Decree of the Moscow Government of February 3, 2011 N 26-PP
"On the placement of non-stationary retail facilities located in the city of Moscow on land plots, in buildings, structures and structures owned by the state"

With changes and additions from:

May 31, June 16, July 5, September 28, 2011, February 16, February 22, March 26, August 27, September 27, November 13, 2012, April 4, September 13, 25, December 26, 2013, 25 February, December 26, 2014, March 11, May 19, June 9, August 26, November 10, December 30, 2015, February 26, May 17, July 26, 15, November 29, 2016, January 11, 5 April, November 28, 2017, March 20, May 8, 22, August 7, October 31, December 11, 2018, January 22, 2019

1.2. The procedure for organizing and conducting an auction for the right to conclude an agreement for the implementation of trading activities (provision of services) in a non-stationary retail facility, an agreement for the placement of a non-stationary retail facility and the conclusion of such agreements (Appendix 2).

Information about changes:

2. Assign the functions of state customers for the procurement of non-stationary retail facilities of the type “Kiosk”, “Pavilion”, as well as non-stationary retail facilities with the specialization “Print” and work on their placement on land plots that are state property of the city of Moscow, or state property which are not delimited, with the exception of the objects specified in paragraphs 2(1) of this resolution, to the Department of Trade and Services of the city of Moscow.

Information about changes:

Appendix 1 to this resolution is applied when placing non-stationary retail facilities within the boundaries of the territories specified in paragraph one of this paragraph, taking into account the features defined in Appendix 8 to this resolution.

Appendix 2 to this resolution does not apply when placing non-stationary retail facilities within the boundaries of the territories specified in paragraph one of this paragraph.

4(1). To establish that the Committee for Architecture and Urban Planning of the City of Moscow ensures the development of projects for the placement of non-stationary retail facilities for inclusion in the layout of non-stationary retail facilities at the request of the authorities executive branch of the city of Moscow within the framework of the State program of the city of Moscow "Urban planning policy" for 2012-2018, with the exception of non-stationary retail facilities located in buildings, structures, structures and land plots transferred to the State unitary enterprise city of Moscow "Moscow Order of Lenin and Order of the Red Banner of Labor Metro named after V.I. Lenin.

6. To recognize as invalid:

6.1. Paragraphs 1-14 of the Moscow Government Resolution No. 274-PP dated April 25, 2006 “On streamlining the placement of small retail chain facilities on the territory of the city of Moscow.”

6.2. Clauses 1.1-1.3 of the resolution of the Moscow Government dated October 31, 2006 N 861-PP "On introducing amendments and additions to the resolutions of the Moscow Government dated April 25, 2006 N 274-PP and dated December 3, 2002 N 981-PP".

6.3. Clause 1 of the Moscow Government Resolution No. 444-PP dated May 27, 2008 “On introducing amendments and additions to the Moscow Government Resolution No. 274-PP dated April 25, 2006, No. 29-PP dated January 27, 2004, at the disposal of the Government Moscow dated November 15, 2001 N 353-RP."

6.4. Clause 9 of the Moscow Government Resolution No. 920-PP dated October 7, 2008 “On further measures to implement the Moscow Government Resolution No. 965-PP dated November 29, 2005.”

6.5. Decree of the Moscow Government dated March 3, 2009 N 153-PP "On introducing amendments to the Moscow Government Decree dated April 25, 2006 N 274-PP".

6.6. Clauses 1, Resolution of the Moscow Government of March 9, 2010 N 203-PP “On introducing amendments and invalidating certain provisions of the resolutions of the Moscow Government.”

6.7. Clause 8.1 of the Moscow Government Resolution No. 1021-PP dated November 17, 2010 “On the temporary procedure for placing non-stationary small retail chain facilities on the territory of the city of Moscow in 2011.”

7. Control over the implementation of this resolution is entrusted to the Deputy Mayor of Moscow in the Moscow Government - Head of the Office of the Mayor and the Moscow Government N.A. Sergunina.

