How to obtain undelimited land plots in the Moscow region without bidding

How to obtain undelimited land plots in the Moscow region without bidding

All land in the Russian Federation that is state and municipal property is provided through auction, with the exception of certain cases. The conditions under which such land plots can be provided without an auction are regulated by the Land Code of the Russian Federation. Read about who has the right to provide land of undelimited state and municipal property for rent or ownership without holding a tender in the Moscow region and what must be attached to the application for this service in the material of the mosreg.ru portal.

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What is an undelimited land plot?

Aerial photography of lands

Source: , pixabay.com

All land in the Moscow region, as throughout the Russian Federation, is determined by the form of ownership as demarcated and undemarcated. Demarcated land is land that is owned: privately, federally, federally or municipally. Undemarcated land is land for which there are no title documents.

Land is considered undemarcated (state) until rights to it arise and are registered. The disposal of land plots of undelimited property is determined by land legislation.

The powers to dispose of state-owned undemarcated land have been transferred to the level of local governments, and, consequently, the provision of corresponding services to residents of the region. In the Moscow region, this activity is regulated by the laws “On the redistribution of powers between municipal bodies of the Moscow region and state authorities of the Moscow region” and “On the vesting of local government bodies of municipalities of the Moscow region with certain state powers of the Moscow region in the field of land relations.”

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Recipients of the service

Source: RIAMO, Alexander Manzyuk

The public service for the provision of lands of undelimited state and municipal property for rent and ownership without tendering is provided to individuals, legal entities, as well as individual entrepreneurs. However, according to Articles 39.3 and 39.6 of the Land Code of the Russian Federation, the right to receive land without bidding arises only if a certain number of conditions are met.

Thus, Article 39.3 of the Land Code establishes the conditions under which the sale of such lands can be carried out, as well as a list of persons who can act as buyers. In particular, the sale of:

• land plots on which buildings and structures are located - to the owners of such buildings, structures or premises in them in cases provided for in Article 39.20 of the Land Code (that is, if there is a house on a plot of undemarcated state property, the rights to which are registered, the owner of the house can apply for land ownership);
• land plots for citizens for individual housing construction, running personal subsidiary plots within the boundaries of a populated area, gardening, dacha farming, citizens or peasant (farm) farms for the peasant (farm) farm to carry out its activities in accordance with Article 39.18 of the Land Code;
• land plots for a peasant (farm) enterprise or agricultural organization in cases established by the Federal Law “On the Turnover of Agricultural Land”.

Article 39.6 of the Land Code of the Russian Federation defines cases when undelimited lands are leased without bidding. In particular, the following are provided without bidding:

a land plot formed from a land plot provided to a non-profit organization created by citizens for gardening, horticulture, summer cottage farming, with the exception of land plots classified as public property - to members of this non-profit organization;

• the land plot on which unfinished construction objects are located, once to complete their construction - to the owners of unfinished construction objects in the cases provided for in paragraph 5 of Article 39.6 of the Land Code;
• land plots - to citizens who have the right to their priority or extraordinary acquisition in accordance with federal laws and the laws of the constituent entities of the Russian Federation;
• a land plot in replacement of a land plot provided to a citizen or legal entity on a lease basis and seized for state or municipal needs;
• land plot - to a person who, in accordance with the Land Code, has the right to acquire ownership of a land plot that is in state or municipal ownership, without holding a tender, including free of charge, if such a land plot is reserved for state or municipal needs or is limited in circulation ;
• a plot of land - to a citizen for haymaking, grazing farm animals, and gardening;
• a plot of land located outside the boundaries of a populated area - to a citizen for running a personal subsidiary plot;
• a plot of land necessary to carry out the activities provided for in the concession agreement - to the person with whom such an agreement was concluded (for example, for investment projects).

Comprehensive lists of cases of sale of plots of undemarcated state property or their provision for lease are contained in the Land Code of the Russian Federation.

