Capital construction is the process of erecting load-bearing structures, as well as reconstruction and restoration, which requires not only construction work, but also mandatory earthworks.
The legislation determines that capital construction projects can be both newly constructed buildings and objects requiring reconstruction.
Classification of buildings and structures of capital construction
Capital construction projects are identified according to a number of characteristics that allow further work to be carried out:
- The construction project should not be of a temporary nature.
- All buildings must be tied to a permanent foundation.
- The construction project must have state registration, including through the cadastral chamber of Rosreestr.
The terminology of capital construction involves the implementation of phased work, which includes the following:
- Design work.
- Exploratory.
- Installation processes.
- Launch of the facility into construction.
According to the current legislation, objects of small architectural forms in the form of kiosks, tents, canopies are not eligible to be classified as capital construction projects. Thus, for kiosks, it is assumed that there is one workplace for the seller, but there is no sales floor. A canopy is understood as an object with a semi-closed shape, where some of the wall elements are missing.
The difference between temporary construction and the capital option
In the construction industry, there is a temporary option for buildings that have a number of distinctive characteristics. These include not only the economic side of the subject, but also the legal, legal assessment of the temporary nature of construction.
- An object with temporary characteristics does not have documentation of ownership, and at the end of its service life is subject to demolition or disassembly.
- It has a property factor, undergoes state registration and is tied to a capital foundation. Subsequently, the object is not subject to demolition, transfer or disassembly, except for cases provided for by law.
Design documentation is developed for the facility, which confirms a certain type of construction entity.
Capital or temporary nature - let’s look at the nuances
As such, you will not find the concept of “capital construction” in the current GOST of Russia, while the regulations provide for the definition of categories of buildings.
- Category I - this type of building must have a service life of over 100 years.
- Category II - this category of objects has a service life of 50-100 years.
- Category III - this type of object must have a service life of 25-50 years.
- Category IV - the service life of the facility is 5-25 years.
For the last class of object, there is an unwritten rule of the concept of a temporary nature, and this type of building must be built on the basis of lightweight structural materials - wooden structures or other types.
Technical differences of construction projects
Temporary buildings and the permanent construction option have externally similar features, while, according to the Urban Planning Code of Russia, technical differences between the objects are defined:
- The capital construction project is tied to a permanent foundation, and there is always a connection to the land plot. A temporary structure may not have a foundation.
- A capital facility requires the collection of permits for full operation, while a temporary building has a minimum set of documents for permission to operate.
- The minimum service life for an object of category KS (capital construction) is 25 years, and can be higher than 100 years. Temporary buildings must be in use for no more than 25 years, with mandatory conditions for demolition.
- A capital facility cannot be demolished or moved to another location, with the exception of a number of provisions of the town planning code.
- The object of completed construction work involves the use of property rights with registration in Rosreestr; for temporary buildings, restrictive permitting functions of property rights are presented.
Categories and types of capital construction projects
The Town Planning Code of Russia, as well as a number of other regulatory provisions, have developed categories and types of capital construction projects that have their own distinctive characteristics.
- Construction of a new facility (new building). The facility is being built from scratch, using the primary factors of construction, starting from the development of the land issue. Upon completion of construction, the facility becomes an independent unit with a book value.
- Restoration. The process of repair, reconstruction and expansion of existing structural elements.
- Reconstruction. Modernization of a property, but expansion of the area is not allowed.
- Expansion of an object is a significant increase in area by adding a separate object, with the introduction of a new type of premises or building to a separate book value.
What objects are classified as capital construction?
Capital objects for construction can be both residential buildings and non-residential purposes. These concepts are clearly described in the current Town Planning Code of Russia. In any case, regardless of the nature of the object, they must all have the minimum characteristics for comfortable use of the building. In this case, it is necessary to use engineering communications; the building must be equipped with an entrance, exit, ramps, entrances, etc.
- Residential building. High requirements for the arrangement of a facility, the main purpose of which is the permanent residence of people, may have an above-ground and underground part. Mandatory presence of utilities and entrance groups. The building can be intended both for habitation of people and animals, and for production purposes.
- Non-residential objects. This category includes structures that are not intended for the permanent presence and residence of people, such as power lines, stadiums, bridges.
- Unfinished construction projects. The property has construction that was suspended for a number of reasons, but in the future it is possible to resume construction or suspend the operation of the property.
Features of legislation for capital construction
In Russia, a number of by-laws provide for the application of terms to capital construction, on the basis of which a legal assessment of the actions of all interested parties is carried out.
The cadastral law of Russia implies the following types of objects:
- Structures, structures and buildings that relate to social or engineering communication objects - power lines, pipeline systems, wells.
- Objects of unfinished construction for a number of reasons.
- In addition, according to the Decree of the Government of the Russian Federation, which has serial number No. 87, all existing capital construction projects are classified into:
- Industrial (standard production) subjects.
- Objects of the defensive sector to ensure the security of the country.
- Objects with non-production characteristics (social buildings, residential buildings, premises for domestic use, etc.)
This category of objects includes pipelines, main power lines, roads, and tunnels. These objects require special conditions for commissioning permission, which provide for the review of technical documentation directly on site, using special equipment designed for surveying objects. After completing the relevant documentation, the construction of the facility and its commissioning are permitted.
