Why is it necessary to survey the land under an apartment building, experts from the Cadastral Board explained in detail.

Mortgage loan from Otkritie Bank from 9.3% → Apply

In 2021, the land surveying procedure is not mandatory when signing a purchase and sale agreement or re-registering ownership of the property. But in the case of mortgages, bankers want to play it safe. That is why in the conditions for the pledge there will be a clause that the boundaries of the site must be clearly established.

The owner of the plot will carry out the procedure before the transaction, and he will sign the agreement with the neighbors. So there is a completely natural question: who will pay for the cadastral work? Let's consider all the options.

Current offers

Loan without refusal Loan with arrearsUrgently with your passportLoans at 0%Work in Yandex.TaxiYandex.Food courier up to 3,400 rubles/day!

Necessity of the procedure

Cadastral services are usually requested before the sale of property. Some buyers are savvy in this matter, so they want to understand what exactly they are purchasing. The new neighbor doesn’t care that the family has lived here for 20 years, but he may demand that the fence be demolished if it is built on his borders.

When conducting land surveys, one should expect that the size of previously “legal” land will increase or decrease by 10%. Situations often arise when one owner has entered an allotment into the register that does not correspond to the actual state of affairs, so that disputes arise between neighbors, which can only be resolved through the court.

Arpantage is also ordered to obtain permits for construction work or the laying of utilities on the territory.

Only then will the state allow such large-scale work to be carried out that it will be difficult to correct afterwards. But all new buildings will be immediately entered into the state register, and its borders will be protected by law.

Deal nuances

Loan without refusal Loan with arrearsUrgently with your passportLoans at 0%Work in Yandex.TaxiYandex.Food courier up to 3,400 rubles/day!

In 2021, they planned to introduce a mandatory land surveying procedure before selling real estate in order to close the issue of land plots hanging in the air, but such an initiative was not supported. So arpantage has no effect on alienation, transfer of ownership rights and other issues. It’s just considered an illiquid property, which could theoretically cause problems with nearby residents in the future.

As for paying for land surveying under a mortgage, land owners are unlikely to want to do anything at their own expense, since they can still sell the plot without this procedure. If possible, you should agree with the owner, it may be possible to divide the costs equally.

Often, owners begin the process of delimiting territory if disputes have flared up between them over acres. Owners expect that the cadastral engineer will resolve all issues for them, including disputes over the plot.

We have collected original reviews on this topic here, reviews from real people, many comments, worth reading.

In reality, the specialist will simply take the required measurements and find out which location of the plot boundaries corresponds to reality.

NTVP "Kedr - Consultant"

LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Land issues: plots, boundaries » Conducting surveying of a land plot when one of its three owners refuses to survey

Print

The applicant is one of three owners of the land plot; ownership was registered in 2021. The land survey has not been carried out previously; the owners want to carry out land surveying for the further sale of the site. At the same time, two owners want to carry out land surveying, but the third refuses.

Question

How to carry out land surveying in this situation?

Lawyer's answer

Two other owners can independently contact the cadastral engineer with an application for land surveying. (Federal Law No. 221-FZ “On Cadastral Activities” Article 39. Procedure for agreeing on the location of land boundaries).

1. The location of the boundaries of land plots is subject to mandatory approval in the manner established by this Federal Law (hereinafter referred to as approval of the location of boundaries) with the persons specified in Part 3 of this article (hereinafter referred to as interested parties), if as a result of cadastral work the location of the boundaries of the land plot is clarified a plot in respect of which the corresponding cadastral work was carried out, or the location of the boundaries of adjacent land plots, information about which is included in the Unified State Register of Real Estate, has been clarified.

(as amended by Federal Laws dated December 21, 2009 N 334-FZ, dated July 3, 2016 N 361-FZ)

2. The subject of the agreement specified in Part 1 of this article with the interested person when performing cadastral work is to determine the location of the border of such a land plot, which is also the border of another land plot belonging to this interested person. An interested person does not have the right to raise objections regarding the location of parts of the boundaries that are not at the same time parts of the boundaries of the land plot owned by him, or to agree on the location of the boundaries on a reimbursable basis.

(as amended by Federal Laws dated July 22, 2008 N 141-FZ, dated December 21, 2009 N 334-FZ)

3. Coordination of the location of boundaries is carried out with persons who own adjacent land plots by right:

1) property (except for cases where such adjacent land plots, which are in state or municipal ownership, are provided to citizens for lifelong inheritable possession, permanent (indefinite) use, or to legal entities that are not state or municipal institutions or state-owned enterprises, for permanent ( unlimited) use);

2) lifelong inheritable ownership;

3) permanent (indefinite) use (except for cases where such adjacent land plots are provided to state or municipal institutions, state-owned enterprises, state authorities or local governments for permanent (indefinite) use);

4) lease (if such adjacent land plots are in state or municipal ownership and the corresponding lease agreement is concluded for a period of more than five years).

