Who under the law owns the Earth on which the residential building stands - the owner land plot Or a new owner at home? Such a "land-house" question was to such an degree acute and painful, to judge the dispute could only Supreme Court. The decision made by him on one private dispute may be important not only for those citizens who directly participated in these judicial processesBut the rest of the owners of the Earth and private house-building.

The essence of the resulting conflict is simple. In the Krasnodar Territory, a citizen turned out to be the owner of a land plot and a residential building standing on it. Real estate has moved to him by inheritance. The new owner of the domestic gave the house to the woman, and she issued the right of ownership and registered her property in the state market. Moreover, the lady suacised at the same time their rights and the house, and to the land on which this house is worth. After issuing all the documents, the citizen of the house safely sold.

The owner of the Earth went to district Court With a complaint about the actions of a woman and a new owner of the house. He demanded to cancel the record in the Unified State Register of Rights on Registration of the Land and Recognize the deal of women and its buyer for the sale of land and houses invalid. He believed that only he had ownership of land at home, and the woman could only dispose of the structure, not touching his plot.

The district court fully satisfied the claimant's claims, returning to him the land. The Krasnodar Regional Court did not agree with this decision and canceled the decision of the district. But the decision of the second instance has already canceled the Presidium of the Regional Court. He returned to the beginning and said that the district court, going to meet the land owner, was completely right.

As a result, it came to the Supreme Court, who said - no, was not the right to the Presidium of the Regional Court, and such land disputes should be solved otherwise.

Here is the logic of the country's chief court. So, the owner through the gift handed over a woman's house. A plot on which the house is worth, the owner did not pass.

A woman registers the ownership of the house and land. Then real estate sells. The District Court, accepting the lawsuit from the owner of the land, agreed to return the earth to the man. The second instance called this solution to erroneous. Because the question of the recognition of the rights of a man on the land plot on the agenda of the meeting of the district court did not stand. There it was about the cancellation of registration of the house and land, as well as the recognition of the illegal agreement for the sale of the house with the Earth. And the requirements for the recognition of the ownership of a man on the land in the lawsuit was not spelled out. But for some reason, the District Court decided this issue. Judicial College The regional court indicated such a mistake and the district decision canceled. The Presidium of the Regional Court returned everything to the "district level" and confirmed that the right to a disputed land belongs to a man.

The Supreme Court did not agree with such verdict and indicated the judges to the Land Code. It establishes the principle of unity of fate land plots and firmly related objects. This article 1 Paragraph 1 subparagraph 5. According to this article, all "objects are firmly related to the land plot follow the fate of land plots," except in cases established by the Federal Law.

In another article - the 35th same Land Code The following is literally recorded: when switching the right to the building, structure, construction, located on a land plot, to another person, it acquires the right to use the appropriate part of the land plot engaged in the building, and necessary for its use. Moreover, the land at home and about uses the new owner under the same conditions and in the same amount as the former owner.

By the way, the Supreme Court stressed, exactly the same position also contains in the Civil Code. This is Article 552. It says that when selling real estate on a land plot that does not belong to the seller on the right of ownership, the buyer acquires the right to use the part of the land plot under the same conditions as the seller of real estate had.

In addition, the Supreme Court reminded the colleagues, there is another federal law. It is also called "On the introduction of the Land Code". And it also provides for the citizens to whom the ownership of buildings, facilities and structures that stand in state or municipal land are entitled to register ownership of such sites, except when the Earth cannot be provided in private property.

Supreme Court of all these legal norms It makes an unequivocal conclusion - the right of life and inherited possession of a part of the land plot engaged in the building is becoming in order of succession from the previous owner to a new one at the same time as the acquisition of the ownership of the building.

So, having received the house, the woman received a lifetime ownership of the site on which he is worth. In the course of the analysis of this civil case, it was unexpectedly turned out that a man who gave the Dama House, did not make its land plot to the property. He considered himself the master of the site, but he did not have the corresponding document. So the right to one-time, free acquisition in the ownership of the Earth also passed to the lady. The Supreme Court rose to the side of a new hostess, which by law was right.

Compliance with the principle of unity of the fate of land and real estate when making transactions

E.A. Kindeeva

head of the Department of State Registration of the Russian Institute of State Registrars under the Ministry of Justice Russian Federation MG Piskunova

professor of the Department "Management and Finance" Institute for the Development of Additional Vocational Education

One of actual problems The applications and development of legislation on real estate is the "principle of a unified real estate object", according to which land plots and real estate objects located on them are one. The mention of the term "principle of a single facility" is contained, for example, in the Federal Law of July 21, 1997 No. 122-FZ (editors Federal Law Dated June 9, 2003 No. 69-FZ) "On state registration of rights to real estate and transactions with it" (hereinafter - the Law on Registration of Rights), Decree of the Government of the Russian Federation of February 2, 1996 No. 105 (as amended from August 21, 2000 year) "On approval of the Regulations on the procedure for establishing land use boundaries in the development of cities and other settlements", rules for conducting a unified state register of rights to immovable property and transactions with it, approved by Decree of the Government of the Russian Federation of February 18, 1998 No. 219 (editors from 3 September 2003), Program of the socioeconomic development of the Russian Federation, approved by the Decree of the Government of the Russian Federation of July 10, 2001 No. 910-p.

However, Russian civil legislation as a whole, it is noted by O.M. Trump and A.A. Makovskaya, - on the one hand, considers the sites and buildings located on them as independent objects involved in the turnover are quite independent of each other, for which various legal regimes can be installed, on the other - as physically and legally connected to each other. real Estate1.

Practice has shown that various legal situations arise in the process of property turnover. So, for example, the building is in the property, the plot - in the lease; In one indivisible area - several real estate objects belonging to different persons, and so on. This suggests that the building or premises cannot be considered as an inseparable improvement in the land plot. Therefore, in the concept of development civil law The real estate approved by the Council under the President of the Russian Federation on codification and improving civil legislation contains the following position: "Currently there is no sufficient economic and legal grounds for legislative consolidation in civil law

1 Trump O.M., Makovskaya A.A. "Unified Fate" of the land plot and located on it other objects of real estate (reality and prospects) // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2003. No. 2.

the concepts of the "unified object of real estate" as a single object of civil rights and any common common object of civil turnover "2.

Sometimes it is unreasonably believed that the principle of the "Unified Real Estate Object" is enshrined by the Land Code of the Russian Federation of October 25, 2001 (hereinafter referred to as the Land Code, the RF Code), while the Land Code, on the contrary, was consolidated by the distinction of the legal regime of land and real estate, regulation rules Their turnover, for example, in Article 36, determining the procedure for the acquisition of real and obligatory rights to the indivisible portion of persons with different legal capacity. The Land Code has not established the "principle of a single object", and the principle of the unity of the fate of the land plot and the real estate located on it. All objects are fully associated with land plots follow the fate of land plots, with the exception of cases established by federal laws (clause 5 of Article 1 of the RF). The alienation of the building, structure, structures located on the land plot and belonging to one person is carried out together with the land plot; It is not allowed to alienate the site without objects on it if they belong to one person (clause 4 of Article 35 of the RF).

As for the "principle of a unified real estate object", noted in legislation on state registration, this is no more than the principle of conducting a single state register of rights to real estate and transactions with it (USRP), and not a rule that is mandatory for participants of the property turnover. Sections of the EDRP, containing entries on buildings, should be located in the archives of justice institutions on state registration of rights (hereinafter referred to as Justice institutions) after sections with land recordings. Records on rights and transactions with buildings and land plots are made to special sections, which confirms the difference in the legal regime of these objects.

The principle of "unity of the fate of land and real estate" defines the requirements for real estate transactions, firmly related to land, buildings, structures and their parts. At the same time, when studying the norms of the land code regarding the regulation of specific relations, it becomes obvious that the proper sequence in the implementation of this principle is absent. Therefore, the purpose of this publication is practical recommendations According to the design of transactions, taking into account the requirements of civil and land legislation, as well as the rules of state registration of rights.

1. Transition of ownership of land

with real estate alienation

1.1. According to Articles 273 and 552 Civil Code The Russian Federation (Civil Code of the Russian Federation) in the alienation of the building, facilities or other real estate simultaneously with the transfer of property rights transferred to part of the land plot, occupied by real estate and necessary for its use. These norms are dispositive: real estate alienation agreement can be determined by the land-held land. If this right has not been determined, the ownership should go to the acquirer.

The Land Code established the priority of the norms of land law to the norms of civil legislation in regulating relations to use, ownership and disposal of land plots (clause 3 of Article 2 of the RF RF). The transfer of ownership of the land plot with any alienation of real estate is an imperative norm. According to clause 4 of Article 35 of the RF RF, the alienation of the building, structure, structures located on the land plot and belonging to one person is carried out only with the land plot. The division of fate is not

2 Private Law Research Center. Moscow. February 2003. P. 13.

3 Trump O.M., Makovskaya A.A. Decree. op.

movement and employed of the land plot according to paragraph 4 of Article 35 of the RF RF is allowed only in the following cases:

1) alienation of the part of the building, structure, structures, which cannot be highlighted in nature together with a part of the land plot;

2) the alienation of the building, structure, structures on the land plot, withdrawn from turnover in accordance with Article 27 of the RF RF.

In accordance with paragraph 3 of Article 27 of the RF RF, land plots engaged in the following federal property objects are seized: state natural reserves and national Parks; The objects of the permanent activity of the Armed Forces, the Border Service, the Federal Security Service, correctional labor and hospital institutions, military and civil damage, protective and security facilities, communication lines and communications. These facilities are limited in the turnover of the state program for the privatization of state and municipal enterprises in the Russian Federation, approved by the Decree of the President of the Russian Federation of December 24, 1993 No. 2284. Therefore, the transactions with them are impossible, as well as the transfer of rights to the land involved. The exception is made for some objects located on the lands of specially protected natural territories. According to paragraphs 6 and 8 of Article 95 of the Civil Code of the Russian Federation in some cases within the boundaries of national parks, the availability of owners and other users of such land are allowed.

If the property is limited in the turnover of the land plot, its alienation is carried out together with the land plot, provided that the federal law is allowed to provide such a land plot to the property of citizens and legal entities (paragraph 4 of Article 35 of the RF RF). Land-bound plots are also listed in Article 27 of the RF RF. These include areas within the most protected natural territories, forest fund, in closed

all administrative and territorial formations and so on.

Federal Law of July 24, 2002 No. 101-FZ "On the turnover of agricultural land" regulates the turnover of land plots from agricultural land. Its action does not apply to areas from agricultural land provided to citizens for individual housing, garage construction, conducting personal subsidiary and country farm, gardening, animal husbandry and gardening, as well as land plots engaged in buildings, buildings, structures. The turnover of agricultural land regulations engaged in real estate is regulated by the Land Code and is not burdened by the rules of the land turnover of this category.

