home Loans Residential complex of the Russian Federation land plot under an apartment building. Who owns the land in an apartment building - cadastral registration, verification of registration, pros and cons of registration. Restricting the passage of strangers

Residential complex of the Russian Federation land plot under an apartment building. Who owns the land in an apartment building - cadastral registration, verification of registration, pros and cons of registration. Restricting the passage of strangers

Yuri

Hello! Our apartment building was built in 1968. The land plot on which our house is located was registered in the cadastral register in 2002 on the basis of lists of previously registered land plots provided by the city administration, compiled based on the results of the city land inventory. In accordance with the extract from the State Property Committee, our land plot has the status of previously registered, but its boundaries have not been established in accordance with current legislation; the declared area of the land plot is 1882 sq.m. , the purpose of the site is for the operation of a residential building. Several apartments in our building have been transferred by their owners to non-residential premises and are currently shops. We want to register the right of common shared ownership of our land plot. To do this, it is necessary to carry out land surveying, and for land surveying it is necessary to calculate the size of the area of the land plot necessary for the operation of our house. According to the methodology set out in "SP 30-101-98 "Methodological instructions for calculating land plots in condominiums"" the size of the land plot required for the operation of an apartment building is calculated by multiplying the coefficient depending on the number of floors and the year of construction of the house by the total area of all residential premises in this home. But some of the premises in our building that belong to individual owners today are not residential premises (shops). How does the legislation of the Russian Federation provide for determining the area of land required for the operation of our house? Thank you.

Clarification from April 2, 2015 - 16:53
We also believe that when calculating the size of the area of the land plot necessary for the operation of our house, it would be correct to take into account the area of non-residential premises as well as residential ones, since when purchasing these premises, the part of the common property attributable to their share was also acquired (part of the land plot on which the our house) But the city administration refuses to approve the boundary plan of our land plot, in which the size of the area of our land plot is calculated taking into account the fact that previously (during the development of this territory) all the premises in our house belonging to individual owners were residential. The city administration insists that non-residential premises should not have playgrounds, areas for recreation and sports, etc. and on this basis he asserts that in calculating the area of land required for the operation of our house, only those premises that are currently residential should be taken into account. With this calculation, the area of our land plot is reduced by almost half, since there were only 12 apartments in the building and 5 of them were converted into non-residential ones. According to the calculations of the City Administration, we are allotted a strip of land along the house 12 meters wide, but in such a plot it is impossible even to place parking for our cars due to the proximity to the windows of the apartments. And there is nothing left for a children's or sports ground, and we still need places for unloading goods to stores located on the entire first floor of the house. We intend to go to court, but we do not know on the basis of what legal norms we can prove the need to take into account store premises along with residential premises. Maybe there were any clarifications from any official bodies about this?!

Answers:

Elena Tarasova

Good afternoon, thank you for your question. You should know that

Unfortunately, the Housing Code of the Russian Federation does not contain special provisions on the procedure for determining the size of a land plot for an apartment building. But there are some guidelines in the legislation.

Thus, by virtue of Part 1 of Article 36 of the Housing Code of the Russian Federation, the boundaries and size of a land plot are calculated in accordance with land legislation and legislation on urban planning activities. More specifically, this provision is disclosed in paragraph 2 of Article 35 of the Land Code of the Russian Federation, which states that the area of the part of the land plot occupied by a building and necessary for its use is determined in accordance with Part 3 of Article 33 of the Land Code of the Russian Federation.

However, this article talks about determining only the maximum sizes of land plots, which are established in accordance with the approved norms for land allocation for specific types of activities or in accordance with the rules of land use and development, land management, urban planning and design documentation. This means that in any case it will be necessary to set boundaries within certain limits, taking into account individual circumstances.

If land legislation speaks about the procedure for calculating the boundaries of a land plot under an apartment building only in general terms, then Part 4 of Article 43 of the Town Planning Code states that the dimensions should be determined taking into account the actual land use and town planning standards and rules that were in force during the period of development of the territories.

“Taking into account” can mean two possibilities for establishing the size of land plots: they can be equal to the indicators determined in accordance with urban planning standards and rules in force during the development period, or be less than them if the current land use does not allow these indicators to be adhered to.

At the present stage, by-laws on the rules for determining the boundaries of a site have not been developed. In this regard, it seems advisable to be guided by the previously established procedure for determining boundaries, which most fully took into account both the interests of residents and the necessary technical requirements.

Based on Article 10 of the Federal Law “On Homeowners’ Associations” in force before the entry into force of the Housing Code, Decree of the Government of the Russian Federation dated September 26, 1997 N 1223 “On approval of the Regulations on determining the size and establishing the boundaries of land plots in condominiums”, Code of Design Rules was adopted and construction SP 30101-98, Guidelines for calculating standard sizes of land plots in condominiums.

The basic principles laid down in these acts are as follows: if the land plot has not yet been allocated, then the boundaries are determined depending on the number of storeys of the building and the SNiPs in force during the construction period; if the land plot has already been allocated, then its boundaries are not subject to revision. The regulation details that the sizes of land plots for the creation of condominiums in existing development areas, as well as in newly developed territories, are determined in accordance with urban planning documentation, urban planning standards and methods for calculating the standard sizes of land plots in condominiums.

Expert recommendation
Thus, I believe that when calculating the area of land required for the operation of your house, it is necessary to take into account non-residential areas as they were originally when building the house (i.e. as residential).

If you have any questions, I can answer in more detail.

