How to demolish municipal property for an enterprise. The rights of the owner of non-residential premises during the demolition of a house
Regarding your question, you can refer to the Letter of the Real Estate Department:
Letter No. D23i-1663 dated April 16, 2015 to
issues of removal from the state cadastral registration of the building on
based on the owner's decision to destroy property (demolition,
dismantling), preparation of an inspection report confirming the termination of
the existence of the property
Document type:
Letter
Document Date:
May 29, 2015
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The Department of Real Estate of the Ministry of Economic Development of Russia has considered the appeal within its competence.
In accordance with the Regulation on the Ministry economic development
Russian Federation, approved by the government decree
Of the Russian Federation dated June 5, 2008 No. 437, Ministry of Economic Development of Russia
is not empowered to clarify the legislation of the Russian
Federation, as well as the practice of its application.
At the same time, we believe it possible to note the following on the issues raised in the appeal.
Demolition and dismantling of buildings by urban planning legislation are considered as a type construction activities.
At the same time, the procedure for the demolition and dismantling of capital
construction is regulated by the legislation of the constituent entities of the Russian
Federation. In this regard, it should be noted that by the resolution of Gossroy
Russia of November 5, 1997 No. 18-65 approved the Approximate Regulation on
body of architecture and urban planning of the executive power of the subject
Of the Russian Federation, according to which the body of architecture and
urban planning of the executive power of the constituent entity of the Russian Federation
prepares initial and permissive documentation for demolition
(dismantling) buildings, structures and green spaces (paragraph 3).
Article 235 Civil Code Of the Russian Federation (hereinafter - the Civil Code of the Russian Federation)
determined the grounds for the termination of property rights, subjects
which can be represented by individuals and organizations, regardless of
forms of ownership (legal entities), as well as the Russian Federation,
constituent entities of the Russian Federation and municipalities, represented by them
authorized bodies.
Taking into account the above, as well as the provisions of Article 209 of the Civil Code of the Russian Federation, the law
property can be terminated based on the owner's decision
(owners, in the case of common ownership) on the destruction of property,
what in relation to capital construction objects is demolition,
dismantling such an object.
It should be noted that under death or destruction in accordance with
civil law means an irreversible physical
the termination of the existence of a thing in its original form, which makes
it is impossible to satisfy the initial needs of the owner. Wherein
the termination of the existence of a thing upon its death or destruction should be
really irreversible.
For example, if a fire, landslide, flood or other
the natural disaster, the buildings were partially destroyed, then in this case
there will be a change in the properties of the property, and not its destruction
or death. The further fate of the property will depend on
the owner of the damaged property, who can decide on
restoration of the object real estate, its demolition, and termination
ownership of it.
It should be borne in mind that the demolition of objects capital construction
is associated with the dismantling of building structures, their
removal and subsequent disposal, carrying out earthworks,
improvement land plot, in addition, work on
dismantling must comply with the safety requirements
such work in relation to life and health individuals, property
third parties located near the dismantled object, which may
be damaged in the course of such work, environmental
security.
In this regard, the demolition of the object is carried out, as a rule, with the involvement of
specialized organizations with the conclusion of relevant agreements
(agreements with engineering services on disconnecting demolished buildings from
utilities, contracts for demolition, relocation, processing and
burial of demolition waste) and the signing of acts of work performed on
contracts confirming their performance.
In addition, the Regulation on the composition of sections of project documentation and
requirements for their content, approved by the Government
Of the Russian Federation dated February 16, 2008 No. 87 (hereinafter - the Regulation) demolition
(dismantling) of an object or part of a capital construction object
is considered as a separate stage of construction (paragraphs 1, 8,
10 of the Regulations), in respect of which the "Project of the organization
works on demolition or dismantling of capital construction objects ",
the composition and requirements for which are provided for in clause 24 of the Regulations.
Comprehensive analysis of the legislation of the constituent entities of the Russian Federation
allows us to conclude that the basis for demolition (dismantling)
capital construction object is the order of the local authority
self-government on the demolition of such an object, which, including
the procedure and terms for the demolition of such an object are determined.
List of documents required for approval by the local authority
self-government decisions on the demolition (dismantling) of the capital object
construction is determined in accordance with the legislation of the subject
Of the Russian Federation, in particular, such documents include: decision
the owner on the demolition (dismantling) of the capital construction object,
project of organizing work on the demolition or dismantling of such an object, copies
work contracts for the implementation of demolition (dismantling) works, as well as
waste disposal.
Taking into account the above, unauthorized demolition of capital construction objects is not allowed.
According to part 1 of article 42 of the Federal Law of July 24, 2007 No.
221-FZ "On the State Real Estate Cadastre" (hereinafter - the Law on
cadastre), the survey report is a document in which
cadastral engineer as a result of an inspection of the location of the building,
structures, premises or construction in progress, taking into account
available cadastral information about such a property is confirmed
termination of the existence of a building, structure or unfinished object
construction in connection with the death or destruction of such an object
real estate or the termination of the existence of the premises in connection with the death
or destruction of a building or structure in which it was located,
destruction or destruction of a part of a building or structure, within which
such a room was located.
It should be noted that the actual demolition (dismantling) of the object
real estate precedes the cadastral work in order to
confirmation of the termination of the existence of such immovable property.
In accordance with paragraph 3 of the Requirements for the preparation of a survey report,
approved by order of the Ministry of Economic Development of Russia dated December 13, 2010 No.
627 (hereinafter - Requirements), the survey report is prepared on the basis of
information obtained as a result of inspection of the location of the object
real estate, taking into account the information of the state cadastre of real estate, and
also other documents confirming the termination of the object's existence
real estate. These documents are included in the annex to the act
survey.
According to clause 9 of the Requirements in the line "List of documents,
used in the preparation of the Inspection Report ", information about
the name and details of the documents included in the annex to
survey act. The specified list of documents is open,
however, such documents must include information to enable
identify the property.
Thus, the cadastral engineer, when preparing the survey report
uses documents confirming the termination of the object's existence
real estate, which can be attributed, for example, a copy of the order
organ local government for the demolition of the building, a copy of the closed warrant for
demolition works, copies of acceptance certificates for completed works
demolition, relocation, processing and disposal contracts
demolition waste, etc.
In accordance with part 6 of article 20 of the Cadastre Law with statements about
removal from the state cadastral registration of buildings has the right to apply
owners of such real estate objects, as well as owners of land
plots on which such real estate objects were located.
According to part 2 of Article 16 of the Cadastre Law, removal from
state cadastral registration of the property is carried out,
unless otherwise provided by the Cadastre Law, on the basis of an application for
removal from the state cadastral registration of the real estate object and
necessary in accordance with the Cadastre Law for the implementation of such
accounting documents. In accordance with clauses 4, 6 of part 1 of article 22
Of the Cadastre Law necessary for removal from the state cadastral
accounting by a document confirming the termination of the existence of the object
real estate is an act of inspection with the attachment of a copy of the document,
establishing or certifying the applicant's right to the relevant
real estate object (in the absence of information about the registered right
an applicant for such a property in the state cadastre
real estate).
At the same time, the legislation of the Russian Federation does not establish the procedure
removal from the state cadastral registration of objects that do not meet
the requirements established by Article 130 of the Civil Code of the Russian
Federation, i.e. not real estate objects, but accounted for in
as such.
It should also be noted that Article 8.18 of the Law of the City of Moscow dated
November 21, 2007 No. 45 "Code of the City of Moscow on Administrative
offenses "for the unauthorized demolition of buildings,
located on the territory of the city of Moscow,
administrative responsibility.
Protection of the rights of owners of residential premises is currently provided for by the current legislation.
As for rights of owners of non-residential premises
(offices, shops, pharmacies located in demolished buildings) - their rights are currently protected by the provisions of the Civil Code concerning the alienation of land for state or municipal needs (this is where we included the demolition of a house in connection with "renovation"):
In accordance with paragraph 3 of Art. 239.2 of the Civil Code of the Russian Federation
"Alienation of buildings, structures, premises located in such buildings, structures, construction in progress in connection with the seizure of a land plot for state or municipal needs is carried out according to the rules provided for seizure land plots for state or municipal needs ".