Before talking about the specifics of locating non-stationary retail outlets at stationary commercial establishments in Moscow, it is worth understanding what it is "non-stationary shopping facility? According to the common formulation, a non-stationary retail facility is a retail site that does not have a fundamental support. Thus, often such a point does not have mobility. The installation of such structures involves a number of features.

Law on the procedure for placing non-stationary retail facilities in stationary retail facilities in Moscow

Today, the legal basis for the installation of non-stationary commercial outlets in stationary retail establishments in Moscow is provided by the Decree of the City Government dated June 23, 2016, number 355-PP “On the placement of non-stationary retail facilities in the city of Moscow at stationary retail establishments.” This document is based on the Law “On the Fundamentals of State Regulation of Trade Activities in Russian Federation"(No. 381-FZ), which is dated December 28, 2009.

This resolution approves the basic rules for the operation and placement of retail facilities that do not have a foundation in permanent commercial establishments in Moscow. It also describes the most acceptable architectural solutions and the procedure for designing such structures. It is worth noting that this resolution does not apply in the territory of the Novomoskovsky administrative district of Moscow and the Troitsky administrative district of Moscow. The resolution is considered to have entered into force on September 1, 2016.

Rules for placing such objects

The above-mentioned provision provides the official formulation of a non-stationary object of trade. In accordance with it, these include points that do not have a fundamental basis and are located on land plots and in buildings that are state-owned or otherwise owned.

An entrepreneur is allowed to install only one point within one building. At the same time, the structure must strictly comply with all safety rules and fit organically into the overall design of the building chosen for placement. The area of the trading area should not be more than 30 square meters.

The following types of commercial structures can be placed in buildings:

Kiosk.
Pavilion.
Vending machine.

In this case, the kiosk area is limited to 10 square meters. The pavilion can have a maximum of two doors for customers. The share of food products in the turnover of all points in the building should not exceed 20%.

In buildings owned by cultural institutions, it is allowed to sell only the following types of products:

Flowers.
Books and press.
Ice cream and drinks.
Handicrafts and souvenirs.

Installation of a site for the retail sale of goods is possible only if there is an approved layout of the building in which the pavilion is planned to be located. Information about a non-stationary structure is entered into this diagram. The scheme is approved by the Moscow City Planning Committee.

This document must necessarily contain:

Address of the building.
Type of structure.
Specialization.
Room dimensions.
Duration of work (from month to month).
Location diagram for Moscow districts (scale - 1:10000).
Project point of sale.

Changes in the procedure for developing the layout

In 2016, some changes were made to the procedure for developing layouts for retail sites that do not have a fundamental support.

In particular, the changes affected the operating periods of various types of points.

Namely:

The operating period for points selling ice cream and soft drinks is set from May 1 to October 1.
Bakhchevy ruins - from August 1 to October 1.

Places that cannot be included in the layout are also defined. However, speaking about the arrangement of retail outlets inside buildings, this information irrelevant.

It was also approved that the layout of non-permanent commercial structures is being developed based on proposals from the following bodies:

City Council of Deputies.
City district administration.
Department of Natural Resources and Environmental Protection.
Department of Transport and Road Infrastructure Development.
Department of Media and Advertising.
Department of Trade and Services.

Registration procedure

Before submitting an application to open a retail outlet to the relevant authorities, you need to make sure that the location chosen for placement complies with all sanitary and safety standards.

Any commercial association, legal entity or individual entrepreneur engaged in retail trade has the right to open a retail site. To do this, you need to go through the registration procedure with local authorities. The applicant needs to contact the prefecture of the city district where the commercial site is planned to be located.

The following documents will be required for registration:

License to conduct retail trade.
Permission to install the structure.
Documents for goods sold. These are various sanitary and veterinary certificates, as well as product quality certificates.
A copy of the contract for the supply of water and removal of wastewater. This document is required if for some reason it is impossible to connect to the central water supply network. A schedule of disinfection procedures for drinking water supply infrastructure must also be provided.
Certificate of registration of the cash register (if any).
Agreement for the disposal of hazardous waste.

The application must be submitted in person or through legal representative. The result is transmitted in person, through a representative, or remotely, via mail or e-mail. There is no processing fee.