Best wishes.

Hello.

Letter of the Ministry of Economic Development of the Russian Federation dated December 29, 2010 No. D23-5416 “On clarification of the procedure for forming a land plot for an apartment building”

The Real Estate Department of the Russian Ministry of Economic Development considered an appeal for clarification of the procedure for forming a land plot for an apartment building.

1. On the question of in what cases the formation of the land plot on which the apartment building is located is carried out by a state authority, in which local government, in what cases the tenant (land user) we inform.

Part 4 of Article 16 of Federal Law No. 189-FZ of December 29, 2004 “On the Entry into Force of the Housing Code of the Russian Federation” (hereinafter referred to as Federal Law No. 189-FZ) provides a general rule for state authorities and local governments on the formation of land the site on which the apartment building is located.

Currently, the legislation of the Russian Federation does not have a clear definition of the term “formation of a land plot”. Based on the requirements stipulated by the provisions of the Town Planning Code of the Russian Federation (hereinafter referred to as the Town Planning Code) and the Land Code of the Russian Federation (hereinafter referred to as the Land Code), the formation of a land plot for an apartment building includes:

1) preparation and approval of the territory planning project and the territory surveying project;

2) carrying out cadastral work in relation to the land plot in accordance with the requirements established by the Federal Law of July 24, 2007 No. 221-FZ “On the State Real Estate Cadastre” (hereinafter referred to as Law No. 221-FZ) and carrying out state cadastral registration of the land plot .

At the same time, the preparation of a territory planning project and a territory surveying project carried out in relation to a land plot located under an apartment building falls within the competence of local government bodies.

Cadastral registration of real estate is carried out by the authorized body for entering into the state real estate cadastre information about real estate submitted on the basis of an application from any person (Articles 1, 3, 14 of Law No. 221-FZ).

Cadastral work is carried out by a cadastral engineer on the basis of a contract concluded in accordance with the requirements of civil legislation and Law No. 221-FZ for the performance of cadastral work on the initiative of the owner of the land plot (customer). At the same time, any person has the right to conclude this agreement with a cadastral engineer.

In accordance with Article 37 of Law No. 221-FZ, as a result of cadastral work, the cadastral engineer transfers to the customer of such cadastral work a boundary plan, a technical plan, and a survey report.

Based on Articles 9-11 of the Land Code, the formation of a land plot in federal ownership is carried out by federal executive authorities, the formation of a land plot owned by a constituent entity of the Russian Federation is carried out by the executive authorities of a constituent entity of the Russian Federation, the formation of a land plot located in a municipal property - local government bodies.

If state ownership of a land plot is not demarcated, the formation of such a land plot is carried out by a local government body (clause 10 of Article 3 of the Federal Law of October 25, 2001 No. 137-FZ “On the entry into force of the Land Code of the Russian Federation”).

The decision on the formation of a land plot is made by the bodies providing land plots (Article 29 of the Land Code), including on the basis of an application from the interested legal holder of the land plot.

2. On the question of what are the standards for determining the area of the land plot on which an apartment building is located, and the principles for establishing such standards, we report.

According to Part 1 of Article 36 of the Housing Code of the Russian Federation (hereinafter referred to as the Housing Code), the boundaries and size of the land plot on which the apartment building is located are determined in accordance with the requirements of land legislation and legislation on urban planning activities.

The location of the boundaries and the size of the land plot within the boundaries of the built-up areas, as well as its area, are determined taking into account the actual land use and urban planning standards and rules that were in force during the development of these territories (Part 4 of Article 43 of the Urban Planning Code).

In accordance with Part 9 of Article 38 of Federal Law No. 221-FZ, when clarifying the boundaries of a land plot, their location is determined based on the information contained in the title document for the land plot, or in the absence of such a document, from the information contained in the documents determining the location of the boundaries of the land plot during its formation. If the specified documents are missing, the boundaries of the land plot are the boundaries that have existed on the ground for fifteen years or more and are fixed using natural objects or objects of artificial origin that make it possible to determine the location of the boundaries of the land plot.

If the formation of land plots should be carried out taking into account a territory surveying project or another document, the location of the boundaries of these land plots is determined taking into account such a document (Part 10 of Article 38 of Federal Law No. 221-FZ).

3. On the question of whether in this case the development of territory planning documentation (territory planning project, territory surveying project) should be carried out in accordance with the requirements of Articles 42, 43 of the Town Planning Code or whether it is possible to form new land plots in the manner established by Articles 11.3, 11.4 of the Land Code, we inform you.

In accordance with paragraph 2 of Article 6 of the Federal Law of December 29, 2004 No. 191-FZ “On the entry into force of the Urban Planning Code of the Russian Federation” (hereinafter referred to as Federal Law No. 191-FZ), before the entry into force in the prescribed manner of technical regulations on the organization territories, placement, design, construction and operation of buildings, structures, structures in the event that the built-up territories are not divided into land plots, the boundaries of the land plots on which apartment buildings are located are established through the preparation of territory planning projects and territory surveying projects, which are approved by the head local administration of the settlement, the head of the local administration of the city district, in compliance with the procedure for public hearings in accordance with Article 46 of the Town Planning Code. In this case, it is not allowed to require the provision of other documents for the approval of territorial planning projects and territorial surveying projects.

This norm provides for transitional provisions of urban planning legislation. Based on the content of this norm, in order to determine the boundaries of the land plot on which the apartment building is located, a territory planning project and a territory surveying project must be developed.