In accordance with paragraph 6 of Art. 279 of the Civil Code of the Russian Federation, the terms, the amount of compensation and other conditions on which the seizure of a land plot for state or municipal needs is carried out are determined by an agreement on the seizure of the land plot and real estate objects located on it for state or municipal needs (hereinafter referred to as the seizure agreement).
In the case of compulsory withdrawal, such conditions are determined by the court.
In accordance with Art. 56.9 Chapter VII.1 Land Code Of the Russian Federation, dated 25.10.2001 N 136-FZ, the agreement on the seizure of real estate for state or municipal needs contains ... the amount and procedure for payment of compensation for real estate objects;
In the presence of the consent of the persons from whom the real estate objects are confiscated, the agreement on the confiscation of real estate may provide for the provision of other real estate objects to them instead of the confiscated ones.
In this case, the agreement on the seizure of real estate shall indicate:
- the market value of real estate objects transferred or provided on the basis of ownership in exchange for seized real estate objects;
- the market value of other rights (for example, lease);
- the difference between the amount of compensation for the withdrawn real estate and the market value of the transferred or provided in exchange for the real estate, rights to them, the procedure for paying such a difference to the person from whom the real estate is confiscated.
Moreover, in accordance with Art. 56.12 of the Labor Code of the Russian Federation, a court decision on the seizure of immovable property seized for municipal needs for the purposes of integrated development territory can be challenged in terms of the amount of compensation for seized real estate.
Thus, at present, when the property is seized, the payment of monetary compensation is due, and in the case of the owner's CONSENT, the provision of another living space to him instead of the one seized, with the payment of the difference in value.
However, according to the draft federal law No. 120505-7 "On Amendments to the Law of the Russian Federation" On the Status of the Capital of the Russian Federation " legislative acts Of the Russian Federation in terms of establishing the specifics of renovation housing stock in the capital of the Russian Federation - a city of federal significance Moscow (adopted by the State Duma in the first reading on April 20, 2017), now the owner non-residential premises located in an apartment building included in the decision on renovation, the authorized executive body of the city of Moscow or the fund proposes to conclude an agreement defining the transfer of ownership of living quarters, in relation to one of equivalent non-residential premises
owned by the city of Moscow or the foundation.
Equivalent non-residential premises are non-residential premises located on the territory of the city of Moscow, the area of which is not less area vacated non-residential premises
.
In case of unjustified evasion of the specified owner from the conclusion of this agreement within more than sixty days from the date of sending him the draft of the specified agreement, the authorized executive body of the city of Moscow or the fund has the right to apply to the court with a request to compel the conclusion of an appropriate agreement that determines the transfer of ownership of the non-residential premises ...
It means that upon the adoption of the law, the rights of the owner of such premises will not be protected by anything
!
Now you can not claim a decent monetary compensation for your destroyed property.
One version of a room of the same size is offered, and you cannot refuse it.
Losses incurred during the move, upon termination of the lease, the difference in price between the old and the new (possibly much cheaper) premises is not compensated by anyone.
We see in this situation a fundamental violation of the rights of the owner guaranteed by the Constitution:
In accordance with Art. 35 of the Constitution of the Russian Federation,
- The right to private property is protected by law.
- Everyone has the right to own property, own, use and dispose of it both individually and jointly with other persons.
- No one can be deprived of their property except by a court decision. Compulsory alienation of property for state needs can be carried out only on condition of prior and equivalent compensation
The new bill does not speak of equal compensation ( equal value), but about some "equivalent" living space of the same size, which, as we understand, will be located in a different area of the city of Moscow and there is no need to talk about equal cost.
In accordance with Art. 15 of the Constitution, the Constitution of the Russian Federation has supreme legal force, direct effect and is applied throughout the territory of the Russian Federation.
Laws and other legal acts adopted in the Russian Federation must not contradict the Constitution of the Russian Federation.
In this case, we are witnessing the adoption of a law that directly contradicts the Constitution of the Russian Federation.
Thus, we can say that any decisions of the courts on the compulsory conclusion of an agreement "determining the transfer of ownership of an equivalent living space" will entail immediate complaints to the Constitutional Court of the Russian Federation.
This will ultimately lead to the abolition of the provisions of the unconstitutional law and, as a consequence, the abolition of hundreds of court decisions.
L.A. Yelina, economist-accountant
S.A. Vereshchagin, independent expert on the methodology of accounting and taxation
We liquidate unnecessary real estate
We reflect in the accounting and tax accounting the demolition of the building, the further use of which is impractical
The texts of the mentioned Letters of the Ministry of Finance are available: section "Financial and personnel consultations" of the ConsultantPlus system (information bank "Financier")Liquidation of real estate is a complex and costly operation. As a rule, real estate is liquidated if it began to interfere with the organization. For example, it has become unprofitable: the cost of its maintenance significantly exceeds the amount of income received from its use. Or it happens that on the site of an old object it is supposed to build something newer (more powerful, economical, modern), the operation or sale of which should bring more income... With tax and accounting liquidation of real estate, accounted for as a fixed asset, we will understand. But let's make a reservation right away: this article does not deal with issues related to the forced demolition of real estate (as, for example, in cases of demolition of unauthorized buildings).
We draw up documents for liquidation
So, outdated real estate is needlessly occupying space and does not bring the proper income. Its demolition causes difficulties not so much from the accounting and accounting point of view, but from the organizational and coordination point of view. After all, the demolition of buildings is not the dismantling of a closet in an office.
STEP 1. We accept and draw up a decision on the liquidation of real estate
First of all, the organization must record on paper its decision to liquidate real estate.
According to the rules established for the liquidation of fixed assets, it is necessary to create a liquidation commission NS. To do this, the head must sign an order for her appointment. The liquidation commission should include the chief accountant (accountant) and persons responsible for the safety of fixed assets.
It is also advisable to include representatives of the technical (or engineering) service in the commission.
The purpose of the commission is to assess whether it is necessary to demolish the building or not T p. 77 Methodical instructions on accounting of fixed assets, approved. By order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n (hereinafter referred to as the Methodological Instructions). This decision itself, as well as its justification, the commission must reflect in the act for the write-off of the object of fixed assets in the form No. OS-4.
It often happens that the manager (who is also the sole owner) independently decides to demolish a building. In this case, it makes no sense to create a commission. But the act of writing off the object of fixed assets is still better for you to do. Insofar as the form No. OS-4- unified. And in order not to argue with the inspectors on the question of why you filled out the unified form incorrectly (and even more so, did not fill it out at all), it is better to draw up an OS-4 act according to the instructions - "as it should".
By the way, running ahead, let's say that the OS-4 act is also important for justifying the costs associated with the demolition of a building in tax accounting. After all, it (according to the still valid rules) is a mandatory document confirming the very fact of the demolition of the building.
From reputable sources
Chief Specialist-Expert of the Tax and Customs Tariff Policy Department of the Ministry of Finance of Russia
“Under the current legislation, primary accounting documents are taken into account if they are drawn up according to the form contained in the albums of unified forms of primary accounting documentation, and documents, the form of which is not provided for in these albums, must contain required details provided by the Law "On Accounting" clause 2 of Art. 9 of the Federal Law of 21.11.96 No. 129-FZ "On Accounting".
For cases of liquidation of a fixed asset object, the albums of unified forms contain the form of the primary accounting document - form No. OS-4 "Act on writing off the object of fixed assets (except for vehicles)" approved Resolution of the State Statistics Committee of Russia dated January 21, 2003 No. 7. Consequently, when writing off a fixed asset (building), it is necessary to draw up an act in the form of OS-4, which must be signed by the members of the liquidation commission.
In my opinion, the document independently drawn up by the organization (completely replacing the act in the form No. OS-4) should not be taken into account as a primary document ”.
So, you will need act OS-4. But be prepared for difficulties with filling it out, since the form of this act does not take into account all the nuances of liquidation of real estate: it is designed to write off various fixed assets.
