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Courts clarify administrative liability for a breach of requirements for permitted use of land plots

19.02.2021
4 min read
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Pepeliaev Group advises of the case law that, in furtherance of the resolutions adopted by the Constitutional Court, clarifies the conditions of administrative liability for the use of a land plot in breach of the type of permitted use.

History of the matter

On 16 October 2020, in its Resolution No. 42-P dated 16 October 2020 “On the case involving article 8.8(1) of the Russian Code of Administrative Offences being checked for conformity with the constitution in connection with a complaint of Ms M. G. Antsinova” the Constitutional Court clarified the conditions for liability to be imposed under article 8.8(1) of the Russian Code of Administrative Offences.

According to the Resolution, a person cannot be held liable under administrative law on the grounds of the failure to enter in the Unified State Register of Real Estate information about a secondary type of permitted use of the land plot, if such type of permitted use is stipulated in the relevant municipality’s rules for land use and development pertaining to a particular territory.

On 12 November 2020, in its Resolution No. 46 “On the case involving article 378.2(4)(1) of the Russian Tax Code being checked for conformity with the constitution in connection with a complaint of Open Joint Stock Company Moscow Wool-spinning Factory ”, the Russian Constitutional Court clarified the procedure for applying article 378.2(4)(1) of the Tax Code when the base is determined for corporate property tax: the actual use of real estate items on a leased land plot must be of paramount importance for determining the tax base.

Apart from tax issues the Constitutional Court clarified in this resolution how the primary and secondary types of permitted use of land plots are regulated under land legislation.
 
At present, the Supreme Court and lower-level courts are already overruling judgments about persons being held liable for the failure to perform the above actions drawing on the specified resolutions of the Russian Constitutional Court. See, for instance, the rulings of the Supreme Court’s Judicial Board for Economic Disputes dated 25 January 2021 on case No. А40-216490/2019 and dated 19 January 2021 on case No. А40-232562/2019, as well as Resolution No. 5-AD20-134 dated 18 January 2021.

The following clarifications of the Constitutional Court are notable and may help with the protection of the rights and legal interests of holders of rights to real estate:
  • In any case the owner of a land plot may independently choose both the primary and secondary type of the permitted use of such land, which are stipulated in the municipality’s rules of land use and development pertaining to a particular territory;
  • If a person chooses to use a land plot not only in line with the primary type of permitted use that is specified in the Unified State Register of Real Estate, but also in accordance with the secondary type of permitted use, which is stipulated by the municipality’s rules of land use and development pertaining to a particular territory, neither the Russian Land Code nor the Russian Town Planning Code impose on such person the obligation to notify any public authorities of this choice as to the use of land;
  • a person with the status of the owner of a land plot is not deprived of the legal right to change one type of permitted use of land plots and capital construction facilities with another, while a person renting the land does not have such a right;
  • The state authorities act, among other things, on the assumption that it is prohibited to change the type of permitted use of a land plot that has been leased out as a result of a tender. At the same time, they believe that in the absence of a similar restriction for land plots that have been leased out without a tender, the change of the type of permitted use of such land plots is not regulated by the law.

What to think about and what to do

The adoption by the Constitutional Court of resolutions Nos. 42-P and 46-P and the subsequent developments in the case law give rise to opportunities to have decisions of state authorities and/or court rulings set aside for persons to be held liable under article 8.8(1) of the Code of Administrative Offences and also opportunities to protect the interests of holders of rights to real estate in other disputes over the type of permitted use.

Help from your adviser

Pepeliaev Group's lawyers are ready to assist in assessing any circumstances and facts as they apply to each specific situation when a person is held liable, form a position as to the most prudent conduct, and provide any other legal support, including in resolving disputes, in negotiations with contracting parties and in assessing risks connected with town planning regulation.

We are ready to provide comprehensive legal support within litigations in courts of all levels, including on issues connected with challenging resolutions of state authorities regarding administrative liability being imposed.

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