Establishment in court of the fact of ownership and use of a land plot by right of ownership.

Legislative framework in the field of actual land ownership

Most often, cases of refusal to register occur due to unwillingness to take responsibility for:

paying taxes;
making rent payments;
restoration procedures with land plots.

to prove ownership of land that does not have official registration. State legislation creates the conditions necessary for timely and correct registration of a land plot in order to avoid problems when using real estate (rent, sale, division of property). The legal basis in the field of land ownership is federal laws. Unfortunately, their action does not always find the correct application in practice.

Participants and categories in land relations

In accordance with the Land Code of the Russian Federation, land users can be:

individuals;
legal entities;
education of state and municipal significance.

Actual land use includes the following categories:

citizens who have property rights to use the property;
citizens who occupied a certain land plot without registering documents and obtaining legal rights;
persons who received ownership rights during the validity of official legal documents (full payment of rent, entry into inheritance rights).

Unauthorized seizure of territory is punishable by state legislation within the framework of administrative liability.

Simply and in order about one case, of which thousands are considered in courts every year. Useful for novice lawyers. 1. The circumstances of the case.

On February 22, 1973, by decision of the board of the collective garden “Urozhay”, the husband of our Trustee was accepted as a member of the artel of gardeners, which is confirmed by an extract from minutes No. 24 of the meeting of the plant committee of the Vladimirsky trade union. 01/20/19915 By order of the head of the administration of the city of Vladimir No. 73-r, the partnership of gardeners “Harvest” was provided with a plot of land used by them, located at the address: Vladimir, area of the Sodyshka River reservoir, which is confirmed by an archival certificate from the State Institution of the Vladimir Region “ State Archives of the Vladimir Region." 04/27/1995 The Chairman of the Committee on Land Resources and Land Management of the city of Vladimir issued a Certificate of Land Ownership (with attachment) to the husband - our Trustee - series VLO:22 No. 047707 - for a land plot with a total area of 699 sq.m. No. 14, located at the address: Vladimir, SNT "Urozhay", cadastral number at that time - VLO:22:2:1:021:014, territory of agricultural use, gardens.

On August 28, 2003, the husband of our Trustee died, as confirmed by the death certificate. 05/18/2004 at the notary of the Vladimir notary district Yasinovskaya N.V. our Trustee, as the only heir by law, received a certificate of the right to inheritance by law - for the apartment and the balance of the cash deposit in the bank, which is confirmed by certificates of 05/18/2004, 12/16/2004. Documents for the land plot were not drawn up by a notary; our Trustee actually used the plot herself, paid contributions to SNT “Urozhay”, and bore the burden of its maintenance.

Currently, the land plot has cadastral number 33:22:021021:30, and the address is Vladimir, Harvest Garden, plot 14, total area - 699 sq.m., which is confirmed by the cadastral passport of the land plot issued by the Rosreestr Office for Vladimir region 12/28/2009. Currently, the land plot has a permitted type of use - gardening, which is confirmed by the Extract of the Vladimir Land Resources Administration (Appendix No. 8 to the application). Currently, the share payments for the land plot have been paid in full, which is confirmed by the SNT “Harvest” certificate No. 1 dated March 19, 2010. There is no dispute about the right to the land plot. The deceased has no other heirs. It is not possible to register a land plot in an administrative (extrajudicial) manner, because The certificate of ownership dated April 27, 1995 does not contain the seal of the Committee for Land Resources and Land Management of the city of Vladimir.

I need to establish a legal fact in order to formalize my ownership of a land plot. 2. Legal position. In accordance with Art. 262 Code of Civil Procedure of the Russian Federation “1. By way of special proceedings, the court considers cases: 1) on the establishment of facts of legal significance;” In accordance with Art. 264 Code of Civil Procedure of the Russian Federation “1. The court establishes the facts on which the emergence, change, or termination of personal or property rights of citizens and organizations depends. 2. The court considers cases to establish: 6) the fact of ownership and use of real estate;” In accordance with the answer to question No. 2 in the review of legislation and judicial practice of the Supreme Court of the Russian Federation for the 3rd quarter of 2006, approved. By the Resolution of the Presidium of the Supreme Court of the Russian Federation dated November 29, 2006, “the court has the right to establish the legal fact of ownership and use of real estate under the right of ownership.” In accordance with Art. 8 of the Civil Code of the Russian Federation “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, but due to the general principles and meaning of civil legislation give rise to civil rights and responsibilities. In accordance with this, civil rights and obligations arise: 3) from a court decision establishing civil rights and obligations;”

