Who forms the land plot for the apartment building. On the approval of guidelines for calculating the standard size of land plots in condominiums

More than 100 million citizens live in apartment buildings, which is approximately 2/3 of the total population 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 house 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 refers only to the right of apartment owners, but full ownership is allowed only within the framework of Housing Code RF.
• The transfer of ownership implies the assignment of responsibility for.
• Any changes related to the land near the house are decided and adopted at a 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 transfer to its owners on total shares takes place in next 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. Project documentation 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

2.1 Regulations

Formation land plots under 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. The Land Code of the Russian Federation of 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. The Town Planning 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 or to land plot adjacent to a residential building, or into premises common use in such a house.

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 Housing Code, the land plot on which the apartment building and other objects included in such a house are located real estate, which was formed before the entry into force of the RF LC and in respect of which the state cadastral registration was carried out, is transferred free of charge into the common share ownership of the owners of premises in an apartment building.

In the event that the land plot on which the apartment building and other real estate objects included in such a building are located was not formed before the RF Housing Code is put into effect, on the basis of a decision general meeting owners of premises in an apartment building, any person authorized by the specified meeting has the right to apply to the authorities state power 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, the certificate of state registration rights in connection with the state registration of the right to common shared ownership of real estate objects are 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 share 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 share ownership is determined in accordance with the Decree of the Government of the Russian Federation 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 buildings.

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 the apartment building and other immovable property included in such a house are located is the common shared property of the owners of premises in the 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 a 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 registration with the state cadastral register 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 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 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 Resolution of the Constitutional Court No. 12-P, any owner can apply to the bodies of state power 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 established 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 of a legal nature, 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 that determine 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.

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 the 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 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 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 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 in respect of land plots in common shared ownership 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.

Speaking about the boundaries of this or that adjoining territory, it should be noted that this indicator is regulated The Urban Planning Code(in terms of its rationing), Land (in the part in which the actual boundaries of the land plot allocated for a particular house are determined), as well as Federal Law No. 218-FZ "On state registration of real estate" property of the residents of the house in question).

Normal = Y * Sk, where Snorm is the standard for the area of ​​the land plot, which should be allocated for a particular house.

The Y value is determined by the formula for calculating the share of land per 1 square meter of housing. This indicator directly depends on the number of storeys of the building, its area and the number of apartments in it.

In addition, when calculating this indicator, the year of construction of the house is taken into account. The second indicator - Sк - is the area of ​​all available apartments in this house, as well as all common property that is in this house.

At the same time, common areas should not be included in the adjacent territory, such as entrances and entrances near them, at the will of entrances to the basements of the house and other territories that cannot be separated from the house, since this will entail the impossibility of its full operation.

If no boundaries have been set ...

They can be installed if such a decision is made at a meeting of the owners of all premises in the house in question. For this, a meeting must be called, according to the results of which such a decision will be made, drawn up in the form of a signed protocol. An example of a land survey project apartment buildings is divided into several stages:

Conclusion

An adjacent territory is a land plot on which a house is located with all the infrastructure elements and green spaces necessary for its full functioning.

Such a site is subject mandatory registration by establishing its designated boundaries and registering them. To do this, it is enough to gather all the owners of premises in the house and, at such a meeting, make an appropriate decision and record it.

Whether to register land under an apartment building

I would like to indicate right away what will be discussed in this article, but we will talk about the land plot belonging to the property of an apartment building. The land plot is reflected in part 1 of article 36 of the Housing Code of the Russian Federation, which states that a land plot under a residential building is recognized as a house territory with elements of landscaping and improvement, relating to the common property of the owners of the premises of an apartment building. The specified land plot has a size and boundaries that remain unchanged, provided that the owners of an apartment building at a general meeting do not want to reconstruct paragraph 4 of article 37 of the Housing Code of the Russian Federation.

For several years in a row, there have been disputes over the privatization of the land of apartment buildings. Is the privatization of land in an apartment building beneficial for owners of residential and non-residential premises. To date, there is already enough practice on this issue, including judicial practice, to summarize.

Let us dwell on the legislative prerequisites force, which is due to the very direction of registration of ownership (privatization) of a land plot of an apartment building.

By virtue of Article 36 of the Land Code of the Russian Federation, in the existing development, on which the 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 the housing legislation.