According to paragraph 4 of Article 35 of the RF RF, alienation of the share in the right of ownership of real estate, located on the land plot belonging to the right of ownership to several persons entails the alienation of the share in the right of ownership of the site, the size of which is proportional to the share of ownership of the building, structure, Construction. The seller (other alpoistor) of the share in the right to real estate should simultaneously convey and belonging to it in the right to the site, the size of which is determined by the right-ending document on the Earth and is expressed as a fraction. According to the rules of civil law (Art. 245 of the Civil Code of the Russian Federation), the share in the right is determined by the agreement between the co-owners, and not the area of \u200b\u200breal estate. For example, if the seller according to the right-point documents belongs to 1/2 share in the right of the total ownership of the residential building and 1/3 of the share in the right to the land plot of 24 acres, it cannot pass, 1/2 share in the right to a plot or share of the plot area 8 acres.

1.2. The rule of mandatory alienation of the land plot does not apply to sellers of residential and non-residential premises in apartment buildings and administratives

native buildings that are not individual land users and the owners of the plots. However, in order to avoid land disputes, during the alienation by the owner of the building of its part or premises, it should be determined legal regime Land area busy building. If the owner of the building belongs to the right of ownership of an indivisible area, then in the contract of alienation of the part of the building or premises should be established shared property on the site.

Built-in attached non-residential premisesThe part of the building or an individual residential building may be independent real estate objects that have durable communication with the Earth. If their owners are owners of land plots, then with the alienation of the real estate, the alienation of the land plot is mandatory.

1.3. The ownership of the land plot of real estate acquirer is subject to proper design. Act general rule The emergence of real estate rights from the date of state registration. According to Article 131 of the Civil Code of the Russian Federation, the ownership and other real real estate real estate are subject to state registration. In accordance with paragraph 2 of Article 8 and paragraph 2 of Article 223 of the Civil Code of the Russian Federation, the rights to the property subject to registration occur since the registration of the relevant rights to it, unless otherwise established by law. Articles 552 and 273 of the Civil Code of the Russian Federation and articles of the 350 Code of the Russian Federation do not establish a different moment of ownership of a land plot other than the moment of state registration. The norms of the Civil Code of the Russian Federation only indicate the alienation of real estate as a possible, and paragraph 4 of Article 35 of the RF RF - as a mandatory basis for the transfer of the right to the land plot. The transition of the right to the site occurs on the basis of the transaction, and not by virtue of the law or in order of succession.

Accordingly, the automatic acquisition of rights to the land plot when making a transaction with located on it

real estate law is not provided. The ownership of the site should be transferred simultaneously with the alienation of real estate and registered with the USRP. Ownership of real estate and plot is certified by two certificates of state registration.

2. Formation of land in the process of cadastral accounting

2.1. In accordance with paragraph 2 of Article 6 of the RF RF, land plot as an object land relationships - This is part of the surface of the Earth, the boundaries of which are described and certified in installed manner. Land plots belong to a special kind of immovable property. Earth is incomplete and uncomfortable natural resourceFrom which you can form civil rights facilities. It is impossible to acquire the right to the land plot in the primary way - by creating, as provided for in paragraph 1 of Article 218 of the Civil Code of the Russian Federation, for artificial real estate facilities - buildings and structures. Initially, the land can only be allocated on the ground, to form from state or municipal land and provide at a certain right (Article 30 of the RF RF). In the future, land plots can be formed as a result of separation by the owner of one section into several sections, allocations from the site of another or merging by the sections bordering each other. So, when buying neighboring sites, one new land plot is formed as a result of their merger. With the alienation of a part of the land plot as a result of its separation, two new land plots are formed.

According to Article 1 of the Federal Law of January 2, 2000 No. 28-FZ "On State land Cadastre"(Hereinafter referred to as the land cadastre) State Cadastral Accounting is to describe and individualize areas in the Unified State Register of Land (USGZ), resulting in each site

it receives such characteristics that allow it to unambiguously allocate it from other land plots and implement its qualitative and economic assessment. Therefore, the acquisition of rights, making transactions, and their state registration is possible only after the cadastral accounting of the site, regardless of the method of its formation - the provision, separation, allocation, mergers, and so on. For example, paragraph 1 of Article 37 of the RF RF, it was established that only land plots that have passed state cadastral records can be the object of sale and purchase.

2.2. Decree of the Government of the Russian Federation of July 18, 2000 No. 537 "Questions of the Federal Land Cadastre Service of Russia" found that federal organ executive power According to state management of land resources, carrying out functions for the maintenance of the State Land Cadastre and state accounting located on land and firmly related objects of real estate, under land management, state cadastral assessment of land, earth monitoring and state control For the use and protection of land is federal Service Land Cadastre of Russia (RuszhenkaDaster).

As a result of the state cadastral accounting, a cadastral map (plan) of a plot is issued to an interested party containing the following main information about the plot: Cadastral number, location (address), area, land category and the allowed use of the land plot, Description of the boundaries of the site and its individual parts, economic characteristics (including the size of the land fees), qualitative characteristics (including fertility status indicators for some categories Lands), the presence of real estate facilities. The cadastral number of the land plot is assigned in accordance with the Decree of the Government of the Russian Federation of September 6

2000 No. 660 "On approval of the rules of cadastral division of the territory of the Russian Federation and the rules for assigning cadastral numbers to land plots."

Thus, the land plot and the real estate located on it must be a single object of cadastral accounting. Therefore, in cases of acquiring rights to the built-up land plots (for example, when redeeming or leased land under buildings), under land management and cadastral accounting, it is necessary that real estate objects are reflected in the plan of the site.

The fee for conducting state cadastral accounting with applicants is not charged (paragraph 8 of Art. 19 of the Land Cadastre Law). The real rights and limitations (encumbrances) are indicated in the cadastral plan if there are information about them in the cadastral accounting authority. The rules for registration of the cadastral plan of the land plot of GZK-1-TO-04-01-01 were approved by Ros-Zemkadaster on April 10, 2001. According to these rules in the cadastral plan necessary for state registration of rights, information about the copyright holders is not made.

2001 No. P / 115 approved requirements for issuing applications on the formulation of land plots for state cadastral registration of GZK-1-T.0-06-02-01. Interested ruling holders should apply for cadastral accounting of newly formed land plots and submit:

Guidelines;

Documents on the integrity of land plots.

2.3. Before carrying out state cadastral records, it is necessary to conduct a survey of land plots (paragraph 1 of Art. 17, paragraph 2 of Art. 19 of the Law on Land Cadastre). Article 1 of the Land Cadastre Law determines the survey as an event to determine the location and boundaries of the land in the area.

land Management "(hereinafter - the Land Management Act) land management includes measures to form new and streamlining existing land management facilities and the establishment of their boundaries on the ground (territorial land management). Land management is carried out in obligatory In cases of changes in the boundaries, the provision and seizure of sites, the determination of the boundaries of the parts limited to the use of parts. In the implementation of territorial land management, an intertime is carried out, which includes:

Determining the boundaries of the object on the ground and their coordination;

Fastening on the location of the location of the boundaries by land signs and determining their coordinates or compiling another description of the location of the borders;

Making a map (plan) of the land management facility (Article 17 of the Law on Land Management).

Landustacal works are carried out on a contractual basis by citizens and legal entities. According to Article 12 of the Federal Law of December 26, 1995 No. 209-FZ "On Geodesy and Cartography", Decree of the Government of the Russian Federation of May 11, 2002 No. 135 "On licensing separate species Activities »Licensing of geodesic and cartographic activities in the composition of design and survey activities during the implementation of land management and the maintenance of the State Land Cadastre is carried out by the Federal Surveying Service and Cartography of Russia (Roskartography).

2.4. According to paragraph 2 of Article 7 of the Land Cadastre Law, state cadastral records conducted in the prescribed manner before the entry into force of this law is legally valid. Information on previously accounted for land plots is made to the EDRM cadastral accounting authorities (land cadastral chambers, centers) on the basis of materials obtained from land committees. On April 10, 2001, Roszzcadaster approved instructions for its territorial bodies for working on inventory

denia on previously accounted for land plots of GZK-1-TR-11-02-01.

The copyright holder of the land plot, which has passed the cadastral records before the entry into force of the Law on Land Cadastre, has the right to apply to the cadastral accounting authority with a statement to provide information from the State Land Cadastre in the form of an approved sample cadastral plan. Such information should be provided with the rightholder (its representative) for free (paragraph 2 of Art. 22 of the Law on Land Cadastre). Only the cost of copying and delivery by mail is paid (clause 3 of the Decisions of the Government of the Russian Federation of December 2, 2000 No. 918 "On approval of rules for the provision of information of the State Land Cadastre"). Since the land plot was already subject to cadastral accounting, it is not necessary to repeated land management, including the survey and harmonization of borders.

2.5. For state registration of rights and transactions with land, regardless of the time of its acquisition in the establishment of justice, it is necessary to submit a cadastral plan certified territorial body ROSZKADAST-RA. To register further transactions and the transfer of the rights to this area, the re-provision of the Plan is not required (paragraph 1 of Art. 17 of the Law on registration as amended by the Law of June 9, 2003 No. 69-FZ).

3. Determination of the land plot to be transferred during real estate alienation

3.1. To make a transaction, it is necessary to determine the size of the land plot passing to the acquirer of real estate. Articles 273 and 552 of the Civil Code of the Russian Federation we are talking about the transition of the right not to the entire land plot of the seller (other alienator), but only on a part of the site, occupied by the building (construction) and necessary for its use.

Part of the land plot to be transferred to the buyer during the alienation of

movement, can be determined by the seller (other permanent holder), which as the owner has the right to transfer to the acquirer not only busy real estate, but also adjacent to the site of any area, of course, unemployed with other buildings.

According to paragraph 2 of Article 35 and paragraph 3 of Article 33 of the RF RF, the area of \u200b\u200bthe land plot, occupied by real estate and necessary for its use, is determined in accordance with the rules approved in the prescribed manner for concrete activities or in accordance with land use and development rules, land sustainable , urban planning and project documentation. In addition, the property engaged in real estate should not be less than the minimum size set in accordance with the regulatory legal acts Subjects of the Russian Federation or regulatory legal acts of bodies local governments For lands of various targets and permitted use (clause 3 of Art. 20 of the Land Cadastre Law).

3.2. Resolution of the Government of the Russian Federation of February 2, 1996 No. 105 (as editors from August 21, 2000) approved "Regulations on the procedure for establishing land use boundaries in the development of cities and other settlements" 4. The provision was designed to consolidate and provide land plots and firmly related buildings and structures as uniform real estate objects in cities and other settlements, as well as for their registration, taxation and real estate transactions.

Establishment of land use boundaries (intertime) is aimed at establishing the boundaries of the prevailing properties and the formation of new objects in the current development. In accordance with urban-planning standards, master plan and projects, land use and development rules, part should be determined.

land plot engaged in real estate and necessary for its use. For all types of development, all objects included in real estate, entrances and passages to them are included in the boundaries of the land plot, and access to all social engineering and transport infrastructure facilities.

3.3. In the case of alienation, together with the building of the land plot, we are talking about the division of the site into two new sites and the emergence of two new objects of law, or on the allocation of a new site (the occurrence of a new object of law) and the change in the area and the boundaries of the existing site. Landustrial and cadastral work on the formation of new sites should be fulfilled before making a transaction, since the contract must be concluded against clearly designated real estate objects and the area engaged in it.

