Documents for a non-stationary retail facility. Obtaining permission and placing non-stationary objects for trade

The state’s fight against the illegal activities of entrepreneurs who own non-stationary retail establishments has led to the fact that a whole layer of small businesses is now being destroyed. But you can’t put one label on everyone - not everyone works in unsanitary conditions.

Respectable entrepreneurs who are engaged trade through non-stationary objects, a lot more. Many of the victims have been investing in the development of their business for decades, taking care of the territory, and assisting government authorities in beautifying areas. And now they are being deprived of everything! In my article I will talk about what problems owners of kiosks, stalls and other non-stationary objects face and will face in the future.

Temporary structures

The rules for the placement of non-stationary trade facilities throughout our country are established by the Federal Law of the Russian Federation dated December 28, 2009 No. 381 “On the Fundamentals of State Regulation trading activities V Russian Federation" It provides a clear definition of which objects are non-stationary. These are temporary structures and structures that are not firmly connected to the land plot, regardless of whether they are connected or not connected to utility networks.

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Non-stationary retail facilities are divided into:

temporary structures: pavilions, kiosks;
temporary structures: summer cafes, tents, trays, containers;
mobile structures: auto shops, auto shops, trailers.

Source: information kindly provided by Alexandra Fomicheva, lawyer private practice, Saint Petersburg

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Private

The problems of entrepreneurs are primarily related to the adoption of Moscow government decree No. 26-PP dated February 3, 2011 “On the placement of non-stationary retail facilities located in Moscow on land plots, in buildings, structures and structures owned by the state.” According to this document, it is now possible to install a non-stationary retail facility only by winning an auction (for more information about the resolution and rules for placing non-stationary retail facilities, see “Placement Rules” and “Inclusion Scheme”). This is the only way an entrepreneur can buy an object, then install it, connect it to communications, obtain all permits and begin work.

Initially, these auctions were positioned as completely transparent, accessible to everyone. Even before the start of their holding, information about where and when which objects would be auctioned off, and based on the results, who won the auction and who entered into an agreement and on what terms, should have been publicly available.
In life, everything turned out differently: it is very difficult to find information, and the lists of winners are carefully hidden, although they should be published immediately after the event. Information about the amounts of the final contracts is also closed. It is absolutely natural that this is what interests both entrepreneurs who want to try to fight for their positions in the future, and public organizations.

Posting rules

The main document regulating this moment rules for the placement of non-stationary retail facilities - Moscow Government Decree No. 26-PP dated 02/03/2011 “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.” Its essence is as follows.

In accordance with the resolution, a scheme for the placement of non-stationary trade places is being developed.
Then the executive authorities and the prefecture must post information on their websites and advertise open auctions at which the right to locate a non-stationary retail facility can be purchased.
Anyone interested can apply.
The winner receives an asphalt site landscaped by the prefecture with the ability to connect to power grids.
The winner must pay the amount declared at the auction in full within three subsequent years.
With the release of 26-PP, all objects established according to previous laws and regulations were declared illegal.
Existing land contracts were unilaterally terminated and all previous permits were annulled. That is, all pavilions installed earlier in legally, it was decided to demolish it. Their owners now have to go to court and demand the return of their property.
For some time now, a clause has appeared in 26-PP, stating that all objects located before its adoption and the development of new placement schemes and having valid land contracts have the right to remain in their original location. But this rule was recently introduced into the law and has not yet come into force, and thousands of objects have already been demolished or taken to impound lots.

Source: information kindly provided by Tatyana Rodicheva, head of the commission for small retail trade, Moscow branch of Opora Rossii, Moscow

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Connection diagram

According to Federal Law No. 381, the basic rules for the placement of non-stationary retail facilities are as follows:

the placement of non-stationary retail facilities is carried out in accordance with the layout of non-stationary retail facilities, taking into account the need to ensure sustainable development of the territories and achieve the standards for the minimum provision of the population with the area of retail facilities;
the procedure for inclusion in the placement scheme is established by the government of the Russian Federation;
the placement scheme is developed and approved by the authority local government(it is worth noting that in the placement scheme at least 60% of the objects must be given to small and medium-sized businesses);
the layout scheme and changes made to it must be published and also posted on the official websites of the executive body of the constituent entity of the Russian Federation and local government on the Internet information and telecommunications network.

