Method of allocating a land plot in an apartment building. Features of the formation of a land plot under an apartment building

Lawyers and realtors told why residents apartment buildings it is worth thinking about the design of the adjacent land plots into common ownership

The issue of registering land for ownership of apartment buildings became acute for some Muscovites after the launch of the renovation program. Until this resulted in real property rights - Rosreestr told RBC-Real Estate that they do not observe an increase in citizens' applications. The editors found out from lawyers and realtors why they need ownership of land under the house, and Rosrestra told how to register it.

The owners of premises in an apartment building (MKD) are at the same time the owners of common property in this building: attics, basements, roofs, engineering equipment. The list includes the land on which the house is located with adjoining territories within cadastral plot, as well as all the elements of landscaping and landscaping, says Maria Litinetskaya, managing partner of the Metrium Group real estate company.

According to the Housing Code of the Russian Federation, the land plot on which the apartment building is located with the adjacent territory necessary for its operation belongs to the owners of the premises of this house on the basis of a common shared ownership.

“There are no houses without land - even during the construction of new residential buildings, the shareholder already receives the right to the land on which the house will be located. Even if the object is not completed, equity holders have the right to register the ownership of the unfinished building and the land plot under it, ”explained Maria Litinetskaya.

Currently clearance land plot adjacent to the MKD, in Moscow is a right, not an obligation of the owners. “So far, the Moscow government is not forcing Muscovites to formalize their rights to land. This is also due to the fact that in this case it is convenient for the city authorities to dispose of their municipal land, without taking into account the interests of the owners of the premises in the apartment building, ”Mikhail Kurdzhev, partner of the law firm A2, told RBC Real Estate.

Why do you need ownership of land near your home

Residents of MKD become full-fledged owners of the site, which means that they receive additional features dispose of their common land. Ownership rights to land, according to lawyers interviewed by the editorial board of RBC-Real Estate, are not limited. The owners have the right to make a decision even to build on a site in established by law order or transfer of part of the site for lease, they explain.

“The owners of apartments can distribute among themselves the land for a ground parking in the courtyard, build or demolish any improvement elements, install a barrier at the entrance to the courtyard or fence the entire territory, lease part of the land,” the managing partner of Metrium Group gives examples Maria Litinetskaya. In addition, they can protect themselves from infill development, because often, if the land remains in municipal ownership, the authorities give it for construction, which directly contradicts the interests and comfort of residents of nearby houses, she said.

At the same time, along with rights, obligations arise. In particular, the owners of apartment blocks will have to independently resolve issues of property maintenance (leisure zones, roads and sidewalks, parking spaces), explains Maria Litinetskaya.

Land and renovation of five-story buildings

If the house is included in the renovation program, then the owners, upon receiving an equivalent apartment, must also receive compensation for their share in common property on the ground and objects on it. “The market price for a real estate object is formed not only on the basis of the cost of the residential premises itself, but also of the entire building, the land under it and common facilities. Therefore, the fair monetary compensation, which is provided for by the bill on renovation, will already include reimbursement of the value of the land plot under the house, ”says Maria Litinetskaya.

With unregistered land, the owners of apartments do not have rights to it. This poses a threat to the residents of the houses, because the authorities can offer compensation without taking into account the cost of land under the five-story building, notes Maria Litinetskaya.

“If the land is registered in the shared ownership of residents apartment building included in the housing renovation program, then there is reason to raise the issue of paying appropriate compensation in the event of the seizure of a land plot for state needs, if its withdrawal will be made according to this procedure. As far as I know, the law on renovation does not provide for any other special options, ”says Dmitry Shevchenko, partner of the Zamoskvorechye Law Office.

“Therefore, before making a decision on renovation, the owners of apartments in Khrushchevs should demarcate the plot under their house, put it on the cadastral register and register it as property. I would also recommend doing this to the owners of apartments in MKD, which are located in the immediate vicinity of the five-story buildings. If their site is also not formalized (and, say, is the property of the city, as well as the adjacent land with the Khrushchev), then with future development the authorities will be able to “cut off” an important piece of land from them, ”adds Maria Litinetskaya.

We will remind that earlier the chairman of the State Duma committee on housing and communal services Galina Khovanskaya urged residents of the demolished five-story buildings to put the land under these houses on the cadastral register. “I would like to mention the decision of the Supreme Court of the Russian Federation for the case when the owner will not demand compensation in kind, but monetary compensation... Then, in addition to the market value of the dwelling, it includes a share in the right to common property and to a land plot. I urge all Muscovites to attend to cadastral registration of land plots under their houses, because only in this case the cost of the land plot will be included in market value apartments, ”said Galina Khovanskaya at a press conference on the renovation program in the State Duma on May 19.

On what basis does the land belong to the owners?

If the territory is registered and formed before the entry into force Housing Code(that is, until 03/01/2005), then the owners of apartments in an apartment building are considered its owners from the date of entry into force of this code, a representative of the Office told RBC-Real Estate Federal Service state registration, cadastre and cartography in Moscow (Rosreestr).

If the site is formed and entered in the cadastre after the adoption of the code, then the right joint ownership appears by virtue of the law "On the introduction of the Housing Code of the Russian Federation". These provisions have been repeatedly confirmed by the courts, as well as ministries and departments of Russia, he added.

"By virtue of the law on state registration of real estate, proof of the existence of the right to real estate is the state registration of such a right in the Unified State Register of Real Estate, ”said lawyers interviewed by RBC Real Estate. According to them, in order for this property right to land to be official, it must be formalized and the relevant data entered in the state register.

However, arrange the land under apartment building in Moscow it is not easy and often possible only through the courts, lawyers say. The main problems they call the fact that on the cadastral map of the capital, under many houses, a land plot is not formed, and its boundaries are often not defined.

According to the current legislation (No. 189-ФЗ dated December 29, 2004), the formation of land plots on which an apartment building is located is carried out by the authorities state power or local government. In Moscow, such an authorized body is the city property department, which, within the framework of its powers, approves the boundaries of the site on the cadastral map of the territory, if the site is delimited.

If the site is not delimited, then the definition of its boundaries can be made with the help of the services of a cadastral engineer, who will prepare a land plot plan. Data on this site can also be provided by the cadastral engineer at electronic system maintaining a register of rights to real estate.

Registration of documents for a land plot is carried out by the authorities for state registration of rights to real estate (Rossreestr), for which this body is provided with the relevant documents provided for by the Law on State Registration of Real Estate, in particular, the decision of the general meeting of owners of premises on the formation of the land plot and on the determination of shares, an application , land plot plan and others required for state registration of rights.

“Without carrying out these procedures, the land plot will not be formalized into common shared ownership, therefore, the residents of the apartment building will not have any powers of the owner in relation to this land plot. They will not be able to dispose of this land or make any claims against it, ”explained Dmitry Shevchenko, partner of the Zamoskvorechye Law Office.

How to register land at home in ownership

The land plot on which the apartment building with the adjacent territory is located can be registered in the common share ownership of the owners of the premises of the apartment building (MKD). According to Mikhail Kurdzhev, the basis for registration of the right is the decision of the owners of the MKD, as well as cadastral passport land plot.

It is necessary to check on the public cadastral map whether a land plot has been formed under a specific house. If it is generated and you know its number, you need to send a request to obtain information about the site on the Rosreestr website. After payment and receipt of an extract with a passport and a certificate of ownership of residential or non-residential premises in this house (now, instead of a certificate of ownership, they issue an extract and USRN), contact the Provision Center public services"My documents". In the center of public services, a state fee of 600 rubles should be paid. and submit the documents, in three days an extract on the right to a share in the common ownership of the site should be ready.

If the plot under the house is not formed, then the residents themselves are engaged in the registration of the right. Usually they organize a general meeting, conclude an agreement with a cadastral engineer, pay for the preparation of a land-survey plan, and appoint a representative. The latter fills out an application and submits a package of documents to Rosreestr.

In order to issue a cadastral passport for a land plot, it is necessary to carry out a land survey. A cadastral engineer prepares a land survey project. Next, it is necessary to agree on the draft borders with the owners of neighboring plots (if any) or with the Moscow government (if all the land around belongs to the city), Mikhail Kurdzhev describes the procedure.