4. Legal regime of a part of the land

4.1. Parts of land plots that have limitations (encumbrances) or other objects of real estate are formed in the process of state cadastral accounting of the land plot. Parts of the land plot are assigned an account of the cadastral number. Information about parts of the land plot should be reflected in the cadastral plan in graphical and text form.

4.2. Part of the land can not be object real rights. Obviously, part of the land plot cannot be owned by another person than the owner of the entire site. Therefore, the alienation of the part of the land plot should be preceded by cadastral works - the formation of a new land plot as an object of real rights.

4.3. At the same time, part of the land plot may be subject to commitment - subject rental contracts,

4 Meeting of the legislation of the Russian Federation, 1996, No. 6, Art. 592.

mortgages, loans (gratuitous urgent use) Without allocating it into an independent real estate object. The owner of the site is entitled to transfer to use or laid not all the plot, but only its part. A properly formed and reflected in the cadastral plan of a whole land plot, a part indicating the area, location and the accounting cadastral number corresponds to the criterion of an individually defined thing, which can be the object of lease or urgent use (Art. 607 of the Civil Code of the Russian Federation).

As established by clause 2 of Article 26 of the Law on Registration of Rights, if the land plot is leased, to the lease agreement, represented by the Justice Establishment, is attached to the plan (drawing of borders) of the land plot, indicating its part, leased. In this case, the section of the USRP, formed for a whole land plot, is made to rent a lease of the specified part. Thus, the rights of the landlord - the owner of the entire site - burden the rent of part of the site.

However, in the case of the alienation of a part of the land plot, for example, when redeeming leased property, the appeal to the pledge or during real estate alienation (which was considered earlier) part of the land plot should be formed as an independent area by allocating (separation).

A part of the land plot may be used in the use of a common property participant in accordance with Article 247 of the Civil Code of the Russian Federation. In this case, in the implementation of state cadastral accounting regarding such a part, it is indicated that it "is in the use of a common property participant" (clause 6.5 of the procedure for conducting a state register of land in the cadastral district, approved by order of Roszez Cadastre dated June 15, 2001 No. P / 119 ). Features of determining the procedure for the possession and use of the area of \u200b\u200bagricultural land owned in the share ownership of the Federal Law "On the Turnover of Agricultural Land".

4.4. Part of the land plot may be a sphere of servitude. When establishing a servitude, for example, to ensure passage and driving through the adjacent plot, gaskets and operation of power lines, communications and pipelines (Article 274 of the Civil Code of the Russian Federation), the passage zone of such linear structures on the land plot is indicated on its cadastral plan in the form of a part of the site with burden . According to paragraph 2 of Article 27 of the Law on Registration, if the servitude refers to part of the site, a cadastral plan of the site is required to register a servitude, which marks the scope of the servitude. However, such part is not an object of servitude as a real law. The service of the servitude is the entire land plot, and the part of the site described in the cadastral plan only defines the boundaries of the use of the stranger.

5. Separation of land

5.1. According to paragraph 2 of Article 6 of the Land Code, the land plot, which can be divided into parts, each of which forms an independent land plot. Since the formation of land plots is carried out in the process cadastral worksIt can be said that the section of land plots is carried out through cadastral accounting.

5.2. When separating areas, despite the disappearance of the object, the right remains, the person becomes the owner of two land plots. Land plots-free real estate objects, of which owners can form (allocate, divide) any number of new sections belonging to them (taking into account land use restrictions and minimal size). Thus, public owners can act and the Russian Federation, the constituent entities of the Russian Federation and municipal members. For example, in the property of the Russian Federation there is a plot of 100 hectares, from which the plot is allocated and sold

2 hectares. As a result of such a division, the right of federal property to a plot of 98 hectare does not stop.

Article 235 of the Civil Code of the Russian Federation shows the following grounds for termination of ownership: alienation, refusal of property rights, death or destroying property. The transformation of the land site as an object of cadastral accounting is not the death or destruction of property. Land plots - an uncomfortable and non-profitable type of property, the holding of cadastral works does not entail the termination of the right to land. Even if you qualify the separation by the owner of the site belonging to him as a one-way transaction, it also does not entail the termination of rights, since this is not an alienation transaction5.

5.3. When dividing plots, the following requirements must be followed:

1) Saving the category of land. According to paragraph 2 of Article 6 of the RF RF, it is divisible to a land plot that can be divided into parts, each of which forms an independent land plot, which may be allowed to be allowed without transferring it to the lands of a different category;

2) compliance with the minimum size of the plot. Article 33 of the Land Code determines the procedure for establishing limit (maximum and minimum) dimensions of the areas provided. The limit dimensions of the sections for country construction, the maintenance of the peasant (farmer) economy, gardening, gardening, and in general areas from agricultural land are established by the laws of the constituent entities of the Russian Federation (paragraph 1 of Art. 33 of the RF RF, paragraph 1 of Art. 4 of the Federal Law "On Turnover Agricultural land "). Compliance with the minimum size of agricultural land plots is required not only with the primary provision of a plot from state or municipal lands, but also with the further transaction with copyright holders.

The limit dimensions of the plots for the sub-economy and individual housing construction are established by the regulatory legal acts of local governments.

For example, in accordance with the Law of the Moscow Region of June 17, 2003 No. 63/2003-03 "On the limiting sizes of land plots provided to citizens in the city's territory" maximum dimensions plots for the peasant farming (KFH) - 40 hectares; Gardening - 0.15 hectares, gardening - 0.10 hectares, country construction - 0, 25 hectares. Minimum sizes for KFH - 2 hectares; Gardening and country construction - 0.06 hectares; Gardening - 0.04 hectares.

For other purposes, the limit dimensions of the plots are established in accordance with the rules approved in the prescribed manner for specific types of activities or in accordance with the rules of land use and development, land management, urban planning and project documentation (clause 3 of Article 33 of the Russian RF);

3) Compliance with the rules of urban activity is of fundamental importance for sites in urban development.

Unaked land can be divided, taking into account compliance with its permitted use and minimal size. The procedure for the use of land settlements in accordance with the zoning of their territories is determined by land use and development rules approved by legal acts of local self-government, and for the cities of Moscow and St. Petersburg - the laws of these subjects.

Urban planning requirements for the use of land plots in urban and rural settlements are established by the Urban Planning Code of the Russian Federation of May 7, 1998 No. 73-FZ. When dividing land or changes in their borders and parameters, red lines are observed, the construction regulation lines and the requirements of urban planning

5 Enclosed by participants of the general ownership agreement on the division (share of share) is a transaction, entailing the termination of the right of common property (Art. 252 of the Civil Code of the Russian Federation).

regulations K. minimum dimensions Land plots. In the event of division of real estate objects, conditions must be provided for the functioning of their parts as independent real estate objects (Art. 56 of the City Planning Code of the Russian Federation).

The divisibility of the built-up land plots is determined by the possibility of the formation of the sections necessary to use real estate. If one property object is located on the site, the section of which in nature is impossible without the formation of firmly related parts of the object, then such a plot of editors. 6 As a rule, indivisible land plots are engaged in one facility of urban planning activities - an apartment building (including non-residential premises) , manufacturing and administrative buildings, since it is impossible to highlight an apartment or a non-residential premises in nature, say, on the fifth floor of the building along with a part of the land plot. It is in such cases that the norms of paragraphs 3 and 4 of Article 36 of the Land Code applies relating to the regulation of legal relations about the indivisible land plot between the owners of the premises in the building on it.

For extended, so-called linear structures - roads, power lines, pipelines - the principle of unity and indivisibility of the site under the object not applicable. Such objects of real estate are created precisely in order to associate various territories, ensure the delivery of energy over long distances. The passage of linear objects on many sites is determined by their material nature and economic meaning. For linear objects, for the operation of which constant access is not required, it is recommended not to allocate separable areas (for example, for each LPP support), and establish serviles or other restrictions on land rights (Articles 23 and 56 of the RF RF).

Since the separation is carried out through cadastral accounting, compliance with these criteria for the divisibility of land plots should be checked precisely in the process of land management and cadastral works.

6. Requirements for the Treaty of Real Estate Page with the Land

6.1. Agreement on the transaction-settlement transfer of real estate and employed by the land plot - is essential condition contract.

6.1.1. According to Article 554 of the Civil Code of the Russian Federation, data must be specified in the contract, allowing to definitely establish immovable property to be transferred to the Buyer under the Agreement, including data that determines the location of real estate at the corresponding land plot or as part of another real estate.

The property should be described in accordance with the requirements of Article 18 clause 1 and paragraph 6 of Article 12 of the Law on Registration of Rights. Must be indicated:

View (name) of the object - Building, Construction, Residential Building, garden house, cottage, garage, part of the building, non-residential premises, part of the house;

Address (location);

Litera or builds of buildings in case of several objects under one email address;

Floors;

Floor and rooms of rooms on a floor plan;

Area.

These characteristics must match the plan ( technical passport) Organizations technical inventory (BTI). If the subject of the contract is the transfer of a share in the right of common property, the size of the share (in the form of a fraction) and the data on the whole object of real estate are indicated.

6 State Cadastral Accounting and Registration of Rights to Lands. Popular manual. M.: Federal Land Cadastre Service of Russia, 2001. P. 22.

6.1.2. The seller at the conclusion of the contract of sale is obliged to provide the buyer with its information about the burden of land plots and restrictions of its use (paragraph 1 of Art. 37 RF RF). Information about the limitation (encumbrance) of the rights to the land must be included in the sale contract, otherwise, in the registration of the transaction or right of the buyer, it may be denied the founding specified in paragraph 1 of Article 20 of the Law on Registration of Rights - "a person who has Rights, limited defined conditions, accounted for a document without specifying these conditions. " Therefore, the contract must indicate:

Location of the site;

Area;

Cadastral number;

Permitted use of the site;

Explosions of the site and restrictions on its use.

6.2. An essential condition for the contract of sale is the price of real estate (Art. 555 of the Civil Code of the Russian Federation). The price of the property and the price of the plot is recommended separately. This is necessary, for example, to obtain a tax deduction when buying housing. Permissible definition of the price of the contract in the ruble equivalent of the amount defined in foreign currency or conditional monetary units (Article 317 of the Civil Code of the Russian Federation). In this case, the contract price in rubles is established on the actual payments on the day of payment.

The price of the contract with the inventory real estate assessment of the BTI, the regulatory price of the Earth, the independent assessment data, should not be confused. The price of real estate established by the Agreement may be both higher and below the assessment.