As stated in article 16 of the Housing Code of the Russian Federation, the land plot on which an apartment building and other real estate objects included in such a house are located is the common shared property of the owners of premises in an apartment building. In the event that the land plot on which an apartment building and other immovable property included in such a building is located has not been formed, before the entry into force of the Housing Code of the Russian Federation, on the basis of a decision of the general meeting of owners of premises in an apartment building, any person authorized by the said meeting has the right to apply to state authorities or local authorities with an application for the formation of a land plot on which an apartment building is located. The formation of the land plot on which the apartment building is located is carried out by state authorities or local authorities.

The implemented Housing Code of the Russian Federation on the basis of the prescription of the Constitution and the Federal Law "On the Implementation of the Housing Code of the Russian Federation" takes into account the nature of common ownership of property, included the transition to common ownership of the owners of residential and non-residential premises in an apartment building of a land plot. As established by the Housing Code, the right to a land plot is transferred free of charge and follows directly from the norms of legislation.

There are cases that the land plot related to an apartment building has not been formed and it is not possible to put it on the cadastral register. That is why it is impossible to determine the boundaries of the adjacent territory of an apartment building related to a specific apartment building, therefore it is not possible to register a land plot.

This situation raises many questions for the owners of residential and non-residential premises of an apartment building. How to form a land plot for an apartment building? How to define boundaries land house related to their apartment building? What exactly is the property of an apartment building? From what period can the management company include utility payments for cleaning the land plot of an apartment building? And is it necessary to register (privatize) the land plot of an apartment building?

Housing legislation and current regulations No. 491 of 13.08.2006, common property includes the following property: a plot of land on which the property was built, green areas and other elements of landscaping and landscaping, sports and playgrounds, parking spaces and collective parking lots for cars, clothes dryers, substations and transformers, fire passages, garages and cellars.

When can a management company or homeowners' association include utility bills for cleaning and maintenance of the land?

There are a lot of disputes on this topic between owners and organizations carrying out utility charges. The answer to this question is set out in clause 3 of the Decree of the Government of the Russian Federation No. 491 of 08.13.2006 because of the clause it follows that when determining the common ownership, it is worth starting from the extract of the Unified State Register, which states who is the owner of the land plot of the local area. In the event that there are discrepancies in the specified document, that information is taken into account in which this land plot is assigned to the owners, as a common property. In addition, I would like to tell you that until the land plot is formed and registered in the prescribed manner for the owners of the apartment building, the local municipality is responsible for the maintenance.

Why register a land plot as a common share property, consider the positive and negative aspects of the issue.

Positive aspects of registration of the land plot of the local area in ownership:

The owners of an apartment building receive guarantees, namely, without their knowledge it will be impossible to use their land plot expressed in the organization of parking lots, road construction that is not beneficial to the owners, other temporary buildings such as garages, shops, etc. It is impossible to withdraw a land plot without redemption from the owners for state needs.

The owners of an apartment building can receive additional income, which can later be directed to the needs of the house, for example, lease a land plot or organize any activity for the residents themselves that allows them to organize on these plots;

Most importantly, the owners of the apartment building increase the value of their property, since in addition to the apartment, the land plot will be privatized into shared ownership.

One of the advantages in registering a land plot for the owners of an apartment building is that the owners can improve this land plot: organize a playground, organize a parking lot, reimburse other structures necessary for the normal life of the whole house.

IMPORTANT! Most importantly, if the land plot is registered with the owners, then it is not possible to transfer the land plot under such programs as, for example, the strategic development of the territory. I will give a vivid example, you did not register a land plot, and the City Administration transferred the plot right in front of your windows construction company at the auction, but everyone knows how it goes, and in six months a wall of a neighboring house will appear right in front of your windows. You have seen similar stories in the news, as I think more than once.

Negative sides registration of the land plot of the adjacent territory in ownership:

1. The owners are obliged to maintain the land plot of the local area at their own expense, but here I will say that almost all the owners of apartment buildings pay for the maintenance of their plot management company, although they do not own this land plot even in those circumstances when it is simply not formed;
2. It can also be attributed to the disadvantages that the cost square meter increases and when selling an apartment, the price for the object rises and it is difficult for the owner to sell the object at an increased price.