A period of 30 working days is given to review the application, make a decision and prepare documentation. Registration of the application occurs directly on the day of its submission.

In case of a positive decision, the applicant receives a notification that his structure is included in the layout of retail sites of this type and the placement project.

If for any reason the applicant was denied inclusion of the object in the placement scheme, he receives a corresponding notification.

Reasons for refusal

For various reasons, local authorities may refuse to formalize changes to the scheme, or even to review documents.

Here is a list of the most common grounds for refusal:

The documents provided do not meet the established standards.
The provided documents have lost their legal force.
The building in which it is proposed to locate commercial point, does not meet established standards.
The documents provided contain contradictory or inaccurate information.
The applicant does not have property rights to the building selected for the location of the retail site.
The prefecture received an application for refusal to formalize the project.

Appeal procedure

In case of illegal actions of officials, unjustified refusal, or violation of the deadline for consideration and registration of the application, the applicant may file a complaint in pre-trial procedure.

The complaint must be submitted in writing or electronic form, in person or remotely.

It must contain necessary information about the person submitting it, and comprehensive information about the decisions and actions of local authorities that are subject to appeal.

Regulatory acts

The main regulatory and legal acts in accordance with which the installation of non-stationary sites for the retail sale of goods in the capital takes place:

Decree of the Moscow Government of June 23, 2016 (355 -PP).
Federal Law of December 28, 2009 (381-FZ).

Lawyer services

Since city authorities often refuse to register kiosks, pavilions, etc. absolutely unreasonably, it makes sense to seek help from professional lawyers. The Selen Grand company has been providing legal services in the field of business. Minimum price and maximum efficiency of work are the main advantages of the company’s services. Specialists can either conduct a remote consultation or resolve the issue directly on the spot.

Thus, to install sites without foundations in the capital, some effort will have to be made. Documentation for this issue is very extensive, and the waiting times are long.

However, with knowledge of the legal fundamentals and a serious approach to the matter, you can achieve results very quickly. Perhaps, to speed up the process, it is worth transferring the registration into the hands of an experienced specialist.

Sphere small retail trade is one of the most complex in the market segment in terms of legal and technical regulation. This is due to the fact that this type entrepreneurial activity is initially aimed at a wide class interested parties. At the same time, the means of ensuring small trade may be different. Most in an accessible way the sale of goods in terms of financial costs is a non-stationary retail facility. This can be a tray, tent, kiosk or other structure through which trade is carried out.

What is a non-stationary object for trade?

The non-stationary position of an object provides for the possibility of its movement, but this does not always apply to structures with the help of which trade operations are carried out. That is, there is a theoretical possibility of moving an object, but it may not be used for years. In other words, a non-stationary retail facility is real estate that represents a platform for the retail sale of goods. In particular, these can be stalls, kiosks, trays, boxes and other objects. From a technical point of view, the non-stationary nature of such structures is due to the lack of a foundation.

A stationary structure certainly has a strong connection to the ground. In turn, a non-stationary object may have a connection to communications, but its installation does not provide for the formation of the same concrete base for fastening. However, retail trade through non-stationary retail chain facilities can also be based on the principles of delivery and peddling sales. That is, in this case the object is also characterized by mobility. Now it’s worth taking a closer look at the types of trade objects.

Types of non-stationary trade objects

The group of non-stationary retail items is quite diverse and includes a wide range of various designs and structures. Thus, there are three basic classes of such objects: traditional non-capital structures, mobile devices and devices through which trade is carried out by hand. In the case of non-capital objects, we can talk about the most common methods of trading through kiosks, vending machines, stalls, etc. These are structures that, although they do not have a foundation, require reliable installation. A mobile non-stationary retail facility includes mobile shops, all kinds of shops on wheels and van sales trays. Also, small retail trade from hand is sometimes included in the group of non-stationary objects, but it can be carried out without any auxiliary structural means at all. In addition, there is a classification based on the nature of the seasonal operation of retail facilities. The division on this basis is especially pronounced in the case of stalls and kiosks, which can be removed during the off-season and displayed during the most active sales periods. For example, melon stands and street cafes are popular in the summer, and newsstands can be considered year-round facilities.