If the decision on liquidation is made by the commission, and the head approves it, then in order to fill out this act reliably, you will have to add additional details to it. Since in it it is necessary to reflect, in addition to the very decision on liquidation itself, also its results. After all, it is simply impossible to liquidate real estate in 5 minutes. In this case, you will need at least different lines for the dates of signing the first two sections of the act (drawn up before liquidation) and its third section. The third section is called "Information on the costs associated with writing off an item of fixed assets from accounting, and on the receipt material values from their write-off ”, and it should be drawn up by the accounting department based on the results of liquidation.
But you can go the other way. For example, you can draw up a separate order from the head approving the decision to demolish a building. And the OS-4 act will be compiled by the accounting department solely to reflect the results of the demolition in the accounting. But even in this case, the requirement for the signing of this act by the liquidation commission and approval by its head is not canceled.
The search for answers to the questions of how to correctly fill out the OS-4 act during the demolition of real estate is complicated by the fact that neither the Ministry of Finance, nor Rosstat, nor any other department can currently develop and approve the forms of primary accounting documents. They also do not have the authority to clarify their application. NS Letter of the Ministry of Finance of Russia dated 14.10.2010 No. 03-04-05 / 8-622. Meanwhile, the strict linkage of the Accounting Law to these unified forms remains.
To clarify the difficult situation that has developed with the registration of liquidation of real estate in accounting (in particular, with the completion of the OS-4 act), we turned to the Ministry of Finance.
From reputable sources
Head of the Department of Accounting and Reporting Methodology, Department of State Regulation financial control, audit activity, accounting and reporting of the Ministry of Finance of Russia
“Unified forms of primary documents are already an obsolete phenomenon. State function on the approval of such forms and the establishment of requirements for their completion, it was recognized as redundant. There is no government agency in the competence of which it would be included. The bill on accounting, which is now being considered in the Duma, does not provide for any standard forms of documents, there are only requirements for details.
So the question is what additional documents(in addition to the OS-4 act) must be drawn up during the liquidation of real estate, it remains at the discretion of the organization. Of course, every independently developed document must contain the necessary details and it must really confirm a fait accompli of economic life. "
So, no matter what version of paperwork (including the OS-4 act) you choose, the main thing is that it is clear from them what happened and when. Since these dates may be needed, among other things, to reflect transactions in accounting (which we will discuss in detail later).
STEP 2. We coordinate the liquidation of real estate with supervisory authorities
To obtain permission to work on the liquidation of real estate, organizations, as a rule, have to contact the local administration with a whole package of documents.
So, for example, in Moscow, the owner of a building (if it is not an object of cultural heritage and is not located in historically developed and historically especially valuable territories) can demolish it on the basis and p. 2.1.4 of the Rules for the preparation and production of earthworks, arrangement and maintenance of construction sites in the city of Moscow, approved. Decree of the Moscow Government dated 07.12.2004 No. 857-PP:
- <или>a permit for demolition issued by the Main Directorate for the Protection of Monuments in Moscow;
- <или>orders of the prefect of the administrative district (head of the district council).
The approval of permits for the demolition of valuable buildings located in the historical part of the city is more complex.
In addition, during the demolition of a building, it is necessary to agree with Moscow officials on the process of disposal and recycling of construction waste. a nn. 12, 2.3.13 of the Rules ... approved. Decree of the Moscow Government dated 07.12.2004 No. 857-PP.
Also, before starting work in the Technical Inspectorate of the Association of Administrative and Technical Inspections in Moscow, an order for their production must be obtained. And to receive each piece of paper, you will need a whole package of documents.
And in order to stimulate the owners in the collection of these documents and interest them in obtaining approvals, an administrative penalty is provided for the unauthorized demolition of buildings in Moscow f Art. 7.4. Law of the City of Moscow dated November 21, 2007 No. 45 "Code of the City of Moscow on Administrative Offenses":
- for officials - from 1000 to 5000 rubles;
- for organizations - from 200,000 to 300,000 rubles.
Another example: Gorno-Altaysk. Permission for the demolition of a building in this city is issued by the Department of Architecture and Urban Planning a nn. 15.2., 15.3. Rules for land use and development in the city of Gorno-Altaysk, approved. By the decision of the Gorno-Altai City Council of Deputies dated September 15, 2005 No. 29-3... And of course, in order to obtain such a permit, a number of documents must also be submitted (according to the list established by the Land Use Rules).
In many cities, the preparation and issuance of permits for the demolition or dismantling of objects is assigned to a specific department of the local administration (for example, the department of architecture and urban planning, the department of architecture and municipal services, etc.).
Therefore, a clear list of the documents you need to approve the demolition of your building should be found out at the local administration.
STEP 3. We liquidate real estate and register the results
Upon completion of the demolition or dismantling of real estate, as we have already said, we fill out section 3 of the act in the form No. OS-4. In addition, it will not be superfluous to attach to this act a copy of the document of the technical inventory service (BTI certificates on the demolition and removal from the cadastral register )clause 9 of the Regulation on the organization of state technical accounting in the Russian Federation ... approved. Decree of the Government of the Russian Federation of 04.12.2000 No. 921.
You also need to put in inventory card according to the form No. OS-6 approved Resolution of the State Statistics Committee of Russia dated January 21, 2003 No. 7 a mark on the disposal of an item of fixed assets v p. 80 Methodical instructions.
The final step in documenting the demolition of the building will be the registration of the termination of ownership of the property, which must be registered b Art. 235 of the Civil Code of the Russian Federation... Indeed, only when an entry is made in the Unified State Register of Rights to Real Estate and Transactions with it about the termination of ownership of real estate, the organization will cease to be the owner of this real estate and nn. 1, 3 tbsp. 2 of the Federal Law of 21.07.97 No. 122-FZ "On state registration of rights to real estate and transactions with it"... But, as we will see further, from the point of view of accounting and tax accounting this document is not so important now.
In addition to the above documents, to reflect the liquidation of real estate in accounting and tax accounting, you will need contracts for the services of contractors, acts of work performed, payment documents and others.
We figure out when and how to write off the residual value of liquidated real estate
When reflecting the liquidation of real estate in the accounting, first of all, it is necessary to figure out where and when we write off its residual value (of course, if the property has not been completely depreciated). There are several interesting points in both accounting and tax accounting that need to be considered in more detail.
Deciding how to write off the residual value of the property
SITUATION 1. We are demolishing the building and do not plan to build anything in the near future.
Recognition in tax accounting residual value in expenses depends on the depreciation method:
- <если> depreciation was calculated on a straight-line basis, then:
- you must terminate the accrual of depreciation using the straight-line method from the 1st day of the month following the month in which the fixed asset was removed from the depreciable property for any reason (or its cost was completely written off )clause 5 of Art. 259.1 of the Tax Code of the Russian Federation... This means that you cannot depreciate a building that you do not use and do not plan to use in your activities (even if it has not yet been demolished);
- the residual value of liquidated real estate must be fully accounted for as part of non-operating expenses v clause 5 of Art. 259.1, sub. 8 p. 1 of Art. 265 of the Tax Code of the Russian Federation;... This must be done after the demolition of the building. I am Letters of the Ministry of Finance of Russia dated 07.02.2011 No. 03-03-06 / 2/27, dated 09.07.2009 No. 03-03-06 / 1/454, dated 21.10.2008 No. 03-03-06 / 1/592, dated 19.09 .2007 No. 03-03-06 / 1/675, dated 17.01.2006 No. 03-03-04 / 1/27 and the reflection of its results in the act according to the form No. OS-4. The Ministry of Finance confirmed the correctness of this approach.
From reputable sources
“Depreciable property is property that is owned by the taxpayer and is used by him to generate income a clause 1 of Art. 256 of the Tax Code of the Russian Federation. And the accrual of depreciation stops from the 1st day of the month following the month when the cost of the depreciable property was completely written off or when this object was removed from the depreciable property of the taxpayer for any reason m clause 5 of Art. 259.1 of the Tax Code of the Russian Federation. Thus, depreciation ceases to be charged from the 1st day of the month following the month when the item of fixed assets ceased to be used in the activities of the organization. In this case, the direct demolition of the building can be done later.
Consider in the composition tax expenses the residual value of the demolished building is possible only on the basis of a fully completed act in the form of OS-4, since (as we have already figured out) it is he who is mandatory primary document required for registration of this operation and subn. 8 p. 1 of Art. 265 Tax Code” .
