Types of property rights to land plots. Existing types of rights to land plots

According to modern Russian legislation, all rights in general and to land plots in particular can be divided into two large groups: real and obligatory. Property law, the main type of which is the right of ownership, has a number of characteristic features that distinguish it from obligation. Let's look at them briefly:

1. The range of real rights is clearly outlined by law (Articles 209, 216 of the Civil Code). And a person does not have the right to create new types of real rights at his own discretion. There is no such restriction for rights of obligations. A participant in an obligatory relationship may enter into transactions both provided for by law and not provided for by law, but not contrary to it.

2. Property law, in contrast to obligation law, is a type of absolute right, that is, the owner of a property right is confronted by an unlimited number of subjects who are obliged not to violate it.

3. The owner of the property right has the rights of succession and priority. The first means that the owner of a thing that has left his possession, as a general rule, continues to retain it even when the thing is in the possession of the new owner. More often this concerns things that have been removed from possession against the will of its owner - 301 of the Civil Code (vindication claim). The authority of the advantage boils down to the fact that when there is competition between real and obligatory rights, the real right must be exercised first. It should be noted that rights to land plots, in accordance with Art. 25, arise on the grounds established by civil legislation and federal laws. The reasons themselves will be discussed in the next paragraph.

Let's consider the types of real rights. They are listed in the law:

Right of ownership (Article 209 of the Civil Code, Article 15 of the Land Code);

The right to lifelong inheritable ownership (Articles 216, 265 of the Civil Code of the Russian Federation, Article 21 of the Land Code);

The right of permanent (unlimited) use (Articles 216, 268 of the Civil Code, Article 20 of the Land Code);

Easements (Articles 216, 274, 277 of the Civil Code, Article 23 of the Land Code).

The most important of them is the right of ownership, because all the others, in their essence, are derived from them. The right of private ownership of land is enshrined in the Constitution of the Russian Federation. Citizens and their associations (Part 1 of Article 36 of the Constitution of the Russian Federation) have the right to have land in private ownership. Land owners fully have all three powers inherent in property rights, that is, they have the right to freely own, use and dispose of land, provided that the exercise of these powers does not cause damage to the environment and does not violate the rights and legitimate interests of other persons (Part 2 Article 36 of the Constitution, paragraph 3 of Article 209 of the Civil Code).

A plot of land, in accordance with both land and civil legislation, can be either in individual private ownership or in common ownership. Since it is considered an object of civil rights, real estate, it is fully subject to the provisions of the Civil Code on common property (Chapter 16).

Common ownership of a land plot can be of two types - shared and joint. For example, a land plot acquired by spouses will become common joint property, unless a different regime for this plot is established by the marriage contract or other agreement between them (Article 256 of the Civil Code and Articles 33, 34 of the Family Code of the Russian Federation).

Another example is land plots of condominiums, which are the common shared property of homeowners by virtue of the law (Article 1 of the Federal Law “On Homeowners’ Associations”).

In accordance with both civil and land legislation, property rights are of the following types:

Private property, when land belongs to citizens and legal entities (Article 15 of the Land Code);

Federal property, when the land is owned by the Russian Federation (Article 17 of the Land Code);

Ownership of land in subjects of the Russian Federation (Article 18 of the Land Code);

Municipal property (Article 19 of the Land Code).

The form of land ownership has a certain influence on the content of the owner's powers. If the power of disposal of citizens and legal entities having land on the right of private ownership is in accordance with the civil concept of administrative transactions, as a result of which the land is alienated, transferred for rent, pledge, inheritance, etc., then the power of disposal of the state ownership of land is carried out in the process of activities of state bodies for land management in the form of adoption of an administrative act of provision (transfer) of land, determination of the intended purpose, conditions, form of land use 1 .

Now about real rights, which are inherently derived from property rights.

The right of permanent (unlimited) use. The content of the powers of this type of right is contained in civil legislation, which states that the person to whom the land plot is granted under the specified type of right exercises ownership and use of it within the limits established by law, other legal acts and the act on granting the plot for use. In this case, the land user does not have any right of disposal. He does not even have the right to rent out part of the unused land without the permission of the owner. The range of subjects who have the right to receive land plots using this type of right is given in land legislation. In particular, in Art. 20 of the Land Code provides an exhaustive list of these entities. Land plots are not provided to citizens for permanent (indefinite) use at all. In addition, all legal entities to which land plots are assigned to this type of right, but not included in the list of Art. 20 of the Land Code, in accordance with Article 3 of the Federal Law “On the Enactment of the Land Code of the Russian Federation”, they are obliged to re-register the right of permanent (perpetual) use for rent, or to buy them into ownership.

Now about the right of lifelong inheritable ownership. In this type of rights, only citizens can have land plots. Here, the landowner has the right not only to the right of possession and use, but also to very limited disposal - he has the right to rent it out or for free, fixed-term use at his own discretion.

Another type of property rights are easements.

The easement right for limited use of a land plot arose in Russian legislation recently. This right itself has been known since the times of Ancient Rome and was then adopted by many subsequent legal systems almost without changes. Roman law knew over 40 personal and land easements. The meaning of an easement is that the subject of the easement (servitude) had the right to use someone else’s property, especially if it is inseparably connected with the land plot.

Mention of easements is also found in a number of current norms of the Civil Code and in other legal acts. Thus, in accordance with the Federal Law “On Homeowners’ Associations”, this partnership can grant an easement to any person (and such granting is the exclusive competence of the general meeting of members of the partnership), and the developer, when forming a partnership, has the right to establish a construction easement on common property for the implementation of their development rights. In this case, the servitude can be both legal entities and citizens. The easement is also mentioned in the Decree of the President of the Russian Federation of February 28, 1996 N 293 “On additional measures for the development of mortgage lending.”

It should be noted that easements are of two types: private and public. Private ones are established by civil law, to which there is a direct reference in paragraph 1 of Art. 23 ZK. It is installed in the interests of private individuals, as a rule, most often by neighbors who need access to the neighboring plot. The basis for it may be an agreement between the interested party and the owner of the encumbered land plot. In the absence of an agreement between them, if it is necessary to establish an easement on one of the grounds provided for by law, this encumbrance of the land plot - an easement - can be established by a court decision.

A public easement is established by land legislation (Article 23 of the Land Code) to ensure the interests of the state, local government or local population. The basis for it may be the publication of the relevant law (for example, on protective or security zones) or the publication of the corresponding regulatory act of a state or municipal authority.

Now about obligatory rights to land plots. Participants in obligatory legal relations can enter into transactions, both provided for by law and not provided for by law, but not contradicting it. Of the rights of obligation when allocating land plots, we are most interested in two: the right to lease and the right to free temporary use of land plots.

The definition of the right to gratuitous temporary use of a land plot is given in Article 24 of the Land Code of the Russian Federation. The basis for the emergence of this type of right can be an act of a state or municipal authority, on the basis of an agreement, on the basis of departmental acts of legal entities. At the same time, the law limits the circle of subjects of this type of law. In particular, the commented article states that among state and municipal lands, land plots can only be provided to state and municipal institutions, federal government enterprises, as well as state and local government bodies for a period of no more than a year.

