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Judicial practice Land disputes. Land disputes about the boundaries of the site. Judicial practice on recognition of intertaries invalid

In accordance with the plan of work of the Tenth Arbitration Court of Appeal, on the second half of 2008, a judicial practice of consideration of disputes related to the application of land legislation is summarized.
This review uses the decisions of the Tenth Arbitration Court of Appeal for Space Affairs for the period from July 2004 to September 2008.

1. Land plots limited in turnover may be provided with property only in cases where the law directly resolves the transfer of such land from state or municipal ownership of private.
The Company appealed to the Arbitration Court with a claim to the administration of the district to conclude to conclude a contract for the purchase and sale of a land plot with the applicant.
The claim is declared on the basis of Article 445 of the Civil Code of the Russian Federation and Article 36 of the Land Code of the Russian Federation and motivated by the circumstances of the claimant of an exceptional right to privatize the controversial land and unlawful evasion of the defendant from the conclusion of the contract of sale.
The decision of the Arbitration Court to satisfy the claim was denied the fact that the requested land plot was provided by the plaintiff in accordance with Article 30 of the Land Code of the Russian Federation under the lease agreement for the construction of a golf club, which is currently not built, therefore, the grounds for the retention of the defendant to the conclusion contract is not available. In addition, the term of the lease agreement is provided for 49 years. The specified contract by the parties did not terminate and is valid.
Decision of the Arbitration Court of Appeal, the decision was canceled, since the defendant does not provide legitimate grounds for refusing a controversial purchase agreement, the conclusion of the court of first instance on the absence of the claimant the right to privatize the land plot due to not the end of the construction of the entire object of objects, to host which is provided The land plot is not founded on the provisions of Article 36 of the Land Code of the Russian Federation.
The court acts adopted by the court acts adopted in the case are canceled, the case is aimed at a new consideration of the court of first instance, with an indication of the need to establish whether a disputed land plot is subject to within a specially protected area, transfer to private property, and consider the possibility of privatization Land plot.
The court of first instance during the re-examination of the case refused to satisfy the claim.
Clause 2 of Article 15 of the Land Code of the Russian Federation established that land plots in state or municipal property may be transferred to the property of citizens and legal entities, with the exception of land plots, which, in accordance with this Code, cannot be in private Property.
By virtue of paragraph 4 of Article 28 of the Land Code of the Russian Federation, it is not allowed to refuse to provide citizens and legal entities of land plots in state or municipal property for construction, with the exception of cases: withdrawing land plots from turnover established by the Federal Law of the Privatization Land plots, reservations of land plots for state or municipal needs.
Restrictions on therapy of land plots are also established in Article 27 of the Land Code of the Russian Federation, according to which land plots related to the lands limited in the turnover are not provided with private property, except in cases established by federal laws.
The court of appeal came to the conclusion that land plots limited in the turn can only be given in cases where the law directly resolves the transfer of such land from state or municipal ownership of private.
The requested land plot due to paragraph 8 of Article 28 of the Federal Law of December 21, 2001 N 178-FZ "On the privatization of state and municipal property" is not subject to alienation, since it is a water-powder area of \u200b\u200bthe water object.
The court of appeal came to the conclusion that the controversial land plot, in accordance with Article 27 of the Land Code of the Russian Federation, belongs to the land limited in the turnover and, by virtue of the requirements of Article 28 of the Federal Law of December 21, 2001, N 178-FZ "On the privatization of state and municipal property "is not subject to alienation.

2. The claim for recognition of ownership of the residential house is subject to deviation if controversial residential buildings are located on the land plot not provided to the plaintiff for construction.
By the decision of the administration of the district from the land of state farm, the land plot was identified and assigned to society, part of which was allocated to provide an organization for the construction of residential buildings. At the same time, society should have been removed from the site in the prescribed manner, which, however, was not actually allocated. The organization and contractor concluded a contract for the development of design and construction documentation for the construction of cottages, their construction and commissioning of facilities. The contractor completed the construction of these properties.
The organization appealed to the Arbitration Court with a claim to the Federal Property Management Agency on recognition of ownership of residential buildings on the basis of Article 222 of the Civil Code of the Russian Federation as unauthorized buildings.
The court of first instance, refusing the organization to meet the stated requirements, proceeded from the fact that the plaintiff did not provide evidence of the implementation of them aimed at obtaining the necessary permits and approvals for the construction of controversial facilities and registration in the order of land use established by law, while the order of recognition of property rights The unauthorized construction itself cannot be released from the obligation to fulfill the rules and conditions for the construction of real estate facilities established by law and other regulatory legal acts.
The construction of disputed residential buildings should be carried out by the organization on the basis of project documentation agreed with the bodies of architecture and urban planning, state control and supervision authorities, and the approval of the project documentation by the relevant authorities is the basis for issuing a construction permit.
The materials of the case do not have evidence confirming the organization of permission to build a disputed facility approved in accordance with the procedure established by law, as well as permits for the introduction of the latter into operation provided for in Article 51 of the Town Planning Code of the Russian Federation.
Project and other permitting documentation for the construction of residential buildings is also not represented.
In accordance with the norms of Article 222 of the Civil Code of the Russian Federation, the preservation of unauthorized buildings is possible if it does not violate the rights and legitimate interests of others and does not create a threat to life and health of citizens.
The right and legitimate interests of citizens may be violated by the fact of the construction of unauthorized buildings, since violations of construction standards and security rules admitted by the construction of unauthorized buildings, create a threat to their lives or health.
The organization does not prove the circumstances to which it refers, as for the basis of its requirements.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

3. The withdrawal of land for state or municipal needs can be carried out only in exceptional cases. The validity of such seizures must be confirmed by the relevant areas of territorial planning.
The authority of local self-government decided to withdraw from the society of the land plot belonging to him on the right of ownership. At the same time, as the basis of such withdrawal, the local government agency pointed to the construction of the object of municipality - boiler room.
Disagreeing with the specified decision, the Company appealed to the arbitration court with a claim for invalidation.
The Arbitration Court, satisfying the claims declared by the Company, proceeded from the fact that the disputed resolution was adopted by the local government body in violation of Article 23 of the Urban Planning Code of the Russian Federation, as well as Articles 49, 63 of the Land Code of the Russian Federation, while the expression of the land deprives the right of the Company as the owner of the land The site exercise its powers to hold, use and dispose of this land plot.
In accordance with paragraph 2 of Part 1 of Article 49 of the Land Code of the Russian Federation, the removal of the land plot for placing the objects of electrical, gas, heat and water supply of municipal significance is allowed in the absence of other options for the possible placement of these objects.
Based on the principle established by paragraph 4 of Article 2 of the Town Planning Code of the Russian Federation, construction is carried out on the basis of documents of territorial planning and land use and development rules. In accordance with paragraph 4 of Article 9 of the Urban Planning Code of the Russian Federation, the bodies are not allowed state power, local self-government solutions for seizures, including by redemption, land plots for state or municipal needs in the absence of territorial planning documents. Such a document in relation to the objects of electrical, heat, gas and water supply of the population within the borders of the settlement, the urban district is the master plan to be approved by the representative body of the local self-government of the settlement or the urban district.
The court of appeal by reading the general plans presented by the local governance authority established that they lack the placing the boiler house in the land plot of society.
The provisions of Article 31 of the Land Code of the Russian Federation established a certain procedure for choosing a land plot for the construction of an object. The result of this choice is to draw up an Act provided for in paragraph 5 of Article 31 of the Land Code of the Russian Federation, with the application of calculations of damages of land owners and the subsequent approval by its decision of the local government.
Since the local government body is not presented, neither the act of choice of the land plot, nor the calculation of losses, the court of appeal came to the conclusion that the choice of a land plot of society for the construction of the boiler house properly by local government is not issued.
The court of appeal comes to the conclusion that the body of local self-government is disturbed by the procedure for the withdrawal of the land plot for municipal needs, which indicates the illegality of the contested ruling.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

4. The norms of the current legislation of the Russian Federation are not provided for the ban on the separation of "single land use" for independent land plots.
The Company appealed to the Arbitration Court with a claim for a registrar on recognizing invalid decisions on the refusal to state registration of land ownership.
The claims are motivated by the fact that the registrar refused to register the Company's ownership rights to land specifying that they are not objects, the rights to which are subject to state registration, since according to the cadastral plan, these areas belong to single land use.
The Arbitration Court satisfying the requirements of the Company indicated that the registering authority did not have grounds for refusing to refuel the rights regulated by Article 20 of the Federal Law of July 21, 1997 No. 122-FZ "On the state registration of rights to immovable property and transactions with it."
The appellate court concluded that the lack of "single land use" in the Land Code of the Russian Federation cannot be the basis for refusal in the declared registration.
Land can be divisible and indivisible.
The land plot is divided, which can be divided into parts, each of which forms an independent land plot after the section, the allowed use of which can be carried out without transferring it to the lands of a different category, except in cases established by federal laws (paragraph 2 of paragraph 2 of Article 6 Land Code of the Russian Federation).
The court of appeal, out of the meaning of the above-mentioned norms of substantive law, taking into account the provisions of paragraph 5 of the Cadastral Decision Rules of the territory of the Russian Federation (approved. Decree of the Government of the Russian Federation of 06.09.00. №660), paragraphs 6.2.5. and 6.2.7 Order of the Federal Land Cadastre Service of Russia of 15.06.01. NP / 119 "On Approval of State Land Cadastre documents" concluded that land plots related to one category of lands having the same type of permitted use and one form of ownership can be taken into account as a single land use, that is, one object of real estate, with assignment They are one cadastral number (composite land).
At the same time, land plots, separated from other sites, which are part of the "single land use", assigns the name "Separate section", and related land plots - "Conditional Plot" (paragraph 6.2.7. Order of the Federal Service of the Federal Land Cadastre of Russia of 15.06.01. No. P / 119).
The norms of the current land legislation are not provided for the ban on the separation of "single land use" to independent land plots.
From the materials of the case, it is seen that the land plot by decision of the copyright holder was divided into three independent land plots without changing the category of land and the type of permitted use. Each of the three allocated land plots in accordance with the requirements of the current land legislation was assigned independent cadastral numbers, cadastral plans were drawn up.
Consequently, the above sections are objects of real estate, the rights to which are subject to state registration. The Company presented the recorder documents that meet the requirements of Article 18 of the Federal Law of July 21, 1997. No. 122-FZ "On State Registration of Rights to Real Estate and Transactions with Him" \u200b\u200band necessary for state registration of the applicant's ownership of the above-mentioned land, as well as for State registration of the elimination of the object - the initial land plot.
Considering the above, the Arbitration Court of Appeal believes that the grounds provided for in Article 20 of the Law on Registration, for refusing the implementation of state registration of the right of society in the registering authority.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

5. The establishment of the type of permitted use of land plots "for dacha construction" against land users - commercial legal entities is not provided by law.
On the basis of the appeal of the Company by the local government, the type of permitted use of the Society belonging to the right ownership of the land plot with "for agricultural production" on "for country construction with the right of construction of residential buildings and registration of residence in them and economic structures" without changing the category of land .
The Company appealed to the Federal Agency for Real Estate Objects with a statement of amending the State Land Cadastre Documents in connection with the adoption by the local self-government decision on changing the type of permitted use of the land.
The federal agency of the Cadastre of Real Estate Objects refused to society in meeting the above statement, while specifying that the documents submitted by the Company could not be a basis for changing the entry of the State Land Cadastre on the authorized use of the land plot, since the applicant is a commercial organization in respect of which the specification of the type of permitted use of land "for country construction."
The Company appealed to the Arbitration Court with a claim to the Federal Real Estate Cadastre agency for recognizing illegal refusal to make changes to the State Land Cadastre.
The court of first instance, refusing to society in meeting the stated requirements, proceeded from the fact that the establishment of the type of permitted use of land plots "for dacha construction" against land users - commercial legal entities, which are not provided by land legislation.
The court of appeal issued that the norms of the Land Code of the Russian Federation, the Federal Law "On Horticultural, Gardening, and Civil Associations" allow us to use for the country's construction of those land plots from the category of agricultural land, which are provided for these purposes in the prescribed manner of non-commercial associations citizens.
In the meaning of the provisions of paragraph 1 of Article 16, in relationship with paragraph 4 of Article 14 of the Federal Law "On Horticultural, Gardening and Current Non-Commercial Associations of Citizens", the provision of land plots "to accommodate the country's non-commercial association of citizens" is carried out after the state registration of the non-commercial association created as a result of the institution or reorganization of another horticultural, garden or country union.
The court of appeal concludes that the legislation does not provide for the mentioned type of use for land plots previously provided from agricultural land for agricultural production and owned, legitimate ownership of economic partnerships, industrial cooperatives, state and municipal unitary enterprises, other commercial organizations.
In accordance with the procedure established by Article 14 of the above law, use for the country's construction of those land plots from the category of agricultural land, which are provided for these purposes in the prescribed manner of non-commercial associations of citizens.
When applying for changes to information on the allowed use of the land plot, there were no documents confirming the creation of an appropriate legal entity.
Considering the foregoing, as well as the fact that evidence of the zoning of the territory, in the boundaries of which the land plot belonging to the Company, with the established allowed use of land plots, is not submitted to the materials of the case, the Arbitration Court of Appeal believes that the Federal Real Estate Cadastre Agency reasonably refused Society in making these changes to the State Land Cadastre.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

6. Land plots for the conduct of peasant (farmer) economy are provided only to citizens and cannot be alienated in favor of legal entities, as it implies a change in their intended purpose.
A citizen made an additional contribution to the authorized capital of the Company in the form of a land plot related to the land of agricultural appointment and provided for the organization of peasant economy.
The Company appealed to the registrar with a statement on state registration of the transfer of ownership and the ownership of the Company to the above-mentioned land.
The registrar refused to state registration, motivating his refusal by the fact that land plots for the conduct of peasant (farmer) farms are provided only to citizens and cannot be alienated in favor of legal entities, as it implies a change in their intended purpose.
Believing that the refusal to state registration is illegal, the Company appealed to the arbitration court with a claim to the registrar on the recognition of his actions illegal, the obligation to implement state registration.
The court of first instance, refusing to satisfy the stated requirements, proceeded from the fact that the state registration was denied legally due to the fact that the alienation of such a land plot in favor of the legal entity violates the norms of the Land Code of the Russian Federation and the Civil Code of the Russian Federation.
The court of appeal establishes that the land plot submitted in the case submitted in the case file it follows that this land plot is assigned to the category of agricultural land and has permissible use (appointment) - to organize peasant economy.
From the provisions of the Federal Law of 11.06.03, No. 74-FZ "On the peasant (farmer) economy" it follows that land plots from agricultural land are provided to create farms and the implementation of its activities only to citizens.
The Company's Charter does not provide for such a type of activity as the organization of the peasant (farmer) economy.
Thus, documents on the transfer of land plot of agricultural purposes with permitted use - to organize a peasant farm to the property of a legal entity that cannot be the subject of the peasant economy, in form and content do not comply with the requirements of current legislation, in connection with the state registration of property rights Based on such documents, it was legitimate.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

7. The general use of the settlement necessary to meet public needs is not subject to private property.
The garden partnership appealed to the Arbitration Court with a lawsuit against local governments on recognizing illegal decisions of the defendant to refuse to provide the claimant of a land plot relating to common property.
In substantiation of the stated requirements, the partnership indicated that the decision of the local government body contradicts paragraph 2 of Article 28 of the Federal Law No. 66-FZ "On the Horticultural, Gardening and Country Non-Commercial Associations of Citizens", in accordance with which land belonging to Property of general use is subject to transfer to the property of the gardening, gardening or dacha non-commercial union for free.
The court of first instance, refusing to the Garden Partnership in meeting the stated requirements, proceeded from the fact that the requested site could not be submitted to private ownership, since it is a plot of general use of the settlement and is necessary to meet public needs for travel and parish of village residents, as well as From the fact that the plaintiff is not presented with evidence confirming the partnership by the partnership at the disputed land plot.
The court of appeal establishes that in violation of Article 28 of the Federal Law of April 15, 1998 No. 66-FZ "On the Horticultural, Gardening and Dutcha Non-Profit Associations of Citizens", the garden partnership did not submit documents confirming the description of the location of the land boundaries indicating their size, Directions and turning points, including to determine the area of \u200b\u200bthe requested land plot.
The cadastral plan of the requested land plot with a garden partnership is also not represented.
The lack of materials of the survey and cadastral plan makes it impossible to reliably establish the actual location and the actual area of \u200b\u200bthe requested land.
Given the above arbitration court, it is believed that the Garden Association, addressing the petition for the provision of land plot to the property, did not submitted by Article 28 of the Federal Law No. 66-ФЗ "On Horticultural, Gardening and Country Non-Commercial Associations" Documents In connection with which the controversial land plot cannot be the object of civil relations.
In accordance with paragraph 12 of Article 85 of the Land Code of the Russian Federation, land plots engaged in areas, streets, roads, roads are not subject to privatization.
General use land in cities, towns and rural settlements consist, including from land used as a communication route (square, streets, alleys, passages, roads, embankments).
The above lands are not subject to transfer to private property and serve as meeting the needs of all living in the given settlement.
Materials of the case, including those represented by the Garden Partnership, the general plan for the development of the partnership indicate that the controversial land plot is travel and passage not only to the territory of the garden partnership, but also to the village, that is, is a publicity site.
The evidence that the above road, which is a passage and passage to the village, is built at the expense of the Garden Partnership, the applicant is not represented.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