As a rule, the cadastral engineer takes data about the area served from the operating organization (that is, the area that is actually contained owners of MKD, paying for the operating and cleaning costs of the house itself and the surrounding area), explains Mikhail Kurdzhev.

The land-surveying plan is approved by the Moscow City Property Department and then submitted to public hearings, at which the owners of the residential building approve (or not approve) the land-surveying project by an absolute majority of votes. “This procedure is legal and spelled out in Art. 46 Civil Code... It exists so that owners can get acquainted with boundary plan, ask questions to the designers, make your suggestions. After the approval of the project, the actual boundary works begin. As a rule, they cost about 30-40 thousand rubles. from one house.

After that, with a landline plan in hand, the owners turn to Rosreestr so that their land plot was put on the cadastre, ”adds Maria Litinetskaya.

What documents are needed

The list of documents required for state registration of rights to a land plot under an apartment building is established by Federal Law No. 218-FZ dated July 13, 2015 "On State Registration of Real Estate" and other regulatory legal acts:

Application for state cadastral registration and state registration of the right to common shared ownership of common property in an apartment building;

A document proving the identity of the applicant or a person authorized by him, if he has a notarized power of attorney (when submitting an application through a personal appeal);

The decision of the general meeting of owners of premises in an apartment building on the formation of a land plot on which the apartment building is located;

Documents on the formation of the land plot on which the apartment building is located (landline plan, etc.);

The decision (minutes) of the general meeting of owners of premises on the determination of shares in the right of common shared ownership of common property in an apartment building;

Documents of title confirming the existence of the rights of owners of premises in an apartment building that arose before January 31, 1998 (if at the time of submission of documents for state registration of the right of common shared ownership of real estate premises in an apartment building in the USRN there are no records of state registration of the rights of these owners) ;

Where to submit documents

Documents for state registration can be submitted in person through the centers for the provision of public services "My Documents", reception offices of the branch of the Federal State Budgetary Institution "FKP Rosreestr" or sent by mail (with a list of investments and declared value) or in electronic format through the Rosreestr portal. The registration period will be seven working days, if the documents are submitted through the center for the provision of public services "My Documents", the registration period will be nine working days.

2.1 Regulations

The formation of land plots for apartment buildings is one of the most pressing topics in land and housing law.

The issues of forming land plots for apartment buildings are regulated in the following regulatory legal acts:

1. Land Code Russian Federation dated October 25, 2001 No. 136-FZ (hereinafter referred to as the RF LC) (clause 2, article 36).

2. The Housing Code of the Russian Federation of December 29, 2004 No. 188-FZ (hereinafter referred to as the Housing Code of the Russian Federation) (part 1 of article 36).

3. Federal Law of December 29, 2004 No. 189-FZ "On the Enactment of the Housing Code of the Russian Federation" (hereinafter - the Introductory Law to the RF Housing Code) (Art. 16).

4. Urban Development Code Of the Russian Federation of December 29, 2004 No. 190-FZ (hereinafter referred to as the Civil Code of the Russian Federation) (Articles 42–46).

5. Federal Law of December 29, 2004 No. 191-FZ "On the Enactment of the Urban Planning Code of the Russian Federation" (hereinafter - the Introductory Law to the Civil Code of the Russian Federation) (part 2 of article 6).

6. Federal Law of July 24, 2007 No. 221-FZ "On the State Real Estate Cadastre" (hereinafter - Federal Law No. 221-FZ) (Articles 16, 17, 20, 22, 23, 37-40).

According to paragraph 2 of Art. 16 of the Housing Code of the Russian Federation, a residential building is an individually defined building, consisting of: 1) rooms, as well as premises for auxiliary use, intended to satisfy citizens' household and other needs associated with their residence in such a building; 2) from two or more apartments with independent exits either to a land plot adjacent to a residential building, or to common areas in such a building.

Under the multi-apartment residential building means a set of two or more apartments that have independent exits either to a land plot adjacent to a residential building, or to common areas in such a building; An apartment building contains elements of the common property of the owners of premises in such a building in accordance with housing legislation. Two-apartment residential buildings are also apartment buildings and, accordingly, they are subject to the norms of housing and land legislation on apartment buildings.

The ownership right of citizens to land plots under apartment buildings is indicated in paragraph2 article 36 of the Labor Code of the Russian Federation. In accordance with this article, in the existing development, land plots on which structures that are part of the common property of an apartment building, residential buildings and other structures are located are provided as common property in the common shared ownership of homeowners in the manner and under the conditions established by housing legislation ...

Consequently, the conditions and procedure for the provision of land plots for apartment buildings in the common shared ownership of the owners of premises in such buildings are provided for in the housing legislation.

In paragraph 1 of Art. 36 of the RF LC contains only a general provision that the owners of premises in an apartment building own, on the basis of common share ownership, the land plot on which this house, with elements of landscaping and improvement, other intended for the maintenance, operation and improvement of this house and located on the specified land plot.

The conditions and procedure for the provision of land plots in the common shared ownership of the owners of premises in apartment buildings are enshrined in Art. 16 of the Introductory Law to the RF LCD.

On the basis of Article 16 of the Introductory Law to the RF LC, the land plot on which the apartment building and other real estate objects that are part of such a house are located, which was formed before the RF LC came into force and in respect of which the state cadastral registration was carried out, is transferred free of charge to the general share property of the owners of premises in an apartment building.

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

From the moment the land plot is formed and its state cadastral registration is carried out, the land plot on which the apartment building and other immovable property included in such a house are located shall be transferred free of charge into the common shared ownership of the owners of premises in the apartment building.

2.2 Concept of the right of common shared ownership

The term "property right" is understood in two meanings, such as property right in the objective sense and property right in the subjective sense. Property right in the objective sense is a set of legal norms governing property relations. Ownership in the subjective sense is a legally secured ability of a person to exercise the powers of possession, use and disposal of the thing belonging to them.

Property relations are governed by the norms of constitutional, civil, administrative, tax, labor and other branches of law.

Common share ownership is property that is in common ownership with the determination of the share of each of the participants and the right of the co-owner to receive a certain share of income from the use of the property, as well as his obligation to bear a certain share of the costs of maintaining the common property.

The relationship of common shared ownership of property in common use is very complex and specific. Their specificity manifests itself already at the stage of the emergence of common shared ownership of common property. The basis for the emergence of common shared ownership of common property is a direct indication of the law.

So, for example, in Art. 289 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), it is established that the owner of an apartment in an apartment building, along with the premises he owns occupied as an apartment, also owns a share in the ownership of the common property of the house.

Ownership interest is expressed as a fraction or percentage. According to paragraph 1 of Art. 245 of the Civil Code of the Russian Federation, the shares of the participants are assumed to be equal, unless otherwise follows from a law, an agreement or the essence of the relations that have developed between them.

The size of the share can change for various reasons: changes in the composition of participants, improvements to the property, etc.

According to paragraph 3 of Art. 245 of the Civil Code of the Russian Federation, when making improvements to the property in compliance with the established procedure, the participant has the right to increase his share in proportion to the increase in the value of the common property, if the improvement is inseparable or acquires the right of ownership to a separable improvement without increasing his share.

According to Art. 247 of the Civil Code of the Russian Federation, the exercise of the right of common shared ownership occurs by mutual agreement of all owners. If there is no agreement on the ownership or use of common property, each participant has the right to resolve the dispute in court. If there is no agreement on the disposal of common property, the dispute cannot be settled by the court.

In accordance with paragraph 1 of Article 36 of the RF LC, the land plot on which the house is located is part of the common property in an apartment building. The common property in an apartment building belongs to the owners of premises in an apartment building on the basis of the right of common shared ownership.

Clause 2 of Article 8 of the Civil Code of the Russian Federation establishes that the rights to property subject to state registration arise from the moment of registration of the corresponding rights to it, unless otherwise provided by law. an apartment building and other immovable property included in such a building shall be transferred free of charge into the common shared ownership of the owners of premises in an apartment building.

The owners of premises in apartment buildings (hereinafter - MKD) have the right to common shared ownership of the land plot on which such houses are located arises by virtue of the direct instruction of the law.

