The procedure for terminating ownership of a land plot

Despite the fact that the Constitution of the Russian Federation defines land as public property, it also distinguishes individual territories that can legally belong to an individual or legal entity. According to the Land Code, plots can be sold, rented, exchanged, donated, privatized or inherited, but only after they have received a certificate of state registration of proprietary rights. It can be obtained only if there are compelling reasons, which are based on the fulfillment of certain conditions. Of course, with the loss of grounds comes the termination of ownership of the land plot.

The personal property of an individual or legal entity is considered to be real estate registered by law. Only the owner has the right to make decisions

regarding the disposal of his property, however, he may also lose this right in two cases, which will be discussed below.

Termination of land ownership deprives the owner of the opportunity not only to dispose of this property, but also to be within its boundaries. In addition, a person loses rights to all buildings located on the territory.

Structure of proprietary rights

Regarding the concept of property rights and itself, when it comes to land, its main components can be noted:

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Object of law – land plot;
The subject of law is the owner of the object;
Maintenance of property – obligations and rights of the owner.

Regarding the last point, the rights of the owner usually mean independent disposal of real estate, operation and ownership. Possession refers to proof of legal possession of a territory. Use means the operation of the site in accordance with its intended purpose, taking into account existing restrictions. A person can dispose of his property only within the limits of what is permitted.

As practice shows, the grounds for terminating the right of private ownership of land are often based on the fact that the owner is using the land for something other than what it was intended for. In general, the owner has the right to dispose of his property also in terms of its alienation or lease. However, even here one should refer to the law in everything, since it does not provide complete freedom of action for anyone.

Grounds for the emergence of land ownership

According to Art. 25 of the Land Code of the Russian Federation, the right of ownership of land plots arises on the grounds established by civil legislation and federal laws.

Grounds for acquiring land plots into ownership:

1) into private ownership (according to the Civil Code of the Russian Federation):

on the basis of a contract of sale, exchange, donation or other transaction on the alienation of a land plot (Article 218);
by way of inheritance, as well as as a result of succession during the reorganization of a legal entity (clause 2 of Article 218);
in the procedure for the privatization of land plots in state or municipal ownership (Article 217);
on other grounds (clause 3 of Article 218), for example, due to acquisitive prescription.

2) into state ownership (Articles 17, 18 of the Land Code of the Russian Federation):

according to federal laws;
procedure for delimiting state ownership of land;
civil law grounds;
gratuitous transfer from federal property (for property of federal subjects).

3) into municipal ownership (Article 19 of the Land Code of the Russian Federation):

according to federal laws and laws of constituent entities of the Russian Federation adopted in accordance with them;
procedure for delimiting state ownership of land;
civil law grounds;
gratuitous transfer to municipal property from federal property.

State registration of transactions with land plots is mandatory in cases specified in federal laws. The right of private property is certified by a certificate of state registration of private property rights and arises from the moment of such registration.

See also paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”

Transfer of ownership of a land plot based on an alienation transaction

Transactions are understood as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.

Transactions with land plots are made in writing. Since the subject of the agreement can only be individually defined property, a cadastral passport of the land plot must be attached to the agreement. The absence of a passport entails the recognition of the transaction as invalid.

All transactions with land are subject to mandatory state registration by territorial bodies of the Federal Service for State Registration, Cadastre and Cartography. Data on transactions are entered into the Unified State Register of Rights to Real Estate and Transactions with It.

Transactions of donation and exchange are carried out according to the rules of civil law. Federal land legislation does not provide for a special procedure for carrying out these transactions.

The condition of transfer of a land plot after the death of the donor is void. Relinquishment of a land plot after registration of its ownership is a voluntary abandonment of the plot, terminating the right of ownership to it, and the right to the plot passes to the state.

The main difficulty when concluding an exchange agreement may be the assessment of a land plot as a piece of real estate, since according to the general rule (clause 1 of Article 568 of the Civil Code of the Russian Federation), the things exchanged are assumed (should be) of equal value. Such an assessment will be approximate if made by the parties. In the event that an agreement on the price of the exchanged property is not reached, the parties can resort to the services of a professional real estate appraiser, and if the things are unequal, the party having a less valuable thing will have to pay the difference in prices (clause 2 of Article 568 of the Civil Code of the Russian Federation ). The price of the land plot being exchanged must not be lower than the standard price.

In Art. 15 of the Land Code of the Russian Federation establishes the principle of equal access to the acquisition of land plots. However, there are exceptions to this principle:

the owner of a building or structure located on someone else's land plot has the preemptive right to purchase or lease this land plot (clause 3 of Article 35 of the Land Code of the Russian Federation);
foreign citizens, stateless persons and foreign legal entities - owners of buildings and structures located on someone else's land plot have a preferential right to purchase or lease this land plot (Clause 5 of Article 35 of the Land Code of the Russian Federation).

Transfer of ownership of land by inheritance

Legal relations regarding the transfer of land plots by inheritance are regulated by the norms of civil, inheritance and family legislation.

Inheritance is a one-sided transaction, i.e. a transaction for which it is sufficient to express the will of one party, in this case the testator.

Inheritance of land plots is carried out by will, and in its absence - by law (Article 1111 of the Civil Code of the Russian Federation).

Inheritance is a type of universal succession, the subjects of which in most cases are citizens (Article 1110 of the Civil Code of the Russian Federation).

Every citizen has the right to bequeath his property (in particular, a plot of land) to any person or several persons, including those not included in the circle of heirs by law. The will must be drawn up in writing and notarized.