8. The lack of state registration of the lease agreement testifies to its nonconnectness, but cannot serve as a basis for recognizing a contract invalid.
The landlord and tenant concluded a land lease agreement.
Believing that the above agreement is invalid by virtue of the insignificance, on the basis of Article 168 of the Civil Code of the Russian Federation, the Company appealed to the arbitration court to the landlord and the tenant about the recognition of the landlord lease agreement invalid.
In substantiation of the stated requirements, the Company refers to the fact that in accordance with the evidence of state registration of the right of permanent (perpetual) use on the above land plot belongs to the plaintiff.
Since the lease agreement is not registered in the prescribed manner, the Company believes that this transaction is invalid as not corresponding to the requirements of the law.
The court of first instance, satisfying the claims declared by the Company, proceeded from the fact that non-compliance with the rule of law on state registration of the transaction entails its invalidity, and therefore the lease agreement is insignificant.
The lack of state registration of the land lease agreement in accordance with Article 609 of the Civil Code of the Russian Federation testifies to its nonconnectness and by virtue of Article 166 of the Civil Code of the Russian Federation and cannot be considered as the basis for a claim for recognizing a contract invalid.
In accordance with Article 164 of the Civil Code of the Russian Federation, state registration is subject to state registration in cases and in the manner prescribed by Article 131 of the Civil Code of the Russian Federation and the Federal Law of July 21, 1997 No. 122-FZ "On the State Registration of Rights to Real Estate and transactions with him "
By virtue of paragraph 1 of Article 165 of the Civil Code of the Russian Federation, non-compliance with the notarial form, and in cases established by law, the requirements for state registration of the transaction implies its invalidity.
However, the transaction will be insignificant on this basis only when the legislator directly indicates this circumstance.
Clause 2 of Article 609 of the Civil Code of the Russian Federation, as well as Article 22 of the Land Code of the Russian Federation, do not establish similar consequences for the lease agreement, therefore, acts general rule Articles 433 of the Civil Code of the Russian Federation on the nonconnectness of the contract requiring state registration, in the case of its absence.
Legislation does not make dependent on each other from each other registration of the lease agreement of real estate and its invalidity. The lack of registration may indicate only the inconclusion of the contract, but not about its invalidity.
The plaintiff did not prove that article 65 of the Arbitration Procedure Code of the Russian Federation requires, that the lease agreement of the land plot does not comply with the laws or other regulatory acts.
The non-invalid contract cannot be invalid.
Court of Appeal Decision of the court of first instance canceled. The lawsuit refused.
The court of cassation supported the position of the court of appeal instance.

9. In the absence of intertaries and cadastral records, the land plot cannot be an object of land legal relations.
The Company appealed to the Arbitration Court with a claim to the local government body and the Garden Partnership on the recognition of ownership of four land plots located in the territory of the Garden Partnership. Claims are based on the decision of the Arbitration Court in another case, according to which the court ordered the Garden Partnership to fulfill the terms of the contract in nature and transfer the society four land plots located in the territory of the Garden Association.
The Arbitration Court refusing a lawsuit to society indicated that the plaintiff did not provide evidence of the validity of the claims.
The appellate court found that the controversial land was granted to the indefinite use of the enterprise to organize collective gardening. Subsequently, this land plot of local self-government was transferred to the Garden Partnership. In the case file, there are evidence of the provision of land plots to the Garden Partnership both on the right of permanent (perpetual) use and on the right of collective joint ownership.
In relation to the controversial land plots, the procedure for distinguishing state ownership to land has not been produced to the present and, therefore, the local government body due to paragraph 10 of Article 3 of the Federal Law No. 137-FZ No. 137-FZ "On the introduction of the Land Code of the Russian Federation" The right to manage these land plots.
The judicial act for which the plaintiff refers cannot serve as a basis for recognizing the Company's right to the disputed land plots, since the interviewing of these land plots was not produced, the boundaries were not alleged, the cadastral records of these sites were not produced. This circumstance suggests that the controversial land plots listed above by Art. 6 of the Land Code of the Russian Federation, according to which the land plot as an object of land relations is part of the earth's surface (including the soil layer), the boundaries of which are described and certified in the prescribed manner, cannot be recognized as the object of land relations.
Under the circumstances of the grounds, there is no reason to satisfy the appeal.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

10. Upon termination of the term of the land lease agreement, he is refundable to the owner.
The local government body (landlord) appealed to the arbitration court with a suit to the tenant about the obligation to return the land plot.
The lawsuit is motivated by the fact that after the expiration of the lease agreement, the leaseant did not freed the land plot and did not give it to the local government body.
The Arbitration Court satisfying the requirements of the local government body indicated that the lease agreement ceased due to the expiration of the term and the refusal of the landlord on its prolongation, and therefore the tenant is obliged to transfer the landlord.
The court of appeal has established that the lease agreement of the land plot was established that the tenant is obliged to inform the lessor about the upcoming release of the site both due to the expiration of the Treaty's term and during its early release, otherwise the contract considers exempted indefinitely.
From the materials of the case it follows that the local government has repeatedly reported to the tenant that, after the term of the contract, the lease of this land plot will not be extended, as well as demanding the release of the land.
Obtaining a tenant of the above document is confirmed by custom postal notification available in the case file.
The court of appeal was concluded that since the legal grounds for using the tenant with a controversial land plot due to the expiration of the lease agreement was discontinued, further retention by the defendant of the specified property is illegal.
The leaser link is that the objects of real estate are located on the leased land plot, the court of appeal cannot recognize the wealthy. According to the case of an extract from a single state register of rights to immovable property and transactions with it, the land plot was intended for temporary trading series. Short-term lease agreements, which also include the specified Agreement, do not provide for the right of the tenant to use the land plot for capital construction. In addition, evidence of the existence of real estate objects to the tenant, the court of appeal is not represented on the disputed land plot.
By virtue of Article 301 of the Civil Code of the Russian Federation, the owner has the right to refer his property from someone else's illegal possession.
The rejection of the tenant from the execution of the duty to return the property in connection with the termination of the contract gives the Lessant the right to request property in court and demand for a tenant for the execution of this duty.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

11. Self-employed area without issuing rights to its use is subject to exemption with the demolition of the erected structures.
The state body for supervision in the field of environmental management (hereinafter referred to as the authority for the supervision) appealed to the arbitration court with a lawsuit to society about the release of the forest plant, which is survivorized by organizing a sports holiday. The supervisory authority requested also to oblige society to free the busy area, for which to produce due to the defendant to the demolition of the unimpressed buildings.
The decision of the arbitral tribunal is satisfied. The court proceeded from the absence of advocating documents for the use of the controversial land plot. Also, the Arbitration Court recognized the existence of the right to handle the right to appeal with a present case and pointed to unreasonable non-compliance with the Company issued to its address, prescriptions to eliminate violations of legislation in the field of environmental management and environmental protection in the form of liberation of an unimpressed area of \u200b\u200bthe Forest Fund.
Court of appeal instance The decision of the court of first instance abolished under paragraph 4 of paragraph 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation, attracted to participate in the case as third parties that do not declare independent claims on the subject of the dispute of Leschoz #1 and Leschoz # 2. The case examined according to the rules of the first instance.
The court of appeal is established that society operates the disputed area of \u200b\u200bthe Forest Foundation without issuing rights to this in the manner established by Article 9 of the Forest Code of the Russian Federation.
Permits for the construction of buildings on this site did not be issued.
The court of appeal indicated that as a result, the illegal actions of the Company had an unlawful session of the forest fund, which is federal property.
Due to the installation by the society, the right of citizens is violated freely to stay in forests for their own needs, which is a violation of forest legislation.
Court of appeal instance satisfied.

12. The owner loses the right to the land plot if it was submitted to the authorized capital of the Company.

12.1. The competitive manager of the joint-stock company appealed to the arbitration court with a claim to shareholders on the recognition of invalid registered ownership of land shares in the right of a common ownership of the land plot.
The competitive manager believes that the state registration of the ownership of shareholders to the specified land shares of the total ownership of the land plot was carried out illegally, since this land plot in the process of reorganization of the state farm in the joint stock company was included in the authorized capital of the Company, and members of the employee of the state farm, in t. h. And the defendants, making them the land owls to the authorized capital of this joint-stock company, became its shareholders.
Since the registered right of shareholders for shares in the right of common ownership of the disputed land plot violates the ownership of the joint-stock company to this land plot, the bankruptcy trustee appealed to the arbitration court with the above requirements.
The arbitral tribunal, considering these requirements legitimate and reasonable lawsuit satisfied.
The court of appeal has established that the joint-stock company was established in the process of reorganization on the basis of the decree of the President of the RSFSR No. 323 dated December 27, 1991. "On urgent measures to implement land reform in the RSFSR" and the decisions of the Government of the Russian Federation of December 29, 1991 No. 86 " On the procedure for the reorganization of collective farms and state farms, "from September 4, 1992 No. 708" On the procedure for the privatization and reorganization of enterprises and organizations of the agro-industrial complex ".
According to the constituent agreement of the joint-stock company, the founders assumed the obligation to convey property and land shares, obtained in the prescribed manner, indicating their value.
The appellate court concluded that the shareholders introduced land in the authorized capital of the newly educated joint stock company.
Consequently, the joint-stock company since the reorganization of the state farm has become the owner of the property and land transferred to it, and the former employees of the Council of State - shareholders.
The court of appeal concludes that the shareholders ordered by him by controversial land shares, becoming the shareholders of the Company and making land shares as a founding contribution to the authorized capital of the newly created joint-stock company, which, according to paragraph 1 of Article 66, paragraph 3 of Article 213 of the Civil Code of the Russian Federation is The owner of the property transferred to him as a constituent contribution.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

12.2.
As follows from the materials of the case, the decree of the executive body in connection with the reorganization of the Sovkhodoz, the joint-stock company is provided to the collective ownership of land plots.

Believing that the issued certificate of the right to land share is the basis for recognizing the shareholder of ownership of the specified land plot, the latter appealed to the above claim to the arbitration court.
The court of first instance refused the shareholder in meeting the stated requirements.
The court of appeal establishes that, in accordance with the constituent contract and the charter of the Company, the land shares of its founders were made the latest as a contribution to the share capital of the joint-stock company.

The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

12.3. The shareholder applied to the Arbitration Court with a claim for a joint-stock company on recognition of ownership of a share in the right of common share ownership of the land plot.
As can be seen from the materials of the case, the decree of the executive body in connection with the reorganization of the Sovkhodoz, the Joint-Stock Company is provided to the collective property of land plots.
The joint-stock company issued a certificate for the right of shared joint ownership of the land plot.
The executive authority issued a decision on issuing a certificate for the right of general joint ownership of land to members of the joint-stock company.
Based on the above ruling, the shareholder issued a certificate of the right to a land share in the overall joint ownership of the joint stock company.
Believing that the issued certificate of the right to land share is the basis for recognizing the shareholder of ownership of the specified land plot, the latter applied to the above statement to the arbitration court.
The court of first instance refused the shareholder in meeting the stated requirements on the assumption that the shareholder ordered its right to land, making it a contribution to the authorized capital to the newly created joint-stock company.
The Court of Appeal found that, in accordance with the Constituent Agreement and the Charter of the Company, the land shares of its founders were made the latest as a contribution to the authorized capital of the joint stock company.
From the submitted sheet of members of the employees of the Sovkhodogo, who have decided to privatize the employee with the employment team, which is an application for an extract from the Protocol of the General Meeting (Conference) of the Ocheskom Labor Group, it seems that the shareholder expressed its consent to participate in the privatization of the state farm.
As disciplied from the provisions of the Constituent Treaty on the establishment of a joint stock company, the founders assume obligations to make the cost of property and land shares (share) in the authorized capital of the Company as their contribution, and, consequently, the shareholder's arguments that he contributed to the authorized capital of the Company Only the value of the property share, but not land, is refuted by the case materials.
From the moment of making former employees of the Counsel in the authorized capital of the joint-stock company of property and land shares, the Company became the owner, and the former employees of the Counsel - shareholders of the Company.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

13. Local governance body Following the results of public hearings has the right to change the allowed type of use of the land.

Case number A41-K2-8471 / 07 dated December 26, 2007 (Minkina G.T., Demidova K.I., Diakovskaya N.V.)
The religious organization appealed to the Arbitration Court with a statement about recognizing invalidation of the decision of the local government and the obligation to consider the issue associated with the change in the type of use of the land.
The religious organization appealed to the court due to the refusal of the local government body in the change in the permitted type of use of the land plot with "for conducting personal subsidiary farms" on "for construction".
The religious organization believes that the controversial decision is illegal, since it is contrary to the standards of articles of 35-39 of the Town Planning Code of the Russian Federation, and violate its rights and legitimate interests as the owner of the land plot.
In connection with the above, the religious organization appealed to the court with the above requirements.
The court of first instance recognized the requirements of a religious organization not subject to satisfaction, since the appealed decision was published on the basis of the results of public hearings conducted in accordance with the requirements of paragraphs 6, 7 of Article 39 of the Town Planning Code of the Russian Federation, the conclusion of the chief architect of the municipal district.
The land plot belonging to the religious organization is located in the zone of one-story residential building.
The norms of part 5 of Article 35 of the Town Planning Code of the Russian Federation found that the cult buildings are subject to placement in social and business zones, whereas due to part 3 of this article, the placement of such facilities in residential areas is only allowed.
Considering the fact that, according to the Regulation on public hearings on the territory of a particular municipal district, the issue of a change in one type of permitted use of land plots to another type of such use is solved on public hearings and that as a result of such hearings, disagreement of the population of the municipal district was revealed with the placement of a religious building in The residential area, the court of appeal believes that the local government authority denounced the statement of a religious organization on the replacement of one type of land use to another.
In addition, the case of the case presents the conclusion of the chief architect of the municipal district, in which the conclusion about the impossibility of replacing the permitted use of the land plot and the construction of a cult building, as a plot acquired by a religious organization is located in a sanitary protective area separating one-story residential building from The municipal and warehouse zone, and the estimated type of building will violate the architectural and artistic appearance of the settlement, since the height of the cult building significantly exceeds the maximum height of one-story residential individual building, located near the site under consideration.
As for the requirement of a religious organization on the obligation of the local government body to consider changing the permitted type of use of the land plot, it is also subject to rejection, since it was established above, the decision of this issue is carried out by the local government body at the results of public hearings. In the case file, there is a protocol of the Commission on the summary of the results of public hearings, which contains the decision of the Commission adopted taking into account the conclusion of the chief architect of the district, the impossibility of replacing the allowance for the use of the land plot to the applicant required by the applicant.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

14. The actions of the registering authority to make an entry into a single state register of rights to immovable property and transactions with it can be appealed in court in the absence of a dispute about the right to object of real estate.
The municipality appealed to the Arbitration Court with a statement about the recognition of the illegal actions of the registrar for entering into a single state register of rights to real estate and transactions with it (hereinafter - the USRP) record of registration of the ownership of the Russian Federation to the land plot, and the obligation to terminate the above-mentioned entry.
In support of the stated requirements, the municipality refers to the fact that the registrar illegally introduced a record of state registration of the right of ownership of the Russian Federation to the land plot, and, according to the applicant, to the land, which are not distinguished by state ownership. By virtue of the above and taking into account the fact that the above-mentioned land plot of the applicant is leased to a society that lists rental payments to the budget of the municipality, the applicant believes that there is no dispute about the right of ownership regarding the specified land plot, and the disposal of this property is carried out by municipal education. The applicant also refers to the fact that the registrar does not provide evidence that served as the basis for entering into the USRP records of registration of the ownership of the Russian Federation to the specified object of real estate. The land plot is not attributed to any federal law to the land in federal property, and is also not included in the list of land plots, which caused the ownership of the Russian Federation on the basis of FZ "On the delimitation of state ownership of land".
By the decision of the Arbitration Court to satisfy the stated requirements. The court of first instance proceeded from the fact that the actions of the registrar for making an entry to the USRP may be appealed in court in the absence of a dispute about the right to object of real estate, therefore, the right to be resolved, and not about the registration record. In addition, the registered ownership of the Russian Federation to the disputed land plot in the procedure established by law was not challenged and not recognized invalid.
The court of appeal does not find grounds for the abolition of the decision of the Arbitration Court.
In accordance with paragraph 1 of Article 2 of the Federal Law "On State Registration of Rights to Real Estate and Transfers", state registration of rights to real estate and transactions with it is a legal act of recognition and confirmation by the state, restrictions (encumbrances), transition or termination of rights to real estate in accordance with the Civil Code of the Russian Federation.
State registration is the only proof of the existence of registered law. Registered right to real estate can only be challenged in court.
Thus, illegal actions (inaction) of the registering authority in the process of state registration, as well as actions to make an entry to the USRP, may be appealed in court under the condition of the absence of a dispute about rights (chapter 24 of the Arbitration Procedure Code of the Russian Federation).
In this case, the ownership of the land plot is registered for the Russian Federation.
Wherein this right In the procedure established by law, it is not challenged and not recognized as invalid.
At the same time, without challenging the grounds for the emergence of law and the issue of the legality (illegality) of the law, it is impossible to resolve the issue of the legality of the actions of the registering authority for registration of this right in the order of administrative proceedings.
The applicant is not deprived of the right to apply to the court on the recognition of his property right (challenging the registered law of the Russian Federation) on the mentioned property in accordance with the procedure for claim.
The court of appeal left the decision of the court of first instance unchanged.
The court of cassation supported the position of the courts of the first and appeal instance.