According to article 15 of the Introductory Law to the Housing Code of the Russian Federation, the share in the right of common ownership of common property in an apartment building is proportional to the size of the total area of the premises owned by the right of ownership in an apartment building, if adopted before the entry into force of this Federal law the decision of the general meeting of owners of premises or other agreement of all participants in shared ownership of common property in an apartment building has not established otherwise.

The share in the right of common ownership of the common property in the apartment building of the owner of the premises in this building follows the fate of the ownership of the said premises. When the ownership of the premises is transferred to the new owner, the share in the joint ownership of the common property of the building is simultaneously transferred, regardless of whether there is an indication of this in the agreement on the alienation of the premises.

The owners of premises in an apartment building own, use and dispose of common property in an apartment building; reducing the size of common property in an apartment building is possible only with the consent of all owners of premises in this house by means of its reconstruction.

The RF Housing Code has established serious restrictions on the rights of the owner of the premises in an apartment building. He has no right (Article 37 of the LC RF):

1) to allocate in kind his share in the right of common ownership of common property in an apartment building;

2) alienate their share in the right of common ownership of common property in an apartment building (without transferring from ownership of the dwelling itself);

3) perform other actions entailing the transfer of this share separately from the ownership of the said premises.

Thus, when a new owner acquires a dwelling in an apartment building, the share of the former owner in the right of common ownership of the common property in the apartment building is transferred to the new owner (Article 38 of the RF LC). That is, the right of common ownership of common property arises from apartment owners due to the fact that they have acquired a living space.

In accordance with clause 2 of Article 23 of Federal Law No. 122-FZ, state registration of the emergence, transition, restriction (encumbrance) or termination of the right to residential or non-residential premises in apartment buildings is simultaneously state registration of the inseparably linked right of common shared ownership of common property. At the same time, a certificate of state registration of rights in connection with the state registration of the right to common shared ownership of real estate objects is not issued to the owner of the premises in an apartment building.

According to the Instruction on the peculiarities of making entries in the Unified State Register of Rights to Real Estate and Transactions with It during the state registration of rights to real estate objects that are common property in an apartment building, providing information on the registered rights of common shared ownership of such real estate objects, approved by the Order Of the Ministry of Justice of the Russian Federation of February 14, 2007 N 29, information on state registration of the right to common shared ownership of real estate is included in the certificate of state registration of rights issued to the owner of the premises in an apartment building by entering into it a description of the real estate and indicating the size of the share in the right of common ownership of it.

Taking into account the provisions of Article 23 of Federal Law N 122-FZ, Article 16 of Law N 189-FZ, the state registration of the right to common shared ownership of a land plot, which is common property in an apartment building, has a legitimate character.

The composition of the common property belonging to the owners of premises in an apartment building on the basis of common shared ownership is determined in accordance with the RF Government Decree of 13.08.2006 No. 491 "On approval of the rules for maintaining common property in an apartment building." The composition of the common property is determined by:

a) owners of premises in an apartment building (hereinafter referred to as owners of premises) - in order to fulfill the obligation to maintain common property;

b) state authorities - in order to control the maintenance of common property;

c) local authorities - in order to prepare and conduct an open competition for the selection of a management organization in accordance with part 4 of Article 161 of the RF LC

The structure of the common property includes:

a) premises in an apartment building that are not part of apartments and are intended to serve more than one residential and (or) non-residential premises in this apartment building (hereinafter referred to as common premises), including inter-apartment staircases, stairs, elevators, elevators and other mines, corridors, wheelchairs, attics, technical floors (including built-in garages and areas for road transport, workshops, technical attics built at the expense of the owners of the premises) and technical basements, which have engineering communications, otherwise serving more than one residential and (or) non-residential premises in an apartment building equipment (including boiler rooms, boilers, elevator units and other engineering equipment);

c) enclosing load-bearing structures of an apartment building (including foundations, load-bearing walls, floor slabs, balcony and other slabs, load-bearing columns and other enclosing load-bearing structures);

d) enclosing non-bearing structures of an apartment building serving more than one residential and (or) non-residential premises (including windows and doors of common areas, railings, parapets and other enclosing non-bearing structures);

e) mechanical, electrical, sanitary and other equipment located in an apartment building outside or inside the premises and serving more than one residential and (or) non-residential premises (apartments);

f) the land plot on which the apartment building is located and the boundaries of which are determined on the basis of data from the state cadastral registration, with elements of landscaping and beautification;

g) other facilities intended for the maintenance, operation and improvement of an apartment building, including transformer substations, heating points intended for servicing one apartment building, collective parking lots, garages, children's and sports grounds located within the boundaries of the land plot on which the apartment building is located ...

Common property relations are, on the one hand, the relations of co-owners with each other, which are formed regarding the exercise of the powers of possession, use and disposal of the object of common property (internal relations), and on the other hand, it is the relations of all co-owners that develop regarding the object of common property with any third parties (external relations).

2.3Features of the formation of a land plot under an apartment building

A land plot is a part of the earth's surface, the boundaries of which are determined in accordance with federal laws.

Formation of a land plot - "the performance of work in relation to a land plot in accordance with the requirements established by Federal Law N 221-FZ, as a result of which the preparation of documents containing information on such a land plot (cadastral work) necessary for the implementation of state cadastral registration is provided, state cadastral registration of such a land plot "(Clause 1, Part 4, Article 30 of the RF Labor Code).

In other words, this is a description of a land plot as an object of state cadastral registration in accordance with the application for the performance of work and accounting rules, in the amount that is necessary for entering information into the Unified State Register of Lands.

The land plot formed in this way serves as the basis for its cadastral registration, and then, together with the decision of the executive authority on the allocation of this site for the construction and operation of the building, for state registration of the site, assigning it to a specific owner.

The procedure for the implementation of actions for the formation of land plots is provided for by federal legislation, in particular, Federal Law No. 221-FZ and by-laws to it. However, the procedure for the formation of land plots for apartment buildings has its own characteristics of legal regulation.

The main provisions on the formation of land plots occupied by apartment buildings are enshrined in the Federal Law of December 29, 2004 No. 189-FZ "On the Enactment of the Housing Code of the Russian Federation" and they are relevant for a huge number of citizens and legal entities - owners of apartments in multi-apartment residential houses.

According to article 16 of the Introductory Law to the Housing Code of the Russian Federation, in the existing development of settlements, the land plot on which an apartment building and other real estate objects that are part of such a house are located is the common shared property of the owners of premises in an apartment building.

In accordance with part 1 of Article 36 of the Housing Code of the Russian Federation, the common property of an apartment building includes the land plot on which this house is located, with elements of landscaping and improvement and other objects located on the specified land plot intended for maintenance, operation and improvement of this house.

With the entry into force of the Housing Code of the Russian Federation, that is, from March 1, 2005, a procedure has been established for the implementation of ownership of land plots under apartment buildings. By virtue of Article 16 of the Federal Law "On the Enactment of the Housing Code of the Russian Federation", the land plot from the moment of its formation and state cadastral registration is transferred free of charge into the common shared ownership of the owners of premises in an apartment building.

The legal status of a land plot under an apartment building, and the procedure for registering such a land plot are the most controversial and discussed issues. A huge number of federal, regional and departmental regulations have been issued on this topic, which owners of residential premises cannot always understand on their own. This situation gives rise to numerous disputes among lawyers, and officials use it, infringing on the rights and legitimate interests of citizens.

But, there is a certain hierarchy of laws, according to which federal laws have supremacy, and the rest of the legislation cannot contradict them. If published regulations contain provisions other than in federal laws, they cannot be taken into account and have no legal force.

Land relations to one degree or another are regulated by the Land, Urban Planning and Housing Codes. They clearly define the legal status of a land plot occupied by an apartment building.

According to Art. 16 of the Introductory Law to the Housing Code of the Russian Federation, the ZUs of houses built before the entry into force of the Housing Code, placed on the state cadastral register, become common property from the moment the Housing Code came into force, and those formed after this time become common property from the moment of the state cadastral registration ... It is fundamentally important that such a right arises by virtue of the law and does not require any acts of the authorities. Land transfer is free of charge.

