concept of the property given in the Law «On state registration of rights to immovable property and transactions with it» (№ 122-FZ of 21.07.1997 years), and represents a uniquely identifiable object that has certain specific characteristics, a clear indicationthe location, includ
land owners is its transferee (not necessarily a new owner) as a result of the transition to it as property rights (resulting in foreclosure, privatization, purchase and sale) as well as obtaining the right of possession and use (permanent or fixed-term right to use - for rentthe right to life, inherited possession).Despite the fact that the property relations of possession, use and disposal of land governed by civil law (p. 3 of Art. 3 of the Land Code of the Russian Federation) regarding registration of the land itself should be guided by the requirements of the Land Code of the Russian Federation.
It should be borne in mind that many of the provisions of the Land Code of the Russian Federation have a reference to urban planning, land management and project documentation, such as on the norms of land (p. 3 of Art. 33 of the Land Code of the Russian Federation);about the conditions of acquisition of private property in the areas which are state-owned (Art. 36 of the Land Code of the Russian Federation).The very formation of the land as an individual separate objects is carried out in the process of cadastral works carried out taking into account the following circumstances:
- border areas and marginal rates are set in accordance with established rules of procedure of allotment of land for specific activities or, in accordance with the rules of land useand development, land management, urban planning and design documentation (compliance with the rules of urban development activity is crucial for sites in urban areas).
- decision to approve the project boundaries adopted by the executive body of state authority or local self-government under Art.29 of the Land Code of the Russian Federation, within two weeks from the date of submission of the project land boundaries;
- project boundaries is developed taking into account the order of use of land settlements, in accordance with the zoning of their territory and is determined by the rules of land use and development regulations approved by local government.
should be noted that in accordance with clause. N. 7 and 8 of Art.36 of the Land Code of the Russian border and the size of the land uchastkaopredelyayutsya with the actually used area of land in accordance with the requirements of the land and urban planning legislation.The boundaries are established with the red lines, the boundaries of the adjacent land, the natural boundaries of the land.Area and contour plots is determined to generate plots with real property and necessary for their use.Town planning requirements for the use of land in urban and rural settlements established by the Urban Planning Code.
To form the land borders of the project on the basis of established boundaries of the land in the area, and ensured the production of cadastral plan of the site.Let's try to sum up the interim results - preparation of technical documentation on land as the property can be considered complete the following documents:
- available to appropriate authorities for approval of the project land boundaries,
- definition of functional purpose and definition of permitted use;
- cadastral plan of the land.
now discuss issues that directly depend on us - the parties to the transaction.
Civil Code for transactions with real estate is subject to a written form.Notarization of the transaction with the land required in the individual expressly provided by law (such as a will), or by the parties to the transaction.Deviation from the statutory form shall entail the invalidity of the transaction from the time of its conclusion - nullity (Article 162, item 1 Article 166, Article 168, st.550, st.609 Civil Code).
Next is the third level, the requirements of which we can only take note of, but affect them - no way.The requirement of state registration of land transactions as an object of property provided for n. 1 and 2 tbsp.131, Art.551, para. 2, Art.609 of the Civil Code and is governed by the same law № 122-FZ.Lack of proper registration of properties can seriously affect the possibility of making a deal with the land, such as the purchase and sale of land.This is due primarily to the fact that the registration authority (the General Directorate of the Federal Registration Service), check the entire history of the acquisition by any person of rights (ownership, possession and use, etc.) of the land.A breach of any of the procedures of registration of such rights is the basis at least - for the suspension of state registration, and a maximum - for refusal of registration of transfer of ownership or registration of transactions with real estate.
Since 2005, due to the adoption of amendments and additions to the RF Law "On state registration of rights to immovable property and transactions with it", the registration authority (and issue them certificates of Rights) becomes the guarantor of the recognition of the rights of individuals and legal entities for real estate).Challenge the fact gosudarsvtennoy registration of transactions only during judicial order.Therefore, for the registering authority retains the right to demand additional documents (including technical documentation), and to request additional confirmation related to the lawfulness of registration of real estate rights, which include land.Judicial authorities for the period of 2004-2005 was formed some practice dealing with disputes relating to the rights to land, including the grounds for refusal of registration of such rights.