15. If the land plot refers to the category of general lands, its privatization is prohibited by the legislation of the Russian Federation.
The Company appealed to the Arbitration Court with a statement about the recognition of the illegal refusal of the local government in coordinating the boundaries of the land plot; The obligation to approve the draft borders of the land plot, as well as the obligation to provide for the fee in privatization in a ten-fold land tax rate the above land plot.
These requirements are declared with reference to the provisions of Articles 8, 130, 219 of the Civil Code of the Russian Federation, Article 28 of the Federal Law of December 21, 2010 No. 178-FZ "On the privatization of state and municipal property", paragraph 2 of Article 6, paragraph 1 of Article 36 Of the land code of the Russian Federation, articles 2, 4 of the Federal Law of 21.07.97 g. N 122-ФЗ "On state registration of rights to immovable property and transactions with it" and motivated by the fact that society is the owner of the real estate object, in connection with which it has The right to privatize the controversial land plot under this complex and necessary for its operation.
By the decision of the Arbitration Court, the stated requirements are satisfied in full. The court of first instance proceeded from the fact that the actions of the local self-government body to evade the boundaries of the controversial land plot limit the right of society to privatize this site, which is located under the last object of real estate. At the same time, the court of first instance was based on the provisions of Article 36 of the Land Code of the Russian Federation, as well as on the norms of paragraph 3 of Article 28 of the Federal Law No. 178-FZ "On the Privatization of State and Municipal Property", establishing that property owners of real estate who are not unauthorized buildings and located on land relating to state or municipal property are obliged or to rent, or acquire from the state or municipal Education these land plots, unless otherwise provided by Federal Law; The refusal to buy a land plot or lease is not allowed, except in cases provided for by law.
The appellate court believes that the decision of the court of first instance is subject to cancellation on the following grounds.
In accordance with paragraph 4 of Article 28, paragraph 7 of Article 36, paragraph 12 of Article 85 of the Land Code of the Russian Federation, as well as the Regulations on the procedure for establishing land use boundaries in the development of cities and other settlements approved by the Government Decree of 02.02.1996 N 105, land plots The boundaries of red lines (general land) cannot be provided to the property of citizens and legal entities.
The land on which the real estate belonging to the society is located relates to general use lands not subject to development and privatization. Moreover, according to the case, the disputed land plot is burdened by a communication cable.
Court Court of Appeal Court believes that the disputed land plot is within the territory intended to meet the public interests of the population, therefore, on the basis of paragraph 4 of Article 28, paragraph 7, paragraph 7, paragraph 12 of Article 85 of the Land Code of the Russian Federation, paragraph 8 of Article 28 of the Federal Law From 21.12.2001 N 178-FZ "On the privatization of state and municipal property" can be provided only for rent.
By virtue of paragraph 2 of Article 35 of the Land Code of the Russian Federation, the area of \u200b\u200bthe land plot engaged in the building, structure, structure and necessary for their use is determined in accordance with paragraph 3 of Article 33 of this Code, according to which the limit dimensions of land plots are established in accordance with approved in The established procedure of land removal standards for specific activities or in accordance with land use and development rules, land management, urban planning and project documentation.
Turning to the local governance authority with a statement about the approval of the project of the borders of the land plot, society to substantiate the specified area of \u200b\u200bthe plot did not refer to the rules of land allocations for specific types of activities determined in accordance with the rules established by the Land Code of the Russian Federation, the Law of the Moscow Region N23 / 96 -33 "On the regulation of land relations in the Moscow region", nor the rules for land use and development, land sustainable, urban planning and project documentation.
The Company, which submitted documents confirming his ownership of only a stopping point, located on the part of the disputed area, did not substantiate its right to the entire requested land.
Court of Appeal Decision of the court of first instance canceled. Request refused to meet the stated requirements.
The court of cassation supported the position of the court of appeal.

The reason for the dispute about the boundaries (Meeting dispute) between neighbors can become:

• contradictions in the old documents (previously used methods of land management did not have the necessary accuracy);
• errors of cadastral engineers during survey;
• self-altitude capture of land with one of the neighbors.

Contradictions can manifest themselves when carrying out the boundaries on the terrain or signing the act of coordination of borders, formulation of cadastral records. If the negotiations failed to agree, there is a land dispute, which, according to the Land Code of the Russian Federation, is permitted only in court.

Consider the common options for flight disputes and the prospects for their permission in court.

Dispute about imposing borders

It occurs when when the interviewing it turns out that the boundaries of two adjacent sites are intersect (one is registered in Rosreestre without accurate borders as "previously taken" in the country amnesty, and the other is labeled or in the process of survey). It is possible to resolve it by filing a claim for recognition of ownership of the area at certain boundaries or submit an application for the establishment of a legal fact (a plot in specific boundaries).

Considering this dispute, the courts find out the following points:

• availability of guidelines (administration decree, inheritance certificate) at the parties and the compliance of the data in these documents in cadastral passports and the land plans;
• how long is the fence, separating areas (the actual boundary of the land plot on the ground);
• did the neighbors of the site coordinate each other.

The legal position of the side is stronger, in the land put on which there are accurate boundaries installed in the integration process, and these borders (and therefore the area of \u200b\u200bthe plot) comply with the right-expanding documents. The role of the fence on the area is as follows: if the parties have no documents, and the fence costs more than 15 years, then he is recognized as an agreed border.

Dispute about Self Cupil

The reason here is understandable - the neighbors illegally moved the fence. A lawsuit is applied to restore the position that existed before the border disorder (paragraph 2 of Part 1 of Article 60 of the RF). In the subject of proving the court include the following facts:

• the location of the border to unauthorized capture, the correspondence of this location by the right-point documents of the parties to the dispute;
• self-removal seizure of land;
• elimination of unauthorized seizure should restore the violated rights of the plaintiff.

If the movement of the fence is noticeably "on the eye" and traces of the legal boundary of the site, the fact of self-grapted can be proved by testimony or inspection of the boundaries of the sections with the help of a notary (called "notarized proof inspection", is issued only before filing a lawsuit).

A dispute with the land cadastral chamber about putting on the inventory of the plot with inconsistent boundaries

Previously, it was a very common appearance of disputes, because The procedure for negotiating borders demanded that, no matter how to find neighbors and obtain their consent. Otherwise, in the formulation of land on the inventory denied. Today there is a more liberal procedure that considers the silence of their neighbors agree to refined borders.

If the imposition of borders in the cadastre arises because of the program problems or missed FSA ZKP errors of the cadastral engineer, who interreaved by the neighboring plot, the refusal of the cadastral chamber can be appealed. It is necessary to do it promptly, because The term for challenging the illegal actions of state bodies and officials is only 3 months.

Subject to the applied case:

• the correspondence of borders on the project of boundaries from the land plan with the adviser documents of the plaintiff;
• refusal in the formulation of the Cadastre is made on the grounds that are not relevant to the law "On State Land Cadastre" or contrary to other regulatory acts.

Landustrial expertise

Since the issue of establishing and changing borders is a technical question, land management examination is hardly mandatory in the mid-part disputes. For the party who wants to conduct an examination, it is very important to correctly formulate questions: in such a way that the expert's answers explain the judge all that is unclear from the documents. Examination can be appointed at the request of one of the parties to the dispute or on the initiative of the court.

There is a very unpleasant moment at a land sustained examination: a high price. In contrast to the usual establishment of the boundaries of the site (10-15 thousand rubles), the expertise for the trial costs about 30-40 thousand rubles. Payment for the examination is taken from a person who submitted a petition for its appointment, but if the examination was appointed on the initiative of the court, it is paid by the budget (therefore, the courts simply do not appoint an examination on their own initiative, and require the appropriate applications from the parties).

OVERVIEW

practices of consideration by the courts of the Chelyabinsk region affiliated with the application of the Earth's legislation,

for 2010-2011

I. . Disputes on the right of ownership of land

Analysis of judicial practice on land disputes showed that the main amount of affairs arises on disputes about the right of ownership To the land in connection with the realization of citizens the right to privatize land plots.

In accordance with Art. 1 tbsp. 27 Land Code of the Russian Federation Lands from land in state or municipal property are provided to citizens in ownership or for rent, as well as in gratuitous urgent use in cases provided for in paragraph 1 of Article 24 of this Code.

According to paragraph 2 of Art. 28 ZK RF usually provision of land in ownership of citizens is carried out for fee.

However, the current legislation allows cases when land in property can be obtained free of charge.

Providing land plots to citizens can be carried out is free In cases stipulated by the Land Code of the Russian Federation, federal laws and laws of the subject of the Russian Federation.

In particular, cases of free provision of land plots in the property of citizens are provided for:

P. 2.1 Art. 30 ZK RF (for construction within the borders of the built-up territory);

Abz 3 p. 1. Art. 36 ZK RF (religious organizations);

Art. 28 FZ dated April 15, 1998 No. 66-FZ "On the horticultural, gardening and country-country, non-commercial associations of citizens" (hereinafter - the law on horticultural, vegetable garden and country of non-commercial associations);

P. 4 Art. 5 of the Law of January 15, 1993 No. 4301-1 "On the status of the heroes of the Soviet Union, the heroes of the Russian Federation and the full cavaliers of the Order of Glory";

Art. 7 FZ dated 12.01.1996 No. 8-ФЗ "On the burial and funeral business";

P. 3 Art. 21 ФЗ dated 09/26/1997 № 125-ФЗ "On freedom of conscience and about religious associations";

P.P. 3, 9, 9.1 art. 3 ФЗ dated 25.10.2001 № 137-ФЗ "On the introduction of the Land Code of the Russian Federation" (hereinafter - the Law on the introduction of the RF RF), provides for re-issuance of land plots provided by citizens in constant (indefinite) use, as well as on the right of lifelong inherited ownership.

Opportunity free receipt The property of the land plot in the Chelyabinsk region is provided for Art. 7 of the Law of the Chelyabinsk Region of April 28, 2011 No. 120-ZO "On Land Relations" in the following cases:

1) for country construction - families, including incomplete families permanently residing in the Chelyabinsk region and having on the content of three and more minor children (including adopted under guardianship (guardianship), as well as children over 18 years old, students in educational institutions for full-time learning, but not more than reaching the age of 23 years;

2) for personal subsidiary management (field land plot) - citizens permanently residing in the territories of rural settlements of the Chelyabinsk region (the concept of the field land plot is given in Art. 4 FZ "On a personal subsidiary farm);

3) for animal husbandry - citizens permanently residing in the territories of rural settlements of the Chelyabinsk region;

4) to keep the peasant (farmer) economy:

citizens living in the territories of rural settlements of the Chelyabinsk region;

citizens living in the Chelyabinsk Region and carrying out activities for the conduct of peasant (farmer) farms in land, which are on the right of permanent (indefinite) use or the right of life inherited ownership;

citizens living in the Chelyabinsk region and which are tenants of land plots intended for the conduct of the peasant (farmer) economy, subject to the following conditions:

the use of a leased land plot in accordance with the targeted purpose;

rent a land plot continuously for three or more years;

the lack of debt on the rent at the date of the submission of a citizen of the statement on the provision of a land plot to the property for free;

5) for gardening and gardening - citizens permanently residing in the Chelyabinsk region. Land plots are provided in the property for free on priority to citizens permanently residing in the territories of the municipalities of the Chelyabinsk Region, which provide these land plots;

6) In other cases established by federal laws, the Law of the Chelyabinsk Region of April 28, 2011 No. 121-ZO "On the free provision of land plots to the ownership of citizens for individual housing and conducting a personal subsidiary farm with the construction of a residential building on a nursery land plot on The territory of the Chelyabinsk region "(Article 1), the law of the Chelyabinsk region of August 28, 2003 No. 174-ZO" On the turnover of agricultural land in the Chelyabinsk region ".

The law of the Chelyabinsk region of April 28, 2011 No. 121-ZO "On the free provision of land plots to the ownership of citizens for individual housing construction or conducting a personal subsidiary farm with the construction of a residential building on a native land plot in the Chelyabinsk region", in Art. 1, cases providefree Providing citizens of land plots from land in state or municipal property forindividual housing or maintenance personal subsidiary farming with the construction of a residential building on a nursery land plot, in particular:

1) Citizens living within the territories of rural settlements, which are registered as needing residential premises in accordance with Article 51 of the Housing Code of the Russian Federation (as amended by the Law of the Chelyabinsk Region dated 09.29.2011 N 203-ZO);

2) families, including incomplete families with on the content of three and more minor children (including adopted under guardation (trusteeship), as well as children over 18 years old, students in educational institutions for full-time learning, but not More than reaching the age of 23 years, registered as in need of residential premises in accordance with Article 51 of the Housing Code of the Russian Federation (hereinafter - citizens with three or more children) (as amended by the Law of the Chelyabinsk Region dated 09.29.2011 N 203-ZO);

3) Young families in which the age of at least one of the spouses at the date of submission of the application does not exceed 35 years, including incomplete families consisting of one parent (guardian, trustee), which does not exceed 35 years, and one or more children , including adopted under guardianship (guardianship), registered as in need of residential premises in accordance with Article 51 of the Housing Code of the Russian Federation (as amended by the Law of the Chelyabinsk Region dated 09.29.2011 N 203-ZO);

4) Participants in the share construction of apartment buildings that concluded before April 1, 2005, contracts for participation in equity construction or other agreements in accordance with the civil law of the Russian Federation, on the basis of which they have the right to ownership of residential premises affected by the actions (inaction) developers, As a result, construction stopped and (or) participants in the shared construction of apartment buildings cannot issue the rights to residential premises in apartment buildings made by the executive authority of the Chelyabinsk region authorized to the implementation of state control and supervision in the field of equity construction of apartment buildings and (or) other Property objects, in the register of participants in the equity construction of apartment buildings. The procedure for maintaining the register of participants in the equity construction of apartment buildings is approved by the Government of the Chelyabinsk Region;

5) Persons who held military service in the Chechen Republic, in the territory of the countries of Transcaucasia, Baltic States and the Republic of Tajikistan, as well as those who have fulfilled the tasks in the conditions of emergency and with armed conflicts and injured, contusion or injury in the performance of the duties of military service (official duties);

Privatization of garden and garden land.

When resolving disputes on the privatization of these land plots, it is necessary to consider the following.

If a garden (garden) land was provided:

1) before the introduction of the RF RF,

2) on the right of life inherited possessions or permanent (perpetual) use ,

a citizen who has a land plot in such a right, has the right in accordance with paragraph 9.1 of Art. 3 of the Law on the introduction of the RF CC, sub. 3 tbsp. 28 of the Law on Horticultural, Gardening and Country Non-Profit Associations to register ownership of such a land plot.

If in an act, a certificate or other document, establishing or certifying the right of a citizen to the land plot provided to him before the introduction of the RF RC for the maintenance of gloomy and gardening,not specified right on which such a land plot is providedor it is impossible to determine the view of this right , such a land plot is considered to be provided to the specified citizen onthe right of ownership Except for cases, if, in accordance with Federal Law, such a land plot cannot be provided with private property (paragraph 2 of paragraph 9.1 of Art. 3 of the Law on the Enactment of the Code of the Russian Federation).

