Is it possible to legalize an unauthorized construction of the building? How to coordinate an unauthorized replanning or reconstruction of the residential or nonresidential premises? What problems one may face in connection with the setting into operation and state   registration of the constructed real estate objects? These and some other questions within the frames of Letter of the Law,   the author’s program of Denis Aleynikov, Senior Partner of Law Group Argument, were answered by Olga Khoruzhko, Head of the Department of Register No.1 of Minsk City Agency for State Registration and Land Cadastre.

Olga, let’s start with the question of one of the users: “I have read the announcement with great interest and would like to ask you a simple question: what relation does a specialist of the agency for state registration and land cadastre have in respect of the above issues?” How would you comment upon that?

The point is that state registration is the last and the closing stage of the whole procedure of construction, replanning and reconstruction. Very often it occurs that having passed all the other stages before the last one, just during the state registration, it turns out that something is forgotten, overlooked, or the documents are filed incorrectly; finally, it is impossible to execute registration actions and to introduce information on the real estate object to the records of the unified state register for real estate, rights thereto and transactions with it. In accordance with the Law of the Republic of Belarus on State Registration of the Real Estate, Rights thereto and Transactions with it, the real estate is considered to be created or changed from the moment of its state registration. I believe that to avoid the problems of the last stage it is worth talking now with the state registration specialists who make decisions on possibility of execution of registration actions or on impossibility to execute them in connection with the violation of the legal requirements. 

I have read today’s forum and understood that the most topical issue is whether it is possible to legalize the unauthorized construction (replanning). 

Article 223 of the Civil Code of the Republic of Belarus provides the possible consequences of the unauthorized construction. In case of the unauthorized construction on the willfully occupied land plot, or on the land plot used out of its purpose, the local or regulatory authority shall make a decision on return of the willfully occupied land plot, on demolition of the unauthorized construction and on bringing it to the purposely usable state due to the procedure determined by the legislation on protection and use of land. In other cases a local or a regulatory body may make a decision on setting the unauthorized construction into operation and its duly state registration. From the viewpoint of the housing stock and practical experience of our agency today, decisions of local authorities on “legalization” are being made and the registration is also being done, all that is possible. What is important to know is what body to apply to and what authority is authorized to make such decisions. After that, of course, it is required to file a certain application to the state registration body.

Well, let’s examine the example, when people have made a renovation of their apartment with the unauthorized replanning. Where to go initially and afterwards?

After unauthorized replanning in Minsk it is required to apply to the state registration agency with the application on inspection of the premises characteristics and on making the journal of technical characteristics. The journal is the document in which all essential replanning arrangements are being reproduced. By virtue of the above document and the application of the individual the district administration shall make a decision on setting the apartment into operation and permission of state registration of its changes after having got all required approvals of the government supervision authorities (Emergencies Ministry, sanitation center, etc.).

The city executive committee makes decisions on a whole range of issues. But it concerns only the most serious cases (for example, joining of loggias and balconies, inclusion of them to the apartment’s space). As to the rest of issues, such as demolition and erecting of walls, doorways, all that is within the terms of reference of the district authorities. Their decisions are quite enough to register the changes of the apartment. When the individual comes to the agency, a technical passport shall  be issued on the basis of his application and the registration of changes of the apartment shall be executed; and all the characteristics in this form shall be entered into the unified state register for real estate, rights thereto and transactions with it.

There is a widespread situation when the legal entity starts preparing his office premises for the needs of his business, erects different cross walls, and in the effect it turns out to be quite a different premise. May the legal entity coordinate such an unauthorized change of the nonresidential premise? Does the coordination procedure differ from that of replanning made by individuals?

The procedures are as a matter of principle similar. But if such replannings result in change of the functional purpose, for instance, when the office premises were built, but they turned out to be storehouses in the end, then it is the executive committee who is to make a decision on coordination of that issue. If they were constructed and it turned out to be the office premises, then the coordination shall be applied to the reference of the district administration of the location of premise. The procedure is the same: one shall order the journal of technical characteristics, then the legal person applies to the administrative body, all the interested authorities coordinate the issue, the competent local executive or regulatory body makes a decision, after all that we get it registered. 