ConsultantPlus: note. From January 1, 2021, Federal Law dated July 29, 2017 N 217-FZ amends Part 4 of Article 39. See the text in a future edition.

4. On behalf of the persons specified in Part 3 of this article, their representatives have the right to participate in the coordination of the location of borders, acting by virtue of powers based on a notarized power of attorney, an indication of a federal law or an act of an authorized state body or local government body. At the same time, a representative of the owners of premises in an apartment building, authorized for such approval by a decision of the general meeting of these owners adopted in the manner established by federal law (if the corresponding adjacent land plot is part of the common property of these owners), a representative owners of shares in the right of common ownership of a land plot from agricultural lands - by decision of the general meeting of owners of such shares (if the corresponding adjacent land plot is part of agricultural land and is owned by more than five persons), a representative of members of a horticultural, gardening or dacha non-profit association of citizens - by the decision of the general meeting of members of this non-profit association or by the decision of the meeting of authorized representatives of this non-profit association (if the corresponding adjacent land plot is located within the territory of this non-profit association and relates to public property). A representative of this body, authorized for such approval by a power of attorney drawn up on the letterhead of this body and certified by the seal and signature of the head of this body, has the right to participate in the coordination of the location of borders on behalf of a state authority or local government body. Notarization of this power of attorney is not required.

(as amended by Federal Law dated July 23, 2013 N 250-FZ)

4.1. In cases provided for by federal law, the State Government has the right to participate on its own behalf in coordinating the location of the boundaries of land plots intended for the location of public roads of federal significance.

(part four.1 introduced by Federal Law dated July 17, 2009 N 145-FZ)

4.2. The boundaries of land plots formed during the gratuitous transfer of military real estate from federal ownership to the ownership of a constituent entity of the Russian Federation or municipal property are subject to approval by the authorized executive body of the constituent entity of the Russian Federation or the local government body of the municipality into whose ownership the specified property is subject to gratuitous transfer. The boundaries of land plots are considered agreed upon if there is a letter from the executive authority of a constituent entity of the Russian Federation or a local government body on their approval with an attachment of the agreed draft boundaries of the land plot.

(Part 4.2 as amended by Federal Law dated August 3, 2018 N 308-FZ)

5. Coordination of the location of boundaries is carried out at the choice of the customer of cadastral work with the establishment of boundaries of land plots on the ground or without establishing the boundaries of land plots on the ground.

The interested party has the right to demand coordination of the location of the boundaries with their establishment on the ground. In this case, such coordination is carried out with the establishment of appropriate boundaries on the ground, with the exception of the cases provided for in Part 6 of this article.

6. Coordination of the location of boundaries is carried out without their establishment on the ground, regardless of the requirements of interested parties in the event that:

1) land plots, the location of the boundaries of which is agreed upon, are forest plots, land plots as part of lands of specially protected natural territories and objects or as part of agricultural lands intended for the implementation of traditional environmental management by indigenous peoples of the North, Siberia and the Far East of the Russian Federation;

2) the location of the boundaries of land plots subject to approval is determined by indicating natural objects or objects of artificial origin or their external boundaries, information about which is contained in the Unified State Register of Real Estate, which makes it possible to determine the location of the boundaries of such land plots subject to approval;

(as amended by Federal Law dated July 3, 2016 N 361-FZ)

3) the location of the boundaries of land plots, subject to approval, is determined by the location of a linear object on one of such land plots and the norms for land allocation for its location.

7. Coordination of the location of boundaries at the choice of the cadastral engineer is carried out through a meeting of interested parties or individual agreement with the interested party. Coordination of the location of boundaries through a meeting of interested parties without establishing the boundaries of land plots on the ground is carried out on the territory of the settlement within the boundaries of which the corresponding land plots are located or which is the closest settlement to the location of the relevant land plots, unless another location is determined by the cadastral engineer by agreement with interested parties.

