What responsibilities does the owner of a land plot have?
In accordance with Article 42 of the Land Code of the Russian Federation, a list of responsibilities of owners of land plots and persons who are not owners of land plots is established for the use of land plots, according to which, owners of land plots and persons who are not owners of land plots are obliged to:
- use land plots in accordance with their intended purpose in ways that should not harm the environment, including the earth as a natural object;
- preserve boundary, geodetic and other special signs installed on land plots in accordance with the law;
- carry out measures to protect lands, forests, water bodies and other natural resources;
- promptly begin to use land plots in cases where the terms for the development of land plots are provided for in contracts;
- make timely payments for land;
- comply with the requirements of town planning regulations, construction, environmental, sanitary and hygienic, fire safety and other rules and standards when using land plots;
- prevent pollution, depletion, degradation, damage, destruction of lands and soils and other negative impacts on lands and soils;
- comply with other requirements provided for by the Land Code and federal laws.
One of the main responsibilities of land owners and non-owners is to use land plots in accordance with their intended purpose, belonging to a particular category of land and permitted use.
In case of failure to fulfill or improper fulfillment of the obligation to use land in accordance with their intended purpose, the owner of the land plot (a person who is not the owner of the land plot) may be held administratively liable in accordance with the legislation of the Russian Federation.
According to the provisions of Part 1 of Art. 8.8 Code of Administrative Offenses of the Russian Federation
the use of a land plot not for its intended purpose in accordance with its belonging to a particular category of land and the permitted use, or non-use of a land plot intended for agricultural production or housing or other construction, for the specified purposes within the period established by federal law, entails the imposition of an administrative a fine on citizens in the amount of one thousand to one thousand five hundred rubles; for officials - from two thousand to three thousand rubles; for legal entities - from forty thousand to fifty thousand rubles.
- The list of responsibilities of owners of land plots,
as well as other persons for the use of land plots established by Article 42 of the Land Code of the Russian Federation, includes the obligation to preserve special signs installed on land plots in accordance with the legislation of the Russian Federation.
- In accordance with the Methodological Recommendations for Conducting Land Surveying of Land Management Objects
(approved by Roszemkadastr), securing the boundaries of land management objects with boundary signs is carried out as one of the stages when carrying out land surveying.
The boundaries of the land management object, previously agreed upon with all interested parties, are fixed with boundary signs that record on the ground the location of the turning points of the boundaries of the land management object.
For the destruction or damage of boundary signs of the boundaries of land plots, as well as failure to fulfill obligations to preserve these signs in accordance with Part 1 of Article 7.2 of the Code of Administrative Offenses of the Russian Federation, the owner of the land plot, as well as another person who is not the owner of the land plot, may be subject to administrative penalties. For this violation, an administrative fine is imposed on citizens in the amount of three hundred to five hundred rubles; for officials - from five hundred to one thousand rubles; for legal entities - from five thousand to ten thousand rubles.
In what cases are land plots provided free of charge?
Lawyer Antonov A.P.
A plot of land can be provided free of charge if a citizen already owned it before October 30, 2001, as well as for the purpose of developing certain territories of the Russian Federation, including the Far Eastern District. The same opportunity is provided to certain categories of citizens, for example those with many children and Heroes of the Russian Federation. One of the principles of land legislation of the Russian Federation is the principle of payment for the use of land. However, in certain cases, land plots that are in state or municipal ownership can be provided to citizens for free ownership (clause 7, clause 1, article 1, clause 2, article 15, article 39.5 of the Land Code of the Russian Federation). Cases of free provision of state or municipally owned land plots to citizens can be divided into three groups.