Objects without permits
According to the provisions of the law, any construction project must have permits, on the basis of which capital construction of the facility begins. Without such a document, penalties may be applied to the owner and persons involved in construction.
All documents for construction permission must be obtained from the local architectural department of the municipality. At the same time, Article 51 of the current Town Planning Code presupposes the absence of permitting executive documentation in a number of cases:
- The object will in the future be built or reconstructed on a land plot that belongs to the developer on legal grounds and property rights.
- The object will subsequently have temporary operating characteristics.
- At the site, auxiliary structures will be erected that are not classified as capital in nature and will not affect the main functions of other residential and non-residential facilities.
Legal grounds for capital construction
In recent years, the wording “capital construction” has begun to acquire legal connotations in a number of sub-legislative documents. In particular, in 2005, the concept of capital construction appeared for the first time in the Town Planning Code of the Russian Federation. A little later, grounds appeared to radically change the civil legal justification of capital in a number of legislative provisions.
The result of a lot of work was the introduction of the concept of capital construction in the Forestry and Water Code of Russia. Of great importance was Article 130 of the Town Planning Code of Russia, which clearly explains the term capital, which means the direct connection of an object with the surface of a site that has a foundation of the appropriate type.
Currently, appropriate changes are being made to a number of laws that will make it possible to raise a dispute between the concepts of temporary construction and capital subjective object construction in relation to buildings of the MAF type (small architectural form), which have caused a lot of noise in a number of regions of the country. The State Duma intends to raise a final dispute between these objects, after a detailed examination of all innovations in other legal acts of Russia.
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For the first time, the legal definition of the category “capital construction object” (hereinafter - OKS) was introduced by the Civil Code of the Russian Federation. It should be noted that the category OKS is used not only by urban planning legislation, but also by the legislation of other branches of law. In particular, this applies to the civil law sphere, land, forestry legislation and other sectors. That is why it is so important to understand the essence of this definition, to have a clear idea of what exactly the legislator means by OKS.
In accordance with paragraph 10 of Article 1 of the Civil Code of the Russian Federation, OKS is a building, structure, structure, objects whose construction is not completed (i.e. objects of unfinished construction), with the exception of temporary buildings, kiosks, sheds and other similar structures. At its core, this provision is not a definition as such due to the fact that it does not contain the essential characteristics of this category, but comes down to only a listing of objects related to OKS.
So, buildings, structures, structures, and objects of unfinished construction are classified as OKS. The listed objects are nothing more than a type of real estate, therefore, they must have all the characteristics of real estate. Part one art. 130 of the Civil Code of the Russian Federation includes land plots, subsoil plots and everything that is firmly connected to the land as immovable things (real estate, real estate), that is, objects whose movement without disproportionate damage to their purpose is impossible, including buildings, structures, unfinished construction projects . According to the same article, immovable things also include aircraft and sea vessels, inland navigation vessels, and space objects subject to state registration. The law may classify other property as immovable property.
Firstly, from this norm we can derive the characteristic features of real estate: an inextricable connection with the land, impossible movement without disproportionate damage to their purpose, mandatory state registration. These are the signs that are directly prescribed in the provisions of Art. 130 Civil Code of the Russian Federation. But besides them, others can be distinguished. In particular, the mandatory state registration of real estate objects and the exclusion of aircraft, sea vessels, inland navigation vessels, and space objects among them indicates the degree of social, economic and other significance of real estate, its high cost and special conditions of civil circulation. Based on the foregoing, the following characteristics of real estate can be deduced:
- inextricable connection with the earth;
- impossibility of movement without causing disproportionate damage to their purpose;
- mandatory state registration;
- high price;
- high degree of social, economic and other significance.
Secondly, this norm directly lists those real estate objects (buildings, structures, unfinished construction projects), which, in accordance with the Civil Code of the Russian Federation, are nothing more than OKS. But in order to finally determine the nature of the OKS and classify or not classify the OKS as a type of real estate, it is necessary to understand such a concept as “capital construction”.
The legislation of the Russian Federation does not contain a legal definition of this category. Civil Code of the Russian Federation in Art. 1, dedicated to the main concepts used in the code, gives an interpretation only of the term “construction”, which means the creation of buildings, structures, structures. Otherwise, this definition can be presented as follows: construction is the creation of capital construction projects. Not too clear, right? The category “capital construction” is not explained anywhere, although the legislation, including the Civil Code of the Russian Federation, actively operates with it. This is apparently explained by the fact that this term is of an economic nature and initially has nothing to do with construction as an activity for the construction of objects. According to the Modern Economic Dictionary, capital construction is the process of creating and reconstructing fixed assets through construction work; one of the main forms of using capital investments, investments. A rather abstract definition, the essential characteristics from which are difficult to derive. The explanatory dictionary of the Russian language by S. I. Ozhegov contains the following definition of the category “capital”: basic, radical, very important; capital construction - construction of new enterprises, residential buildings, etc. From all of the above, we can conclude that capital construction (in this context) is the activity of constructing real estate objects. The question arises: why do we use the term “capital construction” and not “construction” in general? In my opinion, this is due to the fact that “construction” as an activity extends not only to the construction of real estate, but also to reconstruction and repair, and not necessarily only in relation to real estate as such.