3. The circle of interested parties participating in the case.

Administration of the city of Vladimir, Vladimir, st. Gorkogo, 36 Department of land resources of the administration of the city of Vladimir, 600025, Vladimir, Oktyabrsky prospect, 47 Horticultural non-profit partnership "Urozhay", Vladimir, garden Harvest Department of the Federal Service for State Registration, Cadastre and Cartography for the Vladimir Region, 600025 , Vladimir, Oktyabrsky Avenue, 47 Notary of the Vladimir notary district Nadezhda Vladimirovna Yasinovskaya, Vladimir, st. Stroiteley, building 4

4. Petition part of the application:

Based on the above, guided by Art. 8 Civil Code of the Russian Federation, Art. Art. 262, 264 - 267 Code of Civil Procedure of the Russian Federation I ASK THE COURT: 1. To establish the fact of my ownership and use of the land plot, cadastral number 33:22:021021:30, address - Vladimir, Harvest Garden, plot 14, total area - 699 sq.m. 2. In confirmation of the fact of ownership and use of the specified plot on the right of ownership, I ask, as a pre-trial preparation, to call and interrogate witnesses who can confirm the circumstances specified in the claim: · Sergei Nikolaevich Fedotov, residing at the address: ______________ · Alexander Ivanovich Prokhorov, residing at the address: _____________ · Semenova Angelina Aleksandrovna, living at the address: _____________ 3. In confirmation of the fact of ownership and use of the specified plot on the right of ownership, I ask, in the order of pre-trial preparation, to request from the notary of the Vladimir notarial district N.V. Yasinovskaya. materials of the inheritance file of the deceased - Solodilova A.I., born in 1931.

5. Summary.

The court granted the submitted application and after the decision entered into legal force, the ownership of the land was registered with the Federal Registration Service.

The problem of identifying land plots

Practice shows that in many situations it is almost impossible to prove unauthorized seizure of land. The difficulty lies in the lack of criteria for identifying a certain area of the territory. In this case, it is very difficult to properly regulate civil relations.

If the State Real Estate Cadastre does not contain information about a land plot, then it is virtually impossible to determine its boundaries. Therefore, it is not possible to conduct a trial in accordance with government regulations. Real estate that is not registered in the cadastral register does not have any guarantees for the owners. In view of this, the authorities are forced to introduce into the legal framework a separate concept of “ actual land use ”, to which specific rules of application in judicial practice are assigned.

Land Code actual land use

Preparation of land surveying projects is carried out as part of territory planning projects or as a separate document.
4. The sizes of land plots within the boundaries of built-up territories are established taking into account the actual land use and urban planning standards and rules that were in force during the development of these territories. If, in the process of land surveying, land plots are identified whose dimensions exceed the maximum (minimum and (or) maximum) sizes of land plots established by the town planning regulations, land plots formed on the basis of the identified plots are provided for construction, provided that their sizes comply with the town planning regulations.

Responsibilities of land users

Actual land use involves a number of responsibilities that citizens using a certain territory assume:

protection of forest resources, water bodies and ecosystems;
compliance with fire safety standards and regulations;
compliance with the regulations of the Town Planning Code of the Russian Federation;
countering pollution and combating the processes of pollution of soils, water bodies and air;
prevent deterioration of fertile soils.

Rights and obligations of land users

Rights granted to land users:

Erect residential and non-residential buildings on the site. The type of construction must correspond to the intended purpose of the land. In certain areas, the construction of residential buildings is permitted, others are intended for utility premises, etc.
Use the resources of the earth for your own benefit.
Carry out work aimed at qualitatively improving the properties of the site. For example, install systems that will help moisten dry soil.

Responsibilities assigned to land users:

The land must be used in accordance with the intended purpose of the site. For example, land intended for agricultural work should not be used for individual housing construction;
Do not interfere with the location of signs installed as a result of land surveying, etc.;
Monitor the implementation of fire safety measures and the preservation of the favorable environmental condition of the area;
Maintain the area in proper condition;
Release the occupied territory when the contract expires;
Make required payments for the use of land.