No deadline is established for lands owned by citizens and legal entities. In this case, land plots can be provided for free, fixed-term use on the basis of an agreement.

Land plots can be provided by lease right by their owners in accordance with civil law. The general principles of leasing are given in Chapter 34 of the Civil Code of the Russian Federation. Under a lease (property lease) agreement, the lessor undertakes to provide the lessee (tenant) with property for a fee for temporary possession and use or for temporary use. Additions and restrictions on the rights of the tenant are given in Art. 22 ZK. It should be noted that the lease of land plots, in its essence and the scope of the tenant’s rights, is quite close to property rights. So in accordance with Art. 22 of the Land Code, the tenant, subject to a number of conditions, has the right to sublease the leased land plot within the lease term. So, for example, if the lessor is the state or local government, and the lease agreement is concluded for a period of more than five years, then the consent of the owner is not required for such a transfer. If the lessor is a different owner, then the lessee can do this for any lease period, unless otherwise provided by the lease agreement. In addition, the lease agreement for land plots as real estate, in accordance with Art. 130 Civil Codes are subject to state registration. Another argument for the above can be the principle of the unity of fate of land plots and objects firmly connected with them (clause 5, article 1 of the Land Code). For example, when allocating land plots for the construction of residential buildings, it leads to the fact that after construction is completed and the house is put into operation, the specified land plot cannot be used for another purpose. And although the owner of a building (structure) has only the right to lease the land plot he occupies, his rights to use it are protected by law in almost the same way as if he were the owner of this plot. For example, it is almost impossible to demolish residential buildings, since the list of cases of demolition of residential buildings is strictly limited by housing legislation, the list of which does not include the expiration of the lease right to the land plot occupied by it. At the end of the lease agreement, the owner of the land plot does not have the right to demand its release (demolition of the residential building). The relations between the parties are regulated by Art. 272 of the Civil Code of the Russian Federation, which states that if the demolition of a building or structure located on a land plot is prohibited in accordance with the law (residential buildings, historical and cultural monuments, etc.), or cannot be carried out due to the obvious excess of the cost of the building or structure by comparing the cost of a building or structure with the cost of the land allocated for it, the court, taking into account the grounds for termination of the right to use the land plot and upon presentation of relevant demands by the parties, may recognize the owner’s right to acquire ownership of the land plot under the real estate object, or establish the conditions for the use of the land plot by the owner of the real estate for a new term.

Another type of right is the right of pledge on land, which is both real and obligatory.

Being an integral part of the Russian legal system, land law is in close relationship with other branches of law. In the light of recent reforms, there has been the establishment of many forms of land ownership and the inclusion of land in the system of market relations. This, in turn, led to the fact that significant changes were made not only to the methods of regulating land relations themselves, but also raised in a new way the question of the relationship of land law with other branches of law.

Land law has a close connection with constitutional law, the norms of which determine the fundamental principles of all branches of the legal system. There is also a connection with administrative law, in the field of managing the land fund, bringing to administrative responsibility those guilty of violating land legislation. A close connection exists between land law, on the one hand, and water, mountain (subsoil) and forest law, on the other hand.

Land law has a special connection with civil law, which we will consider in more detail. This connection is predetermined by the common socio-economic nature of land and civil relations. The foundation of these relations is based on real rights to land (primarily property rights); their commonality is property in nature, because it is here that the contact between land law and civil law is most pronounced. The right to a land plot is closely related to the right to the fruits it bears, plantings, and buildings on the land plots. This is manifested in the right to limited use of someone else's land, in compensation for losses caused by violation of land legislation. In the land legislation itself there are a lot of norms, both regulating civil legal relations and referring to it. There are also many rules in civil legislation regulating property legal relations on land. For example, the Civil Code classifies land plots as real estate (Clause 1, Article 130). This alone suggests that their negotiability presupposes that citizens have a wide variety of real and obligatory rights to these land plots.

But at the same time, it should be noted that land and other natural resources can be alienated or transferred from one person to another by other means only to the extent that their circulation is permitted by the laws on land and other natural resources (clause 3 of Article 129 of the Civil Code ).

The text of the new Land Code itself contains many references to civil legislation. For example, the principle of the unity of fate of land plots and objects firmly connected with them that follow the fate of land plots, with exceptions established by federal laws (Article 1 of the Land Code). There is a close connection in determining the scope of real rights to land and their subjects. For example, the concept of the right of permanent (perpetual) use is given in both the civil and land codes. However, the Land Code clearly outlines the circle of subjects to whom this right can be granted. In this case, in accordance with Art. 20 of the Land Code, these can only be state and municipal institutions, federal government enterprises, as well as state authorities and local governments.

However, the Land Code clearly outlines the circle of subjects to whom this right can be granted. In this case, in accordance with Art. 20 of the Land Code, these can only be state and municipal institutions, federal government enterprises, as well as state authorities and local governments.

The concept of the right to lifelong inheritable possession is given both in the civil code (Articles 216, 265 of the Civil Code) and the Land Code, but the latter clearly states that this type of right, although preserved, is nevertheless more relevant to lifelong inheritable possession of land is not provided to citizens (Article 21 of the Land Code).

Current Russian land legislation provides for the following types of rights to land plots:

• ownership;
• right of permanent (unlimited) use;
• right of lifelong inheritable ownership;
• lease right;
• right of free temporary use;
• the right to limited use of someone else's land plot (easement).

Rights such as the right of ownership of a land plot, the right of lifelong inheritable ownership of a land plot, the right of permanent (perpetual) use and easement (the right of limited use of someone else's land plot) are real rights to land plots. Property rights are subjective civil rights, the object of which is a thing that can provide the subject with the opportunity to satisfy his needs by directly influencing it.
The emergence of rights to land plots occurs on the grounds provided for by civil legislation and relevant federal laws.
The subjects of rights to land plots are citizens, legal entities, the state (the Russian Federation and its constituent entities) and municipalities.
The land plot is the object of civil relations. What a land plot is as an object of law is explained in Article 6 “Objects of land relations” of the Land Code of the Russian Federation (LLC RF):
"1. The objects of land relations are:

1. land as a natural object and natural resource;
2. land;
3. parts of land plots."

Land plot ─ real estate. Documents defining its territorial boundaries are issued by territorial bodies of the Federal Service for State Registration, Cadastre and Cartography.
According to the Land Code of the Russian Federation, the participants in land relations are: owners of land plots, land users, landowners, tenants of land plots, holders of easements. And each of them has their own rights to the land.