According to Art. 1181 of the Civil Code of the Russian Federation belonging to the testator by right of ownership

land or
right of lifelong inheritable ownership of a land plot

is part of the inheritance and is inherited on the general basis established by the Code. No special permission is required to accept an inheritance that includes the specified property.

When inheriting a land plot or the right to lifelong inheritable ownership of a land plot, the surface (soil) layer, water bodies, and plants located on it within the boundaries of this land plot are also inherited, unless otherwise established by law.

Transfer of rights to a land plot in state or municipal ownership

According to Art. 39.1 of the Land Code of the Russian Federation, land plots in state or municipal ownership are provided on the basis of:

decisions of a state authority or local government in the case of provision of a land plot - for free ownership (privatization) or for permanent (indefinite) use;
purchase and sale agreement in case of provision of ownership of a land plot for a fee;
lease agreement in case of provision of a land plot for rent;
agreement for gratuitous use in case of provision of a land plot for gratuitous use.

Note

The sale of state or municipally owned land plots, in accordance with the main type of permitted use of which involves the construction of buildings and structures, is not permitted, except for the cases specified in clause 2 of Art. 39.3 of the Code (sale without bidding), as well as cases of holding auctions for the sale of such land plots in accordance with Art. 39.18 of the Code (for individual housing construction, running private household plots, peasant farms, etc.).

Features of the purchase and sale of land plots are established by Art. 37 Land Code of the Russian Federation.

In general, the sale of land plots in state or municipal ownership is carried out at auctions held in the form of auctions, with the exception of cases provided for in paragraph 2 of Art. 39.3 of the Land Code of the Russian Federation.

The subject of bidding (competitions, auctions) can be a land plot with established boundaries:

as a seller - an executive body of state power or a local government body;
as an organizer of trades (competitions, auctions) - the owner or a specialized organization operating on the basis of an agreement with him.

The decision to hold an auction for the sale of a land plot located in state or municipal ownership, an auction for the right to conclude a lease agreement for a land plot located in state or municipal ownership (hereinafter also referred to as the auction), is made by the authorized body, including upon applications from citizens or legal entities persons
Land plots withdrawn from circulation: Land plots occupied by the following objects in federal ownership are withdrawn from circulation (Article 27 of the Land Code of the Russian Federation):

state natural reserves and national parks (except for the cases provided for in Article 95 of the Code);
buildings, structures and structures in which the Armed Forces of the Russian Federation, other troops, military formations and bodies are located for permanent activities;
buildings, structures and structures in which military courts are located;
objects of federal security service organizations;
objects of state security bodies organizations;
facilities for the use of atomic energy, storage facilities for nuclear materials and radioactive substances;
objects in accordance with the types of activities of which closed administrative-territorial entities have been created;
objects of institutions and bodies of the Federal Penitentiary Service;
military and civil burials;
engineering and technical structures, communication lines and communications erected in the interests of protecting and protecting the State Border of the Russian Federation.

Land plots limited in circulation

The following land plots that are not withdrawn from circulation and are in state or municipal ownership are limited in circulation (Article 27 of the Land Code of the Russian Federation):

within specially protected natural areas;
from the forest fund lands;
within which water bodies that are in state or municipal ownership are located;
occupied by especially valuable objects of cultural heritage of the peoples of the Russian Federation, objects included in the World Heritage List, historical and cultural reserves, objects of archaeological heritage;
provided for defense and security, defense industry, customs needs;
within the boundaries of closed administrative-territorial entities;
provided for the needs of transport organizations, including sea and river ports, train stations, airfields and airports, air traffic and shipping navigation support structures, terminals and terminal complexes in areas where international transport corridors are formed;
provided for communication needs;
occupied by space infrastructure objects;
located under hydraulic structures;
provided for the production of toxic substances and narcotic drugs;
contaminated with hazardous waste, radioactive substances, subjected to biogenic pollution, and other lands subject to degradation;
located within the boundaries of lands reserved for state or municipal needs;

in the first and second zones of sanitary protection zones of water bodies used for drinking and domestic water supply.

Cases of providing a land plot in state or municipal ownership to a citizen or legal entity for free ownership are specified in Art. 39.5 of the Land Code of the Russian Federation.

Cases of provision of land plots in state or municipal ownership for rent at auction and without auction are specified in Art. 39.6 of the Land Code of the Russian Federation.

Land plots in state or municipal ownership are provided for permanent (indefinite) use exclusively:

state authorities and local governments;
state and municipal institutions (budgetary, government, autonomous);
state-owned enterprises;
centers of historical heritage of presidents of the Russian Federation who have ceased to exercise their powers.

The grounds and procedure for providing a land plot in state or municipal ownership to a citizen or legal entity for free use are specified in Art. 39.10 Land Code of the Russian Federation.

The emergence of ownership rights during the transfer of ownership of a building, structure and structure

Art. 35 of the Land Code of the Russian Federation establishes that when the ownership of a building, structure, structure located on someone else’s land plot is transferred to another person, he acquires the right to use the corresponding part of the land plot occupied by the building, structure, structure and necessary for their use, for those the same conditions and to the same extent as their previous owner (taking into account shares in ownership - for several owners).

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

The alienation of a building or structure located on a land plot and belonging to one person is carried out together with the land plot, with the exception of the following cases:

alienation of a part of a building or structure that cannot be allocated in kind along with part of the land plot;
alienation of a building or structure located on a land plot withdrawn from circulation;
alienation of a structure located on a land plot under the terms of an easement.

The alienation of a building or structure located on a land plot with limited circulation and belonging to one person is carried out together with the land plot, if federal law allows such a land plot to be made available to citizens and legal entities.

Alienation of a land plot without a building or structure located on it is not allowed if they belong to the same person.