The price of the alienated land plot located in private property individuals or legal entities is determined by agreement of the parties. When coordinating the price of the site, you can use the data on the market value or the state cadastral assessment of the land (Article 66 of the RF). Market value of the participation

kA is established in accordance with the Federal Law of July 29, 1998 No. 135-FZ "On Appraisal Activities in the Russian Federation" under the contract between the customer and the appraiser. The State Cadastral Estimation of the Earth is made by Ruszhdastra authorities in accordance with the Decree of the Government of the Russian Federation of April 8, 2000 No. 316 "On approval of the rules for the state cadastral land valuation". The legislation did not establish that the cadastral value of the land plot is a prerequisite for the transaction. However, at the pledge of the land plot, the assessment of the mortgage assessment of the plot should not be lower than its regulatory price (Article 67 of the Federal Law of July 16, 1998 No. 102-FZ "On Mortgage (Pledge of Real Estate)" (as amended from 24.12.2002), Art. 25 of the Law of the Russian Federation of October 11, 1991 No. 1738-1 "On the Plata for Earth"). Information about the regulatory price of the Earth is also necessary for a notary certificate of a transaction with a plot.

The rules of registration of the cadastral plan of the land plot of GZK-1-T.0-04-01-01 provides for the indication of the regulatory price of the Earth. However, in the cadastral plans intended for the institutions of justice, this graph is not filled, therefore, it is necessary to obtain information about the normative price of the Earth to the Cadastral Accounting Authority.

7. The order of state

registration during alienation

real estate with land plot

7.1. To verify compliance with the requirements of the unity of the fate of the Earth and Real Estate, the establishment of justice when registering real estate transactions have the right to refer to the guidelines for the land plot. If the land plot belongs to the alternative on the right of ownership, then, as already noted, the contract must be on the alienation

separations, and its cadastral plan is applied to the documents. The presentation of a guide document on land and cadastral plan is not required if the seller has previously registered the right to the alienated area in the Justice institution. It is enough to indicate in the contract number and date of the right, number and series of certificates of state registration.

7.2. In accordance with paragraph 2 of Article 6 and paragraph 2 of Article 13 of the Law on Registration of Rights before registration of the transaction and (or), the transition of the right requires registration of the rights of the person who has been managed by real estate. An application for registration of the Seller's right can be made simultaneously with the statement of registration of the transaction and the transfer of the right to the buyer. In this case, all registration actions Performed simultaneously during a monthly period, and the register of the Seller's right is free. In other cases, the registration of the previously arising law is charged a fee in the amount equal to half the board established by the subject of the Russian Federation.

7.2.1. In the case of concluding agreements on the alienation of a residential building with a plot of state registration, are subject to:

The ownership of the seller on a residential building (if it has not been registered earlier in the Justice institution);

Contract of sale;

Transfer of the right to the house to the buyer;

Transition to the land plot to the buyer.

7.2.2. In the case of the conclusion of the contract for the sale of the property of non-residential destination (buildings, structures, part of the building, firmly related to land, or built-in and attached non-residential premises) of state registration:

The ownership of the seller on the building (if it has not been previously registered in the Justice institution);

The ownership of the seller to the site (if it was not previously registered in the Justice institution);

Transition rights to the property;

Transition of the right to land.

8. Alienation of real estate together with its part of the land plot

8.1. With the alienation of real estate, not with the whole site, but only with its part of the seller (another right-manner) should appeal to land routes with a statement about the placement of its site, and then to the cadastral accounting authority for registration of areas formed by the division, and get two cadastral plans - the alienated area and the remaining seller (other human rights).

8.2. According to the seller, on the basis of the two new cadastral plans, the relevant changes should be made to register the transaction and the transition of the right to the EDRR, the object is transformed (clause 9 of Article 12 of the Law on Registration of Rights).

The EGRIZ stops (divided) one object of cadastral accounting and there are two new, respectively, the EDRP stops (divided) one and there are two new real estate objects - land plots belonging to one person7. At the same time in the cadastre and registry, it is indicated from which object new objects are formed. When separating objects, the available current records on the right of ownership, as well as on restrictions or encumbrances (collateral, rental, servitude, etc.) are not repaid, and transferred to new sections.

8.3. If the area of \u200b\u200bthe land plot of the seller is much higher than the area of \u200b\u200bthe alienated part, then we can talk about the formation of a new site by output

7 The principle of compliance with these land cadastre and state registration is inherent in many foreign registration systems. See Real Estate Rights Registration Systems. Experience foreign countries / Ed. A.A. Lazarevsky. M.: Foundation "Institute of Economics of the City", 2000. P. 20, 41.

. In this case, the first land plot changes. In the description of this plot to the USS, and then changes may be made to the USRP - new boundaries and a new area decreased after the selection of a new site may be indicated.

8.4. If the seller did not register in the establishment of justice, the previously arising rights to the land plot before it was divided, then after land sustained and cadastral works, he must register the rights to both areas.

8.5. In practice, the institution of justice requires re-registering the right of the seller to the remaining area in the prescribed manner - with the application and payment of the fee, and before the implementation of such registration, it is believed that the right of the seller does not exist for the remaining section, because it ceased due to the separation of the site . At the same time, the re-registration of the right of the seller is carried out: 1) either on the basis of a guide document indicating the availability of rights to the entire area before the sale; 2) or on the basis of the contract for the sale of part of the site;

3) or on the basis of a "one-sided deal" - decisions of the owner on the separation of the site.

Re-registration of the Seller's rights For his remaining plot violates his rights and is unacceptable, because it does not correspond to the real legal situation for the following reasons:

1) Article 235 of the Civil Code of the Russian Federation and Article 44 of the RF RF contain closed lists of grounds for termination of ownership of land plots in which it is not specified by the section owner of the land plot. If the establishment of justice when converting (separation) of the site comes with an entry to the USRP on the right of ownership, it acts illegally: it is unacceptable to deprive ownership of the reasons, not stipulated by law. As noted earlier, one should not identify the cadastral transformation of the land plot with the death or destruction of property. Cadastro-

the work and transformation of the object in the USRP will not end the termination of the right to land;

2) on the basis of the guidelines of the seller, the registration of rights to a whole site before its section has already been carried out, but the establishment of justice illegally repaid a record of the right;

3) the contract of sale confirms the emergence of the buyer's right to the sold part of the site, but not the right of the seller to preserved the plot behind him;

4) civil law does not provide for the emergence of property rights on the basis of decisions of the owner, except for the creation and termination of legal entities. Even if we consider the decision of the owner to a one-way transaction, the right of ownership cannot be discontinued on its basis, since under Article 235 of the Civil Code of the Russian Federation the right of ownership is terminated as a result of an alienation transaction. As a result, after such a "registration", the establishment of justice issues an absurd certificate, where his own decision was specified as the basis of the emergence of the face.

8.6. Consider exemplary actions in the case of real estate alienation with a part of the land.

The seller is owned by the land plot of 24 acres, on which the alienated residential building is located (section No. 1). The seller has a cadastral plan of the plot number 1, the right to which is registered with the USRP. It was decided to sell a residential building together with a land plot of 6 acres (section No. 2), and 18 across an unconcerned area (plot number 3) leave the seller. The procedure for registration of real estate rights is as follows:

Land management and definition of the border between sites No. 2 and No. 3 (intertarization);

Cadastral accounting - separation of section No. 1 and the formation of areas No. 2 and No. 3;

Signing a contract for the sale of a residential building together with land plot number 2;

Presentation in the establishment of justice of cadastral plans of plots No. 2 and No. 3 and others necessary documents With the petition of the seller: a) about amending the USRP due to the division of the land plot; b) on the registration of the transaction (contract of sale) and the transfer of the right to the buyer for a residential building and land plot No. 2; c) about the issuance of a certificate of state registration of the right to the land remaining land number 3;

Making an agency of justice amendments to the USRP - separation (transformation) of section No. 1 at sections No. 2 and No. 3;

State registration of the contract of sale;

State registration of the transition to the buyer of the right to house (with the issuance of the certificate);

State registration of the transition to the buyer of the right to land plot number 2 (with the issuance of the certificate);

Issuance of the seller of the certificate of state registration of ownership of the land plot No. 3 of 18 acres (instead of the previously issued certificate of section No. 1 with an area of \u200b\u200b24 acres).

According to paragraph 9 of Article 12 of the Law on Registration of Rights, the section in section No. 1 is closed in connection with the termination of the existence of such an object. New sections on land plots No. 2 and No. 3 are opening, in which current entries on the ownership of the seller are transferred. The person becomes the owner of two land plots - 18 and 6 acres, but on the basis of one document on the right to a plot of 24 acres. Recording on the right of the seller at the site number 2 is repaid when registering the right of the buyer.

If the seller did not register the previously arising rights of real estate and land plot, instead of an application for amending the USRP and issuing a certificate of land plot No. 2, he must apply for state registration:

a) the rights to the residential building;

b) the rights to the land plot number 2.

c) the rights to the land plot number 3.

9. Alienation of real estate by the person who is not owner of the land

9.1. The alienation of the building on the land plot, located at the seller on the right of constant permanent use or lifelong inherited ownership.

9.1.1. Sale of a building (residential building) without a land plot. When buying a building located on a land plot, located at the seller on the right of constant perpetual use or lifelong inherited ownership, the Buyer should be aware that he will not acquire the right of constant indefinite use or lifelong inherited area. Related rights to land can not be acquired as a result of the transaction. Such rights may arise only on the basis of acts of authorized bodies on the provision of the site or in order of succession - in the reorganization of legal and inheritance of individuals (Articles 265 and 268 of the Civil Code of the Russian Federation). According to Article 20 of the RF RF, the right of constant indefinite use can only be provided to organs state power and local self-government, state and municipal institutions, federal government enterprises. After the introduction of the Land Code, the provision of sections to citizens on the right of life inherited ownership is not allowed at all (Art. 21 of the RF RF).

Since the buyer of real rights to land does not acquire, the seller does not lose them with the alienation of the building. According to Article 35 of the Land Code, the Buyer will acquire only the right to use the site, and then as the owner of the real estate in accordance with Article 36 of the RF RF, he can redeem a plot or take it for rent.

After registering the right of ownership of the building, the execution of the rights of the buyer at an employed land plot includes the following actions:

Land management and cadastral registration of the land plot;

Customer's appeal to authorized

a body of the executive authority or local government authority with a statement about the acquisition of rights to the land plot;

Refusal of the Seller from the right to constant indefinite use or lifelong inherited ownership of the land plot (paragraph 1 of Art. 45 ZK RF) and appeal to the establishment of justice to register the termination of the right to the site;

Decision executive organ state power or local governments on the provision of rights to the land plot;

Conclusion of the sale and sale agreement or lease of a land plot;

Registration of ownership of land plot (in case of redemption) or registration of a land lease agreement to the USRP.

The cost of redemption of the land plot depends on the price of the Earth established by the subject of the Russian Federation in accordance with Article 2 of the Federal Law of October 25, 2001 No. 137-FZ (as amended from December 8, 2003) "On the introduction of the Land Code of the Russian Federation" (hereinafter - Law on the introduction of the Land Code).

In this case, the size of the acquired area is not determined by the seller and the buyer of the building, but by the authorized state or municipal authorities. The buyer has the right not to the entire seller's plot, but only on its part, occupied by real estate and necessary for its use.