8. In the case of agreeing on the location of borders through a meeting of interested parties, a notice of a meeting to agree on the location of borders is given to these persons or their representatives against signature, sent to the email address and (or) postal address at which communication with the person whose right is carried out registered on the property, as well as with the person in whose favor the restriction of right or encumbrance on the property is registered, contained in the Unified State Register of Real Estate in accordance with paragraph 7 of part 3 of Article 9 of the Federal Law of July 13, 2015 N 218-FZ “On State registration of real estate", with notification of delivery (if such information is available in the Unified State Register of Real Estate) or published in the manner established for the official publication of municipal legal acts, other official information of the relevant municipality. Publication of a notice of a meeting to agree on the location of boundaries is permitted if:

1) in the Unified State Register of Real Estate there is no information about the email address or postal address of any of the interested parties or a notice of a meeting to agree on the location of boundaries has been received, sent to the interested person by mail, with a note indicating the impossibility of its delivery;

ConsultantPlus: note. From January 1, 2021, Federal Law No. 217-FZ dated July 29, 2017 amends paragraph 2 of Part 8 of Article 39. See the text in a future edition.

2) the adjacent land plot is located within the territory of a horticultural, gardening or dacha non-profit association and belongs to common property, or is part of agricultural land and is owned by more than five persons, or is part of the common property of the owners of premises in an apartment building ;

3) land plots in respect of which cadastral work is carried out are forest plots.

(Part 8 as amended by Federal Law dated July 3, 2016 N 361-FZ)

9. The notice of the meeting to agree on the location of the boundaries must indicate:

1) information about the customer of the relevant cadastral work, including postal address and contact telephone number;

2) information about the cadastral engineer performing the relevant cadastral work, including his postal address, email address and contact telephone number;

3) cadastral number and address of the land plot in respect of which the corresponding cadastral work is being carried out, cadastral numbers and addresses of land plots adjacent to it (in the absence of addresses, information about the location of the land plots is indicated) or the cadastral number of the cadastral quarter within the boundaries of which the specified land plots are located ;

(as amended by Federal Law dated December 21, 2009 N 334-FZ)

4) the procedure for familiarizing yourself with the draft boundary plan, the place or address where this project can be familiarized with from the day of delivery, sending or publication of the notice;

5) place, date and time of the meeting to agree on the location of the boundaries;

6) deadlines and postal address for the delivery or sending by interested parties of requests for coordination of the location of boundaries with the establishment of such boundaries on the ground and (or) in writing justified objections to the location of the boundaries of land plots after familiarization with the draft boundary plan.

(as amended by Federal Law dated December 21, 2009 N 334-FZ).

An approximate form of notification is given in the Appendix to the order of the Ministry of Economic Development of Russia dated November 21, 2016 No. 735.

10. Notice of a meeting to agree on the location of boundaries must be served, sent or published at least thirty days before the date of this meeting. In this case, the period specified in paragraph 6 of part 9 of this article cannot be less than fifteen days from the date of receipt by the interested person of the relevant notice. The approximate form of the notification is established by the regulatory body in the field of cadastral relations. An interested person who refuses to accept notice of a meeting to agree on the location of boundaries is considered to have been duly notified of the meeting. When agreeing on the location of the boundaries of land plots on an individual basis, the requirements of this article on the procedure for notifying interested parties do not apply.

(as amended by Federal Law dated December 21, 2009 N 334-FZ)

11. When coordinating the location of boundaries, the cadastral engineer is obliged to:

1) check the powers of interested persons or their representatives;

2) provide the opportunity for interested parties or their representatives to familiarize themselves with the relevant draft boundary plan and provide the necessary explanations regarding its content;

3) indicate to interested persons or their representatives the location of the boundaries of land plots on the ground to be agreed (in case the location of the boundaries is agreed upon with their establishment on the ground).

12. When coordinating the location of boundaries, interested parties or their representatives present to the cadastral engineer identification documents, documents confirming the powers of representatives of interested parties, as well as documents confirming the rights of interested persons to the relevant land plots (except if information about the registered right interested person for the corresponding land plot are contained in the Unified State Register of Real Estate).

(Part twelve was introduced by Federal Law dated December 21, 2009 N 334-FZ; as amended by Federal Law dated July 3, 2016 N 361-FZ)

Article 40. Act of approval of the location of borders

1. The result of the approval of the location of the boundaries is drawn up by the cadastral engineer in the form of an act of approval of the location of the boundaries on the back of the sheet of the graphic part of the boundary plan.

2. The location of the boundaries of the land plot is considered agreed if the act of agreeing on the location of the boundaries contains personal signatures of all interested persons or their representatives, with the exception of the case provided for in Part 3 of this article. Details of documents proving the identity of such interested persons or their representatives, indicating the details of documents confirming the powers of representatives of interested persons, are indicated in the act of approval of the location of the borders.