"The state registration of the emergence, transfer, restriction (encumbrance) or termination of the right to residential or non-residential premises in the MKD is at the same time the state registration of the inextricably linked right of common shared ownership of common property" (Part 2 of Art. 23 of Federal Law No. 122-FZ ).

If the site adjoining territory is not formed, then neither state nor municipal bodies have the right to dispose of this land in the part in which the ZU should be formed as a common shared property. If the indicated authorities nevertheless disposed of this land, then the owners of the premises in the house by virtue of Art. 305 of the Civil Code of the Russian Federation have the right to demand the elimination of any violations of their rights

The formation of the ZU and its state cadastral registration is the responsibility of the authorities, however, if this is not done, then in accordance with clause 4.3 of the Decree of the Constitutional Court No. 12-P, any owner can apply to the state authorities or local self-government with an application for the formation of the ZU. No decision of the general meeting is required.

The exclusive right to receive the land plot on which the apartment building is located belongs to the owners of the premises of the apartment building. The emergence of property rights does not depend on the publication of law enforcement acts by state authorities or local self-government bodies, but is set by law depending on the formation of a land plot, while state registration of the right to common shared ownership of a land plot is not legal, but only legal, since in force of direct statute(Article 16 of the Introductory Law to the RF Housing Code) the ownership right arises fromthe moment of registration of the land plot on the cadastral registration.

If the right to the memory of MKD is almost not contested, then huge controversies arise on the issue of the size of the memory. The question is all the more relevant because there are different legal acts, defining the standards for the provision of the MKD memory, introducing the concept of "land under an apartment building", etc.

The Housing Code does not give a clear understanding of the size of the land “assigned” to the house, indicating in Art. 36 only that it includes “elements of landscaping and improvement and other objects intended for the maintenance, operation and improvement of this house”. However, the article refers to land and urban planning legislation: “ The size of the land plot on which the apartment building is located is determined in accordance with the requirements of land legislation and legislation on urban planning activities "

According to the Land Code - The boundaries of the land plot are determined taking into account the red lines, the location of the boundaries of adjacent land plots (if any), the natural boundaries of the land plot. Thus, the Land Code also does not determine the size of the MKD memory. An indication of the definition of the boundaries of the memory is contained in Part 4 of Art. 43 of the Urban Planning Code: "The sizes of land plots within the boundaries of the built-up territories are established taking into account the actual land use and urban planning standards and rules in force during the development of these territories."

There is a calculation of the standard area of the land plot for apartment buildings. During the construction of residential buildings, the standard for the land plot was observed.

The standard size of a land plot is calculated by multiplying the total area of residential (at the time of construction of the house) premises in an apartment building by the specific indicator of the land share according to the formula (1):

where: S nru - standard size of the land plot in square meters,

S is the total area of living quarters in the house,

Y is the specific indicator of the land share for buildings of different storeys.

Specific indicators of the land share per 1 sq. m of the area of residential premises, depending on the number of storeys and the construction period, are shown in Table 1.

Clarification of the specific indicators of the land share for buildings of different storeys with built-in and attached non-residential premises, taking into account the requirements for the operation of these premises (organization of entrances, approaches, turning platforms for transport) is carried out by local governments based on territorial urban planning standards, urban planning and legal zoning a specific territory, taking into account the town-planning value and regional characteristics of the territories.

Basic principles of forming the boundaries of land plots under apartment buildings:

1. The boundaries of a land plot under an apartment building and other real estate objects included in such a house are established taking into account the red lines, the boundaries of adjacent land plots (if any) and driveways, natural boundaries of land plots, the boundaries of the allotment of trunk engineering and transport communications, unless otherwise specified by town planning requirements.

Building codes

Number of storeys

1957 SN 41-58

SNiP II-K.2-62

SNiP II-60-75

MGSN 1.01-94

Table 1 - Specific indicators of land share (Guidelines for calculating the standard size of land plots in condominiums SP 30-101-98 Gosstroy of Russia)

2. The boundaries of the land plot include all objects that are part of immovable property, entrances and passages to them.

3. When establishing boundaries, provision should be made for ensuring the rights of other persons to use the facilities necessary for them within the boundaries of the land plot, parts of the underground and aboveground space. Pedestrian walkways and driveways to objects located outside the site, if no other access to them is possible, as well as to necessary public facilities by establishing a public easement by the local government body, taking into account urban planning standards.

4. The boundaries of land plots within which real estate objects are located, intended for electricity, heat, gas, and water supply to the population and wastewater disposal, as well as the boundaries of the zones of action of public easements within residential quarters, microdistricts to ensure unhindered maintenance of the specified property are established local government bodies as part of land-surveying projects taking into account local urban planning standards.

5. Land plots of general use, occupied by squares, driveways, highways, embankments, squares, boulevards, water bodies, beaches are not subject to privatization. Land plots reserved for state or municipal needs are not provided for private ownership.

6. The standard size of a land plot transferred into the common shared ownership of the owners of premises in an apartment building free of charge is determined depending on the area of the land plot on which the apartment building and other immovable property included in such a house are located, as well as taking into account the adjacent territories necessary for their functioning (maintenance), taking into account the compliance with the requirements of urban planning standards, fire safety, sanitary gaps between buildings and other standards that ensure normal living conditions in an apartment building. At the same time, normal living conditions on adjacent land plots must be ensured.

7. If the actual area of the land plot in the existing development is less than the standard size of the area transferred free of charge to the common share ownership of the owners in the apartment building, and it is not possible to increase the size of the land plot due to adjacent land plots, then the boundaries of the land plot of the apartment building are established according to the actually existing borders.

8. The excess territory can be transferred to the owners of premises in an apartment building for ownership (for a fee), rent only on the condition that it, in accordance with the approved urban planning documentation, cannot be used as an independent object.

Based on the requirements provided for by the provisions of the Town Planning Code of the Russian Federation (hereinafter referred to as the Town Planning Code) and the Land Code of the Russian Federation (hereinafter referred to as the Land Code), the formation of a land plot under an apartment building includes:

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

2) fulfillment in relation to the land plot cadastral works and implementation of the state cadastral registration of the land plot.

At the same time, the preparation of the project for the planning of the territory and the project for surveying the territory, carried out in relation to the land plot located under the apartment building, belongs to the competence of local authorities.

Based on Art. 9 - 11 of the Land Code, the formation of a land plot in federal ownership is carried out by federal executive bodies, the formation of a land plot in the ownership of a constituent entity of the Russian Federation - by executive bodies of state power of a constituent entity of the Russian Federation, the formation of a land plot in municipal ownership - local government bodies.

If state property on a land plot is not delimited, the formation of such a land plot is carried out by a local government body (clause 10 of article 3 of the Federal Law of 25.10.2001 N 137-FZ "" On the Enactment of the Land Code of the Russian Federation "").

Carrying out cadastral work is carried out by a cadastral engineer on the basis of a work contract concluded in accordance with the requirements of civil legislation and Federal Law N 221-FZ for the performance of cadastral work at the initiative of the owner of the land plot (customer). At the same time, any person has the right to conclude this agreement with a cadastral engineer.

The decision on the formation of a land plot is taken by the bodies providing land plots (Article 29 of the RF Labor Code), including on the basis of a request from the interested rightholder of the land plot.

After the land plot is formed and cadastral registration has been carried out in respect of it, the land tax payers are recognized as the owners of residential and non-residential premises this house.

According to paragraph 1 of Art. 392 Tax Code RF, the tax base for land plots in common share ownership is determined for each of the taxpayers who own this land plot, in proportion to its share in the common share ownership.

More than 100 million citizens live in apartment buildings, which is approximately 2/3 of the total population of the Russian Federation. It is not surprising that the issue of adjoining land areas in apartment buildings worries many. Apartment owners should know how to find out who owns a land plot and how to register it in ownership in 2020.

General information

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Housing legislation indicates that the common house plot of land, which was put into operation before 2005, is transferred to the common share ownership of the residents of the house free of charge.