Legal registration of the object

For the placement and layout of retail facilities, it is necessary to prepare the appropriate documents for registering a point of sale. But before this, it is necessary to provide for the technical capabilities of ensuring the safety of the target location, as well as its compliance with sanitary and environmental standards. Already during operation, the owner will have to regularly confirm the right to place non-stationary retail facilities with the following documents:

License for trading activities.
Permission to install a non-stationary object.
Documentation indicating the sources of origin of the goods sold. Quality certificates, sanitary certificates, as well as certificates with veterinary conclusions for the products must also be provided here.
A copy of the agreement on waste removal and water supply. This is required in case it is not possible to connect to the central water supply line. In addition, a schedule is provided for disinfection work within the local infrastructure that supplies drinking water.
Document confirming Such equipment is not always required, but only in cases where kiosks or trays are included in complexes of shopping centers, stores, etc.
Agreement for the disposal of environmentally harmful products and removal of household waste.

Requirements for stationary retail facilities to be placed

Anyone wishing to organize this type of activity must provide as much information as possible about the planned characteristics of the object in the application. As a rule, retail trade involves the provision of services in the form of sales of household goods and products. After obtaining permission, the owner of the outlet must also adhere to the legislation regarding the regulation of small retail trade. Not only is the placement of non-stationary retail facilities carried out while maintaining safety standards, but the product itself must meet special requirements. In particular, this applies to sanitary standards. In addition, a kiosk, stall or other retail facility must have a sign indicating its operating hours. The point also provides facilities fire safety, personal hygiene of service personnel and conditions for meeting household needs.

Regulations on the location of a trade facility

To begin with, it should be noted the difference between objects that are installed as independent retail outlets, and structures operating as part of festive events, fairs, exhibitions, etc. In the second case, special rules are provided for, which are approved by the local administration depending on the format of the event stock. In other cases, placement is planned taking into account the supply of consumer market enterprises to the local population. Besides this, general provisions on the placement of non-stationary retail facilities require that locations be selected on sites and in buildings that are located in municipal property. The conclusion of contracts for the placement of retail facilities is carried out in accordance with the established procedure specifically for non-stationary structures.

The lease agreement usually does not last more than a year. At the same time, the current tenant will have a privileged right to further use of the rented plot or premises. It is also important to take into account that a non-stationary retail facility is property that is intended for carrying out business activities. Therefore, special fines are provided for violations in the organization of accommodation. For example, installing a kiosk without a contract is considered unauthorized, and the owner of this facility should be held accountable.

Object placement diagram

Installation of retail facilities on sites and premises that are in city ownership can only be carried out in accordance with a previously drawn up diagram. The development of this document is carried out taking into account two goals, which are expressed in stimulating the sustainable development of the local territory and meeting the needs of the local population for retail goods. The scheme is approved by the local government body, also guided by the charter municipality. The document may provide for the placement of about 60% percent of objects of this type of trade, which will subsequently be used for small or medium-sized businesses. Since a non-stationary retail facility is, as a rule, private property, it is often located on its own territory. That is, the owner of a commercial area can place a tent or kiosk within his stationary shopping complex or within the boundaries of the land plot.

Conducting an auction for the right to place

If we are talking about municipal areas, then the decision about who will receive the right to lease a particular territory can be made based on the results of the auction. To do this, the city administration issues a corresponding resolution and formulates the subject of the event. A committee can also act as an organizer. The Regulations on non-stationary trading facilities indicate who will directly regulate the auction. Typically, this capacity is served by a special commission whose functions include the following:

Determination of the so-called auction step, that is, the amount of cost increase ranging from 1 to 5% of the starting price.
The schedule for accepting applications, as well as the timing and place of summarizing the results of the auction.
Reviewing applications and making a decision regarding recognizing one of the participants as the winner.
Maintaining auction minutes.

The results of the auction are published in the media or online publications 30 days after the end of the event. The protocol may indicate the rental price, address, area parameters, and in some cases also describe the procedure for placing non-stationary retail facilities or special requirements for the operation of the contract territory.