Object and Subject

The object of real estate in this case is a plot of land. In general, the entire territory of the Russian Federation is considered an immovable object, regardless of whether it is used or not. The subjects can be not only individuals and legal entities, but also the state itself and municipal authorities.

Regardless of the fact that Russian citizens have the opportunity to privatize certain land plots, there is property that can be exclusively owned by the state. In addition, government bodies have the right to establish and change the conditions, rules and requirements for concluded transactions, the use of property, its transfer, and may also completely terminate the ownership rights to it in relation to certain persons. Absolutely all property owners are the same before the law.

An individual can acquire ownership of property through its purchase, exchange, rent, gift, inheritance or privatization. A legal entity, in addition to the listed methods of obtaining land, has the right to use the gratuitous transfer of territory and its delimitation.

Whatever happens to a piece of land, whatever transactions or other actions are performed with it, they must be officially documented.

Grounds for termination of ownership rights at the will of the owner (voluntarily)

At the will of the owner, i.e. voluntarily, the right of ownership is terminated on the following grounds.

1) Alienation by the owner of his property (clause 1 of Article 235 of the Civil Code of the Russian Federation) is the reverse side of the acquisition of ownership rights on the basis of a transaction on the alienation of property (clause 2 of Article 218 of the Civil Code of the Russian Federation). The owner has the right to enter into a civil law agreement with other persons (for example, purchase and sale, exchange, donation, etc.), providing for the transfer of property owned by him into the ownership of other persons.

2) Privatization (Article 217 of the Civil Code of the Russian Federation) is a special case of termination of ownership rights. Privatization is the transfer of state or municipal property into the ownership of citizens and legal entities. Privatization acts as a basis for the termination of property rights only for the state and municipalities and becomes the basis for the emergence of private property rights (citizens and legal entities). It is carried out by the decision (will) of the public owner himself, in the manner prescribed by the laws on the privatization of state and municipal property.

3) Death or destruction of property (clause 1 of Article 235 of the Civil Code of the Russian Federation) is the only basis for termination of ownership rights, which is guaranteed not to be the basis for the emergence of this right in another person.

Death and destruction mean the irreversible physical cessation of the existence of a thing . In this case, individual details and remains of the thing may be preserved, which can also act as objects of ownership.

The Civil Code does not distinguish between the concepts of “destruction” and “destruction”. In theory, it is believed that death does not depend on the will of the subject, it is the result of a random event, i.e. The destruction of property can be understood as the loss of property, as a rule, due to force majeure circumstances, that is, not dependent on the will of the owner of the property.

Destruction of property is the purposeful destruction of a thing, rendering it unusable, which can be carried out by the owner himself or another person.

In judicial practice, the concepts of “loss of property” and “destruction of property” are identified.

In addition to physical destruction, it is also possible to destroy a thing legally, when physically it continues to exist, but legally it does not. (For example, a divided land plot loses its previous cadastral number and is legally transformed into several new objects.) However, instead of the terminated right to the old thing, the right to a new one arises.

4) Relinquishment of the right of ownership (Article 236 of the Civil Code of the Russian Federation) is not exactly the basis for its termination, but rather a possible prerequisite for the acquisition by another person of the right of ownership of ownerless property (Articles 225, 226 of the Civil Code of the Russian Federation). In other words, the ownership right of the person who renounced the thing ceases not from the moment the owner actually renounces the right to the thing, but from the moment another person acquires the right of ownership to it. Until the acquisition of ownership of a thing by another person, the previous owner is not relieved of the burden of maintaining the thing and fulfilling other obligations of the owner. Another person, depending on the situation, may acquire ownership of an item that the owner has abandoned as an abandoned item (Article 226 of the Civil Code of the Russian Federation), due to acquisitive prescription (Article 234 of the Civil Code of the Russian Federation).

You can make an announcement about the renunciation of the right of ownership (including using the media) or perform other actions indicating such renunciation (for example, throwing away an item; placing an item in a place for collecting garbage and other household waste), as a result of which the corresponding item will be acquired ownerless status.

Refusal of a thing must correspond to the actual will of the owner and should not be forced. In itself, the inaction of the owner of a thing does not, as a general rule, indicate an intention to renounce ownership of it.

Relinquishment of property rights is permitted only for citizens and legal entities. This right does not apply to public entities - the Russian Federation, its constituent entities and municipalities.

Type and shape

On the territory of the Russian Federation, there are two types of ownership rights to land plots - state and private.

State property is considered to be the common national property, which state bodies have the right to dispose of on behalf of their people. This variety, in turn, is divided into two more forms:

Possessions of the Russian Federation - the entire territory of the country that does not belong to either municipalities or private individuals;
Property of municipal authorities.

The form of private property is expressed in the form of personal, joint, common and shared. The object is transferred to the disposal of private individuals after its acquisition legally. Before this, the territory must be formed and have an individual cadastral number and address.

Regardless of the type and form of ownership, all owners can use and dispose of the property as they see fit, but only within the framework of the law. And first of all, you should pay attention to the category of land. Operation of an object intended, for example, for individual housing construction, for commercial purposes and entrepreneurship will lead to the forced termination of property rights.

Commentary on Article 45 of the Land Code of the Russian Federation

Termination of the right of permanent (perpetual) use or the right of lifelong inheritable possession at the initiative of the holder of such a right is possible, in particular, in the form of a voluntary renunciation of the right to a land plot in the manner established by Art. 53 of the Land Code of the Russian Federation (see commentary to it); other grounds for termination of these rights may be established by law.