This type of transfer of land for general use occurs subject to a certain number of conditions:

the site has a plan with the designation established by the local authority;
land management work was completed before 2005, when the Housing Code of the Russian Federation came into force;
the site on which the apartment building is located was entered into the Federal State Registration Service and the developed cadastral plan.

If the above conditions have not been met, then the land plot will be considered not transferred to the ownership of the residents of the apartment building. With regard to housing in new buildings built after the specified goal, the apartment owners will be the owners on an automatic basis.

The legislative framework

TO legislative acts affecting property rights issues include:

Housing Code of the Russian Federation;
Federal legislation under 29.12. 2004, from 24.07.2007, from 29.12.2004;
Government Decisions No. 576 and 1223.

Land under an apartment building

At the legislative level, there are many subtle points regarding land under apartment buildings.

Among them are:

This property includes all the premises of the house that are not residential, but are necessary for the full operation of apartments, including corridors, roofs, land plots, etc.
The owners of apartments in the building have the right to use shared ownership for their own purposes, if this does not directly infringe on the rights of neighbors and other citizens.
Disposal of land belongs to the right only of apartment owners, but full ownership is allowed only within the framework of the Housing Code of the Russian Federation.
The transfer of ownership implies the assignment of responsibility for.
Any changes regarding the adjoining land are decided and accepted on general meeting of all residents of the house, in order to make a legitimate decision, it is required to collect more than half of the votes from the total number of residents.

The owners of the common house area can restrict the site in terms of use. For example, such a restriction may apply to the use by the yard of subjects that are not part of the tenants of the house.

How do you know who owns?

There are two ways to find out who owns the land under an apartment building:

Go to the official website of Rosreestr and click on the tab where it is shown - here you can view the territory of the city divided into sectors, study the detailed information about the site.
The second way is to check for the presence tax payments According to the rules, home owners are required to pay land tax annually.

Formation

The formation of the site, on the territory of which the apartment building is located, belongs to the powers of the authorities. Landmarks of the site are determined taking into account the requirements of land and town planning legislation.

The procedure for forming a site provides for the following sequence of actions:

An eligible person is elected at a meeting of apartment owners. The selected person is empowered with regard to appeals to the authorities with an appropriate application providing for a request to form a participant and conduct a cadastral registration in relation to him.
The boundaries of the site are being formed. On the basis of the application received, the local authority within a month must ensure the work on the formation of the boundaries of the allotment and approve the scheme of its location.
The land plot is put on. The procedure begins after the completion of the formation of the site. The submitted documentation must contain an indication that it is an apartment building on the ground. This means that the layout of the site must contain an indication of the type of permitted use, for example, "for placing an apartment building."

Accounting for land plots is accompanied by a procedure that includes information on the entitlement to such plots. The cadastral document contains an indication of the type of ownership, information about the owner and other special marks.

Sizes and borders

Norms land law determine the size of the plots. They are calculated taking into account the actual volumes of land use and the approved urban planning rules.

The formula should take into account:

percentage (coefficient) of building;
the availability of the passage of vehicles;
total occupied space of premises located in the house;
number of floors, etc.

The procedure for registration in common shared ownership

Registration of a plot for transferring to its owners on common shares takes place in the following order:

carried out, the issue of carrying out the procedure for registering land ownership is put on the agenda;
signed, which reflects the result of the decision;
an application is submitted to the local authority with a request to transfer the land under the apartment building to common shared ownership;
an application is submitted to the local government with a request for the formation of a site;
after carrying out work on the arrangement of the land, the project of the boundaries of the site is approved;
the formation of the site is carried out.

It may be required if initially it did not have landmarks, that is, boundaries. The design documentation is submitted for approval to the local authority.

Based on the prepared land surveying, a decision is made to transfer the allotment into possession on the basis of shared ownership. The right is secured in the order of registration in Rosreestr.

Transferring land to ownership has certain pros and cons. The pluses include:

the emergence of a guarantee that the use of the site is prohibited without the permission of the owners;
alienation of the site is not allowed without obtaining the consent of the owners;
additional profit (owners can lease part of the site or for paid use);
the funds received can be directed to

Land tax on land plots under apartment buildings has been canceled
http://www.gkh.ru/about/news/97938/

And now - about the innovations that took place this year with payment land tax.

After many years of discussions in the government, ministries, in the expert community, instead of introducing a single tax on real estate, which has been much talked about recently, in the fall of 2014 a law was adopted that changes the procedure for calculating and paying land tax, corporate property tax and property tax individuals.

“It was decided not to introduce a unified tax on real estate,” explains Dmitry Gordeev, a leading legal adviser at the Institute of Urban Economics. individuals (Chapter 32 of the Tax Code of the Russian Federation) are paid separately. Both are calculated based on the cadastral value of the land plot and the residential building, residential premises (apartment, room), garage, parking lot, single immovable complex, unfinished object owned by the citizen. construction, other building, structure, structure, premises ".

The state will not tax twice a share in a land plot on which an apartment building is located

These amendments to the Tax Code entered into force on January 1, 2015. Thus, since the beginning of this year, the Law of the Russian Federation of December 9, 1991 No. 2003-I "On taxes on property of individuals" has been terminated and the provisions of Chapter 32 have come into effect. Tax Code of the Russian Federation on tax on property of individuals.

“One of the novelties of the new law is that now land plots that are part of the common property of an apartment building are not recognized as an object of taxation by land tax,” explains Dmitry Gordeev. “There was no such withdrawal before.”

That is why many of our readers, who live in their own apartments in apartment buildings, were surprised to find receipts from tax service with a proposal to pay tax for a plot under a common house.

“Last year it was necessary to pay such a tax, - says Gordeev. - And in 2015 it was canceled, and there is no need to pay it. But don't get confused: this year we pay taxes for prior year... That is, in 2015 we will be sent settlement receipts for 2014, when the requirement to pay such a tax was in effect. Let me remind you that the owner of an apartment in an apartment building is also the owner of a share in the land plot on which the building is located, and this share is proportional to the area of his apartment. Based on this, the amount of land tax is calculated. It will need to be paid by October 1, 2015. But in 2016 no one will pay this tax anymore. "

True, according to the expert, it is not worth considering this decision of the legislators, who released the citizens-owners from the need to pay land tax for their share in the "common" plot, as the generosity of the state.

"According to the Housing Code, the land plot on which the apartment building is located, provided that its boundaries are indicated in the documents of the state cadastral registration, is part of the common property of the owners of premises in the apartment building," said Dmitry Gordeev. in the cost of the apartment, while the owner of the apartment is obliged to pay tax on the property of individuals.

The only thing that can be stated is that the state will not tax twice the share in the land plot where the apartment building is located. "

A land plot is a part of the earth's surface, the boundaries of which are determined in accordance with federal laws. (LC Art.11.1)

The procedure for the implementation of actions for the formation of land plots is provided for by federal legislation, in particular, the Federal Law "On the State Real Estate Cadastre" and by-laws to it. However, the procedure for the formation of land plots for apartment buildings has its own characteristics of legal regulation.

The main provisions on the formation of land plots occupied by apartment buildings are enshrined in the Federal Law ont December 29, 2004 No. 189-FZ "On the Commissioning of HousingCode of the Russian Federation ”and they are relevant for a huge number of citizens and legal entities - owners of apartments in apartment buildings.

According to Article 16 of the Federal Law "On the Enactment of the Housing Code of the Russian Federation"in the existing development of settlements, the land plot on which the apartment building and other immovable property included in such a building are located is the common shared property of the owners of premises in the apartment building.

In accordance withPart 1 of Article 36 of the Housing Code of the Russian Federation of December 29, 2004 N 188-FZ inthe composition of the common property of an apartment building includes the land plot on which this house is located, with elements of landscaping and improvement and other objects intended for the maintenance, operation and improvement of this house, located on the specified land plot.

But, there is a certain hierarchy of laws, according to which federal laws have supremacy, and the rest of the legislation cannot contradict them. If the published normative acts contain provisions other than those in federal laws, then they cannot be taken into account and have no legal force.

Land relations to one degree or another are regulated by the Land, Urban Planning and Housing Codes. They clearly define the legal status of a land plot occupied by an apartment building.