Owners. Ownership of land

The rights of the owner of a land plot include the rights to own, use and dispose of his property. The latter is especially important, since the right to dispose of a land plot is the prerogative of the owner. The owner of a land plot who is not the owner has no right to dispose of it, unless otherwise provided by law. He exercises his rights of ownership and use of the site on the terms and within the limits established by law or an agreement with the owner.
The owner of a land plot has the right to sell it, donate it, pledge it, lease it and dispose of his land in any other way (of course, provided that it is not excluded from circulation or is not limited in circulation on the basis of law).
The very fact of the existence of private property rights to land in a multi-structured market economy is of great importance. Without this, the involvement of land resources in full-fledged civil circulation would be impossible.
Land users. The right to permanent (indefinite) use of land
Land plots are provided for permanent (indefinite) use to state authorities and local governments, state and municipal institutions, and state-owned enterprises.
Land plots are not provided to citizens for permanent (indefinite) use. But the right of permanent (indefinite) use of land plots in state or municipal ownership that arose among citizens before the entry into force of the current Land Code of the Russian Federation is retained.
A person to whom a land plot is granted for permanent (indefinite) use has the right, unless otherwise provided by law, to independently use it for the purposes for which it was provided, including the construction of buildings, structures and other real estate. Moreover, all real estate created by this person for himself is his property.
Another right that land users may have is the right to free, temporary use of a land plot.
The list of types of land plots that can be provided for gratuitous fixed-term use is established by Article 24 “Free fixed-term use of land plots” of the Land Code of the Russian Federation. These are plots of land both in state or municipal ownership and in the ownership of citizens or legal entities. And they can be provided to both citizens and legal entities.

Landowners. The right to lifelong inheritable ownership of a land plot

Sometimes the expression “the right to lifelong inheritable ownership of a land plot” is modified, shortened a little and said ─ the right to lifelong use of a land plot. The current Land Code establishes the preservation of the right of lifelong inheritable ownership of a land plot in state or municipal ownership, acquired by a citizen before the Code came into force. After the entry into force of the Land Code of the Russian Federation, the provision of land plots to citizens on the right of lifelong inheritable ownership is not allowed. The owner of a land plot, who has the right of lifelong inheritable ownership, has the rights to own and use the land plot. So, for example, unless otherwise follows from the conditions for using a land plot established by law, he has the right to erect buildings, structures and other real estate on it, acquiring ownership rights to it.

Land tenants

One of the methods of using land that has recently become increasingly important and plays a significant role in the economy is the rental of land plots. Land law could not ignore it. The rights of a tenant of a land plot are discussed in Article 41 (to be fair, quite short) of the Land Code of the Russian Federation. More details about renting property (including real estate) are discussed in Chapter 34 “Rent” of the Civil Code (Civil Code of the Russian Federation).
Land plots, with the exception of those specified in paragraph 4 of Article 27 of the Land Code of the Russian Federation, can be leased by their owners in accordance with civil legislation and the Land Code. Tenants are persons who own and use land plots under a lease or sublease agreement.
The right to lease a land plot can be sold. The sale of the right to lease a land plot takes place when renting out vacant land plots that are in state or municipal ownership.
The pledge of the right to lease a land plot is not entirely unambiguously interpreted in the legislation. If, according to Article 62 of the Federal Law “On Mortgage (Pledge of Real Estate)”, the tenant of a land plot has the right to pledge the lease rights of the land plot within the term of the land plot lease agreement with the consent of its owner, then in accordance with Article 22 of the Land Code of the Russian Federation, the consent of the owner of the land plot is not required. Notifying him is sufficient, unless otherwise provided by the land lease agreement.
The tenant of a land plot (exception ─ tenants of land plots, residents of special economic zones) has the right, within the lease term, to transfer his rights and obligations under the land plot lease agreement to a third party. Assignment of the right to lease a land plot (they also say: transfer of the right to lease a land plot or the right to assign a land plot) ─ not just sublease of leased property, but assignment of all lease rights. The one to whom the lease rights are assigned becomes a party to the agreement instead of the previous tenant and bears obligations to the lessor in full and without restrictions instead. In the case of sublease, in addition to the main agreement, a second sublease agreement is concluded.

Owners of the easement

Owners of an easement have the right to limited use of a land plot (of course, someone else's). 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. Easements are subject to state registration in accordance with the Federal Law “On State Registration of Rights to Real Estate and Transactions with It.”
The legislation distinguishes between private and public easements. Examples of a public easement are:

• passage (travel) through a land plot in order to ensure free access of citizens to a public water body;
• use of the land plot for the purpose of repairing utilities, engineering, electrical and other communications, as well as transport infrastructure facilities;
• placement of boundary and geodetic signs and approaches to them on the land plot, and others.

An easement can be temporary or permanent. Its implementation should be the least burdensome for the land plot in respect of which it is established. Unless otherwise provided by federal laws, the owner of a land plot encumbered by a private easement has the right to demand a proportionate payment from the persons in whose interests the easement is established.
Persons whose rights and legitimate interests are affected by the establishment of a public easement have the right to protect their interests in court.

Land plot ─ the right to receive and the right to provide

The right to receive a land plot is exercised through the possibility of acquiring rights to land that is in state and municipal ownership. Land plots from such lands are provided to citizens and legal entities for ownership or lease.
The right to provide a land plot from lands in state or municipal ownership, ─ for money or free of charge, ─ belongs to the executive bodies of state power or local government bodies.
In cases and in accordance with the procedure established by the laws of the constituent entities of the Russian Federation, citizens with three or more children have the right to a free plot of land, including for individual housing construction, without bidding and preliminary approval of the location of objects.
Restricting the rights to land plots of land owners, land users, landowners, land tenants, as well as limiting the turnover of land plots are among the powers of the Russian Federation in the field of land relations.

A plot of land and a house on it

According to Article 271 “The right to use a land plot by the owner of real estate,” the owner of a building, structure or other real estate located on a land plot owned by another person has the right to use the land plot provided by such person for this real estate.
Unless otherwise provided by law, in the event of a transfer of ownership of a building or structure that belonged to the owner of the land plot on which it is located, the owner of the building (structure) and the owner of the land plot occupied by the building or structure and necessary for its use.
When the ownership of real estate located on someone else's land plot is transferred to another person, he acquires the right to use the corresponding land plot on the same conditions and to the same extent as the previous owner of the property.
The transfer of ownership of a land plot is not the basis for termination or change of the right to use this plot belonging to the owner of the real estate.
If citizens and legal entities have ownership, gratuitous use, economic management or operational management of buildings, structures, structures located on land plots that are in state or municipal ownership, they are candidates No. 1 for acquiring rights to the land plot where these buildings, structures, structures are located.

Registration of rights to a land plot

Rights to land plots arising in accordance with the legislation of the Russian Federation are subject to registration in accordance with the Federal Law “On State Registration of Rights to Real Estate and Transactions with It.” Article 2 of this law states: “State registration of rights to real estate and transactions with it (hereinafter also referred to as state registration of rights) is a legal act of recognition and confirmation by the state of the occurrence, limitation (encumbrance), transfer or termination of rights to real estate in accordance with Civil Code of the Russian Federation".
The text of the article gives grounds to consider the fact of state registration of rights as recognition of the right to a land plot by the state. Be it recognition of ownership of a land plot or any other rights. It also follows from the text of this article that state registration (re-registration of rights to land plots) is necessary for the legal recognition of such events as termination of rights to land plots and transfer of rights to a land plot.
Registration of rights to a land plot requires the applicant to submit the appropriate package of documents.
For example, if there has been a transfer of rights to a land plot, registration of ownership rights of the land plot (registration of rights arising on the basis of an agreement for the transfer of a land plot into the ownership of citizens) is impossible without the following documents:

• applications for state registration;
• identification document of the applicant;
• an agreement on the transfer of a land plot into the ownership of a citizen, concluded with an authorized body.