Ministry of Finance of Russia
Just in case, remember that:
- it is not necessary to restore the depreciation premium (if applicable) upon demolition of real estate. Since the depreciation premium is restored only in the event of the sale (and not liquidation) of the fixed asset before the expiration of 5 years from the date of acquisition clause 9 of Art. 258 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance of Russia dated 20.03.2009 No. 03-03-06 / 1/169, dated 16.03.2009 No. 03-03-05 / 37; Letter of the Federal Tax Service of Russia dated March 27, 2009 No. ShS-22-3 / [email protected] ;
- it is also not necessary to gradually recognize in tax accounting a loss from the write-off of a demolished building (fixed asset). After all, a loss that needs to be included in other expenses in equal shares during the remaining service life may appear only in the case of sales and subn. 1 p. 1, p. 3, art. 268 Tax Code;
- <если> depreciation was calculated using a non-linear method, then liquidated real estate should simply be excluded from the depreciation groups NS clause 13 of Art. 259.2, sub. 8 p. 1 of Art. 265 Tax Code. However, the total value of the fixed assets of this group will not change, and it turns out that you will continue to write off the value of the property through depreciation. NS Letter of the Ministry of Finance of Russia dated 20.12.2010 No. 03-03-06 / 2/217.
SITUATION 2. We are demolishing the building for a new construction site.
Let's see if there will be any differences in case you plan to demolish the building in order to build something new in its place. How, in this case, to take into account the costs of the liquidation of real estate (including the cost of demolition or dismantling works), as well as the residual value:
- <или>as independent expenses - that is, the same as in the case of liquidation of real estate without subsequent construction;
- <или>as part of capital expenditures for the construction of a new building - after all, the ruins are demolished precisely in order to erect a new object in their place.
The Ministry of Finance has already answered this question: there are no grounds for taking into account the costs of dismantling and liquidation as part of capital investments in new construction, neither in accounting nor in tax accounting. e Letter of the Ministry of Finance of Russia dated 11.09.2009 No. 03-05-05-01 / 55; p. 31 PBU 6/01 "Accounting for fixed assets", approved. Order of the Ministry of Finance of Russia dated March 30, 2001 No. 26n; subn. 8 p. 1 of Art. 265, sub. 3 p. 7 art. 272 of the Tax Code of the Russian Federation. But this answer is about demolition for planned (indefinite future) construction.
But will there be any peculiarities when the demolition of a building is a separate stage of work during new construction? Indeed, in this case, the cost of demolition of the building, as a rule, is reflected in the estimate of construction work. The specialists of the financial department think so.
From reputable sources
“When demolition costs are included in the new construction budget, two different situations are possible. It all depends on where the building that was demolished came from.
Situation 1. The organization bought or leased a land plot with a dilapidated building in order to build a new facility. This dilapidated building is not needed, it was acquired as a burden, and not as a boon. In this case, all costs of its demolition are included in the cost of the new property. If the organization bought a land plot, then the cost of the land plot.
Situation 2. The demolished building was previously the main asset of the organization itself. Both the residual value and the demolition cost must then be charged to recurring costs.
The logic is as follows: you need to look at what income is associated with certain costs. In the first case, the costs of the organization are made for the sake of future income. And in the second situation, the income from the use of the building has already been received in the past ”.
Ministry of Finance of Russia
Since we are considering the case when an organization liquidates a building that was recorded on its balance sheet as a fixed asset, the costs of its demolition and residual value must be accounted for as independent costs, regardless of whether something will be built in its place or not. ...
Deciding when to write off real estate from the balance sheet as a fixed asset
The residual value of the demolished property can be fully accounted for in other expenses (on account 91-2 "Other expenses" )clause 4, clause 11 PBU 10/99 "Organization expenses", approved. By order of the Ministry of Finance of Russia dated 06.05.99 No. 33n... With this, everything is clear (and, as we already found out, it does not matter at all whether you plan to build something on the site of your old building or not).
The question is when can and should it be done? And it is especially important because the property tax depends on the book value of fixed assets. O clause 1 of Art. 374 of the Tax Code of the Russian Federation... If you write off the property earlier than necessary, the inspectors will charge additional property tax and interest. Until recently (or rather, before the amendments were made to the accounting rules in force from 01.01.2011, which we told you about in 2011, No. 7), the Ministry of Finance insisted that real estate cannot be written off the balance sheet until the organization registered the loss of ownership of this property b Letter of the Ministry of Finance of Russia dated January 28, 2010 No. 03-05-05-01 / 02... And the regulatory authorities demanded the payment of property tax up to this point.
But real estate accounting does not depend in any way on state registration transfer (termination) of ownership of it. The Ministry of Finance already agrees with this. n Letter of the Ministry of Finance of Russia dated March 22, 2011 No. 07-02-10 / 20(for more details see p. 5, 2011, no. 8).
So how do you determine when to write off real estate from the balance sheet as a fixed asset? For clarification, we turned to the specialists of the financial department.
From reputable sources
" It complex issue because practice is at odds with requirements normative documents... PBU 6/01 requires the write-off of fixed assets when it ceases to bring economic benefits to the organization. And it turns out that it is not always possible to confirm this by the date of the act of write-off according to the form No. OS-4. After all, if the decision to liquidate a building is made while employees are still working in it (it is in use), then this is not a write-off. It is necessary to write off a fixed asset when it has ceased to be used and it became clear that its use is no longer expected. This could be an order from the supervisor to stop using the building and begin preparations for demolition. Or some other document, from which it follows meaningfully that from this date the operation of the facility has been discontinued and further it is supposed to be demolished. It doesn't even matter when it is actually demolished. For example, there is no money for demolition yet. The main thing is that the building does not bring economic benefits and we cannot use it ”.
Ministry of Finance of Russia
This means that real estate can and should be written off from accounting as an asset at the moment when it became clear that it cannot bring you economic benefits - that is, you no longer use it and do not plan to use it in the future. And this moment certainly does not depend on the state registration of the termination of ownership of this property.
If the decision to demolish a building was made by your organization at the same time as the decision to stop using it (and the organization really stopped using the building), then it is not difficult to determine the date when the building was decommissioned. This will be the date the demolition decision is made. If you do not plan to demolish the building immediately, then in accounting it is advisable to reflect its conditional assessment on the off-balance sheet account. And write off the building from off-balance sheet it will be possible after its demolition.
Pay attention to the difference between tax and accounting
And one moment. Due to the fact that some time usually elapses between the day the decision on demolition is made and the day of the actual demolition of the building, there may be differences in the time between tax accounting and accounting, when the under-depreciated cost of the building is recognized as an expense (even if in tax accounting depreciation was charged on a straight-line basis). After all, it turns out that:
- it is necessary to stop the accrual of depreciation both in accounting and in tax accounting at the same time - starting from the 1st day of the month following the month when the decision is made that the building is no longer in use and will not be used;
- on the date of the decision to terminate the use of the building, its cost must be written off in accounting, but in tax accounting it is necessary to wait for the real demolition of the building (complete filling of the OS-4 act).
If making a decision that a building can no longer be of use, and its real demolition falls within one block, then there is no difficulty. But if this process is extended over a longer period of time, you will have to reflect the time differences according to PBU 18/02.
We figure out whether it is necessary to recover VAT from the residual value
SITUATION 1. The real estate was accepted for registration and put into operation until 01.01.2001.
Attention
VAT on real estate, accepted for deduction before 2001, does not need to be restored.
Since we are considering liquidation of real estate, it is highly likely that it comes about some obsolete (morally or physically) buildings. And it is possible that they were acquired by you quite a long time ago. If this happened before 2001, then you have no obligation to recover VAT at all. According to the rules of the Tax Code, only the tax that was accepted for deduction according to the rules of the same Tax Code (Chapter 21 of the Tax Code of the Russian Federation )clause 3 of Art. 170 of the Tax Code of the Russian Federation. Therefore, if you accepted input VAT for deduction under the ND Law WITH Art. 7 of the Law of the Russian Federation of 06.12.91 No. 1992-1 "On Value Added Tax", then you do not need to restore anything O Resolution of the FAS PO dated 28.10.2008 No. A65-610 / 2007-CA2-22.
