Important – amendments to cultural heritage protection laws. Inna Firsova and Victoria Bodrova for Association of European Businesses, Real Estate Monitor, #2 2017
Several important amendments have recently been introduced to Federal Law No. 73-FZ “On the Protection of Cultural Heritage…” (hereinafter – the “Law”) regarding the reform of the cultural heritage protection zone system and related obligations and restrictions on owners and users of Cultural Heritage Sites (hereinafter – Sites). These amendments are of major significance for the use of Sites such as historical buildings, structures and premises.
In addition to the previous (а) Site protection zones, (b) regulated development and activity zones, and (c) protected landscape zones, the amendments added another two types of Site protection zone: Site Territory and Site Buffer Zone.
Previously, the territory of Sites was mentioned in the Law but the term itself and limitations were not defined.
A Site Territory is one that is occupied by the Site and connected with it historically or functionally. The actual concept of a Site Territory is in no way connected with a specific land plot. For instance, Site Territories may be included in land that is not in a cadastre or land that is in a cadastre and parts of it, as well as forest plots.
However, although each Site has “its own territory”, the development and approval of the boundaries of a Site Territory (like a Site protection zone) is not mandatory.
A Site Territory may belong either to Sites registered in the Register of Sites (hereinafter – the “Register”) or newly identified Sites (sites that are already protected and have the status of a Site due to their cultural heritage features, but have not yet been placed in the Register and might, in the future, be recognised as not possessing the features required for inclusion in the Register).
According to the Law, construction and other work not connected with the preservation of a Site are restricted on the Site Territory. The documentation for such work must include sections designed to safeguard the Site and be approved by the Site protection authorities. Moreover, the amendments also apply restrictions to land plots that neighbour the Site Territory, requiring developers to prepare some additional sections in the design documentation and have them approved.
These amendments reflect court practice, which have followed the same principal that the need to include additional sections in the documentation with respect to the work to be performed on adjacent land plots depends on the extent to which the construction might affect the Site. Otherwise, construction might be prohibited or a constructed facility declared an unauthorised structure.
Site Buffer Zone
A Site Buffer Zone is a territory adjacent to a Site or a Site Territory (if established). The Site Buffer Zone is set automatically when the Site is included in the Register and exists until the protection zones have been approved. In contrast to the other four zones, the overall width of the Site Buffer Zone is regulated by the Law and determined in advance: from 100 to 300 metres, depending on the type of Site and its location.
The reason buffer zones were introduced for Sites was the need to protect and preserve the visual perception of historical and cultural monuments already entered in the Register for which no protection zones have been established.
Within buffer zones new construction is prohibited, as is any change to the planning characteristics of existing facilities. It is worth mentioning that the emergence of buffer zones of Sites included in the Register when the law is adopted does not affect previously issued construction permits and they remain valid. Yet it is unclear what happens to construction permits issued before new Sites are included in the Register in the future.
The Law demands closer attention to the territory on which work is planned and a more detailed check of land plots located around and on the Sites.
OBLIGATIONS AND RESTRICTIONS
Before the Law was amended, preservation obligations (hereinafter – the “Obligations”) imposed on the owner of a Site were contained in various document types: preservation agreements, preservation leases and preservation obligations, in a format established back in the 1980s. The absence of a single document and the need to sign the given “Obligations” as agreements between the user and the Site protection authority engendered disputes over their contents. There were also arguments about the need for tenants leasing Sites from private owners to sign the Obligations. The tenants were often totally unaware of such Obligations.
According to the amendments, the Obligations should now be included in a single document in the format developed by the Ministry of Culture in 2015, containing a description of the Site and the exact structure subject to protection.
The given changes have brought considerable clarity to the situation, especially since the “new” Obligations are publicly available and their contents should be provided in transactions involving the transfer of ownership and use of Sites. In particular, the Law establishes various requirements depending on the type of Obligation.
If a “new” Obligation is fulfilled, the transaction involving the transfer of the rights to a Site, be it a lease or sale and purchase transaction, must include the duties of the new users to preserve the Site and the Obligation be attached thereto. Otherwise, the agreement is null and void. Although the Law does not explicitly set the same rule for cases in which the “new” Obligation is not fulfilled, but there are other preservation documents, we come to the same conclusion upon analysis of the current legislative requirements.
If no Obligations have been fulfilled by the time the agreement is concluded:
(i) in relation to a newly identified Site, the agreement on the transfer of the right thereto must contain the obligations to maintain it as a substantive condition. Otherwise, the transaction is null and void.
(ii) in relation to a Site included in the Register, the Law sets a general obligation for the tenant/new owner to carry out the main measures to preserve the Site. Yet there is no specific requirement in the Law to state these obligations in the agreement (it only states with respect to a lease that, after a preservation obligation is received, it must be included in the agreement).
Even so, Rosreestr has expressed its unambiguous position that, in any case, an agreement related to a Site (both registered and newly identified) must, in the absence of a fulfilled Obligation, specify the need to observe the requirements related to the preservation of the Site. Otherwise, the registration of the rights under the agreement may be refused.
Consequently, the amendments, together with the explicitly stated position of Rosreestr, have introduced a unified approach according to which agreements should, in any case, include certain conditions concerning the special use of Sites.
The amendments also affected the restrictions on renovation, overhaul and other work at Sites. However, although the Law added certain detailed requirements, some related areas remained unclear.
The prohibitions are clearly stated in relation to Sites possessing an approved structure for preservation (such as the façade of a building): it is prohibited to perform work that changes or causes a deterioration in the protected structure.
In relation to Sites that have no specific protected structure, the restrictions are not fully clear. The Law bans any change to the planning and structure of a Site, be it included in the Register or newly identified. In essence, therefore, the Law currently bans any changes to Sites lacking a protected structure, be it alterations or painting of the façade. As a result, such work may be carried out only as part of preservation work, requires a considerable number of approvals and may be performed only with the help of specially certified persons.
This circumstance is particularly relevant for those who acquire properties in central and historical districts, where each building might potentially be identified as a Site and information about such buildings is not always easily accessible. From the practical point of view, such an acquisition might restrict the new owner’s opportunities and also serve as grounds for disputing the acquisition of the Site if the purchaser is unaware of the status of the facility.
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