In the above regulatory legal acts regulated the basis of the application of the so-calledsimplified privatization order Citizens of garden (garden) land plots.

Decisions on the provision of such land plots in the property of citizens are not required.

This procedure for the privatization of garden (garden) land registers applies to those cases whento each A member of the horticultural (vegetable) association issued a document certifyinghis right to the ground.

In case of landgranted non-commercial association His members have the right to purchase the land plot provided by him in accordance with the project of the Organization and Development of the territory or other establishing the distribution of land plots in the non-commercial union of the document.

Providing a land plot to the property of a citizen in this case is carried out by the executive body of state power or the local government body on the basis of a citizen's statement or its representative.

To his statement, a citizen is obliged to attach:

Description of the location of the land plot prepared by this citizen;

The conclusion of the Board of Non-Profit Association, confirming the allocation of the land plot and compliance with the specified description of the location of the land plot to the location of the land actually used by it.

If no members of this non-commercial association appealed with a statement on the provision of land in the property, the specified body is entitled to request:

A copy of the right-pointing document on the land plot, which is a copy of a non-commercial association, constituting the territory of this union;

Issument from an incorporation containing information about this non-commercial association.

When considering in court, disputes on the provision of land plots for gardening (gardening) The above documents must be submitted to the materials of civil affairs.

At the same time, the courts should be borne in mind that consolidating the non-commercial association of all land plots provided to him (for example, an indication in the certificate of ownership of land for the provision of land in collective-shared property), Does not mean the absence of a duty from the local government authority to consider providing land plots to members of the horticultural (vegetable) association, since according to Art. 29 ZK RF Body with the right to provide landin ownership citizen is the local government body. Horticultural (vegetable) partnership in Art. The 29 RF RF to such authorities are not attributed.

Therefore, when considering this category of affairs, the plaintiff must apply evidence of appeal to the appropriate authority,in otherwise, his application is subject to leaving without movement, as submitted with violation of Art. 132 Code of Civil Procedure of the Russian Federation (a document confirming the circumstances on which the plaintiff basses its requirements), since the Court considers an application for the refusal of the local government in the provision of land.

In contrast to the collective gardening, land plots for gardens were assigned to workers and employees intemporary use Based on the decrees of the Council of Ministers of the USSR of February 24, 1949 No. 807 "On the collective and individual garden of workers and employees" and dated April 8, 1953 No. 979 "On the garden of workers and employees" (the force with the publication of the decision of the USSR was lost 21.09 .1971 № 678).

According to the previously operating Art. 68 ZK RSFSR 1991. Land plots for collective and individual gardening were provided by the local councils of people's deputies from land for rent,and enterprises, institutions and organizations - in temporary use However, citizens for a long time continue to use these land plots without documentary, having a primary order (orders) on the allocation of the land plot under the garden.

Such a right (temporary, urgent), despite the duration of use, the right of permanent (perpetual) use can not be transformed, therefore, the privatization of such land plots is impossible, as it would mean a change in the type of use of the land plot that the law is not allowed.

The study of the practice of consideration has shown that the courts do not always take into account the above requirements of the law.

So, V. applied to the administration of the Tractor Platology District of Chelyabinsk, SNT on recognition of ownership of land plot No. 35 of 400 square meters. M in this SNT, referring to the fact that since 1999 he is a member of the partnership, uses the specified land plot, which is included in the territory of the SNT area of \u200b\u200b130 hectares, provided by SNT in collective-shared property. Since it does not have a document on Earth, asked for her ownership of the disputed land.

The court in satisfying the claims of V. Refused, the court agreed with such a decision, and the court agreed on the fact that at the time of the provision of the land plot of the specified area in the collective-shared property of the SNT V. A member of the partnership was not, so she could have Only in order of paragraph 2 of Art. 218 of the Civil Code of the Russian Federation - according to the relevant transaction.

The Presidium of the regional court decision and definition abolished, indicating that the conclusions of the lower courts do not comply with the actual circumstances of the case and the current legislation, in particular the provisions of Art. 28 of the Law on Horticultural, Gardening and County Non-Profit Associations, paragraph 4 of which provides for the right of a citizen who is a member of the horticultural partnership, to acquire a land plot for free, provided to him in accordance with the project of the organization and development of the territory of this SNT.

The court of supervisory instance noted that the membership of V. in SNT and the legitimacy of the use of the disputed land plot is not disputed by anyone. At the same time, the circumstances are important for business, such as V. with a statement about the provision of land in the property, where, which documents should have been submitted, the court was not investigated, which served as the basis for the direction of the case for a new consideration.

(No. 44-G-29/2010).

SH provided by SNT in collective-share property, in connection with which it has the right to free privatization of the land plot, however, the management of the Rosreestra in the Chelyabinsk region refused to register the right of ownership of the land plot.

By the correspondence decision of the World Judge of the Judicial Page No. 3 of the Tractor Platology District of Chelyabinsk, referred unchanged by the appeal definition of the Tractor-Plantsky District Court of Chelyabinsk, Sch. Satisfied.

Canceling the judicial acts, the Presidium of the Chelyabinsk Regional Court indicated that this claim is a property that is not subject to evaluation, therefore, in accordance with Art. 23, 24 Code of Civil Procedure of the Russian Federation of the case of such a category is obstacious to the magistrate, as the fall of the district court.

In addition, the Presidium noted that, taking into account the provisions of paragraph 1, 3, 4 of Art. 28 of the Law on Horticultural, Gardening and Country Non-Profit Associations, as well as the right to reflect Rosrester in state registration of the right due to the absence of the necessary documents, the courts should have verified whether Sh. had the right and the ability to register their ownership in accordance with Art. 25.2 FZ "On state registration of rights to real estate and transactions with it", why and what documents it was not presented; Directorate to the local government body with the appropriate statement and the application of the necessary documents, because by virtue of paragraph 6 of Art. 28 of the Law on Horticultural, Gardening and County Non-Profit Associations The local government body is obliged to decide on the provision of such a land plot or refusal to provide it within a two-week period from the date of receipt of the application and the necessary documents.

Meanwhile, the circumstances of whether a violation of the rights of the plaintiff was admitted, and if it was allowed, by which authority were significant and essential to the right resolution of the dispute.

(No. 44-G-100/2011)

In another case, the court decided to comply with the administration to prepare an order to provide the plaintiffs of garden land plots without checking the observance of all the conditions for the privatization of the land plot constituting the territory of the Garden of Non-Commercial Union.

Thus, the decision of the Kurchatovsky District Court of Chelyabinsk was recognized as illegal refusals of the district administration in providing land plots to the ownership of members of the Garden-Dacha Non-Profit Partnership "Aviators-2", the administration is entrusted to prepare the appropriate orders.

In justifying the satisfaction of the claim, the court indicated that all necessary documents were attached to the statements about the provision of land plots, land plots are within the boundaries of the Aviators-2 SDNT.

Meanwhile, by virtue of paragraph 4 of Art. 28 of the Law on Horticultural, Gardening and Non-Profit Associations Citizen, who is a member of this Association, has the right to acquire a land plot provided to him in accordance with the project of the organization and development of the territory This non-commercial association or other establishing the distribution of land plots in this non-commercial unification of the document.

Of the materials of the case, it was necessary that the Aviators-2 SDT, on the basis of the Resolution of the Head of Administration from 1996 and the State Act, was allocated land plots for the purpose of collective gardening and gardening, with a total area of \u200b\u200b50,9718 hectares, including:

23.0 hectares - to the ownership of members of the horticultural partnership;

27, 9718 hectares - in indefinite (permanent) use of the Horticultural Partnership, of which:

-13,76 hectares of recreational land (forest);

-12.4 hectares located in the estimated explosive zone

granite career LLP Granite Quarry-Chelyabinsk;

-0.9 g land located in the security zone of the sewer collector;

-0,9118 hectares of land without limiting use.

Paragraph 2 of the Resolution Installed the following land use mode:

-For lands of recreational purposes - without the right to cut the trees;

-For lands located in the explosive area - without the right to build ground structures related to the constant stay of people in the zone;

- For lands located in the security zone of the pipeline - without the right to build and plant trees (t. 1 ld 10).

Consequently, the circumstance that had the importance to the correct consideration of this case was not only the question of whether the requested land plots are requested within the borders of this partnership and whether the documents are applied by citizens to applications for land plots in their property, but also that corresponds to Whether the location of the newly educated land plots of the project of the organization and development of the territory of this partnership and the established regime of land use.

In court of cassation instance, the representative of the partnership explained that the controversial land was formed from land recreational land (forest), but there was a special mode of use regarding this category of land - without the right to cut the trees.

Also decided by the decision, the court placed on the administration the obligation to provide the plaintiffs of land plots with a certain area without specifying the right on which they must be provided.

(№ 33-9363/2011)

Disputes on the privatization of land plots in actual use

Disputes on the privatization of actually occupied land plots, the legitimacy of which citizens cannot confirm documented, are quite common.

They mainly affect the interests of those who used land plots long before the adoption of the Land Code of the RSFSR of 1991, which provided for the issuance of state acts certifying the right to land plots (Article 31).

Prior to this, in accordance with the Land Code of the RSFSR 1970 (Art. 87), it was found that on the lands of cities in the transition of ownership of the structure also passes the right to use by the land or part of the land; The land use of the person to which the ownership of the structure has passed is registered by communal government.

However, such land use rights is not always properly drawn up, and thus a large number of citizens remained with unformed rights to land plots,on which residential buildings belonging to them are owned.

The procedure for implementing citizens the right to privatize such land plots is fixed in paragraph 4 of Art. 3 of the Law on the introduction of the RF RF, in accordance with which citizens of the Russian Federation, havingactual use of land withlocated on them residential houses accomplished by them as a result of transactions that were committed before the entry into force of the USSR law on March 6, 1990 No. 1305-1 "On property in the USSR", but which were not properly decorated and registered, have the right to purchase the right of ownership to the specified Land plots in accordance with the rules established by Article 36 of the RF RF.

Analysis of paragraph 4 of Art. The 3 of the Law on the introduction of the RF RF makes it necessary to conclude that its action applies to cases:

1) when the requirement is stated in relation to only a nursery (purchase) land plot;

2) the person who is the owner located on this land plot of a residential building;

3) In the actual use of this face, the land plot passed until July 1, 1990.

The boundaries and dimensions of the land at the same time are determined taking into accountactually The land plot used in accordance with the requirements of land and urban planning legislation (clause 7 of Article 36 of the RF RF).

One of the evidence of the presence in such cases of the actual use of the land plot may betechnical Passport of the Residential House in which there is information aboutsize Land plot I.marked borders Land plot. Therefore, when considering such cases, the courts should be referred to from the technical inventory bureau of inventory, containing information on the addition of the landmark (poured) land plot.

The proofs of the right to use land plots may also be: a construction project, construction permit, land-cord and disposal books, planned-cartographic materials available in district land committees, architecture authorities, near the land users themselves.

At the same time, there is a lot of cases when land plots with residential houses located on them moved into the actual use of citizens as a result of transactions or in the order of inheritanceafter entry into force of the USSR law "On property in the USSR", that isafter 01. july 1990

However, this does not mean that land plots cannot be privatized for free. In such situations, the courts must proceed from the provisions of Articles 37 RSFSR 1991, 35 RF RF, 552 of the Civil Code of the Russian Federation, in accordance with which to citizens inforce of law In the transition of ownership of the structure, the right of permanent (indefinite) use of the land plot (in detail about the application of Art. 552 of the Civil Code of the Russian Federation and Article 35 of the RF RF is set out below).

Since land plots in permanent (permanent) use are not provided with the introduction of the new ZK of the Russian Federation to citizens (citizens only are provided in certain cases - Art. 28 ZK RF), the protection of land rights of these citizens can be carried out on the basis of paragraph 9.1 of Art. 3 of the Law on the introduction of the RF RC providing for that if the land plot is provided before the introduction of the RF RC for conducting personal subsidiary economy or individual housing construction on the right of permanent (perpetual) use, a citizen who has such a land plot on such a right, It is entitled to register ownership of such a land plot in a simplified manner.

Privatization of land limited in circulation

The processability of land plots is the ability to identify the legal fate of the land plot by its owner within the limits established by law, that is, to dispose of them.

All land plots for which there is a limitation of turnover, the RF RF is divided into two types. The first type includes land seized from turnover. They cannot be privatized and cannot be objects of civil transactions (clause 4 of Art. 27 RF RF).

To the second form, land related to the turnover. These land can also not be transferred to private ownership, but exceptions are possible from this rule, which can be established by federal law (clause 5 of Article 27 of the RF).

At the same time, the judicial board was canceled by the decision of the court of first instance in connection with the violation of the provisions of Art. 27 ZK RF.

Thus, the Sosnovsky District Court satisfied the lawsuits of R. On the obligation of the district administration to give it to the property for the fee for conducting a personal subsidiary farm land plot of 1,500 square meters. m in pos. West.

The court rejected the objection of the administration that the controversial land plot is in the zone of sanitary protection of water bodies, motivating this by the fact that the right to use controversial land from the plaintiffs is legitimate, the land plot from the turnover is not removed. There are no restrictions on the transfer of land in private property.

The judicial board of the Chelyabinsk Regional Court recognized the incorrect conclusion of the court of first instance, the decision canceled, in the claim R. refused, guided by the following.

In accordance with sub. 14 p. 5 tbsp. The 2700 RF, in state or municipal ownership of land in the first and second belts of sanitary protection zones of water bodies used for drinking and household water supply, are limited in circulation.

Land plots related to the lands limited in the turn are not provided in private property, except in cases established by the Federal Law (clause 2 of Article 27 of the RF RF).

According to the sense of the legal norms, the privatization of land limited in turnover is allowed only if there is a special permissive law of the federal level. However, this law is not available for this category of land.

In addition, the disputed land plot by a resolution of the head of the Kremenkulsky rural settlement dated May 31, 1993 was provided by the plaintiffin temporary use under the garden.

(№ 33-5587/2011)

Privatization of land sites outside the red lines

In accordance with paragraph 4 of Art. 28 ZK RF is one of the grounds for refusing to provide land in the ownership of citizens is established by federal law. banto privatize land plots.

According to paragraph 8 of Art. 28 FZ dated December 21, 2001 No. 178-FZ "On the privatization of state and municipal property" (hereinafter - the law on privatization) alienation in accordance with this Federal Law, land plots are not subject to land: general use (area, streets, arrows , roads, embankments, parks, forestarks, squares, gardens, boulevards, water bodies, beaches and other objects); Lands not subject to alienation in accordance with the legislation of the Russian Federation.

Clause 12 of Art. The 85 Code of the Russian Federation also established a ban on the privatization of land plots of common areas engaged in areas, streets, roads, roads, embankments, squares, boulevards, water bodies, beaches and other objects.

In Article 1 of the Town Planning Code of the Russian Federation, the concept of red lines are disclosed, which are lines denoting existing ones, planned (variable, newly formed) borders of common areas, the boundaries of land plots on which engineering and power supply networks, power lines, communication lines (in including linear cable structures), pipelines, car roads, Railway lines and other similar facilities (linear objects), as well as the concepts of public areas - is the territories that unlimited an unlimited range of persons (including square, streets, arrows, embankments, squares, boulevards).

According to paragraph 3.8 of the instructions on the procedure for the design and establishment of red lines in cities and other settlements of the Russian Federation (RDS 30-201-98), adopted and commissioned by the Resolution of the State Committee for Housing and Construction Policy from 04/06/1998 No. 18-30 , red and other lines of town planning regulation are subject to mandatory reflection and accounting, including in the directories, development projects, in highway planning projects, streets, squares; in land survey projects; In land and town planning inventories.

Therefore, considering the disputes on the acquisition of land plots by the owners of relevant real estate objects, the courts need:

Assess the arguments of state authorities and local self-government on the impossibility of selling (gratuitous transmission) of the disputed land plot;

Offer the authorities to provide evidence to substantiate their objections (extracts from documents reflected in red lines);

To find out whether the controversial land plot (either part of it) is related to general lands;

Whether public objects are located on the disputed land plot;

When the master plan for the development of the city, the village, the other settlement is approved: to (or after) the appeal of the property of the property with a statement about the acquisition of the land plot;

Were changed and when red lines (before or after the start of construction, the acquisition of real estate or registration of property rights, etc.).

Bearing in mind that the exceptional nature of the rightsand the privatization of the land site means only that no one except the owner of the building has the right to privatize the land plot, but is not an unconditional obligation of the administration to convey the land plot to the ownership of this citizen.