SITUATION 2. The real estate was taken into account and put into operation in 2001 and later.
If not to restore previously deductible VAT for liquidated real estate acquired after 2001, this may lead to legal proceedings with the tax authorities. True, the probability of winning the dispute is almost one hundred percent.
We must say right away that in this situation, the regulatory authorities advocate for organizations to restore VAT upon liquidation of fixed assets under-depreciated in accounting - after all, you will no longer use such fixed assets in activities subject to taxation. WITH Letter of the Ministry of Finance of Russia dated January 29, 2009 No. 03-07-11 / 22... The amount of the restored tax must be determined as part of the input VAT previously accepted for deduction, proportional to the residual (book) value excluding revaluation To subn. 1 p. 3 art. 170 of the Tax Code of the Russian Federation... After you recover the VAT amount, it can be included in other expenses when calculating income tax b Letter of the Ministry of Finance of Russia dated 07.12.2007 No. 03-07-11 / 617... In accounting, this VAT can also be recognized as an expense (take into account on subaccount 91-2 "Other expenses" )clause 4, clause 11 PBU 10/99.
However, while in Tax Code there is no obligation to restore VAT when writing off (liquidating) under-depreciated fixed assets v clause 3 of Art. 170 of the Tax Code of the Russian Federation. That's why arbitration courts support organizations that do not recover input tax G Resolutions of the Federal Antimonopoly Service of the Moscow Region dated April 27, 2010 No. KA-A40 / 2005-10, dated January 13, 2009 No. KA-A40 / 12259-08; FAS TsO dated 10.03.2010 No. А35-8336 / 08-С8; FAS PO dated 23.09.2010 No. A12-1810 / 2010, dated 11.10.2007 No. A55-733 / 2007; FAS SKO dated 02.08.2010 No. А32-47184 / 2009-19 / 807; FAS VSO dated February 19, 2007 No. A33-8478 / 06-F02-375 / 07.
We take into account the costs associated with the liquidation of real estate, and VAT on them
In addition to the residual value, there will usually be other costs. For example, the costs of dismantling, garbage collection, and other performers' services. Not to mention the cost of negotiating the liquidation itself. All these expenses are boldly taken into account both in accounting and in calculating income tax. b clause 4, clause 11 PBU 10/99; subn. 8 p. 1 of Art. 265 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated 21.10.2008 No. 03-03-06 / 1/592.
But with VAT, everything is a little more complicated. If your contractors or other performers of work are payers of this tax, then you need to deal with one difficult question: is it possible to deduct input VAT from “liquidation” services? There are traditionally two positions on this issue (of course, we consider the situation when the demolished real estate was previously used in VAT-taxable activities).
POSITION 1. Ministry of Finance: VAT on the work and services of the contractor for the liquidation of fixed assets cannot be deducted I am , dated 22.10.2010 No. 03-07-11 / 420.
The Finance Department believes that since the liquidation of fixed assets does not apply to transactions subject to VAT, it cannot be accepted for the deduction of input VAT on liquidation (dismantling) works. I am clause 2 of Art. 171 of the Tax Code of the Russian Federation.
POSITION 2. Forensic perspective: input VAT on liquidation works and services can be deducted.
By the way, the Presidium of the Supreme Arbitration Court of Russia has already come to this conclusion. F Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 20.04.2010 No. 17969/09... He believes that the use of an item of fixed assets in the activities of an organization is complex and includes installation, operation, and, if a production need arises, the liquidation of fixed assets. It follows from this that organizations have the right to deduct VAT paid to the contractor in the liquidation of an object of fixed assets.
Output
As can be seen from the letters of the Ministry of Finance, the opinions of the arbitration courts have not yet influenced the position of the controlling bodies and Letters of the Ministry of Finance of Russia dated 02.11.2010 No. 03-03-06 / 1/682, dated 22.10.2010 No. 03-07-11 / 420.
So if you accept VAT on dismantling and liquidation works for deduction, get ready for a conflict with the inspectors.
So, it is safer to follow the Ministry of Finance's position and not deduct VAT on liquidation and dismantling works.
But here there is another snag: what to do with non-deductible VAT? The question can be formulated more clearly as follows: whether input VAT paid to the contractor and not deductible can be included in the cost of liquidation works T clause 2 of Art. 170 of the Tax Code of the Russian Federation?
Since we did not deduct input VAT, it would be logical to include it in the cost of the work itself, and then take it all together as other expenses in accounting. e clause 4, clause 11 PBU 10/99 And How non-operating expenses in tax accounting m subn. 8 p. 1 of Art. 265 Tax Code.
VAT on liquidation and dismantling works it is safer not to deduct, but to include in expenses. So there will be no disputes with the tax authorities.
Let's not beat around the bush: the tax authorities are against accounting for the failed VAT deduction in expenses. The arguments are as follows: input VAT is taken into account in the cost of goods (works, services) if they are purchased for transactions that are not subject to taxation NS subn. 1 p. 2 art. 170 of the Tax Code of the Russian Federation, but liquidation of fixed assets does not apply to such operations. I am Art. 149 of the Tax Code of the Russian Federation... Indeed, in this case, there is no object of taxation with personal income at all. WITH clause 1 of Art. 39, paragraph 1 of Art. 146 of the Tax Code of the Russian Federation... This means that VAT on the cost of dismantling and liquidation works cannot be taken into account when taxing profits. All these arguments are cited by the auditors in the courts.
However, the arbitration courts, considering disputes about where to put the VAT that is not deductible, do not share the position of the tax authorities. They do not see any fundamental differences between the concepts of "no object of taxation" and "transactions that are not subject to taxation." Therefore, since the taxpayer did not accept VAT on dismantling work for deduction, then, in the opinion of the courts, VAT should be included in the cost of the work itself and taken into account when calculating profit tax as a non-operating expense d Resolutions of the Federal Antimonopoly Service of the Moscow Region dated May 14, 2009 No. KA-A40 / 3703-09-2; The Ninth Arbitration Court of Appeal dated 04.06.2009 No. 09AP-8136/2009-AK, dated 02.06.2009 No. 09AP-8085/2009-AK; FAS SZO dated 03.09.2007 No. A05-789 / 2007; FAS PO dated September 26, 2006 No. A57-31622 / 2005-22; FAS VVO dated 26.12.2007 No. A31-2632 / 2007-23... There must be at least some kind of justice.
By the way, our magazine has already published the point of view of specialists of the Ministry of Finance of Russia on this issue, who are allowed to write off VAT on the work of contractors that is not deductible (you can read the explanation of E.N. Vikhlyaeva in, 2009, No. 18, p. 58) ...
And do not be confused by the fact that some courts allow VAT to be deducted, while others allow this VAT to be taken into account in expenses. The conclusion from all these decisions can be made as follows: the courts of taxpayers support, no matter how they dispose of the input VAT on liquidation works (both in the case if they accepted it for deduction, and in the case when the input VAT is taken into account in the cost of work and written off to expenses).
We calculate the income from the liquidation of real estate
Disassembling a building can produce many different materials. And some of them you can either use yourself or sell. In this case, whatever you find useful should be capitalized. To do this, it is necessary to draw up an act on the posting of material assets received during the dismantling and dismantling of buildings and structures, in the form of number M-35 approved Resolution of the State Statistics Committee of Russia dated 10.30.97 No. 71a.
For capitalized values, you need to determine their market value. You must take it into account on the date of property write-off:
- in accounting - as other income v p. 9 PBU 5/01 "Accounting for inventories", approved. Order of the Ministry of Finance of Russia dated 09.06.2001 No. 44n; , sub. 2 p. 1 art. 268 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated September 30, 2010 No. 03-03-06 / 1/621.
Example. Reflection in the accounting of the liquidation of the real estate object
/ condition / On the balance sheet of the organization is a building (acquired before 2001) with an initial value of 5,000,000 rubles. (both in accounting and tax accounting). To simplify the example, suppose that the amount of accrued depreciation in accounting and tax accounting is the same - 3,500,000 rubles.