Contract for placement of the object

Three days after the announcement of the auction winner, an agreement is drawn up and the owner of the right to place the object non-stationary trade can begin to organize its activities. At the same time, the installation of the object requires compliance with all the requirements that were indicated in the layout diagram and were noted in the auction protocol. After the document expires, the owner must restore the territory he occupied. This must be completed within 10 days. The entrepreneur must inform the consumer market committee about all actions on the rented site from installation to dismantling of the structure. Information about the duration of activities on the territory and the possibility of its early termination should be contained in the agreement for the placement of a non-stationary retail facility, as well as clauses on the extension of the document.

In what cases is the contract terminated early?

Termination through the exercise of the right to place an object can be accepted in several cases. For example, if the owner ceases trading activities. Also, termination of the contract may be associated with a decision of the judicial authorities, which exercise the functions of control and supervision. The local government body also has the right to act as the initiator of termination of the agreement. In particular, this may be due to the need to reconstruct local infrastructure. However, the procedure for placing non-stationary retail facilities initially provides for the conclusion of an agreement based on the requirements of the urban infrastructure arrangement scheme, so such work rarely becomes a factor in the cessation of business activity in the area allocated for this.

There may be other reasons for premature termination of the contract. Thus, violation by the owner of a retail facility of certain points in the document may well become a reason for its early termination. This could be the transfer of rights to operate the area to third parties, the implementation of other activities in relation to the declared one, etc. Then, within 5 days, all non-stationary retail facilities must be removed from the territory. The resolution also prescribes that the decision on early termination of the contract in the event of violations by the owner of the retail facility must be made by the auction organizer.

Conclusion

The location of sales objects in the city has great value. On the one hand, small retail sales points make it possible to ensure the supply of the local population with necessary goods, but on the other hand, they undoubtedly change the external But not only these aspects guide the developers of infrastructure diagrams on which the places of sale of goods are marked. As a rule, the provision of non-stationary retail facilities is carried out with an eye to future architectural development. Making adjustments to the urban development plan, by the way, may become grounds for early termination of the contract. The change in the appearance of the city as a result of the placement of retail outlets is also taken into account. The fact is that non-stationary objects are not always different aesthetic appeal, which also becomes a factor in the decision to place a particular tent, kiosk or group of seasonal pavilions.

NTO: “suspended” entrepreneurship (Semenova E.)

Article posted date: 01/26/2015

IN lately Cases of arbitrary revision of NTO placement schemes, non-inclusion in the placement schemes or exclusion of already functioning facilities from them have become widespread, which leads to administrative reduction and even termination of business by a number of economic entities. What should an NTO owner do?

Non-stationary retail facility

The concept of a non-stationary retail facility is disclosed in subparagraph. 6 tbsp. 2 of the Federal Law of December 28, 2009 N 381-FZ “On the Fundamentals of State Regulation of Trade Activities in the Russian Federation” and clause 16 of the National Standard of the Russian Federation “Trade. Terms and Definitions”, approved. By Order of Rosstandart dated August 28, 2013 N 582-Art.
A non-stationary retail facility (NTO) is a temporary structure or temporary structure that is not firmly connected to the land plot, regardless of the presence or absence of a connection (technological connection) to utility networks, including a mobile structure.
The rules for including NTOs located on land plots, in buildings, structures and structures owned by the state in the layout of non-stationary retail facilities are approved by Decree of the Government of the Russian Federation of September 29, 2010 N 772.
Based on clause 2 of the above Rules, the inclusion of objects in the placement scheme is carried out by a local government body in agreement with the executive body of the Russian Federation or a subject of the Federation exercising the powers of the property owner.
Due to numerous requests from business associations, legal entities and individual entrepreneurs operating in the field of non-stationary (small retail) trade, the Ministry of Industry and Trade of the Russian Federation prepared an information letter dated January 27, 2014 N EB-820/08.
The Ministry of Industry and Trade of Russia considers it advisable, when forming and changing the layout of non-stationary trading facilities, not to allow a reduction in the number of legally operating facilities, to increase the number of facilities selling socially significant goods, and to ensure the stability of the rights of business entities engaged in trading activities.
However, recommendations are recommendations, and judicial practice is replete with examples when courts refuse to satisfy demands to invalidate the refusal of a local government body to include an object in the layout of non-stationary retail facilities (Resolutions of the Federal Antimonopoly Service VVO dated March 19, 2014 in case No. A28-8163/2013, FAS VSO dated March 27, 2014 in case No. A33-7495/2013, FAS UO dated July 24, 2014 N F09-3483/14, AS SZO dated October 30, 2014 in case No. A42-816/2014, FAS MO dated July 24, 2013 in case N A40-41105/12-84-402, etc.).
The reasons for the refusal are justified by the fact that the expiration of the period for placing a temporary structure entailed the termination of the company’s right to place temporary structures; there are no grounds for including the location of objects in the scheme; no land was provided for the pavilion.