Source: information kindly provided by Alexandra Fomicheva, lawyer in private practice, St. Petersburg

Trading through non-stationary objects is not according to the rules

At the moment, several thousand kiosks, pavilions and other non-stationary objects have been auctioned. The auction took place as follows.

Entrepreneurs were offered to pay the remaining participants so that they would give up the fight and make only a few nominal bets. If they agreed, the raffled places left the auction for only 10–15 thousand rubles.
The owners of these objects were about a dozen companies registered in offshore zones. All these companies are major players on the real estate market. This is a blatant violation of antitrust laws!
For others wishing to purchase a non-stationary object, the final bids exceeded the amount of 1 million rubles. One of our entrepreneurs participated in the auction and “left the race” when the amount reached 1.7 million rubles. And besides this, another 500–700 thousand rubles. must be spent on constructing the facility and obtaining all permits. Thus, in order to open a tent or kiosk, an entrepreneur needs to invest 3–3.5 million rubles in the business. This is an absolutely unaffordable amount for small retail!

Forced sublease

Kiosks purchased at auction by large firms are then subleased. And entrepreneurs, who have always been direct tenants, are forced to enter into contracts with third parties, take additional risks and significantly overpay.

Currently, about 95% of properties are subleased. The auctions have been suspended because they turned out to be even more corrupt than the competitions that were organized before the release of 26-PP.

The Metropolitan Department of Trade and Services proposes to amend No. 26-PP in order to make it easier to obtain permission to place non-stationary object. In particular, the authorities propose that self-regulatory public organizations, which could monitor the activities of entrepreneurs, be involved in the placement of non-stationary objects.

Cleaning by law

It is unknown how the epic with the organization of auctions will end. Meanwhile, as recently as November 2 of this year, Moscow government decree 614-PP was signed “On approval of the regulations on interaction between executive authorities of the city of Moscow in organizing work to liberate land plots from objects illegally placed on them that are not objects capital construction, including dismantling and (or) moving such objects.” According to this document, 2,593 non-stationary objects will be demolished.

And these are not the illegal objects that the mayor spoke about! As a result, about 20 thousand people in the capital will be unemployed. Also, we must not forget about the suppliers who provided the kiosks with products. Thus, small businesses are being destroyed in several directions at once.

Resolution 614-PP gives government representatives the powers of bailiffs. Now the administration can issue notices to move the pavilion in a short time to a penalty parking lot, which will cost the entrepreneur 3,000 rubles. per day per place. It is understood that the object will remain there until the final trial.

This completely contradicts several articles of the constitution, including the Presidential Order of 1993 “On freedom of trade on the territory of the Russian Federation,” as well as federal legislation, in particular the law of December 28, 2009 No. 381-FZ.

How to defend your rights

The current situation also has a corruption component, since instead of these shops, vending machines will appear at bus stops in the near future. And of course, no one is offering entrepreneurs who previously engaged in trading activities at bus stops to purchase machines and reorient their business. They are not given alternatives.

Our organization has prepared and sent an appeal to the President and Mayor of Moscow, in which we draw their attention to the state of small retail trade (you can read the text of the letter on our website http://drprf.ru). Entrepreneurs are ready to fulfill all the requirements of the mayor's office:

remove pavilions from the red zone;
update them;
remove alcohol and cigarettes from the range.

They only want to do their own thing. A competent solution to the problem requires an individual approach, and not mass demolition of objects, which, importantly, are privately owned.

But so far all our attempts to convey to the authorities information about the illegality of the current situation only end in accusations against us. We are not against obeying the law. But we want the laws to be fairly implemented and give people the opportunity to work.

In some cities of the Lipetsk and Irkutsk regions, entrepreneurs obtained permission to remain in their previous places. This shows that it is possible and necessary to fight. If entrepreneurs unite now, they will have more opportunities to defend their rights.

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Expert opinion

Ekaterina Gunbina,

owner of IP Gunbina, Moscow

In 2003, my husband and I decided to start a new business. We purchased a pavilion and opened a pet store. I learned the registration rules, received all the permits, and registered with the tax authorities. This is how we began to develop our business. Neither my husband nor I have a specialized education, so we learned everything from our own mistakes, some were difficult, and we gradually sorted out all the issues. The business developed, and in 2004 they opened a second store.

In a new status

Since 2003, my pavilions legally stood in their places: there was a land lease agreement and an agreement with Mosenergosbyt. Nowadays we are called “illegal stall traders,” but we only recently became such. The mayor's large-scale campaign to demolish shopping pavilions is explained by the fact that we are located in the road network (the so-called red lines) and are interfering with traffic flow. But our observations have shown that the new pavilions are safely located in this very UDS, and for some reason they do not bother anyone! I would like to note that the installation of stopping trading modules was at one time initiated by the Moscow government.

With the release of 26-PP, according to which all non-stationary retail facilities must be located according to the scheme developed by the Department of Trade, the land contract with us was unilaterally terminated. More than 7 thousand retail establishments in Moscow found themselves in the same situation. In some regions, local authorities solved this problem in their own way: they adopted a new resolution taking into account previous laws. Those who had contracts and permits were offered compensatory places. But the Moscow authorities did not condescend to do this. We are all illegal! We are all required to remove the pavilions by January 1st. This is a large-scale demolition of business property without a court decision!

In addition to the pet store, I have a consumer services pavilion. This is a socially significant object, and the government should support this direction. I wrote a statement that I undertake to provide social benefits to certain groups of citizens, for example, free shoe repair for pensioners. But this will not bring profit to the council, so my proposal was ignored.

And one of the most outrageous decisions was the adoption of 614-PP, according to which heads of government and prefectures are given the opportunity to demolish objects without a decision of the arbitration court. Now they can dismantle my own pavilion at any time and transport it to a parking lot, for which I will have to pay additionally.

The scary thing is that corruption remains. In our places will be those who will pay the prefecture in circumvention of the law.

Court cases

It is said about the owners of non-stationary objects that they are in their places illegally and are also challenging the decisions of the city authorities. But will someone who conducts illegal business activities go to court? I went and will sue to the last. And the truth is on my side: I have all the documents, all the permits, I’ve paid my taxes honestly all these years.

I purchased the pavilion from the company under a sales contract. But I, as the owner, was not even brought to court! Bypassing me, the court decided to oblige the company for which the land contract was drawn up to demolish my pavilion. I convinced them that this was illegal, since only the owner, by a court decision, can demolish his property. She asked not for concessions, but for a legal decision. I understand what the government is guided by when it improves the city, and I am ready to replace the pavilion, move it away, but I do not want my business, in which I have invested so much effort and to which I have given several years of my life, to be taken away.

Nowadays there is a lot of talk about supporting small businesses, but in reality the situation is very unfavorable for entrepreneurs. I believe that what is happening now is the murder of the middle class. But most individual entrepreneurs work honestly and just want not to depend on anyone. But I am sure that we need to continue to fight for what we honestly earned. We hold pickets and write appeals. Many, unfortunately, despaired. And I understand them better than anyone, because in the same way I lost my business, which last years was a very important part of my life. I'm practically broke.

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Tatiana Rodicheva,

Head of the commission for small retail trade of the Moscow branch of “Opora Rossii”, Moscow

Each region issues its own legislative act on the placement of non-stationary retail facilities in accordance with federal laws dated December 28, 2009 No. 381-FZ “On the fundamentals of state regulation of trade activities in the Russian Federation”, dated September 29, 2010 No. 772 “On approval of the rules for the inclusion of non-stationary retail facilities located on land plots, in buildings, structures and structures owned by the state, into the layout of non-stationary retail facilities”, in connection with which the issued regulations Almost the same, further changes adopted in Moscow almost always affect the work of legislators throughout the country.

Main violations

Moscow Government Decree No. 26-PP dated 02/03/2011 “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” reflected the original intent of the legislators, including:

optimal placement of non-stationary retail facilities;
improving the architectural appearance of the city;
Creation favorable conditions to provide residents with public catering, trade and consumer services;
improving the culture of serving the population;
ensuring consumer rights protection;
improvement of sanitary conditions.

However, when forming placement schemes and conducting auctions, problems arose that require an early solution.

Most of the trading that took place at the end of 2011 revealed major irregularities.

Several companies emerged that won most of the auctions in the administrative districts of Moscow. Undoubtedly, this denies the likelihood of fair trading and leads to monopolization of the market, which is a violation of antitrust laws. The Federal Antimonopoly Service should look into this.

Irregularities during an auction are often indicated by the final price of the auction. Where the auction is held according to the rules, almost all entrepreneurs obtain the right to place a non-stationary facility at a market price. On average, if we talk about objects with the specialization “groceries”, “gastronomy”, “catering”, “vegetables and fruits”, “flowers” (these objects were sold at the maximum price), then they cost entrepreneurs an average of 1 -1.5 million rub. over a three-year period. The total amount varied depending on the location of the facility. But where auctions were held with violations, similar places left the auction at prices ranging from 5 to 50 thousand rubles. for three years of placing a retail facility, which, naturally, indicates a lack of equal opportunities for everyone and signs of collusion during auctions. As a result, the final price of payment under the contract for the placement of retail facilities was greatly reduced, and the city budget received less significant part funds planned for receipt.

The adoption of changes to the above-mentioned resolution gives some hope for improving the situation.

If previously open auctions were held as usual, now, according to the changes made, auctions must be held in in electronic format. When conducting electronic trading, it is easier to comply with the prescribed procedure and avoid violations, which makes the relationship between the seller and the buyer more transparent.

In addition, a significant change was made in September of this year: now proposals for changes to the placement scheme can be made by various associations, unions, non-profit organizations, deputies of municipal districts. This provides more opportunities to locate exactly the facilities that residents of specific areas need.

Secrets of interaction

The greatest objections are raised by the adoption of the Moscow government decree of November 2, 2012 No. 614-PP “On approval of the regulations on the interaction of executive authorities of the city of Moscow when organizing work to clear land plots from illegally placed objects on them that are not capital construction projects, including the implementation dismantling and (or) moving such objects.”

It gives prefectures the authority to dismantle and move non-stationary retail facilities without the consent of the owners in the absence of a court decision, which is illegal and contrary to constitutional norms, federal law and is confirmed by existing arbitration practice.

“No one can be deprived of his property except by a court decision” (Article 35 of the Constitution of the Russian Federation). By the mentioned resolution, Moscow executive authorities are empowered to dismantle and move property that does not belong to them, and without a court decision. However, they do not bear responsibility for the safety of property. Moreover, this resolution proposed that agreements for the placement of non-stationary objects include a condition according to which the executive authority carrying out the dismantling or relocation “is not responsible for the condition and safety of goods, equipment or other property located in the facility during its dismantling and ( or) moving...”

There is an annex to this resolution that lists more than two thousand objects that have already been declared illegal and are subject to dismantling. The list of them is very extensive, but does not contain any specific information about who and on what basis they were declared illegal.

Of course, this decision will be challenged, but while the trial lasts, thousands more objects belonging to small businesses may suffer.

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Expert opinion

Alexandra Fomicheva,

private practice lawyer, St. Petersburg

The rules for including non-stationary retail facilities in the placement scheme were developed by the Government of the Russian Federation (Resolution No. 772 dated September 29, 2010). But local governments can choose the form of inclusion of these objects in the location scheme. In previous years, inclusion was carried out on a competitive basis, but now it is based on the results of auctions.

It is important to note that the formation of a new layout and the introduction of any changes to it is not a basis for changing the locations of non-stationary retail facilities that were previously approved.

How to apply

An entrepreneur who wishes to locate a non-stationary retail facility must submit an application to the authorized local government body responsible for management in the field of trade, attaching the following documents (the list may vary depending on the requirements in each specific region):

charter, certificate of state registration - for legal entities;
certificate of state registration as an individual entrepreneur - for individual entrepreneurs;
certificates of absence of debt on accrued taxes, fees and other obligatory payments to budgets of any level for the past calendar year;
certificate of registration with the tax authority and assignment of a taxpayer identification number;
a list of workers involved in servicing in small retail trade, indicating education and qualifications, information on passing a medical examination.

Mandatory package of documents

The placement and layout of facilities, their technical equipment must meet sanitary, fire, environmental and other standards and regulations, conditions for the reception, storage and sale of goods, as well as ensure working conditions and personal hygiene rules for workers.

At each facility during the entire period of operation the following documents must be available and presented at the request of state control (supervision) bodies:

permission to place a non-stationary object of a small retail chain (for non-stationary objects of a small retail chain), which must be located in a place accessible to customers;
license for the right to carry out activities (in the case provided for by law);
documents indicating the source of receipt and confirming the quality and safety of products sold (agreements, supply contracts food products, certificates of conformity, declarations of conformity, quality certificates, veterinary certificates, sanitary and epidemiological conclusions);
contract for the supply of water and removal of wastewater (in the absence of a centralized water supply and centralized system sewerage), disinfection schedule for storage containers drinking water;
a certified copy of the document on registration of cash register equipment (except for cases where, in accordance with federal legislation, cash register equipment is not used);
text of the federal law “On the Protection of Consumer Rights”;
a book of reviews and suggestions, stitched, numbered and certified by the head of a legal entity or individual entrepreneur;
control log;
contracts for the removal of solid household waste, recycling bactericidal lamps, sanitization workwear.

Basic provisions of 381-FZ

The law, adopted in 2009, regulates the activities of the trade sector, establishes requirements for legal entities and individual entrepreneurs, and ensures that their interests are respected. The law delineates the competencies of government bodies of the Russian Federation and municipalities in managing the trade sector.

The Federal Law established basic definitions relating to trading activities. Currently, entrepreneurial activity for the acquisition and sale of trade items is called trading. The law also distinguishes between the categories of wholesale and retail trade (Article 2).

The law establishes the need to regulate the placement of shops and stalls within a city or region. The object of trade must be considered the structure or part thereof where it is installed specialized equipment for marketing goods and providing services to citizens. They are divided into stationary and non-stationary.

Installing and moving stationary items requires significant effort and does not go unnoticed. The initiation of non-stationary trade objects often occurs in circumvention of legal permission. These are the so-called spontaneous points. To avoid problems with the law, the right to locate a retail facility must be officially obtained.

Stationary retail facilities

According to 381-FZ, any structure that has a foundation on the ground and has a connection to the technical support network can be accepted as a stationary retail facility. It can be owned by the entrepreneur or used under a lease agreement signed for a minimum of 12 months.

Many people often ask what summer trading platforms or a cafe. According to 381-FZ, a stationary retail facility may have an attached part in the form summer playground, be connected to it by a unified communications network. In accordance with this, separate documents for such part are not drawn up. Sales of trade products are carried out under the main license without assessing whether they belong to non-stationary retail outlets.

Legal entities and private entrepreneurs, especially in the field of alcohol sales, must correctly understand whether a point is a stationary one. According to the Federal Law, a stationary retail facility must contain the following list of general features:

be an independent building or part of it;
its foundation must be firmly connected to the ground;
it cannot be moved without disrupting its integrity or purpose;
the point of sale has a technological connection to the utility network;
the building is registered in the Unified Register of Real Estate Rights;
the retail facility is not indicated in the municipal location plan;
the construction should not be temporary.

Stationary items have signs of real estate. They should be registered with Rosreestr.

How to place a non-stationary point

Before completing documentation, you should determine the type of object. An individual entrepreneur must understand what a non-stationary point of sale is and how it should be formalized.

Non-stationary retail facilities are used for retail trade. It is possible to move a kiosk or tent without compromising its integrity and causing a significant interruption in trading activities. These are temporary structures without attachment to the ground. The presence of attachment to engineering and technical support, general networks does not affect the definition of the type.

Federal Law No. 381 (Article 10) provides instructions on the procedure for placing non-stationary retail facilities.

Each municipal entity must develop its own plan for the distribution of retail outlets. The layout of non-stationary retail facilities takes into account the provision of residents with optimal trade load and the possibility of its improvement.
The government of the Russian Federation sets the rules for entering objects into the scheme.
Local governments develop and approve schemes.
A mandatory requirement for the scheme is that medium and small businesses must be able to locate their points of sale at the rate of 60% of total number non-stationary objects.
According to the principles of accessibility and publicity, the diagram should be posted on the website of the municipal authority or made available for public viewing on the Internet.
Revision of the scheme should not become a reason for approving changes in relation to already functioning non-stationary points.
When placing non-stationary points at a stationary object, the rules are set by the owner of the land plot or building. He is obliged to take into account the requirements specified by the legislative acts of the Russian Federation.

