The Russian Supreme Court has recently issued new clarifications on the so-called “unauthorized construction objects” which are structures erected or modified in breach of Russian construction or land law. In particular, the Supreme Court has clarified the legal test which Russian courts should use to decide if a structure is an “unauthorized construction” or not. Apart from that, the Supreme Court has elaborated on the ways to legalize an “unauthorized construction” and prevent its demolition. In particular, the courts have power to approve a settlement agreement that resolves an “unauthorized construction” dispute and would cure the owner’s title to the relevant property. Apart from that, a court may enter an “alternative judgment” to order the respondent to either demolish or rectify the “unauthorized construction” at the respondent’s choice to cure its breach of land law or construction law, where relevant.

The Supreme Court approved Ruling of the Plenum dated 12 December 2023 No. 44 on disputes related to unauthorized construction objects.

An unauthorized construction is a construction erected in violation of construction norms and town-planning requirements. However, not all violations require a demolition of the relevant structure. Instead, the court may “legalize” an unauthorized construction object in case of minor deviations that do not threaten public safety. At the same time, non-compliance with the maximum number of floors or the maximum height of the building is normally a material deviation.

Unauthorized reconstruction of a lawfully constructed building does not necessarily require the demolition of the entire construction object if it can be brought into compliance by undoing the reconstruction.

At the same time, some buildings and structures are protected from being declared as unauthorized. This includes constructions for which the competent authority previously issued a permit but subsequently cancelled it in the process of internal review, and constructions which violated land-use restrictions which were unknown to the developer (for example, if information on such restrictions was not available in the Unified State Register of Real Estate).

In addition, the developer may be entitled to cure its title to the structure if it is tainted only by a failure to timely obtain construction permits or similar consents rather than by a substantive defect, provided that the developer in good faith (and not for the sake of appearance only) took reasonable measures to obtain the required permits or consents.

Another option to legalize an unauthorized construction is to enter into a court-approved settlement agreement. However, courts are required to ensure that the relevant structure can be safely used before approving a settlement agreement in an unauthorized construction matter.

But even where the court refuses to legalize a structure and finds that it is an unauthorized construction, the court may still enter an alternative judgment to enable the developer to choose whether to demolish the structure or to rectify the relevant defects. In this case, the defendant has the right to choose the method of execution of the court decision.