Documentary features of land use

Despite the imperfection of legislation in this area, actual land use must be supported by certain papers and documents:

paper indicating official permission to use a certain part of the land;
a notarized agreement indicating the acquisition of a property located on the land plot under study;
The result of a legal proceeding indicating that specific individuals have the right to use a piece of land or real estate located within it.

The imperfection of legislation in this legal area causes some disagreements. Many experts do not agree with the correctness of using the above documents as confirmation of the right to use land.

It should also be taken into account that persons who have been using a plot of land for fifteen years can freely claim ownership. The Civil Code of the Russian Federation in this case takes into account the property of acquisitive prescription and regulates certain requirements for it. The right of ownership is acquired after fifteen years of use if the citizen:

continuously uses the land;
bears responsibility for its safety and content;
conducts activities on a certain plot of land in good faith and openly;
Performs duties alongside property owners at all times.

Actual land user as an illegal participant in land relations

UDC 349.4

Magazine pages: 72-79

Yu.A. UMERENKO,

Candidate of Legal Sciences, Legal Advisor at Kvantum CJSC [email protected]

The issue of an “illegal” participant in land relations—the actual land user—is explored. The connection between the concept of “actual land user” and the definition of “actual land use” is analyzed. The necessity of introducing these categories into the legislation of the Russian Federation is substantiated.

Key words: land plot, actual land user, actual land use, real estate object.

The Actual Land User as a Member of an Illegal Land Relations

Umerenko Yu.

The article deals with the question of the “illegal party” land relations - the actual land user. The connection between the concept of “actual land user” with the definition of “actual land use” is considered. The author substantiates the need for the legislation of these categories.

Keywords: land lot, the actual land user, the actual land use, object of real estate.

Modern Russian legislation contains a fairly broad regulatory framework for regulating legal relations in the field of land relations.

By order of the Government of the Russian Federation dated March 3, 2012 No. 297-r, the Fundamentals of state policy for the use of the land fund of the Russian Federation for 2012-2017 (hereinafter referred to as the Fundamentals) were approved. The fundamentals determine that the state policy of the Russian Federation on managing the land fund of the Russian Federation “is aimed at creating and improving legal, economic, social and organizational conditions for the development of land relations, carried out based on the understanding of land plots as special objects of the natural world used as the foundations of human life and activity, means of production in agriculture and other activities, and at the same time as real estate with a special legal regime.”

At the same time, despite the importance of the legal regulation of land relations, the land legislation of the Russian Federation has not yet regulated a number of issues relating to many subjects of land legal relations.

In the Russian Federation, there are many land plots, the rights to which are not registered in accordance with legal requirements, which poses a serious problem for the development of the land market. Often, the reluctance to formalize rights to land plots is due to economic inexpediency (payment of rent, land tax, obligation to bring land plots to their original condition when carrying out certain types of economic activities, etc.).

The Russian Federation is taking significant measures to ensure that land legal relations are brought into compliance with the requirements of the legislation of the Russian Federation, which is reflected in federal laws, but these measures have not yet made it possible to complete the process of registering rights to land plots. Many actual participants in land relations remain outside the legal framework, and this should not be left without due attention.

Moreover, issues related to the protection of the rights of actual land users have recently acquired particular significance in judicial practice, and therefore the issue of the concept and legal status of actual land users requires independent theoretical and practical consideration, taking into account modern realities and the level of development of land relations.

In accordance with paragraph 1 of Art. 5 of the Land Code of the Russian Federation dated October 25, 2001 No. 136-FZ (hereinafter referred to as the Land Code of the Russian Federation) “participants in land relations are citizens, legal entities, the Russian Federation, constituent entities of the Russian Federation, municipalities.”

In paragraph 2 of Art. 5 of the Land Code of the Russian Federation establishes: “The rights of foreign citizens, stateless persons and foreign legal entities to acquire ownership of land plots are determined in accordance with this Code and federal laws.” From the analysis of these norms it follows that the list of participants in land relations is closed, i.e. exhaustive.

