The Supreme Arbitration Court of the Russian Federation: clarifications on imposing administrative liability for unauthorised occupation of land plots and for the construction and operation of facilities without proper permits.

28.04.2011

Goltsblat BLP advises that on 17 February 2011 the Plenum of the Supreme Arbitration Court of the Russian Federation adopted Resolution No. 11 "On Certain Aspects of Applying the Specific Part of the Code of Administrative Offences of the Russian Federation" (hereinafter the "Resolution").

In practical terms, the most important clarifications provided by the Resolution on realty and construction matters are:

  1. In applying article 7.1 of the Code of Administrative Offences of the Russian Federation (liability for unauthorised occupation or use of land plots without duly executed entitling documents for the land) it is recommended that account be taken of the fact  that "unauthorised occupation of land" means use of another person's land without due consent of its owner (or another person authorised by the owner).
  2. In considering cases connected with imposing administrative liability on persons for carrying out construction, reconstruction and major repair of capital projects without construction permits in the event when obtaining such permits is mandatory (part 1, article 9.5 of the Code of Administrative Offences of the Russian Federation) courts must proceed from the assumption that liability for this offence can be imposed on the developer (or employer under a contractor agreement), since it is responsible for obtaining construction permits and on other persons performing relevant work (for instance contractors and sub-contractors), since they need to ensure that the developer holds a requisite construction permit when it engages them for work of a construction, reconstruction and capital repair nature at capital projects.
  3. As per part 5, article 9.5 of the Code of Administrative Offences of the Russian Federation, administrative liability is attributed to persons operating capital projects without commissioning permits, unless construction, reconstruction or major repair works at these capital projects may be performed without a construction permit. 

In considering such cases courts are to proceed from the assumption that liability for this offence is imposed on the immediate operator of the capital project. If a capital facility is operated by a number of persons concurrently, administrative liability may be imposed on each of them not only on the company that was the first to operate the facility. In particular, from this clarification, it follows that tenants of buildings may also be held administratively liable.

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