9.1.2. Acquisition of land in ownership by the seller - individual and the sale of the building together with the land plot. This option is prevented both for the seller and for the buyer for the following reasons:

The seller of the building on a plot on his right of constant indefinite use or lifelong inherited ownership, in accordance with Articles 20 and 21 of the Land Code, has the right to one-time free privatization of the land. The land plot is transmitted to the seller in

for free, while the buyer of real estate can acquire a land plot to property only for a fee;

The sale of the building and the land plot on which this building is located is issued by one contract of sale, on the basis of which the establishment of justice registers at the same time the transition of the right to the building and land;

The transaction price increases significantly due to the value of the land plot;

The buyer acquires the building along with the land plot. It is delivered to the need to apply to the Local Self-Government Agency for the registration of land rights and the conclusion of the contract for the sale of land plot, as well as to apply to the establishment of justice to register the right to the transfer of the right to land on the basis of the contract for the sale and sale of a land plot;

From the seller is not required to perform actions aimed at terminating the rights to the site;

The size of the land is determined by agreement of the parties.

All of the said equally applies to cases where the seller of a residential building has an unformed area in actual use.

In accordance with Article 4 of the Law on the introduction of the Land Code, citizens of the Russian Federation, which have land plots in the actual use of the residential houses that are acquired 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 ownership of the USSR", have the right to one-time free transmission to the property of the land plot according to the rules established by Article 20 of the Land Code.

9.1.3. Sale of real estate by a legal entity with a land plot on the right of permanent (perpetual) use. According to paragraph 2 of Article 3 of the Law on the Enactment of the Land Code when selling buildings, buildings,

located in land plots provided to legal entities (with the exception of state municipal institutions, federal state enterprises, as well as state authorities and local self-government), the right of permanent (perpetual) use is subject to re-issuance on the right of lease, or the plot must be acquired in ownership in accordance with the provisions of the RF Code on the selection of the buyer of the building, structure or construction.

The interpretation and application of this norm of the Land Code still causes significant difficulties. Who should acquire a plot - seller or buyer? When must I get the land - before a real estate transaction, after it or at the same time? It appears that on the basis of the principle of unity of the legal fate of the land and firmly related real estate, land use payability, the trend of eliminating limited real rights to land "Parallel" procedure for the design of land rights when selling real estate by a legal entity with the right of permanent (indefinite) land The site may be as follows:

1) The parties enter into a real estate purchase agreement. The contract for the sale and purchase of real estate non-residential purposes is not subject to state registration, respectively, it is considered concluded from the moment of signing the contract. It is possible to fulfill the contract - the transfer by the seller of real estate on the transfer act and payment by the buyer. The contract may be concluded under a depositing condition (Article 157 of the Civil Code of the Russian Federation) - the transition of property rights may be due to the execution of land rights. Before registering the transfer of the right, the buyer is legal owner real estate, respectively, by the legal land user (paragraph 1 of Art. 35 of the RF RF acquisition of the right to use the site during the transition of the right to the building);

2) the buyer addresses authorized bodies for issuing the right to

or rental rights in your choice. The contract of sale (and the transmission act) serve as a confirmation of the possibility of issuing its land rights in accordance with paragraph 2 of Article 3 of the Law on the Enactment of the Land Code. Authorized state or municipal authorities conclude a sale and lease agreement with the buyer. Such transactions can also be concluded under a depositing condition: the land plot is transferred to the property or leased subject to state registration of the transfer of real estate;

3) Parties appeal to the establishment of justice for registration of the transfer of real estate rights. The buyer also represents a redemption agreement or a land lease agreement. The establishment of justice simultaneously registers the ownership of the buyer for real estate and on land or ownership of real estate and the transaction - the lease agreement

9.2. Alphang non-residential premises, part of the building or part of a residential building. In this case, the procedure for making a transaction and land rights is determined by which part of the structure is sold.

9.2.1. If the non-residential premises or part of the structure cannot be highlighted in nature together with part of the land plot, then the alienation is made without transferring rights to land (clause 4 of Article 35 of the RF RF). If the seller has the right of permanent (indefinite) use by an indivisible land plot occupied by the building, then by virtue of paragraph 3 of Article 36 of the Code of the Russian Federation after selling the premises or part of the building, he along with the buyer (perhaps and other owners of the premises in the building) has the right to purchase a plot In general share ownership or for rent with multiplicity of persons on the side of the tenant. In accordance with paragraph 2 of Article 3 of the Law on the Enactment of the Land Code legal entities Must do it until January 1, 2006. If a part of a residential building is sold, located on a plot belonging to the seller on the right

life inherited ownership, the right to privatize the plot into equity property is not limited to (clause 3 of Article 3 of the Law on the Enactment of the Land Code).

If the seller is a tenant of the land under the building, then in order to avoid disputes on the procedure for using the buyer of the site, its legal regime should be determined. In the agreement on the alienation of the premises, it is reasonable to provide for the obligations of the parties to re-issue the lease agreement and the obligation of the acquirer to reimburse the seller part of the rent for land up to this point. After registering property rights in accordance with paragraph 3 of Article 36 of the Land Code, you can conclude tripartite agreement between the landlord and the owners of the premises (parts of the building).

9.2.2. If the non-residential premises or part of the structure can be highlighted in nature together with a part of the land plot, for example, a low-lone room, part of a residential building with a separate entrance (the so-called "house for two owners"), then in the case of land plot to the seller on the right of ownership of alienation A part of the land plot occupied by the estranged real estate and necessary for its use is subject to. The question of the divisibility of the land plot is solved during the interim and cadastral accounting. If the seller has the right of permanent (perpetual) use, then after the sale of the premises (parts of the building) is possible:

Acquisition of a plot in total share ownership or for rent with multiplicity of persons on the side of the tenant;

Independent redemption or conclusion of a lease agreement by the owner of the premises of a part of a section occupied by the room (part of the building).

Similarly, the owner of a part of a residential building, which bought it by the person who has the right to life inherited by the site, has the right to privatize along with its seller the entire area in equity ownership or only part of the ze-

meld plot, occupied by a part of the residential building and necessary for its use.

9.3. Alienation of the share in the right of ownership of real estate. If the seller of the share is not a participant in the overall ownership of the land plot, for example, the plot belongs to him on another real law (permanent use or lifelong inherited ownership) is either decorated to another person, then the rights to land contract is not transmitted. After registering the share of the share in the right of a common property to the property to the buyer, he, along with other property co-owners, can acquire the rights to the site in the manner prescribed by Article 36 of the RF RF.

9.4. Alienation of real estate on the leased land. Arbitrage practice Arbitration courts in Moscow testifies that when considering cases of renewal land lease The sale of real estate is regarded as an expression of the will of the previous landlord to transfer rights and obligations under the lease agreement without additional applications and agreements, including the termination of the contract. The sale of the building in itself is the basis for renewing the contract between the landlord and the new property owner. However, the lack of proper registration of land rights when selling real estate leads to numerous disputes, as a result of the permission of which the new property owner, in the absence of right-ending documents on land, is sometimes forced to pay for the Rent of the Seller's rental.

Although in this case the civil and land legislation does not provide for the mandatory transfer of the right to land, when concluding a real estate alienation agreement, located on the leased land plot, it is advisable to simultaneously solve the issue of registration of land rights. For accounting, timely and reasonable accrual of rental payments for land must be properly issued

expanding documents for land and clearly determine the time of the transition and the amount of transmitted rights and obligations.

In the case of real estate alienation on the leased land plot, the design of rights may have several options.

9.4.1. Transfer by the seller the right to rent a plot under the contract. Rental right can be transmitted as a separate contract after registering the transfer of property ownership to the Buyer and simultaneously with real estate sales. Such a transaction is a mixed contract (clause 3 of Art. 421 of the Civil Code of the Russian Federation) and obeys, on the one hand, the standards for the sale of real estate, on the other hand, the standards for the transfer of rights and obligations under the lease agreement (overimenm), entailing the part of the parties in the obligation (Articles 389, 391 and 615 of the Civil Code of the Russian Federation).

According to paragraph 5 of Article 22 of the RF RF, the land tenant has the right to transfer his rights and obligations to a third party within the lease term without the consent of the owner of the site, subject to his notice, if the lease agreement does not provide otherwise. It should be noted that the Land Code has expanded the rights of land tenants in comparison with tenants of other objects that can transfer rights only with the consent of the lessor (clause 2 of Art. 615 of the Civil Code of the Russian Federation). The agreement of the landlord on the transfer of rental rights may be required only if this is established by the lease agreement. In the case of a lease of a state or municipal site for more than 5 years, the transfer of rental rights can also be carried out without the consent of the lessor, provided that it is notified, and without the reservation "if the lease agreement does not provide for otherwise" (paragraph 9 of Art. 22 of the RF RF).

Such a transaction contains assignment elements requirements (lease law) and debt transfer (rent), therefore, in accordance with paragraph 2 of Article 389 and paragraph 2 of Article 391 of the Russian Federation, state registration is subject to state registration. From the moment of registration, there is a change of persons in rental legal relations - a new tenant comes with a lease for the remaining time, which

enjoy all rights and carries all the responsibilities, including lease obligations (both current and possible debt), in the same amount as its predecessor. When transferring rights in accordance with paragraph 2 of Article 385 of the Civil Code of the Russian Federation, the initial tenant is obliged to transfer the lease agreement as a document as a document confirming his right to demand for the landlord. The right-ending documents of the new tenant on Earth are:

1) a valid lease agreement concluded by the previous tenant;

2) a registered agreement on the transfer of rights and obligations under the lease agreement (separate or in the real estate alienation agreement). In accordance with paragraph 73 of the rules of conducting the EDRP, a new tenant can also obtain a certificate of lease law.

In Moscow, for example, after registering a rental transaction, a tripartite agreement between the landlord, the legal entity (old tenant) and the legal entrepreneur (the new tenant), which allegedly enshrines the transition and responsibilities in full. It should be emphasized that in accordance with the rules of the change of persons in the obligation to "consolidate" rental rights, just registration of the transaction between the preceding and new tenants. The conclusions of the new lease agreement or amending agreement on the current contract (re-issuance of the contract) are not required (paragraph 5 of Art. 22 of the RF RF). Accordingly, no additional payments are required for the design of the contract, for the "redemption of the rental rights".

The contract for the sale of real estate (except for residential premises and enterprises as property complexes) is not subject to state registration and is considered to be concluded since its signing by the parties in the form of one document (clause 1 of article 432, Art. 550 of the Civil Code of the Russian Federation). Registration is only the transition of ownership of the buyer (paragraph 1 of Art. 551 of the Civil Code of the Russian Federation). However, if the parties sign a mixed to

the thief of purchase and sale and transfer of the rental of the lease, it will be considered concluded from the moment of registration of the transaction, respectively, the purchase and sale obligations will arise from this moment, and not from the moment of signing. Thus, the Presidium of the Supreme Arbitration Court of the Russian Federation (the Russian Federation) in the review of the practice of resolving disputes related to the application of the Federal Law "On State Registration of Rights to Real Estate and Transactions with Him" \u200b\u200bof February 16, 2001 No. 598 (p. 13) indicated that since a mixed contract concluded by the parties containing elements of the contract to be mandatory state registration establishes unified aggregate obligations, then such a mixed contract is subject to mandatory state registration, in the absence of which should be considered nonconnected.