At the same time, the list of grounds for the forced termination of these rights is defined in paragraph 2 of the commented article and is closed. The new version of the commented article, introduced by Federal Law No. 354-FZ of July 3, 2021, formulates the list of grounds for the forced termination of the right to permanent (perpetual) use of the right to lifelong inheritable ownership of land plots somewhat differently. These grounds themselves remain the same compared to previous editions (use of the site for other than its intended purpose or if its use leads to a significant decrease in the fertility of agricultural land or harm to the environment; damage to land; failure to fulfill obligations for land reclamation, mandatory measures to improve land and soil protection, obligations to bring land into a condition suitable for use for its intended purpose; failure to use a land plot intended for agricultural production or housing or other construction within the established time limits), but now these grounds are united by a new general concept: instead of the previous “inappropriate use of a land plot” is “use of a land plot in violation of the requirements of the legislation of the Russian Federation,” which, of course, is a more accurate definition of the acts listed in it.

The obligation of owners of land plots and persons who are not owners to use the land plot in accordance with the intended purpose of the category of land is enshrined in Art. 42 of the Land Code of the Russian Federation. The specific purpose of each category of land is recorded in the relevant articles of the Land Code of the Russian Federation. Thus, agricultural lands are intended for the needs of agriculture (Article 77 of the Land Code of the Russian Federation), lands of settlements - for construction and other purposes of the development of cities, towns and rural settlements (Article 83 of the Land Code of the Russian Federation), etc.

The implementation of land protection measures is one of the responsibilities of landowners and land users in accordance with Art. 13 of the Land Code of the Russian Federation, containing a list of such mandatory measures (see commentary to this article).

It should be noted that the greatest difficulty in practice is the application of norms on a significant reduction in the fertility of agricultural lands and harm to the environment, since land supervision authorities and courts in each specific case need to make a conclusion about whether these consequences occur and to what extent they occur associated with a committed land offense from among those named in the commented article.

In order to specify the provisions under consideration, the Government of the Russian Federation has approved criteria for a significant reduction in the fertility of agricultural lands <1>. ——————————— <1> Decree of the Government of the Russian Federation of July 22, 2011 N 612 // SZ RF. 2012. N 30. Art. 4290.

It has been established that a significant decrease in the fertility of agricultural land is a change in the numerical values of at least three of the following criteria, the reason for which was the use of land in violation of the requirements for rational use of land established by land legislation:

— reduction in the content of organic matter in the arable horizon by 15% or more;

- decrease in acidity in acidic acids by 10% or more;

— increase in alkalinity in alkaline soils by 10% or more;

— reduction in the content of available phosphorus by 25% or more;

- decrease in metabolic potassium content by 25% or more.

Determination of the amount of damage caused to the environment is carried out in accordance with the Federal Law “On Environmental Protection”. In particular, according to paragraph 3 of Art. 77 of this Federal Law, damage to the environment caused by a legal entity or individual entrepreneur is compensated in accordance with duly approved taxes and methods for calculating the amount of damage to the environment, and in their absence, based on the actual costs of restoring the damaged state of the environment, taking into account the costs incurred losses, including lost profits. As an example, we can cite, for example, the Methodology for calculating the amount of damage caused to soils as an object of environmental protection, approved by Order of the Ministry of Natural Resources of Russia dated July 8, 2010 N 238.

As for the non-use of a land plot for agricultural production, which is discussed in this article, in practice the question often arises of how to consider the partial use of such plots, since, unfortunately, there are often cases when some work is not carried out on the entire area plot or these works are related to agricultural production, but without cultivating the land, for example, only processing of agricultural products is carried out.

In this regard, the Decree of the Government of the Russian Federation of April 23, 2012 N 369 <1> determined that the non-use of a land plot for agricultural production or other activities related to agricultural production is determined on the basis of one of the following criteria: ——————— ———— <1> Northwestern Russian Federation. 2012. N 18. Art. 2230.

— no work is carried out on the arable land for cultivating crops and cultivating the soil;

— haymaking is not carried out on hayfields;

— on cultivated hayfields, the content of weeds in the structure of the grass stand exceeds 30% of the area of the land plot;

— there is no grazing of livestock on pastures;

— on perennial plantings, work on the care and harvesting of perennial plantings is not carried out and decommissioned perennial plantings are not uprooted;

— forest cover and (or) shrub cover on arable land account for over 15% of the area of the land plot;

— forest cover and (or) shrub cover on other types of agricultural land is over 30%;

— tussocks and (or) waterlogging account for over 20% of the area of the land plot.

Federal Law No. 354-FZ of July 3, 2021 introduced significant changes to the commented article regarding the period during which it is necessary to begin using an agricultural land plot from lands covered by the Federal Law “On the Turnover of Agricultural Land” <1 >: if previously it did not include the period for development of a land plot (which was 2 years), that is, the start of use of such a plot could begin 5 years after its provision, taking into account the permissible three-year period of non-use of a plot of agricultural land, now in accordance with Art. 6 of the said Federal Law, the start of use must occur within 3 years, without adding time for the development of the site. ——————————— <1> The effect of this Federal Law in accordance with its Art. 1 applies to agricultural land, except for gardens, vegetable gardens, dacha land plots, land plots intended for personal subsidiary plots, garage construction (including individual garage construction), as well as land plots on which real estate is located.

The conditions and procedure for the forced deprivation of rights to a land plot of persons who are not its owners due to improper use of the land plot are regulated by Art. 54 of the Land Code of the Russian Federation (see commentary to it).

Voluntary waiver of rights

Each of the property owners can independently initiate the termination of ownership rights to a land plot, that is, abandon it of their own free will. Essentially, this procedure consists of a series of factual and legal processes, step-by-step actions and certain circumstances. This loss of property rights is officially recognized. As a result of the termination of rights, land plots may be transferred to the ownership of other persons or cease to exist altogether.

