Construction Law: TOP -5 achievements in 2010
Ukrainian legislative achievements in the construction industry phenomenon largely associated with the correction of failed earlier implement legislative innovations. Therefore, these advances for the exhausted practitioners are welcome.
Related article: Construction Reform: the consequences of constructive
- Extension of the anti-crisis measures
- Implementation of projects for affordable housing
- Regulate the establishment of force majeure in construction;
- Canceling the project as a binding declaration of the form permits for housing projects;
- Simplification of the registration of assets under construction
Construction Law: TOP -5 disappointments 2010
It so happened that frustration is an integral and final component of the Ukrainian legislative process. As a rule, to the dismay of practitioners leads the failure to realize the promising novel, or getting dramatically opposite effect on their implementation. 2010 was no exception in terms of generating dubious standards, among which are the following:
- A ban on the use of mortgages in the housing projects;
- Extension of the ban on early retirement of the investor's housing projects;
- Introduction of public-private partnership that does not work and created problems for the application of contracts for joint activities and concessions;
- Rent-purchase and it does not work in practice;
- The actual abolition of the principle of "tacit consent" for obtaining permits in connection with the exception of the Law of Ukraine "On licensing system in the sphere of economic activity" of the rules governing its application. Exactly three months existed for the principle of tacit consent, give hope to our customers to protect their rights if the regulatory authorities would violate the terms of issue of permits prescribed by law.
Construction reform: expectations and fears in 2011
In 2010 an attempt was made to move from experimentation to more drastic and revolutionary steps, namely, the development of a framework law, in which basis will be laid the transition to a declarative principle of obtaining building rights for certain categories of construction projects. November 15, 2010 a version of the bill, developed under the chairmanship of Vice Prime Minister of Ukraine SL Tigipko, entitled "Regulation of urban planning."
In accordance with the approved concept of the Prime Minister stated that a total of procedure for obtaining land ownership or use to build, as well as the procedure for obtaining all permits required for construction will not exceed 110 days. The procedure for making the facility into operation will take no longer than 10 days. However, in accordance with the bill specified time conditionally met only with respect to sites I-III grade.
On the background of the alleged reduction of terms for issuing permits is assumed unprecedented expansion of powers of the State Architectural and Construction Inspection, its regional offices, which will lead to interference in economic activity building owners. So to the powers of officials inspections of state architectural-building control assigned the following rights: the right to issue binding regulations concerning the implementation of stopping the preparatory and construction work, the right to issue binding orders concerning the execution stop providing services to water, heat, gas, elektoobespecheniya objects that are not taken into operation in accordance with legislation, the right to issue binding regulations concerning the implementation of demolition of illegally built by real estate, to require in the cases determined by law, from customers, contractors, companies that manufacture building materials, products and designs, selective disclosure of individual structural elements of buildings and structures of the shootings and measurements, additional laboratory tests and other building materials, components and structures, and other powers, an exhaustive list of which the bill is not installed.
The bill stipulates that in case of detecting the unauthorized construction of immovable property, the restructuring is to eliminate major deviations from the project or to eliminate violations of the legitimate rights and interests of other persons, or removal of an important violation of building norms is impossible, the inspection of state architectural-building control issues to the person who carried (carries) a building, an order of demolition of such real property to the definition of the term for voluntary compliance regulations.
Among other innovations can be expected to allocate the definition of the bill status "customer". According to the specific status of "customer" in the bill, a person should not have rights to land, in order to manifest the intention to carry out construction and obtain permits for construction. These changes may lead to the fact that the right to obtain permits will be sold by persons under the treaties have some features of the customer of construction from land. Accordingly, these individuals will be able to attract funds from third parties during construction, to dispose of the objects under construction. However, in the event of early termination of contracts between building owners and land users in fact have a situation where the customer from licensing documents will not have access to an object, can not meet its obligations to attract investors, as well as continue to receive permits. Implementation of these norms will lead to mislead investors interested construction projects that will focus on the person received permits. These documents, in turn, will actually have on the legal effect given the lack of a customer's rights to land.
Excessive declarative principle leads to a de facto legitimizing the possibility of taking into service of non-existent construction projects. Having the opportunity to acceptance into service of non-existent construction projects with a further of their state registration as a real estate due to the introduction of a declaration of the principle of operation of adoption in most objects, when the inspection of state architectural-building control loses the right to spot check the status of constructed facilities.
Therefore, in 2011, would like to wish all the active position in defending its interests against are not always thoughtful and competent actions of the legislator in order to revive the construction market!
* It is about leaving the outcome, because following the concept of reforming the construction industry from January 2011 we will have brand new, radically reformed the legislative field in the construction
Natalia Dotsenko-Belous, a senior lawyer Vasil Kisil & Partners