Provision of land plots in connection with their being in possession (use) before October 30, 2001 This group includes the following cases of free provision of land plots to citizens. 1. On a plot of land actually in use by a citizen of the Russian Federation, there is a residential building, the ownership of which arose with this citizen (or with the person who inherited the house) before October 30, 2001 (the date of entry into force of the Land Code of the Russian Federation). In this case, the citizen has the right to acquire the specified plot of land free of charge (clause 4 of article 3 of the Law of October 25, 2001 N 137-FZ). 2. A plot of land provided to a citizen before October 30, 2001 on the right of permanent (indefinite) use or on the right of lifelong inheritable ownership is withdrawn for state or municipal needs. In this case, the citizen may be given, without holding a tender, another plot of land free of charge to replace the one being seized (Clause 27, Article 3 of Law No. 137-FZ). 3. The plot was provided to the citizen until October 30, 2001 on the right of lifelong inheritable ownership or permanent (indefinite) use for personal subsidiary plots, dacha farming, vegetable gardening, horticulture, individual garage construction or individual housing construction (hereinafter referred to as individual housing construction). In this case, the citizen has the right to register ownership of this plot. The same right belongs to citizens to whom the ownership of buildings (structures, structures) located on the specified sites has been transferred by inheritance (or on other grounds) (clause 9.1 of Article 3 of Law No. 137-FZ).
Provision of land plots in connection with the development of certain territories of the Russian Federation Free provision of land plots is provided for by the legislator, in particular, for the purposes of the socio-economic development of certain territories of the Russian Federation. The following cases can be distinguished in this group. 1. A plot of land provided to a citizen in the territories defined by regional legislation for free use for individual housing construction, running a personal subsidiary plot or carrying out the activities of a peasant farm, after five years can be provided to the ownership of such a citizen free of charge. A similar rule applies to plots provided for free use for individual housing construction or for running personal subsidiary plots to citizens working at their main place of work in the territories and in specialties established by regional legislation. A necessary condition for obtaining such plots for free is their use for five years in accordance with the established permitted use (clauses 4, 5 of Article 39.5 of the Land Code of the Russian Federation). 2. A plot of land with an area of no more than one hectare on the territory of the Far Eastern Federal District can be transferred free of charge into the ownership of a citizen of the Russian Federation. Such a plot is transferred into ownership after five years from the date of its provision to the citizen for free use, and if the plot contains an individual housing construction project that belongs to the citizen by right of ownership and meets the established requirements, or if the citizen is provided with a loan for the construction of such an individual housing construction project with the condition transfer of a land plot after registration of ownership of it as collateral to a credit organization - before the expiration of the specified period. Also, a citizen has the right to rent the specified plot or acquire ownership of it for a fee if its area exceeds one hectare (clause 9 of article 39.5 of the Land Code of the Russian Federation; parts 2, 5, 6.1, 6.2 of article 2 of the Law of 01.05.2016 N 119-FZ; clauses 1, 2 of the Appendix to the Decree of the Government of the Russian Federation of September 16, 2020 N 1459).
Reference. Far Eastern Federal District The Far Eastern Federal District includes the territories of the Republic of Sakha (Yakutia), Kamchatka, Primorsky and Khabarovsk Territories, Amur, Magadan and Sakhalin Regions, the Jewish Autonomous Region and the Chukotka Autonomous District (Article 1 of Law No. 119-FZ).
With regard to a land plot from the forest fund lands in the Far Eastern District, a different rule has been established: after five years from the date of provision of such a plot for free use, it can only be provided for rent. Then, after ten years from the date of conclusion of the lease agreement, subject to the preliminary transfer of the plot from the forest fund lands to lands of other categories, the plot can be transferred into ownership (Part 6, Article 2, Part 13, Article 10 of Law No. 119 -FZ).