Clause 3 of Art. 5 of the RF Land Code establishes: for the purposes of this code, the following concepts and definitions are used:

“owners of land plots - persons who are the owners of land plots;

land users - persons who own and use land plots on the right of permanent (indefinite) use or on the right of gratuitous fixed-term use;

landowners - persons who own and use land plots on the right of lifelong inheritable ownership;

tenants of land plots - persons who own and use land plots under a lease agreement or sublease agreement;

easement holders - persons who have the right to limited use of other people’s land plots (easement).”

The conceptual and categorical apparatus of the Land Code of the Russian Federation in this part does not take into account and does not reflect such a concept as “actual land user,” which is a significant drawback of the land legislation of the Russian Federation. Actual land users as subjects of land legal relations from the point of view of the conceptual and categorical apparatus of the Land Code of the Russian Federation stand outside the framework of the legal field, while objectively they exist. In addition, often the status of “actual land user” precedes the transition to the legal category of “participants in land relations.”

The existence of such “illegal” participants in land relations is confirmed by Art. 7.1 of the Code of the Russian Federation on Administrative Offenses of 2001, which provides for administrative liability for unauthorized occupation of a land plot or use of a land plot without duly executed title documents for the land, and, if necessary, without documents permitting the implementation of economic activities.

In paragraph 1 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 11 “On some issues of application of the Special Part of the Code of the Russian Federation on Administrative Offenses” it is stated: “When considering cases challenging decisions of administrative bodies on bringing to administrative responsibility for these offenses, courts should take into account, that unauthorized occupation of land means the use of someone else’s land plot in the absence of the will of the owner of this plot (another person authorized by him), expressed in the prescribed manner.”

However, in practice, a land plot may actually have no owner, for example, in the case where the land plot belongs to undelimited property, while the presumption of state ownership of land, enshrined in paragraph 2 of Art. 214 of the Civil Code of the Russian Federation of 1994 (hereinafter referred to as the Civil Code of the Russian Federation), in this case is of a nominal nature.

In this regard, unauthorized occupation of a land plot can occur not only in the absence of the will of the owner of this plot (another person authorized by him), but also if it is impossible to identify the legal owner of the land plot, which excludes the possibility of an expression of will in such a case.

It should be taken into account that, within the meaning of paragraph 10 of Art. 3 of the Federal Law of October 25, 2001 No. 137-FZ “On the implementation of the Land Code of the Russian Federation”, as a general rule, the management and disposal of land plots, state ownership of which is not delimited, is carried out by local government bodies.

The statement about the presence of “illegal” participants in land relations at first glance may seem dubious, due to the fact that the establishment of administrative liability for the unauthorized occupation of a land plot or the use of a land plot without duly executed land title documents aims to suppress the illegal actions of the relevant persons, which excludes the possibility of their consideration as full participants in land relations.

At the same time, in the legislation of the Russian Federation there are a number of other norms that objectively indicate the presence of “actual land users”.

In accordance with paragraph 1 of Art. 36 of the Land Code of the Russian Federation, “unless otherwise established by federal laws, citizens and legal entities - owners of buildings, structures, structures have the exclusive right to privatize land plots or acquire the right to lease land plots.”

This norm is the basis for registration of rights to land plots by owners of real estate objects, depending on their expression of will. This rule is derived from the right of ownership of real estate objects.

Paragraph 14 of 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” states: “The buyer of a building, structure, structure located on a land plot owned by the seller on a lease basis, from the moment of registration of the transfer of rights ownership of such real estate acquires the right to use the land plot occupied by a building, structure, structure and necessary for their use on a leasehold basis, regardless of whether a lease agreement is duly drawn up between the buyer of the property and the owner of the land plot.” Thus, when an object of real estate is alienated, its former owner, by virtue of a direct indication of the law, is eliminated from the obligation to lease the land plot.

The presence of this norm indicates the legal possibility of the owners of real estate objects using land plots without registering rights to them in accordance with the requirements of the legislation of the Russian Federation (outside of obligations and real relations), due to the direct instructions of the law. Moreover, the lack of documents for land plots among the owners of real estate objects may be due to various reasons (expiration of the lease of a land plot, alienation of a real estate object from state and municipal property without a land plot, etc.).

It is necessary to take into account that in accordance with paragraph 3 of Art. 28 of the Federal Law of December 21, 2001 No. 178-FZ “On the privatization of state and municipal property”, owners of real estate that are not unauthorized buildings and located on land plots related to state or municipal property are required to either lease or purchase from the state or municipal formation the specified land plots, unless otherwise provided by federal law.

