Correlation of private and public interests in the demolition of an unauthorized construction

Abstract

The institution of unauthorized construction concentrates oppositely directed legal claims: the proprietary interest of a developer who has invested funds in an erected object collides with the public interest in the safety of structures, compliance with the urban-planning regime and the stability of real-estate turnover. Demolition as a means of eliminating a violation affects both poles simultaneously and therefore calls not for the mechanical application of a sanction but for a weighing of competing values. The aim of the work is to determine the legal grounds on which the private and public interests are reconciled when the question of demolishing an unauthorized construction is resolved, and how this balance is fixed in current legislation and judicial clarifications. The formal-legal, teleological and comparative-legal methods are applied, supplemented by a generalization of the legal positions of the Constitutional and Supreme Courts of the Russian Federation. It is established that, following the reform of Article 222 of the Civil Code, demolition has lost the character of an automatic consequence of unauthorized status and has acquired the status of an extreme measure, admissible only where the violation is irremediable and poses a real threat to protected goods, while priority is given to bringing the construction into compliance with the established requirements. The proportionality of intervention, the inadmissibility of the revocation by public authorities of previously issued permits after state registration of a right, and the differentiation of limitation rules constitute the instruments by which the legal order maintains the equilibrium of interests. The shift of emphasis from a punitive to a restorative model demonstrates that the reconciliation of the private and public principles is achieved not through the priority of one interest over another, but through the calibration of conditions under which preservation of the object becomes compatible with the protection of socially significant goods.