4. On the question of whether paragraph 2 of Article 6 of Federal Law No. 191-FZ applies only to cases established by Articles 46.1, 46.2, 46.3 of the Town Planning Code, or to other cases established by law, we inform you.

Due to the fact that paragraph 2 of Article 6 of Federal Law No. 191-FZ does not provide restrictions in relation to any specific cases, the Real Estate Department believes that this norm applies to all relations regulated by legislation in the field of urban planning activities

Director

Real Estate Department A.I. Ivak

You also have the right to seek clarification from the Ministry of Economic Development.

Hello!

The lack of regulation of the procedure for determining the size of a land plot of an apartment building leads to the fact that practice for the most part follows the path of determining the size of a land plot of an apartment building based on the edge of the building's foundation. At the same time, the legislation (Article 36 of the Housing Code of the Russian Federation) provides for the inclusion in the site of an apartment building of the territory necessary for the maintenance and operation of the building, occupied by landscaping and improvement projects. Operating a house involves providing an apartment building with various services that ensure safety and comfort of living through utility systems and networks (gas, heat, water, electricity, etc.). Urban planning legislation (Article 6 of the Federal Law “On the implementation of the City Code of the Russian Federation”) allows you to determine the size of the land plot of an apartment building in planning projects and land surveying projects before the adoption of technical regulations for the placement, design, construction and operation of buildings, structures, and structures.

In the case of determining the size of a land plot of an apartment building based on the edge of the foundation of the building, land plots outside the edge of the foundation of an apartment building are considered as public land plots (used for travel/passage of an indefinite number of persons). I believe that state authorities and local authorities, by establishing in planning projects and land surveying projects the size of the plot of an apartment building based on the edge of the building's foundation, violate the rights of the owners of premises in such a building, since they create conditions that impede the exercise of the owner's rights.

Since the legislation (Article 16 of the Federal Law “On the implementation of the Housing Code of the Russian Federation”) stipulates the emergence of a land plot of an apartment building and the ownership of such a plot with its state cadastral registration, information on the registration of the building of an apartment building is important for determining the size of the harvesting area apartment building.

Expert opinion regarding the criteria for determining the size of a land plot for an apartment building:

The site of an apartment building cannot be within the edge of the building's foundation, since maintenance of the building (painting, whitewashing walls, repairing roofs, windows, etc.) requires an area beyond the edge of the building's foundation. In technical regulations for the placement, design, construction and operation of buildings, structures, structures, as well as in planning projects and land surveying projects, the land plot of an apartment building as part of the common property must include the territory necessary for the maintenance and operation of the house, depending on its technical characteristics ( number of storeys, design features, etc.). A different approach (determining the site by cutting off the foundation of the house) will create obstacles in the exercise by the owners of the premises of an apartment building of their rights.

There is often a misconception among residents of high-rise buildings that the land plot under the apartment building is in common ownership of the residents. As a last resort, the management company or utility association that services the residential complex has the right to dispose of the territory.

On the one hand, this assumption is correct, and the law provides for the transfer of the local area to the disposal and shared ownership of apartment owners, however, there are a number of nuances that must be taken into account when resolving such an issue. Today we will take a detailed look at the situation about who owns the land under an apartment building and how current legislation regulates this issue.

According to the Housing Code of the Russian Federation, land located under MKD, transferred for use before 2005, becomes the common possession of citizens under the following conditions:

the plot under the building has clearly defined boundaries, which have already been agreed upon with the municipality;
all land management work was completed before 2005, when the main provisions of the RF Housing Code came into force;
the local area is registered with Rosreestr and has a cadastral plan.

If the listed requirements and conditions are not met, then the territory remains at the disposal of the initial user, that is, the municipality or developer and does not become the property of the persons living in the high-rise building.

Before purchasing an apartment in an apartment complex, it is important to check whose property is the territory under the residential complex. If the land is also transferred to a citizen, then this will be an additional advantage of the purchase.

Additionally, it should be noted that residents are given the opportunity to privatize the property in the future after cadastral registration and the final formation of the site. Only in this case will the rights of citizens be officially confirmed and not limited in any way.

Who owns the plot under the new building if the house was transferred to use after 2005?

Under such circumstances, the situation is somewhat different, since home owners automatically become land owners without meeting the listed conditions. This decision is due to the fact that the developer can construct a building on the land area only after purchasing it or taking it on an indefinite lease from the administration with subsequent privatization.

In this regard, after the building is put into operation, together with the transfer of rights to the living space to the buyer, the right of ownership to the land plot is simultaneously transferred. Accordingly, the buyer will not have to bear any expenses and independently engage in privatization of the land under the residential complex.

How to obtain information about the ownership of the local area?

In some situations, information may be required about who is the owner of the land plot on which the apartment building is located. The law provides several ways to find out who owns the specified territory, and the simplest of them is to fill out an online request on the official website of Rosreestr.

To quickly get the information you need, just go to the electronic resource and select the “Public cadastral map” tab. Here you can see the general layout of a specific area with the identification of individual sectors, as well as get acquainted with detailed data regarding the ownership of the land under the apartment building.

Another option for obtaining information about the privatization of land under a house involves checking tax payments. If citizens receive a receipt for payment of land tax once a year, then the territory is their property.

What plot of land is allowed to be transferred to common shared ownership?

When solving such a problem, first of all, citizens should be guided by the boundaries and area of the local area. The main regulations for performing translation are prescribed in the RF Housing Code and in the RF Land Code. Additionally, it should be taken into account that the land under the apartment building consists not only of free, open areas, but also includes parking lots, playgrounds, sports facilities, and front gardens.

