The bases and ways of withdrawal of the grounds

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As well as for what reasons in Russia it is possible to lose the property right to the ground

Konovalova Olga Aleksandrovna
The senior lawyer of company Tenzor Consulting Group

The bases and ways of withdrawal of the ground areas in our state adjusts by Civil, Ground and Housing codes, and also by other normative-legal certificates

The current legislation allocates three ways of withdrawal of the grounds: it’s, actually, withdrawal for the state and municipal needs about which speech also will go in clause, and also requisition and confiscation.

As to confiscation according to clause 50 of the Ground code of the Russian Federation the site can be withdrawn from the proprietor under the decision of court as the sanction for commission of a crime. Such measure represents compulsory gratuitous withdrawal in the property of the state’s property or its part (in a context of a considered theme - the grounds), being the property of condemned. According to positions of a part of 2 clauses 52 of the Criminal code of the Russian Federation such kind of punishment can be apply for heavy and especially grave crimes in the form of an additional measure of punishment. The given measure can be carrying out only concerning the physical person - the proprietor of the ground area. Besides it, according to clause 243 of the Civil code of the Russian Federation confiscation can be made and administratively, and the decision on its carrying out can be appeal against in court. 

Requisition represents the time withdrawal of the ground area at its proprietor by the authorized agencies of the government in case of the circumstances having extreme character (acts of nature, natural cataclysms, large failures, epidemics and etc.), with a view of protection of the vital interests of separate citizens, a society and the whole state from the threats, which have arisen in connection with force major and dangers. Requisition should be made with obligatory compensation to the proprietor of the ground, of the losses caused to it and delivery of the document, confirming the fact of requisition (a part of 1 clause 51 of the Ground code of the Russian Federation).

Initially general provisions on requisition contain in the Civil code (clause 242).

The requisition from confiscation distinguishes its temporary and reprisal character, and also that circumstance that it is applying not as the sanction, and by virtue of necessity, as an extreme measure. The law stipulates the right of the owner to obtain on demand the requisitioned ground after the termination of force major, which had formed the basis for its carrying out. In the Ground code it specifies, that "in case of impossibility of return of the requisitioned ground area to its proprietor market the cost of this ground area is compensating or at its desire the equivalent ground area" (a part of 3 clauses 51 of the Ground code) is given. 

According to positions of the current legislation, the ground areas can be withdrawn both at physical, and from legal persons, who use the ground, both on the property right, and on the right of rent, constant termless or urgent using, and also on the right of lifelong inherited possession. At the same time in part 1 clause 279 of the Civil code of the Russian Federation contains the direct instruction on withdrawal of the ground at the proprietor for the state or municipal needs. In the same case, when it is a question of withdrawal of a site, which is at the owner on other interest in estate, also it is possible to speak about the termination of these rights with reference to rules, which had found the reflection in clauses 279-282 of the Civil code, proprietors concerning position (clause 283 of the Code).

However it is necessary to pay attention to that circumstance, that in the Ground code of the Russian Federation various conditions of the repayment of the ground areas for proprietors and other owners had fixed. So, according to a part of 4 clauses 63 of the Ground code only to the proprietor the market cost of a site should be compensated or the equivalent ground area had given free of charge in the property.

Situations as a result of which occurrence of the ground areas can be withdrawn, had listed in clause 49 of the Ground code. The unusual cases connected with performance of the international obligations of the Russian Federation, concern to them, and also connected with accommodation of objects of the state or municipal value at absence of other variants of possible accommodation of these objects. To those objects concern: objects of federal energy systems and objects of energy systems of regional value, objects of use of an atomic energy, objects of defense and safety, objects of federal transport, means of communication, computer science and communication, and also objects of transport, means of communication, computer science and communication of regional value; the objects, providing space activity, the status and protection of Frontier of the Russian Federation; linear objects of federal and regional value, providing activity of subjects of natural monopolies; objects electronic-, gas-, heat- and water supply of municipal value; highways of federal, regional or intermunicipal, local value.

All these cases have the right to existence at absence of other variants of possible accommodation of objects of the state, regional or municipal value .Here there is a question on that, and in which image it is possible to prove impossibility of application of other variants of accommodation of public objects, except for as by withdrawal of the ground areas. It represents, that it can be carrying out in the judicial order during carrying out of examination.