9.4.2. Transfer by the seller of the land plot to the sublease (for) the buyer of real estate. This can also be carried out both through a single agreement together with the purchase and sale of real estate and through a separate subarente agreement. The tenant of the land plot can transfer the leased plot to the Subarent within the term of the lease agreement without the consent of the owner of the site, provided that it is notified if the lease agreement does not provide for another (paragraph 6 of Art. 22 of the RF RF). At subarents, all rights of tenants of land plots provided for in the Land Code are applied. Subares contract is subject to state registration in accordance with the regulations on the registration of lease agreements (paragraph 2 of Art. 615, paragraph 2 of Art. 609 of the Civil Code of the Russian Federation, paragraph 2 of Art. 25 of the RF RF).

The difference of subleases from the transfer of rights and obligations under the lease agreement (overimenm) is that under overimony, the tenant drops out of the contract, while at Subared, the tenant remains responsible under the contract to the landlord (paragraph 2 of Art. 615 of the Civil Code of the Russian Federation), in including for rental payments.

This option is suitable for legal entities engaged in the development of the leased territory with infrastructure with infrastructure (cottage villages, garage complexes). After the transfer of objects to the property or lease to citizens and the conclusion with them, the land sublease agreements, the owners of the property produce sublease payments to the developer, which in turn lists the rent to the landlord for the entire site.

The conclusion of the sublease agreement is possible if the transfer of rights not to the entire land-leased land plot is needed, but only on a part of the site employed by real estate and necessary for its use. Of course, this part of the site should be formed and indicated on the cadastral plan of the entire site.

9.4.3. Termination by the seller of real estate a lease agreement for the area under an agreement with the landlord. The termination of the contract is subject to state registration - on the basis of this agreement, the establishment of justice should pay off the rental entry. In the contract of sale, it is recommended to provide for the responsibility of the seller necessary actions. After that, the buyer as the owner of the real estate has preemptive right Shopping or renting plot. If the site is in state or municipal property, he can become a tenant under the same conditions as the former owner (paragraph 3 of Art. 35 RF RF). In this case, the owner of the site (or the authorized body) and the acquirer of the building after registration of the transfer of ownership of real estate conclude new treaty Rental.

Before adopting the Land Code of the Presidium of the Russian Federation in the Review of Practice arbitration courts Land legislation of February 27, 2001 No. 619 (paragraph 5) also indicated that if the real estate seller used land plots

8 Bulletin of the Supreme Arbitration Court of the Russian Federation, 2001, No. 4.

9 Bulletin of the Supreme Arbitration Court of the Russian Federation, 2001, No. 5.

the com, on which she is in rental rights, the buyer goes to the right to rent the part of the land plot, which is occupied by this property and is necessary for its use. Authorities authorized to rent land plots, it is not entitled to refuse to renew the lease agreement with the new property owner on that part of the land plot on which it is located and is necessary for the use of real estate.

9.4.4. Transfer of rights to part of the rented area, occupied by real estate. In this case, the seller should conclude an agreement not about termination, but on the change in the lease agreement in terms of a decrease in the area of \u200b\u200bthe leased site (or changes in the lease object). Such an agreement is subject to state registration, after which the new lease agreement is possible between the landlord and the owner of the real estate on the part of the land plot. A part of the site transmitted to the new tenant should be formed and indicated on the cadastral plan of the entire area. The owner of the site is also entitled to divide it into two plots and after it is set to cadastral registration to transfer the newly educated area to rent a real estate acquirer. Cadastral works are held at the request of the owner (its authorized body), the tenant cannot transform someone else's plot.

10. Legal status Owner

real estate before the registration of the land

10.1. With the alienation of real estate on a plot that does not belong to the seller on the right of ownership, the rights to land can be issued after registering the transfer of property rights. But up to this point, the owner of the real estate is a subject of land relations. In accordance with paragraph 2 of Article 271, paragraph 3 of Article 552 of the Civil Code of the Russian Federation and paragraph 1 of Article 35 of the RF RF in the transaction of property rights

the owner acquires the right to use the appropriate part of the land plot, occupied by real estate and necessary for its use, under the same conditions and in the same amount as the former owner of the real estate.

So, the Presidium of the Russian Federation in the review of the practice of applying the arbitration courts of land legislation of February 27

2001 No. 61 (p. 2) considered the case of invalidation of land decree administrative Commissionwhich imposed a fine for the unauthorized landing of the land plot. The court indicated that since the seller of the structure had the right to use to the land plot, the same right acquires a buyer of the structure. Therefore, the lack of the buyer of the structure of documents for the right to use the land plot under the circumstances of the case cannot be considered as its unauthorized occupation and, therefore, does not form the composition of the land offense, for which the plaintiff was fined.

Considering the sale of real estate on the leased land plot and the need to renew the lease agreement (clause 5 of the specified review), the Presidium of the Russian Federation pointed out that if the real estate seller used the land plot on which she was on rental, the right to rent to the buyer The part of the land plot that is occupied by this property and is necessary for its use. According to Article 421 of the Civil Code of the Russian Federation, legal entities are free in concluding a contract. The agreement for the conclusion of the contract is not allowed, unless the obligation to conclude an agreement is provided for by the Civil Code of the Russian Federation, legislation or voluntarily adopted commitment. The non-transclusion of the lease agreement of the land plot cannot qualify as unauthorized lesson.

10.2. At any property owner, not only the rights, but also the obligations of the land user on the proper use of the land plot in accordance with its target

the meaning, requirements of construction, environmental, sanitary and hygienic, fire-prevention and other standards, as well as on making land fees (rental payments, land tax).

Conclusion

Thus, the principle of unity of legal fate of land and real estate determines the following features of the design of real estate transactions:

The land plot and the property located on it is not a single object of property rights. The plot and firmly associated with it real estate should be:

a) a single object of state cadastral accounting;

b) a single subject of the transaction;

Real estate, located on a land plot belonging to the alienator on the right of ownership, is alienated together with a suction (if this site is not emotional or is not limited in circulation). This rule acts in relation to such parts of the building, structure, structures, which can be highlighted in nature along with a part of the land plot, as well as in the case of the alienation of the share in the right of a common ownership of the building;

When real estate alienation can be transferred to the entire land plot or its part busy with real estate and necessary for its use. In any case, the definition of a land plot transmitted by the Property acquirer is a significant condition for the real estate alienation agreement - an agreement on the subject of the transaction;

The ownership of the site passes on the basis of the transaction, so it arises by general rule Since the state registration of the right to land plot, and not from the moment of registration of the transfer of real estate rights. Registration of the transition of ownership of the area is possible only if there is a description of the transmitted section in the contract;

The object of sale can only be land plots that have passed

surgean cadastral record. Before cadastral accounting It is necessary to conduct the survey of land plots. With the alienation of land plots set on cadastral records in accordance with the procedure that acts prior to the adoption of the Law on Land Cadastre, re-conducting land management, including the survey and harmonization of borders, is not required;

Part of the land plot may be the object of obligatory, but not real rights. Before the alienation of real estate, with its part of the land plot, it is necessary to carry out land management and cadastral works on the formation of a new section by allocating (separation) from the site remaining at the alienator of real estate;

When real estate alienation on a plot belonging to a limited real law (constant indefinite use, lifelong inherited ownership), the rights to land are not transferred, the design of property rights to the site is carried out in accordance with land legislation after registering the transfer of ownership of real estate or simultaneously with it;

The right to rent a plot may be transmitted according to a single agreement with the alienation of real estate or a separate contract after registering the transfer of real estate. The real estate alienator can transfer to the acquirer of the rights and obligations under the lease agreement (overnight), transfer the site to Subares (former). When transferring rental rights and responsibilities, no renewal of the contract is required between the landlord and the new property owner. The alienator may also conclude an agreement on termination or about the change in the lease agreement, and the acquirer is a new contract with the Lessor;

Before issuing rights to land, the owner of real estate is a legal land user. In this case, the absence of advisory documents on the site is not a land offense.

Unity and differentiation of ownership. Starting from the time of the first codification of Soviet civil legislation, and then after its second codification embodied in the existing funds and codes, the ownership is constituted with a support for the corresponding legislatively enshrined general concept. The scientific structures under this concept are continuously updated. But, as evidenced by the comparison of Art. 58 GK RSFSR 1922 from Art. 19 The foundations of the civil legislation of 1961, its legal formulation remained unchanged. It did not change, despite the fact that, instead of a multi-dear, a single socialist economy is created in the country, and at the same time, others are unconditionally approved by other types of ownership. And although this situation leaves the impression of external contradictions, it is certainly justified by inexorable inner logic. If you can't do without general concept property rights applicable to different formations, then the greater the need for a generalized expression is undeniable different species This right, accompanying the same society, and consequently, arising from a single state-volitional source. As for the practical effect provided in a similar way, it is enough to refer to the general resolution of such issues related to the right of ownership of issues, which, for example, the question of the moment of transition of this right or some of the methods of its protection, with all the variety of real proprietary legal relations. Completely allow their settlement.

But at the same time, with unity, the legislative formation of property rights may be characterized and as an incessant process of its differentiation. Leaving aside numerous in particular and without leaving the range of classification of the type of ownership of the Typological Principle, the four most significant stages for this process should be highlighted.

The first stage coincides with the first codification of Soviet civil legislation, which distinguished the property of state, cooperative and private (Art. 52 GK of the RSFSR 1922). A similar classification was carried out in the legal literature of the 20s. The retreats from it were allowed only by those authors, which, identifying specific signs of cooperative property, did not find the indigenous differences from the property of private or in full, or within the boundaries of the Fund formed by cooperative organizations.

The second stage opens by the adoption of the USSR Constitution of 1936, Art. 5, 7, 9 and 10 of which proclaimed the existence of socialist property in our country in two forms (state and cooperative-collective farm), the personal property of the collective farm yard and a separate citizen, the property of small private farms of sole peasants and the handles. The same distinction was applied in the scientific publications and educational materials that appeared after the Constitution. A well-known modification into this scheme was made by only certain attempts, departing from the similarity of the subjects of personal and small private property, to prove their one-order also from the socio-right point of view.

The third stage begins from the moment of publication of the foundations of civil law that reproduced a list of the same types of ownership, which appear in the Constitution of the USSR in 1936, but no longer distinguished, and three forms of socialist property, having allocated in a special form, along with state and cooperative-collective farm Also property of trade unions and other public organizations (Article 20, 24). Separate scientific precursors of this legislative innovation appeared earlier, as it was not without a critical attitude towards him in some followed scientific speeches. But in general, the Soviet civilist doctrine was perceived by such graduation.

The fourth stage is due to the adoption of the Constitution of the USSR of 1977. It also refers to socialist property the property of trade unions and other public organizations, emphasizing, however, that (Art. 10). It is not mentioned in it the property of small private farms of sole peasants and shreders, and it is only about the admission of individual labor activities in the field of hand-crafts, agriculture, domestic service of the population, etc. (Article 17).