Of course, the area under the new building will not be very large, since municipality representatives initially try to limit the site to the minimum possible size. This is especially often observed in relation to the development of territories in large settlements, where land is valued very highly. For the same reason, residents may encounter significant problems, as well as serious obstacles when applying for privatization.

It is important to note that privatization of a territory is possible in the case when the site “does not enter” someone else’s territory and does not violate the interests of other persons. If the land mass consists of the common property of different houses, then it will be impossible to privatize such property.

Conclusion

The land area under a residential complex is not always at the disposal of citizens who own apartments in the residential complex. If certain conditions are met, the plot can be privatized, but there are also prohibitions that will not allow the privatization procedure to be carried out. In order to comply with all the rules and requirements, you should be guided by the advice and regulations specified in the Housing Code of the Russian Federation and in the Land Code of the Russian Federation.

The issues of registering a land plot for an apartment building are currently among the most pressing for Moscow residents.

Do you need to install a fence around the perimeter of your yard? Do you want a children's playground and guest parking in the yard, and not a high-rise building built right next to your windows? You don't want paid parking in the yard and a highway passing under your windows? All these issues can be resolved only if the land plot under your apartment building is properly registered.

And the basic legal norm here is Article 36 of the Housing Code of the Russian Federation, according to which “the owners of premises in an apartment building own, by right of common shared ownership, the common property in the apartment building, namely... the land plot on which the house is located, with elements of landscaping and landscaping, other objects intended for the maintenance, operation and improvement of this house and located on the specified land plot. The boundaries and size of the land plot on which the apartment building is located are determined in accordance with the requirements of land legislation and legislation on urban planning activities.”

This is the basic rule to remember, given the following points:

From what moment do the residents of the house become the owners of the land plot under such an apartment building (hereinafter - MKD)?

From the moment the land plot is formed and its state cadastral registration is carried out, the land plot on which the apartment building and other real estate objects included in such a building are located passes free of charge into the common shared ownership of the owners of the premises in the apartment building (Clause 5, Article 16 of the Federal Law RF No. 189-FZ dated December 29, 2004 “On the introduction into force of the Housing Code of the Russian Federation”). In other words, from the date when the plot under the apartment building is registered in the cadastral register, the owners of the premises in the apartment building (both residential and non-residential!) become the owners of this land plot. From this moment on, the plot is in their shared ownership, and obtaining separate paper certificates to confirm this right is not required. According to paragraph 1 of Art. 22 of the Federal Law of July 24, 2007 No. 221-FZ “On the State Real Estate Cadastre”, registration of a land plot with the state cadastral register is carried out on the basis of a boundary plan.

Summary: from the date of registration of this land plot in the cadastral register.

Where does the registration of a land plot for an apartment building begin?

In accordance with the provisions of Art. 16 of the Federal Law of the Russian Federation No. 189-FZ of December 29, 2004 “On the implementation of the Housing Code of the Russian Federation” in the event that the land plot on which the apartment building and other real estate objects included in such a house are located has not been formed before the entry into force of the Housing Code of the Russian Federation (that is, before March 1, 2005), on the basis of a decision of the general meeting of owners of premises in an apartment building, any person authorized by the said meeting has the right to apply to state authorities or local authorities with an application for the formation of a land plot, on where the apartment building is located. The formation of the land plot on which the apartment building is located is carried out by state authorities or local governments.

However, the Constitutional Court of the Russian Federation, in Resolution No. 12-P dated May 28, 2010, found that the norm according to which the owner of premises in an apartment building, not authorized by the general meeting of owners of premises in this building, could not apply to state authorities or local authorities, was inconsistent. self-government with an application for the formation of a land plot on which an apartment building is located. Thus, until recently, only one owner of a premises (both residential and non-residential premises) was allowed to apply to the Moscow Property Department (formerly the Moscow Department of Land Resources) with an application for the formation of a land plot for an apartment building.

Now, in connection with the entry into force of amendments to the Land Code of the Russian Federation from 03/01/2015, the formation of land plots for multi-apartment residential buildings is carried out exclusively in accordance with the approved land surveying project. The owner's application with the above statement is not required.

Summary: with approval of the land surveying project for the block in which the apartment building is located.

What is approval of a block surveying project and who approves it?

Approval of a block surveying project is a procedure whose purpose is to create a survey plan, on the basis of which the land plot is subsequently registered for cadastral registration, that is, its legal “registration” of ownership. Land surveying is, in essence, the process of determining the boundaries of land plots, that is, it is at this stage that it is decided whether the adjacent territory (that is, the land belonging to the owners of apartments in the apartment building) will include a playground, whether a road will pass under your windows whether there will be parking in the yard, which areas will be recognized as public places, etc.

The state customer for the development of the land surveying project is the Department of City Property of the City of Moscow (hereinafter referred to as DGI). Obviously, the tasks of the DGI are quite predictable - to form plots so that more land is “cut off” from residential buildings and assigned to public land, to the road network, which, after land surveying, will be registered as the property of the city of Moscow.

The executor of the land surveying project is usually some kind of design institute, such as Mordovregionproekt LLC, NIIiPI General Plan and others like that, which won the competition and entered into a government contract.

Before approval by the State Property Survey, the land surveying project must go through a public hearing procedure, which is usually attended by residents of a particular block who are directly interested in the given land plot. The conclusion based on the results of public hearings is approved by the District Commission on Urban Planning, Land Use and Development under the Moscow Government.