The organization stopped using the building and decided to demolish it. Both of these decisions were taken simultaneously (in April 2011) and are reflected in sections 1 and 2 of the act for the write-off of an item of fixed assets in the form No. OS-4.
For the demolition, the organization attracted a contractor, the cost of its work is 450,000 rubles. plus VAT RUB 81,000 (only 531,000 rubles). The building was demolished in May 2011.
The cost of the materials remaining after dismantling, suitable for further use, is set at 90,000 rubles. The demolition results are reflected in section 3 of the act according to the form No. OS-4 in May 2011.
/ solution / Since the building was acquired before 2001, there is no need to recover VAT on demolition of this building.
The organization decided not to deduct VAT on dismantling works performed by a third party, and included them in the cost of these works.
The following entries will be made in accounting.
Contents of operation Dt CT Amount, rub. Decommissioned initial cost liquidated building 01 "Fixed assets" 5 000 000 Depreciation for the abandoned building written off 02 "Depreciation of fixed assets" 01, subaccount "Disposal of fixed assets" 3 500 000 The residual value of the building was written off 91-2 "Other expenses" 01, subaccount "Disposal of fixed assets" 1 500 000 The cost of the building in a conditional assessment is reflected off the balance sheet 1 000 In accounting with next month depreciation will no longer be charged As of the date of completion of the liquidation of the building and the signing of the act of completed work on the demolition of the building (as of the date of execution of section 3 of the act in the form No. OS-4 - in May 2011) Reflected the cost of payment for the work of the contractor, including VAT, which it was decided not to deduct for deduction 91-2 "Other expenses" 60 "Settlements with suppliers and contractors" 531 000 10 "Materials" 91-1 "Other income" 90 000 The cost of the building was written off off-balance sheet 013 "Buildings to be demolished" 1 000 Tax accounting of liquidation operations.
the name of the operation Income / expense classification Amount, rub. Document As of the date of the decision that the building will no longer be used by the organization (as of the date of approval by the head of sections 1 and 2 of the act in the form No. OS-4 - in April 2011) The building has been excluded from the composition of the depreciable property, depreciation will be discontinued from the next month (from May 2011) As of the date of approval by the head of the demolition results (as of the date of registration of documents on the demolition of the building and section 3 of the act in the form No. OS-4 - in May 2011) Expenses included in the form of the residual value of the building
(RUB 5,000,000 - RUB 3,500,000)Non-sales expenses d subn. 8 p. 1 of Art. 265 Tax Code 1 500 000 Fully completed act in the form No. OS-4, documents on the demolition of the building Costs for demolition work included
(450,000 rubles + 81,000 rubles)Non-sales expenses d subn. 8 p. 1 of Art. 265 Tax Code 531 000 Contract for contract work, act of completed contract work Recorded materials suitable for further use Non-operating income d clause 13 of Art. 250, sub. 8 p. 4 art. 271 of the Tax Code of the Russian Federation 90 000 The act of posting material assets in the form No. M-35 As you can see, there are a lot of nuances in the demolition of real estate. All of them should be given attention by both management and accounting. And it is better to do it BEFORE DEMOLISHMENT.
It should be noted that death or destruction in accordance with civil law is understood as the irreversible physical cessation of the existence of a thing in its original form, which makes it impossible to satisfy the original needs of the owner. At the same time, the termination of the existence of a thing upon its death or destruction must be truly irreversible.
Unified form KS-10 - Act of assessment of buildings and structures subject to demolition (transfer): download a sample
- the owner of the construction site, proposed for demolition, or his representative, endowed with the appropriate list of powers;
- persons delegated by the ordering party (developer) of a new object planned for construction at a given location;
- an employee representing the Bureau of Technical Inventory;
- if the need arises in the composition of the commission, the presence of other representatives of organizations interested in this event is possible.
New form of the survey report 2020
- decisions of the executive authority of a constituent entity of the Russian Federation or a municipality on the recognition of a real estate object in accordance with the procedure established by law as dilapidated or emergency, as well as in the case of the construction of real estate objects closer than the minimum distances established by building codes and rules for gas supply systems, on the lands of highways, in roadside strips and reserve zones in violation of the established procedure for the use of these lands, in violation of the norms of the current environmental legislation and in other cases; a document confirming the seizure for state or municipal needs of a land plot with real estate objects located on this land plot to be demolished; a document confirming the development of the built-up area where the property subject to demolition is located; other documents on the basis of which a decision was made to carry out the demolition (dismantling) in the event of the compulsory withdrawal of the property from the owner;
- project documentation capital construction object (excluding project documentation linear objects) in case of demolition or dismantling of a capital construction object, its parts for construction, reconstruction of other capital construction objects;
- decisions of the owner of a building, structure, construction in progress on the demolition of the real estate object in the event of voluntary demolition of the object;
- documents of the executive authority of a constituent entity of the Russian Federation or a municipality, confirming the fact of natural disasters or other emergencies in the event of the termination of the existence of a building, structure, object of construction in progress due to the destruction of such a real estate object or the termination of the existence of a premise due to the destruction of a building or structure, in which it was located, the destruction of a part of a building or structure within which such a room was located, for reasons beyond the control of the owner of such a property;
- other documents established by legislative and other regulatory legal acts Russian Federation.
Demolition Act
- the owner of a building, structure or structure, as well as plantings that are subject to demolition. Instead of the owner, the commission may include his legal representative or an authorized person;
- the developer, represented by an authorized or legal representative, who will directly carry out construction and installation work on the construction of the facility;
- bureau of technical inventory represented by its representative;
- other persons interested in drawing up an act (if necessary).
The act of inspection of buildings and structures: when is it needed and how to draw it up
A cadastral engineer can work independently or be an employee of the company. There are many specialized firms on the market: bureaus of technical and construction expertise, cadastral bureaus, architectural, design and construction organizations etc. All of them can have cadastral engineers on their staff. By law, in order to be eligible to provide such services, at least two such specialists must be hired. At the same time, in addition to the personal responsibility of experts, the company-employer must also provide a guarantee of the quality of work. How not to be mistaken with the choice of an organization and a specific specialist, said the representative of the "Moscow Cadastral Bureau":
We reflect in the accounting and tax accounting the demolition of the building, the further use of which is impractical
When reflecting the liquidation of real estate in the accounting, first of all, it is necessary to figure out where and when we write off its residual value (of course, if the property has not been completely depreciated). There are several interesting points in both accounting and tax accounting that need to be considered in more detail.
Demolition Act
An inspection report is a document in which a cadastral engineer, as a result of an inspection of the location of a building, structure, premises or an object of construction in progress, taking into account the available cadastral information about such a real estate object, confirms the termination of the existence of a building, structure or an object of construction in progress in connection with the death or destruction of such a real estate object or the termination of the existence of a premise in connection with the destruction or destruction of a building or structure in which it was located, destruction or destruction of a part of a building or structure within which such a premise was located.
Forum of Cadastral Engineers
Situation: I have 1/2 share in the house, the land plot is separate, the neighbor reconstructed his part and, according to the declaration, registered it as separate house... Now it was my turn to demolish the floor of the house and terminate the right to my 1/2 share. At the same time, the Rosreestr says that they say the neighbor has registered the house, and 1/2 of the share in the BTI is still hanging (he did not register his 1/2), what should I do?
Demolition certificate sample
The inspection report is a document where the cadastral engineer gives his opinion on the termination of the existence of the inspected property, as a result of its death or destruction (fire). If it is necessary to remove the property from the cadastral register, in the event of its reconstruction, demolition, fire, the cadastral engineer forms an inspection report, where in the conclusion he describes the whole situation with regards to the property.
Demolition Act Sample
The report of the survey of the living quarters. The report of the survey of the living quarters. Astrology For Beginners How to Read a Natal Chart Posted by Evgeniya Salikova on this page. The commission, on the basis of an application from the owner of the premises or an application from a citizen (tenant) or on the basis of the conclusion of state supervision (control) bodies on issues within their competence, assesses the compliance of the premises with the requirements established in this Regulation and recognizes the residential premises as suitable (unsuitable) for living, and also recognizes apartment house emergency and subject to demolition or reconstruction. In the case of an examination of the premises, the commission draws up in 3 copies an act of examination of the premises in the form below in the form of an attachment. Based on the conclusion received, the relevant federal body executive power, an executive body of a constituent entity of the Russian Federation, a local self-government body makes a decision and issues an order indicating the further use of the premises, the timing of the resettlement of individuals and legal entities in the event that the house is recognized as emergency and subject to demolition or reconstruction, or on the recognition of the need for repair and restoration work ...
