What is called the transfer of ownership of land. Legal basis of transactions
Ownership means the owner's ability to independently use and dispose of the property. He has the right to sell land, donate it, exchange it, bequeath it, and lease it. The emergence of property rights is carried out through the listed methods or using:
- court decisions;
- state and municipal acts;
- acquisitive prescription. It arises, according to Art. 234 of the Civil Code of the Russian Federation, when a citizen, not being the owner, conscientiously, openly and continuously owns the plot for 15 years.
Note!
Transactions can only be made with land registered in the Unified State Register of Real Estate. Without state registration, real estate, including land plots, cannot be recognized as someone else's property. Transfer of this right is impossible.
The procedure is regulated by several legal acts. Article 218 of the Civil Code of the Russian Federation defines the methods of transfer of rights and the agreement of the parties as its confirmation. The agreement, along with other documents, is submitted to Rosreestr. After its state registration, the new owner finally assumes rights. Along with this article, the process is regulated by Art. Art. 130, 223, 551 Civil Code of the Russian Federation and Art. 25 of the Land Code.
Transfer of rights to a plot when transferring ownership of a building or structure
Having received a property through the process of purchase, exchange or donation, the new owner becomes the owner of the land plot occupied by the building. This happens in the same proportions in which the previous owner owned the land. Obtaining new and alienating old rights does not arise.
If a building has several new owners, the land on which it is located passes to them according to the share principle.
At the same time, the owners of such buildings have a priority right to lease or purchase land. If it is put up for auction, it is their proposals that are considered first and cannot be ignored.
Dispute resolution takes place in court.
Commentary on Article 35 of the Land Code of the Russian Federation
Clause 1 of Art. 35 of the Land Code is based on one of the basic principles of land legislation - the unity of fate of land plots and objects firmly associated with them, according to which all objects firmly associated with land plots follow the fate of land plots, with the exception of cases established by federal laws (clause 5 of article 1 Land Code of Russia). Rule para. Clause 1 of the commented article reproduces the rule of clause 2 of Art. practically without changes. 271 of the Civil Code: when the ownership of real estate located on someone else’s land plot is transferred to another person, he acquires the right to use the corresponding land plot on the same conditions and to the same extent as the previous owner of the property. Paragraph 1 clause 1 art. 35 of the Land Code applies both to cases of privatization of real estate and to cases of transfer of rights to real estate in transactions between individuals and legal entities. The Plenum of the Supreme Arbitration Court of the Russian Federation noted the following regarding the first group of cases. The Law on the entry into force of the Land Code (Clause 7, Article 3) established that the privatization of real estate is carried out with the simultaneous privatization of the land plots on which they are located. By virtue of Art. 28 of the Law on the Privatization of State and Municipal Property, privatization of real estate is carried out simultaneously with the alienation to the person acquiring such property of the land plots occupied by this property and necessary for its use. When resolving controversial issues related to the application of these norms, one should proceed from the fact that the privatization of buildings, structures, structures, including enterprises and other property complexes, is carried out with the simultaneous privatization of land plots occupied by such property and necessary for its use (for except for cases when the corresponding land plots are withdrawn from circulation or limited in circulation). The 2005 Plenum of the Supreme Arbitration Court of the Russian Federation also emphasized that when considering disputes related to the application of the provisions of paragraph 3 of Art. 552 of the Civil Code and paragraph 1 of Art. 35 of the Land Code, which defines the rights of the buyer of real estate located on a land plot that does not belong to the seller by right of ownership, the following must be taken into account. The buyer of a building, structure, structure located on a land plot owned by the seller on a lease basis, from the moment of registration of the transfer of ownership of such real estate acquires the right to use the land plot occupied by the building, structure, structure and necessary for their use on a lease basis, regardless of whether the lease agreement between the buyer of real estate and the owner of the land plot has been drawn up in accordance with the established procedure <372>. ——————————— <372> Clauses 6 and 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 24, 2005 N 11 “On some issues related to the application of land legislation” // .