On his own initiative, the applicant has the right to submit a document confirming payment of the state fee.
Lease, sublease, and free-term use of a land plot concluded for a period of less than one year are not subject to state registration. But, if, for example, registration of the right to lease a land plot is required, it is necessary to submit the appropriate package of documents:

• application for state registration;
• identification document of the applicant;
• title document;
• notarized consent of the spouse of the party (parties) under the contract, or a statement that the person (persons) is not married.

In a number of cases (for example, if the lessor under the agreement is a legal entity, and a number of others), additional documents will be required.
Experts have different attitudes towards the relative diversity of land rights. Some believe that it creates a problem of inefficient and insufficiently fast land turnover and aggravates the contradictions that exist in the land market. Others (and probably rightly) believe that the need for limited property rights in legal practice is a natural consequence of the characteristics of land as an object of real estate and the impossibility of approaching land plots using the standards of exclusively civil law.

Emergence of rights to land plots

What types of rights to land plots are provided for by current legislation?

The current land legislation provides for the following six types of rights to land plots:

ownership;

right of permanent (unlimited) use;

right of lifelong inheritable ownership;

lease right;

right of free temporary use;

the right to limited use of someone else's land plot (easement).

Four of the indicated types of rights: the right of ownership, permanent (perpetual) use, lifelong inheritable possession and easement are real rights (Article 216 of the Civil Code of the Russian Federation), and the right to lease and gratuitous fixed-term use of a land plot are so-called rights of obligations.

From the point of view of civil legislation and property rights in general, two types of rights: permanent (perpetual) use and lifelong inheritable possession - are exclusively land-legal, since they apply only to land plots, and not to other property. The right to free temporary use of a land plot also has certain specifics. Part two of the Civil Code of the Russian Federation regulates issues of gratuitous use (loan agreement), and even uses the term “gratuitous temporary use.” In this regard, it seems that the norms of the Civil Code of the Russian Federation are subject to application to the right of gratuitous fixed-term use of a land plot (to the extent that does not contradict land legislation). But still, the civil legislation does not directly talk about gratuitous urgent use.

It should also be pointed out that, despite the indication in the Civil Code of the Russian Federation of other types of real rights to property - the right of economic management and the right of operational management, these types of rights cannot be applied to land plots as they are not provided for in land legislation.

What are the grounds for the emergence of rights to land plots?

decisions on the provision of state or municipally owned land plots for ownership, permanent (perpetual) use, lease, etc.

However, the possibility cannot be ruled out that state or municipal bodies may also adopt other acts justifying the emergence of rights to land plots. For example, in Moscow, it is a widespread practice for prefects of administrative districts to issue orders establishing rights to use land plots. In accordance with the Regulations for the preparation and execution of orders of prefects of administrative districts on establishing land rights in the process of registering land users, approved. by Decree of the Moscow Government of January 25, 1994 No. 77, these orders are aimed at ensuring the primary registration of land users identified during the inventory of land plots or who applied for the purpose of drawing up documents certifying rights to land plots. Orders of prefects on establishing rights to land plots (issued when relevant legal grounds are identified) essentially have the same meaning as the decision of the authorized body on the provision of a land plot, i.e. they are the basis for concluding a corresponding agreement (lease of a land plot, etc. ) or for state registration of property rights.

The legal basis for the emergence of the right to a land plot may be the court's decision, which established the right to a land plot. This basis arises, as a rule, as a result of a dispute about the right, referred to the judicial authorities for resolution, and meets the requirements of Art. 59 of the Land Code of the Russian Federation, according to which recognition of the right to a land plot is carried out in court. An example of the emergence of a right based on a court decision can also be the recognition by the court of the right of municipal ownership of an ownerless land plot (clause 2 of article 226 of the Civil Code of the Russian Federation, clause 2 of article 53 of the Land Code of the Russian Federation).

A decision of a court of general jurisdiction or an arbitration court that has entered into legal force is the legal basis for state registration of the right to a land plot established by the court.

As for the acquisition of land plots on the grounds permitted by law, here as an example we can cite the acquisition of ownership of a land plot due to acquisitive prescription (Article 234 of the Civil Code of the Russian Federation).

It should be noted that in some cases, for the emergence of rights to land plots, several grounds are necessary simultaneously. So, for example, when a land plot is provided for lease by a state body or local government body, the grounds for the emergence of the right to lease will be, firstly, the act of the relevant body on the provision of the land plot; secondly, a land lease agreement concluded on its basis. A similar situation arises when concluding, on the basis of acts of state or municipal bodies, contracts for the purchase and sale of land plots or free-term use of them.

What regulations determine the grounds and conditions for acquiring land rights?

According to Art. 25 of the Land Code of the Russian Federation, rights to land plots (ownership rights, rights of permanent (perpetual) use, easements, as well as the right to lease and the right to gratuitous fixed-term use) arise on the grounds provided for the emergence of civil rights and obligations established by civil legislation, federal laws, and are subject to state registration in accordance with the Federal Law “On State Registration of Rights to Real Estate and Transactions with It.”

According to Art. 1 of the Civil Code of the Russian Federation, citizens (individuals) and legal entities acquire and exercise their civil rights of their own will and in their own interest. They are free to establish their rights and obligations on the basis of the contract and to determine any terms of the contract that do not contradict the law. At the same time, this rule should be applied in the context of Art. 129 of the Civil Code of the Russian Federation, according to which land and other natural resources may be alienated or transferred from one person to another by other means to the extent that their circulation is permitted by laws on land and other natural resources.

Article 8 of the Civil Code of the Russian Federation determines that civil rights and obligations arise from the grounds provided for by law and other legal acts, as well as from the actions of citizens and legal entities, which, although not provided for by law or such acts, are due to the general principles and meaning of civil legislation give rise to civil rights and obligations. This article defines a general list of grounds for the acquisition of any civil rights, therefore not all of them can serve as the basis for the emergence of rights to land plots.

The specifics of acquiring rights to land plots are established by the Land Code of the Russian Federation, and above all by Chapter. V “The emergence of rights to land.”

When acquiring a certain right to a land plot, you should also refer to the norms of the Civil Code of the Russian Federation (Chapter 14 “Acquisition of ownership rights”; Chapter 17 “Ownership rights and other proprietary rights to land”).

In addition to Ch. 2 of the Civil Code of the Russian Federation also provides for rules establishing the specifics of acquiring property rights (Chapter 14), including the grounds for acquiring this right (Article 218 of the Civil Code of the Russian Federation), as well as the right of common property (Article 244 of the Civil Code of the Russian Federation).

