connected with improving particular characteristics of independent elements of the building that allow it to function as a whole. The developer may only replace individual structures with newer and more modern ones, so that the building meets town-planning, sanitary, fire and other standards. New elements and structures that the design of the building did not previously provide for cannot be erected in the course of major repairs.
No building permit, and no permit to commission the building, is required for major repairs. The following works can be carried out as major repairs:
- re-laying floors, replacing them with stronger and more durable materials;
- partial or complete replacement of stair landings, ramps and entrance steps;
- repair and renewal of cladding over an area of more than 10% of the clad surface;
- complete or partial (more than 10%) renewal of plaster;
- complete renewal of mouldings, cornices, string courses, sandriks and the like;
- replacement of the coverings of projecting parts of the building;
- replacement of heating registers;
- partial or complete replacement of air ducts;
- replacement of fans;
- replacement of worn sections of the network (more than 10%);
- replacement of fuse boards;
- repair or restoration of cable ducts, and other works.
The limits of major repairs are governed by Order of the State Committee for Architecture and Urban Planning of 23 November 1988 No. 312. Under that act, during major repairs the defects in all worn elements must be eliminated, and those elements must be restored or replaced (other than a full replacement of stone and concrete foundations, load-bearing walls and frames) with more durable and economical ones, and the operating performance of the buildings under repair must be improved. An economically justified modernisation of the building or object may be carried out at the same time: the layout may be improved, missing types of engineering equipment may be added, and the surrounding area may be landscaped.
Important: the courts treat as major repairs not only repair as such, but also works that changed the object in a respect that does not concern its parameters as a capital construction object. For example, relying on the definition of major repairs, a court refused to treat as reconstruction works after which part of an underground car park became suitable for use as a retail and entertainment zone (resolution of the Federal Arbitration Court of the North-Western District of 4 December 2013 in case No. А21-860/2013).
Conversion and reconfiguration
At present, reconfiguration, conversion and the works connected with them are regulated by housing legislation. They are not applied to non-residential premises. For non-residential premises, the concepts used are "reconstruction" and "major repairs". The definitions of those concepts are broader than "reconfiguration" and "conversion", and they include special procedures.
In practice, when works have to be carried out to non-residential premises that do not fall within major repairs and do not change the parameters of the capital construction object, developers document them as a reconfiguration (re-equipment). Conversion and reconfiguration of non-residential premises and buildings are in practice carried out by a procedure analogous to the reconfiguration (conversion) of residential premises,
— Sergei Pivovarchik clarifies
Reconfiguration of residential premises is a change in their configuration, and conversion is the installation, replacement or relocation of engineering networks or of sanitary, electrical or other equipment, which requires an amendment to the technical passport of the premises (Article 25 of the Housing Code).
The procedure for owners, and the grounds for conversion and reconfiguration of residential premises, are laid down in Article 26 of the Housing Code. Works of reconfiguration and conversion are listed in paragraph 1.7.1 of the Rules and Standards for the Technical Operation of the Housing Stock, approved by Resolution of the State Committee for Construction of 27 September 2003 No. 170. Reconfiguration of residential premises includes:
- moving and dismantling partitions;
- moving and forming door openings;
- splitting up or combining multi-room flats;
- installing additional kitchens and bathrooms;
- extending the living area by taking in ancillary premises;
- eliminating dark kitchens and entrances to kitchens through flats or living rooms;
- installing or refitting existing entrance vestibules.
Re-equipment of residential premises (which, under paragraph 1.7 of those rules, includes conversion) includes:
- installing domestic electric cookers in place of gas cookers or kitchen ranges;
- relocating heating, sanitary and gas appliances;
- installing new toilets and bathrooms, and refitting existing ones;
- laying new, or replacing existing, supply and waste pipelines, electrical networks and devices for the installation of shower cabins, jacuzzis, high-capacity washing machines and other new-generation sanitary and domestic appliances.
Whether or not the technical characteristics of an object have changed is established exclusively in the course of cadastral works, in the manner provided for by Article 36 of Federal Law of 24 July 2007 No. 221-FZ "On Cadastral Activity", with the cadastral engineer recording the necessary information in the technical plan. When filing an application for cadastral registration of the changes made, the applicant must also attach a positive conclusion on the technical condition of the structures of the capital construction objects and on whether the planned works can be carried out.
Cases from practice
The line between these categories is sometimes very fine. For example, breaches committed in works to reconstruct a mansard became the ground for treating that mansard as an independent storey, and the works to reconstruct it as the construction of a new storey. In the end the mansard was recognised as an unauthorised building. An order was made to restore the object to its original condition and to pay fines.
Literal and thorough compliance with the statutory procedure for approving the works, before they begin, can also prove critical. For example, a failure to obtain a building permit before reconstruction of a cultural heritage object began led to the reconstructed building being recognised as an unauthorised building. It was very difficult for the right-holder to prove that the building permit had not been obtained because the authorised body was confident that it could not issue such permits (the relevant reply had been received in writing). It was impossible to obtain in advance, under the general procedure, a permit for the reconstruction of a cultural heritage object, because the law does not provide for it. In that situation the right-holder, in starting the works without a building permit, acted, as the saying goes, at their own risk, and as a result faced the consequences of a breach of preservation obligations, and fines.
Possible claims by inspectors can be avoided only if the forthcoming works are classified correctly (taking into account the particular features of court practice) and the approval procedures laid down by law are followed strictly. Legalising the results of works already completed, even where the law allows it, involves a complex and lengthy procedure, and the outcome is often hard to predict,
— Sergei Pivovarchik, managing partner at Consul Group.
Follow Consul Group on Telegram.
.jpg)
Analytics
Events