Documents drawn up during the dismantling of a building
There is a unified form "Act on the assessment of buildings, structures, structures and plantings subject to demolition (transfer)" (form KS-10) approved by the resolution of the State Statistics Committee of Russia, which provides a link to the document that is the basis for the demolition of the building. Depending on the specific situation, this may be a decision at the level of the Russian Federation, local government or the owner of the building to be demolished.
How to arrange the demolition of an old house on a land plot
2. In accordance with the Federal Law of July 24, 2007 N 221-FZ "On the State Real Estate Cadastre" * (hereinafter - the Law), the Act is a document in which the cadastral engineer, as a result of the inspection of the location of the building, structure, premises or object construction in progress, taking into account the available cadastral information about such a property, confirms the termination of the existence of a building, structure or construction in progress in connection with the destruction or destruction of such property, or the termination of the existence of a premise due to the destruction or destruction of a building or structure in which it was located, loss or destruction of a part of a building or structure within which such a room was located.
Act on the demolition of the dismantling of the building structure of the object - ipcziz en
The act of acceptance of works on the preservation of an object of cultural heritage, an identified object of cultural heritage (Moscow City Heritage) etalon.Write () source of documents section act. A petition for taking measures to ensure the implementation of a court decision on the demolition of an extension building. Almaty is developing a program for the demolition of dilapidated residential buildings in the city.
Removal of a house from the cadastral register
- demolition of the house. This clause also includes the demolition of the building by the decision of the owner, and the destruction as a result of floods, hurricanes, tornadoes and other force majeure circumstances;
- completion. Reconstruction is not included in this item. It does not imply an increase in the area of the entire building, a change in the parameters of the building indicated in the cadastral passport. Only the parameters of individual rooms or rooms can be changed;
- presentation by the applicant during registration of invalid, forged or forged documents;
- connection of several buildings into a single complex. This can be a common roof, a common foundation, a stylobate, or the completion of walls. Each of the buildings that make up the complex is subject to deregistration, and a completely new building is installed;
- division of a single building into separate residential or commercial buildings. In this case, the reverse process is necessary. The single building is removed from the register, and the separate ones are put on the register;
- invalidation of the temporary cadastral number at the end of construction work. In any of the cases when the building loses the boundaries and walls indicated in the passport, it must be removed from the cadastral register.
The act on the assessment of buildings, structures, structures and plantings subject to demolition (transfer)
The act on the assessment of buildings, structures, structures and plantings subject to demolition (transfer), form KS-10, is a document used to assess the amount of damage in monetary terms. Damage can be caused by the demolition or transfer of buildings and the destruction of plantations (crops, fruits and berries, and others).
It is believed that demolition of buildings is a necessary, important and sometimes quite costly part of almost any construction process. Issues related to construction activities in Russia are regulated by the Civil Code of the Russian Federation, the Civil Code of the Russian Federation, Federal Law of November 17, 1995 N 169-FZ "On Architectural Activity in the Russian Federation", as well as other regulatory legal acts, including acts adopted on regional and local levels in accordance with federal law.
According to the current legislation, construction and reconstruction in the Russian Federation is carried out on the basis of a building permit. A building permit is a document confirming the compliance of the project documentation with the requirements of the urban planning plan of the land plot and giving the developer the right to carry out construction, reconstruction of capital construction projects, as well as their overhaul, with the exception of cases provided for by law (Article 51 of the Civil Code of the Russian Federation). This document is legal basis for construction and some other types of construction activities. Construction without a properly issued permit may have Negative consequences- first of all, the building can be recognized as unauthorized (unauthorized construction and its consequences will be discussed later).
A building permit is issued by local governments (with the exception of certain cases established by the Civil Code of the Russian Federation) at the location of the land plot. For the purpose of construction, reconstruction, repair of a capital construction object, the developer applies to the authorized bodies with an application for the issuance of a construction permit. To this application, the developer, in addition to such documents as documents of title to the land, town planning plan the site, positive conclusions of the state and state environmental expertise, also encloses the materials contained in the design documentation, among which a project for organizing work on the demolition or dismantling of capital construction objects and their parts is mandatory. - demolition country houses and summer cottages.
In addition, the Civil Code of the Russian Federation has secured the possibility of issuing a permit for certain stages of construction and reconstruction. The construction phase is usually understood as a wide range of works, including those related to the demolition of buildings and structures on the site intended for the construction of a new facility.
Based on the Civil Code of the Russian Federation in the constituent entities of the Russian Federation and municipalities, various regulatory legal acts were developed and approved that determine the procedure for preparing documents for issuing permits for the demolition or dismantling of capital construction projects on the territory of the respective municipalities. Despite the wide variety of such acts, after their systematization, defining points can be distinguished regarding the basic rules for issuing permits for demolition.
So, a separate stage of construction is the production of work on the demolition or dismantling of capital construction objects for:
- release of a land plot for new construction;
- liquidation of facilities that have lost their technological need or have become dilapidated;
- elimination of engineering networks and communications.
As a rule, the preparation and issuance of permits for the demolition or dismantling of objects is entrusted to the relevant department of the local administration (for example, the department of architecture and urban planning, the department of architecture and municipal services, etc.).
Preparation of documents for issuing a permit is carried out on the basis of an application from the owner of the facility, which is submitted to the name of the head of administration. In this case, the applicant must provide the following documents:
- title documents for a land plot;
- documents of title to the demolished or dismantled object;
- protocols of the commission (determined by the owner) for the demolition or dismantling of objects that have lost technological necessity or come into a dilapidated state; - demolition of country houses and summer cottages
- a project for organizing demolition or dismantling works with an indication of the fencing of storage areas, etc.
In some cases, any additional documents may be required, for example, the conclusion of the relevant department (or committee) of the administration on changing or maintaining the status of the land plot or its parameters. The administration notifies the applicant about the results of consideration of the accepted documents, as a rule, within thirty days. The completion of the demolition or dismantling is confirmed by the documents of the technical inventory service and an act of inspection of the results of the demolition or dismantling of the object, drawn up by the owner of the object (signed by representatives of the fire supervision, engineering services, the chief architect, etc.). In addition, such acts briefly indicate the demolition of objects on the sites of individual housing construction.
The demolition of residential buildings and outbuildings on individual development plots is carried out by the owner at his own discretion. The basis for registering the demolition of such structures is the documents of the technical inventory service.
According to Art. 48 of the Civil Code of the Russian Federation, the design documentation for capital construction projects also includes the section "Project for the organization of work on the demolition or dismantling of capital construction facilities, their parts (if necessary, demolition or dismantling of capital construction facilities, their parts for construction, reconstruction of other capital construction facilities)" ...
Pursuant to the provisions of Art. 48 Civil Code of the Russian Federation Decree of the Government of the Russian Federation of February 16, 2008 N 87 "On the composition of sections of project documentation and requirements for their content" approved the Regulation on the composition of sections of project documentation and requirements for their content. According to this Regulation, design documentation for capital construction objects for production and non-production purposes should consist of twelve sections, the requirements for the content of which are established by the specified Regulation. Section II provides a list of documents required for the preparation of project documentation for a capital construction object, among which the following documents are also indicated: acts (decisions) of the owner of a building (structure, structure) on decommissioning and liquidation of a capital construction object - if necessary, demolition ( dismantling); the decision of the local government body on the recognition of a residential building as emergency and subject to demolition - if necessary, demolition of a residential building.