There are two options in which the grounds and procedure for termination of ownership of a land plot are recognized as legal. One of them is the fact of voluntary termination. This may be a refusal, in accordance with Article 53 of the Land Code, alienation when concluding transactions, or liquidation of legal entities, in accordance with Article 61 of the Civil Code.

Circumstances that do not depend either on the owner or on anyone else’s decision sometimes serve as grounds for termination of proprietary rights. Such grounds include the death of the copyright holder or the transfer of land to another category, and therefore it can no longer be used for the same purposes.

The right of ownership to a land plot is terminated when the owner alienates his land plot to other persons, the owner renounces the right of ownership to the land plot, due to the forced seizure of his land plot from the owner in the manner established by civil legislation.

In accordance with Article 45 of the Land Code of the Russian Federation, the right of permanent (indefinite) use of a land plot, the right of lifelong inheritable ownership of a land plot are terminated if the land user or landowner renounces their right to a land plot on the terms and in the manner provided for in Article 53 of the Land Code and on other grounds established by civil and land legislation. Relinquishment of the right of ownership of a land plot is carried out by submitting an application for such refusal by the owner of the land plot to the body that carries out state registration of rights to real estate and transactions with it. The ownership right to this land plot is terminated from the date of state registration of the termination of this right. When renouncing the right to permanent (indefinite) use of a land plot or the right to lifelong inheritable ownership of a land plot, an application for renunciation of the right to a land plot is submitted to the executive body of state power or local government body provided for in Article 39.2 of this Code. A copy of an identification document is attached to the application for renunciation of the right to permanent (indefinite) use of a land plot or the right to lifelong inheritable ownership of a land plot. Applications from legal entities and state and municipal enterprises must be accompanied by a document confirming the consent of the body that created the relevant legal entity, or another body acting on behalf of the founder, to waive the right to permanent (indefinite) use of the land plot. The right of permanent (indefinite) use of a land plot, the right of lifelong inheritable ownership of a land plot are forcibly terminated when the land plot is used in violation of the requirements of the legislation of the Russian Federation, namely when: the use of the land plot is not for its intended purpose or if its use leads to a significant decrease in the fertility of agricultural land purpose or harm to the environment; damage to lands; failure to fulfill obligations for land reclamation, mandatory measures to improve land and protect soils; failure to fulfill obligations to bring lands into a condition suitable for use for their intended purpose; non-use of a land plot intended for agricultural production or housing or other construction for the specified purposes for three years, unless a longer period is established by federal law. The right also terminates when the land plot is withdrawn for state or municipal needs. State registration of termination of ownership of a land plot or land share due to abandonment of the corresponding property right is carried out on the basis of an application from the owner of the land plot or land share. When state registration of termination of ownership of a land plot or land share due to the abandonment of such a right, state registration of the property right of the subject of the Russian Federation or municipal entity, to whose ownership such land plot or such land share will be attributed, is carried out, without an application for state registration of the occurrence or transition rights.

Forced form of termination

A more strict form is the fact of forced termination of proprietary rights to land. There are several good reasons for this, namely:

The activities of a public authority, which is aimed at the seizure of a plot from its owner or the purchase of an object for the needs of the state or municipality, in accordance with Article 49 of the Land Code;
The activities of a public governing body, which is aimed at depriving the owner of the rights to own the territory on the basis of unlawful actions committed by him (misuse, violation of current Russian legislation, confiscation);
The activities of a public authority, which is aimed at terminating land ownership rights due to the entry into force of legal circumstances, for example, inheritance of a border territory by a foreign citizen

It is worth noting that inappropriate use of the territory, in accordance with the Civil Code of the Russian Federation, will lead to deprivation of property if the inappropriate use lasts three years or more. You can also lose real estate if the environmental situation deteriorates during its use.

Forced termination of rights to a land plot when committing a land offense

The article is devoted to the analysis of the application of rules on the forced termination of ownership of a land plot when committing a land offense. The author expresses his opinion on improving this legal institution and proposes the introduction of a new measure of liability for the owner of a land plot who has committed a land offense.

Key words : forced termination of ownership, offense, liability, misuse of land, seizure of land.

As a result of the development of scientific and technological progress, as well as increased anthropogenic influence on land resources, a deterioration in the condition of lands in Russia was noted, and the commission of offenses in the field of land and environmental legislation further worsened their condition. The subjects of the above offenses are not only individuals, but also legal entities, state and municipal authorities. It is possible to achieve a reduction in the number of land offenses with the effective application of legal liability measures.

In the legal literature there is no consensus on the existence of special land legal liability. Some scientists, such as Yu. G. Zharikov, V. Kh. Ulyukaev, V. E. Churkin, believe that the land has unique properties inherent only to it, therefore the protection of land relations should first of all be ensured by the norms of special responsibility [1, P. 443]. Other scientists highlight disciplinary, material, civil, administrative and criminal forms and types of responsibility [2, P. 197]. If the question of the existence of special land legal liability is controversial among scientists, then there is no dispute about the need to improve legislation in the field of forced termination of land rights [3, P. 59].