From all of the above, it follows that OKS are types of real estate, therefore, they have all the characteristics of real estate.
In this regard, the question regarding the nature of various types of underground structures also seems interesting. This topic is quite relevant for a number of reasons: the development of new technologies, innovative architectural solutions, the search for “investment soil”, as well as the rather pressing problem for large cities of the lack of territory free from development, and at the same time the need to locate certain objects.
When it comes to underground structures, legal regulation will be complex. The norms of urban planning, civil, land legislation, as well as legislation on subsoil, which is a kind of starting point and guideline in the regulation of this type of objects in general, should be considered in their entirety. Due to the peculiarity and high degree of significance of this area, the level of its legal regulation is federal.
Subsoil is a type of real estate, which follows primarily from Art. 130 Civil Code of the Russian Federation. The key question on this topic is: do underground structures belong to capital construction projects?
The legislation of the Russian Federation contains the following definitions of the term “structure”:
Structures include engineering and construction facilities designed to create the conditions necessary for the implementation of the production process by performing certain technical functions not related to changes in objects of labor, or for the implementation of various non-production functions: transport structures (roads and railway tracks for intra-factory purposes , overpasses, etc.), transmission devices (power lines, pipelines and other transmission devices that have independent significance and are not an integral part of a building or structure, etc.), hydraulic structures (dams, pools, cooling towers, etc.) etc.), storage facilities (all kinds of reservoirs, tanks, etc.), mine shafts, oil wells, etc. (“Regulations on the procedure for economic stimulation of mobilization preparation of the economy”, approved by the Ministry of Economic Development of the Russian Federation No. GG-181, by the Ministry of Finance of the Russian Federation No. 13-6-5/9564, by the Ministry of Taxes of the Russian Federation No. BG-18-01/3 02.12.2002);
Structures are engineering and construction projects, the purpose of which is to create the conditions necessary for the implementation of the production process by performing certain technical functions not related to changes in the subject of labor, or for the implementation of various non-production functions (“All-Russian Classifier of Fixed Assets” OK 013-94 , approved by Resolution of the State Standard of the Russian Federation dated December 26, 1994 No. 359).
From all of the above, we can conclude that structures are usually understood as various kinds of objects that have a supporting function and are additional, not having independent significance when considered outside of their relationship with the main object. This is quite logical in relation to underground communications of various kinds, taking into account the fact that linear objects also belong to the OKS. Structures can also be presented in the form of a certain isolated space, not intended for long-term stay of people in them, and also having a secondary support function (for example, for placing equipment).
Only the term “structures” is considered by the legislator in connection with the definition of “underground”. The legislation does not contain such categories as “underground building” or “underground structure”.
On the one hand, this is quite logical:
1) buildings are architectural and construction objects, the purpose of which is to create conditions for work, social and cultural services for the population and storage of material assets. Buildings have walls and a roof as the main structural parts (“All-Russian Classifier of Fixed Assets” OK 013-94, approved by Resolution of the State Standard of the Russian Federation dated December 26, 1994 No. 359);
2) building - a separately constructed building, a house consisting of one or several parts as a whole, as well as service buildings (Order of the Ministry of Land and Construction of the Russian Federation dated 08/04/1998 No. 37 “On approval of the Instructions on the accounting of housing stock in the Russian Federation”).
Underground objects do not fall under these categories based on their (category) species characteristics, as well as some kind of “physical”, “material” features. An underground facility, due to its nature, cannot have structural parts of a building or structure. As for the functional characteristics, based only on these considerations, the existence of underground buildings and structures, no matter how surprising it may sound, is quite possible and exists in practice: the subway, underground parking lots, the practice of placing underground along with ordinary pedestrian crossings, practiced in large cities various types of public catering facilities in the form of individual cafes and restaurants, as well as retail facilities in the form of individual stores. As an example, we can also cite objects of military and security significance: bunkers, bomb shelters, etc. We should also not forget about the structural parts of the building (for example, basements), which are not OKS in the full sense of the word, since they are considered only in connection with the main object, but, despite this, it has all the functions of the main object, that is, buildings. These types of premises are often used to house sports clubs, shops, catering facilities, etc.
All of the above indicates the existence in the legislation of the Russian Federation of gaps and conflicts in relation to the regulation of issues related to underground structures: legally they cannot perform the functions inherent in buildings and structures, since they do not have the proper features inherent in the latter, but in fact they perform them, although within the framework of their unique legal status (construction), this is simply impossible.
In addition, an underground structure, like any object in the material world, is subject to wear and tear. Further operation of such facilities can lead to a real threat to human life and health, as well as property. Is it possible to use the term “dilapidation”, which is initially inherent in buildings and structures, in relation to the category “underground structures” (the dilapidated state of a building is a state in which the building structures and the building as a whole are worn out: for stone houses - over 70%, wooden houses with walls made of local materials, as well as attics - over 65%, the main load-bearing structures retain strength sufficient to ensure the stability of the building, however, the building ceases to meet the specified operational requirements (“Methodological manual for the maintenance and repair of housing stock. MDK 2-04.2004”)
At the moment, no particularly acute situations related to the regulation of this issue have arisen. This is due, in my opinion, to their relative rarity. The construction of metro networks is carried out and controlled by federal authorities; underground garages and parking lots, as well as other types of underground facilities, were found in practice, as a rule, only in the territories of federal cities (Moscow, St. Petersburg), and this is still a slightly different level of regulation. However, recently such objects have begun to appear in other cities of the Russian Federation, which in turn leads to the need for clearer legal regulation of this area.