However, the legislation of the Russian Federation does not establish a time limit for the fulfillment of this obligation by the owners of real estate objects, in connection with which it can be argued that the stay of the owner of a real estate object in the status of “actual land user” can be very long and is not limited by any terms, subject to the inaction of the authorized bodies state power and local self-government.

As an example, we can cite case No. A56-49850/04 (FAS of the North-Western District dated December 16, 2005), which considered the application of the Committee for Municipal Property Management of the Municipal Formation "City of Sosnovy Bor" of the Leningrad Region (hereinafter - KUMI) for recovery from Limited Liability Company "Gatchina Oil Company" (hereinafter referred to as the Limited Liability Company) of unjust enrichment for using a land plot without legal grounds.

The claim was rejected by the decision of the court of first instance. The decision was overturned by the court of appeal. The amount of unjust enrichment was partially recovered from the Limited Liability Company in favor of KUMI. The rest of the claim was denied. The cassation court upheld the decision of the appellate court, pointing out the following.

The limited liability company is the owner of the property - a gas station. The seller of this property used the land plot on the basis of a lease agreement, therefore the Limited Liability Company, regardless of the fact that the land plot lease agreement was not executed, is obliged to pay a fee for use based on rental rates.

In fact, in the above example, the court considered that the new owner of the building, structure, structure had so-called actual land use, which, however, does not relieve him of the obligation to pay for this use.

The court came to a different conclusion when considering case No. KG-A40/1308-05 (FAS Moscow District dated March 16, 2005). As part of this case, the land committee filed a claim with the arbitration court against ZAO-1 for the collection of rent arrears and penalties under the land lease agreement. ZAO-2 was brought in to participate in the case as the second defendant.

By decision of the court of first instance, the amount of rent arrears was recovered from ZAO-2 in favor of the land committee. The rest of the claim was denied. The cassation court found no reason to change this decision, pointing out the following.

A land lease agreement was concluded between the Land Committee and ZAO-1. The court found that the owner of the buildings located on this land plot became a Limited Liability Company on the basis of a purchase and sale agreement concluded by it with ZAO-1. Subsequently, as a result of the transformation of the Limited Liability Company into ZAO-2, the latter, being the legal successor of the limited liability company, became the owner of the disputed buildings.

By virtue of the Civil Code of the Russian Federation and the Land Code of the Russian Federation, the rights and obligations of the tenant under the land plot lease agreement in the same volume and on the same conditions were transferred first to the Limited Liability Company, and subsequently to ZAO-2, i.e., a replacement took place in the said agreement the tenant of ZAO-1 to the Limited Liability Company, and subsequently to ZAO-2, which is the legal successor of the latter.

In this case, the court proceeded from the fact that when the ownership of the buildings was transferred to the buyer, the rights and obligations under the lease agreement concluded between the owner of the land plot and the previous owner of the buildings were transferred to the buyer, i.e. there was a change of persons in the rental obligation (in the lease agreement) . Consequently, the new owner of the buildings must pay the rent established by the contract for the use of the land plot.

Supporting the position of the court that in the situation under consideration there is a change of persons in the obligation (lease agreement) by force of law (Civil Code of the Russian Federation), O.M. Kozyr and A.A. Makovskaya note: the legal structure laid down in the Land Code of the Russian Federation and the Civil Code of the Russian Federation is by no means flawless from the point of view of civil law. The authors point out: it remains absolutely unclear whether, as a result of such a change, the “entry” of the new owner of the building into the lease agreement concluded by the previous owner, with the emergence of a plurality of persons on the tenant’s side, or the “fragmentation” of the lease agreement into two independent contractual obligations: the new owner of the building in relation to that part of the site which is occupied by this property and necessary for its use, and the former owner of the building in relation to the rest of the site[1].

Taking into account the above, actual land users can be divided into three categories:

— persons who are owners of real estate objects;

- persons who arbitrarily occupied land plots without registering any legal

establishing documents;

- persons who use land plots after the expiration of specific obligatory legal relations (lease, gratuitous fixed-term use) or who have not formalized rights arising due to legal succession (for example, heirs).

From a practical point of view, the analysis of the legal status of actual land users who are the owners of real estate is of greater interest.

