There is no entrance to our site. Common property of SNT, ONT, DNT (lands, roads)

The answer to an important question for many summer residents was given by the Supreme Court of the country. He clarified whether the road that the gardeners themselves built could become private. And who does it belong to?

The onset of spring, for millions of citizens, is primarily the approach of the summer season, with all its joys and problems. One of these painful and sometimes insoluble worries is the road to your six hundred square meters. Somewhere such a road is a terrible rut in which the personal transport of summer residents drowns, and somewhere the road to the dacha is in perfect order, but is equipped with a brand new barrier. And only those who are allowed by the owner of the personal track can drive under it. Both situations give rise to complaints, scandals and, for some, ultimately end in the courtroom.

One of these “dacha-road” cases was recently reviewed by the Supreme Court. On the eve of the summer season, explanations from the most experienced judges in the country can be very useful.

Today, there are continuous problems with the roads to and within holiday villages and gardening communities. And it’s hard to disagree with this statement. Local authorities most often do not have the money to improve such small highways, and the local administration, by and large, does not care about the transport problems of visiting summer residents. And where the asphalt is in perfect order, as a rule, this is the merit of one or several wealthy summer residents who patch the road at their own expense. But very rarely they do it disinterestedly.

So, a group of citizens came to court. They had a class action lawsuit against the Partnership. The plaintiffs wanted to be recognized as having the right of common shared ownership of the property - the road of their holiday village. In court, these citizens explained that they were all members of a partnership and had made the road with asphalt-concrete pavement for their own money. Therefore, they had the right of common shared ownership of the road. They did not doubt this, but asked the court to determine the share of each of them “in proportion to the size of each’s contribution to the construction of the road.”

The Partnership itself, or rather some of its members and the leadership of the organization, objected. But the court decided the case in favor of the plaintiffs. And the higher authority called the verdict correct. Then those who did not agree with this verdict reached the Supreme Court. And the high court canceled the decision on dividing the road and declared that the Partnership and its members deprived of shares from the road objected correctly.

This is how the Supreme Court reasoned and formulated its position. After checking the case, the judicial panel for civil cases of the Supreme Court found out the following. An agreement was concluded between one of the plaintiffs and a certain construction company. It followed that the company was entrusted with the “installation of asphalt pavement.” The customer acted on behalf of those who donated money for this improvement. The road workers did the work, and later the local BTI issued a technical passport that “a road with an asphalt-concrete surface” leads to the Partnership.

According to the Civil Code (Article 128), objects of civil rights include things, including money and securities, other property and property rights. It also includes work, services, intangible benefits and the results of intellectual activity. According to the next article of the same code - 130th, immovable things include plots of land, subsoil and everything that is firmly connected to the land. That is, those objects that cannot be moved without very great damage to them. Simply put, real estate is buildings, structures and unfinished construction projects.

Another article of the Civil Code (Article 218) states that the right of ownership to a new thing created or manufactured by a citizen for himself, in compliance with the law, is acquired by the same person.

From all the listed articles it follows that the right of common ownership, including shared ownership, of a road, as an independent object of civil rights, is possible. But only if the road is created specifically as a piece of real estate and is recognized as such. But the local courts overlooked this. They did not resolve the main issue, whether this country road was built as a real estate property, in compliance with all rules and regulations. Otherwise, this road becomes simply an element of improvement and provision of movement within the Partnership for the needs of its members - for passage and travel within the village. One of the summer residents, dissatisfied with the decision of the local courts, argued that the road to the village had existed before. It was built by the same summer residents, but a long time ago. Now they just put new asphalt on it.

By the way, the same thing follows from the contract with a road construction company that worked on the orders of summer residents. The agreement says nothing about the construction of a new road. There we are talking about “installation of asphalt pavement”. According to the Supreme Court, there is no evidence that the company was instructed to build the road as a real estate project in the materials of the trial.

From this, the Supreme Court concludes that covering the asphalt road surface at the expense of the personal funds of summer residents does not entail their ownership of the road as a piece of real estate.

In addition, there is also a law on gardening partnerships. It lists the so-called public facilities. These include areas within the Partnership. Or more precisely - roads, gates, playgrounds and sports grounds, water towers, fire-fighting structures, fences... In general, the list is large.

And that's what's important. According to Article 14 of this law on gardening partnerships, land plots related to common property are given ownership to the Partnership as a legal entity. The development of the infrastructure of such an association of citizens is done on the basis of a decision of the general meeting. The local courts were not interested in whether our Partnership made any decisions along the way, the Supreme Court said. Although this is important for respecting the rights of all summer residents. Even those who did not have money for new asphalt.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation No. 4-B12-13.)

