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Publication date: 23.05.2024
lawyer, 23 years of experience in enforcement.
In accordance with the resolution of the Cabinet of Ministers of Ukraine No. 1024 dated 28.12.2016 "On Amendments to the Rules for the Use of Residential Buildings and Dormitories" the replanning procedure was simplified. At present, redevelopment is understood as the performance by the owner of works on the conversion of premises of the housing stock, which do not involve demolition or any interference with supporting structures or engineering systems of public use. To carry out such works, it is not required to obtain a permit, as well as to put the facility into operation.
Resolution No. 406 of the Cabinet of Ministers of Ukraine dated 07.06.2017 "On approval of the list of construction works that do not require documents giving the right to their execution, and after completion of which the object is not subject to acceptance into operation" approved the list of such works.
According to Art. 10 of the Law of Ukraine "On the Regulation of Urban Development Activities" dated February 17, 2011 No. 3038-VI, reconstruction is equated to new construction. A similar conclusion can be drawn by analyzing the Law of Ukraine "On Architectural Activities" (Article 9). Therefore, carrying out other works without obtaining the appropriate permit is considered spontaneous construction.
According to Clause 3, Part 1, Art. 34 of Law No. 3038-VI, in order to carry out the reconstruction of the apartment, it is necessary to obtain a permit to carry out construction works - to go through the usual procedure for obtaining a permit to carry out construction works and to complete it with the registration of the declaration of the facility's readiness for operation.
According to Art. 38 of Law No. 3038-VI in case of discovery of the fact of spontaneous construction of an object, the reconstruction of which is impossible in order to eliminate a significant deviation from the project or to eliminate violations of the legal rights and interests of other persons, a significant violation of building regulations, an official of the state architectural and construction control body issues to the person who carried out (is carrying out) such construction, an order on the elimination of violations of the requirements of legislation in the field of urban planning activities, building regulations, state standards and rules with the determination of the term for voluntary implementation of the order.
Article 38 of Law No. 3038-VI regulates that in the event that the person who carried out the construction ignores the legal requirements of the control body to eliminate violations within the period specified by it, such body is obliged to file a lawsuit in court for the demolition of the self-constructed object and compensation for costs , related to such demolition.
Consideration of cases on the elimination of violations of the requirements of legislation in the field of urban planning, construction regulations, state standards and rules shall be carried out in the manner of civil proceedings, by filing a lawsuit by the relevant local council to the court (case No. 461/10573/14-ts, No. 296/5460/17 , No. 755/9125/18. The State Architectural and Building Inspection acts as a third party in such cases.
The court conducts a comprehensive and complete study of the available case materials, supported by proper and admissible evidence. The procedure for considering the case is regulated by Chapter III of the Civil Procedure Code of Ukraine.
The court analyzes the presence of the conditions provided for in Art. 376 of the Civil Code of Ukraine, in connection with Art. 38 of Law No. 3038-VI, namely:
- presence of a significant deviation from the project or its absence;
- conflict with public interests or violation of the rights of other persons;
- significant violation of construction norms and rules;
- the impossibility of carrying out reconstruction of the object in order to eliminate violations or the person's refusal to carry it out;
- non-fulfillment of the order to eliminate violations.
If it is established that the plaintiff used all the measures provided for by the legislation, which were ignored by the defendant, the court may make a decision to demolish the illegally built objects.
After considering the case, the court makes a decision, which can be challenged within 30 days by filing an appeal. After the appeal in the appellate instance, an appeal in the cassation is possible (Article 389 of the Civil Procedure Code of Ukraine).
According to Art. 18 of the Civil Procedure Code of Ukraine, court decisions that have entered into legal force are mandatory for implementation by all state authorities, local self-government bodies, their officials and employees, natural and legal entities and their associations throughout the territory of Ukraine.
According to Art. 273 of the Civil Procedure Code of Ukraine, the court decision becomes legally binding after the expiration of the period for filing an appeal by all parties to the case, if no appeal was filed.
The execution of the court decision, which has gained legal force, regarding the demolition of self-built facilities is carried out in accordance with the Law of Ukraine "On Enforcement Proceedings" dated 06.02.2016 No. 1404-VIII.
The procedure of a person's obligation to restore a self-planned apartment to its previous condition takes a lot of time and is quite complicated. The borzhnik in the specified matter can rely on pre-trial dispute regulation, but if the parties do not reach an agreement, then judicial dispute regulation is necessary to resolve the issue.
The legal service "Consultant" will select a lawyer or an attorney who will conduct a legal analysis of the situation, form an appropriate procedural document (application, statement of claim, petition, etc.), and also help in collecting the evidence base for the most effective resolution of the issue. Service specialists will accompany the process from the beginning to the execution of the court decision. They will also provide advice and help in solving such issues as: preparation of amicable settlement with the creditor, removal of seizure from real estate and funds, bankruptcy of an individual, debt reduction, etc.