According to Art. 16 of the Introductory Law, the houses built before the entry into force of the Housing Code, placed on the state cadastral register, become common shared property from the moment the Housing Code came into force, and those formed after this time become common shared ownership from the moment the state cadastral registration was carried out. It is fundamentally important that such a right arises by virtue of the law and does not require any acts of the authorities. Land transfer is free of charge.

If the site of the adjacent territory has not been formed, then neither state nor municipal bodies have the right to dispose of this land in the part in which the ZU should be formed as a common shared property. If the indicated authorities nevertheless disposed of this land, then the owners of the premises in the house by virtue of Art. 305 of the Civil Code of the Russian Federation have the right to demand the elimination of any violations of their rights

The formation of a storage facility and its state cadastral registration is the responsibility of the authorities, however, if this is not done, then, in accordance with clause 4.3 of Resolution No. 12-P, any owner can apply to the public authorities or local self-government with an application for the formation of a storage account. No decision of the general meeting is required

The exclusive right to receive the land plot on which the apartment building is located belongs to the owners of the premises of the apartment building. The emergence of property rights does not depend on the publication of law enforcement acts by state authorities or local self-government bodies, but is set by law depending on the formation of a land plot, while state registration of the right to common shared ownership of a land plot is not legal, but only legal, since in force of direct statute(Article 16 of the Introductory Law to the RF Housing Code)the ownership right arises from the moment the land plot is put on the cadastral register.

If the right to the memory of MKD is almost not contested, then huge disputes arise on the issue of the size of the memory. The question is all the more relevant because there are different legal acts that determine the standards for the provision of the MKD memory, introducing the concept of "land under an apartment building", etc.

There is a calculation of the standard area of the land plot for apartment buildings. During the construction of residential buildings, the standard for the land plot was observed.

where: S nru - standard size of the land plot in square meters,

S is the total area of living quarters in the house,

Y is the specific indicator of the land share for buildings of different storeys.

Specific indicators of the land share per 1 sq. m of the area of residential premises, depending on the number of storeys and the construction period, are shown in Table 1.

Table 1 - Specific indicators of land share

Building codes	Number of storeys

1957 SN 41-58	2.84	2.00	1.57	1.34	1.23	1.19	1.14	-	-	-	-	-	-	-	-
1967 SNiP II-K.2-62	2.72	1.97	1.81	1.52	1.39	1.30	1.21	1.04	-	-	-
1975 SNiP II-60-75	2.30	1.80	1.59	1.36	1.21	1.15	1.10	0.98	0.94	-
VSN 2-85	3.57	1.85	1.33	1.31	1.16	1.05	0.96	0.85	0.80	0.74	0.69	0.67	0.66	0.65	0.64
1994 MGSN 1.01-94	3.57	1.85	1.33	1.31	1.16	1.05	0.96	0.85	0.80	0.74	0.69	0.67	0.66	0.65	0.64
SNiP 2.07.01-89 *	1.61	1.43

Basic principles of forming the boundaries of land plots under apartment buildings:

1. The boundaries of the land plot under an apartment building and other real estate objects included in such a house are established taking into account the red lines, the boundaries of adjacent land plots (if any) and driveways, natural boundaries of land plots, the boundaries of the allotment of main engineering and transport communications, unless otherwise specified by town planning requirements.

2. The boundaries of the land plot include all objects that are part of immovable property, entrances and passages to them.

5. Plots of common use, occupied by squares, driveways, by road, embankments, squares, boulevards, water bodies, beaches are not subject to privatization. Land plots reserved for state or municipal needs are not provided for private ownership.

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

2) the implementation of cadastral works in relation to the land plot in accordance with the requirements established by the Federal Law of July 24, 2007 N 221-FZ "On the State Real Estate Cadastre" (hereinafter - Law N 221-FZ), cadastral works and the implementation of state cadastral registration of the land plot ...

If the state ownership of the land plot is not delimited, the formation of such a land plot is carried out by the local self-government body (clause 10, article 3 of the Federal Law of October 25, 2001 N 137-FZ "On the Enactment of the Land Code of the Russian Federation").

Carrying out cadastral work is carried out by a cadastral engineer on the basis of a work contract concluded in accordance with the requirements of civil legislation and Law N 221-FZ for the performance of cadastral work at the initiative of the owner of the land plot (customer). At the same time, any person has the right to conclude this agreement with a cadastral engineer.

The decision on the formation of a land plot is taken by the bodies providing land plots (Art. 29 of the Land Code), including on the basis of a request from the interested rightholder of the land plot.

After the land plot is formed and cadastral registration has been carried out, the owners of residential and non-residential premises of this house are recognized as taxpayers of the land tax. According to paragraph 1 of Art. 392 of the Tax Code of the Russian Federation the tax base in relation to land plots in common shared ownership, it is determined for each of the taxpayers who are the owners of this land plot, in proportion to its share in the common shared ownership.

Land tax is calculated using the following formula:

ZN = Kst Sn Kvl

ZN - land tax;

Kst - cadastral value land plot;

SN - the tax rate set by local authorities. For residential buildings, it cannot exceed 0.3%.

Kvl - apartment ownership ratio. For example, if the owners bought housing six months (6 months) ago, Kvl = 6/12, for old-timers Kvl = 12/12.

Legal entities and individual entrepreneurs who are the owners of premises in apartment buildings calculate and pay the amount of land tax on their own, individuals receive from tax inspectorates notifications with already completed calculations. (Chapter 3)

3. The procedure for placing on the GKU of land plots under apartment buildings in the Sovetsky district of Tula

Tula is located in the north of the Central Russian Upland, on the river. Upa (tributary of the Oka). The Tula region borders on the Moscow, Ryazan, Lipetsk, Oryol and Kaluga regions and covers an area of 26 thousand square kilometers. The length of the region from north to south is about 200 km, from west to east - a little less than 190 km. Tula is one of the most economically developed cities in the center of Russia. It is a large industrial, scientific and cultural center, an important railway junction, with a population of 499.5 thousand people (as of 01.01.2012). The population of the city of Tula is 32.3 percent of the population of the Tula region. The population density is 3432 people per 1 km 2.

At present, Tula is administratively divided into 5 urban districts: Central District; Proletarian district; Zarechensky district; Railway station area; Soviet area. The railway station and Sovetsky districts of Tula have a common administration (territorial administration). In 2005, the administrative subordination of the districts of Tula included urban-type settlements Skuratovsky, Kosaya Gora, Gorelki and Mendeleevsky.

Sovetsky District is located in the central part of the city. In the north it borders on Zarechensky, in the west and south - on Privokzalny, in the east - on the Central districts of the city. The area of the district is 0.721 km ². At the time of its formation, this is the youngest district of the city: it was formed only in 1977 at the expense of the territory of the Privokzalny district.

Sovetsky district is an amazing mixture of historical buildings of the pre-revolutionary period, dilapidated huts and modern high-rise buildings.

The largest enterprises in the region are OJSC AK Tulamashzavod, OJSC Tulatochmash and OJSC Tula Arms Plant.

The district can be conditionally divided into three parts: the northeastern part (Mosin st., Krasnoarmeysky prospect, Demonstration st.), Where Industrial Zone and newly built houses; central part (street Demonstration, F. Engels, Pervomaiskaya) - multi-story houses old and new buildings; south-western part (Lenin Ave., Boldina St., May 9 St.) - 5-storey old buildings with small apartments and individual buildings.

At the moment, Sovetsky District is administratively united with Privokzalny. The area is maintained by a specially created Territorial Administration of the Administration of the city of Tula for the Soviet and Privokzalny Districts.

Lands located within the administrative boundaries of the Tula region constitute the land fund of the region.

According to the current legislation and established traditions, state registration of the availability and use of land in the Russian Federation is carried out by category of land and land.

The purpose state accounting land is to obtain systematized information about the quantity, quality condition and legal status lands within the boundaries of the territories necessary for making management decisions aimed at ensuring rational and effective use lands.

In Tula, work is being carried out on the cadastral registration of land plots. As of April 1, 2014, in the period from 2009 to 2014, 2,456 land plots were put on the state cadastral register, on which apartment buildings and other real estate objects are located. total area land - 7,997,315.75 sq. m.