One of the main problems of legislative regulation of ACS is the lack of proper classification of ACS into federal, regional and local ACS. In Art. 10, 14 and 19, 23 of the Civil Code of the Russian Federation contains transfers of OKS of federal, regional and local significance, respectively. These provisions are only a list of the relevant objects, and this, in turn, cannot be called a classification, since there is no proper basis on which it was carried out. In addition, all these norms contain the following phrase: “... and other objects, the placement of which is necessary for the exercise of powers...”, that is, the list is open. I think, based on all of the above, the classification proposed by the legislator needs to be improved, or at least its basis needs to be identified.
First of all, we need to decide what our legislator actually has in mind when talking about a federal, regional or local public health system.
Logically, we can assume that OKS of federal, regional or local significance are in one way or another connected with resolving issues of federal, regional and local significance, respectively.
According to Art. 2 Federal Law dated 06.10.2003 No. 131-FZ “On the general principles of organizing local self-government in the Russian Federation” issues of local importance are issues of direct support for the life of the population of a municipality, the solution of which is in accordance with the Constitution of the Russian Federation and this Federal Law (i.e. Federal Law No. 131-FZ) is carried out by the population and (or) local governments independently. If we abstract from the official interpretation of the category “issues of local significance” given in the legislation and turn to the lexical interpretation, then the meaning will be as follows: issues of local significance are circumstances of public life that are important for the population of the municipality, the regulation of which depends (is carried out) on local government bodies. This is exactly the point.
The legislation does not provide definitions of issues of federal and regional significance, but they can be derived by analogy. Thus, issues of federal significance should be understood as issues of ensuring the livelihoods of the population of the Russian Federation, the decisions of which are carried out by federal government bodies. Issues of regional significance, accordingly, are issues of ensuring the livelihoods of the population of a constituent entity of the Russian Federation, the decisions of which are carried out by the state authorities of the constituent entity.
So, with the “questions” everything is more or less clear. Now we need to link these categories to the OCS. In my opinion, the only possible logical connection between them is that OKS are in some way one of the means, ways of solving issues of one or another significance. But these are not direct methods for solving them, but indirect, auxiliary ones.
Based on the foregoing, we can derive definitions of OKS of one or another value:
- OKS of federal significance is a building, structure, structure, objects of unfinished construction, intended to perform an auxiliary security function in that area of public relations, the regulation of which falls under the jurisdiction of the Russian Federation, that is, serving the purposes of implementing the powers of federal authorities and/or controlled by them;
- OKS of regional significance is a building, structure, structure, objects of unfinished construction, intended to perform an auxiliary security function in that area of public relations, the regulation of which falls under the jurisdiction of the constituent entities of the Russian Federation, that is, serving the purposes of implementing the powers of public authorities of the constituent entities of the Russian Federation and/or controlled them;
- A public safety building of local importance is a building, structure, structure, objects of unfinished construction, intended to perform an auxiliary security function in that area of public relations, the regulation of which falls under the jurisdiction of local government bodies of the Russian Federation, that is, serving the purposes of implementing the powers of the local self-government and/or controlled by them.
As I have already said, the main issue of legislative regulation of ACS is the question of the basis for the classification of ACS into ACS of federal, regional and local significance. In my opinion, the most rational solution to this issue is to use the spheres of jurisdiction of the Russian Federation, constituent entities of the Russian Federation and compulsory medical insurance, respectively, as the basis. In principle, the Civil Code of the Russian Federation talks about this, but its provisions need some improvement.
The areas of jurisdiction of the Russian Federation are designated in Article 71 of the Constitution of the Russian Federation, compulsory medical insurance - in the Federal Law “On the General Principles of the Organization of Local Self-Government in the Russian Federation”, the powers of the bodies of the constituent entities of the Russian Federation can be derived according to the residual principle. In addition, when determining the level of affiliation of the OKS to the jurisdiction of a particular body, it is necessary to take into account the territorial criterion. In particular, this applies to medical institutions, housing facilities, etc.
Based on all of the above, it is possible to derive a classification of OKS of the corresponding value (Appendix).
An interesting and rather problematic issue is also the question of the relationship and possible interdependence of the classification of OKS by areas of jurisdiction and the ownership of certain entities on OKS.
In theory and in practice, there is an opinion according to which classification by areas of jurisdiction also implies taking into account the form of ownership of a particular OKS. In addition, often the classification by areas of jurisdiction is perceived precisely as a classification by forms of ownership, that is, a certain shift in concepts has occurred.
In my opinion, this approach is not entirely correct. Of course, the form of ownership of the CCS should be taken into account and even necessary, because often if the CCS is owned by the Russian Federation, a constituent entity of the Russian Federation or a municipal entity, then the area of jurisdiction will be appropriate (for example, CCS of housing funds). However, this is a possible, but not at all mandatory, option, so you should not make it absolute.