However, the courts do not always establish these circumstances and evaluate the evidence for each specific case in their aggregate.

Thus, by the decision of the Kopean City Court for Sh. The exclusive right to repurchase a land plot, located under the non-residential building belonging to it - the property complex (pavilion).

At the same time, the court did not take into account the arguments of the Copean City District (hereinafter referred to as the Administration of the CCO) that the controversial land is outside the red lines in the zone engineering and transport infrastructure.

By canceling the decision, the judicial board indicated the following.

As can be seen from the materials of the case, the plaintiff in 1996 acquired a pavilion with an area of \u200b\u200b27 square meters. In 2006, in court, the right of ownership was recognized as an unimpressed attrogent, the total pavilion area is considered to be 67.2 square meters. M, the right of ownership was registered on April 18, 2007. In 2009, an agreement for lease of a land plot of 116 square member between the plaintiff and the management of property of the property of the KGO administration. m.

On February 24, 2011, Sh. He applied to the Administration of the KGO with a statement for the redemption of the specified land plot for the operation of the Pavilion Building in the existing borders of the land lease agreement.

However, according to the sawing from Geographicing of Kopeisk, indicating the red lines of the streets of Mekhovov and the borders of the disputed land plot made in accordance with the master plan for the development of Kopeysk, approved in May 2007, the controversial land plot fully advocates for the Red line and is located at the existing borders of common areas in the engineering and transport infrastructure area .

The master plan for the development of the city was approved before the appeal of Sh. With a statement about the redemption of the land.

Since paragraph 12 of Art. The 85 RF RF is established a ban on the privatization of land plots, the refusal of the administration in the provision of land plot to Private property Sh. Is legitimate.

(№33-7898/2011)

In another case, the Leninsky District Court of the city of Chelyabinsk, appreciating the evidence in the case, rejected the arguments of the administration that the land plot is not subject to the lands of general use and privatization.

The court found that the controversial land plot was initially provided by L. in the indefinite use for the construction of the house in 1953, under the contract of exchanges of November 3, 1993, the house went to the property of the plaintiffs K. and K., together with the house they acquired the right of indefinite use by the land plot at home. Satisfying the claimed K. and K. The lawsuit on the provision of land in equity property, the court of first instance indicated that evidence that the house was on the lands of general use and there are objects of engineering and transport infrastructure, not presented.

(№ 33-10661/2011)

This legal position is also reflected in the definition of the Supreme Court of the Russian Federation of October 27, 2009 No. 11-B09-19.

The emergence of ownership of land for land due to acquisition

In accordance with Art. 234 Civil Code of the Russian Federation The person is a citizen or a legal entity - not the owner of the property, but in good faith, openly and continuously owning as its own real estate for fifteen years or other property for five years, acquires ownership of this property (acquiring prescription) .

Property possession as its own means possession not under the contract. For this reason, Art. 234 of the Civil Code of the Russian Federation is not subject to use in cases where property ownership is carried out on the basis of the contract.

As follows from the explanations contained in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation of April 29, 2010 No. 10/22 "On some issues arising in judicial practice in resolving disputes related to the protection of ownership and other real rights" (paragraphs 15-21), the use of acquisitive limitation for land plots has its own characteristics that are that acquisitive prescription may be applicable to those land plots that are inprivate property And with which the face owns under compliance with paragraph 1 of Art. 234 of the Civil Code of the Russian Federation conditions, as well as on the behavior land plots, but only on those of them, from the right of ownership of which, the owner refused.

The defendant on the claim for recognition of ownership due to acquiring prescription is the former owner (paragraph 19 of the Resolution).

In the case when the previous owner of real estate was not and should not have been known for the long-standing owner, he was entitled to apply to the court with a statement about establishing a fact of good, open and continuous property ownership as its own during the term of acquiring limitation. As a stakeholder, the State Registrar (paragraph 19 of the Resolution of the Plenum) is involved in the case.

As for all other land plots, they are not in legal property, as they are either state or municipal property.

Therefore, when resolving disputes against land plots in state or municipal property, the courts should be borne in mind that they are acquired only in the manner prescribed by land legislation (paragraph 16 of the Resolution of the Plenum).

So, the Etkulsky and Krasnoarmeysky district courts refused to claim D. and Sh.A.A. On recognition of ownership of land plots due to acquiring prescription, indicating that the controversial land plots are not oblivious, they are in municipal property, in connection with which they cannot be acquired on the basis provided for by Art. 234 of the Civil Code of the Russian Federation

(Cases number 33-10585 / 2011, 33-2573 / 2010)

Acquisition of the right of permanent (indefinite) use of the land plot in the transaction of property ownership.

The right of permanent (perpetual) use of the real estate is the right of permanent (perpetual) use of the land plot under the facility by the law - paragraph 1 of Art. 35 ZK RF and Art. 552 of the Civil Code.

So, in accordance with paragraph 3 of Art. 552 of the Civil Code of the Russian Federation, paragraph 1 of Art. In the transition of the right to the building, structure, the construction of land ownership of the building, the structure, the construction of the land plot, to another person, it acquires the right to use the appropriate part of the land plot engaged in the building, structure, structure and necessary for their use, under the same conditions and In the same volume as the former owner.

The above regulations are not always taken into account by the courts, especially when considering disputes related torecognition of ownership of unauthorized building Since the courts believe that land rights can be confirmed only by guidelines or trusted documents.

For example, the Leninsky District Court of the city of Chelyabinsk refused the claim I. to the Administration of Chelyabinsk on the recognition of ownership of the unauthorized construction of a total area of \u200b\u200b614 square meters. m, including redefined - 336.5 square meters. M, motivating the fact that the land plot, where the unauthorized reconstruction of real estate was carried out, was provided in 1992 on the right of permanent (perpetual) use of the supply base, the successor of which is LLC Alliance. The plaintiff was not provided land plot for reconstruction.

The court of cassation authorities took place on the case of the judicial act abolished, indicating that I. Based on the contract of sale of February 13, 2003, the owner of non-residential premises No. 1 with a total area of \u200b\u200b190.3 square meters. In this way, to I. Together with the transition of ownership of non-residential premises, the right of permanent (perpetual) use by a land plot engaged in a registered property and necessary for its use. Consequently, the conclusion of the court that the disputed building was erected on a land plot that does not belong to the developer does not comply with the actual circumstances of the case and the requirements of the law.

(№ 33-1999/2011)

When considering the case under the claim of Y. to the administrations of Chelyabinsk and Kurchatovsky district of Chelyabinsk on recognition of ownership of the unauthorized construction for the dead A.Sh. (brother of the plaintiff), the court also came to the conclusion about the absence of a person who fulfilled the unauthorized construction, the real law to the land plot.

However, the court did not take into account the following. IN the development period of the controversial house, and this is 1946, the land code of the RSFSR, introduced on 10/30/1922, the ownership of the father of the deceased A.Sh. - A. The residential building was confirmed by the certificate of the district executive committee of 1947, which in the same year was registered in BTI.

The Regulations on the land regulations in the cities approved by the VTCI and SNK of the RSFSR dated April 13, 1925, it was envisaged that during the transition in a legitimate order from one individuals to other ownership rights to the structures of private ownership, all rights and obligations under land serving these buildings, Go to new owners.

03/01/1949 The United RSFSR Resolution No. 1452 was published "On the procedure for applying the PVS PVS of the RSFSR of February 1, 1949", according to which the transfer of land to the developer on the basis of the decision of the Board of the Council of Workers' Deputies is issued to the contract for the provision of land for construction to the indefinite Individual residential building on the right of personal property.

Based on the provisions of the Code of the Russian Federation of 1922, as well as the mentioned Resolution No. 1452, the owners of residential buildings could own the land plot on the right of use for a period of 49 years. Subsequently, this right was transformed into the right of perpetual use of the land plot in accordance with the RSFSR ZK, introduced into operation from December 1, 1970.

In the case file, the general plans of the land plot with the house located on it, of which the boundaries and the size of the land plot were seen.

Since the house flew out the father A.Sh. - A., who had the right of permanent (perpetual) use of the land plot, the conclusion of the court on the construction of unauthorized buildings in the absence of real law to the land plot, The judicial board recognized not based on the law and not relevant actual circumstances of the case.

(№ 33-6992/2011)

II. . Acquisition of rights to land plots on which buildings, buildings, structures are located

In accordance with paragraph 1 of Art. 36 RF RF citizens and legal entities who are owned by gratuitous use, economic management or operational management of the building, structure, structures located on land plots in state or municipal property acquire the rights to these land plots.

Unless otherwise established by federal laws, the exclusive right to privatize land plots or the acquisition of land lease rights have citizens and legal entities - the owners of buildings, buildings and structures. The indicated right is carried out by citizens and legal entities in the manner and under the conditions established by this Code, federal laws.

In the sense of the given article, the opportunity to acquire the rights to land plots the law provides not to any owner of the real estate, but only to persons who belong torights to buildings, buildings, structures.

However, nor the Civil Code of the Russian Federation, nor the RF RF determines any criteria for which the object can be identified as a building, structure, structures.

The content of the concepts of buildings, structures, structures was disclosed in the collections of "Official terms and definitions in construction, architecture and a housing and communal complex" published by the State Construction, Architecture and Housing Complex.

From the definitions given in the collection, it can be seen that each such object must have a certain functional purpose and be suitable for use for this purpose.

Thus, deciding on the transfer of land in private ownership in accordance with Art. The 36 RF RC need to establish at least the fact of finding an object of real estate in the land plot and in the form of a building, structure, structures.

According to paragraph 1 of Art. 130 Civil Code of the Russian Federation to real estate (real estate, real estate) include land plots, sections of the subsoil and everything that is firmly related to the Earth, that is, the objects that are impossible to move without disproportionate damage to their appointment, including buildings, structures, objects of unfinished construction .

When considering the case below, the court did not find outis real estate The existing object, the right to privatize the land under which is disputed in court.

So, S., challenging the decision of the Head of the Chebarkulsky City District (hereinafter referred to as the head of the state of the Land, as well as a contract for the sale of a land plot of 18,095 square member of the land plot of a land plot of 18,099 square member. M, referred to the fact that grounds for the provision of P. specified land in accordance with Art. The 36 Code of the Russian Federation is not available, since the construction located on the land plot (asphalt concrete installation (factory), first, P. does not belong, and secondly, it is driven property. According to the plaintiff, the provision of a disputed land plot should be regulated by . 34 of the RF RC, providing for the obligation of the local government to prepare and advance publishing information about land lands provided to citizens for the purposes of not related to construction.

The court of first instance refused to satisfy the claims, considering that the contested decree of the rights and legitimate interests of S. does not violate. The judicial board agreed with this decision.

The court of supervisory instance The decision was the first and definition of cassation instances canceled, the case sent to a new consideration, guided by the following.

In the case file, there is a contract for the sale of an asphalt concrete installation and an arched warehouse, from which it follows that the specified property was sold to the defendant as an object of movable property; The conclusion of an expert on the assignment of the plant to movable property, as well as the decision of the Arbitration Court to refuse P. in the extermination of the specified property in connection with its alienation. For its part, to substantiate his objections to the claim of S. referred to the Certificate of BTI of 1995, confirming his property ownership of property as an object of real estate, and another expert's conclusion that this property is real estate.

The supervisory authority indicated that these circumstances are important for the correct resolution of the dispute, since from establishing what objects (movable or real estate) are located on the disputed land plot, it depends on the determination of the legal nature of the controversial relationships and the application of the provisions of Art. 36 RF RC, regulating the procedure for providing land plots on which buildings, buildings, structures, or art. 34 RF RC, which determines the procedure for providing land plots for the purposes of not related to construction.

The Presidium noted that in the meaning of Art. 34 RF RF participial participation in the acquisition of land for the purposes of not related to construction, any potential buyer, including the plaintiff S.

(No. 44-Mr.-64/2010)

Privatization of the land plot on which the destroyed object is located

The object, the right to the privatization of the land under which the CC of the Russian Federation provides its owner, should have all the structural elements and visually perceived as a poppy.

This fact is subject to establishing in the course of inspection of the corresponding object of real estate with attracting cadastral (technical) engineers if necessary.

In connection with the case stated in the case file, documents should be submitted, documents allowing to assess the technical condition of the real estate object, the degree of its wear, primarily the cadastral passport for the property.

At the same time, the denial of any right to the land plot engaged in the veterinary or destroyed real estate object unreasonably infringes the interests of the owner of such an object, significantly limits his rights, since the owner of a dilapidated (destroyed) object of real estate, having no documents confirming his title to the land plot will not be able to restore or reconstruct this object.

Legal mechanism giving the possibility of owners of such objects to realize their property interests on real estate restoration isart. 39 ZK RF, In accordance with which in the destruction of the building, structure, facilities from fire, natural disasters, dilapidation, the rights to the land plot provided for their maintenance is preserved by persons who have the land plot on the right of permanent (perpetual) use or life-inherited ownership, provided The start of restoration in the prescribed manner of the building, structure, structures for three years. The executive body of state authorities or local government has the right to extend this period.

This approach was reflected in the Resolution of the Presidium of the Chelyabinsk Regional Court of January 26, 2011.№ 44-G-7/2011.

Thus, the Chebarkulsky City Court made a decision left unchanged by the court of cassation, which was invalidated by the Administration of the Chebarkulsky City District on the Auction for the sale of a land plot for conducting a personal subsidiary economy and the provision of K. land from land of settlements, and Also prisonered between K. and the administration of the city of the contract of sale of the land plot, and recognized for the plaintiff D. ownership of the disputed land on the basis of Art. 36, 39 RF RF.

Canceling decision and cassation definition, presidium indicated the following.

The plaintiff D. on the basis of the contract of sale of February 12, 1976 acquired 1/2 share of a residential building, he does not live in the house since 1985 in connection with the provision of well-established housing in the form of an apartment. The residential building has not been withdrawn because of the dilapidation.

At the time of deciding on the statement by K. On the sale of a land plot of the object of real estate at the disputed land plot did not exist in connection with its complete destruction over the past 10 years.

Meanwhile, to resolve the question of preserving or termination of the right to land during the destruction of the house, the establishment and study of the fact and the moment of destruction (death) of the residential building of the plaintiff, the use of the land plot in order to restore the destroyed residential house (and not under the garden), the moment of the beginning restoration of the destroyed house, submitting an application for the extension of the term of preserving the right to land plot, but these actual circumstances were not clear with the court, then they are essential for the correct dispute resolution, since the death or destruction of property is one of the grounds for the termination of ownership of the thing in including immovable, by virtue of paragraph 1 of Art. 235 Civil Code.

Privatization of land plots on which objects of unfinished construction are located

When applying, paragraph 1 of Art. 36 RF RF may occur when there is a land plotobject of unfinished construction .

The object of unfinished construction, based on the norms of paragraph 10 of Art. The 1 City Planning Code of the Russian Federation, does not have the qualities inherent in buildings, buildings, structures, namely: it cannot be used by its direct appointment, since it is at the construction stage and is not commissioned.

The provision of land plots for the construction purposes, as well as the legal regime of land plots during the construction period is regulated in accordance with the Land Code of the Russian Federation, which provides for a special order (Article. 30-32 RF RF).

Therefore, when establishing an object that is not completed on the requested land plot, Art. 36 RF RC, providing the owners of buildings, buildings and structures, the exclusive right to privatize land plots on which these objects are located cannot be applied.

At the same time, the presence of a registered ownership of the object not completed by the construction is not the basis for the occurrence of the right to acquire a land plot based on the grounds provided for by Art. 36 ZK RF.

The Copean City Court was announced the claim of M. On the obligation of the administration of the Copean City District to provide a land plot under the facility under the object of unfinished construction of 10%, located on the leased land plot of 990 square meters. m.

The court refused to satisfy the claims, indicating that the plaintiff did not provide evidence that would confirm the right to redeem the land plot in accordance with Art. 36 ZK RF. Cassation instance supported the position of the court. (№ 33-497 / 2011)

In the one given case, the plaintiff did not lose the possibility of protecting their rights, since after the construction of the building and its commissioning, it may acquire a land plot to ownership in accordance with clause 1 of Art. 36 ZK RF.

In addition, according to paragraph 3 of Art. Art. 28 privatization lawowners of real estate objects (what about Art. 130 Civil Code of the Russian Federation includes not only buildings and structures, but also objects of unfinished construction),not by unauthorized buildings and located on land relating to state or municipal property are obliged or to rent or acquire these land plots from the state or municipality, unless otherwise provided by federal law. The refusal to buy a land plot or lease is not allowed, except in cases provided for by law.