The list of apartment buildings put on the cadastral register in accordance with the program "Reform of housing and communal services" as of 01.04.14. presented in Appendix

If we compare the indicators for the transfer of land to homeowners on average in Russia and specifically in the city of Tula, then this indicator is much lower. So in Tula, 14.86% are registered, and the average indicator for the Russian Federation is 44.14% (Figure)

Figure Transfer of land to homeowners (according to the Fund for Assistance to Housing and Utilities Reform

All land surveying work was carried out at the expense of the city budget. All the land plots on which the apartment buildings are located, after being put on the state cadastral register, were transferred free of charge to the common shared ownership of the owners of the premises in the apartment building and became objects of taxation.

3.2 Conditions and procedure for the provision of a land plot under an apartment building in common shared ownership.

The general rules for acquiring rights to land plots under buildings, structures and structures are established by Art. 36 of the RF Labor Code. According to part 2 of this article, in the existing development, land plots on which there are structures that are part of the common property of an apartment building, other buildings and other structures are provided as common property in the common shared ownership of homeowners in the manner and under the conditions established by the housing legislation.

Registration of a land plot under an apartment building into common shared ownership can be divided into the following stages:

1. Conducting a general meeting of owners of the premises of an apartment building and choosing an authorized person.

2. Submitting an application for the formation of a site for subsequent transfer to the common shared ownership of the owners of the premises

3. Formation of the land plot;

4. Making a decision on the provision of a land plot in common shared ownership;

5. The emergence of the right to common shared ownership of the site;

6. State registration of the right to common shared ownership.

The first stage was the holding of a general meeting of owners of premises in an apartment building.

The procedure for holding general meetings of owners of premises in an apartment building, voting and decision-making is regulated by Articles 45-48 of the Housing Code of the Russian Federation.

The following issues are on the agenda:
- making a decision on the need to form a land plot under an apartment building,

- selection of a person authorized to represent the interests of the owners of the premises of an apartment building in state authorities and local authorities on the issue of registration of the land plot located under the apartment building into common shared ownership.

Any of the owners of premises in the house has the right to initiate a general meeting. The general meeting of owners of premises in an apartment building is competent (has a quorum) if the owners of premises in this building or their representatives who have more than fifty percent of the votes of the total number of votes took part in it.

The notice of the meeting should be sent to each owner of the premises in this house by registered mail or handed over to each owner of the premises in this house against signature, or posted in the premises of this house, determined by such a decision and accessible to all owners of premises in this house - notice boards, entrances.

Ten days before the meeting, the owners of the premises in the house were notified of its holding, having received notification of the holding of a meeting of owners of premises in an apartment building (Appendix A).

In the notice of holding a general meeting of owners of premises in mandatory the following information must be indicated:

a) information to the persons on whose initiative this meeting is convened;

b) the form of holding this meeting (meeting or absentee voting);

c) the date, place, time of this meeting, or in the case of holding this meeting in the form of absentee voting, the date of the end of acceptance of decisions of the owners on the issues put to a vote, and the place or address where such decisions should be submitted;

d) the agenda of the meeting;

e) the procedure for familiarization with the information and (or) materials that will be presented at this meeting, and the place or address where they can be viewed.

When holding a general meeting in the form of absentee voting, a ballot was delivered directly to each owner for absentee voting at the general meeting of owners of premises in an apartment building (Appendix B) . Also compiled register of owners of premises in an apartment building(Appendix B).

The decision of the general meeting on the issues put to the vote is adopted by a majority of votes of the total number of votes participating in this meeting of owners of premises in an apartment building.

The general meeting of owners of premises in the house on the above issue must also authorize the person to apply to the relevant authorities with an application for the formation of the site and the acquisition of rights to it. The general meeting must discuss and make a specific decision, based on the results of which a protocol must be drawn up. (Appendix)

To hold a general meeting of owners of premises in an apartment building in full-time or in absentia, the following documents are required:

Application of a person authorized by the general meeting of owners of premises in an apartment building on the formation of a land plot;

Scheme of distribution of shares of owners of premises in common ownership of common property in an apartment building;

Copies of notifications on holding a general meeting of owners of premises in an apartment building on the formation of a land plot;

Registration list of owners of premises or their representatives who took part in the general meeting of owners of premises in an apartment building on the formation of a land plot;

Power of attorney of representatives of the owners of premises, drawn up in the manner prescribed by law;

Written decisions of the owners of premises in an apartment building on the formation of a land plot;

Minutes of the general meeting of owners of premises in an apartment building on the formation of a land plot (Appendix).

The provision of part 3 of article 16 input. The law on filing an application, on the formation of a land plot on which an apartment building is located, solely on the basis of a decision of the general meeting of owners of premises located in it, violates the constitutional principles of justice and equality, introduces unreasonable differences in the conditions for the owners of premises in apartment buildings to exercise their rights.

Therefore, in accordance with the Decree of the Constitutional Court of the Russian Federation of 05/28/2010 No. 12-P, in the event that the land plot on which the apartment building and other real estate objects included in such a house are located was not formed until 03/01/2005. , any owner premises (both residential and non-residential) in an apartment building, including those not authorized by the general meeting of owners of premises in this building, have the right to apply to state authorities or local authorities with an application for the formation of a land plot on which the apartment building is located.

In this case, confirmation of the right to file an application for the formation of a land plot will be a document of ownership (certificate of state registration of ownership of an apartment) of the applicant for a premise in an apartment building located on the land plot being formed.

If the premises in an apartment building are not owned by the residents of the building, then most often decisions on the formation of a land plot under an apartment building are made by the Property Management Committee of the administration of the municipality.

The next stage of work was the appeal with an application for the formation of a site to local authorities, which afterland management worksmust approve the layout of the land plot on the cadastral map (plan) of the territory

Within a month from the date of receipt of the said application, the executive body of state power or the local self-government body makes a decision on the provision of a land plot on the basis of ownership or on lease.

According to the current legislation, there is general order the provision of land plots on the basis of decisions of the executive bodies of state power or local self-government bodies that have the right to provide the relevant land plots, and a special procedure for the provision of land plots that does not require decisions of these bodies, in particular, when providing land plots for apartment buildings in the common share ownership of the owners premises in such houses.

This means that, in contrast to the procedure for the acquisition by citizens and legal entities rights to land plots in state or municipal ownership, which is established by the Labor Code of the Russian Federation, for the free transfer of a land plot on which an apartment building and other immovable property included in such a house is located, into the common share ownership of the owners of premises in such a house, it is necessary and it is enough for state authorities or local authorities to form this land plot in accordance with the requirements of land legislation and legislation on urban planning and conduct its state cadastral registration, despite the fact that neither a special decision of public authorities on the provision of a land plot, nor state registration of rights common share ownership of this land plot in the Unified State Register of Rights to Real Estate and transactions with it are not required.

3.3 Formation of the boundaries of the land

Drawing up a scheme for the location of a land plot on the cadastral plan of the territory is one of the initial stages of the formation of a land plot.

Based on the land management work carried out (topographic survey, easements within the boundaries of the proposed land plot), the district administration approves the layout of the land plot on the cadastral plan or cadastral map of the corresponding territory by an administrative act (decree, order).

The work on the manufacture of the Scheme consists of:

Preparatory work;

Production of documentation in text and graphic forms.

Preparatory work includes:

1) obtaining a topographic and geodetic plan of the territory in M 1: 500, which is the basis for the graphic part of the Scheme, which displays the boundaries of the land plot;

2) obtaining information about the projected land plot and adjacent land plots from the State Property Committee in the form of a territory plan and information about their boundaries, copyright holders and their rights;

3) obtaining information from the state technical accounting about objects capital construction located on the projected land plot, from the state cadastre of real estate or technical data sheets these objects issued by technical inventory organizations;

4) obtaining information from the USRR on the rights to capital construction objects located on the projected land plot;

5) obtaining information from the Unified State Register of Legal Entities on the rights to capital construction objects located on adjacent land plots, if information about the boundaries of the land plots on which these buildings are located is absent in the data of the state cadastral registration;

6) obtaining information about the territorial zone, zones with special conditions of use and other necessary information from the ISCGD;

7) obtaining a pre-project justification for capital construction or temporary placement is not capital objects(general layout scheme, layout scheme, etc.). This clause is applied when forming land plots for construction, reconstruction of capital construction facilities or temporary placement of non-capital facilities.)