There is such a notion like “replanning”, but there is also a different notion such as “reconstruction”. What is the difference between both today?

Replanning and rearrangement are the terms which refer only to the residential premises in the blocks of flats. They are stipulated by Resolution of the Council of Ministers dated from 21.12.2006 No. 1805.  In all normative legal instruments related to construction, issued by the Ministry of Construction and Architecture the terms “reconstruction” and “renovation” are being used. I would recommend starting first with the normative legal instruments adopted by the Ministry of Construction and Architecture. They provide that reconstruction is a range of works and arrangements aimed at new purpose of buildings, constructions, communications, their parts  (including separate premises) and (or) connected with the change of their basic engineering and economical performance as well as works aimed at modernization of buildings, constructions and communication facilities. Change of the functional purpose of the facility and change of its size remain among the most impressive features of reconstruction.

There is one more term such as “modernization”. Modernization is a simplified type of reconstruction which implies no change in the size of the building or the premise and is always carried out in the existing dimensions of the real estate object. The decision on permission for registration of the unauthorized modernization may be made by the district administration. The decision on eventual registration of the unauthorized modernization in a broader sense such as overstorey and additional building shall be made by the city executive committee. All this should be taken into consideration to understand what body shall make a decision on that issue.

If a legal entity has made an overstorey of its construction without due coordination, then we talk about the unauthorized reconstruction of the real estate facility. Is it possible to coordinate such an unauthorized reconstruction?

Such a practice does take place and the decisions are being made. It’s clear that prior to making the decision by the city executive committee the expertise of bearing structures shall be done. There is administrative liability for the unauthorized construction. After penalty payment the executive committee may make a decision on setting into operation or on elimination of those changes.

What if a legal entity has willfully constructed a building on its own land plot? For example, if a legal entity was granted a land of three hectare for the purpose of construction and maintenance of one building only, but it has constructed two of them. May it “legalize” the second one as well?

There are such chances. The precondition is compliance with all the architectural and construction norms which will be taken into account. In such a case the person having carried out the unauthorized construction is authorized to apply to the court for recognition of the ownership title to it. In the event this application is granted and this decision is made this will serve as the basis for making the decision by the local executive committee on granting of the land plot or on change of the purpose of the existing one.

What if an individual has carried out an unauthorized construction on the land plot in his possession, will the procedure of getting the permit be similar to the above one?

Yes, the procedure is identical for all persons. The ownership title to the unauthorized construction may be recognized by litigation, if it is related to the use of the land plot out of its purpose. If an unauthorized construction was carried out without obtaining required permits or without design documentation in cases the latter are required by virtue of law, or in relation to the essential violations of architectural and construction norms and rules, then the executive committee may  make a decision on setting the unauthorized construction into operation and its further registration in due order, or on demolition of this construction and bringing the land plot in a suitable for the use state or bringing the unauthorized construction to the former state.

Firstly, one should obtain the journal of technical characteristics to understand what object and what characteristics of the latter shall be legalized. Our specialists shall record the fact of construction and describe its technical characteristics. Then one should apply to the administration of the certain district. It is essential to note that the unauthorized construction is an administrative violation which implies the responsibility.

Let’s talk about the construction which shall be carried out according to the laws. There is a range of problems today related to setting the facilities into operation. And these problems are frequently revealed just on the stage of submitting documents to the agency for state registration. What basic problems do the developers, legal entities and the individual entrepreneurs face at the moment of setting the facility into operation? What one should do in a different way to avoid such problems?

To summarize the practical experience of Minsk City Agency we may give you some recommendations, first of all, concerning the compliance with the terms settled by the commission and approval of the act. The commission accepting the facility shall be assigned latest 30 days prior to acceptance procedure. It should work during that time; send notifications on the planned acceptance of the facility and its setting into operation to the government supervision body. The statements of these authorities shall be obligatory obtained prior to signing the certificate – this is a mass problem: first failed to apply, then failed to obtain the statement, in the end it is impossible to do it post factum. The only option in case of non-observance of the procedure – to cancel the acceptance as operational, to reassign the commission and to go through the whole procedure again.
One more widespread violation is non-observance of the terms for certificate approval. The law (for now it is TKP 45-1.03-59-2008 “Acceptance of completely constructed facilities. The procedure”) is vividly providing the following – 15 days from the date of its approval. In case of non-observance of this term the facility shall be deemed as not having been set into operation.