On the issue of providing land in Art. 28 of the Privatization of the Interested Party must comply with the established procedure and only in case of refusal - to apply to the court.

Privatization of land plots on which buildings belonging to several Persons

According to p.3 tbsp. 36 ZK RF in the caseif the building (placed in it), located on the indivisible land plotbelongs to several persons on ownership These individuals have the right to purchase this land plot into total share ownership or lease with the multiplicity of persons on the side of the tenant, unless otherwise provided for by this Code, federal laws, taking into account the share of ownership of the building.

Paragraph 5 of Art. The 36 Code of the Russian Federation has established that, to acquire rights to land, citizens or legal entities specified in this article are jointly addressed to the executive body of state authorities or the local government authority provided for by Art. 29 of this Code, with a statement about the acquisition of rights to land with the application of its cadastral passport.

Analysis of the above provisions of the law allows us to draw the following conclusion: if the controversial land plot of weather, and the building located on it (premises in it) belongs to several owners, then a prerequisite for acquiring each of themproperty rights On the land plot is theirjoint appeal With the appropriate statement.

In the review of the judicial practice of the Chelyabinsk Regional Court for the 4th quarter of 2010, approved by the Resolution of the Presidium of the Chelyabinsk Regional Court of 30.03.2011 (in paragraph 1 of the section "The practice of consideration of cases arising from public relations") is explained that another order of acquisition of law Property for land in state or municipal property, existing legislation is not provided, which eliminates the use of other ways to design rights to such land plots.

Also, the courts should take into account the legal position set forth in the definition of the Constitutional Court of the Russian Federation of 05.03.2004 No. 82.

In particular, in paragraph 3 of this definition, it is clarified that paragraph 5. Art. 36 RF RC, establishing an unequal procedure for acquiring rights to indivisible land plots for co-owners located on them buildings, buildings, structures and owners, does not violate the constitutional principle of equality, since this procedure is due to various actual and legal conditions in which individual owners and property co-owners are , and the right of the common property (share or joint) two or more persons differs in the legal regime from the right ownership owned by one person.

In accordance with Art. 130, 261 of the Civil Code of the Russian Federation, Art. 11.1 ZK RF, the object of ownership may be a land plot, that is, part of the earth's surface, the boundaries of which are determined in accordance with federal laws.

Therefore, when solving controversial issues related to the design of land plots in accordance with clause 3 of Art. 36 RF RF, should be proceeding from the fact that the object of privatization, including the object of the overall share ownership, is the entire land plot in the approved borders, but not part of the land plot and not the proportion of the right of common ownership.

R. - Accompanying of a residential building (1/2 share in the right) appealed to Traktorozavodsky District Court of Chelyabinsk with a claim to the district administration on the recognition of ownership of a part of the railway land plot with a total area of \u200b\u200b505 square meters. M - 276 square meters. m.

The court refused to satisfy the claimed claim, indicating that the disputed land plot on which the house is located, as the object of land and legal relations is not formed, it is not put on cadastral registration; The co-owner of the house - G. with a statement about the provision of land in the property in the administration did not appeal.

(№ 33-5152/2010)

At the same time, in 2011 there was a cancellation of the decision in connection with the violation of the provisions of clauses of 3,5 st. 36 ZK RF.

Thus, the decision of the Central District Court of Chelyabinsk was satisfied with the claim I. and R. to the district administration on the recognition of ownership of the land plot of 1,700 square meters. m in pos. Shershny in 1/3 share for each.

Meanwhile, the owner of the house in 1/2 share was V., and in 1/3 share of 1/2 share - the brother of the places - E.

Since the residential building located on the disputed land plot belongs to several owners, then the obligatory condition for acquiring each of them ownership of land is their joint handling with the relevant statement.

Due to the fact that in this case there is no joint treatment with the requirement of registration of ownership of the land plot, the court did not have grounds to meet the declared requirement.

In addition, the relations of the places and their brother E. are based on the total ownership and use of the disputed land plot and the house on it, however, E. was not attracted to participation in the case as a compound (he was a third party), did not participate in the case and owner 1/2 share of the house - V.

(№ 33-1931/2011)

Implementation of buildings, buildings, buildings and structures of land rental rights.

According to Part 2 of paragraph 3 of Art. 36 ZK RF in the event that the building located on a sophisticated land plot in state or municipal property, premises belong to one individuals on the right of ownership, to other persons - on the right of economic management or to all persons - on the right of economic management, these persons have The right to purchase this land plot for rent with a plurality of persons on the side of the tenant, unless otherwise provided by the Land Code of the Russian Federation, federal laws, with the condition of the consent of the parties to the lease agreement for the entry into the specified agreement of other copyright holders of the premises in this building.

These provisions of the law are subject to applied by analogy to legal relations when the premises belong to the right of ownership to several persons.

Therefore, when considering disputes on the design of land plots for rent in the order of Art. The 36 RF RC should be borne in mind that the lease agreement with the multiplicity of persons on the side of the tenant can be concluded, subject to participation in it as several premises owners and one of them (that is, with one of the owners of the building).

The conclusion of a lease agreement with one person on the side of the tenant is made taking into account the potential possibility of other persons entry into it not by the side of the tenant in accordance with the provisions of paragraph 3 of Art. 36 ZK RF.

Conditional to conclude a land lease agreement for individual premises owners is not allowed (paragraph 1 of Art. 421 of the Civil Code of the Russian Federation).

A similar position is set forth in paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 24, 2005 No. 11 "On some issues related to the application of land legislation".

If the lease agreement has already been concluded, then the buyer of the building, buildings, facilities have the right to demand registration of the relevant rights to the land plot engaged in real estate and necessary for its use, under the same conditions and in the same amount as the previous owner since the state registration of the transition ownership of the building, structure, structure by virtue of paragraph 1 of Art. 35 ZK RF and paragraph 3 of Art. 552 of the Civil Code of the Russian Federation (such a legal position is set out in paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 24, 2005 No. 11).

However, the courts do not always take the right decisions, believing, for example, thatthe co-owned building (premises in it) can realize the right to rent a land plot only by jointly appealing to the local government body.

So, the Kopean city court refused to suit Y. On the obligation of the Kopean administration urban district (hereinafter referred to as the KGO Administration) to conclude a land lease agreement with him, and the defendant B. is to conclude a land lease agreement with the KGO administration.

In justifying his requirements, Yu. Indicated that earlier the building of the auto service belonged V., who he bought 1/2 share of the building, the owner of the second share of non-residential premises was B. Previously between V. and the administration was concluded a land lease agreement, but in conclusion With it, lease agreements under the same conditions as with the previous owner, he was denied referring to the need to jointly with B. appeals to the local government body, but the latter does not want to enter into a lease agreement.

The judicial board decision of the court regarding the recognition of the legal refusal to the administration of the urban district in conclusion from Yu. The lease agreement canceled, indicating that, in the sense of the law, the lease agreement with the multiplicity of persons on the side of the tenant can be concluded, subject to participation in it as several premises owners, So one of them.

III . Providing land plots for personal subsidiary management

The legal regulation of the management of personal subsidiary management by citizens is carried out in accordance with the Federal Law of July 7, 2003 No. 112-FZ "On the personal subsidiary farm" (hereinafter - the law on personal subsidiary economy), other regulatory legal acts of the Russian Federation, as well as those accepted in accordance With them with laws and other regulatory legal acts of constituent entities of the Russian Federation and regulatory legal acts by local government.

The law on personal subsidiary farm, the procedure for providing land plots for conducting personal subsidiary farms is not regulated.

This order is established in Art. 34 RF RC, which provides for the general procedure for providing citizens of land plots in state or municipal property, for the purposes of not related to construction, including for the purpose of conducting personal subsidiary farm.

According to paragraph 1 of Art. 34 of the RF Public Authorities and local governments in order to ensure management and disposal of land plots, which are in their property and (or) on jurisdiction, on the principles of efficiency, justice, publicity, openness and transparency of procedures for providing such land plots are required:

accept the act establishes the procedure and criteria for providing such land plots, including the procedure for considering applications and decision-making. All applications that have been submitted to those defined by the specified term procedures are subject to consideration. It is not allowed to establish priorities and special conditions for certain categories of citizens, unless otherwise established;

authorized on management and disposal of land and other real estate a special body;

to ensure the preparation of information on land plots, which are provided to citizens and legal entities at a certain right and envisaged (for fee or free of charge), and the advance publication of such information.

According to the meaning of paragraphs 2, 3, 4 of Art. 34 of the RF RF, a person interested in providing land plot (including personal subsidiary management) should apply to the executive body of public authority or local government agency with a statement on the provision of land. This statement should indicate the purpose of using the land plot, its estimated size and location as requested by the right. Based on this application, the local government authority issues the applicant the location scheme on the cadastral plan or the cadastral map of the territory.

It follows from this that the right to choose a land plot belongs not to the applicant, but the authority of local self-government, and therefore the applicant is not entitled to the specific land plot, and regardless of whether the cadastral works are fulfilled in relation to this section and is its cadastral record.

Thus, the possibility of providing a citizen of the land plot (including for conducting a personal subsidiary farm)in His selecting The current legislation is not provided for, which is not always taken into account by the courts.

So, by the decision of the Zlatoust City Court, left unchanged by the cassation definition, was satisfied with the lawsuit N.V., N.N.A., N.A.V. The administration of the Zlatoust urban district (hereinafter referred to as the TSG administration) on recognition of illegal refusal to the discharge to each of them in 2 land plots with an approximate area of \u200b\u200b1200 square meters. M each at the address: Zlatoust, ul. ..., northeastern house number ... for personal subsidiary farming, the obligation to provide these land plots after work on their formation.

Meanwhile, when considering the case, the administration of the Zlatoust urban district pointed to the impossibility of the leading of land prior to the development of a project planning and interviewing these territories, since the territory on which land plots must be reserved is not mastered, there are no roads, passages, a sewage system.

In violation of the requirements of Art. 11.1, paragraph 2 of Art. 11.3 The RF RF to the application for land education was not attached cadastral passports formed land plots, land plots were established approximately.

Bulgo administration of the ZGO to provide the plaintiffs of land plots, the court did not point out the type of law on which they should be allocated.

And besides, the court did not apply Art. 33 of the RF RC, obliging the administration to provide the plaintiffs of 2 land plots in the amount of more than it is provided for by the decision of the Zlatoust City Assembly of Deputies.

The Presidium of the Chelyabinsk Regional Court took place in the case acts canceled, the case sent to a new consideration.

(№ 44-G-70/2011)

IV . Differentiation of disputes on affairs:

- recognition of ownership of land plots;

- providing land plots to property

According to Part 1 of Art. 3 Code of Civil Procedure of the Russian Federation The interested person is entitled in the manner prescribed by the legislation on civil proceedings, to go to court for the protection of violated or disputed rights, freedoms or legitimate interests.

Protection of civil rights is carried out in the methods established by Art. 12 Civil Code of the Russian Federation, in particular by recognizing the right, as well as in other ways to law.

When resolving disputes about Earth, the following concepts should be distinguished:

Recognition of ownership of land;

Providing land in ownership;

Recognition of law As a way of protection, it is possible when the right itself already exists, but it is challenged or not recognized.

Therefore, a person who requires the use of such a protection method should submit evidence of the emergence of a controversial land in him for any legitimate grounds.

Provision of land in ownership administratively and when considering such a dispute should be checkedorder and procedure providing land plots established by applicable law.

The decision to refuse to provide a land plot, regardless of the purpose of obtaining it, the applicant may be appealed to the court (chapter 25 of the Code of Civil Procedure of the Russian Federation, Article 61 of the RF RF).

Proving on disposal of refusal to provide land in ownership

In the subject of proof of refusal to provide land plots, the following facts include:

The appeal of a citizen to the authorized body with a statement on the provision of land;

Adoption by an authorized body of a decision on refusal to provide land or evasion from such an expiration of the statutory period.

The presence of one of the circumstances that are the basis for refusing to provide land plots, or evasion from such (for example, the lack of free land in the applicant as the applicant, the excess of the limit sizes established by the law, etc.).

Violation of the rights and freedoms of the applicant or the creation of obstacles to their implementation by refusing to provide land or evasion from such (for example, the right to have land ownership of land, to engage in the creation of the peasant (farmer) economy).

The distribution rule for the provisions in cases of disposal of actions and decisions that violate the rights and freedoms of citizens is set out in Art. 6 of the Law of the Russian Federation of April 27, 1993 (as amended by the Law of 09.02.2009) No. 4866-1 "On appealing to the court of action and decisions that violate the rights and freedoms of citizens", according to state bodies, local governments, officials, actions (solutions) of which are appealed by a citizen, the procedural duty is assigned to document the legitimacy of the following actions (decisions); A citizen is exempt about the duty to prove the illegality of the appealed (decisions), but is obliged to prove the fact of violation of its rights and freedoms.

Based on this, onapplying Lies the duty to prove:

An application for the provision of land plot;

Refusal in such provision and violation of his rights and freedoms;

on the body that has decided to refuse to provide land plot (evading such):

The presence of grounds for refusing to provide land or evasion from such.

At the same time, it should be borne in mind that within the meaning of articles 245 and 247 of the Code of Civil Procedure of the Russian Federation in their aggregate, in the order of chapter 25 of the Code of Civil Procedure of the Russian Federation, cases are considered on statements about challenging the decisions and actions (inaction) of state authorities, local governments, officials only in that case,when they do not have a dispute about any subjective right.

In this regard, the question arises: what to do in the event that from the statement on the recognition of illegal actions of the local government (official) is evident that there is a dispute about the right, the subordinate court?

As clarified in paragraph 9 of the decision of the Plenum of the Supreme Court of the Russian Federation of February 10, 2009 No. 2 "On the practice of consideration by the courts of cases of challenging decisions, actions (inaction) of government bodies, local governments, officials, state and municipal employees" It should be borne in mind thatproper definition of the type of legal proceedings (claims or on cases arising from public relations), in which the protection of the rights and freedoms of a citizen or organization disagreeable with the decision, the action (inaction) of the authority of the state, local government, an official, state or municipal employee depends onthe nature of legal relations, of which follows the requirement of a person who addressed judicial protection, andnot from chosen to them forms of appeal To court (for example, submission of an application in the manner prescribed by Chapter 25 Code of Civil Procedure of the Russian Federation or submitting a claim).

In this regard, the courts followthe stage of resolving the issue of adoption applications To establish the presence (absence) of the dispute on the right, when finding out this - to leave a statement without movement and explain to the applicant the need to issue a claim with compliance with the requirements of Articles 131 and 132 of the Code of Civil Procedure of the Russian Federation. If the case's jurisdiction is violated, the application is returned to the applicant (part 3 of Art. 247 Code of Civil Procedure of the Russian Federation).

Determination of the appearance of proceedings

The question of the right choice of the appearance of the proceedings is important, since the subject matter of the judgment, the size of the state duty, the timing of the consideration of the case depends, the distribution of responsibilities for evidence, the procedure for the execution of the court decision.

The choice of appearance of the proceedings should not be mixed with the election of a specific form of appeal to court.

According to the legal position described in the review of the legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2007 (section "Procedural issues", question 14), if, despite the incorrectly elected form of appeal to the court (for example, submission of the claim instead of the application) , All other requirements established by the Code of Civil Procedure of the Russian Federation are observed to appeal to the court, the judge must take this appeal to its production and consider the case on the merits in the manner prescribed by civil procedural legislation for the type of civil proceedings, which must be resolved by the corresponding material and legal dispute. .

When determining the appearance of the proceedings, it is recommended to be guided by the following:

If the claim is filed (the parties are recorded by the plaintiff, the defendant) without reference to the chapter 25 of the Code of Civil Procedure of the Russian Federation, but its court (chapter) sees, the case is subject to consideration according to the rules of chapter 25 Code of Civil Procedure of the Russian Federation.

If submitted statement of claim And reference to chapter 25 Code of Civil Procedure of the Russian Federation - the Court considers the case and is determined independently (there is an argument on the right).

If the application adopted by the court For consideration in the order of chapter 25 of the Code of Civil Procedure of the Russian Federation, and the availability of a dispute about the right, the subordinate court, it turns out when considering the case in the procedure for the proceedings arising from public relations, the court on the basis of Part 4 of Art. 1 Code of Civil Procedure of the Russian Federation applies a norm regulating similar relations in a special production (part 3 of Art. 263 Code of Civil Procedure of the Russian Federation), and makes a definitionon Leaving applications without consideration which explains to the applicant and other interested parties their right to resolve the dispute in the order of claim.