Article 44 of the Land Code, which establishes the grounds for termination of ownership of a land plot, does not contain a direct reference to a land offense as a basis for termination of ownership of a land plot, but only provides a reference to the norms of the Land and Civil Codes. At the same time, Articles 45, 54 of the Land Code contain the grounds and procedure for terminating the rights of non-owners for committing a land offense, namely in case of improper use of a land plot [4, P. 584]. In this regard, only a reference to civil law remains. Thus, Articles 284 and 285 of the Civil Code of the Russian Federation provide for the possibility of forced termination of ownership of land if the owner of the land plot does not use it for its intended purpose or uses the land plot in gross violation of land legislation. The procedure for the seizure of a land plot is provided for in Article 286 of the Civil Code of the Russian Federation, which gives the authority to make decisions on the seizure of land plots on the grounds provided for in Articles 284 and 285 of the Civil Code of the Russian Federation to state authorities or local self-government. It would seem that the answer to the question of the legal establishment of such grounds for termination of ownership of a land plot as a land offense and the procedure for its application has been found, but here we are faced with a significant legal conflict.

The fact is that the method of terminating the right of ownership, provided for in paragraphs 2 and 3 of Article 286 of the Civil Code of the Russian Federation, contradicts Part 3 of Article 35 of the Constitution of the Russian Federation, which establishes that the deprivation of any person of property belonging to him is possible only in court. Contrary to this principle, Article 286 of the Civil Code of the Russian Federation allows for the possibility of confiscation of a land plot due to its improper use by issuing a decision on such confiscation by the relevant government body or local government body and subsequently obtaining the owner’s consent for its execution. Thus, the above contradiction makes it impossible to apply in practice the norms of Article 286 of the Civil Code of the Russian Federation, which leads to the problem of the unsettled procedure for terminating property rights on the basis of a land violation.

In order to solve this problem, some authors call for guidance in this case by analogy with Art. 54 of the Land Code of the Russian Federation, which defines the procedure for the forced termination of rights to a land plot of persons who are not its owners. However, it seems more correct to agree with experts who insistently assert that the law enforcer should not be guided by this analogy of the law, [5, P.144] since, firstly, a decision by analogy is unacceptable if it is directly prohibited by law or if the law binds the onset of legal consequences with the presence of specific rules, and, secondly, I believe that such an issue as termination of property rights should be clearly regulated by federal laws in order to ensure a uniform interpretation and application of these rules. The analogy of the law will introduce an even greater number of unresolved problems.

In addition, I consider it necessary to draw attention to the insufficiency of simply depriving a person of a person’s property rights for committing a land offense, be it misuse of a land plot or another gross violation of land legislation. The actions of persons violating land legislation lead to a deterioration in the general condition of land in Russia, and therefore a rule is necessary according to which the former owner of the land plot, land owner, land user will be required to restore the original condition of the land plot or reimburse the costs of such restoration.

Thus, we can conclude that at present the grounds and procedure for the forced termination of rights to land plots are not regulated in detail by land legislation. It is necessary to solve such problems as eliminating legal conflicts, normative regulation of the procedure for forced termination of rights to land plots, as well as a more detailed approach to bringing the owner who violates land legislation to justice.

Literature:

Zharikov Yu. G., Ulyukaev V. Kh., Churkin V. E. Land law: Textbook. M.: Yurait-Izdat, 2003; Erofeev B.V. Land law of Russia: Textbook / Ed. ed. N. I. Krasnov. 9th ed., revised. M.: Yurayt-Izdat, 2004.
Bogolyubov S. A. Responsibility in the field of environmental protection and the importance of compensation for harm caused to it // Legal responsibility: modern challenges and solutions: materials of the VII Annual Scientific Readings in memory of Professor S. N. Bratus. M., 2013.
Grin E. A. Forced termination of rights to land plots: theory and practice of legal regulation. Dissertation for the degree of Candidate of Legal Sciences / Kuban State Agrarian University. Krasnodar. 2012.
Grin E. A. On the issue of forced termination of the right to a land plot, which by force of law cannot belong to the owner. // Polythematic network electronic scientific journal of the Kuban State Agrarian University. 2011. No. 71.
Commentary on the Land Code of the Russian Federation / Ed. S. A. Bogolyubova. M.: Bylina, 2001.

Additional reasons

As additional grounds for deprivation of property rights and termination of the right to lease a land plot, levying penalties on a real estate property in accordance with Article 237 of the Civil Code serves.

As an example, we can cite a situation where land was purchased with a mortgage, the loan was not repaid, and the object is pledged to the bank. Despite the presence of such a restriction, the property may be in use until the loan is fully repaid. However, a banking institution, being a mortgagee, has the right to foreclose on the mortgaged property specified in the mortgage agreement in order to use this property to repay the debt of a borrower who has stopped fulfilling his obligations, that is, has stopped making monthly payments with interest or has been making partial payments for an untimely long period. time, which was not specified in the contract.

Property rights can also be forcibly terminated for legal entities due to their bankruptcy. Such a decision is made by the arbitration court, putting the bankrupt’s property up for auction. Exactly the same rules apply for agricultural structures.

Features of foreclosure

Seizure of a plot of land for ransom due to the needs of the municipality or the state is the process of one of two bodies, which is aimed at forcibly terminating ownership through the court, but with compensation to the owner for the value of the seized real estate. This circumstance applies to both legal entities and individuals, so it is almost impossible to completely insure against such a risk.

The purchase of land for state needs is in no way associated with the unlawful actions of the previous owner, whose rights are terminated. This happens solely because of public interest, for example, the need to build a road junction. In fact, this is one of the management solutions in the field of land fund, based on the institution of land rights.

The legislation that regulates all issues related to the seizure and termination of property rights in favor of the municipality and the state is the Land and Civil Code of the Russian Federation, as well as the Constitution. In this case, the obligatory condition is the fact of an equivalent exchange. No one will take the land from its owner for free if there were no offenses on his part.