Further presentation is therefore concentrated on socialist property in two forms that make up the basis of the USSR Economic System, and the derivative of her personal property.

§ 2. Socialist ownership

The right of state ownership. The creation of state socialist property, the development of methods for managing it, the formation of special means of its legal protection An unprecedented process of wide deployment of new socio-legal phenomena, who needed a thorough study and deep reflection. At the same time, with the time of the transition to a new economic policy, two fundamental problems have never lost their relevance since then: on the essence of state property in the USSR and the rights of government agencies (trusts and other independent organizations) on the part of state property enshrined behind them. The one and other problems were in the center of attention both within the country and in foreign responses to the new system of economic and legal relations.

If, in the stage of revolutionary nationalization from the pages of foreign printing, they did not go on a breaking of all sorts of property in the Soviet republics, then with the transition to the NEP, some foreign and hardly all the white-emigrant lawyers of the Shangesheovsky sense, Tracting for the first time then the entry entered from the restorership positions was announced the only and Moreover, it is the private owners of their own independent organs transferred to them the private owners of the property.

A similar concept has acquired a well-known prevalence in some intraspecific publications. Here it was built on the assumption that the mounted Art. 58 GK RSFSR The overall concept of ownership actually embodies the definition of private property right. And since in relation to property that is not withdrawn from turnover with their participation, state orders possess all stipulated Art. 58 GC by law, they should be recognized by private owners of such property. In contrast, the property seized from the turnover received from the adherents of the same glances to two evaluations. According to one of them, due to the consolidation of it for state trusts without the right of the order, it resulted in a certain state major and appears as something as created by the State of Reserved Properties. According to another, even the objects seized from turnover come into private ownership as they are allowed to include them into the commodity turnover. When this possibility does not occur or, occurring, is not implemented, meaning technical use Objects of this kind of government, although deprived of the right of private property, becomes nevertheless by their public owner. But in both cases, the ownership of the state disappears, replacing the property of government agencies, with a division of according to the legal differentiation of its material objects for public and private under the auspices.

If, however, in the statements set out, state property is considered as private on the part of the property authorities of government agencies, then in the exchange concept, it received the same qualifications, but the parties of the state itself. Accordingly, a general view of the legal relationship as a legal form associated with only the commodity element, supporters of this concept regarded and the right of ownership only in quality regardless of its class nature and generating its specific historical conditions. Hence the conclusion that, since state property is included in the sphere of circulation of goods, it belongs to the state at the same right of ownership, as well as any private person. Conversely, to the extent that state property is outside the commodity sphere, it ceases to be the subject of ownership at all, fully obeying. In other words, within the limits of the conservation of commodity relations, the state is the owner of the goods, no different from any other private owner. But due to the fact that the scope of commercial circulation is gradually decreasing, the right of state ownership begins, replacing first at certain scales, and in the future and the entire technique of the organization of production. So, either the right of private property, or in general, no right - such a final basis for the exchange concept, fully consistent with its attitude to the overall issue of the death of the state and law.

Protection of such views, even when the exchange concept took on some time the dominant position in the Soviet lawyer, of course, did not abolish the study of state ownership as a specific socialist, not an abstract-product category. And when a sufficiently sharp discussion turned around in the first half of the 1930s around compiled by P. I. Pochka and G. N. A amphi-theater project of the main principles of civil legislation, the position of any disputes recorded in it did not cause any disputes. This position reads :. It is also clear that the historical novelty of state ownership in the USSR, the complete incompatibility of the rooted ideas with the property of this type, which, making up a nationwide property, is managed on the basis of democratic centralism, demanded education during its study of new concepts, developing special legal structures adequate to it. Meanwhile, individual lawyers tried and in this matter to go traditional ways, seeking to reflect the socio-legal formations of the era of the dictatorship of the proletariat through the prism of legal doctrines leaving.

In a number of such attempts, the theoretical construction of B. S. Martynov is especially indicative, which, to explain the legal nature of state ownership, combined two very solid concepts in the age of the concept, completely mutually exclusive dogmatically, but, despite this, quietly combined in the same publications 1924 - 1927 gg On the one hand, as a sample, it attracts Roman Fiduciary and English TRASTEE, arguing that that therefore, and that. On the other hand, since state-owned property formed on the basis of state ownership often render the inappropriate resistance to the desire to squeeze them into traditional legal formsB. S. Martynov calls for the abandonment of Roman legal concepts. However, after this appeal, he addresses medieval legal categories, reviving the theory of divided property on the grounds that. To formulate its final conclusions in this direction, the author resorts to direct borrowing not only ideas, but also the terminology of postglossors, stating that.

But after all, fiduciary and separated property is not the same thing! Fiduciary is generally not a valid owner, which cannot be said about the participants of the separated property, especially if we consider them together. How could the erroneous identification of the incomprehensive dogmatic concepts occur at such a perfect mastering of the means of dogmatic jurisprudence to all the arsenal? The reasons for this intriguing mystery are too serious to relate to them with an ironic arrogance.

Internal nature internal nature is characterized by the fact that, forming a unified property fund, this property is managed by consolidating separate property complexes for individual government agencies. Specified objective properties There are no analogue in the system of concepts familiar to scientific tools, which at that time used B. S. Martynov. But their indisputable reality, no matter how it is transformed in an individual consciousness, could not pass without a trace for the theoretical analysis carried out. By paying attention to both marked points, B. S. Martynov and put forward two theories at the same time, each of which seemed to him with the right to exist. At the same time, the fiduciary theory distorted interpreted the unity of state ownership, and the procedure for managing it was not less mistaken to reflect in the theory of separated property. Essentially, incorporated to perceived traditional concepts logically, they contradicted the essences public relationswho served as a reason for their development. This, however, did not prevent them from being the forerunner of two new constructions, which in the history of Soviet civilianity was prepared a much more visible role.

The fiduciary theory had its continuation nominated at the end of the 20s A. Vennediktov the theory of state ownership of the state. As I thought, only A. Vedeniktov believed, only the owners of the goods can participate in product relationships, and therefore the state to include its property into the sphere of commodity turnover through state trusts should recognize at least the formal ownership. He wrote that. But the ownership of the trust is exiled and exhausted, because outside the commodity turnover, in relations between the state with its bodies, the ownership of it does not find applications\u003e. Because, outside trade, state property acts, here and does not arise about who is the owner of the property provided by the trust, the state is such an owner. That is why, said A. Vennediktov ,.

The similarity of the outlined views with the fiduciary theory is obvious. But it does not eliminate the indigenous differences between them. Not to mention that B. S. Martynov substantiated his conclusions by the method of constructive-dogma, while A. Vennediktov was mainly due to the disclosure of economic prerequisites for the inclusion of the state in the sphere of commodity turnover, they were focused on substantially various principle installations. For fiduciary theory, the state and its bodies are independent subjects opposing each other. For the theory of commodity property, Gosorgan is the very state itself, only formally acting in the form of a separate person with the endowment of its rights of the owner as a condition without which participation in the exchange of goods is excluded.

This circumstance and Davo A. Vennediktov reason to argue that the views, which he then defended, did not hesitate the unity of the state ownership fund, nor the unity of the state and its bodies. But as soon as the attention of the researcher switches to the question of what the essence of the differences within this unity, given the same reality of the first and second, as the entire depth of contradictions of the theory of commodity property immediately detects. Not to reckon with the fact of such a difference, she, of course, could not, but, believed to him, tried to bring it to a purely formal moment, to a kind of reception of legal equipment to eliminate whatever the soil for the collision with the principle of unity of the state ownership fund . Nevertheless, this principle was disturbed, since the theory under consideration did not cost without recognizing ownership of government agencies, although with a reservation that the latter is just a formal right. Thus, the same complex of contradictions, which is reflected in the views of his predecessors, was irresistible and for A. V. Venedikov: the unity of the state property fund led him to the denial of the reality of the property rights of government agencies, to recognizing their rights purely formal; The difference within this unity led to the fact that the named formal rights were declared at the same time, because there was no other right to ensure the participation of government agencies in turnover, the author then did not yet imagine.

At that time, however, as a fiduciary theory found a continuation in the theory of commodity property, accompanying her theory of separated property, retaining the former name, changed in the middle
30s Dogmatic Option on a deeply different option sociological version. Supporters of this option directly declared the unity of the State Protection Fund. So, L. Ya. Ginzburg wrote that. He also noted that unity does not exclude. Moreover, the transfer of individual parts of state property to government agencies as such an objective necessity, only with the strictest consequence of which it becomes achievable maximum possible production and economic effect. But, referring to the legal mediation of these organizational and economic prerequisites, L. Ya. Ginzburg did not discover other paths other than the recognition of ownership of both the state and its bodies. And hence the inevitability followed the interpretation of the right of state ownership as divided between different entities. At the same time, it is first noted only that the empowerment on the disposal and operation of state property\u003e. Then, from the separation of property between government agencies, the author proceeds to its division between government agencies and the state:<...>. As for the final output, it is formulated as follows: - separate hozergans\u003e.

Starting from the times of the first codification of Soviet civil legislation, and then after the second codification, embodied in the current funds of the Codexes, the ownership is constituted with a support for the legislatively applied general concept.

The scientific structures under this concept are continuously updated. But, as evidenced by the comparison of Art. 58 GK RSFSR 1922 from Art. 19 The foundations of civil 1 legislation of 1961, its legal formulation remained unchanged. It did not change, despite the fact that, instead of a multi-dear, a single socialist economy is created in the country, and at the same time, others are unconditionally approved by other types of ownership. And although this situation leaves the impression of external contradictions, it is certainly justified, inexorable internal logic. If it is impossible to do without the overall concept of ownership, applicable to different formations, then the greater the need for the generalized expression of different types of this right, accompanying the same society,

27 as evidenced by the definitions of the right of ownership given in the study literature of recent times. See, in particular: Soviet civil law. Ed. P. E. Orlovsky and S. M. Korneev. In 2 m. M., 1969-1970, vol. 1, p. 270; Soviet civil law. Ed. O. A. Krasavchikova. In 2 t. M "1972-1973. T. 1, p. 236; Soviet civil law. Ed. V. A. Ryastenseva. In 2 m. M., 1975-1976. T. 1, p. 270.