Summary: in fact, this is the approval by the Department of City Property of the boundaries of a specific land plot after their agreement with the interested public.

What are public hearings and how to participate in them?

The City Commission on Urban Planning, Land Use and Development under the Moscow Government (hereinafter referred to as the City Commission) and the District Commissions on Urban Planning, Land Use and Development under the Moscow Government (hereinafter referred to as the District Commissions) are the authorized bodies for conducting public hearings. The city commission is formed at the city level, the district commission at the administrative district level. The city commission organizes public hearings less frequently than the district commission, since they relate to more global projects: the General Plan of the City of Moscow and linear objects, for example, the construction of highways that affect more than one district, etc. The district commission organizes public hearings on a regular basis, as they relate to issues of a district or district scale.

According to the Urban Planning Code of Moscow, participants in public hearings are: 1) residents of the city of Moscow who have a place of residence or place of work in the territory within the boundaries of which public hearings are held, and representatives of their associations; 2) legal holders of land plots, capital construction projects, residential and non-residential premises in the territory within the boundaries of which public hearings are held; 3) deputies of representative bodies of municipalities on whose territory public hearings are held; 4) deputies of the Moscow City Duma.

The law guarantees the right of each participant in public hearings to familiarize themselves with the final protocol, which indicates who made what proposals at the public hearing.

Public hearings consist of the following stages: 1) publication and distribution of notice of public hearings (no later than seven days before the opening of the exhibition); 2) holding an exposition (expositions) of the project presented at public hearings (hereinafter referred to as the exposition); 3) holding a meeting of participants in public hearings (meetings on non-working holidays are not allowed; on working days, meetings begin no earlier than 19:00); 4) drawing up the protocol of public hearings (the period for drawing up the protocol of public hearings is no more than seven days); 5) preparation and publication of a conclusion on the results of public hearings (within five days after approval, a conclusion on the results of public hearings must be published).

The preparation of the final protocol based on the results of public hearings is usually carried out by employees of the district government. After this, the protocol is transferred to the District Prefecture. Further, at the next meeting of the district commission, this protocol is considered. A council employee reports on how the public hearings went, what comments were made, how many people came, etc. If the commission members have no questions about the protocol, then the protocol of the public hearing is approved by the chairman of the relevant district commission.

The next step of the district commission is to issue a conclusion. The conclusion on the results of public hearings is approved by the chairman of the relevant commission. Within five days after approval, the conclusion on the results of public hearings must be published in the manner established for the publication of official information of the Moscow Government or the relevant territorial executive authorities of the city of Moscow. In the conclusion, recommendations are indicated on the feasibility or inexpediency of implementing the project, etc. It is after the conclusion is approved that the public hearings are considered completed.

How can I express my disagreement with the land surveying project proposed at public hearings?

During the period of public hearings, each participant in public hearings has the right to present their proposals and comments on the project under discussion in the following ways: 1) entries in the book (journal) of visitors and a record of proposals and comments, which is kept during the period of operation of the corresponding exposition; 2) speeches at a meeting of participants in public hearings; 3) entries in the book (journal) of accounting (registration) of the public hearing participants participating in the meeting; 4) submitting written proposals and comments to a representative of the relevant district commission or city commission during a meeting of participants in public hearings; 5) sending written proposals and comments to the relevant district commission within a week from the date of the meeting of participants in public hearings.

Absolutely all proposals and comments received are included in the minutes of public hearings. The period for drawing up the minutes of public hearings is no more than seven days.

To ensure the completeness and accuracy of proposals and comments included in the protocol, you have the right, with reference to the Urban Planning Code of Moscow, to demand that you familiarize yourself with the protocol of public hearings and receive a copy of it from the district commission.

How to challenge the boundaries of a “separated” plot of land under an apartment building?

The legislation allows for various ways to protect a violated right in this situation, however, the most common remain a judicial appeal of the decision to approve the block surveying project and the requirement to establish the boundaries of the land plot.

Owners of premises in apartment buildings also have the right to challenge in court, taking into account the jurisdiction of the cases, according to the rules of the provisions of the CAS RF or Chapter 24 of the Arbitration Procedure Code of the Russian Federation, actions (inaction) of the government authority on: 1) the formation of the land plot on which the house is located, 2) on the development of documentation for territory planning (Articles 45 and 46 of the Town Planning Code of the Russian Federation), 3) actions preceding the disposal of a land plot, in particular decisions on the provision of a land plot for construction, on holding auctions for the sale of a land plot or the right to conclude a land lease agreement, etc. .

If, as a result of such actions of the government authority, third parties have a right to a land plot necessary for the operation of an apartment building, the owners of the premises in it may apply to such third parties in court with a claim aimed at challenging the relevant right, or with a claim for establishing the boundaries of a land plot.

When considering these claims, the court resolves controversial issues related to the boundaries of a given land plot in accordance with the requirements of land legislation and legislation on urban planning activities (Part 1 of Article 36 of the RF Housing Code). In this case, the burden of proving the circumstances that served as the basis for the formation of a land plot within the disputed boundaries and size rests with the relevant authority.

The court decision that established the boundaries of a land plot is the basis for changing information about this land plot in the state real estate cadastre.

What should you especially pay attention to when approving a block survey plan?