Provision of land plots to certain categories of citizens In particular, the following categories of citizens can count on free provision of land plots. 1. Large families with three or more children. Land plots are provided to the specified persons in the cases and in the manner established by the state authorities of the constituent entities of the Russian Federation. Thus, in the Moscow region, plots are provided for individual housing construction and gardening, subject to certain conditions. For example, members of a large family should not be the owners of residential buildings (buildings) on the territory of the Moscow region (clause 6, article 39.5 of the Land Code of the Russian Federation; article 1, clause 5, part 3, article 3 of the Law of the Moscow Region dated June 1, 2011 N 73 /2011-OZ). 2. Members of non-profit organizations (hereinafter referred to as NPOs). Members of NPOs created before 01/01/2019 for gardening, vegetable gardening or summer cottage farming, as well as members of horticultural or gardening non-profit partnerships created through the reorganization of such NPOs, regardless of the date of their entry into membership, may be provided with a plot before 03/01/2022, if it meets certain conditions. In particular, it must be formed from a plot provided before November 10, 2001 for gardening, vegetable gardening or summer cottage farming by the above-mentioned NPO or the organization under which the NPO was created or organized (clause 2.7 of Article 3 of Law No. 137-FZ). 3. Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory. Citizens belonging to this category of persons can be provided with a plot of land for individual housing construction, running personal subsidiary plots, gardening, vegetable gardening (clause 1 of article 1.1, clause 4 of article 5 of the Law of January 15, 1993 N 4301-1). 4. Heroes of Socialist Labor, Heroes of Labor of the Russian Federation and full holders of the Order of Labor Glory. These persons have the right to receive a plot of land that is in state or municipal ownership, free of charge, without holding a tender for the purposes of individual housing construction, running personal subsidiary plots, gardening and vegetable gardening (part 1 of article 1.1, part 4 of article 3 of the Law of 09.01. 1997 N 5-FZ). In addition, certain categories of citizens may be provided with free ownership of land plots in cases provided for by regional legislation (clause 7, article 39.5 of the Land Code of the Russian Federation).
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
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From what moment does a plot of land appear as an immovable thing?
1. Apparently, disputes about the meaning of an entry in the register - both for the purposes of transfer of rights and for the purposes of the emergence of rights to an immovable thing - will remain a “stylistic” feature of our jurisprudence for a long time. It is curious that I have not seen such (quite emotionally charged) debates, for example, in the English, French or German literature available to me. The English and Germans simply write: the right is created by the recording, but the unscrupulous will not be protected. The French say: registers are for third parties, so the entry itself does not mean anything in the relations between the parties to the transaction; the right is transferred by the contract.
One way or another, dogma is established everywhere.
But we don’t. More precisely: it is almost established in the practice of the Supreme Arbitration Court of the Russian Federation (a record combined with a valid legal basis - a transaction, etc. - gives rise to law), based on the pre-reform text of the Code. Then it was reflected in amendments to the Code (the famous Article 8.1 of the Civil Code).
But then everything was spoiled by the Supreme Court, which spoke extremely unsuccessfully and incomprehensibly in paragraphs 3 and 38 of PPVS 25 about the meaning of the real estate register entry. The same discrepancy is in the practice of the collegiums of the supreme court - the civil collegium seems to have “Frenchized”, for them the entry in the register means nothing (this, of course, is strange, since it means that the judges of this collegium simply ignore the clear instructions of the current law) . The economic panel of this court prefers to remain on the side of the previous Supreme Arbitration Court practice and the norms of the Code on registration of rights. They consistently resolve cases in the sense that “no record, no right.” I completely agree with them in this approach.
The Constitutional Court stands somewhat apart - which periodically expresses itself in the sense that “state registration of rights completes the legal composition, based on the results of the accumulation of which the right of ownership arises.” That is, the Constitutional Court is also for the principle of law-generating registration (and not law-confirming).
In our literature there is discord, among practitioners there is also confusion: some join the “smart”, some the “beautiful” (decide for yourself - who is who from the opposing camps - Germanophiles - "insiders" or Francophones - "opposites" "). In my opinion, most practitioners and most academic lawyers agree with the approach that it is the registry entry that gives rise to the right to real estate.
2. However, the dispute about the law-generating and law-confirming functions of registering a right in the register is important not only for determining the moment of transfer of the right. The choice of registration model is also important for determining the moment from which an immovable thing as an object of civil rights, as a thing.
I have already written several times about the so-called. “horizontal division”, that is, registering ownership of a building as a way to legally divide one thing - a built-up site with a building on it - into two: the site and the building itself (for example, see here and here). It is this approach, for example, that is supported by the ecological panel of the supreme court (for example, in the Raiffeisenbank case (306-ES17-3016(2)), which recognized that a building becomes an immovable thing from the moment of the first state registration of the right to it.