Separately, you should pay attention to the fact that Ch. 17 of the Civil Code of the Russian Federation provides for the grounds for acquiring the right of lifelong inheritable possession (Article 265), the right of permanent (perpetual) use (Article 268), easement (Article 274). But with the adoption of the Land Code of the Russian Federation, the provisions of these articles in the part that contradict the Land Code of the Russian Federation cannot be applied, since the Land Code of the Russian Federation in this case contains special norms that have priority in regulating land relations. The same can be said about other articles of the Civil Code of the Russian Federation, which make up the contents of Ch. 17, and other chapters of the Civil Code of the Russian Federation, if they relate to the acquisition of rights to a land plot. In particular, on the procedure for privatization or, conversely, withdrawal (buyout) of a land plot, transfer of rights to a land plot when transferring rights to real estate located on it (Articles 273, 552 of the Civil Code of the Russian Federation), granting rights to land plots for construction ( Art. 263 of the Civil Code of the Russian Federation).

The acquisition of rights to land plots of certain categories on the basis and in accordance with the Land Code of the Russian Federation may be additionally regulated by other federal laws. Thus, certain provisions on the acquisition of agricultural land are established by the Federal Law “On the Turnover of Agricultural Land”.

The acquisition of rights to land plots that are in state or municipal ownership, if real estate is located on them, is also regulated by the norms of the Federal Law “On the Privatization of State and Municipal Property.”

Article 25 of the Land Code of the Russian Federation especially emphasizes that the grounds for the acquisition of rights can only be established by federal laws, however, the constituent entities of the Russian Federation and local government bodies in accordance with federal laws can approve separate rules defining the conditions for the acquisition of land plots.

So, for example, in accordance with Art. 33 of the Land Code of the Russian Federation, the maximum (maximum and minimum) sizes of land plots provided to citizens from state-owned or municipally owned lands for peasant (farm) farming, gardening, market gardening, livestock farming, dacha construction are established by the laws of the constituent entities of the Russian Federation; for running personal subsidiary plots and individual housing construction - by regulatory legal acts of local government bodies.

The maximum size of land plots provided to citizens in accordance with the same article as free property for the purposes provided for by the rules of paragraph 1 of Art. 33, are established: by federal laws - from lands in federal ownership; laws of the constituent entities of the Russian Federation - from lands owned by the constituent entities of the Russian Federation; regulatory legal acts of local governments - from lands owned by municipalities. For purposes not specified in this paragraph, the maximum sizes of land plots are established in accordance with duly approved norms for land allocation for specific types of activities or in accordance with the rules of land use and development, land management, urban planning and design documentation.

Privatization of agricultural land plots located on the territory of a constituent entity of the Russian Federation, in accordance with Art. 1 of the Federal Law “On the turnover of agricultural land”, is carried out from the moment established by the law of the subject of the Russian Federation.

What documents certify the right to a land plot?

The right to a land plot acquired by a participant in land legal relations is certified by title documents.

In accordance with Art. 26 of the Land Code of the Russian Federation, rights to land plots are certified by documents in accordance with the Federal Law “On State Registration of Rights to Real Estate and Transactions with It.”

Article 26 of the Land Code of the Russian Federation is based on the general requirement for state registration of rights to land plots as real estate and transactions with them.

Documents certifying rights to land plots, according to the Federal Law “On State Registration of Rights to Real Estate and Transactions with It,” are documents confirming the registration of rights (Article 9).

Since according to Art. 12 of the mentioned Federal Law, rights to real estate and transactions with it are subject to state registration in the Unified State Register of Rights; this register forms the basis of documents certifying rights to land plots. At the same time, an integral part of the Unified State Register of Rights are files that include title documents for real estate and books of documents. A file of title documents is opened for each piece of real estate (including land plots). All documents received for registration of rights to the specified object are placed in the file. The document books contain the following data: about documents accepted for registration about the real estate property, copyright holders, registered rights and applicants; about issued certificates of state registration of rights; on extracts and certificates from the Unified State Register of Rights, and on other documents.

The completed state registration of the emergence and transfer of rights to real estate is certified by a certificate of state registration of rights (Article 14 of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It”). The completed state registration of contracts and other transactions is certified by making a special registration inscription on the document expressing the content of the transaction.

The form of certificates and special inscriptions is established by the Rules for maintaining the Unified State Register of Rights.

Forms of state registration certificates introduced by individual constituent entities of the Russian Federation and city administrations before the establishment of a unified certificate form are recognized as legally valid.

When using Part 2 of Art. 26 of the Land Code of the Russian Federation, which establishes that agreements for the lease of a land plot, sublease of a land plot, gratuitous fixed-term use of a land plot, concluded for a period of less than one year, are not subject to state registration, except in cases established by federal laws, it should be borne in mind that , according to the Civil Code of the Russian Federation, if the tenant continues to use the property after the expiration of the contract in the absence of objections from the lessor, the contract is considered renewed on the same terms for an indefinite period. Consequently, if the lease relationship continues, the agreement is subject to state registration.

In accordance with Art. 4 of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It”, rights to real estate, the title documents for which were drawn up after the entry into force of this Federal Law, are subject to mandatory state registration. The provision of Part 3 of this article is based on the provisions of Art. 6 of the same Federal Law, according to which rights to real estate that arose before the entry into force of this Federal Law are recognized as legally valid in the absence of their state registration introduced by this Federal Law. State registration of such rights is carried out at the request of their owners.

State registration of rights, carried out in individual constituent entities of the Russian Federation and municipalities before the entry into force of the specified Federal Law, is legally valid. State registration of rights to real estate and restrictions (encumbrances) transactions with it that arose after the entry into force of the Federal Law on State Registration of rights or other transactions with an object of real estate requires state registration of rights to this object that arose before the entry into force of this Federal Law.

What is the significance of state registration of rights to land plots and transactions with them?

State registration of rights to land plots and transactions with them is a legal act of recognition and confirmation by the state of the occurrence, limitation (encumbrance), transfer or termination of rights to land plots in accordance with the law.

The Land Code of the Russian Federation establishes that rights to land plots provided for by the Code are subject to state registration in accordance with the Federal Law “On State Registration of Rights to Real Estate and Transactions with It” (Clause 1, Article 25). Taking into account this provision of land legislation, state registration of rights to land plots has the following significance.

Firstly, only from the moment of state registration of rights to a land plot can these rights be considered to have arisen.

This statement is based on the norm of paragraph 2 of Art. 8 of the Civil Code of the Russian Federation, according to which rights to property subject to state registration arise from the moment of registration of the corresponding rights to it, unless otherwise provided by law. Due to the fact that the Land Code of the Russian Federation considers rights to land plots to be subject to state registration, the specified norm applies to them. This issue is of great practical importance, since without state registration of the right to a land plot (and in some cases, also transactions with a land plot), even if there is an act of a state or municipal body, an agreement or a court decision granting (establishing, recognizing) the right to plot, there are no legal grounds for the exercise by the subject who should have the corresponding right of the powers arising from it. However, an exception to this rule are those cases when the absence of the need for state registration of the relevant right (transaction) directly follows from the law. For example, by virtue of paragraph 2 of Art. 26 of the Land Code of the Russian Federation, lease agreements (sublease) of land plots concluded for a period of less than one year are not subject to state registration.