1. It is necessary to periodically visit the website page of the government of your district / District Prefecture in order to obtain information about upcoming public hearings - after all, in fact, this is the only opportunity for citizens to express their opinion regarding the determination of the boundaries of a land plot according to their MKD.

2. Directly when attending public hearings: 1) you need to register in the register of participants in public hearings. The total number of participants in the public hearing meeting is calculated by the number of people registered in the journal; 2) ensure that all comments and suggestions, even those expressed orally into a microphone, as well as those submitted in writing, are recorded in the minutes; 3) make suggestions and comments not “collectively”, but from each participant. The fact is that even if 1000 people sign the collective appeal, the protocol will still indicate 1 proposal received.

When preparing a conclusion, the district commission may consider that for an area with a population of 10 thousand, 1 proposal against the project can be considered a non-critical number, and write in the conclusion: it is advisable to implement the project.

3. If you did not have time for public hearings or did not know about them, but believe that it is necessary to send more collective or individual appeals, then within seven days from the date of the meeting of participants in the public hearings, you can submit comments and suggestions to the appropriate district commission.

4. To make sure that the protocol is true, you need to contact the district commission for a copy of the protocol 7-10 days after the public hearing. It is important to have time to study the protocol before approving the conclusion, since after the conclusion is approved by the chairman of the district commission, it will be more difficult to fight injustice. Minutes of meetings of district commissions are posted on the websites of the Prefectures. The minutes indicate what decisions were made based on the results of certain Public Hearings.

5. Often, green spaces are “cut off” from the territory of land plots of residential buildings for the road network (RSN). This also means that after approval of the Land Survey Project and cadastral registration, these plots will be registered as the property of the city of Moscow. Theoretically, then the owner (in fact, officials) can do whatever they want with their property: destroy lawns and widen the road under the windows of residential buildings or arrange paid parking spaces for the cars of everyone. To avoid this, residents need to demand in writing that lawns be returned to the land plot of a residential building, otherwise refuse to recognize the legality of the land surveying project as violating their legitimate interests as owners and users of the land plot.

6. Any references by designers to the presence of red lines of the road network, which they supposedly cannot “transgress,” should not confuse you - this is just a project for now, and if the way the red lines are laid in the project violates your rights, you need to demand sending the survey project for revision in order to remove or move the red lines.

What laws should I refer to?

1. Article 36 of the Housing Code of the Russian Federation.

2. Part 1 of Article 16 of the Federal Law “On the entry into force of the Housing Code of the Russian Federation.”

3. Article 43, paragraph 4 of the Urban Planning Code of the Russian Federation (the location of the boundaries of the created and changed land plots is carried out in accordance with urban planning regulations and norms for the allocation of land plots for specific types of activities, established in accordance with federal laws, technical regulations; NB (!) Previously the norm was the following content - the sizes of land plots within the boundaries of built-up territories are established taking into account the actual land use and urban planning standards and rules that were in force during the development of these territories).

4. Joint Resolution No. 10/22 of April 29, 2010 of the Supreme Arbitration and Supreme Courts of the Russian Federation (section “Disputes over rights to land plots on which apartment buildings are located”).

5. According to clause 2.3 of SanPiN 2.1.2.2645-10, the land plot must provide for the possibility of organizing a local area with clear functional zoning and placement of recreation areas, playgrounds, sports areas, utility areas, guest parking for vehicles, and green spaces.

6. Subparagraphs f) and g) of paragraph 1 of the Rules for the maintenance of common property in an apartment building, approved by Decree of the Government of the Russian Federation dated August 13, 2006 No. 491,
according to which the common property includes:
- a land plot on which an apartment building is located and the boundaries of which are determined on the basis of state cadastral registration data, with elements of landscaping and landscaping;
- other facilities intended for the maintenance, operation and improvement of an apartment building, including transformer substations, heating points intended to serve one apartment building, collective parking lots, garages, children's and sports grounds located within the boundaries of the land plot on which the apartment building is located.

7. By virtue of paragraph 5.5 of Section 5 “Functional and planning organization of the territory of a residential, mixed residential development site” MGSN 1.01-99, a residential development site consists of the area of the base of the building and the adjacent territory, which includes the following mandatory elements: approaches and entrances to the house, guest rooms parking lots, green areas with areas for games and recreation.

8. Decree of the Moscow Government No. 118-PP dated April 12, 2011, which recognizes the overlap of thousands of sections of the road network (RDN) on residential areas, and states that identified intersections are eliminated “by reducing sections of the RDN,” but stipulates what is being done for plots “previously registered in the state real estate cadastre.”

According to Part 5 of Article 16 of the Federal Law of the Russian Federation of December 29, 2004 N 189-FZ “On the entry into force of the Housing Code of the Russian Federation”:

Currently, the purchase of housing automatically makes the buyer a co-owner of the land plot on which the apartment building is located - of course, if the developer did not violate the law during construction.

As stated in Part 5 of Article 16 of the Federal Law of the Russian Federation of December 29, 2004 N 189-FZ “On the entry into force of the Housing Code of the Russian Federation”:

If the land plot has already been formed (there is a cadastral number), then it ALREADY belongs to the owners of the apartment building premises and the law does not provide for any additional actions to “survey”, “privatize”, or “register” the land plot.

If there are several apartment buildings on a plot of land and the owners of the premises of one or all houses can carry out land surveying, i.e. divide one common land plot into several according to the number of apartment buildings.