Contract-trap

The procedure for placing NTOs on land plots is not established by federal legislation.
The insufficiency of legal regulation of non-stationary trade at the federal level allows the subjects of the Federation to adopt regulations establishing the conditions and procedure for the placement of buildings that are movable things.
For example, Decree of the Moscow Government dated 02/03/2011 N 26-PP approved the Procedure for organizing an auction for the right to conclude an agreement for the placement of scientific and technical equipment and to conclude an agreement for its placement.
According to entrepreneurs, Resolution No. 26-PP, obliging them to participate in auctions, introduces restrictions on engaging in trading activities using non-stationary retail facilities. However, the possibility of concluding an agreement for the placement of NTOs without an auction also does not guarantee entrepreneurs the protection of their rights.
The practice of implementing Resolution No. 26-PP develops in such a way that land legal relations are actually re-registered.
Upon expiration of the land lease agreement, the owner of the trade pavilion or catering in the place established by the NTO placement scheme, has the right to draw up an agreement for the placement of NTO.
An agreement for the placement of a non-stationary retail facility is not regulated by the provisions of either the Civil Code of the Russian Federation or the Land Code of the Russian Federation.
Resolution No. 26-PP does not provide for the extension of the agreement for the placement of NTOs or the execution of a new agreement.
By signing an agreement for the placement of NTO, the entrepreneur agrees to its terms, according to which, upon termination of the agreement, he ensures the dismantling and removal of the object from its location.