Litigation revealed some very interesting moments.For example, the very kind of deal with the land (sale or lease), the parties to the transaction (citizens or legal persons), ownership of the object of the transaction (public, private) can assume the appearance of additional requirements to design and produce spores that prevent completion of the transaction.At the same time the judiciary came exclusively from the norms established by the applicable law and based their conclusions as follows.For example, the purchase and sale of land takes place simultaneously with the transfer of the rights and the construction of facilities.According to paragraph 4 of Article 35 of the Land Code of the Russian Federation, alienation (sale) of land by a person who is also on the property right owner of the buildings, structures, facilities, located on the land, carried out together with the land.
alienation of land without buildings on it are (structures) if they belong to one person is not allowed.This circumstance requires the owner-seller to issue the relevant technical documents to all properties belonging to him.Land and real estate located on it can act as individual objects of sale only when they belong to different owners.According to paragraph 1 of Article 35 of the Land Code, paragraph 3 of Article 552 of the Civil Code, the sale of real estate (transfer of ownership), located on land not owned by the seller at the right of property, the buyer acquires the right to use part of the land that is occupied by thisestate required for its use.By virtue of these provisions the buyer of the building (structures) shall be entitled to request the opening of the respective rights to the land plot occupied by the real estate and required to use it, under the same conditions and at the same level as the previous owner of the property after the state registration of transfer ofownership of the building (structures).
If the property is located on land owned by the seller at the right of permanent (perpetual) use, and the purchaser (in accordance with Article 20 of the Land Code of the Russian Federation) land on such a right can not be granted, as the last person to whom the rights of permanent (perpetual)to use the land in connection with the acquisition of buildings (structures), in accordance with paragraph 2 of Article 268, Paragraph 1 of Article 271 of the Civil Code), may issue their right to land by entering into a lease or purchase it in the property in orderprovided for by article 2, paragraph 3 of the introduction of the Land Code of the Russian Federation (Federal Law of the Russian Federation of 25.10.2001 №137-FZ).However, according to paragraph 2 of Article 35 of the Land Code of the Russian Federation limits the size of the area of the land occupied by buildings, structures and necessary for their use shall be determined in accordance with paragraph 3 of Article 33 of the Land Code of the Russian Federation on the basis of duly approved norms for land acquisitionspecific activities or land use and development, land management, urban planning and design documentation.According to the Plenum of the Supreme Arbitration Court in disputes relating to the application of the provisions of paragraph 3 of Article 552 of the Civil Code and paragraph 1 of Article 35 of the Land Code, the right to determine the buyer of real estate located on land not owned by the seller at the right of ownership, it is necessary to consider the following.The buyer of the building (structures) located on land owned by the seller the right to lease, since the registration of the transfer of ownership of a property acquires the right to use the land occupied by buildings, structures and necessary for their use on a leasehold basis, regardlesson whether the features in the prescribed manner lease agreement between the buyer and the property owner of the land.For example, the state registration of transfer of ownership of land from the state land at their disposal, the state registration of encumbrances (limitations) the right of state ownership of land and transactions with such land.
In accordance with paragraph 10 of Article 3 of the Law on the Enactment of the Land Code to the differentiation of state property on land state registration of state ownership of land for disposal of land in public ownership is not required.However, according to Articles 6 and 13 of the Law on State Registration of Rights to Real Estate and Transactions (as amended by Federal Law of 09.06.2003 № 69-FZ) state registration of rights to immovable property and its limitations (encumbrances) or transactionsof the immovable property can be subject to the availability of state registration before any rights to the object in the Unified State Register of rights to immovable property and transactions with it.Judicial practice (Plenum of the RF from 24.03.2005 № 11 "On some issues relating to the application of land laws"), it was determined that the above types of state registration are carried out without state registration in the Unified State Register of rights to immovable property and transactions with itPre-existing right of state ownership of the land, asunder paragraph 2 of Art.214 of the Civil Code, is not owned by individuals or legal entities land (land) is state property.However, this provision of judicial practice does not protect you from possible claims of the registration authority to submit additional documents (eg extract from the register of state property).At the same time we do not even touched design, such as land rights, granted to state companies or farmers.
all, even random participants real estate market - it should be remembered that each property (as we correctly orient legislation) - is unique, respectively, there can be no standard design of real estate transactions.Our legislation is not universal and includes numerous references, use and apply only specialists who are able to.
our part, we can only advise you to approach the issue of training and study of transactions with real estate, and especially - with the land, seriously, if your goal is to quickly get the desired result, without spending any extra effort - to give it to the professionals