It should also be borne in mind that, according to the results of the consideration of the statement of a citizen, within the framework of public legal relations, the court decides on the refusal either to satisfy the application, not a predetermining issue in essence, while the judicial act on the recognition of the right (termination, transition, The limitation (encumbrance) on the land plot due to paragraph 6, paragraph 1 of Art. 17 of the Law on State Registration is the basis for state registration of law.

However, the courts do not always correctly determine the appearance of the proceedings.

So, C. appealed to the court with a complaint against the unlawful actions of the Federal Agency for State Property Management in the Chelyabinsk Region (hereinafter - the Agency), referring to the fact that the ATON LLC and LLC "ATON" concluded a joint activity agreement (simple partnership), in As a result of which the rights to the land plot should be proceeded to Him and the real estate objects located on it, so Aton LLC appealed to the agency with a statement on the division of the land plot of 181,849 square meters. M, in what Athon Ltd. was denied reference to the fact that the Mechanical Plan presented did not meet the current legislation. Such a refusal, according to C. violates his rights.

The definition of the court, left unchanged by the cassation definition, the statement of C. left without consideration. At the same time, the courts proceeded from the fact that the right of the right takes place in the legal relations of the parties.

The Presidium of the Chelyabinsk Regional Court court rulings were canceled on the following grounds.

Turning to court, C. In the order of chapter 25 of the Code of Civil Procedure of the Russian Federation challenged the Agency of the Agency, who refused Athon LLC in meeting the statement of the division of the land plot.

At the same time, as can be seen from the material, any claims relative to the very land plot of C. and ATON LLC did not declare, the draws of the rights to the land did not dispute.

In accordance with Part 1 of Art. 254 Code of Civil Code of the Russian Federation A citizen has the right to challenge the decision, the action (inaction) of the state authority, officerIf he believes that his rights and freedom are violated.

(44-M-67/2010)

Drawing up a resolution part of the decision

To exclude ambiguities and disputes in the execution of a court decision, the operative part of the decisionsatisfaction of the law recognition the land plot should contain the information that the state registrar is obliged to contribute to the USRP, namely:

Description of the object (location (address), name, appointment, area, cadastral number);

Specifying the copyright holder;

The species subject to state registration of law.

At the same time, the courtmust point to those legal consequences that entails recognition for the claimant of the right to land plot, for example,stop Earlier registered right, as clarified in paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2003 No. 23 "On the Judicial Decision".

When writing the operative part of the decision, you can use methodological recommendations on the procedure for state registration of real estate rights on the basis of judicial acts approved by the order of the Federal Registration Service of 07.06.2007 No. 112.

The information that the state registrar should make to the USRP, one can learn from the content of citizens already issued certificates of state registration of law.

An example of the operative part of the decision to recognize the right:

"To recognize the ownership of Fedorov Ivan Sergeevich to the land plot of an area of \u200b\u200b... square. m with cadastral number ... from land of settlements for conducting a personal subsidiary farming, located at the address: Chelyabinsk region, Chelyabinsk, ul. Partizanskaya, house 7 square meters. 2.

V. . The formation of land. Section and land separation

Federal Law of July 22, 2008 No. 141-FZ introduced a new head of the land code of the Russian Federation - 1.1 "Land plots".

According to paragraph 1 of Art. 11.2 RF RF Land plots are formed in a section, unification, redistribution of land plots or allocated land plots, as well as from land in state or municipal property.

The formation of land plots instate or municipal property provided in Art. 11.3 ZK RF.

In paragraph 2 of this article, the requirements for the composition of the documents thatcommit to apply To the application on the formation of land plots in state or municipal property , this is:

1) cadastral passports formed land plots or cadastral passport of the formed land plot;

2) Governance and / or (or) postal documents for land plots, of which land plots are formed in a section or association.

General requirements for the formed and modified land plots are enshrined in Art. 11.9 ZK RF:

Compliance with the size of land plots by the limit (maximum and minimal) dimensions;

Invalidness of crossing the boundaries of land borders of municipalities and (or) boundaries of settlements;

Invalidation of the formation of land plots, if their education leads to the impossibility of permitted use of real estate objects located on such land plots, inclusion, brightness, brokenness of boundaries, checziness, the impossibility of placing real estate objects, etc.

In addition, according to paragraph 4 of Art. 11.2 of the RF RF. The formation of land plots is allowed if there is in writing the consent of land users, landowners, tenants, mortgagellers of land plots, of which land plots are formed in the division, redistribution or separation.

When considering disputes on the formation of land plots, the provisions of paragraph 4 of Article should be considered. 41 of the city planning code of the Russian Federation, according to which, if on the initiative of the ruling holders of land plots, the land plot into several land plots is carried out, the unification of land plots into one land plot, a change in the overall boundary of land plots, the preparation of the territory planning documentation is not required, and the preparation of land management Documentation is carried out in the manner prescribed by land legislation. At the same time, the size of the formed land plots should not exceed the limit (minimum and (or) maximum) dimensions of land plots provided for by the urban planning regulations. The prerequisite for dividing the land plot into several land plots is the presence of entrances, approaches to each formed land plot. The combination of land in one land plot is allowed only under the condition that the formed land plot will be within the boundaries of one territorial zone.

Features of the formation of land plots under the division of land or selection of land plots are provided in Art. 11.4 and Art. 11.5 ZK RF.

So, according to paragraph 1 of Art. 11.4 ZK RFunder sections The land plot is formed by several land plots, and the land plot from which land plots are formed in the section,terminates existence Except for the cases specified in paragraph 4 of this article, and in cases provided for by other federal laws.

By virtue of paragraph 1 of Art. 11.5 ZK RFdistinction The land plot is carried out in the case of a share of a share or a fraction of a land plot. When separated by the land, one or more land plots are formed. At the same time, the land, from which was carried out,stored in the modified boundaries (changed land).

It should be paid to the provisions of paragraph 2 of Art. 11.5 ZK RF aboutthe consequences of the selected Land plot: The participant has the right to ownership of the formed land plot and the specified participant loses the right of equity ownership of a changed land plot, and other owners retain the right ownership of a changed land plot, taking into account the amount of their shares in the right of equity ownership.

When considering disputes related to the section (separation) of land plots, the circle of legally significant circumstances includes:

Kind of right to land;

Divisibility;

The cost of land;

The number of co-owners;

Attachment of the land plot;

And a number of other conditions.

Thus, allowing the requirement of the division of the land plot, it is necessary to proceed from the size of the share of co-owners in the right of common property (under the voluntary section, the parties have the right to not adhere to the size of the ownership of the land ownership).

The land plot is divisible if it can be formed from its parts not just independent land plots, but with the same mode of permitted use, while maintaining its target use, taking into account the minimum size of the land plot established for the sections of the appropriate target. In addition, red lines must be observed, the construction regulation lines and the requirements of the city planning regulation.

The criterion of the indivisibility of things is indicated in Art. 252 of the Civil Code of the Russian Federation: Solding in nature is not allowed by law or impossible without disproportionate damage to property in total ownership. As indicated in paragraph 35 of the Resolution of the Plenum of the Russian Armed Forces of the Russian Federation No. 6 and the Russian Federation No. 8 dated July 7, 1996, "On some issues related to the use of part of the First Civil Code of the Russian Federation", under such damage it should be understood as the impossibility of using property on intended purpose, a significant deterioration in its technical condition or a decrease in material or artistic value, inconvenience in use, etc.

If the land plot is built up, the section of such a land plot affects the fate of buildings on it,therefore, the requirement of the division of the land plot can only be announced after the termination of the right of the common ownership of the structure or simultaneously with it.

If the structure cannot be divided into kind, then the claims are not satisfied as a whole, that is, about the section of the house and the land plot. At the same time, such a refusal does not exclude the possibility of determining the procedure for using the land plot.

However, the courts do not always take into account the statutors of the current legislation.

Thus, the Sosnovsky district court, satisfying the lawsuit F. to Ya. And P. on the allocation of its share in the right of a common property to the land plot with a total area of \u200b\u200b1784 square meters. M by forming an independent land plot of 446 square meters. m taking into account the location of its apartments and auxiliary facilities on it, in violation of the requirements of Art. 11.5 of the RF RF did not solve the issues of termination of the right of the overall ownership of F., Ya. And P. on the land plot, as well as to determine the size of the shares of J. and P. in the right of common share ownership of a changed land plot.

(№ 33-8555/2010)

Soviet District Court of Chelyabinsk, satisfying the lawsuit and obliging the Kuizo and the administration of Chelyabinsk to form a land plot of 47.8 square meters. M by section of the land plot with the cadastral number ... To operate the building of the checkpoint, did not take into account that the controversial land plot was formed from the land plot previously allocated to the right of permanent (indefinite) use of YuzhuralTranstroy OJSC, which his consent to the redistribution of the land plot He did not give, which in turn also served as the basis for refusing to formulate the controversial land on cadastral records.

Since the statement of T. Cadastral passport of the land plot was presented, there was no consent of JSC as a land user of the disputed land plot, the claims of T. on the formation of a land plot could not be satisfied.

At the same time, the applicant is not deprived of the right to resolve the land dispute through the presentation of the Land Redistribution of the Land Department, within which the question of the area and the boundaries of the land plot must be resolved, after which the issue of making a cadastral passport and complete the procedure for the formation of land The plot under the property belonging to it and the necessary to use it.

(№33-7537/2011)

VI . Determining the procedure for using land

Unlike the section (separation) of the land plot, the definition of the procedure for using the land plot does not depend on its size, the number of co-owners and the type of rights to the land.

In determining the procedure for using the land plot, as in the section, each Party is transmitted a specific part of the land plot, however, the land plot is transmittedit remains unrequited and the right of common ownership does not stop.

Courts should be distinguished by the features of determining the procedure for using land plots:

1) on the right of ownership;

2) on the right of permanent (perpetual) use.

If the land plot belongs to several persons on the right of ownership, then on the basis of paragraph 2 of Art. 247 of the Civil Code of the Russian Federation Participant of share ownership is entitled to providing in its possession and use of parts of the general land plotit is proportioned by his share (in the land plot). itsingle criterion which may be based on a solution when determining the procedure for using a common land plot.

The procedure for using the land plot on the right of permanent (indefinite) use is provided for by paragraph 2 of Art. 35 ZK RF - it is establishedtaking into account the share of ownership of the structure or the established procedure for using the land plot.

To resolve the question of which particular part of the land plot (its sizes and borders) should be transferred to the use of the parties, the courts need to discuss the appointment of land sustained expertise, preferring the option to the greatest extent takes into account the equity ratio of the parties in the right of ownership or established The procedure for using the land plot, the possibility of traveling or passing by each of the co-owners to the houses occupied by the parts and the utility buildings and other requirements.

VI I. . Disputes associated with establishing location of land boundaries

Prior to the introduction of the RF RF, the decision to provide land plots was often taken without conducting work on intertime and cadastral accounting. Accordingly, a huge number of land plots have no accurate borders to this day, meanwhile the boundaries in accordance with paragraph 3 of Part 1 of Art. 7 FZ dated July 24, 2007 No. 221-FZ "On State Cadastre of Real Estate" (hereinafter - the law on the cadastre) individualize the land plot as an object of civil rights.

The cause of disputes on the borders is that many land plots are generally not put on cadastral records or put on cadastral records declaratively when their borders are not defined in accordance with the requirements of land legislation.

It is in the process of the implementation of cadastral works to refine the location of the land boundaries (for example, in connection with the upcoming alienation of the house, the land plot, the privatization of land plots, etc.) arise disputes to establish boundaries.

It should be borne in mind that the presence of signatures of the owners of adjacent areas under the borders in the process of preparing the integrated plans, the implementation of cadastral accounting does not exclude the dispute about the boundaries between neighbors.

Therefore, by itself, formulation of cadastral records of the landlord of the adjacent owner (land user, landowner, tenant) and the registration of the right to it still does not indicate the determination of the adjacent boundary in the final form.

When resolving disputes associated with establishing location of land boundaries, ships must be considered as the provisions of the para. 2 p. 6 tbsp. 36 ZK RF and the provisions of Art. 38 of the Cadastre Law, since it is precisely in them the basic material and legal facts that are included in the subject of evidence to correctly consider the case on the merits.

So, in accordance with the para. 2 p. 7 tbsp. 36 RF RF Location of the land plot and its area are determined taking into accountactual land use in accordance with the requirements of land legislation. The location of the boundaries of adjacent land plots is determined taking into account the red lines, the location of the boundaries of the adjacent land plots (if any), the natural boundaries of the land plot.

By virtue of Part 9 of Art. 38 of the Cadastre Lawwhen clarifying borders The land location is determined based on the information contained in the right-point document on the land plot, or in the absence of such a document of the information contained in the document determining the location of the boundaries of the land plot in its formation. In the event that the documents specified in this part are absent, the boundaries of the land plot are borders that exist on the ground fifteen or more years and fixed using natural objects or objects of artificial origin, allowing to determine the location of the land boundaries.

Taking into account the case presented in the framework of the preparation and proceedings, the case should be essentially:

Refine the right-pointing documents for disputed land plots (the types of such documents are listed in Part 1 of Art. 17 of the Law on State Registration);

Other documents, where the dimensions, configuration and location of the boundaries of the land in its formation were identified (extracts from the businesses, plans, drawings, cards, technical passports at home, inventory materials, etc.).

Documents on land plots of arcing parties from the State Cadastre of Real Estate: Aircraft Plans, Cadastral Extracts, Cadastral Plan of the Territory, as they contain information,deposited In the State Cadastre of Real Estate.

Find out locationexisting (actual) today the boundaries, up to the exit to the place for inspection, determine the duration of its existence (how many years), having in mind that the location of the borders can be determined by objects of natural (ditch, ravines, etc.) or artificial origin ( Fences, his remnants, pillars, stumps, pegs, various plantings, trees, buildings);

Further find out if the border changed between controversial land, whether such a change occurred in the procedure established by law either as a result of unauthorized actions of the parties, and therefore the change in the area of \u200b\u200brelated land plots occurred.

To confirm these facts, the testimony of the rights of the parties (for example, former householders) relative to the location of the modern boundary (its immutability, or on the contrary, changes) are important.

If in the course of the cadastral works, the inconsistency of the cadastral information on the location of previously established boundaries of the adjacent sections of their actual location was revealed, the presence of which is an obstacle to the formulation of the formed land plots on cadastral records or for cadastral accounting of changes in existing land plots, to investigate the conclusion of the cadastral engineer on this issue which can be found as part of the Meeting Plan in the section "Conclusion of the Cadastral Engineer", if necessary, to interview the cadastral engineer.

At the same time, the fact of the incompression of the areas of land plots belonging to the parties compared to the right-point documents to the land plot does not always indicate the clause of the responsible part of the part of the land plot, since such a mismatch may be caused by other reasons: occupation of the land plot from another adjacent landowner (user ), grabbing the defendant general lands, etc.

W. appealed to the court with a lawsuit F.R.A., F.S., D. On establishing the location of the borders of the land plot No. 75, referring to the fact that it is the owner of the land plot in the garden partnership, with refinement of the location of land boundaries The site was revealed that the defendants took part of the land belonging to it.

F.R.A. The lawsuit did not recognize the oncoming requirements for the establishment of an adjacent border with the site of the plaintiff in accordance with the land plan, performed by LLC Ural LLC, referring to the immutability of the controversial border since the formation of the land plot - 2000.

By the decision of the court to satisfy the original claim, the counterclaim was satisfied.

Allowing this dispute, the court investigated the initial plans land plots of the parties, the scheme-breaking of the corresponding quarter of SNT at the time of the formation of land plots - 2000, heard the testimony of the former owners of land plots and came to the conclusion that the plaintiffs are not the defendants with the defendants. The court found that the excess of the land area F.R.A. It happened not at the expense of the land plot of the plaintiff, but by grabbing the lands towards the road. The judicial board supported the decision of the court of first instance.

(№33-6254/2011)

VIII. . Disputes on the release of the land plot from unauthorized buildings

When applying land legislation on disputes on the release of land plots from unauthorized buildings, it should be borne in mind that the presence of a developer has not expired to obtain a permit for the construction and registration of land relations given to him by the act of local self-government in the coordination of the place where the property of the property is not The basis for the refusal of the administration in a lawsuit on the demolition of this structure as a unauthorized construction.

Thus, the Trinity City Court satisfied the lawsuit of the administration of Troitsk to M. On the release of the land plot of 598 square meters. M by demolishing the object of unfinished construction of 17.3 h. 13.0 meters and the release of the site from building materials, indicating that the controversial object was erected without registration of land relations and building permits.

The Court of Cassation Decision canceled, refused to satisfy the claims, referring to the fact that by the decision of September 1, 2008 M. was established a three-year term for obtaining a construction permit, which did not expire, in connection with which the demolition requirement of the erected object was announced Prematurely and before the deadline, the defendant has the opportunity to obtain a permit for construction and a document confirming the right to land.