Secondly, state registration is the only evidence of the existence of a registered right. This rule established by Art. 2 of the Federal Law of July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it”, essentially means that no other legal acts, including decisions of authorities, court decisions, etc., cannot be considered as sufficient evidence that a particular person owns the corresponding right to a land plot. They are only the grounds for the emergence of the right to a plot through its state registration.

At the same time, it should be emphasized that the above is fully applicable only to those rights that arose after the entry into force of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It,” since this Law recognizes as legally valid the rights that arose before it entry into force (i.e. until January 31, 1998), as well as state registration of rights, which was carried out in the constituent entities of the Russian Federation and municipalities up to this point (Article 6 of the Law). Rights to land plots that arose before January 31, 1998 are subject to state registration upon state registration of their transfer, restriction (encumbrance) or other transaction with the land plot, and in other cases - only at the request of the right holders.

Thirdly, the registered right to a land plot can only be challenged in court (Article 2 of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It”). This rule is actually one of the guarantees provided by law for the stability of the registered right to a land plot. It means that if a legal entity or individual has documents confirming the registration of his right to a land plot, this right can be terminated or declared invalid only on the basis of a court decision, and not in an administrative manner.

Fourthly, in accordance with Art. 26 of the Land Code of the Russian Federation, rights to land plots are certified by documents issued in accordance with the Federal Law “On State Registration of Rights to Real Estate and Transactions with It,” i.e., as a result of the registration of rights. In accordance with Art. 14 of this Law, the state registration of the emergence and transfer of rights to land plots is certified by a certificate of state registration of rights (for example, a certificate of state registration of the right of permanent (perpetual) use, a certificate of state registration of property rights). However, title documents issued before the issuance of certificates in accordance with the Federal Law “On State Registration of Rights to Real Estate and Transactions with It” (for example, certificates of ownership of land plots, state acts on the right of permanent (perpetual) use and lifelong inheritance ownership of land plots), retain their legal force (clause 9 of article 3 of the Federal Law of October 25, 2001 No. 137-F3 “On the entry into force of the Land Code of the Russian Federation”, clause 25 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 24 March 2005 No. 11 “On some issues related to the application of land legislation”),

What is the procedure for state registration of rights to land plots?

The procedure for state registration of rights to land plots, as well as transactions with them, is regulated by the Federal Law “On State Registration of Rights to Real Estate and Transactions with It.” Registration is of an application nature. In other words, the right of a person to a land plot (or a transaction with a plot) cannot be registered without an application from the right holder.

According to paragraph 1 of Art. 9 of the mentioned Law, state registration of rights to real estate and transactions with it is carried out by the federal executive body authorized in the field of state registration, and its territorial bodies operating in the relevant registration districts. Currently, such an authorized body is the Federal Registration Service (Rosregistration) and its territorial bodies (directorates and main departments of Rosregistration). Previously (before January 1, 2005), state registration was carried out by special bodies (Institutions of Justice for State Registration of Rights to Real Estate and Transactions with It) created by the constituent entities of the Russian Federation.

State registration is paid. According to Art. 11 of the above Law, a state fee is charged for state registration. The amount of such duty is established by the Tax Code of the Russian Federation.

Thus, in order for the right holder to register his right to a land plot (or a transaction with it), it is necessary to pay the state fee for state registration to the federal budget and apply for state registration to the relevant territorial body of the Federal Registration Service.

The application for state registration must be accompanied by the documents necessary for its implementation. Such documents can be divided into the following groups.

1. Documents confirming the legal capacity of the copyright holder. This includes the constituent documents of a legal entity. When submitting documents, an individual presents an identification document, such as a passport.

2. Documents confirming the right to act on behalf of the copyright holder. If another person applies for state registration on behalf of the copyright holder, it is necessary to issue an appropriate power of attorney. Moreover, a power of attorney from an individual must be notarized. In the case when its director acts on behalf of the organization, documents are required confirming the fact of his appointment (election) to the relevant position (for example, minutes of the general meeting of shareholders on the appointment of the general director of the joint-stock company, etc.).

3. Documents containing a description of the land plot. Such a document is a land plot plan in accordance with clause 1 of Art. 17 of the Federal Law “On state registration of rights to real estate and transactions with it.” A land plot plan is a mandatory attachment to documents submitted for state registration.

4. Documents that are the basis for the emergence (transfer, termination) of rights to a land plot. The list of such documents is established by Art. 17 of the Federal Law “On state registration of rights to real estate and transactions with it.” These include:

acts issued by state authorities or local self-government bodies within their competence and in the manner established by the legislation in force at the place of publication of such acts at the time of their publication;

contracts and other transactions in relation to real estate, concluded in accordance with the legislation in force at the location of the real estate at the time of the transaction;

acts (certificates) on the privatization of residential premises, completed in accordance with the legislation in force at the place of privatization at the time of its completion; certificates of inheritance; judicial acts that have entered into legal force; acts (certificates) of rights to real estate, issued by authorized government bodies in the manner established by the legislation in force at the place of issue of such acts at the time of their issue;

other acts of transfer of rights to real estate and transactions with it to the applicant from the previous copyright holder in accordance with the legislation in force at the place of transfer at the time of its completion;

other documents that, in accordance with the legislation of the Russian Federation, confirm the existence, emergence, termination, transfer, restriction (encumbrance) of rights.

State registration is carried out within one month from the date of submission of all documents.

The copyright holder is issued a document certifying the state registration. Such a document is a certificate of state registration. In the case of registration of a transaction with a land plot (for example, in the case of registration of a lease agreement), state registration is certified by affixing a special certifying inscription (usually in the form of a special stamp) on a document expressing the content of the transaction (for example, on a land lease agreement).

At the same time, the law provides for cases when state registration is carried out within a period exceeding one month. In some cases, it is possible to suspend registration for a period of no more than one month (except for the main monthly registration period). The grounds for suspension of registration are specified in Art. 19 of the Federal Law “On state registration of rights to real estate and transactions with it.” State registration of rights is suspended by the state registrar if he has doubts about the existence of grounds for state registration of rights, as well as about the authenticity of the documents presented or the reliability of the information specified in them. In this case, the registrar is obliged to take all necessary measures to resolve the current situation: notify the applicant, send appropriate requests to confirm the authenticity of documents, etc.

State registration may also be suspended at the written request of the applicant for a period not exceeding three months.

State registration of the right to a land plot (or a transaction with it) may be denied on the following grounds specified in Art. 20 of the Federal Law “On state registration of rights to real estate and transactions with it.”

1. The right to an object of real estate, the state registration of which is requested by the applicant, is not a right subject to state registration. A refusal on this basis is possible, for example, in the case when an application is submitted for state registration of a land lease agreement issued for a period of less than one year. Such an agreement is not subject to state registration in accordance with paragraph 2 of Art. 26 Land Code of the Russian Federation.

2. An improper person applied for state registration of rights. As mentioned above, state registration is of a declarative nature. The right to apply for registration of a right belongs to the person who acquires this right. Thus, the legislator protects the interests of subjects of rights to land plots.