Thus, it is possible to conclude, that the legislation stipulates a duty of bodies of the government in each concrete case to prove necessity of withdrawal of the ground for the state or municipal needs.

It is necessary to notice, that though the list of the bases resulted above is settling and is not a subject to the expanded interpretation, however in same clause there is a clause that withdrawal can be made and at presence of other circumstances, which can be certain both federal laws, and laws of subjects of the Russian Federation. In practice it turns out, that because of presence of the given clause simple citizens become defenseless before the person of an arbitrariness of some government officials covered positions of the current legislation.

According to a part of 1 clause 279 of the Civil code of the Russian Federation the state body of that level of authority in which interests it will be carrying out should apply the decision on withdrawal of the ground. Such decision is a subject to obligatory registration in bodies of Federal registration service with the obligatory notice of the owner of a site and the instruction of date of the maiden registration (a part of 4 clauses 279 of the Civil code of the Russian Federation). 

Presence of the given requirement in the law connects with maintenance of restriction of the rights to a withdrawn site that the proprietor of the ground had no an opportunity it to sell to other person, having entered the last in error. 
According to the subitem "a" of item 3 of Rules of compensation to proprietors of the ground areas, land users, land owners and tenants of the ground areas of the losses, caused by withdrawal or time employment of the ground areas, restriction of the rights of proprietors of the ground areas, land users, land owners and tenants of the ground areas or deterioration of the grounds as a result of activity of other persons, approved by the Governmental order of the Russian Federation from 07.05.2003 № 262, the basis for the indemnification to proprietors of the ground areas are presence of the agreement on time employment of the ground area between the proprietor of the ground and the person in favour of whom time employment of the ground area is carrying out; presence of the certificate of the state enforcement authority or institutions of local government about restriction of the rights of the proprietor of the ground area, and also presence of the agreement about servitude; presence of the certificate of the state enforcement authority or institutions of local government about deterioration of the grounds as a result of activity of other persons; presence of the decision of court.

According to a part 2 of Rules, the one of the bases for the indemnification to land users, land owners and tenants of the ground areas is the certificate of the state enforcement authority or institutions of local government about withdrawal of the ground area for the state or municipal needs. However it is necessary to notice, that here there is an exception.

So, with reference to cities of federal value, which are Moscow and St.-Petersburg, according to item 3 of clause 79 of the Federal law from 06.10.2003 № 131-FL " About the general principles of the organization of local self-management in the Russian Federation " " the list of questions of local value, sources of incomes of local budgets of intercity municipal formations of cities of federal value of Moscow and St.-Petersburg define by laws of subjects of the Russian Federation - cities of federal value of Moscow and St.-Petersburg, proceeding from necessity of preservation of unity of municipal economy ". For example, in conformity with clause 10 of the Law of St.-Petersburg from 07.06.2005 № 237-30 " About the organization of local self-management in St.-Petersburg " the withdrawal of the grounds does not concern to the competence of bodies of local authorities.

In capital the Law from 06.11.2002 operates.

№ 56 "About the organization of local self-management in the city of Moscow ", according to which positions the withdrawal of the grounds also is not carrying to the competence of local authorities. Accordingly, decision-making on withdrawal of the ground areas, located in territory of these cities, can be carry out or in the form of orders of the federal government, or in the form of decisions of the governments of these subjects (clause 44 of the Charter of St.-Petersburg and, accordingly, clause 13 of the Charter of city of Moscow).

In March of this year the capital town governor had initiated expansion of the list of opportunities for the Moscow authorities to withdraw the ground from proprietors. Amendments assume the presence of the facilitated order of withdrawal of the ground areas for construction 
" objects of a social infrastructure, including apartment houses ". Capital authorities assure, that acceptance of amendments will solitarily affect increase in volumes of construction of habitation at deficiency of free territories and on maintenance with habitation of greater number of muscovites. Officials approve, that the document will extend only on the Moscow social programs and it is a question only of the municipal habitation, constructed on budgetary money.
However experts do not divide the similar point of view, including, that the law can worsen substantially position both simple citizens, and developers.
In what is an essence of amendments, initiated by the capital town governor in the Ground code of the Russian Federation? Authorities of Moscow want, that the list of the bases ,established at a federal level for withdrawal of the ground areas had been expanded and added, planned, that "the objects of social sphere, an available housing will be included in it, projected and erected completely due to budgetary funds on the basis of the state or municipal order " .