By the decision of the Presidium of the Chelyabinsk Regional Court, the cassation definition was canceled, the decision of the court of first instance was left in force.

The court of supervisory instance indicated that in the absence of the development of rights to the land plot, they do not have the right to be considered and cannot be considered as the consent of the plaintiff to create a controversial object of action of M. to obtain initial and permits for construction, on the design of land management, in coordinating boundaries Land and preparation of the project of the building of the cafe.

The ability to produce construction work on the land plot until the defendant of land relations in the administration did not provide for this decree.

In court of cassation instance, the representative of the administration explained that the constructed object around the perimeter is more per 100 square meters. M than was supposed, the construction permit for such an object cannot be issued.

(No. 44-M-27/2011)

VIII. . Procedural issues

One of the deficiencies in the consideration of cases for the application of land legislation is the consideration of disputes with the improper respondent.

According to para. 2 h. 3 tbsp. 40 Code of Code of Civil Procedure of the Russian Federation in case of the impossibility of consideration of the case without the participation of the appointment or appointments in connection with the nature of the dispute relationship, the court attracts it or their participation in the case on its own initiative.

By virtue of paragraph 4 of Part 1 of Art. 150 Code of Civil Procedure of the Russian Federation in the preparation of a judiciary of a judge permits the issue of entry into the case of co-computers, appointments and third parties without independent claims regarding the dispute subject, and also permits the issue of replacing the improper respondent.

This question is not always permitted by judges, whereas it cannot be considered correctly with the defendant specified by the plaintiff.

To avoid such mistakes, it should be determined from what legal relationship a dispute arose, about what law and who is an intended impairler of the rights and interests of the plaintiff.

For example, Rosreestr can act in affairs as an interested person only if its decisions or action (inaction) are disputed.

If the requirement is statedestablishing land boundaries The proper defendant for such a category of affairs should be a concrete legal or an individual who makes a claim with regard to the location of the borders of the disputed land.

If the act of local self-government body is challenged (defendant) is this body if the transaction isparties (and not one side) of this transaction.

Very often, the plaintiffs are presented by several requirements, for example:

About challenging decisions (actions) of Rosreestra or Federal budget institution "Land Cadastral Chamber" on the formulation (removal) of the land plot on cadastral registration;

On challenging the decisions (actions) of local governments on the overtake of the land plot to third parties;

On the recognition of invalid transactions concluded between the administration (authorized by it) and these persons, referring to the violation of their rights to the land plot (ownership, lease, etc.) actions of these bodies and individuals.

In this situation, a defense dispute is unambiguously seen, so the trial task is as follows:

Identify the existing right of plaintiff to land than it is confirmed (contract, acts, transactions, etc.);

What is the violation of this right (the imposition of land plots, the seizure, alienation of the land plot to another person, etc.).

And only after establishing the specifiedmain Circumstances in the case, the Court can begin to resolve other requirements: the legality (illegality) of solutions of local governments, whether they violate or not the laws by the court, and the last to resolve the issue of the legality of the actions of the authorities carrying out cadastral activities.

Meanwhile, often the courts, miserably, incorrectly determine the type of legal proceedings, do not establish a circle of proper respondents, essentially the validity of the actions of the Rosreestra or FBU "Land Cadastral Chamber", as a result of the circumstances of importance for the correct consideration of the case, The necessary evidence by the parties are not presented in the case file, which makes it impossible to adopt a new decision by the court of cassation instance.

Disputes on the provision of land areas with disabilities and their families

According to Art. 17 of the Federal Law of November 24, 1995 No. 181-FZ "On the social protection of persons with disabilities in the Russian Federation" (hereinafter referred to as the Persons with Disabilities), disabled people and families with disabilities, are given the right to the priority to obtain land plots for individual housing construction , maintaining the utility and country farm and gardening.

Special attention should be paid to the consideration of disputes related to the provision of land plots for individual housing construction.

In accordance with the above Art. The 17 Disabled Disabled Act has the primary right to receive a site for individual housing construction for a fee without trading in ownership or for rent.

At the same time in Art. 1 of the Law of the Chelyabinsk region of April 28, 2011 No. 121-ZO"On the free provision of land plots to the property of citizens for individual housing and conducting a personal subsidiary farming with the construction of a residential building on a native land plot on the territory of the Chelyabinsk region" cases are provided free Providing citizens of land plots for individual housing construction. If people with disabilities belong to the category of citizens specified in Art. 1, they can get land plots for individual housing construction to property for free. For example, people with disabilities living within the territories of rural settlements in need of improving housing conditions.

At the same time, the presence of the person in the disabled person does not mean that the local government body is obliged to provide him with any arbitrarily elected land plot.

Since in this case it does not work. 30.1 RF Rode on the provision of land for individual housing construction at auction, Article can be applied to controversial relations. 31 LCD of the Russian Federation, from which it follows that when applying a citizen with a statement about the provision of land plot, the local government body is obliged to provide a citizen with the choice of the relevant land plot based on documents of state cadastral real estate accounting, taking into account the environmental, urban planning and other conditions of use of the relevant territory and subsoil its borders by determining the options for placing an object and conducting coordination procedures in cases provided for by federal laws with the relevant government agencies, local governments, municipal organizations.

In addition, the primary right to receive a land plot for individual housing construction is associated with the need of a disabled person in improving housing conditions. In this connection, in the case file, there should be evidence that the disabled person (or members of his family) is registered as in need of improving housing conditions, otherwise the specified right cannot be implemented.

Disputes to correct cadastral errors

The order of correction of cadastral errors is regulated by Art. 28 FZ dated July 24, 2007 No. 221-FZ "On the State Cadastre of Real Estate".

Under cadastral errors, mistakes in the document are understood on the basis of which information was made to the State Cadastre of Real Estate.

The procedure for correcting the cadastral error in the information depends on how the documents containing the error in the information were submitted to the cadastral accounting authority.

If the documents that contain such an error and on the basis of which information was made to the State Cadastre of Real Estate are the documents necessary for cadastral accounting and presented simultaneously with the relevant statement (act of examinations, technical plan, a land plan, a document confirming belonging in a certain category of land, and other documents provided in accordance with Art. 22 of the Law), then the cadastral error in the information is subject to correction in the manner prescribed to change the relevant object of real estate.

If the documents that contain such an error and on the basis of which information was made to the State Cadastre of Real Estate are the documents received by the cadastral accounting authority in the order of information interaction, the cadastral error in the information should be corrected in the order of information interaction (Article 15 of the Federal Law);

In any case, on the basis of the court decision that has entered into legal force to correct the cadastral error.

According to paragraph 5 of Art. 28 of the law Court decision to correct the cadastral error is made by the court at the request of any person or any body, including the cadastral accounting authority. Based on the decision of the Court of Cadastral Error, the cadastral accounting authority makes new information in the registry.

At the same time, the court decision must contain new values \u200b\u200bof the cadastral information to be corrected.

P. appealed to the court with a lawsuit against LLC "AMSTER", FSU "Land Cadastral Chamber" about correcting cadastral error, referring to the fact that when refining the location of the boundaries of the land plot and setting on cadastral records, the boundaries of its land plot with boundaries were revealed The neighboring land plot belonging to P. Plaintiff believed that there was a cadastral error made by Amerlember LLC, since the dispute on the borders with P. is not available.

By the decision of the court LLC "Amerlember" is obliged to fix the cadastral error made by the landline of the land.

By canceling the court decision, the judicial board indicated that the dispute was allowed with the participation of improper respondents, since LLC AMSTERER LLC is not endowed with the permissions to correct cadastral errors.

Leaving the decision of the court issued with the new consideration of the case to which the cadastral error was corrected, the judicial board supplemented the operative part of the decision to indicate the values \u200b\u200bof the characteristic points of the boundaries and the refined coordinates to be submitted to the State Land Cadastre.

(№№ 33-4437/2010, 33-9759/2010)

If the requirement to eliminate cadastral error affects the right of the neighboring land userIn this case, there is a dispute about the right to be considered in the claim with the involvement of the neighboring land user as an defendant. The question of the legality (illegality) of the actions of the interested person (Rosreestra) is subject to consideration simultaneously with the requirement to eliminate the cadastral error.

Thus, when resolving disputes related to the correction of cadastral errors, the Rosreestr can act in such cases as a concerned person only if the solution is disputed or the action (inaction) of the state body.

In the event that the requirement to correct the cadastral error in the manner prescribed by Art. 28 FZ "On the State Cadastre of Real Estate" (according to any person or body), the proper defendant for such a category of affairs should be a legal or individual, the location of the boundaries of the site of which will be changed as a result of fixing the cadastral error.

Disputes to establish a servitude

Servitude is right limiteduse of a stranger object of real estate (clause 1 of article 23 of the RF).

A servitude is a real right (paragraph 1 of Art. 216 of the Civil Code of the Russian Federation). For the owner of the real estate, in relation to the rights of which the servitude is established, the latter acts as encumbrance (paragraph 1 of the Law on State Registration of Rights).

The servitude may be an urgent or constant (clause 4 of Art. 23 RF RF), private or public.

Private servitude Installed in accordance with civil law - Art. 274-277 of the Civil Code of the Russian Federation in the interests of certain individuals (physical or legal).

According to paragraph 1 of Art. 274 of the Civil Code of the Russian Federation The owner of the real estate (land plot, other real estate) has the right to demand from the owner of the neighboring land plot, and in the necessary cases and from the owner of another land plot (neighboring site) providing the rights of limited use by the neighboring plot (servitude).

In this case, part 2 of paragraph 1 of Art. 274 of the Civil Code of the Russian Federation provides open List of reasons for establishing a servitude: Ensuring passage and travel through the neighboring land plot, gaskets and operation of the power lines, links and pipelines, ensuring water supply and amelioration, etc.

The basis of the establishment of a private servitude is an agreement between the person requiring the establishment of a servitude and the owner of the neighboring site. In case of failure to agree on the establishment or conditions of the servitude, the dispute is permitted by the court on the claim of the person who requires the establishment of a servitude (clause 3 of Art. 274 of the Civil Code of the Russian Federation).

The subject of such a claim by virtue of paragraph 3 of Art. 274 of the Civil Code of the Russian Federation, taking into account Art. 8 of the Civil Code of the Russian Federation (the emergence of civil rights and duties from the court decision) is setting a servitude.Private servitude cannot be installed by obligations Install servit.

Public servitude Provided Art. 23 ZK RF.

Unlike a private servitude, it is established in state, municipal and public interest without coordination with the owners, whose property is burdened by a servitude.

The list of grounds for establishing a public servitude, in contrast to the private, is closed (paragraph 3 of Art. 23 RF RF).

According to paragraph 2 of Art. The 23rd RF RF, a public servitude is established by law or other regulatory legal act of the Russian Federation, the subject of the Russian Federation, the local government body in cases, if necessary, to ensure the interests of the state, local government or the local population without the removal of land.

Thus, the decision of the Chelyabinsk City Duma of February 25, 2010 No. 10/8 approved the Regulation on the procedure for establishing and terminating public servitors against land plots located on the territory of the municipality "City Chelyabinsk".

On the establishmentprivate servitude On the land plot, the Court should find out the possibility of passing and travel to the property of the plaintiff without establishing a servitude, in other words - is it really the needs of the applicant's owner cannot be provided without establishing a servitude.

In the event that there is no such possibility, and the settlement agreement has not been reached, the claim for the owner of the property to the owner of the neighboring land plot may be considered in court, taking into account the smallest burden for the land plot, in respect of which the establishment of a servitude is required, and the established procedure for access to property .

The proofs of the impossibility of ensuring the interests of the plaintiff in another way, except for establishing a servitude, there may be plans for the boundaries of land plots, acts of inspection of the territory, expert opinions, etc.

When considering cases of establishing a private servitude, the courts should take into account the legal position set forth in the definition of the Supreme Court of the Russian Federation of August 16, 2011 in case No. 4-B11-25 that:

According to its legal nature, the servitude is an auxiliary way to implement the face of ownership in relation to the land owned by him in the presence of obstacles to its use fully;

The establishment of a servitude is permissible only if it is impossible to use the land plot for the purposes specified in paragraph 1 of Art. 274 of the Civil Code of the Russian Federation;

The most important criteria for establishing a servitude are the requirements of legality, rationality, justice and feasibility of its establishment;

When establishing a servitude, the court is obliged to establish the absence of a different reasonable, fair and appropriate possibility of ensuring the normal operation of real estate;

It is legally significant and subject to evidence to find out issues, whether the support of the owner of the neighboring land, the owner of the neighboring land plot is degraded, to use and dispose of its land plot;

If it is impossible to use the land plot without establishing a servitude, the issue of establishing a servitude on compensated or gratuitous beginnings is to be studied (in determining the magnitude of the proportionate service for the servitude, it is possible to use temporary guidelines for assessing a commensurate service for a servitude, approved by the head of Roszemkadastra 17.03.2004, They are not registered in the Ministry of Justice of the Russian Federation, but contain benchmarks for defining and evaluating a commensurate board for servitude).

The named criteria for establishing a private servitude were not fully taken into account when considering the case under the claim. Kh. To the Committee on the Management of Municipal Property of the Ashinsky Municipal District (hereinafter - the Committee) on the definition of the terms of the contract for the sale of land without establishing a servitude, and the independent claim of the municipal unitary Enterprises "Ashinsky Procurement and Trading Complex" (hereinafter - MUP) to X. On establishing a private permanent servitude of 95 square meters. m for servicing storm sewage.

When considering this case, the court found that H. is the owner of non-residential premises - the store of industrial goods, land plot of 1,134 square meters. M to accommodate the store in 1998 was leased to him.

By the decision of the same court dated September 29, 2009, the administration of the Ashinsky municipal district is entrusted with the obligation to transfer to the property of H. The specified land plot. In pursuance of this decision, the Committee sent H. The draft agreement of the sale and sale of a land plot, which provides for the burden of land plot by a servitude of 84 square meters. M and the obligation of the buyer of the land plot to comply with the requirements arising from the limitations of rights to the land. I do not agree to the purchase of a land plot with the burden of its servitude, H. appealed to the court with a claim to the Committee on the Management of the Municipal Property of the Ashinsky Municipal District (hereinafter - the Committee) on the definition of the terms of the contract of sale of the land plot without establishing a servitude, and MUP - with counter The claim is to establish a private permanent servitude for servicing storm sewage.

The decision of the court was satisfied with the lawsuit of MUP, and in the lawsuit X. denied.

By canceling this decision and taking a new decision to meet the claims of X. and the refusal to satisfy the claims of the MUP, the court of cassation has proceeded from the fact that the MUP does not have the right to establish a servitude, since it is not the owner of the object (storm sewage) due to the lack of registration The rights, in addition, indicated that the storm sewage is not a real estate object.

The Presidency canceled the cassation definition and left the decision of the court of first instance, indicating that the judicial board did not take into account the actual circumstances of the case showing that the storm sewers in the disputed land plot exists, functions and as an economic object needs maintenance.

The ownership of storm sewers as an object of real estate is not really registered, but the belonging of the MUP object is not disputed by anyone, is confirmed by the resolution for the construction of local storm sewering for the drainage device from the territory of the market, the contract for the performance of works, invoices, acts of acceptance of work.

The conclusion of the agreement on the transfer of land in the property of X. without establishing a servitude makes the operation of the sewage line impossible.

Rejecting the conclusions of the judicial board about the lack of strong connection with the Earth, the Presidium indicated that this does not refute the presence on the land plot of storm sewage and proves that it cannot be equipped as a ground pipeline.

(No. 44-G-96/2011)

In the same time in the review of the judicial practice of the Chelyabinsk Regional Court for the 4th quarter of 2009 (paragraph 12), the case No. 33-8871 / 2009 was given, according to which the court refused the claim of R. to W. On providing the right to use the right part of the land plot belonging to the right Property of W. In this case, the plaintiff required it to provide it with the right to use the expanded land plot of 33 square meters. m Without any restrictions and at any time, in the manner determined by the most famous, indicating that the goal of the servitude is the foundation device, the laying of the brick walls and the scene, as well as the intention of it in the future to put a fence. That is, essentially the plaintiff announced the requirement for providing her unlimited rights of use of a land plot of 33 square meters. m and changing the size of the land plot of the defendant, which contradicts the requirements of Art. 274 of the Civil Code of the Russian Federation.

Since the servitude is subject to state registration and enters into force after its state registration to the USRP (clause 9 of Art. 23 of the RF RF), the operative part of the decision to establish a servitude should contain all the information necessary for state registration of the servitude, namely:

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