By the way

The Supreme Court, in reproach to its colleagues, said that local courts limited themselves to formally indicating that the road was built at the expense of the personal funds of some summer residents and that they voluntarily agreed to divide their own shares. But the courts did not at all examine the actual circumstances of the case and did not ensure that the interests of those people whose rights were affected by their decision were respected. And the right to judicial protection of our citizens, by the way, is written in the Constitution, the Supreme Court emphasized.

Is it necessary to register rights to such lands? What is the procedure for registering rights to public lands of SNT? We will try to briefly clarify some points related to this difficult process of registering rights to public lands.

04.07.2016 General and collective, what's the difference?

Firstly, public lands do not fall under the “Dacha Amnesty”; accordingly, they are not subject to the simplified privatization procedure.

Secondly, public land in gardening partnerships and garage cooperatives includes roads, driveways, lands on which power lines are located, gas pipelines, pipelines, reservoirs, utility structures (gatehouses), that is, everything that is located on the territory of SNT or GSK , with the exception of land plots directly assigned to citizens. These lands are the collective property of members of cooperatives and partnerships.

Thirdly, according to Article 28 of the Federal Law “On Gardening, Vegetable Gardening and Dacha Non-Profit Associations of Citizens”, land plots related to public property are subject to transfer into the ownership of a horticultural, gardening or dacha non-profit association free of charge.

In 2017, a new land law for SNT (TSN) came into force, some provisions of which change the conditions for the use of public lands. The law abolishes SNT, DNP and other forms of Garden partnerships, leaving only two forms TSN (real estate owners' association) and TSZh (homeowners' association)

With comments from our specialist

Fourthly, the Law on the entry into force of the Land Code of the Russian Federation clearly indicates that the re-registration of the right of permanent (indefinite) use of land plots by horticultural, gardening and dacha non-profit associations of citizens, as well as garage consumer cooperatives, is not limited by a period.

Fifthly, any gardening partnership or garage cooperative must have a title document for public lands as part of its documents. Such a document may be an act of local authorities on the transfer of land into ownership, or an act establishing the right of permanent, unlimited use of land.

So, we have already briefly mentioned that SNT lands can belong both to the right of collective ownership and to be assigned to the right of permanent (indefinite) use.

Let us consider in more detail the case when land plots were assigned to SNT on the right of collective joint ownership.

Why collective joint property, and not joint property, which is provided for by the Civil Code of the Russian Federation? - you ask. To do this, we need to go back to the 90s, when widespread privatization began. Thus, in accordance with the Land Code of the RSFSR No. 1103-1 of April 25, 1991, the RSFSR confirmed the diversity and equality of state, collective farm-cooperative, private, collective-share forms of ownership, and supported the development of all forms of management: collective farms, state farms, peasant farms , their cooperatives and associations.

In the RSFSR, state ownership of land and property of citizens and (or) their collectives (joint or shared) was established.

Most garden associations, which were allocated land plots with different rights of ownership, took advantage of this right to privatize land plots. Personal plots of citizens were assigned to each citizen with a certificate of ownership being obtained individually for each; public lands were registered in accordance with Article 8 of the Land Code of the RSFSR, which at that time had legal force.

The common use lands of gardening partnerships were transferred to them free of charge and did not belong to the division.

In accordance with Article 66 of the Land Code of the RSFSR, land plots for collective gardening, vegetable farming and livestock farming were provided by local Councils of People's Deputies within the limits of their competence and consisted of public lands in use by horticultural and livestock partnerships, and from lands owned by members of these partnerships

Public lands included land plots occupied by security zones, roads, driveways, and other structures and public facilities.

On public lands, local Councils of People's Deputies had to issue a document certifying the right to the land to a horticultural or livestock partnership.

Such land plots, registered in accordance with the Land Code of the RSFSR, belong to citizens, and in no way to a legal entity. The certificate available to the gardening partnership confirms that citizens have the right to the land plot. The fact that a gardening partnership is indicated as the legal owner (subject of law) leaves certain imprints, but does not exclude the right of ownership of citizens.

Although the Civil and Land Codes do not provide for the existence of collective property, but only joint and shared property, this does not mean that your land plots are illegal. Federal Law 137-FZ “On the implementation of the Land Code of the Russian Federation”, which was adopted on October 25, 2001, contains paragraph 9 of Article 3, which states: “State acts, certificates and other documents certifying land rights and issued to citizens or legal entities before the entry into force of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It have equal legal force with entries in the Unified State Register of Rights to Real Estate and Transactions with It.”

Is it necessary to change the old certificate with the collective joint ownership form?

No, it is not worth it and even dangerous, when making a decision to re-register public lands from collective joint ownership to the property of a legal entity, each citizen-gardener renounces his share in the common property of the partnership and transfers it to the ownership of a legal entity.
By transferring land into the ownership of a legal entity, you forever bind yourself to membership, thereby losing property.

If you leave the membership of your own free will or are expelled by decision of the general meeting, then you will no longer have your influence on the fate of public lands, since you are no longer members of the association. If public lands remain in the joint ownership of citizens, then when you leave the association’s members, you still remain the owner of the public lands as long as you are the owner of your individual plot.