3. The documents submitted for state registration of rights do not comply in form or content with the requirements of the current legislation. The largest number of cases fall under this basis for refusal. For example, the mandatory notarial form established for certain types of contracts has not been observed; the contract that serves as the basis for state registration lacks essential conditions, etc.

4. An act of a state body or an act of a local government body on granting rights to real estate is declared invalid from the moment of its publication in accordance with the legislation in force at the place of its publication at the time of publication. Refusal on this basis is possible due to the fact that the document that is the basis for registration (an act of a state body or local government body) has lost force.

5. The person who issued the title document is not authorized to dispose of the right to this real estate object. For example, the seller under a contract for the sale and purchase of a land plot is a person who is not its owner and, accordingly, does not have the right to dispose of it.

6. A person who has rights limited by certain conditions has drawn up a document without indicating these conditions.

7. The title document about the real estate object indicates that the applicant does not have rights to this real estate object. State registration as an act of confirmation and recognition of rights on behalf of the state can be carried out only in the case where the title documents clearly confirm the existence of the declared right of a specific person (applicant) to a specific land plot.

8. The copyright holder did not submit an application and other necessary documents for state registration of a previously arisen right to an object of real estate, the presence of which is necessary for state registration of the transfer of this right that arose after the entry into force of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It” , its restrictions (encumbrances) or a transaction with real estate completed after the entry into force of this Federal Law. Registration of rights that arose before the entry into force of this Law is mandatory in this case. Its absence prevents the registration of the transfer or restriction of rights, as well as transactions with the site.

9. The documents required in accordance with the specified Federal Law for state registration of rights have not been submitted. The list of required documents is discussed above.

10. There are contradictions between the declared rights and the already registered rights. Previously registered rights have priority. In the event that rights to a plot are applied for registration that conflict with those already registered, registration must be denied. In this case, the dispute about the law can be resolved in court.

In case of refusal of state registration, the applicant has the right to eliminate the reasons that served as the basis for the refusal and re-apply for state registration, again paying the state fee. The applicant also has the right to appeal the refusal in court (arbitration court).

What is the procedure for obtaining information about rights to land plots?

Information about registered rights to land plots is open, since according to Art. 6 of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It”, state registration is open. This means that any person, both individuals and legal entities, has the right to receive information about rights to land plots in compliance with the procedure established by law.

To obtain such information, you must contact the body that carries out state registration in the territory where the land plot of interest is located. Information is issued on the basis of a written application. When applying, you must present an identification document (for an individual) or documents confirming the registration of a legal entity (for legal entities) and the authority of a representative of the legal entity (power of attorney or document appointing the head of the organization).

Providing information about registered rights (as a general rule) is carried out for a fee, except in cases expressly established by law. Free information is provided, in particular, to courts, law enforcement agencies, state authorities and local governments.

Information is provided in the form of extracts from the Unified State Register of Rights to Real Estate and Transactions with It. Such an extract must contain a description of the land plot (address, area), registered rights to it, as well as restrictions (encumbrances) of rights, information about the legal claims existing at the time of issuance of the extract and the rights of claim in relation to this plot declared in court.

The extract is provided within five working days from the date of application.

At the same time, the copyright holder himself, as well as persons who received a power of attorney from him, or his legal representatives, can receive not only an extract, but also information about the contents of title documents, with the exception of information about restrictions (encumbrances), generalized information about the rights of an individual to the rights of the owner. real estate objects, extracts containing information about the transfer of rights to real estate objects. The same right is enjoyed by the heads of local government bodies and government bodies of the constituent entities of the Russian Federation, tax authorities within the territories under their jurisdiction, courts, law enforcement agencies and some others, a full list of which is contained in paragraph 3 of Art. 7 of the Federal Law “On state registration of rights to real estate and transactions with it.”

At the same time, the copyright holder himself has the right to obtain information about persons who applied for information about the land plots belonging to him.

What legal grounds are provided for the acquisition of ownership rights by citizens and legal entities to a land plot?

The grounds for acquiring property rights are generally established by Art. 218 of the Civil Code of the Russian Federation. The right of ownership to property that has an owner can be acquired by another person on the basis of a contract of sale, exchange, donation or other transaction for the alienation of this property. In the event of the death of a citizen, the ownership of his property is inherited by other persons in accordance with a will or law. In the event of reorganization of a legal entity, the ownership of the property belonging to it passes to legal entities - legal successors of the reorganized legal entity.

If the property does not have an owner, its owner is unknown or has abandoned the property or lost the right of ownership to it on other grounds, it is possible to acquire ownership of such property on the grounds provided by law.

The Land Code of the Russian Federation also establishes other, unknown articles. 218 of the Civil Code of the Russian Federation, grounds for acquiring ownership: registration of ownership by persons who used land plots before the entry into force of the Land Code of the Russian Federation - on the basis of the right of lifelong inheritable ownership (for citizens - Article 21 of the Land Code of the Russian Federation), permanent (perpetual) use (Art. 20 of the Land Code of the Russian Federation). In addition, ownership rights can also be registered by citizens of the Russian Federation who have in actual use land plots with residential buildings located on them, acquired by them as a result of transactions that were completed before the entry into force of the USSR Law of March 6, 1990 No. 1305–1 “On property in the USSR”, but which were not properly formalized and registered. In this case, we are talking about improper registration of land plots on which residential buildings are located.

Turning to the regulation of the emergence of ownership rights to land plots, it should be noted that in accordance with Part 3 of Art. 25 of the Land Code of the Russian Federation in the Russian Federation, ownership rights to land plots cannot arise, the ownership of which was terminated on the basis of the “Decree on Land” adopted in 1917, since lands nationalized during this period are not subject to return to the previous owners and their heirs.

What rights to a land plot does a person acquire with the acquisition of ownership of a building, structure, structure?

In accordance with Art. 35 of the Land Code of the Russian Federation, when transferring ownership of a building, structure, structure located on someone else’s land plot, the person to whom it is transferred acquires the right to use the corresponding part of the land plot occupied by the building, structure, structure and necessary for their use, for those the same conditions and to the same extent as their previous owner.

In the event of a transfer of ownership of a building, structure, structure to several owners, the procedure for using the land plot is determined taking into account the shares in the ownership of the building, structure, structure or the established procedure for using the land plot.

The area of ​​the part of the land plot occupied by a building, structure, structure and necessary for their use is determined in accordance with the Rules on establishing standards for the provision of land plots.

The owner of a building, structure, structure located on someone else's land plot has a pre-emptive right to purchase or lease a land plot, which is exercised in the manner established by civil law for cases of sale of a share in the right of common ownership to an outsider.

The Civil Code of the Russian Federation also regulates some of the relations regarding the transfer of rights to a land plot when transferring rights to a building or structure on it.

So, according to Art. 273 of the Civil Code of the Russian Federation, upon transfer of ownership of a building or structure that belonged to the owner of the land plot on which it is located, the rights to the land plot, determined by agreement of the parties, are transferred to the acquirer of the building (structure).