As noted above, the land legislation of the Russian Federation, including Art. 36 of the Land Code of the Russian Federation, does not contain any time limits for the exercise of the exclusive right to acquire ownership of a land plot or to draw up a lease agreement for a land plot.

The “exclusivity” of this right applies equally to all owners of real estate, regardless of the form of ownership.

From the point of view of legal technology, the formulation “exclusive right” seems incorrect, since in the system of subjective civil rights the exclusive right is a type of intellectual rights and its legal content is determined by the Civil Code of the Russian Federation.

In accordance with established practice, when the owners of real estate objects exercise their exclusive rights, authorized state and local government bodies provide land plots in the minimum size, regardless of the actual land use and the area of the land plot necessary for the operation of the corresponding real estate object, and the activities carried out in it.

This state of affairs is due to the fact that the norms for land allocation for specific types of activities in accordance with the rules of land use and development, land management, urban planning and design documentation, the adoption of which is provided for in paragraph 3 of Art. 33 and paragraph 2 of Art. 35 of the RF Land Code have not been adopted to date, which leads to the possibility of discretion of state authorities and local self-government and the manifestation of corruption.

In accordance with paragraph 4 of Art. 11.3 of the Land Code of the Russian Federation, the formation of land plots is permitted with the written consent of land users, landowners, tenants, mortgagees of land plots, from which land plots are formed during division, merger, redistribution or allocation.

From the literal interpretation of this norm, taking into account clause 3 of Art. 5 of the Land Code of the Russian Federation, the conclusion follows: the consent of actual land users who are the owners of real estate objects is not required when creating land plots (the rights to which have not been formalized, but there are grounds).

It seems that this state of affairs significantly violates the legal rights and interests of the owners of real estate, since when exercising the exclusive right to privatize a land plot or register a lease right, the area of the land plot can be significantly reduced, which can lead to negative consequences, as well as additional financial burden.

Such violations may affect the economic activities of the owner, for example, planning the construction of real estate objects or the use of the adjacent territory for business purposes (if the real estate object is an industrial warehouse, then it is logical that parking for unloading and vehicles should be equipped in the adjacent territory).

In accordance with the emerging law enforcement practice, in such a situation, the courts take the position of owners of real estate objects who have not formalized their rights to land plots in the prescribed manner[2]. In addition, illegal actions of third parties (unauthorized occupation of a land plot, poisoning, pollution, damage or destruction of the fertile layer, etc.) may result in the impossibility of using the real estate located on the land plot.

For the owner of a real estate property in such a situation, there are no effective ways to protect civil rights, since identifying the owner of the land plot in order to establish the material and legal grounds for filing a claim will be legally significant in this situation.

It should also be noted: in practice, it is often impossible to identify actually used land plots as an object of civil rights, due to the fact that they do not comply with the requirements of Art. 11.1 of the Land Code of the Russian Federation, i.e. their boundaries are not defined in accordance with federal laws and, accordingly, information about them is not included in the state real estate cadastre in accordance with Federal Law dated July 24, 2007 No. 221-FZ “On the State Real Estate Cadastre,” which is significant complicates, and in some cases excludes, the possibility of protecting the rights and legitimate interests of owners of real estate in court.

Consequently, in modern conditions, there is an objective need to introduce the concepts of “actual land use” and “actual land user” into the legislation of the Russian Federation and endow them with a certain legal content.

The RF Land Code uses the definition of “actual land use” only in one case: in the context of size when forming a land plot for the purpose of exercising an exclusive right (Clause 7, Article 36 of the RF Land Code). In a similar context, this term is used in Part 4 of Art. 43 of the Town Planning Code of the Russian Federation of 2004, however, the concept itself and its essential characteristics are not disclosed.

The need to introduce such concepts into the legislation of the Russian Federation is determined by a number of circumstances.

In accordance with Art. 42 of the Land Code of the Russian Federation, owners of land plots and persons who are not owners of land plots are obliged to take measures to protect lands, forests, water bodies and other natural resources, including fire safety measures, to comply with the requirements of town planning regulations, construction, environmental regulations when using land plots , sanitary and hygienic, fire safety and other rules and regulations, to prevent pollution, littering, degradation and deterioration of soil fertility on lands of the relevant categories. In this regard, it is advisable to establish in the Land Code of the Russian Federation that actual land users bear the indicated responsibilities of land owners. The presence of such a norm would increase the degree of responsibility of actual land users.

