Public lands: what they are, how they are used, responsibility for “squatting”

February 24, 2019

Land disputes are one of the most difficult categories of cases for an ordinary citizen, while at the same time being one of the most pressing. Neighborhood conflicts over land sometimes last for years, resulting in several courts, enormous costs and a lot of frayed nerves, especially if both sides neglect legal assistance.

What to do if it is not possible to coexist peacefully with your neighbors, and a dispute over land issues turns into a serious conflict? Article 64 of the Land Code directly establishes that all land disputes are subject to judicial review. The law, however, does not prevent neighbors from reaching an agreement amicably, but such an outcome of the case is only possible with the participation of experienced lawyers on both sides who are able to convey to the disputing parties all the destructiveness and burdensomeness of the judicial conflict.

If one of the parties categorically does not make concessions, the only way out will be a trial.

What is public land

Public lands are special areas that are used for various purposes. Basically, in such areas, roads, squares, streets, driveways, embankments and other objects of cultural significance for the locality are developed.

If these territories are publicly owned, then everyone without exception can use them. Also, the time spent on such lands is not limited by law. It is customary to divide such areas with special red boundaries on the plan in order to separate them from other areas until the exact boundaries of the territory are established at the legislative level.

Public land plot on the territory of a settlement Source rzn.rucountry.ru

Registration of ownership is not provided for public land plots, since they are not subject to privatization. It is also not customary to take or lease them at auction. State or federal authorities can dispose of such lands for various subjects of the state. Among such areas there may also be a street network for public use.

On a note! If a certain part of the site is located within the territory of lands owned by the state and this part is needed for the construction of a highway or other facility, then it is allocated for this purpose.

Land plots under an apartment building owned by the state Source yuristfinans.ru

Excerpt from legislation

Issues are managed and regulated by two key regulatory acts. The most important of them is the Town Planning Code of the Russian Federation, and the Land Code is secondary in this regard.

They note that it is these regulations that help resolve issues related to the operation of plots and other categories of public land (PLL) belonging to a specific locality. The Land Code itself controls the situation regarding compliance with the rules for the exploitation of allocated land.

Establishing boundaries on public lands Source yuristfinans.ru

The concept of public lands refers to two sides of legal relations, and when disputes arise between legal acts, the federal rather than the regional sphere takes priority.

Features of the use of public lands

As already clarified above, public lands can be provided for rent or free use without subsequent privatization. But a deviation from this legislation is also possible if a capital structure is built within the site, and it has already been registered as ownership through privatization or in any other way. Then the public land is owned.

In such circumstances, a decision is often made in court to provide the opportunity to take ownership of the plot attached to the building on the foundation.

On a note! Often, vacant plots that are in the register of a locality are leased out to those persons who own a building erected on them.

Use of state land for fields Source zorkinskoe.mo64.ru
There are cases when the owner of a building, which is built on territory belonging to the category of public use, leases an adjacent plot, for which an agreement of the appropriate type is drawn up. At the same time, the owner of the building does not have the opportunity to purchase such territory. If the lease agreement contains a clause confirming the possibility of further purchase of the site, then such an agreement can be considered illegal.

Use of a common area for gardens Source fujiclub.pro

When concluding a lease agreement for public lands, one of the parties to the legal relationship is a legal entity. This process represents the interaction of a person with the state. If the result of such interaction is the free, perpetual use of plots from the state local register, then the user may be allowed to build a permanent structure on this plot.

The erected building, as a result, is registered as a property in compliance with all the subtleties of the law, while the site is listed as the owner of the structure. Such a building can be subject to any legal procedures: sale, donation, lease. Accordingly, the public land plot located under it passes to a new temporary or permanent owner. From a civil point of view, this process is called assignment of lease rights.

Public land plot for rent Source istra.rf

The management authority is responsible for the condition of the local area included in the general property of the apartment building

Owners of premises in apartment buildings bear the burden of expenses for the maintenance of common property (Parts 1, 3, Article 39 of the Housing Code of the Russian Federation). At the same time, the management organization ensures its proper maintenance (Article 161 of the RF Housing Code).

According to Art. 162 of the Housing Code of the Russian Federation, the common property of an apartment building is an essential condition of the management agreement. The property of the house includes only a formed land plot, the boundaries of which are determined on the basis of state cadastral registration data (clause “e”, clause 2 of RF PP No. 491). In this case, the owners of premises in an apartment building pay for its maintenance (Article 154 of the Housing Code of the Russian Federation).

As Elena Shereshovets noted, the management organization is responsible for maintaining the local area only if two conditions coincide:

1. The site is the common property of the owners of premises in the apartment building.
2. Territory maintenance services are included in the management agreement.