This approach seems to me much more reasonable than the other one, which I call “Akyn”. The latter comes down to recognizing the building as an immovable thing from the moment of its construction. That is, if someone sees a physically existing building, understands that it is immovable, he makes a judgment that in front of him is an immovable thing.
I don’t think it’s necessary to go into detail about what this approach led to in tax disputes about real estate taxes. To disaster.
Now, apparently, we need to pay attention to the question of the moment at which a land plot arises as an immovable thing.
3. What approaches are there to determining this moment?
There are only three of them. A plot of land as an immovable thing can be considered to have arisen:
A. From the moment its actual boundaries are established (fencing, construction of a boundary ditch, etc.);
B. From the moment of legal establishment of boundaries (through their description by a cadastral engineer and subsequent entry into the cadastre);
B. From the moment information about the plot is entered into the register of rights to immovable things by registering the first ownership of the plot.
Approach (A) does not stand up to criticism; it is still the same “akynism” that I wrote about above. The concept of a land plot does not exist in nature; it is an ideal structure invented by lawyers. Therefore, it cannot arise through some actual actions (installation of a fence, etc.); actions to form a site must be legal.
Approach (B), at first glance, looks very nice. It is this approach that is provided for in the Land Code, which defines a site as a land surface having described boundaries. And it is perfectly substantiated by K.I. Sklovsky and V.S. Kostko in the article “On the concept of a thing. Money. Real estate" (VEP 2021. No. 7). The authors’ logic is as follows: a thing is something that can be owned. To own things, you need to know their boundaries (for a site, the meaning of boundaries is still largely associated with archaic religious cults and symbolism). Due to the fact that the land plot is not recognizable sensually (I will add on my own - this is not a physical body, but space), in order for its boundaries to become generally recognized, the assistance of public authorities is required. Therefore, simple fencing is not enough for a site to become the object of private rights; it is necessary that the boundaries be recognized by public authorities.
(It’s a pity that this is not understood by the civil panel of our supreme court, which has expressed itself several times in the sense that since Article 130 of the Civil Code does not indicate such a feature of an immovable thing as established boundaries, then for the appearance of a land plot as a thing the establishment no boundaries are needed. There is no legal logic or common sense in this judgment).
Reasoning by K.I. Sklovsky and V.S. Costco would be perfect if not for one “but”. Unfortunately, it does not allow one fundamental difficulty to be resolved. If we assume that a land plot is an immovable thing from the moment its boundaries are entered into the cadastre (not the register of rights!), then who is its owner between this moment and the subsequent moment of registration of the right to it?
Yes, this time period can be quite short. However, this is not a reason to dismiss the issue of ownership of the site.
Firstly, it is quite conceivable that the boundaries of a site will be formed, but the property right will not be registered (for example, in the Registration Law there is a rule that the established boundaries of a site will exist for five years without subsequent registration of the right, after which they are deleted from the cadastre).
Secondly, even during this potentially short period, a lot of legally significant events can occur, for which the answer to the question of who owns the plot registered in the cadastre will be fundamental (for example, arrests will be made, claims in rem will be filed, etc.).
The basic answer for our right to this question should be this.
The Code clearly states in paragraph 2 of Art. 8.1 that, as a general rule, rights to immovable things arise from the moment an entry about the right is made in the register. The application of this norm together with approach (B) leads to a paradoxical answer. If the plot is an immovable thing from the moment the boundaries are established, then it is... an ownerless thing. After all, no one is recorded in the register as the owner of the plot, therefore, it does not have an owner. This is an absurd consequence and therefore incorrect. Consequently, approach (B) itself – that a plot as a thing arises from the moment of cadastral registration of boundaries – is incorrect.
Option (B) remains - the plot acquires the legal status of an immovable thing from the moment the first entry on the ownership of the plot is made in the register of rights. This, of course, can happen under the obligatory condition of preliminary cadastral registration of the site, that is, the establishment of its boundaries. Consequently, all the arguments of K.I. Sklovsky and V.S. Kostko on the importance of boundaries for the existence of things are more than fair.