According to T.G. Ivanova, it would be logical to recognize as the actual land user a person who has a decision from an authorized body to provide a land plot or a document on the acquisition of a building or structure located on such a plot, i.e., using the land plot legally (there is a document - the basis for the emergence of the right), but without properly executed documents on such rights for reasons beyond the control of the owner of the land plot. A person can be recognized as an actual land user if the following conditions are met: firstly, the legality of the provision of a land plot or the emergence of the right to use such a plot; secondly, the absence of a document on the rights to the land plot for reasons beyond the control of the right holder.

Analysis of legislation allowed T.G. Ivanova to conclude: actual land users must have one of the following documents: 1) a decision on the provision of a land plot; 2) an agreement on the acquisition of real estate located on this land plot; 3) a court decision recognizing the right to use a land plot or the right to real estate located on such a land plot[3].

We cannot agree with this point of view, since the presence of a decision on the provision of a land plot actually leads to the emergence of legal land legal relations, and therefore the relevant persons do not fall under the concept of “actual land user” due to the presence of title to the land plot, but are completely legal participants land relations.

The presence of title documents in the absence of title documents does not allow considering persons who have the first of these documents as actual land users, since title documents only certify the existence of the arisen right, and they can be obtained in the prescribed manner. For the same reasons, persons in respect of whom a court decision recognizing the right to a land plot, for example, heirs, cannot be classified as actual land users.

However, heirs who have not registered ownership of a land plot by way of inheritance, but who use land plots, should also be classified as actual land users.

In accordance with paragraph 1 of Art. 234 of the Civil Code of the Russian Federation, a person (citizen or legal entity) who is not the owner of property, but who in good faith, openly and continuously owns either his own real estate for 15 years or other property for 5 years, acquires the right of ownership of this property (acquisitive prescription) .

Regarding the issue of the possibility of extending the institution of acquisitive prescription to land plots, scientists do not have a consensus, which is due to the mentioned presumption of state ownership of land and other circumstances [4], just as there is no clearly established judicial practice on this issue.

Abstracting from this issue, which is of great practical importance for law enforcement practice, it should be noted that a person who is not the owner of a land plot, who in good faith, openly and continuously owns the land plot as his own real estate for 15 years, by virtue of clause 2 of Art. 234 of the Civil Code of the Russian Federation, before acquiring ownership rights to property, by virtue of acquisitive prescription, he has the right to protect his possession against third parties who are not the owners of the property, as well as those who do not have the rights to own it due to other grounds provided by law or contract.

It seems that in this case the actual land user must also have the right to protect his rights and legitimate interests, otherwise illegal actions of third parties, for example, seizure of a land plot, may lead to a break in the prescription of possession, which subsequently jeopardizes the recognition of ownership of the land plot by way of long-term possession.

The stay in the state of actual land user in this case is quite long; therefore, the legal status of the actual land user must be clearly defined and regulated by current legislation.

The need to introduce the concept of “actual land user” into the legislation of the Russian Federation is also determined by the economic component.

Thus, a fee must be collected from persons who are actual land users (this rule should apply only to owners of real estate). In this regard, the question arises: how and in what amount to charge?

In accordance with paragraph 1 of Art. 65 of the Land Code of the Russian Federation, the use of land in the Russian Federation is paid. The forms of payment for the use of land are land tax (before the implementation of the real estate tax) and rent[5].

The payment in such a situation should be determined from its maximum possible amount, taking into account increasing factors, which will stimulate the process of registering rights to land plots in accordance with the requirements of the land legislation of the Russian Federation. The introduction of such norms into legislation will serve as an additional incentive to ensure the stability of land turnover.

To summarize, we can draw the following conclusions.

Issues of actual land use are one of the most pressing topics in modern land legislation of the Russian Federation, both in the theoretical part and in the aspect of law enforcement.

In modern conditions, actual land users are objectively existing participants in land relations, and therefore their status requires separate legal regulation.

The existence of these entities is derived from the very concept of actual land use, which in turn can be derived from proprietary or obligatory legal relations on real estate objects located on land plots, or outside in connection with the presence of these objects, which entails liability established by the legislation of the Russian Federation .