It supposes also, that new rules (in case of acceptance of amendments by the State Duma) will extend not only on the industrial grounds, but also on inhabited. Now in Moscow the rule of law according to which the government of capital has the right to withdraw the ground only with the consent of its proprietor and on the conditions offered by it operates.

The new order assumes, that conditions of the repayment will dictate authorities. And if today citizens still have a right to the reference in court behind protection of their broken interests, in case of acceptance of amendments at them such opportunity will not be. Thus, acceptance of the given bill will cause an aggravation of conflicts which and without that take place to be, and in considerable quantities. Moreover, there is a danger of that acceptance of amendments will cause actually a canceling of a private property, and not only in capital region. In fact the precedent in Sochi had already created.

Some experts believe, that Luzhkov can choose other way in the event that amendments will not be accepted by federal legislators, passed of the city law which will function, despite of the obvious contradiction to the federal legislation.

To speak about the one, who will suffer more from acceptance of a similar sort of amendments - developers or proprietors of buildings and the ground areas , - while it is premature. Clearly one, that the victims will be much. Pleases only that circumstance that while supporters of the initiative of capital mayor in the State Duma there is less than number of its opponents on the given question.

As to judiciary practice on this problem there is a Decision of Plenum of the Maximum Arbitration court of the Russian Federation from March, 24th, 2005 № 11 " About some questions, connected with application of the ground legislation ". In particular, in item 27 of the Decision the court specifies that by consideration of a similar sort of disputes in case of disagreement of the proprietor of a site with the decision of authorities on its withdrawal or at disagreement with it of the agreement on the redemption price, these authorized bodies have the right to sue in arbitration court about the repayment of the ground area not earlier than after one year from the moment of reception by the proprietor of the ground area of the notice in writing of decision-making on withdrawal and not later than two years from the moment of a direction of such notice.

In case of when the claim for the repayment of the ground area is shown before the expiration of one year from the moment of reception by the proprietor of the ground area of the notice on decision-making on withdrawal or after two years from the moment of its direction to the proprietor, the claim requirement of the specified bodies is not a subject to satisfaction.

In item 28 of the given Decision it specifies, that compulsory alienation of the ground area for the state or municipal needs is supposing only under condition of preliminary and equivalent compensation of its cost on the basis of the decision of court.

Equivalent compensation is understand as the redemption price of the ground area, in which join market cost of a withdrawn site, and also cost of a real estate being on it, all the losses, caused to the proprietor by withdrawal of the ground area, including losses which it will incur in connection with the preschedule termination of the obligations to the third parties, including the missed benefit.

In case, if the owner of the ground does not agree with the project cost, established in the decision of authorized body about withdrawal of the ground area or in case of the redemption price in it isn’t specify also by the parties after decision-making on withdrawal the agreement on the redemption price isn’t reach, the arbitration court defines a project cost, proceeding from its market cost at the moment of consideration of dispute. It is possible to make a conclusion, that such instruction of Plenum contradicts a valid provision of the Ground code of the Russian Federation, according to which, losses are define per day, previous decision-making on withdrawal of the ground areas or other restriction of the rights of land users ( part 4 of clauses 57) and by that creates potential threat of infringement of the rights of citizens and legal persons, in fact cost of the real estate right after the announcement of its withdrawal essentially decreases, frequently up to zero.

Besides actually compulsory withdrawal of the ground areas for the state or municipal needs exists also institute of reservation, which earlier had been only named in the Ground code, however 10.05.2007 years had been passed the Federal law №69-FL " About modification in separate acts of the Russian Federation regarding an establishment of the order of reservation of the grounds for the state or municipal needs". The ground code of the Russian Federation had been added by clause 56.1" Restriction of the rights to the ground in connection with reservation of the grounds for the state or municipal needs " and clause 70.1" Reservation of the grounds for the state or municipal needs ". In itself the reservation enables officials of various levels of authority the administrative decision to reserve practically any site for any state or municipal needs. At the same time the reservation excludes an opportunity of the repayment of the ground. Having leaded the brief analysis of the given Law, it is possible to conclude, that there was one more way "deprivation" the grounds at owners. 

Summing up to all above-stated, it is possible to make a conclusion, that all bases available now and ways of withdrawal of the ground areas have under themselves real ground for abusings in the given sphere.

16 July 2008
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