Grounds for termination of ownership of land plots

All grounds for termination of ownership of plots of land in Russia are described in the country’s legislation. Most often, ownership is terminated in the following cases:

Relinquishment of land ownership

The country's federal legislation also provides for the right to renounce private property. If earlier, when abandoning one’s own plot, the land plot acquired the status of ownerless real estate, and the moment of termination of ownership was not precisely indicated, then since 2008 the situation has changed somewhat.

A new procedure for renouncing land ownership has come into force.

Today, in order to abandon a plot of land, it is necessary for the owner of the plot of land to submit an application to the relevant federal authority - Rosreestr.

Termination of ownership occurs from the moment the owner of the property registers this desire in Rosreestr.

Remember that you can only refuse those plots of land that are directly in your private property.

Alienation of a land plot in favor of other persons

Based on the norms of the Constitution of the Russian Federation, we can conclude that everyone

a citizen has the right to independently dispose of his own property, based on his personal motives and desires. The country's basic law also allows people to dispose of land not individually, but in partnership with other persons, without losing ownership rights.

According to the Land Code, the disposal of a land plot is carried out by the owner of the land in a free manner, if his actions do not violate the law. In turn, the Civil Code gives a person the full right, at his own discretion, to make various transactions with land that do not contradict legal norms, including alienation in favor of others.

Alienation of land in favor of other persons occurs on the basis of a transaction within the framework of the rules established by law.

But do not forget that you also need to take into account restrictions on the circulation of certain land plots, specialization and category.

Forced alienation of land from the owner in favor of the state

The Constitution of the Russian Federation regulates that property rights in the country can be deprived only through a court decision.
Moreover, all grounds for deprivation of land ownership in the Russian Federation are comprehensively described in the Civil Code. Thus, land can be confiscated from a citizen or organization in the following cases:

If encumbrances have been placed on the land

If the owner of the land took out a loan and left his plot of land as collateral, the bank has the right to file a claim in court to collect the debt from the citizen by alienating the plot of land that is in his ownership.

When land is inherited by a foreign person

According to the law, foreign individuals and organizations cannot own plots of land in the Russian Federation, but only rent them. If a foreign person inherited a land plot, it must be alienated.

The competent authority will first require you to do this voluntarily, and in case of refusal, go to court.

The court will be forced to request the compulsory alienation of land from a foreigner, in accordance with legislative norms.

Land may be requisitioned, confiscated or nationalized

In certain cases, land may be requisitioned, confiscated or nationalized through the courts. Most often, this only applies to particularly important areas of land (for example, for defense or as cultural heritage).

If the share cannot be allocated in kind, it may be alienated in favor of another person with payment of compensation.
Land can be purchased by the state from a private person for state needs.
If a piece of land was used in violation of the law, the state can seize it through a court decision.

Forced seizure (requisition or redemption) of land from the owner occurs according to clearly defined rules.

Thus, a plot of land can be confiscated in the following cases:

If the state fulfills an international obligation.
When there are no other options, but you need to place an object of state or municipal importance.
Other cases provided for by federal or municipal legislation.

Forced seizure of land occurs on the basis of the purchase of a land plot from the owner of the property. The basis for the ransom is the decision of the Russian court.

Equivalent compensation is the repurchase of a plot of land according to its redemption price, which includes the market price, as well as the price of other real estate located on the plot of land and the losses that the owner of the property will suffer due to the repurchase of the land.

The law also provides for compensation to the owner for losses incurred due to

obligations to others or due to lost profits.

There is some risk that losses and expenses from the moment of seizure until the final court decision on the redemption price of the plot will be borne by the owner of the land. This applies to the expansion and reconstruction of buildings located on the seized site.

If the owner does not agree with the final redemption price, which is established in the decision of the relevant body, then he has the right to go to court to challenge this amount.

The Land Code also allows for the seizure of land from the owner due to emergency circumstances. For example, a natural disaster, a serious accident or catastrophe, an epidemic, etc. In this case, the plot is temporarily seized for certain purposes: protecting the interests of citizens, society or the state.

The owner is given a certificate of land requisition, which clearly states the reasons and circumstances. Upon his return, he will be reimbursed for all losses he suffered.

If such a plot of land cannot be returned, then the state or municipal authorities will compensate the market value for the land or may provide an equivalent plot in exchange for the seized one.

If the circumstances have been exhausted and the plot of land has not been returned to the owner, he can demand in court that the real estate be returned to him and compensation for losses.

Find out how to determine the boundaries of your property! Our article about land surveying of summer cottages will help you in this matter! Find out how to donate a share of land in our expert material.

State reimbursement

Extending the topic of state compensation for the value of territory when it is withdrawn for public needs, it is worth noting that this is not an arbitrary order and it is based not only on domestic legal acts, but also complies with the requirements of international treaties.

Since the legislation is aimed at protecting the population, as well as the rights and freedoms of each citizen in particular, the compensation paid for terminated rights to seized land should be equivalent not only to the cost of this object. It also takes into account other financial losses of a person, such as loss of profit, time to search for other similar real estate and other individual circumstances.

Guarantees of the interest and rights of each owner of land subject to state purchase are reflected in Article 279 of the Civil Code. At the same time, the person leasing the land does not receive any compensation, except for compensation for losses incurred by him upon termination of his activity.

Despite the fact that foreclosure is a forced form of termination of proprietary rights, it is still a fundamentally different option from the termination of gratuitous rights arising through the fault of the owner.

Historical background

Termination of property rights is not a new procedure for Russians and the current Land Code. Many similar actions were used even in pre-revolutionary times, when for state needs lands were taken away from the owners, instead of which they were given the opportunity to take fertile soil and other property to another place.