8) obtaining other documents and information necessary for the proper drawing up of the Scheme;

9) study and analysis of the received documents and materials.

When drawing up the Scheme, the following is taken into account:

1) The land plot must be formed in such a way that it was possible to ensure proper operation or construction capital facility, preserving the inseparable unity of the land plot and the capital object located (under construction) on it.

The composition of the projected land plot, on which the existing facility is located, includes:

The territory directly occupied by this object;

Territory occupied by auxiliary buildings and structures;

The territory adjacent to the main and auxiliary buildings, which is necessary to ensure their functioning (maintenance, operation) in accordance with the established norms.

2) The projected land plot, on which the existing facility is located, cannot include the territory occupied by an unrelated linear facility (engineering structures), without the written consent of the owner of this linear facility.

With written consent authorized body the administration of the city of Tula, it is allowed to include the territory of a municipal linear object of general use (trunk network engineering) in the composition of the projected land plot, while the territory occupied by this object is determined as part of the projected land plot, which is proposed to be burdened with an easement.

When designing a land plot for construction, there is no need to design a part of the land plot occupied by a municipal linear object, but in this case it is necessary to indicate the need to move (transfer) the municipal linear object to another place, according to technical specifications issued by the organization providing its operation.

3) It is not allowed to design a land plot on which a part of a building, structure, structure, or an unfinished capital construction project is located.

4) For the operation or construction of one capital object, one land plot must be formed.

It is allowed to form one land plot for the operation or construction of several separate (main) capital objects, if these objects are inextricably linked by a single technological process of operation (plant, base, stadium, etc.), or if these objects are owned by one faces.

5) A land plot is formed according to its inherent individual characteristics: location, area, boundaries, restrictions and encumbrances in use.

6) The size of the land plot is determined in accordance with the duly approved limit dimensions, allotment norms, technical regulations and design justifications.

7) When forming a land plot, it should be possible to access it from common lands (reserve lands), incl. through neighboring land plots, through the limited use of their part on the basis of an easement.

8) The division of the land plot or the redistribution of land plots should be carried out in such a way that each newly formed land plot can be used in accordance with its permitted use, and its area corresponds to the limit indicators and established standards.

9) The fracture of the projected boundaries of the land plot is not allowed, if it is not due to the existing natural or artificial boundaries.

10) The land plot must be designed within the boundaries of one territorial zone and, as a rule, within the boundaries of one cadastral quarter.

11) The boundary of the projected land plot must coincide with the boundary of the adjacent land plot, unless:

Between the projected and previously formed land plots, it is necessary to create a common area (for passage, passage or laying engineering communications etc.);

The formation of a land plot sufficient for construction is possible.

The boundaries of the land plot are designed taking into account:

GKN information on the projected land plot and the boundaries of adjacent land plots;

Information ISOGD about the territory on which the projected land plot is located, incl. territorial zones, zones with a special mode of use, planning projects, red lines, types of permitted use, etc.;

The boundaries of adjacent land plots, the Scheme (draft boundaries) of which was approved in accordance with the established procedure;

Borders of territories (land plots), in accordance with the established procedure, reserved for state or municipal needs;

Natural boundaries of the land plot, incl. natural and other objects that are visually identified;

Regulatory territory in accordance with the established urban planning rules and regulations, technical regulations;

Established limit (maximum and minimum) sizes of land plots;

Sanitary, sanitary protection, security and technical zones;

Pre-design documentation for the construction of a capital facility or temporary placement of a non-capital facility.

The prepared Scheme is checked and, in the absence of comments, is approved by the Department of Urban Planning and Architecture of the administration of the city of Tula.

Resolution of the head of the administration of the city of Tula on the approval of the scheme the location of the land plot on the cadastral map (plan) of the territory(Picture 1.)is an the basis for carrying out cadastral work, preparing a landline plan and registering a land plot for state cadastral registration

Figure 1. Resolution of the Administration of the city of Tula

3.4 Preparing a landline plan

In order for the owners of the premises of an apartment building to secure their right to a land plot under the house, it is necessary that the land plot be formed, i.e. carry out a land survey of a plot of land under an apartment building. Land surveying is a complex of works for establishing, restoring and fixing the boundaries of a land plot on the ground.

Land surveying of a plot of land under an apartment building makes it possible to legally fix your right to land under a residential building. Land surveying includes cadastral work on entering information about the land plot into the real estate cadastre, including the definition of the boundaries of the plot in kind.

The current land and housing legislation of the Russian Federation provides for the implementation of work on the formation of land plots under apartment buildings by local authorities and state authorities of the constituent entity of the Russian Federation.

Currently, land surveying is carried out:

According to the schedule of works under the municipal apartment buildings at the expense of the city budget;

As part of the exercise by local authorities of powers in the field of urban planning in the development of projects for land surveying of city territories - also from the city budget.

At the initiative of the owners of apartment buildings themselves. The owners of the premises make a decision at the general meeting on the formation of the land plot, elect an authorized person at the meeting, and then this person applies to a contractor licensed to carry out land management work.

The result of the land surveying work is the preparation of a land survey plan and the registration of the land plot on cadastral registration

In accordance with 221-FZ, a land-survey plan is a document that is drawn up on the basis of a cadastral plan of the corresponding territory or a cadastral extract about the corresponding land plot and in which certain information entered into the state real estate cadastre is reproduced and information about the formed land plot or land plots is indicated, or on a part or parts of a land plot, or new information about the land plot or land plots necessary for entering into the state real estate cadastre.

The boundary plan consists of text and graphic parts.

The textual part of the boundary plan contains the following sections:

1) initial data;

2) information about the performed measurements and calculations;

3) information about the formed land plots and their parts;

4) information about land plots, through which access to the formed or changed land plots is provided;

5) the conclusion of the cadastral engineer;

6) the act of agreeing on the location of the border of the land plot.

If the land plot is drawn up as a result of cadastral work on the formation of land plots and the location of the boundaries of adjacent land plots has been clarified, an act of agreement on the location of the boundary of the land plot is drawn up on the back of the Drawing (Figure 2.)

Figure 2. The act of agreeing on the location of the border of the land plot

The graphic part of the boundary plan includes the following sections:

1) scheme of geodetic constructions;

2) the layout of the land plots;

3) drawing of land plots and their parts;

The graphic part of the land plot is drawn up on the basis of the information of the cadastral plan of the corresponding territory or the cadastral extract on the corresponding land plot, specified in the section "Initial data".

The section "Scheme of geodetic constructions" is drawn up in accordance with the measurement materials containing information on the geodetic justification of cadastral works. (Rice)

Section "Layout of land plots" (hereinafter - the Scheme) (Fig) is drawn up on the basis of sections of the cadastral plan of the territory or cadastral extract of the corresponding land plot containing cartographic images, or using cartographic material.

The scheme is intended to display the location of land plots with respect to adjacent land plots, the boundaries of the cadastral division (for land plots occupied by extended objects), natural objects and (or) objects of artificial origin (if individual parts of the border of the land plot coincide with the location of the external boundaries of such objects and information about such objects are contained in the State Property Committee), land plots or common land.

The diagram displays:

Borders municipalities and / or boundaries settlements(if necessary);

The boundaries of the cadastral division (if the land plot is located in several cadastral quarters or the land plot is adjacent to the border of the cadastral division).

The drawing (Fig) is drawn up to a scale that ensures the readability of the location of the characteristic points of the boundaries of land plots.

The drawing is drawn up in such a way that all formed or specified land plots, as well as parts of land plots, are displayed in the field of its image.

The drawing displays:

The location of existing, new and ceasing to exist characteristic points of the boundaries, as well as parts of the boundaries;

Designation of land plots, parts of land plots and characteristic points of boundaries.

The land plot was prepared as a result of the cadastral work in connection with the formation of a land plot from land in state or municipal ownership.

After the preparation of the boundary plan, the land plot was put on the state cadastral register.