28 Scientific discussion about the concept of ownership; Along with the general problem, it affects some relatively private questions. Among them, the question of the structure of legal relations is of particular interest. Usually, this structure is characterized by a model of absolute legal relationship controlled with opposing to him by all the third obligations to the abstinence by persons (see Read more: R A and X E R V. K. Absolute and relative rights. - In the book: Izvestia of the Faculty of Economics of the Leningrad Polytechnic Institute, 1928, Issue. 1, p. 273-306.- The named work contains the most interesting lighting of the concepts mentioned in its title). Unfortunate attempts have been made to identify for the legal relations of ownership of "means of production simultaneously with passive subjects also actors, referring to their number of people who make their work to other means of production (and with KN A-Z and S. I. The main questions of the theory of socialist civil Rights. Abstract. Dot. Dis. Lest. Leningr. Un-Ta, 1947, No. 12, p. 95-100). Some "civilians following individual specialists in the field of the general theory of law declare ownership of such subjective right, which in general beyond the legal relationship (see, for example: Mr. K and N D. M. Ownership in the USSR, p. 32-47). For the most detailed criticism of this concept, see: Fleshitz E. A. "Absolitol" Nature of the right of ownership. - In the CN: - Civil problems and administrative law. M., 1962, p. 220 and ate.

and consequently, arising from a single state-volitional source. As for the practical effect provided in a similar way, it is enough to refer to the general resolution of such issues related to the right ownership, which, such as the question of the time of the transition of this right or some of the methods of its protection, with all the variety of real proprietary Legal relations fully allow their settlement.

But at the same time, with unity, the legislative formation of property rights may be characterized and as an incessant process of its differentiation. Leaving aside numerous particular and without leaving the range of types of ownership of typology. The principle should be highlighted with the four most significant stages for this process.

The first stage coincides with the first codification of Soviet civil legislation, which distinguished the property of state, cooperative and private (Art. 52 GK of the RSFSR 1922). A similar classification was carried out in the legal literature of the 20s. 29 The retreats from it were allowed only by those authors, which, revealing specific signs of cooperative property, did not find its indigenous differences from the property of private or in full, or within the borders of the Fund formed by cooperative organizations. thirty

The second stage opens by the adoption of the USSR Constitution of 1936, Art. Art. 5, 7, 9 and 10 of which proclaimed the existence of socialist property in our country in two forms (state and cooperative-collective farm), the personal property of the collective farm yard and a separate citizen, the property of small private farms of sole peasants and the handles. The same distinction was applied in the scientific publications and educational materials that appeared after the Constitution. 31 The well-known modification in this scheme was made by only certain attempts, going from the similarity of the subjects of personal and small private property, to prove their one-order also from a socio-legal point of view. 32.

The third stage begins from the moment of publication the foundations of civil law reproducing the list of the same

29 See, for example: Assknazi S. I. Essays economic law THE USSR. L., 1926, p. 40-41; In A Vin N. G. The right of ownership. Comment to Art. 52-70 "Civil Code. M., 1923, p. 3-5.

30 cm., For example: Terekhov A. Soviet cooperative law. Kharkov, 1924, p. 88-89.

31 See, for example: Civil Law. Collective Viyun, T.1, p. 163-167. . -

32 cm., For example: Mutovova R. F. Main problems of personal property rights in the USSR. Author. Cand. dis. M., 1949, p. eight.

the types of ownership, which appear in the Constitution of the USSR of 1936, but are no longer two forms, and three forms of socialist property, having allocated in a special form, along with state and cooperative-collective farm, also the property of trade unions and other public organizations (Article 20, 24 ). Separate scientific precursors of this legislatively enshrined innovation appeared earlier than 33, as it did not cost and without a critical attitude towards him in some followed scientific speeches. 34 But in general, the Soviet civilist doctrine was perceived by such graduation.

The fourth stage is due to the adoption by the Constitution-USSR of 1977. She also refers to socialist property of trade union and other public organizations, emphasizing, however, that "the basis of the USSR Economic System is socialist ownership of the means of production, in the form of state (nationwide) and collective-friendly cooperative property "(Art. 10). It is not mentioned in it of the property of small private farms of sole peasants and shores, but we are talking only about the assumption. Individual work activity in the field of housing and crafts, agriculture, is the intensive service of the population, etc. (Art. 17).

Further presentation is therefore concentrated on socialist property in two forms that make up the basis of the USSR Economic System, and the derivative of her personal property.

6. Forced seizure of real estate in public interest. (Art. 279 of the Civil Code of the Russian Federation).

7. Legal guarantees of the owner of real estate objects in cases of seizure of objects for public needs.

8. Related rights in relation to buildings and land plots.

9. Types of limited real rights to real estate.

10. The concept of the right to constant indefinite use by the land plot. Subjects of permanent perpetual use of the land plot.

11. The concept of the right of life-lifelong inherited land plot. Subjects of the rights of life-inherited ownership of the land plot.

12. Purchase - sale of real estate.

13. Rental of real estate.

14. Mortgage of real estate.

15. The concept and signs of the enterprise. Objects that form an enterprise as a property complex.

16. The concept of an object of unfinished construction. Criteria for attributing objects of unfinished construction to real estate.

17. Features of state registration of ownership of the object of unfinished construction.

18. The concept of residential premises. Varieties of residential premises.

19. The right to use the residential premises by the family members of the owner.

21. Buildings and structures as real estate objects. Classification of buildings and structures.

22. The right to use someone else's land.

23. The principle of the unity of the fate of the land plot and firmly related objects.

24. The right of limited possession of a foreign land plot: content, grounds for occurrence and termination.

25. The concept and significance of the state. Registration of rights to real estate and transactions with it.

26. Form of real estate transactions: Evaluation of current legislation.

27. Earth as an object of nature, business (use), property. The impact of this trinity on the legal regulation of land relations.

Question 28. Concept and general characteristics of land ownership.

Question 29. Rights of private ownership of land.

Question 31.Thenium and general characteristics of land use rights.

Question 32. The foundation of the emergence and termination of rights to land.

Question 33. Features of making transactions with land plots.

Question 34. Purchase and sale of land plots.

Question 35. Rental of land.

Question 36. Mortgage of land plots.

Question 37. Inheritance of land.

Question 38. Protection and guarantees of the rights of landlords, landowners, land users and tenants.

Question 39. Forms of fees for the use of land.

Question 40. The concept and overall characteristics of public administration in the field of use and protection of land.

41. State cadastral registration of land. The concept, structure and procedure for maintaining the state real estate cadastre.

42. The concept of the legal regime of land, its unity and differentiation.

Types of legal regime lands:

Elements of the rule regime:

43. The concept and content of land protection.

44. The concept and features of the liability for land offenses.

45. Administrative and criminal liability for land offenses.

46. \u200b\u200bCivil and legal and disciplinary responsibility for land offenses.

47. The concept and overall characteristics of agricultural land.

48. Legal regime of land plots provided to citizens to conduct the peasant (farmer) economy.

49. Legal regime of land plots provided to citizens to conduct personal subsidiary farm.

50. Legal regime of land plots provided to citizens for collective and individual gardening, gardening and country construction.

51. The concept and overall characteristics of land settlements.

52. The concept and general characteristics of the legal regime of the land industry, transport, energy .... and other special purposes.

53. The concept and legal regime of industrial and transport land regime.

54. The concept and legal regime of land power, communications, broadcasting, television, computer science, defense and other special purpose.

55. The concept and general characteristics of the lands of specially protected natural territories and objects.

56. The concept and general characteristics of the lands of therapeutic, environmental, recreational and historical and cultural purposes.

57. The concept and overall characteristics of the land fund lands.

58. The concept and overall characteristics of the land of the water fund and stock lands.

59. Translation of land or land plots from one category to another.

60. Changes in the type of permitted use of the land.

23. The principle of the unity of the fate of the land plot and firmly related objects.

This principle is fixed in Art. 1 CC of the Russian Federation: the unity of the fate of land and firmly related objects, according to which the facilities are all firmly associated with land plots follow the fate of land plots, except in cases established by federal laws.

From the substance of this principle, it follows that the building (construction) located on the land plot is inextricably connected with it and, of course, cannot exist without land. This principle, the land plot is actually combined into one complex thing (land-property complex) with other real estate objects that are firmly connected with the land plot. This establishes that in such as these objects that make up a single land-property complex, and should participate in civil circulation.

Based on 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 their former owner.

A similar position is contained in paragraph 3 of Article 552 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), which provides for the sale of real estate on the land plot that does not belong to the seller on the right of ownership, the buyer acquires the right to use the appropriate part of the land plot under the same conditions As a real estate seller.

24. The right of limited possession of a foreign land plot: content, grounds for occurrence and termination.

25. The concept and significance of the state. Registration of rights to real estate and transactions with it.

The rights to real estate and transactions with it are subject to state registration in the Unified State Register of Rights.

Special law regulating relations related to the registration of rights to real estate is the Federal Law of July 21, 1997 No. 122-FZ "On State Registration of Rights to Real Estate and Transactions with Him" \u200b\u200b(hereinafter - the Law on Registration of Rights), which gives the concept State registration of rights and determines the procedure for its implementation.

1. State registration of rights to immovable property and transactions with it (hereinafter also - state registration of rights) - legal act recognition and confirmation by the state of occurrence, restrictions (encumbrances), transition or termination of rights to real estate in accordance with civil codeRussian Federation.

State registration is the only proof of the existence of registered right. Registered right to real estate can only be challenged in court.

2. State registration of rights is carried out throughout the Russian Federation on the system of entities for each object of real estate in a single state register of rights to immovable property and transactions with it (hereinafter also - the Unified State Register of Rights).

3. The date of state registration of rights is the day of making appropriate entities on the rights to the Unified State Register of Rights.

5. Refusal to state registration of rights or evasion of the relevant authority from state registration can be appealed to the interested person or bailiff in court, arbitration court.

State registration is subject to ownership and other real rights to immovable property and transactions with it in accordance with articles 130,131, 132 and 164 Civil Code of the Russian Federation, with the exception of rights to air and sea vessels, internal navigation vessels and space objects. Along with the state registration of real rights to immovable property, the state registration of restrictions (encumbrance) of rights to it, including servitude, mortgage, trust management, leases are subject to state registration.

1. Ownership and other real real estate rights, restrictions on these rights, their occurrence, the transition and termination are subject to state registration in the Unified State Register by bodies carrying out the state registration of real estate rights and transactions with it. Registration is subject to: the right of ownership, the right of economic management, the right of operational management, the right of life inherited ownership, the right of constant use, mortgage, servits, as well as other rights in cases provided for by this Code and other laws.

2. In cases stipulated by law, along with state registration, special registration or accounting of certain types of real estate can be carried out.

3. The body that meets the state registration of rights to real estate and transactions with it is obliged at the request of the copyright holder to certify the registration made by issuing a document on a registered right or a transaction or making an inscription on the document submitted for registration.

4. The body that carries out the state registration of real estate rights and transactions with it is obliged to provide information on the registration and registered rights to any person.

Information is provided in any body carrying out real estate registration, regardless of the place of registration. State registration of rights to real estate and transactions with it are carried out by the federal body in the field of state registration and its territorial bodies.

State registration of rights is carried out in the following order:

receiving documents submitted for state registration of rights, registration of such documents;

legal examination of documents, including verification of the legality of the transaction (with the exception of a notarized transaction) and establishing the absence of contradictions between the claimed rights and already registered rights to the object of real estate, as well as other grounds for refusing to refuse the state registration of rights or its suspension in accordance with this Federal law;

making entries into a single state register of rights to real estate in the absence of these contradictions and other grounds for refusing or suspension of state registration of rights;

completion of inscriptions on title documents and issuing certificates of state registration of rights.

"