Demolition is possible without trial

Within the competence of the subject of the Federation, the Government of Moscow, by Resolution No. 614-PP dated November 2, 2012, approved the Regulations on the interaction of executive authorities in organizing work to clear land plots from objects illegally placed on them that are not capital construction projects.
According to clause 3.2 of Appendix 1 to Resolution N 614-PP, documents confirming the legality of the placement of non-capital facilities are:
- a valid agreement for the placement of a non-stationary object or an object that is not a capital construction project;
- a valid lease or gratuitous use agreement, a certificate of the right to permanent (indefinite) use of a land plot for the placement of a non-capital facility.
In the absence of these documents, in accordance with clause 2.1 of the above-mentioned Resolution N 614-PP, the prefecture of the administrative district ensures the release of land plots from illegally located objects.
Consideration of issues regarding the release of land plots from objects located on them that are not capital construction projects is carried out by permanent district commissions to suppress unauthorized construction.
Based on the results of the consideration, the district commission makes a decision:
- on dismantling and (or) moving illegally placed objects;
- sending a statement of claim to the court for the release of a land plot from objects illegally placed on it in the event that the objects illegally placed on the land plot were registered as real estate objects and the copyright holder has certificates of state registration property rights.
Despite the fact that by virtue of Art. 35 of the Constitution of the Russian Federation, no one can be deprived of their property except by a court decision; the dismantling of a non-stationary facility in an administrative manner is carried out, moreover, supported by the judiciary.
In a number of judicial acts, arbitrators come to the conclusion that the bodies exercising public powers acted within the framework of the powers granted by the Moscow Government and in pursuance of the regulations binding on them (Resolutions of the Federal Antimonopoly Service of the Moscow Region dated May 21, 2014 N F05-10243/13, dated June 20, 2014 N F05-5114/2014, Ninth Arbitration Court of Appeal dated 05.11.2014 N 09AP-36864/2014).
The decision of the FAS Moscow Region in case No. A40-171632/12-139-1672 overturned the decision of the Moscow Arbitration Court and the Resolution of the Ninth Arbitration Court of Appeal, and the case was sent for a new trial. The cassation instance pointed out that when considering the case, the court must evaluate the actions of the government agency to seize property for compliance with the law.
When re-examining the case, the court refused to satisfy the applicant's demands to declare illegal the actions of the prefecture, expressed in the cessation of operation and removal of trade objects. The court proceeded from the fact that the layout of the NTO on the territory of the Eastern Administrative District does not provide for the placement of the applicant’s retail facility. The prefecture notified the applicant in writing that non-stationary facilities without an agreement for the placement of NTOs are subject to dismantling in the manner approved by Moscow Government Decree N 614-PP. Guided by the norms of this Resolution, the district commission decided to instruct the district government to cease the activities of retail premises and remove the facility. By Resolution of the Ninth Arbitration Court of Appeal dated March 4, 2014 N 09AP-1888/2014, the decision of the arbitration court was left unchanged.
Appealing decisions of the district commission to suppress unauthorized construction, as a rule, also does not lead to a positive result.
For example, the decision of the Moscow Arbitration Court dated December 17, 2013 in case No. A40-127178/2013 states that the decision of the district commission in itself does not entail negative consequences for the company, since it does not contain any administrative instructions obligatory for the applicant, does not impose any obligations on him and does not interfere with the implementation of entrepreneurial and other economic activity. The contested part of the commission's decision consists only of instructions to the municipal authorities of Moscow.
Things are not going well in other regions of Russia either.
Demolition (dismantling) is carried out, as a rule, in cases where objects are erected on land plots leased for the operation of a temporary trade pavilion without the right to erect capital construction objects on the land plot (Resolution of the Federal Antimonopoly Service of the Federal Antimonopoly Service of April 24, 2014 N F03-1494/2014 , FAS VSO dated March 27, 2014 in case No. A69-1025/2013, FAS ZSO dated June 20, 2014 in case No. A67-5865/2013, FAS BVO dated November 2, 2012 N A43-32887/2011).

Registration won't help

By virtue of current legislation, ownership of a retail facility is registered only if the facility is classified as real estate.
A shopping pavilion consisting of prefabricated structures does not meet the criteria of a real estate property established by legal acts, therefore there are no grounds for state registration of it as such.
Sometimes entrepreneurs manage to register ownership of non-stationary retail facilities. However, such registration may be challenged in court and cancelled.
Thus, the Ministry of State Property Management Volgograd region filed a claim with the arbitration court to have the right of ownership to the shopping pavilion declared absent. By the court decision dated December 2, 2013, upheld by the Resolution of the Twelfth Arbitration Court of Appeal dated March 31, 2014, the claims were satisfied.
By the decision of the Arbitration Court of the Volga District of August 26, 2014 in case No. A12-19707/2013, the adopted judicial acts were left unchanged for the following reasons.
According to Art. 130 of the Civil Code of the Russian Federation, immovable things include land plots and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible.
In accordance with Art. 1 of the Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it,” real estate, the right to which is subject to state registration, are those objects that are associated with land.
Thus, the main distinguishing feature of real estate objects, the state registration of rights to which is recognized as mandatory, is the inextricable connection with the land and the impossibility of moving objects without causing disproportionate damage to their purpose.
According to the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in Resolution No. 3809/12 of September 4, 2012, the mere fact of registering an object as real estate in isolation from its physical characteristics in the Unified State Register does not mean that the object is an immovable thing and is not an obstacle to filing a claim to declare the right to the object absent.
Having assessed the evidence presented, the courts came to the conclusion that the pavilion was built from collapsible structures and can be moved from the land plot without disproportionate damage, there is no strong connection between the pavilion and the land, it belongs to movable property, the ownership of which is not subject to state registration .
The court panel did not take into account the applicant’s reference to the fact that the property had a cadastral passport to confirm the correct classification of the pavilion as real estate, since the classification of a particular property as movable or immovable in this case is a legal assessment and falls within the prerogative of the court.