If the owners of MKD premises have absolutely nothing to do, they can even register ownership of the land plot in the Unified State Register:

In accordance with paragraph 2 of Article 23 of the Federal Law of July 21, 1997 N 122-FZ "On state registration of rights to real estate and transactions with it" (hereinafter referred to as Law N 122-FZ) state registration of the occurrence, transition, limitation (encumbrance) ) or termination of the right to residential or non-residential premises in apartment buildings is at the same time state registration of the inextricably linked right of common shared ownership of common property. At the same time, a certificate of state registration of rights in connection with the state registration of the right of common shared ownership of real estate objects is not issued to the owner of the premises in an apartment building.

The Ministry of Justice of the Russian Federation, in letter No. 04/3201-EZ dated April 21, 2006, clarified that if rights to property subject to state registration arise from the moment of their state registration (clause 2 of Article 8 and Article 223 of the Civil Code of the Russian Federation ), then the state registration of these rights is of a legal nature, and in the case where the right to real estate, subject to state registration, arises in accordance with federal law not from the moment of state registration (clause 5 of article 16 of Federal Law No. 189-FZ) , state registration is of a legal nature.

Thus, housing legislation establishes the emergence of the right to the common property of an apartment building, including a land plot, regardless of the presence of state registration of the right of shared ownership of the common property of an apartment building.

Thus, the owners of premises in apartment buildings have the right of common shared ownership of the land plot on which such houses are located, in accordance with Article 16 of Law N 189-FZ, arises from the moment the land plot is formed and its state cadastral registration is carried out. At the same time, state registration of the right of at least one owner of residential or non-residential premises in an apartment building (and simultaneous state registration of the inextricably linked right of common shared ownership of common property in an apartment building, including a land plot) is a legal act of recognition and confirmation by the state the emergence of rights of owners of premises in an apartment building to the specified property, including a land plot.

When registering ownership of a land plot in the Unified State Register, subsection No. 3-3 will indicate all owners of apartments who live in an apartment building located on this land plot, but they cannot allocate “their” plot from the common shared ownership, that is, on it will create property with the limitation of a joint easement. In addition, to conduct such an event, the personal participation of 100% of the owners of apartment buildings is required.

Often, the desire of owners of apartment building premises to register their ownership of a land plot is explained by ignorance of the laws, namely:

What, according to Article 273 of the Civil Code of the Russian Federation,“when the ownership of a building or structure that belonged to the owner of the land plot on which it is located is transferred, the ownership of the land plot occupied by the building or structure and necessary for its use is transferred to the acquirer of the building or structure.”

And most importantly, the Housing Code of the Russian Federation clearly states that the land under an apartment building is the collective property of the residents.

Article 36 of the RF Housing Code. Ownership rights to common property of premises owners in an apartment building:

1. The owners of premises in an apartment building shall own, by right of common shared ownership, the common property in the apartment building, namely:

4) the land plot on which this house is located, with elements of landscaping and improvement, other objects intended for the maintenance, operation and improvement of this house and located on the specified land plot. The boundaries and size of the land plot on which the apartment building is located are determined in accordance with the requirements of land legislation and legislation on urban planning.

Since the land plot under the house is the common property of the owners of the premises in an apartment building from the moment they acquire ownership of such premises, the ownership of the land plot under the apartment building is legally linked to the ownership of the premises in this building and follows its fate. You can purchase premises in an apartment building only with a share of the land plot. And sell - only with a share. (Article 38 of the RF Housing Code).

So, when shareholders acquire ownership of apartments, the transfer of ownership of a land plot occurs automatically, by force of law.

Therefore, there is no need to additionally confirm your right to a land plot by registering it with the Unified State Register.

To find the cadastral number of a land plot, you can use the public cadastral map of Russia

If, after reading the article, you still have an irresistible desire to register the right to common property in the Russian Register, then you should take the following steps:

According to paragraph 1 of Art. 36 Housing Code of the Russian Federation, paragraph 2 of Art. 36 of the Land Code of the Russian Federation, the owners of premises in an apartment building own by right of common shared ownership the land plot on which the house is located. The plot is recognized as indivisible. The owner's share in the right of common ownership of the property is proportional to the size of the total area of the premises belonging to him and cannot be allocated in kind.

Based on the decision of the general meeting of owners, any person authorized by the meeting (applicant) has the right to apply to government authorities with an application for the formation of the land plot on which the apartment building is located (Article 16 of the Federal Law of December 29, 2004 No. 189-FZ “On the Entry into Force Housing Code of the Russian Federation").

The boundaries of land plots on which apartment buildings are located are established on the basis of survey projects. From the moment of state cadastral registration, the land plot on which the apartment building is located and other real estate objects included in the building are transferred free of charge into common shared ownership.

Over the past few years, there has been considerable debate as to whether the “privatization” of a land plot for an apartment building is beneficial for owners of residential and non-residential premises. At the moment, there is already enough information, incl. jurisprudence to draw a clear conclusion. Here are the conclusions based on our experience in registering land under apartment buildings. Pros and cons of design.

Legal grounds for registering land for apartment buildings.

In accordance with Art. 36 of the Land Code of the Russian Federation in existing buildings, land plots on which structures that are part of the common property of an apartment building, residential buildings and other structures are located are provided as common property in the common shared ownership of homeowners in the manner and under the conditions established by housing legislation. Thus, according to Article 16 of the Housing Code of the Russian Federation, the land plot on which an apartment building and other real estate objects included in such a building are located is the common shared property of the owners of the premises in the apartment building.