It happens frequently that composition of the commission changes in the course of its work. The certificate shall be drawn up in advance; however it turns out that the indicated surnames do not coincide with the signatures. The registration specialist accepting the documents simply checks the commission composition with the signatures composition. The incorrectness of the above is the basis for refusal to register. That is why if there are any changes in commission composition they should be indicated on the first page of the certificate.

Sometimes a corrector is being used while drawing up a certificate. Use of such mechanisms while filling in the acceptance certificate is inadmissible. The law on state registration contains the requirement to the documents: there shall be no any non-stipulated corrections, adscripts, no violations of record keeping rules. If anything is crossed out with the thin line, the corrected information may be agreed upon, but after using a corrector such an option fails. That’s why this is what is not recommended to be done.

All paragraphs of the certificate, including the construction budget shall be filled in, because the assessment depends on them. As to the residential houses, filling in that section may be substituted by submitting a separate reference on the construction budget. If any of the items do not cover the object, there may be dashes made, but it is prohibited to remove any sections from the acceptance certificate form settled by the Ministry of Construction and Architecture.

Implementation of the new Technical Code on setting into operation resulted in a new provision, according to which the Ministry of Natural Resources and Environmental Protection shall issue a statement in relation to all objects, irrespective of small renovation or a considerable reconstruction done.

Sometimes problems connected with the lack of the statement of the State Inspectorate of Labor occur. If a facility which is to be set into operation has some working places then such  statement should be done.

Does it mean that if you have forgotten to obtain just one statement, then the whole acceptance procedure shall be called off and you should start once again from the very beginning?

Right you are. The objects with acceptance procedure violations shall not be registered.

Have you ever experienced a case when in the course of submitting the documents to the state registration agency, you discover that the facility has been constructed contrary to the purpose of the land plot? 

There is one peculiarity of the purpose. We have not experienced such cases when the construction was carried out with the purpose completely different from that the land plot was granted for. What we did face was that the land plot was granted for the purpose of facility construction.  Completion of construction, i.e. the acceptance certificate is the exhaustive factor of that purpose. The state registration of the facility creation is only possible after the purpose of this land plot has been changed and it has been determined as “the land plot for the purpose of facility operation”. You should always bear it in mind, and prior to applying to the agency with the application on state registration of the complete facility construction, you should go to the Minsk City Executive Committee with the application on changing the purpose of the land plot: if the land plot was “for the purpose of construction”, it should become “for the purpose of operation”. The only exclusion is the case when the facility is being constructed as start-up facility: a big building is being set into operation in parts –the land plot shall be granted for construction, and the purpose may undergo no changes up to the moment of complete setting into operation of the facility. 

Let’s assume that the land plot is being granted for the purpose of construction and operation of the trade centre. The organization has registered the trade centre but failed to change the purpose of the land plot, but it also intends to construct one more building on the same land plot, let’s say, a sports complex. Is it authorized to do so?

The organization won’t be able even to get the permit for the construction without changing the purpose of the land plot.

You mean the whole land plot or it is worth separating out the part of it (to form the new land plot)?

Everything depends on the size of the land plot. If for the purpose of operation of the existing building the land plot of smaller size is enough, then it is naturally that a part of that land plot shall be withdrawn and it shall be granted to the organization for some other purpose. A project will be developed; the construction will be carried out and then set into operation.

I would like to note one more point related to the land plots. If the purpose of construction is the origin of shared ownership rights, then the registration may not be done prior to the decision on the land plot determining whether it is in share use or in share lease.  Then the simultaneous registration of the land plot and rights thereto, as well as of the building and rights thereto shall be carried out. I would like to emphasize that we speak about the undivided rights to the building.

We may even have such a situation when the shareholders are involved, but specific premises are constructed for them. This clause does not work there. We have the situation when the developer got a land plot for the purpose of construction and operation and there are no any obstacles for registration of the premises. Then the land plot shall be granted to the condominium and in case there are not more than 5 owners of the building and they have decided to manage the real estate directly it shall be granted to these persons on the basis of shared ownership.