Watch the full video of the first day of the online seminar to learn what to do if local regulations and courts are in favor of requiring the HO to maintain an undeveloped area of ​​the house.

The purpose of public areas and the sequence of construction of buildings on them

Having understood what PDOs are, you can determine the purposes of their use, which are designated by local authorities. For example, these could be areas with approved boundaries where parking lots, children's or sports grounds, and areas for walking animals are located. For such territories, the construction of urban planning objects is not provided: residential real estate, schools, kindergartens, various buildings with rent for offices.

Use of public lands for the construction of a city park Source kukarta.ru

A lease agreement in relation to public lands within the territory of a settlement is carried out without holding special auctions. Such situations allow the provision of land use to legal entities if:

• The President or local government issued a decree that on the declared territory it is necessary to erect an object of socio-cultural or educational significance, as well as buildings that are necessary for the implementation of projects and investments.
• An order was received from the highest official of the constituent entity of the Russian Federation for the same purposes as in the previous paragraph.
• The legal entity assumed responsibility for the completion or continuation of construction on the allocated site. For example, these could be multi-storey buildings in which residents have already invested their money to buy an apartment, but their rights were violated for one reason or another.
• The international obligations of the Russian Federation will be fulfilled, which involve the design and subsequent placement of facilities providing water, gas, and heat supply.
• On such a public plot there is a building, which at the time of provision of the land is owned by a legal entity.

There is an additional number of cases that are regulated in accordance with Article 39.6 of the Land Code of the Russian Federation.

The neighbor parks his car in the driveway

A neighbor can park a car in the driveway for the following reasons:

1. The terrain of the road does not allow parking the car near your fence.
2. The passage between the sections is narrow, so any abandoned car blocks the passage.

On the one hand, you can understand your neighbor. When going to the site, summer residents collect seedlings, pets, food, and tools. All this is difficult and difficult to move from the correct parking place to the dacha. On the other hand, an abandoned car can completely block access to other areas, as well as block the exit and exit from neighbors’ areas.

Of course, the first way to solve the problem will be to attempt a peaceful settlement. Ask your neighbor to move the car and allow you to leave. And in the future, discuss a more convenient parking location.

If you cannot resolve the situation peacefully, you can use the following tips:

1. Call the traffic police. Traffic police officers must draw up an administrative protocol on violation of parking rules. In this situation, the personal presence of the neighbor is not even required. He will simply receive a notice of the fine.
2. Do not wait for the traffic police officers, but independently send an application for administrative liability through the application. To register a complaint, just take a few photos. Moreover, such complaints can be filed daily. For each violation, a fine will be issued.
3. If the situation repeats more than once, you need to submit an application to the traffic police to install a sign prohibiting parking. The department does not always satisfy such requests, but there is a chance.

In addition, the injured party can go to court. But to do this, you need to prepare evidence that the parked vehicle is obstructing passage and this fact causes harm to the victim. The plaintiff's statement alone is not enough for the court, so the claim will be denied.

Example. Citizen T. filed a claim to remove obstacles in the use of the land plot and to recover compensation for moral damages to citizen Zh. The plaintiff explained that they own adjacent land plots. But the plaintiff's site is located in a dead end. And citizen Z. regularly parks his car, blocking the passage to the site. The attempt at a peaceful settlement did not yield any results. Therefore, he asks to prohibit the defendant from parking the car, blocking the passage, and also to recover compensation for moral damage in the amount of 200,000 rubles. The court refused to satisfy the demands because the plaintiff did not provide evidence that his rights were violated (Decision of the Sverdlovsk District Court of Krasnoyarsk, Krasnoyarsk Region dated July 25, 2019 in case No. 2-1323/2019).

In such a situation, the claim had to be accompanied by information about repeated prosecution by the traffic police. It was also necessary to provide measurements that special equipment (ambulance, fire truck) would not be able to access the house. In this case, there would be a chance to satisfy the requirements.

Placement of trade pavilions on public lands

To locate retail outlets, pavilions and centers within the boundaries of public areas, they are guided by Article 10 of the Federal Legislation No. 381-FZ dated December 28, 2009. It states that use is permitted for such purposes.

The installation of retail outlets within the designated limits is carried out in order to ensure the sustainable development of the territory and achieve a minimum provision of the population with retail facilities.

The procedure for introducing objects is carried out only under the control of the current government of the Russian Federation. The construction scheme is developed, modified if necessary, and then approved only by local authorities.

Trade pavilion in the city on public lands Source tver.svarkaperm.ru

The proposed scheme must include at least 60% of non-stationary buildings for commercial purposes, which may belong to small or medium-sized businesses out of the total number of declared objects.

Is it possible to change the purpose of a land plot?