Unless otherwise provided by the agreement on the alienation of a building or structure, the acquirer receives the right of ownership to that part of the land plot that is occupied by the building (structure) and is necessary for its use. Thus, the Civil Code of the Russian Federation establishes that the size of the plot transferred to the purchaser of real estate can be determined by agreement with the owner of both the real estate and the land plot, i.e. if the seller of the building is the owner of the land. At the same time, the Civil Code of the Russian Federation establishes the rules for the transfer of ownership of a land plot when selling real estate, i.e., when concluding a purchase and sale agreement. So, according to Art. 552 of the Civil Code of the Russian Federation, under a contract for the sale of a building, structure or other real estate, the buyer, simultaneously with the transfer of ownership of such real estate, is transferred the rights to that part of the land plot that is occupied by this real estate and is necessary for its use.

In the case where the seller is the owner of the land plot on which the property being sold is located, the buyer is transferred ownership or is given a lease right or other right to the corresponding part of the land plot provided for in the real estate sale agreement. If the contract does not define the right to the corresponding land plot transferred to the buyer of the real estate, the buyer is given the right of ownership to that part of the land plot that is occupied by the real estate and is necessary for its use.

The sale of real estate located on a land plot that does not belong to the seller by right of ownership is permitted without the consent of the owner of this plot, unless this contradicts the conditions of use of such a plot established by law or agreement. When selling such real estate, the buyer acquires the right to use the corresponding part of the land plot under the same conditions as the seller of the real estate.

When applying the norms of legislation on the transfer of rights to a land plot in connection with the acquisition of ownership of a building, structure, structure, one should keep in mind the provisions of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 24, 2005 No. 11 (clause 13, etc.), which proceeds from the fact that the buyer of a building, structure, structure has the right, in accordance with the specified norms, to demand registration of the corresponding rights to the land plot occupied by real estate and necessary for its use, on the same conditions and to the same extent as the previous owner of the real estate, from the moment of state registration of the transfer of ownership of a building, structure, structure.

If the property is located on a plot of land owned by the seller on the right of permanent (perpetual) use, and the buyer, in accordance with Art. 20 of the Land Code of the Russian Federation, a land plot cannot be provided with such a right, the latter as a person to whom the right of permanent (perpetual) use of the land plot has been transferred in connection with the acquisition of a building, structure, structure (clause 2 of Article 268, clause 1 of Art. 271 of the Civil Code of the Russian Federation), can formalize its right to a land plot by concluding a lease agreement or acquire ownership of it in the manner provided for in paragraph 2 of Art. 3 of the Law on the entry into force of the Land Code of the Russian Federation.

At the same time, according to paragraph 2 of Art. 35 of the Land Code of the Russian Federation, the maximum dimensions of the area of ​​the part of the land plot occupied by a building, structure, structure and necessary for their use are determined in accordance with clause 3 of Art. 33 of the Land Code of the Russian Federation based on the norms of land allocation for specific types of activities or rules of land use and development, land management, urban planning and design documentation approved in the established manner.

What are the grounds for the emergence of the right of permanent (perpetual) use?

With the so-called primary grant of the right to permanent (indefinite) use of a land plot, the basis for acquiring this right is the decision of a state authority or local government to grant it to the user (Article 20 of the Land Code of the Russian Federation).

In addition, the right of permanent (perpetual) use may be acquired on other grounds provided for by law.

The grounds for acquiring the right of permanent (perpetual) use are also established by Art. 268 of the Civil Code of the Russian Federation, but in accordance with the specified Art. 20 of the Land Code of the Russian Federation, from the moment the Land Code comes into force, land plots are not provided to citizens, as well as legal entities, except for state and municipal institutions and federal government enterprises. Land plots on the basis of this right can also be provided to state authorities and local governments.

The right of permanent (indefinite) use of land plots in state or municipal ownership that arose among citizens or legal entities before the entry into force of the Land Code of the Russian Federation is retained. Thus, if a land plot was acquired by an organization before the entry into force of the RF Land Code, the right of permanent (indefinite) use is retained (see Article 20 of the RF Land Code).

Possibility of acquiring a land plot on the basis of the right of permanent (perpetual) use after the entry into force of the Land Code of the Russian Federation for persons not specified in clause 1 of Art. 20 of the Land Code of the Russian Federation, is significantly limited.

This is also indicated by the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 24, 2005 No. 11 “On some issues related to the application of land legislation”, according to paragraph 2 of which non-normative acts of authorized bodies on the provision of land plots on the right of permanent (perpetual) use legal entities not specified in paragraph 1 of Art. 20 of the Land Code of the Russian Federation, and for citizens who are individual entrepreneurs, issued after the entry into force of the Land Code of the Russian Federation, must be declared invalid by virtue of Art. 13 of the Civil Code of the Russian Federation or not subject to application in accordance with Art. 12 of the Civil Code of the Russian Federation as contrary to the law.

At the same time, the transfer of this right is assumed upon the acquisition of real estate located on a land plot, on the basis of civil and land legislation, as well as upon the reorganization of a legal entity. This follows from the content of the relevant norms of the Civil Code of the Russian Federation and the Land Code of the Russian Federation.

Article 271 of the Civil Code of the Russian Federation establishes that the person to whom ownership rights to real estate located on someone else's land plot are transferred acquires the right to use the corresponding part of the land plot on the same conditions and to the same extent as the previous owner of the property. Article 35 of the Land Code of the Russian Federation, in turn, determines that the person to whom the ownership rights to a building, structure, structure located on someone else’s land plot are transferred, acquires the right to use the corresponding part of the land plot occupied by the building, structure, structure and necessary for their use, on the same terms and to the same extent as their previous owner.

Despite some discrepancies in Art. 271 Civil Code of the Russian Federation and Art. 35 of the Land Code of the Russian Federation, the use of part of the land plot, which is indicated by the Land Code of the Russian Federation, must be formalized by a certain legal title. The content and scope of the right transferred to the acquirer of real estate must correspond to the content and scope of the rights that belonged to the person alienating the real estate. In other words, if the person transferring ownership of the building, structure, land plot belonged to the right of permanent (perpetual) use, then the acquirer of the real estate cannot be transferred to a right other than the right of permanent (perpetual) use, since the previous owner of the property did not have any other right .

The legislation provides for the following rights to the ground.

Right of permanent (unlimited) use to the ground is real right persons who are not owners. The right to permanent (unlimited) use of a plot located in the state or municipal property, is provided on the basis of a decision of an authorized state or municipal body.

Public easement established by laws or regulatory legal acts RF, subject of the Russian Federation , local authorities in cases where it is necessary to ensure the interests states , local government or the local population, without seizure of land.

When a plot of land cannot be used for its intended purpose as a result of being encumbered with an easement, the owner has the right to demand:

• termination of a private easement by court;
• seizure, including through redemption, of a plot with compensation for losses or the provision of an equivalent land plot with compensation for losses (public easement).

Right of free temporary use to a land plot is the property right of persons who are not the owners. This right is terminated by the decision of the person who provided the land plot, or by agreement of the parties: upon expiration deadline for which the land plot was provided; when the land user refuses his right to the plot or due to forced seizure.

Rights to land are subject to state registration in the manner established for registration of rights to