How did Law No. 32035 originate?

In the Statement of Reasons of Bill No. 1173/2021-CR, which gave rise to this Law, it is stated that Article 49 of the LOM did not specify the competent court to hear requests for demolitions of private property. In practice, they were processed before judges specialized in civil matters of the Superior Court of Lima, whose high workload prevents them from acting promptly. The original Bill proposed to give jurisdiction to the justice of the peace, after the request of the respective coercive executor with the annotation of the demolition order in the entry of the affected property.

What is the scope of Law No. 32035 and does it only refer to demolitions?

The Law is now more drastic. It removes all reference to demolitions from Article 49 and eliminates it from the list of sanctions that can be applied by the municipal authority, also eliminating stop-work orders from the catalog of municipal sanctions (Article 46), with the purpose of categorizing them as corrective measures. To this end, it incorporates to the LOM Articles 52-A and 52-B on corrective measures and demolition orders, respectively.

Will municipalities be able to directly enforce demolition and stop-work orders?

Yes. From now on, and even for demolition proceedings in progress, municipalities may impose demolition and stop-work orders no longer as sanctions (i.e., as a consequence of an administrative sanctioning proceeding — PAS) but as corrective measures, which may be issued before a PAS, as a consequence of an inspection. This will be possible to the extent that the nature of a corrective measure is "to revert, reinstate or repair the direct effects derived from an infraction, provided that its regularization or correction is not possible."

What is the procedure for a municipality to issue demolition and stop-work orders?

The incorporated Article 52-A specifies the procedure seeking to somehow regulate (and hopefully avoid) the unbridled use of these measures. From the notification of the corrective measure (demolition or work stoppage), the owner has 30 working days to regularize or correct the observations, which will be evaluated by the respective municipality within the following 15 working days. If the municipal authority does not formulate a duly motivated observation within the indicated term, the observations will be lifted. On the contrary, if the observations are not regularized or corrected within the established term, the municipal authority will execute the corrective measure, according to the provisions of Law No. 26979, Law of Coercive Execution Procedure (LPEC).

So, does demolition no longer require a court order?

In summary, the demolition of works may henceforth be executed directly by coercive proceedings, except in cases of forcible entry or similar, since Article 52-B has specified that, in these cases, the executor does require prior court authorization.

In what cases is a demolition order appropriate?

Article 52-B also specifies that demolition (both on public roads and private property) is ordered when there is an imminent risk or irremediable irregularity as provided by Law No. 28976, Framework Law on Operating License, which is defined as a: Potential contingency or proximity of damage of natural origin or induced by human action, occurring immediately, in a specific place and which could cause death, serious physical injury or serious damage to the life, health, property or safety of one or more persons.

What can the owners or holders of real estate projects do to challenge a demolition or stop-work order?

The amended Article 23 of the LPEC has not changed the judicial review of the coercive execution procedure substantially. It still states that the mere filing of the judicial review claim automatically suspends the processing of the coercive execution procedure in the cases of administrative acts containing obligations to give or to do until the judge specialized in administrative litigation or the jurisdictional body acting in its stead passes sentence.

In this sense, from now on, once the corrective measure of demolition or work stoppage has been formally imposed, the owner or holder of the real estate project will have to initiate a judicial review action to suspend the order before the respective coercive executor, incurring costs that did not exist before.

This new "express" form of demolition will undoubtedly increase the arbitrariness found in countless municipalities, which is why it is striking that, on the one hand, Law No. 31914 first sought to limit the grounds for closure in an attempt to curb abuses, but now the Law under consideration would seem to be seeking the opposite.

We hope this information is of relevance to you and your company. Please do not hesitate to contact us if you require any advice in this regard.

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