The purpose of the land is determined by the class to which the site belongs. Information about this is included in the concept of cadastral lists, along with data on location, number of owners and other characteristics entered into the register. Based on this data, the site is assigned a specific destination category.

You can change your appointment; there are different options for this:

Change resolution. Occurs within one category. For example, a plot of land is intended for vegetable growing, but the owner wants to raise livestock and needs land for pastures. In this case, the permit changes, but the category itself (agricultural purpose of the land) does not change.

Taxation

Taxation of public lands is carried out according to the following rules:

• When a plot of land is leased to a legal entity or individual, and there are no permanent buildings on it, registered as their own real estate, then it is subject to mandatory taxes. Sometimes this tax is changed to a rental payment or vice versa.
• If the declared site does not belong to any of the users by law (there is no building on it), for example, if it is part of the roadway. Then the land tax is transformed into a transport tax and its amount is divided proportionally among all users of a specific section of the road.
• In the case when such plots are located in a non-profit horticultural association, then each participant pays the tax independently.

Taxation conditions may vary depending on what kind of activity is developing in a particular area.

Tax on public land Source perm.zoon.ru

Illegal use and liability for it

According to data from the Civil Code of the Russian Federation, public lands are areas to which everyone has access without restrictions. If for some reason an individual cannot enter this territory and is even asked to pay for entering it, then such an operation is illegal and is called “squatting.” It is subject to liability in accordance with Article 70.5 of the Code of Administrative Offenses. For unauthorized action there are fines, the amount of which is established at the legislative level:

• citizens - 1-1.5% of the cadastral price for the plot (at least 5 thousand rubles);
• officials - 1.5-2% of the cadastral value (at least 20 thousand rubles);
• for legal entities - 2-3% of the cadastral price for the plot (minimum 100 thousand rubles).

If a person has illegally seized territory and conducts business activities on it, which has not been converted into the status of a legal entity, he will still be held liable as a legal entity.

The amount of the fine is calculated depending on the area of ​​the squatted territory, which resulted in a restriction of travel or passage. Also, a penalty can be imposed if damage has been caused to public areas, for example, to the plantings present on them.

Detection of violations of the use of public lands Source kadastrmap.com

Going to court

If a situation arises where the relocated fence interferes with the access to or passage to the house, and also creates difficulties for the passage of special equipment, then it is necessary to go to court.

In such a situation, there is protection of property rights that are not associated with deprivation of possession. Therefore, the interested party has the right to go to court at any time without regard to the statute of limitations. The statute of limitations does not apply to disputes over the protection of property rights not related to deprivation of possession (Article 208 of the Civil Code of the Russian Federation).

That is, if a citizen has not gone to his dacha plot for 5 years, and upon arrival he sees his neighbors’ high fence that is blocking the passage to his plot, then he can go to court, even if more than 3 years have passed since the fence was erected.

Nuances when going to court

Features of going to court:

1. Before initiating the process, you need to write a complaint to the owner of the site. A written response must be attached to the claim.
2. The fact of violation of the applicant's rights must be recorded. To do this, you need to call specialists from the district administration or the TSN board. A written response to the complaint must also be attached to the claim.
3. Before going to court, it is necessary to send a claim to the defendant with a proposal to eliminate the violation. If no response is received within 20 days or the fence is not dismantled, then you need to go to court.
4. Documents must be submitted to the magistrate's court at the location of the site.
5. You should not conduct a land survey yourself. It is better to attach a petition to the claim.
6. The claim must include the plaintiff’s telephone number so that the court secretary can promptly contact.

Documents for the claim

In preparation for the process, you must collect the following documents:

• passport;
• documents on ownership of the site;
• extract from the Unified State Register of Real Estate;
• cadastral passport;
• response from the owner of the disputed site;
• responses to complaints;
• petition for a land management examination;
• receipt of payment of state duty - 200 rubles.

Statement of claim

The statement of claim to the court must include the following information:

• name of the court;
• applicant details;
• information about the defendant;
• third party (owner of the site - district administration or TSN);
• name of the claim;
• information about rights to the site;
• actions of the defendant that led to the violation of rights;
• information about contacting the owner of the site and supervisory authorities;
• reference to law;
• requirement to remove obstacles to the use of land;
• list of documents for the claim;
• date and signature.

Sample claim

SNT lands and the nuances of their design

Public lands in SNT are plots of a horticultural non-profit partnership. Such associations offer people a plot of a certain area for organizing a garden or vegetable garden.

Typically, these public lands are located in a separate area, mainly outside the city or town. The number of adjacent plots may vary, and when they are transferred for use, an individual is allowed to use any resources on it. For example, install an individual well and use it.