Depending on the individual conditions of each municipal entity, the placement procedure may have its own nuances.

Placement order

To obtain the right to locate a non-stationary retail facility, it is necessary to draw up an appropriate agreement. To do this, the citizen participates in the auction. After the auction, a representative of the city administration enters into an agreement with an individual entrepreneur or legal entity. The agreement applies to maximum term- 5 years. However, it should be remembered that the contract with a representative of portable trade is signed for 1 year.

The document states important conditions, among them is the need to pay a fee for establishing a non-stationary object. The fee for this type of trade facility does not cover its area. Payment is made from the moment the contract is signed. The funds are transferred to the city budget.

The procedure for obtaining placement rights provides for the provision of benefits to some representatives of small and medium-sized businesses. If a non-stationary retail facility has already been installed at the specified location before the auction is scheduled, its owner is exempt from the need to register for the auction. The remaining representatives are required to take part in the auction.

Before the end of the contract period, an application for extension of the term must be drawn up. It is important to do this at least 30 days before the end of the contract.

The application for participation is submitted on behalf of the individual entrepreneur or legal entity. Participation in the procedure by a legal representative is possible only with a power of attorney. In addition, applications are accepted on the municipality website or at the MFC. Sending by registered mail or by e-mail is also possible.

The application for the right of placement requires preliminary preparation documents. The list of papers may change in accordance with local regulations. General list includes:

statement from the participant or his representative;
a document confirming the fact of state registration of a legal entity or individual entrepreneur;
articles of association;
documentation on assignment of TIN and tax registration;
documentation of the absence of debts to the budget;
a list of hired workers and information about their medical examination.

Documents must be drawn up in accordance with the regulations established in the constituent entity of the Russian Federation.

A contract for the placement of a non-stationary retail facility requires careful preparation. If an applicant has some questions regarding the rules for submitting an application or participating in an auction, you should contact an experienced specialist. The best way to get information - write to a site expert. He will consider the current situation and present an individual solution to the problem.

NTO: “suspended” entrepreneurship (Semenova E.)

Article posted date: 01/26/2015

Recently, cases of arbitrary revision of NTO placement schemes, non-inclusion in the placement schemes or exclusion from them of already functioning objects 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 Federal Law dated 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 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 diagram; 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 constituent entities 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 or public catering pavilion in the place established by the scheme placement of NTO, has the right to draw up an agreement for the placement of NTO.
The 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 the specified documents in accordance with clause 2.1 of the above-mentioned Decree N 614-PP, the prefecture 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 if the objects illegally placed on the land plot were registered as real estate and the copyright holder has certificates of state registration of 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 object in an administrative manner is carried out, moreover, supported by the judiciary.
In a number of judicial acts, the 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 Federal Antimonopoly Service of the 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.
Not in the best possible way things are the same in other regions of Russia.
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 projects 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 of the Volgograd Region filed a claim with the arbitration court to declare the ownership of the trade pavilion absent. By the court decision dated December 2, 2013, left unchanged 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 thing hallmark real estate objects, state registration the rights to which are recognized as mandatory are 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 objects of 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.

The sphere of 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 of business activity is initially aimed at a wide class of stakeholders. 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 objects trading network can also be based on the principles of delivery and pedestal 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-permanent 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 objects are sometimes included in the group of non-stationary objects retail trade by hand, 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. In addition, general provisions for 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 in the prescribed manner especially for non-stationary structures.

The lease agreement usually lasts no 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 exploitation 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 a non-stationary trade object can begin organizing his 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, therefore similar works rarely become 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 importance. 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 distinguished by their aesthetic appeal, which also becomes a factor in the decision to place a particular tent, kiosk or group of seasonal pavilions.

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 the Russian Federation” (No. 381-FZ), which dates back to 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 overall design 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 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. IN this diagram information about the non-stationary structure is entered. 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).
Retail outlet project.

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.
Funds Department mass 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 a 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 is denied inclusion of an 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 the commercial outlet is supposed to be located does not meet the 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 activities officials, unreasonable 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 electronically, in person or remotely.

It must contain the 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 business for more than 15 years. 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. The documentation on 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.