It is necessary to take into account that in addition to state and municipal property, we also have such a form as private property, which includes the property of individuals and legal entities. After the “global” privatization of state property during “perestroika,” it was private property that became the dominant form, which remains to this day. If we use only the form of ownership of them as the basis for classifying OKS, most of the OKS will simply “fall out” of this classification and will not be covered by them. In addition, often the ownership and value of the OKS may be different, not the same, and not dependent on each other.
In my opinion, the scope of jurisdiction of a particular government body in relation to any OKS does not mean that this body has the powers of the owner of the OKS, but that it has the authority to control the ownership, use and disposal of the OKS, the authority to create the necessary basis for proper the owner’s exercise of his rights, taking into account the significance and possible social value of this object. In this regard, the confusion of the concepts of “scope of jurisdiction” and “form of ownership” simply deprives us of an adequate, logical and practically significant classification of OKS.
One more thing. Article 14 of the Civil Code of the Russian Federation states that territorial planning schemes for constituent entities may include maps (schemes) of the planned location of a regional public health system. Within the meaning of the article, OKS of federal significance does not need to be designated. Territorial planning schemes for a municipal district, master plans for settlements and master plans for urban districts, in accordance with Art. 19 and 23, respectively, include maps (diagrams) of the planned location of a local public safety system. OKS of federal and regional significance should not be indicated in territorial planning documents of a settlement, which follows from the provisions of the specified norms of the Civil Code of the Russian Federation. In practice, the territorial planning documents of the subjects contain not only maps (diagrams) of the planned location of the regional-level public transport system, but also the federal-level public transport system; documents for territorial planning of settlements, in addition to maps (diagrams) of the location of public utilities of local significance, also contain information on the location of public utilities of federal and regional significance. Logically, this deviation from the provisions of the law is correct. Territorial planning documents must contain complete and adequate information about the planning of territory development, including functional zones, zones of planned location of public utilities, and zones with special conditions for the use of territories. Such information cannot be complete without appropriate indication in it of data on OKS of federal and regional significance on territorial planning documents of subjects and municipalities, respectively. For example, if a medical and preventive institution of regional significance is located on the territory of an urban settlement, this does not mean that this ACS should not be designated in the master plan of the settlement; without this information, the master plan will simply be incomplete. Therefore, in this part, deviations from the provisions of the Civil Code of the Russian Federation are quite reasonable.
Application
CAPITAL CONSTRUCTION FACILITIES OF FEDERAL IMPORTANCE
Capital construction projects of federal significance include:
objects of federal energy systems;
facilities of nuclear power systems;
objects of the federal transport system;
- objects of communication routes;
objects of information and communication;
defense and security facilities, defense production;
facilities for the production of various toxic and narcotic substances;
meteorological service facilities;
federal transport facilities;
objects supporting space activities;
objects ensuring the status and protection of the state border;
objects supporting the activities of natural monopolies;
objects of management of federal state property (including the property itself);
objects of federal financial, currency, credit, customs regulation;
facilities of federal specialized medical institutions;
and other objects classified in accordance with legislation under the jurisdiction of the Russian Federation.
CAPITAL CONSTRUCTION FACILITIES OF REGIONAL IMPORTANCE
Capital construction projects of regional importance include:
objects that support the activities of archival funds of a constituent entity of the Russian Federation;
facilities that ensure the operation of a system for preventing emergencies of an intermunicipal and regional nature, natural disasters, epidemics and eliminating their consequences;
objects providing road activities in relation to highways of regional or intermunicipal importance;
facilities that ensure the organization of transport services for the population by road, rail, inland waterway, and air transport (suburban and intermunicipal communications);
facilities ensuring the maintenance, development and organization of operation of airports and (or) civil aviation aerodromes owned by a constituent entity of the Russian Federation;
facilities that ensure the provision of publicly available and free preschool, primary general, basic general, secondary (complete) general education in basic general education programs in educational institutions that are, in accordance with federal law, under the jurisdiction of a constituent entity of the Russian Federation;
facilities providing primary, secondary and additional vocational education (with the exception of education received in federal educational institutions, the list of which is approved by the Government of the Russian Federation);
facilities ensuring the provision of additional education to children in institutions of regional significance;
objects of the library service system for the population by libraries of the constituent entities of the Russian Federation;
objects that ensure the functioning of state museums (with the exception of federal state museums, the list of which is approved by the Government of the Russian Federation);
objects of the system for providing specialized medical care in dermatovenerological, anti-tuberculosis, drug treatment, oncology clinics and other specialized medical institutions (with the exception of federal specialized medical institutions, the list of which is approved by the Government of the Russian Federation);
objects of the system for providing specialized (sanitary and aviation) emergency medical care;
objects of the system of social support and social services for elderly and disabled citizens, citizens in difficult life situations, as well as orphans, street children, children left without parental care (except for children studying in federal educational institutions), social support for labor veterans, people who worked in the rear during the Great Patriotic War of 1941 - 1945, families with children (including large families, single parents), victims of political repression, low-income citizens;
objects of specialized housing stock of a constituent entity of the Russian Federation;
facilities supporting the activities of state notary offices;
