Legal Regulation of Construction and Real Estate in Belarus
1. Real estate
A general notion of real estate is given by Civil Code of the Republic of Belarus, according to which to real estate (real property) shall be relegated land plots, subsoil plots, solitary water objects, and all that is firmly connected with the land, as well as the enterprises as property complexes, and those what can be attributed to the real estate under the laws of the Republic of Belarus. The main feature of real estate is the fact of impossibility to move such objects without incommensurate damage to their purpose.
2. State registration of real estate, rights and deals with it
The real estate, rights and deals with it are subject to the state registration real estate (hereinafter — state registration) in cases provided by the legislative acts.
State registration is a legal act of state admission and confirmation of a fact connected with creation, changing, disappearance of real estate, rights to it and encumbrances on it, as well as transactions with it.
There is a Common state register of real estate, rights to it and deals with it which contains information and documents regarding registered objects of real estate in the Republic of Belarus.
State registration is necessary in cases of:
- occurrence, changing, termination of rights to real estate including parts in rights, except parts in right of common ownership of common household and limitations (encumbrances) on rights over real estate according to the above-mentioned law and other legislative acts;
- creation, changing, disappearance of real estate;
- transaction with real estate which is subject to state registration according to legislative acts of the Republic of Belarus;
- State registration is carried out in relation to the following types of real estate:
- land plots — a part of the land surface having their boarder and purpose and firmly connected with constructions (buildings, structures) located on it;
- constructions (buildings, structures) - any objects built on or under land intended for long-term use, the creation of which is recognized as completed in accordance with laws of the Republic of Belarus and the purpose, location, dimensions of which are described in the documents of the Common state register of real estate.
- incomplete conservated constructions — a conservated construction object , creation of which as construction is permitted in accordance with legislation of the Republic of Belarus, but not accomplished.
- isolated premises (including inhabited) - the inner space of a construction (building, structure) separated from other related parts of the construction by bridgings, walls, division walls, having an independent entrance from auxiliary premise (entrance hall, corridor, walkway, stairway, pace, elevator hall etc.) or from public area (area around the house, street etc.) directly or from other premises or territory by using servitude, the purpose, location in the construction, the area of which is described in the documents of the Common state register of real estate;
- parking place — a stall intended for placing a vehicle, which is a part of a construction belonging to a legal entity or an individual and registered as an object of real estate.
- enterprise as a property complex used in the entrepreneurial activity. The enterprise includes all types of property intended for its activity, including land plots, buildings, structures, equipment, inventory, raw material, production, claims, debts, as well as trade name, trademark, service mark and other exclusive rights.
Thus, real estate not included in the above-mentioned list and obligatory state registration of which is not provided by legislative acts (laws, decrees, edicts) is not subject to state registration.
The legal significance of the state registration is that it is only since the moment of its realization:
- real estate is recognized as created, changed, eliminated;
- right, limitation (encumbrance) of a right to real estate arises, is being transferred and is terminated;
- transaction is recognized as concluded.
As a general rule according to Civil Code transactions with real estate are subject to state registration. Non-observance of the obligation to provide state registration of a transaction leads to its nullity, so no rights and obligations arise from such a transaction and the parties have to return all received in such a transaction.
There are exceptions from this rule provided by the legislation of the Republic of Belarus: lease and sublease contracts, the contracts of uncompensated use of real estate (construction (building, structure), isolated premises, parking place) regardless the term of lease, sublease, uncompensated use as well as agreements intended to change or terminate above-mentioned contracts; rights to real estate arising from above-mentioned contracts are not subject to state registration.
These contracts are considered as concluded from the date of its signing by parties.
The procedure of state registration is carried out by territorial organizations on the registration of real estate subordinated to the Property State Committee of the Republic of Belarus (The National cadastral Agency and its subordinate organizations). Time-limits of administrative procedures as well as fees connected with state registration are established by legislation.
3. Land plots
Land plot is one of types of real estate which are subject to state registration as a general rule.
