Comments made by Evgeny Zverev, Senior Associate of S&K Vertiсal in an article titled “Railroad Phantom”

8 February 2012

A phantom-building emerged on Obvodny Kanal. It underwent an unauthorized reconstruction by OAO RZD, however, both municipal and district courts haven't found any good reasons for demolition. At the same time, the arbitration court refused to recognize the railway company’s ownership to the building. Currently the property is in abeyance, however, according to lawyers, it is not likely to face demolition.

The issue flamed up into conflict over a shabby two-storey wooden building of OAO “Russian Railways” (RZD) located near Vitebski spur line between Obvodnogo Kanala quay and Borovaya street (the same residential neighbourhood holds a data-computing center, the Oktyabrskaya Railroad Polyclinic and other industry-sponsored organisations). As a result of reconstruction conducted in 2009, the railway company has actually erected a new four-storey stone building on the same place, however, the new property affords quadruple the floor space of the old one.

This being said, OAO RZD failed to conduct the project appraisal, and to obtain the building permit and commission permit, as well as other documents, this is why the completed project was given the status of building constructed without proper permissions. According to general rules of the civil legislation, such building is liable to demolition. But the railway company wisely gave it over to the Line Internal Affairs Department of Vitebskiy railway station.

Tenants of neighbouring house (no 59-61, Borovaya Street) protested against the newly built project, as it was in violation of fire safety regulations and solar exposure standards. Experts assigned by court also affirmed that the reconstructed building is not in compliance with current legislation. Nevertheless, judges dismissed angry tenants’ claim on demolition of unauthorized structure.

However, the railway company celebrated victory too early. The arbitration court (where OAO RZD filed a lawsuit), also dismissed the claim for declaration of title to the disputable building. Moreover, the court acted based on formal grounds: the structure is located on the land plot which is government property. “The fact that a plot of land was apportioned to the claimant cannot give rise to ownership right to the structure built (reconstructed) in the said plot of land and occasion,” concluded judge Andrei Filippov.

This being said, the principal respondent (Department of Rosimushchestvo) acknowledged claims of the railway company, and the rental contract allowed for construction on apportioned plots of land.

The interviewed lawyers believe that the decision was well-founded, but the situation could be described as a stalemate: “Now the RZD can well refrain from demolishing the building until the owner (i.e., the government represented by authorized bodies), asks them to do so,” explained Evgeny Zverev, the Senior Associate of S&K Vertical. “Judging by the attitude adopted by the Rosimushchestvo (stated in the ruling), the owner would not do it.” Nevertheless, the railway company will experience problems legalizing the newly built structure.” Pavel Ilyinykh, the lawyer of litigation practice of Rightmark Group agreed with him: “The dismissal of RZD claim was in accordance with law. There is only one reasonable way out: only the owner of the land plot has the right to legalize the unauthorized construction. After that OAO RZD will be entitled to demand that the state compensates them for costs incurred related to construction of the unauthorized structure”.

On the other hand, developers were not surprised at the situation. As Leonid Sandalov, deputy director general of the real-estate agency ‘Bekar’ said to ‘Fontanka’ reporter, “Such case is not an isolated instance. Our laws are rather controversial ones: no permission needed to build non-permanent nonresidential structures (garages, hangars, etc.) on private land plots, even if these are two-or three storey brick buildings. And people take full advantage of this controversy. For instance, there are plenty of multifamily residential buildings in Ozerki and Kolomyagy built on land plots meant for private housing construction. Everybody knows it, yet no one minds it at all.”

The expert only quoted a single case of illegally constructed buildings being demolished, i.e. the case of cottages in the Moscow water-conservation zone, initiated by Yury Luzhkov, the former mayor. “In all other cases (apart from the fence on the shore of a lake in Leningrad Oblast which is renewed the next day) no attempts were made to pull down illegal structures, especially those built on privately-owned land,” he added.

The press service of RZD did not respond to request of ‘Fontanka’ to comment on situation with the building reconstructed by the railway company. At the same time, they did not appeal against the arbitration court's decision which became effective at the end of January.

Pavel Netupsky, Kira Obukhova

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