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How to make an application

Laptop

Source: Ministry of Energy of the Moscow Region

The easiest way to apply for a service is through your personal account on the regional government services portal, where you need to fill out a ready-made form. The submission of this application is equally provided for both in the case of renting land plots and in the case of granting them ownership.

In this case, legal entities must provide the following information:

• information about the USRN;
• TIN;
• name of company;
• organization address;
• organizational and legal form.

Individuals must provide the following information:

• FULL NAME;
• passport details;
• SNILS;
• Contact details.

Both individuals and legal entities must indicate in the application the cadastral number of the plot that is required to be provided for ownership or lease, the lease term, the address and area of ​​the plot, and also indicate the purpose of the request.

If the land plot is not formed, that is, it does not have boundaries and a cadastral number, you must first apply for. As a result of this service, the boundaries of the site and the type of right to it are determined. This is important because in the event that the requested lands cannot be provided for ownership for one or another objective reason, the applicant will be offered an alternative - renting a plot.

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Where to apply

House layout

Source: Ministry of Property Relations of the Moscow Region

The most convenient and fastest way to submit an application is to apply through the RPGU, since it allows you to avoid going through the structures and makes it possible to track the entire process through your personal account.

For this purpose, you first need to register a personal account and obtain registration in the electronic system of unified identification and authentication.

You can submit an application by filling out the form in your personal account on the government services portal and attaching electronic samples of documents (without digital signature) to it. You will need to receive the result of the service at the MFC, where you will need to present the original documents for verification.

As a result of the provision of the service, the applicant will receive a land lease agreement or a land purchase and sale agreement.

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Terms of service provision

Documents, signing

Source: RIAMO, Anastasia Osipova

The period for consideration of the application is from 8 to 50 working days, depending on the need to publish about the upcoming provision of a land plot and consider the issue at the Interdepartmental Commission on Land and Property Relations in the Moscow Region and the Urban Planning Council of the Moscow Region.

Information about the result of consideration of the application will be sent to the applicant’s personal account on the public services portal. The original purchase and sale agreement or lease agreement with the signature of an authorized official and the administration seal can be obtained from the MFC.

Information about the readiness of results is also provided via a single telephone number.

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In what cases can land be provided to an agricultural producer without bidding?

It has become easier for the municipality to avoid mistakes when providing land for rent or ownership without bidding. Now you can make decisions based on the latest findings of the Supreme Court. He summarized the judicial practice in cases related to the provision of land for agricultural production in the Review dated December 23, 2020. This document can also be relied upon in the event that legal proceedings arise on the claim of the tenant or the prosecutor. Lower authorities will be guided by the findings of the Supreme Court. The article contains answers to questions that municipalities often have when providing land plots for rent or ownership.

To whom can land plots be provided without bidding?

The municipality may provide its land plot to another person for ownership or lease based on the results of bidding (clause 1 of article 39.3, clause 1 of article 39.6 of the Land Code). But there are cases when the administration has the right not to conduct tenders. This is possible, in particular, if you provide land for farming or related production (see table below).

Cases when you can provide a plot for rent or sell it without bidding

Is it possible to provide a plot without bidding if there are several applicants for it?

If applications for a plot are received from several entrepreneurs, then the local self-government body must hold an auction and provide the land to the winner. The Supreme Court recognized this approach as correct (clause 1 of the Review).

EXAMPLE 1.

The head of a peasant farm (peasant farm) demanded that he be given a plot of land for rent without bidding. He referred to the provisions of Part 8 of Article 10 of the Federal Law of July 24, 2002 No. 101-FZ “On the turnover of agricultural land.” But local authorities refused, since there were other applicants for the site. The head of the farm went to court. He demanded that the decision of the local self-government body be declared illegal and that the municipality be obliged to enter into an agreement with the peasant farm.

The court of first instance concluded that the applicant's rights had been violated. The latter has the right to conclude a lease agreement without bidding with the local self-government body as an agricultural producer, a participant in the industry-wide state support program (subclause 12, clause 2, article 39.6 of the Land Code, clause 8, article 10 of Law No. 101-FZ).