Moreover, in Soviet times there were even basic land legislation in force, which also regulated the procedure for the seizure of objects. At that time, the construction of a plant, factory, power station, as well as the expansion of populated areas was considered public needs. However, the consequences after the seizure of the site were different. So, for example, the seizure was not a ransom, despite the fact that the land was taken by the state through no fault of the owner. In other words, the person was compensated only for the loss he suffered due to the fact that the land was taken, but he did not receive anything in return for the territory itself.

The changes that the legal act underwent in the form in which it can be observed today were introduced in 1991, when the Russian Federation began to actively develop agrarian reform.

Development of a legal institution

After the Land Code of the Russian Federation came into force, a new stage began in the development of legal institutions, in particular those related to the termination of property rights and seizure of real estate. A special regulatory act was created, which displays a list of compelling reasons giving the state and municipal authorities the power to seize private property (Article 49 of the Land Code).

Grounds for seizure of plots:

International obligations;
The need to locate an object of municipal or state significance, if no other options for their location are available;
Location of the federal or regional energy system;
Construction of a facility using nuclear energy;
Location of a defensive facility, military unit;
Paving the way for federal transport, communication and information routes;
Construction of a facility to support space activities;
Laying a linear facility of regional or federal purpose for monopoly activities;
Laying communication systems at the municipal level;
Laying a highway of any national importance.

Special cases

In Article 23 of the Land Code of the Russian Federation, the owner retains the right to demand compensation for losses incurred during the seizure of property, even if the property is encumbered with a public easement.
The main condition for such a requirement is the impossibility of exploitation of the territory due to an easement. Simultaneously with this case, the law on the protection of natural areas can also be highlighted. Article 26 of the Land Code states that the owner’s land can be confiscated if it is recognized as a protected object, natural monument or complex at the state level. Also, after such recognition, tenants may lose the right to use the land.

Of course, at the state level they can endlessly adopt all sorts of amendments and additions to the list of grounds for the seizure of territories, both with and without ransom. The current rules regarding the termination of property rights in favor of a municipality or state can be found in Article 55 of the Land Code of the Russian Federation.

What do decisions lead to?

Previously existing legislative acts of the Civil Code of the Russian Federation made it possible to seize not the entire territory from the owner’s property, but only a certain part of it.
Despite the fact that it was very difficult, it was used quite often. However, due to the constant changes made, contradictions arose and this opportunity was eventually canceled. It should be fairly noted that dissenting owners who are deprived of their land ownership rights can protest such a decision by filing a claim in court, regardless of who terminates their rights and for what reason. A person is given a period of three years to challenge the decision, after which there is no point in filing claims. The three-year period will be counted from the date on which the owner was given formal written notice of the decision stating that his rights would be terminated.

In accordance with Article 239 of the Civil Code of the Russian Federation, when deprived of ownership rights to land, a person automatically loses rights to all real estate located on the given territory. They are confiscated in the same way as a plot, either through ransom or confiscation followed by sale at a public auction.

Plot abroad

The engineer's mistake was that the boundaries of the neighbors' plots overlapped each other. Those who have encountered such things know that this is one of the very common mistakes. Judicial statistics on land disputes show that the imposition of land boundaries is a painful and widespread problem. Can it cause the termination of property rights?

In the situation dealt with by the Supreme Court, the owner of the land plot almost lost it due to the incompetence of the cadastral engineer, who made a mistake in the boundary plan. So, two owners of summer cottages in Khakassia lived nearby. When one of them registered her plot of land with the cadastral register, it was discovered that the boundaries of her land included the plot of her neighbor, who, having learned about this, went to court.

The following details were announced in the district court. The first citizen received her own plot of land for running a “farm” from the reserve lands. The second became the owner of the plot after it was given to her. There were two such gifts - gift agreements.

In court, the “farmer” assured that her neighbor had illegally combined her land plots into one, so she asked the court to recognize the ownership of the land as a linden, and the data on the plot in the State Cadastre, that is, the boundaries of the plot, as a cadastral error.

The result is that the district court of Khakassia satisfied the demands of the “farmer”. The Supreme Court of the Republic agreed with this decision. According to local courts, when registering the plots for cadastral registration, a common cadastral error occurred, and the plots of one lady overlapped with the plots of another. And the defendant’s boundary plan was made with violations. The court’s conclusion is that the neighbor “farmer” does not have ownership rights to her land. According to local courts, a cadastral error in information about the boundaries of plots is grounds for termination of ownership rights to them. The loser had to go to the Supreme Court, where they did not agree with the conclusion.

Judicial statistics show that overlapping land boundaries is a common problem

According to the Supreme Court, according to the law, the presence of a cadastral error cannot be considered a basis for termination of land ownership. If there is a cadastral error, then it must be corrected, but the citizen’s ownership of the land must be preserved. The Supreme Court also drew attention to this important point: the district court that considered the dispute did not name a method for correcting the cadastral error. For some reason, the appeal did not notice this and did not correct my colleagues. According to the Supreme Court, the district court, having seen that the boundary plan was made with violations, was obliged to raise the question of the responsibility of the cadastral engineer. After all, it was this person who formed and registered the land plots of the defendant neighbor in the cadastral register. But the district court did not do this. Another circumstance also escaped the attention of the district court. A woman whose rights to land were declared illegal received ownership of the land through acts of donation. The gift agreements were not declared invalid in court. And the Supreme Court quite rightly stated that until gift agreements are declared invalid, the land received under them belongs to the person to whom they were donated. The right to plots recorded in legal contracts cannot be absent.

The neighbors' dispute will be reviewed taking into account the statements of the Supreme Court.