CERTIFICATION OF CONSTRUCTION PRODUCTS AND RECONSTRUCTION UNDER THE SIMPLIFIED PROCEDURE

How to rebuild objects during martial law? Which problems do involve large scale restoration of real estate? And how the construction products will be purchased?

A notice about damage

ADER HABER together with European Business Association held an online-meeting, dedicated to these up-to-date issues. The speaker, attorney and Partner of ADER HABER Oleksandra Fedotova has told about simplified procedures in construction, also paying attention to the points of Ukraine rebuilding plan.

This plan includes 850 national rebuilding programs, most of which to be implemented in nearest future.  However, as the speaker has pointed out, there are number of problems that prevent a plan from implementation. Although a lack of financial resources remain the biggest problem, the lack of manpower and construction products, a loss of logistical delivery routes, appear to be important obstacles on the way.

Oleksandra Fedotova has mentioned that there is a possibility to submit documents for obtaining a compensation for residential real estate. Both legal entities and private individuals can submit information about damaged or destroyed estate. Informational notice can be submitted:

• by means of «Diia» portal;
• by mobile application of «Diia» portal – in case a person has an individual tax code;
• by submitting a notice to the administrator of the administrative service centre or a notary.

The notice can be submitted irrespectively of place of residence (for private individuals) or place of registration (for legal entities).

The order of demolition has been changed also.

According to the new procedure a decision on demolition is made by executive committee (or in cases, provided by the law – by local state, civil-military or military administrations) on the basis of the report based on the results of examination of the object. At the same time, demolition does not require obtaining documents, that are necessary to perform construction works and commissioning. Documentation on demolition is not a subject to state expertise.

General and current renovation

In case priority works of restoration of damaged objects are conducted within current renovation, the scope of works is defined based on examination report, made by executive committee or military administration based on the results of commission examination of the object. The scope of work can be presented in a form of a defective act.

Repair cost has to be defined by reasonable labor, material, technical resources and their cost, calculated respective to the current level of prices.

The provision of the Guidelines for defining the cost of construction (ENU “Guidelines for defining the cost of construction”, approved by the Order of the Ministry for Communities and Territories Development of Ukraine as of 1.11.2021 №281) can be used to define cost of works by the decision of construction customer. A form of defective act is provided by Annex 29 to the Guidelines.

Developing construction projects for general renovation of objects damaged because of hostilities during martial law is allowed in a form of a part of defective act, in which are defined:

• Scope of work;
• Explanatory note, in which conditions of execution are described;
• Estimate documentation, which is drafted based on examination results.

The principle of tacit consent

The speaker has pointed out that on 12.07.2022 the Order of Cabinet of Ministers as of 24.06.2022 №722 “On some issues of conducting permission and registration procedures in construction during martial law” has come in force. According to this Order during martial law and within 1 year after it is suspended the following changes are introduced.

Construction of individual residential houses, garden, country houses not higher than 2 floors and with the area up to 500 sq.m, outbuildings, garages, elements of improvement and gardening of the land plot can be conducted in accordance with urban planning documentation at local level by the decision of construction customer (and in case there are no approved urban planning documentation on local level – in according to the purpose of the land plot and restrictions of the use defined by the Law of Ukraine “On Cultural Heritage Protection”) without obtaining building passport.

Construction is conducted based on a notice which is submitted according to the scheme of intentions of building of the site, on which are indicated:

• location of buildings on the land plot;
• distances to the borders of neighbouring plots and objects located on them;
• engineering networks and structures;
• facades and floor plans of objects with an indication of dimensions, a list of engineering support systems, including autonomous ones, which are planned for use, etc.

Plan of the land plot is drafted by the architect or design engineer. This plan is uploaded to Unified State Electronic System in the Construction Sector.

In case a decision on providing urban-planning conditions and restrictions is not made by a respective authority (or a respective authority has not obtained a decision on refusal of issuing urban-planning conditions and restrictions) within 10 working days after a respective application is registered, the principle of tacit consent is applied.

The construction customer shall apply for approval of project, scientifically-project documentation or permission to the cultural heritage protection authority by means of electronic system. In case the reasonable refusal is not obtained within 30 days, the principle of tacit consent is also applied.

Fedotova called such tools for electronic submission of documents a good incentive for development of Ukraine and noted that foreign colleagues are surprised by this practice. “So we will probably teach Europe how to simplify procedures”, — added the speaker.

Fedotova also spoke about the changes provided by the Law of Ukraine «On Amendments to Certain Laws of Ukraine Regarding Priority Measures to Reform the Sphere of Urban Planning» as of 12.05.2022 №2254-ІХ and a number of changes under the reform provided by the Law No. 711-IX, which were postponed until January 1, 2025.

Too early to relax

Attorney, Senior Associate of Real Estate and Land Law Practice of ADER HABER Iaroslava Lagan told about first steps of the Government made to simplify import of construction products and confirmation of the quality of such products for domestic producers.

As the speaker says, at the beginning of March media shared news on simplifying of import of construction products. The changes are aimed at creation of favourable conditions for delivery of construction materials for the restoration of damaged objects, as well as the construction of fortifications, etc.

What were these steps? It was primarily about changes regarding the confirmation of the quality of imported products, namely the changes to the Technical regulation for construction products, and the simplification of conformity assessment procedures. Now construction materials can be imported from the EU member states without a declaration or a certificate of conformity and an established trefoil sign familiar to us.

Instead, during martial law and for 90 days after it is suspended, the importer can use the “Declaration of Performance” and its copy with a translation into Ukrainian.

There are two news for domestic producers of building products – the good and the bad one. On the one hand, the list of assessment of conformity is changed. And if it is impossible to carry out an assessment according to these procedures, during the period of martial law and for another 90 days after it is suspended, the producer can use others, having previously agreed this with the Ministry for Communities and Territories Development of Ukraine. Such procedures should be documented by the producer.

On the other hand, the Technical regulation for construction products includes a list of criteria, which define a choice of conformity assessment procedure. Therefore complicated products, important for ensuring compliance of a building with requirements, will not avoid certification. This will complicate competition of domestic products with imported ones.

Besides that, it should be taken into account that since 1.07.2022 the payment of VAT for goods imported into the customs territory of Ukraine is again obligatory for payers of the single tax (groups I, II, III), as well as payment of an import duty.

In general, the speakers agreed that producers are facing new challenges. O. Fedotova noted that it is important to be realists, because the certification procedure on Ukraine’s way the EU will only get more complicated. I. Lagan added: “Already from January 1, 2023, producers and importers will file new quality declarations, and this will not be liberalization in a sense that we are used to think of it”.