Higher courts did not agree with this position. The Supreme Court supported them. The local self-government body, authorized to dispose of plots of agricultural land, received several applications from potential tenants. In this situation, the local self-government body is obliged to hold a tender (ruling of the Supreme Court dated 02/03/2020 No. 302-ES19-27335).

In what case can a lease be extended without bidding?

Bidding will not be required if the plot is already leased from the agricultural producer and he wishes to extend the contract for a new term (subclause 31, clause 2, article 39.6 of the Land Code). In this case, the LSG body has the right not to publish a notice about the provision of a plot for agriculture and agricultural production (clause 2 of the Review).

Note: You can extend the lease for a new term regardless of the category of land

EXAMPLE 2.

The administration of the municipality and the head of the peasant farm entered into a lease agreement for a land plot without bidding. Later, the parties signed an additional agreement, which extended the term of the agreement by five years. But the prosecutor considered that the plot should have been provided based on the results of the auction. He filed a lawsuit to declare the agreement invalid.

The courts of first and appellate instances, as well as the district court, satisfied the claims (ruling of the Fourth Arbitration Court of Appeal dated December 11, 2019 in case No. A19-17524/2017). But the Supreme Court supported the head of the peasant farm. He indicated that a new lease agreement for a municipally owned land plot can be concluded without bidding if three conditions are met.

1. The municipality provided the tenant with land for agricultural production.

2. There is no information that the state land inspection body has identified violations in the use of the leased plot. Or the tenant committed violations, but eliminated them.

3. The tenant submitted an application to the local self-government body to conclude a new land lease agreement before the old agreement expired.

The head of the peasant farm has been using the disputed plot under lease agreements for agricultural activities for 10 years and has not committed any violations. I sent the application for concluding a lease agreement on time. The Supreme Court overturned the decisions of the lower courts and sent the case for a new trial.

Is it possible to extend the lease agreement for an indefinite period without bidding?

The Land Code contains a rule for tenants who received plots for agricultural production without bidding before March 1, 2015. If such a tenant continues to use the land plot, and the lessor does not object to this, then the contract, after the expiration of its term, is extended under the same conditions for an indefinite period. In this case, the tenant has the right to submit an application to conclude a new lease agreement without bidding (clause 3 of the Review).

Document: Determination dated May 20, 2020 No. 310-ES19-25907

EXAMPLE 3.

The company leased the land for five years. Used the plots for agricultural production. When the contract expired, the company continued to use these areas. Its management believed that the lease had been renewed indefinitely. There were no objections from the landlord. During the period of validity of the agreement, the company applied to the authorized body (committee) with an application to conclude a lease agreement for a new term on the basis of subparagraph 31 of paragraph 2 of Article 39.6 of the Land Code.

The company committee refused. Then she filed a lawsuit to declare the refusal illegal.

The Supreme Court indicated that the Land Code and Law No. 101-FZ, as amended before March 1, 2015, did not exclude the possibility of renewing the contract for an indefinite period, during the conclusion of which it was possible not to hold a tender. A lease agreement for municipal property can be renewed for an indefinite period in the manner prescribed by paragraph 2 of Article 621 of the Civil Code, if it was concluded before the entry into force of the law that made auctions mandatory (Article 422 of the Civil Code, clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court dated November 17, 2011 No. 73). The provisions of the code as amended, effective from March 1, 2015, do not directly exclude the application of paragraph 2 of Article 621 of the Civil Code to a lease agreement for a municipal land plot legally concluded without bidding. The Supreme Court granted the claim.

At what point does the tenant have the right to purchase the plot?

The tenant can buy the leased plot into ownership, but not immediately. He must use this land for at least three years (clause 2 of article 39.3 of the Land Code). Count this period not only according to the last lease agreement. Also take into account previous lease agreements consecutively concluded with this tenant (clause 4 of the Review).