Section 7 of the project documentation "Project for the organization of work on the demolition or dismantling of capital construction objects" is carried out if it is necessary to demolish (dismantle) an object or part of a capital construction object. Clause 24 of the said Regulation defines the list of information that this section should contain. So, among the specified information, for example, the following are named:
- the basis for the development of a project for organizing work on the demolition or dismantling of buildings, structures and structures of capital construction objects;
- a list of buildings, structures and structures of capital construction objects subject to demolition (dismantling);
- a list of measures for the decommissioning of buildings, structures and structures of capital construction objects;
- a list of measures to ensure the protection of the liquidated buildings, structures and structures of capital construction objects from the penetration of people and animals into the dangerous zone and into the object, as well as the protection of green spaces;
- description and justification of the accepted method of demolition (dismantling), etc.
In addition, the design documentation in the graphical part should also contain:
- a plan of the land plot and adjacent territories with an indication of the location of the demolished object, engineering and technical support networks, collapse zones and hazardous zones during the demolition (dismantling) of the object, indicating the storage locations of the disassembled materials, structures, products and equipment;
- drawings of protective devices for engineering infrastructure and underground communications;
- flow charts-diagrams of the sequence of demolition (dismantling) of building structures and equipment.
It should be noted that in accordance with the Decree of the Government of the Russian Federation of March 5, 2007 N 145 "On the procedure for organizing and conducting state examination of project documentation and results engineering surveys"The absence in the project documentation of the sections provided for by Article 48 of the Civil Code of the Russian Federation, or the discrepancy between the sections of the project documentation and the requirements for the content of the sections of the project documentation, are grounds for refusing to accept the project documentation and (or) the results of engineering surveys submitted for state expertise.
Design documentation is approved by the developer or customer. If the project documentation is subject to a mandatory state examination, it is approved by the developer or the customer only if there is a positive expert opinion (Article 48 of the Civil Code of the Russian Federation) .- demolition of country houses and summer cottages
In order to make it easier in the future to consider the relationship of persons, one way or another associated with the problems of demolition of buildings, you first need to familiarize yourself with the main participants in the construction process.
According to the legislation governing investment activities in the Russian Federation, the constituent entities investment activities are:
- investors;
- customers;
- contractors;
- users of capital investment objects;
- other persons (Federal Law of February 25, 1999 N 39-FZ "On investment activities in the Russian Federation, carried out in the form of capital investments").
Often, in practice, one organization combines the functions of several participants in the construction process: an investor, a customer (developer) or a contractor. Relations between subjects of investment activity are carried out, as a rule, on the basis of agreements (or government contracts) concluded in accordance with the legislation of the Russian Federation.
Investors make capital investments on the territory of the Russian Federation using their own and (or) borrowed funds in accordance with the legislation of the Russian Federation. They can be individuals and legal entities created on the basis of an agreement on joint activities and not having the status of a legal entity of an association of legal entities, government bodies, local governments, as well as foreign entities entrepreneurial activity(foreign investors).
Placing orders for contractors construction works for state needs at the expense of funds federal budget and funds from the budgets of the constituent entities of the Russian Federation in the implementation of investment projects are made by state customers through tenders in accordance with the legislation of the Russian Federation. Local governments provide the necessary conditions for the development, approval and financing of investment projects carried out municipalities at the expense of local budgets placed on a competitive basis. The costs of financing investment activities carried out in the form of capital investments by local governments are provided for by local budgets.
As for the customer, the following should be noted. In different regulations(and, accordingly, in the literature) the terms "customer", "developer" or "customer-developer" are used.
The customer-developer directly carries out the implementation investment project, provides the construction process. An investor usually attracts a specialized organization as a customer-developer, as a rule, which has been successfully working in this segment of the economy for a long time, and has specialists with necessary knowledge, skills, qualifications.
Customers-developers who are not investors at the same time are vested with the rights of ownership, use and disposal capital investments for the period and within the powers that are determined by the capital construction contract or government contract. The customer bears the responsibility established by the current legislation and (or) the contract before the investor for the intended use of his funds.
In preparation for construction, the customer performs many functions, including necessary actions on the development of the territory and the allotment of the land plot. In this case, the customer:
- prepares documents for felling and replanting trees, fruit and berry plantations, demolition of buildings, cleaning the territory from objects that interfere with construction; - demolition of country houses and summer cottages
- negotiates with the owners of buildings, structures, structures and agricultural land on the demolition of objects;
- ensures the resettlement of citizens from houses subject to demolition;
- calculates the residual value of the demolished buildings, structures, structures or receives a certificate of the residual value of the demolished buildings from their owners;
- reimburses citizens and legal entities the cost of seized buildings, land plots, plantings, etc., provided for by the current legislation of the Russian Federation - demolition of country houses and summer cottages
The customer determines the costs of preparation and development of the construction site.
Costs include, among others:
- payment of compensation for demolished buildings and orchard plantings;
- payment for land upon withdrawal (redemption) of a land plot for construction, as well as for payment land tax(or rent) during the construction period;
- payment of compensation for agricultural work performed on the withdrawn land plot (sowing, etc.).
To determine the amount of material damage in connection with the demolition (transfer) of buildings, structures, structures and the destruction or damage of plantings, a certain act is drawn up. This act (form No. KS-10, approved by the Decree of the Russian Statistical Agency of November 11, 1999 No. 100 "On approval of unified forms of primary accounting documentation for accounting for work in capital construction and repair and construction work") is drawn up by a commission, which should include the owner (owner) of a building, structure, structure, plantation to be demolished, or his representative, a representative of a customer (developer) of a newly constructed facility, a representative of a technical inventory bureau. If necessary, the commission may include representatives of other interested organizations.
Let us now turn to the issue of reconstruction of buildings, structures, structures. Quite often, in practice, reconstruction is understood precisely as the demolition of an existing property and the construction of a new facility in its place. This approach is incorrect and contrary to the norms. current legislation RF.
According to Art. 1 of the Civil Code of the Russian Federation, construction means the creation of buildings, structures, structures (including at the site of the demolished capital construction projects). The Civil Code of the Russian Federation also defines the concept of reconstruction, which is understood as a change in the parameters of capital construction objects, their parts (height, number of floors, area, indicators of production capacity, volume) and the quality of engineering and technical support. Analysis of these concepts, their comparison allows us to conclude that reconstruction, that is, changing the object of capital construction, does not require the demolition of this object. Therefore, if during the reconstruction, demolition is carried out, then it indicates new construction, but not in any way about reconstruction in the understanding given by the Civil Code of the Russian Federation. In addition, in this case, the question of acquiring ownership of a newly erected real estate object invariably arises (however, such a situation can be created deliberately, most often in the interests of the investor). By virtue of Art. 235 of the Civil Code of the Russian Federation from the moment of the demolition (destruction) of the real estate object, the ownership right to it is terminated. Therefore, if the investor (customer) originally prepared the documentation for the reconstruction of the real estate object (with possible solution issues with the owners, tenants, tenants, etc.), and as a result, the demolition of the object was carried out, then later, at the stage of paperwork and registration of the right to the erected object, the interested person (investor, customer) may have problems that are likely will have to be decided in court.
There are situations when a person, having just started reconstruction, discovers that this object, due to its technical condition, is not subject to reconstruction (for example, before starting work, a complete survey of the object was not carried out, an error in calculations, etc.). The correct behavior of the person in this case will be the complete cessation of work on the reconstruction of the object. If the object also poses a danger to others, for example, threatens to collapse, it is necessary to take measures aimed at ensuring safety (install barriers, put up security, etc.). The further fate of the object is decided by the owner or the relevant authorized body. In case of a decision on demolition, they begin to prepare required documents for a permit for demolition.
Consider the issue of withdrawing land plots for state or municipal needs. The legislation allows for the alienation of immovable property in connection with the seizure of a land plot.
Acting Russian legislation establishes the procedure for the seizure of a land plot for state or municipal needs from the owner. According to Art. 49 of the Labor Code of the Russian Federation, seizure, including through redemption, of land plots for state and municipal needs may be carried out in the following cases:
- fulfillment of international obligations of the Russian Federation;
- placement of objects of state or municipal importance in the absence of other options for their possible placement;
- in the presence of other circumstances in accordance with federal laws, and in relation to the seizure, including through redemption, of land plots owned by the constituent entities of the Russian Federation or municipal property, in accordance with the laws of the constituent entities of the Russian Federation (for example, seizure from owners, land users, landowners of land plots occupied by natural complexes and objects, declared natural monuments).
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