The need for legal regulation of the concept of “actual land use” and the legal status of actual land users is due to the fact that this state, as the analysis shows, often precedes the transition of these subjects to the number of legal participants in land relations with all the ensuing legal consequences, while being in the “actual” status land user" can be very long due to the absence of any legal restrictions.

The legal status of actual land users must be based on the totality of rights and obligations of land owners in order to increase the responsibility of these entities for the land plots in their actual use.

The state, as the main regulator of public relations, should continue to search for effective mechanisms aimed at ensuring that land legal relations are brought in line by actual land users with the requirements of land legislation, taking into account the economic effect of this area of activity.

The existing gaps in the legislation of the Russian Federation on issues of actual land use and actual land users can be filled by judicial practice, which has not yet been formed on this issue.

At the same time, based on the results of the analysis of judicial practice, the most important points can be identified in relation to the problem under consideration.

Firstly, the exclusive right to privatize a land plot or register a lease means that no one other than the owner of a building, structure, structure has the right to privatize a land plot occupied by the corresponding building, structure, structure.

Secondly, the transfer of rights to an object of real estate entails, by force of law, the transfer of rights to the land plot on which this object is located (Article 35 of the Land Code of the Russian Federation), which entails the emergence of actual land use, regardless of whether the acquirer has a real estate object property of documents drawn up in accordance with the established procedure.

Thirdly, bodies of state power and local self-government cannot independently carry out measures to form land plots from a land plot that is in the actual use of a person who is the owner of a real estate property, since such actions can be challenged in court, while judicial practice on This issue is still in its infancy.

In conclusion, I would like to draw attention to the increased complexity of disputes concerning the rights of actual land users to land plots.

Judicial practice only partially compensates for the gaps in legislation in this area, and therefore, until now, in matters of actual land use, there remain many gaps that need to be filled. The lack of a coherent conceptual approach on this issue often leads to different resolutions of similar cases by the courts, which ultimately violates the rights and legitimate interests of the persons concerned. It also seems advisable to quickly formulate a unified position of the Supreme Arbitration Court of the Russian Federation and the Armed Forces of the Russian Federation on this issue. In this regard, it can be stated that in modern conditions, the theoretical and practical development of legal problems of actual land use and the derived concept of “actual land user” should become one of the priority tasks of science and practice due to the huge number of such “illegal” participants in land relations in the Russian Federation .

Bibliography

1 See: Kozyr O.M., Makovskaya A.A. “Single destiny” of a land plot and real estate objects located on it (reality and prospects) // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2003. No. 2. P. 107.

2 See, for example: decision of the Arbitration Court of the Moscow Region dated October 16, 2012 in case No. A41-6158/12.

3 See: Ivanova T.G. Features of legal relations regarding the establishment of boundaries in modern conditions // Environmental law. 2011. No. 1.

4 See, for example: Savin R.A. Claim forms of protection of acquisitive prescription and ownership of a disputed land plot // Civil law. 2010. No. 3; Landakov V.N. On some problems of long-term ownership // Civilist. 2011. No. 3; Anisimov A.P., Charkin S.A., Chikildina A.Yu. Current issues of recognition of rights to a land plot // Civilist. 2011. No. 1 and others.

5 About payment for land, see in more detail: Umerenko Yu.A. Institute of payment for land: state and problems // Eurasian Legal Journal. 2012. No. 6(49).

Features of actual land ownership in the context of state legislation

In the Land Code, theoretical and practical issues of land ownership remain relevant today. The problem of assigning a certain status to persons who are currently actual land users acutely affects the decisions of the highest government bodies.

At the moment, state legislation is aimed at increasing the efficiency of the processes of synchronizing the legal framework with the regulations of the Land Code. In this case, the main goal is to find mechanisms that could maximize the responsibility of land users in relation to land resources.

It is necessary to ensure a large-scale privatization process at the highest levels of legislative power. Such processes will have a positive impact on economic results and the settlement of civil and land relations. Increased control will also improve the conditions for conducting trials in this area of jurisprudence.

Author of the article

Dmitry Leonov

Work experience 15 years, specialization - housing, family, inheritance, land, criminal cases.

Author's rating

721

Articles written

712

about the author