If the land plot on which the apartment building and other real estate objects included in such a building are located was not formed before the Housing Code of the Russian Federation came into force, on the basis of a decision of the general meeting of owners of premises in the apartment building, any person authorized by the said meeting has the right to apply to state authorities or local authorities with an application for the formation of a land plot on which an apartment building (MKD) is located.

The formation of the land plot on which the apartment building is located is carried out by state authorities or local governments.

At what point does ownership of land under an apartment building arise?

From the moment of formation of the land plot and its state cadastral registration a plot of land on which an apartment building and other real estate objects included in such a building are located, transfers free of charge into common shared ownership owners of premises in an apartment building.

Thus, the provisions of the Constitution of the Russian Federation are implemented in the Housing Code of the Russian Federation and the Federal Law “On the Entry into Action of the Housing Code of the Russian Federation”. Namely, taking into account the legal nature of the common property of the owners of premises in an apartment building, the legislator included legal regulation of relations regarding the transfer to the common shared ownership of the owners of premises in an apartment building of the land plot under this house as an element of the common property of such an apartment building. Consequently, the right of the owners of the premises of an apartment building to a land plot follows directly from the right of ownership of residential or non-residential premises in such a building.

How to register a land plot for an apartment building?

For the free transfer of a land plot on which an apartment building and other real estate objects included in such a house are located into the common shared ownership of the owners of the premises in such a house, it is necessary and sufficient for state authorities or local government bodies to form this land plot in accordance with the requirements land and town planning legislation, as well as its state cadastral registration. Despite the fact that neither a special decision of public authorities on the provision of a land plot, nor state registration of the right of common shared ownership of this land plot in the register of rights to real estate (USRN) is required with it.

The main problems of the owners, as well as their house management organizations, boil down to the fact that at the time of acquiring common ownership rights to a land plot, the owners are happy that they are provided with land for free, but about the consequences, incl. financial, they, unfortunately, do not think about such property.

Pros and cons of registering land for MKD.

If we systematize the pros and cons for owners of premises in apartment buildings, it will look like this.

ADVANTAGES of registering land for MKD:

Additional guarantees.

Without the consent of the owners, it is impossible to use the land, such as laying new roads, construction, organizing commercial and other enterprises (car washes, parking lots, garages, etc.) on the territory owned by the owners of the apartment building.
Without the consent of the owner, any alienation of part of the land plot is not possible, nor is the demolition (construction) of any buildings possible.
It is impossible to seize a land plot for municipal (state) needs free of charge.

Additional possible profit.

Owners have the right to rent out part of the land plot or provide it for other paid use. In addition, the presence of land ownership significantly increases the cost per square meter of residential or non-residential premises.

Ease of use.

Owners have the right to perform various actions with the land plot, incl. aimed at its improvement, construction of additional structures, playgrounds and other buildings necessary to ensure the normal functioning of the apartment building.

DISADVANTAGES of registering land for MKD:

Taxes.

Since 2015, owners of premises in apartment buildings have been exempted from paying land tax in accordance with Art. 389 Tax Code of the Russian Federation. However, it should be borne in mind that the presence of a share in the right to land may increase the cadastral value of the premises itself, and, consequently, the tax burden.

Responsibility.

Owners are required to be responsible for the maintenance of their land. Consequently, the responsibility for maintaining, repairing, cleaning roads, landscaping elements (lawns, playgrounds, green areas, parking spaces, etc.) lies with the owner, and, therefore, liability measures can be applied to him. The owner (his DUK) may be fined for not removing snow, for not removing garbage, etc.

Price.

As a minus, one should also point out the increase in the cost per square meter of premises, since this narrows the circle of buyers and tenants for the owners, as well as an increase in the costs of maintaining the common property of the apartment building.

As we see, the number of advantages outweighs the number of disadvantages, however, at second glance, obvious advantages can become negative.

Unobvious disadvantages of registering land for MKD.

As an argument for speedy registration of land ownership, some residents cite this - the possibility of building useful and necessary facilities for citizens in the local area. But here you need to know and remember that any territory in the city has its own purpose and on the site under an apartment building, for example, no one will be allowed to build a stall selling alcoholic beverages. The possibilities for using local areas are very limited. This is due to many factors: crowded residential buildings, urban planning restrictions and regulatory and technical requirements, as well as other factors.

In addition, some people consider an increase in the market value of housing after registration of common ownership of land as a plus of registering land ownership. Actually this is not true. The share in the land plot under an apartment building itself exists only hypothetically: it cannot be sold, donated, or received a loan for it. The land plot is inseparable from the residential building, that is, it is deprived of independent negotiability. Just as the part of the common property owned by the owner is inseparable - a piece of the landing or a square decimeter of the attic.

Summarizing the discussion about the usefulness or harm of privatization of the local area, one should remember one very significant circumstance: the transfer of land plots into ownership under MKD will first of all reduce the financial burden of the local government, and accordingly, it is very profitable for the authorities to transfer the costs of maintaining home areas to citizens. It was for this purpose that public hearings were held in the city of Nizhny Novgorod on the formation of a land plot, which subsequently became big surprises for citizens, since the authorities tried to register the largest possible plots for small residential buildings, including the territory of internal passages, communication zones, etc.

Recommendations. If the land plot for an apartment building has not yet been formed, think about its boundaries and the costs of its maintenance. It must be remembered that on lands occupied by communications, it is impossible to build permanent structures, but any temporary ones, incl. and lawns can be destroyed at the same time. If the plot has already been registered, it is probably worth thinking about to minimize the tax burden.