According to legislation of the Republic of Belarus legal entities can own land plots on following titles: ownership, permanent or temporary use, lease. One of the main principles in land laws is a principle of purpose use. Consequences of non-compliance with this rule are that a title for a land plot (including ownership) may be terminated.
The use of land plots is paid in the Republic of Belarus. The forms of payment for a land plot are land tax or rent.
For the use of a land plot privately owned, permanently or temporally used, land tax is to be paid according to the legislation.
Rent is to be paid for the use of land plots granted on lease.
The procedure of collection of rent for the use of land plots, owned by the state is established by the President of the Republic of Belarus.
Land plots can be privately owned by private legal entities of the Republic of Belarus, foreign states, international organizations.
Land plots owned by the state can be transferred to private ownership as a result of the auction and without auction. The legal grounds and the procedure of allocation of land plots owned by the state are established by the President.
The disposal of a land plot privately owned is implemented on the basis of a civil law transaction.
3.2. Permanent use
Permanent use is one of the forms of a land plot use without predetermined term which terminates in cases provided by legislation.
Commercial private legal entities can use under permanent use title land plots which had been transferred to them before Land Code entered in force, or if the title for permanent use of a land plot was transferred to them from other legal entities, as well as if a land plot was transferred:
- for maintenance of objects of real estate owned by state;
- for construction of apartment dwelling buildings (except dwelling buildings of higher comfort according to the criteria stipulated by legislative acts); maintenance of apartment dwelling buildings; construction and (or) maintenance of garages and parking lots;
- for construction and (or) maintenance of transport and engineering infrastructure and roadside service.
Land plots can be granted on lease to legal entities of the Republic of Belarus as well as to foreign legal entities, their representative offices, foreign states, diplomatic missions and consular posts of foreign states, international organizations and their representative offices.
The lease of privately owned land plots is carried out on the basis of a civil law transaction.
Land plots owned by the state can be granted on lease at an auction as a general rule. But there is a list of cases stipulated by legislation in which land plots can be granted on lease without an auction. For example land plots can be granted on lease without an auction to an investor for realization of projects provided by investment agreement with the Republic of Belarus, to organizations for objects construction of engineering and transport infrastructure, construction of roadside service objects, to residents of free economic zones, special tourist and recreational parks - for construction and maintenance of real estate in these areas, parks.
Time-terms and other conditions of a land plot lease are determined by the lease contract. But the time-term of lease of a land plot allocated for agriculture should be not less than ten years, the time-term of lease of a land plot owned by the state and allocated for construction and (or) maintenance of capital buildings should be not less than the time-term of the construction works and (or) operation of these capital buildings. In any case the time-term of the land plot lease should not exceed ninety nine years.
Construction of buildings and structures is carried out on the basis of authorization. Local Executive Committees, its departments, specialized municipal unitary organizations on the stakeholders’ applications prepare and give out building documents, depending on the type and place of construction. The following building documents are obligatory:
- Local Executive Committees’s decision on permission to carry out design and exploration works and construction of the object;
- architectural planning task;
- opinions of coordinating organizations;
- technical conditions on engineering support of the object.
Availability of permits is a necessary condition for customer to enter into a contract for development of project documentation and construction contract.
Under the general rule, project documentation is subject to mandatory state expertize, which is carried out by specialized state enterprise - the republican unitary enterprise “Glavgosstroyexpertiza” or their subsidiaries on a payment basis. Project documentation for which positive opinions of state expertise is received can be approved by construction customer and can be transferred for work.
There are special requirements provided by legislation for the process of determination of contractor for the object’s construction. For objects not financed from the state budget or non-budget funds and funds attracted under the guarantee of state agencies, the conduction of contract auctions is obligatory if the cost of construction exceeds 100 000 base units (1 base unit is 130 000 BYR). In such cases a contractor for construction of an object is determined only as a result of an auction. The cases when financing of the construction is fully financed by foreign investors are exempt from this rule.