(as amended by Federal Law dated July 23, 2013 N 250-FZ)

Advertisement , about which a corresponding entry is made in the act of agreeing on the location of the borders. Documents confirming compliance with the procedure for notifying the specified person established by this Federal Law are attached to the boundary plan. These documents are an integral part of the boundary plan.

(as amended by Federal Law dated December 21, 2009 N 334-FZ)

4. If the location of the relevant boundaries of the land plots is not agreed upon by the interested person or his representative and such person or his representative submitted in writing objections to this approval with justification for the refusal, entries about the content of these objections are made in the act of agreeing on the location of the boundaries. Objections submitted in writing are attached to the boundary plan and are an integral part of it.

5. Disputes that are not resolved as a result of agreeing on the location of boundaries, after drawing up an act of approval of boundaries, are resolved in the manner established by the Land Code of the Russian Federation.

In the “Methodological recommendations for conducting land surveying of land management objects (dated 02/17/2003, as amended on 04/18/2003), clause 14.3.” states that “if any of the above persons fail to appear at the border approval procedure or refuse to participate in the border approval procedure (failure to provide a reasoned refusal to approve the border), their absence or refusal to participate in the border approval procedure is recorded in the border approval act, and Preliminary surveying is carried out on the border of the land management object.

Within thirty calendar days, these persons are sent repeated notifications indicating the deadline for appearing for approval or providing a reasoned refusal to approve boundaries based on the results of the preliminary survey. In case of failure to appear within the specified period or failure to provide a reasoned refusal to approve the boundary, the boundaries of the land management object are considered established.

Disputes arising during the approval of boundaries are considered in the manner established by the legislation of the Russian Federation.”

Let's summarize: two owners can contact a cadastral engineer to carry out land surveying; he prepares a notice for all interested parties that the boundaries of the land plot will be coordinated at a certain time. If the third co-owner does not appear, a preliminary survey will be established for his part of the land plot. If the notification is not given again, the boundaries will be considered fully established.

After the land survey is completed, the other two owners need to correctly exercise the right of first refusal, in accordance with Art. 250 Civil Code of the Russian Federation.

Article 250. Pre-emptive right to purchase

1. When selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have the pre-emptive right to purchase the share being sold at the price for which it is sold, and on other equal conditions, except in the case of a sale at public auction, as well as cases of sale of a share in the right of common ownership of a land plot by the owner of a part of a building or structure located on such a land plot or by the owner of premises in the specified building or structure.

(as amended by Federal Law dated June 23, 2014 N 171-FZ)

Public auctions for the sale of a share in the right of common ownership in the absence of consent of all participants in shared ownership may be held in the cases provided for by part two of Article 255 of this Code, and in other cases provided for by law.

2. The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it.

If the remaining participants in shared ownership do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person. If all other participants in shared ownership refuse in writing to exercise the pre-emptive right to purchase the share being sold, such share may be sold to an outsider earlier than the specified deadlines.

The specifics of notifying participants in shared ownership of the intention of the seller of a share in the right of common ownership to sell his share to an outsider may be established by federal law.

(clause 2 as amended by Federal Law dated July 3, 2016 N 315-FZ)

3. When selling a share in violation of the pre-emptive right, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him.

4. Assignment of the pre-emptive right to purchase a share is not permitted.

5. The rules of this article also apply when alienating a share under an exchange agreement.

The third owner should be sent a “NOTICE of intention to sell a share of the land plot”, drawn up in accordance with the requirements of clause 2 of Art. 250 Civil Code of the Russian Federation.

Information for your information:

<1> According to Part 5 of Art. 1 of the Federal Law of July 13, 2015 N 218-FZ “On State Registration of Real Estate”, state registration of a right in the Unified State Register of Real Estate is the only evidence of the existence of a registered right.

At the same time, in accordance with Part 1 of Art. 69 of the Federal Law of July 13, 2015 N 218-FZ “On State Registration of Real Estate” rights to real estate that arose before the date of entry into force of the Federal Law of July 21, 1997 N 122-FZ “On State Registration of Rights to Real Estate and Transactions with It” "are recognized as legally valid in the absence of their state registration in the Unified State Register of Real Estate. State registration of such rights in the Unified State Register of Real Estate is carried out at the request of their owners.

<2> According to paragraph 2 of Art. 250 of the Civil Code of the Russian Federation, the seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it.

If the remaining participants in shared ownership do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person. If all other participants in shared ownership refuse in writing to exercise the pre-emptive right to purchase the share being sold, such share may be sold to an outsider earlier than the specified deadlines.

