«Legenda» being derived from manege»
Dmitry Nekrestyanov Partner, Head of Real Estate and Investments Practice of Kachkin & Partners comments on the material on recognizing documents permitting building construction on the site of possible historical value being illegal.
The developer’s project on Vasilievsky Island is under threat. The Kuybyshevsky District Court declared illegal the permits for the 20th line of V.O., 19 plot development, where Vasily Selivanov’s Legenda holding planned to build a residential complex, investing 2.7 billion rubles. The former Manege of the Finland Regiment Life Guards is located on this site now, against the demolition of which city defenders speak out, defending its historical value. The asset was purchased from the Finnish company Fazer and, according to experts; cost the developer 400 million rubles. Experts note that the practice in such cases is not usually in developer’s favor and practically puts an end to the development of the site.
Recently the Kuybyshevsky District Court declared illegal the permits allowing Vasily Selivanov’s Legenda holding to build up the plot located on the 20th line of V.O., 19, where the former Manege of the Finland Regiment Life Guards building is placed. «Gradozashchitny Petersburg» portal reported. After the developer announced at the end of 2020 his intention to build a residential complex here with a total area of 25.8 thousand sq. m for 146 apartments, city rights activists were categorically against the demolition of the existing building (see «Kommersant» from 10.12.2020). They insisted that the house was built in the middle of the 19th century, despite the fact that, according to technical documents, the date of construction was the 1930s, when the Manege was converted into the Vasileostrovsky bakery. This date of construction deprived the Manege of the protection of the 820th law on the boundaries and regimes of protection zones. «This fact was used by the construction company Legenda, which bought the territory of the bakery in 2019,» they say in Gradozashchitny Petersburg.
City rights activists decided to challenge in court the positive conclusion of the KGIOP, as well as a building permit issued by the State Construction Supervision of St. Petersburg (it was received by the holding’s subsidiary – «Specialized Developer Bolshoy Prospekt VO Legend» LLC). As a result, they managed to achieve the preliminary protection measures imposition in the form of KGIOP conclusion suspension, as well as forensic examination appointment, which subsequently confirmed the pre-revolutionary date of the Manezh construction, which means that it cannot be demolished. The Legenda holding told Kommersant that they «strongly disagree with the court’s decision.» “It is especially surprising that it was handed down right now, despite the fact that at previous sessions a large number of questions arose to our opponents both in connection with gross violations of the methodology for carrying out the examination, and in terms of its content. The opinion presented to the court cannot claim the status of “expert examination”, at least because the building as a whole was not examined, but only individual fragments of the facade were assessed, which cannot serve as a basis for issuing a balanced professional expert opinion. The decision has not yet entered into force, and we will certainly appeal against it,” developer’s deputy said. The KGIOP also told Kommersant that they intend to challenge the decision. The State Construction Supervision of St. Petersburg, in turn, will make a decision after receiving the court’s conclusion «in the final form.»
According to Dmitry Nekrestyanov Partner, Head of Real Estate and Investments Practice of Kachkin & Partners, disputes over the historic building construction year are common. “The practice in general is not in developers’ favor, although I think it is unfair. The court’s conclusion about the building’s historical character in many ways puts an end to the future development of the site, since historical buildings in the protected zones cannot be demolished, and if they are demolished, they must be restored in the same dimensions then,» explains Mr. Nekrestyanov. Since information about a different year of construction was included in the technical documentation, it is difficult to hold the developer fully responsible for the belief in the reliability of state registers, he adds. Thus, if the decision resists the appeal, then the developer will only have to calculate the losses and get rid of such an asset.
“There is nothing surprising in the very satisfaction of the claim — the facts are on the side of the suitor, an error in the technical documentation does not lead to the actual “rejuvenation” of the building. Consequently, any independent construction and technical expertise will establish the actual age of the building, and hence the need to apply the norms of St. Petersburg Law No. 820-7. However, it cannot be denied that the court’s positive decision could have been influenced by the public resonance around the trial and the involvement of prominent deputies,» says Vasily Malinin, head of the Commercial Disputes section of Rustam Kurmaev and Partners law firm. In his opinion, the developer did not carry out a very detailed due diligence before investing in this object.
“It is impossible to blame the developer only for imprudence, given that they checked the documentation containing a technical error. The issue of information publicity about the actual building construction date plays, in our opinion, a key role in explaining the developer’s actions. He showed due diligence, which was not enough in the conditions of the cultural capital,” notes Mr. Malinin. The expert does not exclude that the developer may apply for damages to the State Construction Supervision and KGIOP in connection with the issuance of an illegal conclusion and other permits. “We would not recommend participating in the further appeal of this judicial act, since the likelihood of its cancellation in higher instances is rather small, and an appeal against a judicial act in this case may damage the developer’s procedural position when recovering losses from government agencies. The court may regard it as inconsistent and refuse to defend the right,” he concludes.
The material was published in the newspaper «Kommersant St. Petersburg» No. 172 of 23.09.2021, p. 12
PhD in Law
Head of Real Estate and Investments Practice, attorney
PhD in Law
Head of Real Estate and Investments Practice, attorney
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