facilities that ensure the organization of fire extinguishing by the State Fire Service (with the exception of forest fires, fires in closed administrative-territorial entities, at facilities included in the list of facilities approved by the Government of the Russian Federation that are critical to the national security of the country, and other particularly important fire-hazardous facilities, especially valuable objects of cultural heritage of the peoples of the Russian Federation, as well as during events at the federal level with a mass concentration of people)
facilities supporting the activities of justices of the peace;
objects of the system of organization and implementation at the intermunicipal and regional level of measures for civil defense, protection of the population and territory of the subject of the Russian Federation;
facilities that ensure the organization of activities on the territory of a constituent entity of the Russian Federation to prevent and eliminate animal diseases, their treatment, and protect the population from diseases common to humans and animals, with the exception of issues the resolution of which falls under the jurisdiction of the Russian Federation;
facilities that ensure the organization of the activities of emergency rescue services and emergency rescue teams;
objects ensuring the implementation of state control in the field of environmental protection (state environmental control) at objects of economic and other activities, regardless of the form of ownership, with the exception of objects of economic and other activities subject to federal state environmental control;
facilities that provide training, retraining and advanced training for persons holding government positions in a constituent entity of the Russian Federation, as well as professional training, retraining and advanced training of state civil servants of a constituent entity of the Russian Federation and employees of state institutions of a constituent entity of the Russian Federation;
facilities that ensure participation in the provision of training, retraining and advanced training of persons holding elected municipal positions, as well as professional training, retraining and advanced training of municipal employees and employees of municipal institutions;
other objects, the placement of which is necessary for the exercise of powers of public authorities of the constituent entities. RF.
CAPITAL CONSTRUCTION FACILITIES OF LOCAL IMPORTANCE
Capital construction projects of local importance include:
objects of public roads between settlements (in relation to districts) / public roads (in relation to settlements and urban districts), bridges and other transport engineering structures outside the boundaries of settlements within the boundaries of a municipal district / bridges and other transport engineering structures in the boundaries of settlements that are part of the settlement, within the boundaries of the urban district;
facilities ensuring the organization of electricity, heat, water and gas supply, water disposal, fuel supply to the population;
facilities providing the organization of transport services for the population of the municipality;
objects of the system for preventing and eliminating the consequences of emergency situations;
objects of the system for ensuring primary fire safety measures;
facilities that provide residents of the municipality with communication services, public catering, trade, and consumer services;
objects of the library service system for the population of the municipality;
facilities that provide the population with the services of cultural organizations;
objects of physical culture and mass sports, holding physical education, health and sports events of local importance;
facilities providing for the arrangement of places for mass recreation of the population;
objects supporting the activities of archival funds of local importance;
facilities providing collection and removal of household waste and garbage;
facilities, facilities that provide ritual services to the population;
objects of civil defense, protection of the population from natural and man-made emergencies;
facilities ensuring the functioning of emergency rescue services and (or) emergency rescue units;
facilities for ensuring the safety of the population on water bodies;
objects of medical and recreational areas and resorts of local importance;
facilities that ensure the organization and implementation of work with children and youth on the territory of the municipality;
facilities ensuring the protection of public order on the territory of the municipality, ensuring the functioning of the municipal police;
facilities for primary health care, emergency medical care (except for air ambulance), medical care for women during pregnancy and childbirth;
facilities that ensure the functioning of the system of public and free primary general, basic general, secondary (complete) general education;
other objects, the placement of which is necessary for the exercise of powers of local government bodies
Timonina E.D., leading lawyer
Department of Regulatory Support of ITP "Grad"
Capital construction is the construction of any objects that require not only construction and installation work, but also earthworks for the construction of so-called buried foundations, as well as work on the construction of enclosing and load-bearing structures, and the installation of all necessary utilities. Capital construction is also the activity of constructing new and modernizing old industrial and non-industrial buildings.
A variety of structures, structures and buildings are usually classified as capital construction projects. This list also includes unfinished construction projects if they were originally built as capital projects.
The term capital construction object appeared in the legislation of the Russian Federation, replacing the hitherto used concepts of an object of urban planning activity and a real estate object in urban planning. Capital construction projects are usually divided into types: buildings and structures.
Buildings are intended for human habitation, keeping animals, storing production products or housing production itself. The building is a balanced system and networks of engineering and technical support serving the above-ground and underground parts of the construction result.
Buildings are usually divided into:
Residential;
and non-residential.
Residential houses or buildings are several rooms intended for living, equipped with additional premises for household needs. Examples of residential buildings are dormitories, boarding schools, orphanages, and shelters. Using the same principle, special houses are being built for elderly citizens, disabled people, and veterans.
An individual residential building is primarily distinguished by the fact that it is intended for residence of only one family. This capital construction facility is located independently of other buildings and cannot have more than three floors. In the case of individual cottage-type residential buildings, the property also includes a land plot, the height of the building is limited to two floors.
A residential building created for the residence of two or more families, which has apartments with separate exits that meet the requirements of housing legislation, is classified as multi-apartment buildings.
Non-residential buildings are designed to provide storage of material assets, create conditions for work and leisure, social or cultural development of a person. Non-residential buildings include buildings for commercial, educational, industrial, administrative, agricultural and medical purposes.