If it is possible to deliver the notice in person and receive a receipt, that’s great, but in most cases, if it is not possible to reach an agreement with the other co-owner, we issue a notarial notice and send it by registered mail with a notice with a folded inventory to the co-owner’s registered address. Next, we wait for the time for consideration of the notification (1 calendar month), taking into account the time of mail delivery to the sender of the Notification. If the other owner did not agree to buy out the share and did not express his will to do so, we will implement the procedure for selling the share to a third party (all notifications that were sent to the other owner must be preserved).

If, during the procedure for surveying a land plot, the third owner declares a reasoned objection to the survey, you can then file a claim with the court for the allocation of a share in kind, in accordance with Art. 252 of the Civil Code of the Russian Federation.

Consultation was given in November 2021 as part of the Republican competition “Professional Lawyer 2018”.

Consultant – lawyer Anastasia Nikolaevna Arkhipova email

Pros and cons of land surveying

Carrying out geodetic surveys, even if this is not a requirement of bankers, has many advantages for the buyer:

• Independence, autonomy from neighbors. A person can feel like a real owner, and not someone whose relatives simply agreed to divide the land a couple of decades ago. The owner will be able to dispose of his hundred square meters without the permission of the co-owners.
• No one will be able to claim the registered object anymore.
• The opportunity to take advantage of the law, which allows you to increase your territory by 10% through the use of no-man's land. In fact, this will not be an unauthorized seizure, but just an adjustment of the area. It is worth remembering, however, that eventually the costs of legitimizing and maintaining the allotment will increase.

Loan without refusal Loan with arrearsUrgently with your passportLoans at 0%Work in Yandex.TaxiYandex.Food courier up to 3,400 rubles/day!

• The procedure gives additional peace of mind if a large-scale construction project is underway nearby or land is being alienated.
• Without such documents, the owner of the land is not considered the owner of the site, even if he has lived on the territory for half his life. The gift agreement or inheritance does not speak in favor of the owner either.

After land surveying, a plot of land with a house can be quickly sold even to clients planning to take out a loan from a bank. The liquidity of the property increases, which allows you to set a higher price for housing.

4 banks that are happy to issue mortgage loans

The arpentage service also has a number of disadvantages

• The high cost of the procedure, which amounts to several tens of thousands of rubles.
• There may be conflicts with neighbors who may refuse to carry out land surveying and will not give consent to the work. Sometimes, after approval of the service, they find out that their past boundaries will be curtailed, which is also not conducive to friendly communication.
• Problems with collective ownership. The chairman of the board can simply refuse to carry out land surveying.
• The issue of neighbors' consent will have to be resolved through the courts, which takes time and money. Only after this can you invite an engineer to carry out the work.
• Removing infrastructure objects. Surveyors may require the area to be cleared of previous buildings, including electrical poles or road surfaces, and this will have to be decided amicably with the neighbors.

As mentioned above, the need to allocate land boundaries will help in the future to get +10% to the available acres. This is not always perceived positively by surrounding residents. After all, if they did not have time to carry out the arpantage, they may lose their share of the allotment, since the applicant can take possession of their territory legally.

05/09/2018 Information about the authors | Category: Mortgage

Legislation

In the Russian Federation, land issues are regulated by the Land Code of the Russian Federation.

For a more detailed study of the issue of land surveying, you need to refer to the first chapter, which deals with the formation of plots of land. Article 114 describes the division of plots of land, 115 - allocation, 116 describes in detail the unification of various plots. To become familiar with the requirements for amended and new plots of land, you need to refer to Article 119 of the same chapter. The last article, 11-10, addresses the issue of schematic representation of land plots.

It is important to remember that the mandatory land surveying was abolished on March 1, 2008, when the new law “On the State Real Estate Cadastre” came into force.

The same regulatory legal act with new amendments will introduce a ban on holding

any transactions (purchase and sale, exchange, donation, inheritance) with a land plot that does not have precise boundaries, starting from the first day of 2021.

You will be able to use your plot for its intended purpose, but you will not be able to completely dispose of it, because... the ability to conduct transactions will not be available. The innovation applies to all land plots that were previously provided for the following targeted needs: for maintaining a vegetable garden, gardening, dacha and personal subsidiary plots, as well as for the construction of individual housing construction or your own garage.

Ownership rights will remain with the owners of the plots as before..

The Town Planning Code of the Russian Federation also deals with the issue of regulating land surveying.

Article 143 of this code describes the conduct and preparation of a survey project, as well as an exact list of all necessary procedures that are included in the project.