Owner in fact

Entrepreneurs often make transactions in relation to retail properties, that is, sell them, rent them out, etc. However, such agreements are not legally registered anywhere. Naturally, questions arise: how can the owner of the pavilion prove that this object belongs to him, and is there a risk of resale of the object to a third party?
In such cases, the potential owner of a non-stationary facility can only carefully check all available documents: a lease agreement for a land plot or an agreement for the placement of a trade pavilion, contracts for electricity and water supply, the manufacture (purchase) of facility structures, technical inventory documents, etc.
As we can see, the legal framework in the area of organizing the activities of non-stationary retail facilities is quite imperfect, which often leads to violations of the rights of entrepreneurs.
Due to the insufficiency of legal regulation at the federal level of the status of non-stationary retail facilities and their placement, there is a need for urgent amendments to Russian legislation.

Placement of non-stationary retail facilities
Small business owners often use non-stationary retail facilities. Such retail facilities mean mobile retail structures that are temporarily located on a specific plot of land without being attached to it. Typically they are not connected to utility networks. AT first glance, it may seem that the design and placement of such an object is not difficult. But in practice, everything turns out to be much more difficult, since there are now strict requirements for obtaining permission for this type of trade. It is especially difficult to obtain permission to place an object in a building or on a plot of land owned by the state. A non-stationary retail facility must be included in the layout plan. It is developed by the city authorities for a certain period of time, and after its expiration is subject to re-examination.
The placement of non-stationary retail facilities is carried out in accordance with the Federal Law of December 28, 2009 No. 381 - Federal Law “On the Fundamentals of Regulation of Trade Activities in the Russian Federation.” If an NTO is planned to be located on a land plot owned by a private individual, then the procedure for its placement and operation is agreed upon with the owner of the stationary facility on whose territory the NTO’s activities are planned.
In the case of placing a non-stationary retail facility on land plots, in premises that are municipal or state owned, the process must be carried out in accordance with the placement scheme, in order to most rationally provide residents with retail space and sustainable development of the city.
Problems for a businessman arise precisely in the second case, so he will have to go through two stages of registering an NTO.
The first stage of registration is that the NTO is included in the placement scheme. Local authorities are responsible for its creation. We list what documents are required for inclusion in this scheme:
- for legal entities – charter, certificate of state registration
- for individual entrepreneurs - a certificate of state registration of the person as an individual entrepreneur
- certificate of registration with the tax office, as well as a certificate of issuance of a TIN
- a project describing a non-stationary retail facility
If your NTO is included in the location scheme, then the second stage is obtaining permits, which specify the service life of the facility, as well as other individual conditions.
The main question that arises in the process of obtaining permission is who should raise the issue of including NTOs in the placement scheme. The reason for this is the lack of an answer to this question in the legislation, as well as the lack of judicial precedents. City authorities claim that the inclusion of NTOs in the placement scheme is only their prerogative and the owners have nothing to do with this issue. This runs counter to government policy to promote small and medium-sized businesses, as it does not provide favorable conditions for their activities and does not contribute to the sale of goods and services. That is, the state takes care of small and medium-sized businesses without taking into account their opinions.
Another problem for the owner of an NTO is the lack of confidence in the future, or more precisely, in the fact that after revising the placement scheme, he will be able to continue to carry out his activities in the same place, since they do not have the right of priority placement for a new term.
The legislation does not oblige the authorities to include existing NTOs in the schemes, but only guarantees them the right to conduct activities until the expiration of the period for providing land for their location.
If you do manage to place a retail outlet, then it must meet certain requirements and standards. Firstly, all goods and services sold must be of appropriate quality.
At a small retail trade facility there must be a sign with the company name, location (legal address), and work schedule.
NTOs must meet fire, sanitary, environmental and other standards. Also, the owner of the NTO must provide appropriate working conditions for employees.
If the activities of the NTO are completed upon expiration of the permit for the placement of the NTO, the dismantling and removal of equipment is carried out by the entrepreneur at his expense.
To summarize, we can say that the authorities should establish a clear procedure for obtaining permission to locate a retail outlet and guarantee the entrepreneur the fact of obtaining permission after the current one expires.