Types of capital construction include structures. A structure is usually called the result of construction, combining several heterogeneous elements like a highway, dam, stadiums, power lines, pipelines, etc. The structures are intended for organizing the production process, moving people or material assets, and temporary stay. The structure is a complex building system located above the ground or above the ground and underground, having load-bearing, enclosing and separate structures.
The Capital Construction Department does not consider buildings and unfinished construction projects as a separate category. However, in practice they are classified into a certain conditional category. Structures usually combine the concept of building and structure. It is possible to define an object of secondary importance as a structure. This could be a country house, a garage. Buildings are not included in the unified state register of real estate and capital construction projects.
Objects of unfinished construction are buildings and structures, the construction of which was temporarily suspended due to the lack of technical, material or financial base. Each of these objects is listed in the state register, but cannot be used for its intended purpose until the construction process is completed. It is also necessary to go through a commissioning procedure. Unfinished construction is a temporary phenomenon. The management of capital construction by government agencies is aimed at maximizing the development of territories, for which the construction of all such facilities is being completed.
First of all, temporary buildings are excluded. They are erected to provide the conditions necessary to perform certain work (storage of equipment, material assets, short-term accommodation). After the main work has been completed, temporary buildings must be dismantled. Technically, there are no restrictions on the construction of a temporary structure. With equal success, it can be of a container type or have reinforced concrete floors on brick walls standing on a foundation.
Operation of capital construction projects is the main criterion for dividing objects into temporary or permanent ones. A temporary building is erected for a period limited to five years, while a capital construction project has no restrictions on the duration of operation (according to the technical permit). There are some exceptions to the rules, as a result of which the duration of operation of temporary buildings increases to fifteen years or the building acquires the status of a permanent structure. A striking example of this phenomenon was the workers' settlements and towns built for fifteen years in the 80s. A change of era, government, and consciousness turned temporary buildings into permanent residential areas.
Non-stationary non-permanent structures are not related to the field of capital construction. For their construction, lightweight structures are used without a foundation. The main representatives of such buildings are toilet stalls, garage boxes, bus stops, street fast food and consumer service outlets. The main criterion of these buildings is their mobility, ease of assembly and disassembly. They are represented not only by kiosks and canopies, but also by small architectural forms, children's and sports grounds, fountains, etc.
Temporary buildings in the form of fences, apiaries, sheds, drying racks and other things can be erected in forest areas to enable the collection of forest resources not associated with cutting down trees, for example, for collecting food products and medicinal plants.
The property is invariably connected to the land. It is impossible to move the structure without causing enormous damage to it. Real estate includes buildings and structures, unfinished construction projects. At the same time, a capital construction object does not need to be a mirror image of the concept of a real estate object. At the same time, to acquire the status of real estate, a reliable connection with the land is not enough. You must additionally comply with certain technical and legal regulations and requirements.
When organizing capital construction, it is necessary to comply with all legal acts and legislative documents confirming permission to construct the structure and confirming the compliance of the new facility with all urban planning rules. Otherwise, there is a danger of violating the civil rights of the owner. To recognize property as real estate, subject to all legal prerequisites, additional consent of the owner of the land plot or the relevant government body for the formation of real estate is required.
In the field of capital construction, in order to classify a building as real estate, the principle of compliance with technical characteristics is also applied. According to it, the property must be built on a specially mounted foundation with the provision of stationary communications. The result of construction work must be an object of capital construction.
Arbitration courts made decisions determining the insufficiency of technical characteristics as determining ones. For example:
A buried foundation is not a prerequisite for the construction of a frame structure;
the absence of connected communications does not determine the strength of the connection with the ground, nor does the ability to move without causing serious damage;
monolithic foundations are used not only by different types of capital construction, but also by temporary buildings, which excludes the presence of a monolithic foundation as evidence that the object is a permanent structure;
When organizing capital construction, appropriate documentation is required to obtain ownership of this real estate. It is also possible to add physical characteristics to real estate for temporary construction, which will not change its status without appropriate conclusions.
The operation of capital construction projects requires mandatory compliance with the rules of development and land use established for cities and settlements.
Recourse to auxiliary types of permitted use may be solely complementary to the main activity. The rights holders of a capital construction project and a land plot have the right to independently choose the auxiliary and main type of permitted use of their property. State authorities, local governments, municipal enterprises and institutions are deprived of this opportunity. They need to go through a preliminary procedure of approval and obtaining permission.
Structures and buildings of an auxiliary nature do not require a building permit. In the absence of development and land use rules established for a given site, it is necessary to prove that the capital construction project is of an exclusively auxiliary nature.
Auxiliary buildings become an integral part of the main structure, providing comfort or safety for the capital construction project. For example, a stadium, being a physical culture and sports facility, cannot function effectively without administrative buildings, toilets, locker rooms, and a water booth. Without the stadium itself, the need for them completely disappears, while the main use of the building without them is impossible according to modern requirements for organizing places for sports.
When conducting an inventory of buildings, the main facility is identified, indicating the type of its activity and assigning an inverter number, and the auxiliary facilities included in it are also listed.
Objects of unfinished construction, buildings, structures and structures can be recognized as unauthorized construction. Signs of unauthorized construction arise when a capital construction act with all the necessary technical documentation for registration of real estate is accompanied by a violation of legal regulations and criteria.