If the real estate is located on a land plot owned by the seller on the right of permanent (indefinite) use, and the buyer, in accordance with Article 20 of the Land Code, cannot be provided with a land plot on such a right, the latter as the person to whom the right of permanent (perpetual) use of the land plot has been transferred in connection with by purchasing a building, structure, structure (clause 2 of Article 268, clause 1 of Article 271 of the Civil Code), he can formalize his right to a land plot by concluding a lease agreement or acquire ownership of it in the manner prescribed by clause 2 of Art. 3 of the Law on the entry into force of the Land Code <373>. ——————————— <373> Paragraph 2 of clause 13 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 24, 2005 No. 11 “On some issues related to the application of land legislation” // .
Paragraph 2 of the commented article refers participants in land legal relations to paragraph 3 of Art. 33 of the Land Code of the Russian Federation. Rule clause 3 art. 33 of the Land Code applies, as we already indicated in our commentary to this article, including cases of privatization of buildings, structures and structures. The Plenum of the Supreme Arbitration Court of the Russian Federation <374> also set out its position on this issue in 2005 in its Resolution. ——————————— <374> Paragraph 4 of clause 13 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 24, 2005 No. 11 “On some issues related to the application of land legislation” // .
Clause 3 of Art. 35 of the Land Code represents two independent rules. The first sentence is based on paragraphs 1 and 2 of Art. 250 of the Civil Code, including in the scope of the pre-emptive right the right to lease a land plot. The second sentence (for the case if the land plot is in state or municipal ownership) is a reference to clause 1 of Art. 36 of the Land Code, within the meaning of which the right to acquire a land plot arises from persons whose rights to buildings, structures, structures arose on the grounds provided for by law and other legal acts; The exclusive right to privatize land plots or acquire the right to lease land plots has citizens and legal entities - owners of buildings, structures, structures.
Clause 4 of Art. 35 of the Land Code establishes, in fact, exceptions from the previous paragraph 3 of the commented article. Moreover, these exceptions are due to both technical (constructive) reasons (the impossibility of isolating in situ a part of a building, structure, structure together with part of the land plot), and due to the special legal regime of territories or buildings, structures, structures (objects), the list of which is given in clause 4 art. 27 of the Land Code.
Clause 5 of Art. 35 of the Land Code provides for a separate rule in relation to foreign citizens, stateless persons and foreign legal entities who have the pre-emptive right to either purchase or lease part of “foreign” land plots on which buildings, structures, and structures belonging to them are located. The rule on the pre-emptive right to acquire ownership of land plots by foreign individuals and legal entities - owners of buildings, structures, and structures located on them is aimed at implementing what is proclaimed in sub-clause. 5 p. 1 art. 1 of the Land Code as one of the basic principles of land legislation - the principle of the unity of fate of land plots and objects firmly associated with them. By virtue of this principle, a Russian citizen or legal entity that has the right of ownership of a land plot and an object of real estate firmly connected with it, located on the border or other specially established territory of the Russian Federation, does not have the right to sell to a foreign individual or legal entity either the specified land plot with the located objects of real estate on it, nor a building, structure, or structure located separately on such a site. Restrictions on the rights to land plots established by Russian legislation for foreign citizens do not apply to citizens of the Republic of Belarus, as well as to citizens of the Republic of Kazakhstan, Turkmenistan, the Kyrgyz Republic and the Republic of Armenia permanently residing on the territory of the Russian Federation - by virtue of international treaties concluded Russia with the specified states <375>. ——————————— <375> Bobryashova M.A. Rights to land plots of foreign individuals and legal entities in Russia: Author's abstract. dis. ...cand. legal Sci. M., 2012. S. 14, 24 - 25.
Clause 5 of Art. 35 of the Land Code is applied taking into account the provisions of paragraph 2 of Art. 5, paragraph 3, art. 15, paragraph 1, art. 22, paragraphs 4 and 5 of Art. 28 Land Code of the Russian Federation.
Rights of the owner of a building on someone else's land plot
In Art. 35 of the Land Code establishes the rights of the owner of a building that is located on someone else’s land plot. They are similar to the rights of the previous owner. The new owner of the building can use the land in the same way as the previous one used it. He does not have additional opportunities, but his rights are not limited.
Note!
The principle applies to all situations involving the transfer of property rights to a building, when the land on which it is located remains with another person. The surrounding space may belong to anyone, but the land occupied by the structure becomes the property of the owner of this structure.
The exception is the situation of permanent unlimited use of the building. In this case, the land plot is used only on the basis of a lease agreement.