EXAMPLE 4.

The head of the peasant farm asked the administration to sell the land plot he had rented without bidding. Officials refused the entrepreneur: the three-year period from the date of conclusion of the last lease agreement had not yet expired. The head of the peasant farm went to court.

The court indicated that the administration and the head of the peasant farm consistently entered into land lease agreements for agricultural production. The farm used the land for a total of more than three years. Therefore, the administration’s refusal is illegal.

3 years is the minimum period for using leased land. Only when it expires will the tenant have the right to buy the plot

The lease term is not important for the purchase of land if the tenant has re-registered the right of permanent (indefinite) use of an agricultural plot to a lease right. In this case, the agricultural producer has the right to acquire ownership of the plot regardless of the period of its use under the lease agreement (clause 7 of the Review).

EXAMPLE 5.

The tenant had the right to perpetual use of the agricultural land plot. He re-registered this right by entering into a 49-year lease. Immediately after this, the tenant tried to buy the land. Officials, and then the courts of first and appellate instances, refused the agricultural producer. They indicated that he had been using the site for less than three years from the date of signing the lease agreement sub. 9 paragraph 2 art. 39.3 ZK).

The Supreme Court corrected this error. A tenant who has re-registered the right of permanent (perpetual) use of a plot of agricultural land on which there are no buildings or structures into a leasehold right, has the right to acquire ownership of this land. There are no restrictions on the period of ownership of such a plot under the lease agreement for the exercise of the right to purchase.

What area of ​​land does an agricultural producer have the right to purchase?

The local government body determines the area of ​​the purchased plot of agricultural land, taking into account the requirements established by law for the formation of land plots. This area is not limited only by the area of ​​the plot required for the use of the property located on it (clause 6 of the Review).

EXAMPLE 6.

The company wanted to buy the entire leased plot of agricultural land without bidding. But local authorities refused. They believed that it was enough to provide the tenant with ownership of the land necessary for the operation of the warehouse located on it. The company applied to the court to declare the refusal of the local self-government body illegal. The courts granted the plaintiff's application. The legislation does not contain restrictions on the area of ​​the purchased land plot.

Is it possible to put up land shares for auction?

A local government body can put up for auction only a land plot that is formed from unclaimed land shares that are in municipal ownership. Do not put up the land shares themselves for auction (clause 10 of the Review).

EXAMPLE 7.

The company applied to the court to declare illegal the inaction of the local administration, which did not hold auctions for the sale of the land share. The plaintiff indicated that he, along with another company, uses a land plot that is in shared ownership. Since there are several interested parties who have the right to claim the acquisition of a land share from the municipality, local authorities must put this share up for auction.

The courts rejected the claim. Only the land plot formed from unclaimed shares can be put up for auction, and not the shares themselves.

Is it possible to sell a plot of land included in settlements to an agricultural producer?

If the plot is included in the land of a settlement, then the tenant cannot buy it for the purposes of agricultural production. Redemption becomes impossible from the moment when the type of permitted use of the site has changed in accordance with the rules of land use and development (clause 8 of the Review).

Only the land plot formed from unclaimed shares can be put up for auction, and not the shares themselves

EXAMPLE 8.

The company has been a tenant of a plot intended for agricultural production for more than three years. She contacted the administration department with an application to purchase this land without bidding. The department refused the ransom. In accordance with the general plan and land use and development rules, the site was classified as a public and business development zone. It is not intended to be used for agricultural purposes. The company went to court and demanded that the refusal be declared illegal and that the department be obliged to conclude a purchase and sale agreement for the site.+

The courts rejected the claim. The mere inclusion of a plot of land in a residential area is not a restriction on its purchase by the tenant. However, it is impossible to buy this land for agricultural production. The permitted use of the land plot must correspond to the purposes of its use specified in the tenant's application. Otherwise, the municipality has the right to refuse (Clause 14, Article 39.16 of the Land Code).