The main signs of unauthorized construction are:
Use for construction of a land plot that does not correspond to these purposes, bypassing or ignoring legal documents;
the safety of the capital construction project cannot be guaranteed due to the lack of necessary permits (except for permission to use the site) or during construction the building codes and regulations were ignored.
If an unauthorized structure is identified that is being used as a capital construction project, its builder is obliged to immediately dismantle it (in cases of suspicion of a threat to the life or health of surrounding people) or establish ownership of it in court.
The court does not recognize the right of ownership of real estate created in violation of building codes, and the ignored act of capital construction that complies with town planning codes is also affected. In this case, a threat is created to the health and life of people, which does not allow the construction to be considered legal and preserved.
The regulations on unauthorized construction have a section regarding the reconstruction of real estate. The issue is brought up for trial in situations involving a complete change in the appearance of the object as a result of reconstruction. If it is impossible to restore the original condition, then the court most often decides to demolish a new object. These provisions do not apply to the unauthorized construction of objects that do not claim to be real estate.
When constructing a building or structure, many problems arise related to its legalization, for example, with state examination of design documentation, with obtaining a construction permit, etc. But if you are building a non-capital construction project, then neither permission nor examination of the design documentation is required (subclause 2, clause 17, article 51, clause 3, article 49 of the Town Planning Code).
In paragraph 10 of Art. 1 of the Town Planning Code provides the concept of capital construction objects - these are buildings, structures, structures, objects of unfinished construction, with the exception of temporary buildings, kiosks, sheds and other similar structures.
From this norm we can conclude that the list of non-capital construction projects is open. However, there is no clear definition of such objects in the current legislation.
Having analyzed judicial practice, we have identified a number of criteria, in the presence of which judges recognize a building or structure as a non-capital construction project. First of all, it should be noted that most courts equate the concepts of “capital construction object” and “real estate object”. According to paragraph 1 of Art. 130 of the Civil Code, real estate includes land plots, subsoil plots and everything that is firmly connected to the land. That is, objects whose movement without disproportionate damage to their purpose is impossible, including buildings, structures, and unfinished construction objects.
Accordingly, if a building or structure does not fall under the criteria established by paragraph 1 of Art. 130 of the Civil Code, then it is not recognized as a capital construction project.
To qualify an object, judges, first of all, pay attention to the foundation on which it is placed: how firmly the building or structure is connected to the ground. Then the courts consider the structural characteristics of the object: what it consists of, whether it can be disassembled and moved without disproportionate damage. As a rule, non-capital construction objects are easily dismantled, moved and installed in another place, while maintaining their performance qualities. However, the judges note that within the meaning of paragraph 1 of Art. 130 of the Civil Code of the Russian Federation, “a strong connection with the land is not the only sign by which an object can be classified as real estate. The question of whether a particular property is immovable must be determined by taking into account the purpose of that property and the circumstances surrounding its creation.”
And, indeed, by analyzing judicial practice, we have established that in addition to the foundation and structural characteristics of the object, courts pay great attention to other nuances of the object, which are sometimes not so easy for a non-professional to understand. But, if a qualified lawyer takes on the case, it is possible to prove the lack of capital of the object in even very complex cases.
For example, in one of the municipalities, the regional Department of State Construction Supervision established the fact of the construction of a three-story building measuring 30 m by 12 m, with a building area of 360 sq. m. m. without obtaining a construction permit and a positive conclusion from the state examination. The city administration filed a lawsuit against the owner of the building demanding demolition of the facility. In support of the stated requirements, the administration referred to the fact that the owner of the structure violated Art. 51 of the Town Planning Code, carrying out capital construction without obtaining the appropriate permit. According to the administration, this object was an unauthorized construction and was subject to demolition at the expense of its owner.
But, thanks to the weighty arguments of the defendant’s lawyer, the courts of all instances, including the Supreme Arbitration Court of the Russian Federation, came to the conclusion that the erected building does not belong to capital construction projects.
From the above judicial practice it is clear what a significant role the qualifications of a lawyer play for the successful outcome of a case.
In another case, the Department of Property Relations of the city administration filed a lawsuit to recognize unauthorized constructions and demolition of several objects: a cold storage facility, 10 fuel tanks, and a gas station with 3 pumps. The claim was based on the fact that the objects were erected without a building permit. At the same time, the plaintiff pointed out that the area of the objects significantly exceeds 150 square meters. m, the cold warehouse was erected on a foundation, equipped with swing gates, covered with hinged “sandwich panels”, a roof was installed, concrete floors were poured, therefore, it is firmly connected to the ground and its movement without disproportionate damage to its purpose is impossible. In this regard, the administration considered the disputed objects to be real estate.
Just as in the previous case, the professionalism of the defendant’s lawyer helped convince the judges that the disputed objects do not have the characteristics of capital objects and, according to the rules of Art. 130 of the Civil Code of the Russian Federation are not real estate.
From the above judicial practice it is clear what a significant role the qualifications of a lawyer play for the successful outcome of a case. Accordingly, if you encounter such problems related to construction projects, we recommend contacting the professionals of the Legal Bureau “Prav!”