However, of course, it should be noted that those land plots are considered immovable things, the rights to which were acquired before January 30, 1998, that is, before the introduction of a system of title registration in the real estate sector in our country. In order for such areas to acquire the regime of immovable property, they must have boundaries established. These can be either current land surveying rules or rules that were in force previously; in addition, the boundary can be established as a result of actual land use that has lasted more than 15 years.
4. An additional argument in favor of approach (B) is this. A thing is always an object of circulation; there are no non-negotiable things, they are simply not interesting to civil law. That is why, for example, the rule on “property withdrawn from circulation” was excluded from the Code. Civil law is the right of negotiability; what is not negotiable cannot be the object of property law. A plot registered in the cadastral register, but not entered into the register, cannot be the object of disposal, since in relation to an immovable property the latter is possible by making an entry in the register. Such a plot cannot be transferred into the ownership of another person, a mortgage, easement, etc. can be established. Simply because it does not exist as an object of real rights.
By the way, it is obvious that accepting approach (B) as correct requires some modification of views on the area recorded in the cadastre. It is certainly an object of legal relations for cadastral registration and therefore can be considered an object of cadastral registration, but not an object of real rights (a thing).
5. In order to more accurately understand the moment of the emergence of a plot as a thing, one should also discuss how a land plot arises. It is possible that, as in the case of sites whose rights arose before the introduction of the registration system, we will find exceptions to approach (B).
Off the top of my head, there are four cases of plots arising.
(a) From public lands.
(b) From private lands
(c) By natural occurrence
(d) By creating
(a) The first case is when a public entity (RF, subject or municipality) allocates from its lands (that is, from its natural resource, which is not a thing in the sense of private law, but is an element of a public domain, public property) some part of them, determines the boundaries of the allocated land, registers its ownership of the newly formed plot and then either transfers ownership to a private person or enters into obligatory transactions regarding the plot (lease agreement, etc.).
Let me remind you that the emergence of ownership rights to land plots during the delimitation of land between three levels of public entities is a case that constitutes exceptions to the principle of mandatory entry into the register for the purposes of the emergence of rights. This exception follows from the provisions of Art. 3.1 of the Introductory Law to the Land Code and is recognized by judicial practice (the famous case of the city of Syzran against Russia, considered by the Presidium of the Supreme Arbitration Court).
It turns out that the registration of the property rights of a public entity in the analyzed case is not title-establishing, but title-confirming, since by the time the entry is made it is already the owner - by virtue of the provisions of the law. Therefore, the argument about mismanagement given above turns out to be incorrect in the described case. And this means that in relation to such areas, approach (B) - the area is a thing from the moment the boundaries are established - is quite applicable.
(b) A new plot can be formed by “reorganizing” a private land plot - division, connection, etc. In this case, there are no deviations from the principle of entry; therefore, there is no possibility of seeing a thing in a plot that is registered in the cadastral register but not in the register of rights. Therefore, the general approach (B) should work here. Such a plot will become a new thing from the moment of the first registration of ownership of a private person who has carried out the “reorganization” of the plot.
(c) An interesting case of another possibility for the appearance of a site is its natural occurrence during the shallowing of rivers, lakes, changes in the coastline of the sea or the river bed.
Taking into account the fact that our law is based on the fundamental consideration that lands covered by public waters (lakes, rivers, seas, oceans) are always only public lands, the rules described above in paragraph (a) will apply here. .
(d) Finally, contrary to Mark Twain's famous joke, land can be created by artificial reclamation. If this was done by a public entity, then the rules on land delimitation apply and, therefore, the rules from paragraph (a) will be relevant. And if this is done by a private person, then his right to such a plot will arise only from the moment the right is registered in the register, therefore, approach (B) will be correct.
* * *
Thus, the general conclusion is this: a land plot acquires the legal regime of an immovable thing from the moment of the first registration of ownership of it. This, however, does not apply to land plots for which ownership was acquired before the introduction of a system of state registration of rights to immovable property in Russia, as well as in relation to land plots that are publicly owned.
I may have missed some arguments for and against approaches (B) and (C). I will be glad to see your comments!
