A failure to enter into the Unified State Register of Real Estate information about a selected secondary type of permitted use of a land plot does not entail liability
Pepeliaev Group advises that the Russian Constitutional Court has is-sued Resolution No. 42-P dated 16 October 2020 according to which article 8.8(1) of the Russian Code of Administrative Offences, which establishes liability for a land plot being used other than for its intended purpose, con-tradicts the Russian Constitution.
The constitutional proceedings were initiated owing to administrative liability having been imposed on the owner of a land plot under the specified provision of the Code of Administrative Offences in connection with the owner using the land plot in accordance with one of the secondary types of permitted use. This had been determined for the relevant territorial area without any data to this effect having been entered into the Unified State Register of Real Estate (the “Register”).
The Constitutional Court emphasised that in accordance with article 7(2) of the Russian Land Code and article 37(4) of the Russian Town-Planning Code the owner (right holder) of a land plot may independently select both a primary and (in addi-tion to the primary) a secondary type of permitted use of the land plot for which the land use and development rules of a specific territory provide. However, nei-ther the Land Code nor the Town-Planning Code directly impose on a person using the land plot in accordance with a secondary type of its permitted use, along with the primary type of its permitted use set out in the Register, any obligations to no-tify any public authorities of that person's decision.
At the same time, the Constitutional Court did not rule out such an interpreta-tion of the legislation whereby the owner of (the holder of a right over) a land plot must enter into the Register information about the selected secondary type of per-mitted use with a view to ensuring that the register contains accurate information regarding the actual use of the land plot.
Therefore, the Constitutional Court concluded that there was uncertainty with respect to the legal regulation of the issue as to whether the owner of (holder of a right over) a land plot, in the event that he/she selects a secondary type of use of the land plot in addition to the primary type of permitted use, must enter into the Register information about such use. This creates uncertainty with regard to whether administrative liability may be imposed on such person for using the land plot other than in accordance with its permitted use (article 8.8(1) of the Code of Administrative Offences).
In view of the above circumstances article 8.8(1) of the Code of Administrative Offences has been held unconstitutional and the federal legislature has been or-dered to take measures to cure the identified uncertainty. Pending the necessary amendments to the legislation, owners of (holders of rights over) land plots cannot be obliged to enter any data into the Register in the event that they select a sec-ondary type of use of their land plots in addition to the primary type of permitted use.
The constitutional proceedings were initiated owing to administrative liability having been imposed on the owner of a land plot under the specified provision of the Code of Administrative Offences in connection with the owner using the land plot in accordance with one of the secondary types of permitted use. This had been determined for the relevant territorial area without any data to this effect having been entered into the Unified State Register of Real Estate (the “Register”).
The Constitutional Court emphasised that in accordance with article 7(2) of the Russian Land Code and article 37(4) of the Russian Town-Planning Code the owner (right holder) of a land plot may independently select both a primary and (in addi-tion to the primary) a secondary type of permitted use of the land plot for which the land use and development rules of a specific territory provide. However, nei-ther the Land Code nor the Town-Planning Code directly impose on a person using the land plot in accordance with a secondary type of its permitted use, along with the primary type of its permitted use set out in the Register, any obligations to no-tify any public authorities of that person's decision.
At the same time, the Constitutional Court did not rule out such an interpreta-tion of the legislation whereby the owner of (the holder of a right over) a land plot must enter into the Register information about the selected secondary type of per-mitted use with a view to ensuring that the register contains accurate information regarding the actual use of the land plot.
Therefore, the Constitutional Court concluded that there was uncertainty with respect to the legal regulation of the issue as to whether the owner of (holder of a right over) a land plot, in the event that he/she selects a secondary type of use of the land plot in addition to the primary type of permitted use, must enter into the Register information about such use. This creates uncertainty with regard to whether administrative liability may be imposed on such person for using the land plot other than in accordance with its permitted use (article 8.8(1) of the Code of Administrative Offences).
In view of the above circumstances article 8.8(1) of the Code of Administrative Offences has been held unconstitutional and the federal legislature has been or-dered to take measures to cure the identified uncertainty. Pending the necessary amendments to the legislation, owners of (holders of rights over) land plots cannot be obliged to enter any data into the Register in the event that they select a sec-ondary type of use of their land plots in addition to the primary type of permitted use.