Here we consider it necessary to note a whole series of issues that may arise during the registration of rights to public lands, namely the discrepancy between the area of ​​land indicated in the resolution and certificate (act) and the specified area after land surveying. Such a discrepancy may be associated both with a violation of the boundaries of gardening itself, and with the self-seizure of someone else’s land plot (illegal increase in land plot). Or the plots that have already been registered as property in SNT do not correspond to the primary documentation and are located on public lands. There may be discrepancies in the lists of members presented by the chairmen of the SNT, and this despite the fact that the number of owners of land plots in the SNT can be over two hundred or three hundred and in fact it is very difficult to gather all the owners to discuss a particular issue, not to mention the fact that practically Each gardening partnership has abandoned land plots, as well as other issues that complicate the process of forming and registering land plots.

However, it is worth remembering that no one can take away the existing rights to public lands from gardeners.

We have an access road to SNT, but part of the road from the highway has been privatized and we are afraid that they will put up a barrier.

Article 274. The right to limited use of someone else’s land plot (easement)

1. The owner of real estate (land plot, other real estate) has the right to demand from the owner of a neighboring land plot, and, if necessary, from the owner of another land plot (adjacent plot), to grant the right to limited use of the neighboring plot (easement).

An easement may be established to ensure passage and passage through a neighboring land plot, construction, reconstruction and (or) operation of linear objects that do not interfere with the use of the land plot in accordance with the permitted use, as well as other needs of the owner of real estate that cannot be provided without establishing easement.

2. Encumbering a land plot with an easement does not deprive the owner of the plot of the rights of ownership, use and disposal of this plot.

3. An easement is established by agreement between the person requiring the establishment of an easement and the owner of the neighboring plot and is subject to registration in the manner established for the registration of rights to real estate. If no agreement is reached on the establishment or conditions of the easement, the dispute is resolved by the court at the request of the person demanding the establishment of the easement.

4. Under the conditions and in the manner provided for in paragraphs 1 and 3 of this article, an easement may also be established in the interests and at the request of the person to whom the plot is allocated on the right of lifelong inheritable possession or the right of permanent (perpetual) use, and other persons in cases provided for by federal laws.

5. The owner of a plot of land encumbered by an easement has the right, unless otherwise provided by law, to demand from the persons in whose interests the easement is established a proportionate payment for the use of the plot.

6. In cases provided for by law, an easement is established by agreement between the person requiring the establishment of an easement and the person to whom the land plot is in state or municipal ownership, if this is permitted by land legislation. In this case, the rules provided for by this article and Articles 275 and 276 of this Code for the owner of such a land plot are applied to the person who is provided with a land plot in respect of which an easement is established.

If you find it difficult to formulate a question, call the toll-free multi-line phone 8 800 505-91-11 , a lawyer will help you

The access road to SNT is in very bad condition. Can we write an application to the administration for filling the access road to SNT. And if we can, then what law should we rely on? Thank you!

If the road is within the boundaries of SNT, then the costs of maintaining this road are on SNT. If the road is within the boundaries of a settlement not related to SNT, then ask the administration of the Moscow Region within the boundaries of the settlement to ensure the maintenance of public roads. And then only if these roads are municipal property.

Hello, it is impossible to “rely on the law” without legal knowledge - it is a mistake to think that there is a specific law or article in accordance with which something is done. Any problem is solved comprehensively. You need to look at the documents, whose land it is, on which the road runs, where the boundaries of the SNT are, and so on. Such issues cannot be resolved remotely.

Please tell me, in what case can I challenge the SNT’s decision to collect money for the road?

Good evening! In case the procedure for holding a meeting was not followed, or there was no quorum, and so on. Best wishes to you!

Hello. There are grounds to challenge the decision. For example: - no quorum; - the decision does not comply with the law; - the decision was made in violation of the procedure.
In this case, the person who challenges the decision must vote against it.

If you find it difficult to formulate a question, call the toll-free multi-line phone 8 800 505-91-11 , a lawyer will help you

I have a fence in the street that extends 40 cm onto the road. The board demands a postponement. What to do?

It demands correctly. If you don’t reschedule, they may force you to remove it in court.
Civil Code of the Russian Federation Article 304. Protection of the owner’s rights from violations not related to deprivation of possession

"The owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.

You need to comply, since you actually have squatting and you can be held accountable, that is, pay a fine under the Code of Administrative Offenses of the Russian Federation.

the fence in SNT projects 40 cm onto the road
--- Hello, what were you thinking when you installed it, or was the law not written for you? It will have to be demolished, otherwise they will get a court decision and the bailiffs will demolish it, but at a much higher price. Good luck to you and all the best, with respect, lawyer Ligostaeva A.V. :sm_ax: