The history of the adoption and criticism of the law on the renovation of housing stock in Moscow

Pozhidaev Vitaliy Evgenyevich PhD in Law Post-graduate student, the department of Civil Law and Proceedings, Moscow University for Industry and Finance "Synergy” 125190, Russia, gorod Moskva, g. Moscow, Leningradskii prospekt, 80 korpus G pozhidaev0714@gmail.com Other publications by this author

The need to introduce a large-scale program of updating outdated (both physically and morally) houses in Moscow has been realized for a long time. Back in the 1990s, Moscow Mayor Yuri Luzhkov launched a program of comprehensive reconstruction of five-storey building areas of the first period of industrial housing construction, within which it was supposed to demolish by 2010 about 1800 five-storey buildings built in the 1950s and 1960s (within the framework of the program, "demolished series" of housing development - K-7, II were allocated-32, II-35, 1MG-300 and 1605-AM). Work on the demolition of old and construction of new buildings was supposed to be carried out by private developers on the basis of investment contracts concluded with the Mayor's office. However, amendments to the Land Code adopted in 2007 made it difficult for contractors to work, and as a result, the program turned out to be unrealized.

         At the beginning of 2017, within the framework of the Council of Municipalities of Moscow, the mayor of the city S. Sobyanin announced the need to introduce a larger program that would include even those series of houses that were not previously included in the list falling under demolition ^[1]. In fact, they were all the same "Khrushchevki", built in the 1950s and 1960s as part of Soviet mass housing construction programs. At the end of February 2017, at a meeting between Sobyanin and Russian President Vladimir Putin, the mayor mentioned his initiative and noted that the city authorities have sufficient financial resources to implement these large-scale plans, but the current land, civil and urban planning legislation needs to be adapted to the needs of renovation. Sobyanin stated that the mayor's office can independently develop the necessary bill ^[2]. In response, Putin promised assistance from the federal authorities.

         In addition to the federal law, the renovation, of course, had to be regulated at the level of Moscow, in connection with which intensive rule-making work began. The basis of this process was the Program of renovation of the housing stock in Moscow ^[3]. In this act, the main task of renovation was outlined - to prevent the mass appearance of an emergency housing stock in the city of Moscow and at the same time to correct the accumulated imbalances in the development of the city over the previous decades and to form an urban environment of a fundamentally new quality. Thus, already at the level of the Program, the fact was indicated that the resettlement of dilapidated housing is only one of the goals; an important emphasis is also placed on urban planning policy for the formation of a comfortable urban environment in the capital.

The first draft law on renovation (No. 120505-7) was developed in just a few weeks and submitted to the State Duma on March 10, 2017. The provisions of this draft almost immediately after its publication on the State Duma website caused sharp criticism from both the public and deputies. Dmitry Morev, an expert at the Center for the Development of Modern Law, noted that the original version of the bill was not so much a draft of a regulatory legal act as an "urban planning idea" involving the demolition of dilapidated housing and the relocation of tenants to newly built "equivalent" apartments. According to Morev, the bill contained peremptory and not taking into account the priority of the norms of federal civil, urban planning and land legislation, as well as the constitutional inviolability of citizens' rights to their property and the means of its judicial protection ^[4].

Of course, it was impossible to accept it in this form. A large-scale discussion of its key provisions has begun. For the purposes of this article, it is interesting to note criticism on the following points.

Firstly, the bill used the concept of "renovation", but did not define it anywhere (moreover, such a term was not defined in any of the regulatory legal acts of the federal level that existed at that time). Concerns were caused by the fact that not only emergency, and even not only dilapidated housing, but also "obsolete" houses fell under the program. The lack of a specific definition of the "limits" of demolition created the risk that any real estate objects could fall under it, if necessary for the purpose of "cleaning up" the territory (which was also fraught with corruption threats).

Secondly, the provision of the draft law that urban planning documents adopted in relation to certain territories could be adopted without taking into account previous urban planning documentation also created scope for abuse by the authorities. Particular criticism was caused by the provision that the bill created the opportunity to change the type of permitted use of land without making appropriate changes to the Rules of Land Use and development. Accordingly, real estate objects of a different purpose could be built on the site of residential buildings – and vice versa ^[5].

Thirdly, the bill ignored the obligation to take into account the opinions of citizens when making such important decisions as the establishment of a public easement. Thus, it was found that for the implementation of the renovation program and for the placement of linear engineering infrastructure facilities of regional and local significance, as well as related capital construction projects, a public easement could be established unilaterally by a decision of the city authorities. At the same time, in accordance with Article 23 of the Land Code of the Russian Federation, a public easement can be established only taking into account the results of public hearings.

Fourth, in some cases, the bill provided for the possibility of obtaining a construction permit without providing title documents. Also, if non-compliance with technical regulations was found for the implementation of renovation decisions during the preparation of project documentation and urban planning documents, the executive authority of Moscow could adopt other technical conditions. At the same time, it was not explained in what form these conditions could be accepted, since according to the Federal Law "On Technical Regulation", the relevant functions are assigned to the exclusive jurisdiction of the federal authorities ^[5].

Fifthly, the provision was also criticized, according to which construction was allowed to be carried out without the formation of a land plot, only on the basis of a territory planning project. This provision, as noted in the expert environment, contradicted the fundamentals of civil, land and urban planning legislation ^[5].

In addition, many other provisions that concerned the most socially significant aspects (citizens' participation in decision-making, informing citizens, terms of relocation, conditions for providing new apartments, parameters of new apartments, etc.) were criticized ^[6]. Attention has also been repeatedly drawn to the fact that the law contradicts the constitutional principle of inviolability of property, since instead of demolished housing, the owner was offered not an equivalent (i.e. identical in value), but an equivalent (identical in square footage, located in the same or in a neighboring area, etc.) apartment.

The speed of the adoption of this law caused wariness among ordinary citizens, who began to take part in street actions, demanding a revision and clarification of the provisions of the bill, urging not to allow infringement of the rights of owners ^[7]. The discussion was conducted not only in the media and the expert community, but also within the framework of state bodies: amendments were prepared both in the Government and in the State Duma.

By the second reading, the bill received 138 amendments from deputies of all four factions and the government. Four more amendments were adopted "by voice". They were developed based on the results of parliamentary hearings in the State Duma and supported by the leaders of all Duma factions ^[8]. Here, the guarantees of owners of demolished housing were strengthened; guarantees for small businesses renting premises on the first floors of residential buildings; a definition of renovation was given (by referring to the above-mentioned Program of Moscow), and the voting procedure for including a particular house in the renovation program was clarified (at least 2/3 of all owners or tenants should support the decision). Nevertheless, Article 7.2, introduced by the Law on Renovation into the Law "On the Status of the Capital of the Russian Federation", which mainly regulates land and urban planning issues, has remained virtually unchanged.

On June 14, 2017, the bill was adopted in the third reading, and on July 1 it was signed by President Vladimir Putin ^[9]. Let us note its main provisions in the current edition ^[10].

Firstly, the law has more clearly outlined the list of objects to be demolished within the framework of the Program. These are apartment buildings, no higher than 9 floors, built according to standard projects of 1957-1968. 

Secondly, in order to include a particular house in the Program, a positive decision must be made by at least 2/3 of all residents, and the votes of those who did not take part in the vote are distributed equally between supporters and opponents of inclusion. It is important that only houses on which voting was held before the entry into force of this Law (i.e. before July 1, 2017) can be included in the Program.

Thirdly, citizens have the opportunity to choose:

· an equivalent apartment (that is, housing with the same number of rooms and an area of at least five storeys, but with more spacious common areas);

· an equivalent apartment — one that corresponds to the previous apartment at market value (upon application);

· monetary compensation — compensation of the market value of the apartment, as well as all losses in the amount determined in accordance with the legislation on valuation activities (upon application).

Fourth, guarantees were fixed to tenants of non-residential premises. According to the final text of the law, compensation will be paid to them, as well as the opportunity to conclude a lease agreement for another premises in the same area on similar terms on a non-competitive basis.

Fifthly, owners who have purchased housing with a mortgage in a house to be demolished are also entitled to an equivalent apartment. Mortgages and other encumbrances (including arrest) will be automatically reissued to a new object, and the terms, rates and other conditions will correspond to the previous agreement.

Thus, by the time the bill was signed by the President, the provisions contained in the original version were significantly changed and clarified, taking into account the numerous critical comments received from the scientific and expert community. At the same time, many questions about the correlation of the regulation proposed by the Law on Renovation with the established principles and institutions of civil, housing, land and urban planning law still require their theoretical understanding and resolution de lege ferenda.