The beginning of the formation of the land plot begins and is carried out in the following order: a scheme is being prepared for the distribution of shares of owners of residential and non-residential premises of an apartment building in the right of common ownership of common property in the building:

copies of notifications on holding a general meeting of owners of premises in the house with the issue of forming a land plot;

notification (sheet) of registration of owners and their representatives participating in the general meeting of residents;

powers of attorney of the representatives present are drawn up in accordance with the requirements established by law;

execution of the decision in writing a general meeting on the formation of a land plot;

registration of the minutes of the general house meeting on the formation of the land plot; appeal in a written statement in the established government body or local government for the formation of the land.

IMPORTANT! An application for cadastral registration of a land plot must be submitted personally by a person who is authorized by the decision of the general meeting of owners of an apartment building by virtue of paragraph 1 of Article 20 of Federal Law No. 221 of 24.07.2007.

Provided that the land plot of an apartment building is formed, then you can immediately go to the registration of common ownership rights: a written application for state registration of the common ownership right to the land plot is submitted;

When submitting an application, there must be a properly executed power of attorney or a decision of the general meeting of residents, on the basis of which the authorized person will act as the right to submit an application with a package of documents to the state registration authorities; paid National tax; confirmation that the land plot of an apartment building has been formed; the decision or the minutes of the general meeting of residents on the formation of the land plot, if it was not formed earlier; documents confirming the ownership of the real estate object if the registration of the object was before 31.10.1998; other documents required authorized body; personal presence of a person at the state registration authority or the MFC or is sent by registered mail with a declared value and a list of investments;

ADDITIONALLY! Since 2015, the land plots of an apartment building included in the common share ownership are not taxed by paragraphs. 6 clause 2 of Art. 389 of the Tax Code of the Russian Federation.

After the state registration of the land plot of an apartment building on the basis of clause 1 of Article 14 of Federal Law No. 122 of 21.07.1997, an extract is issued confirming the registration of the land plot.

On the issue of the boundaries of the land plot of an apartment building, I can report the following, the boundaries of the land plot are determined by the requirements of land and town planning legislation by virtue of paragraph 4 of part 1 of article 36 of the Housing Code of the Russian Federation.

Much depends on the registration of a land plot of an apartment building on the date of construction of the house, this is due to the fact that the introduction of the Housing Code of the Russian Federation by virtue of the established article 16, which approved the conditions indicating the transfer of the land plot into the common ownership of the owners of the premises of the apartment building, which is located on it.

Now I want to explain to you the difference:

If your apartment building was built before the introduction of the Housing Code of the Russian Federation and the land plot was formed and was registered in the cadastral register, then the rights are transferred to you on the land plot automatically and free of charge (Part 2, Article 16 of the Federal Law No. 189);

If the land plot has not been formed, but the date of registration of the apartment building is earlier than the date of the introduction of the Housing Code, then the owners can apply to local authorities with a question about the formation of the land plot of the apartment building. This statement will be the basis for the formation of the land plot by the authorities and the cadastral registration, clause 3 of the Decree of the Constitutional Court of the Russian Federation dated 05.28.2010 No. 12 -P).

Constructed apartment buildings after the introduction of the Housing Code of the Russian Federation are subject to state registration only if the land plot is formed and it is registered in the cadastre.

VERY IMPORTANT! Some people think that since the land plot has been formed and is already on the cadastral register, then they are the owners and this opinion is completely wrong. Only upon state registration with the Federal Register of the Russian Federation does the land plot of an apartment building become common property.

Any citizen who buys real estate automatically becomes the owner of the land on which the dwelling is located. This rule applies to both private and apartment buildings.

According to the RF LC, the land plot under an apartment building is considered a common collective property, which, in turn, is summed up by the shares of the owners of apartments in this building.

Is it possible to divide the land under the apartment building

According to Russian legislation An apartment building is considered to be a house in which there are two or more residential premises that have autonomous exits to common areas (staircases, etc.) or to land plots adjacent to the building. Moreover, each apartment building has some elements of joint property (land plot under the house, roof, foundation, communications, staircases, elevators, etc.)

The law states that all owners of apartments in an apartment building have a certain share in the ownership of joint property in proportion to the size of the total area of ​​the apartment. Accordingly, the share in the common ownership of the land plot under the house is also distributed among apartment owners in proportion to the area of ​​residential premises.

For example, there is a residential building in which there are four individual apartments s: two of them are two-room with with total area 50 sq. meters, and two - four-room 100 sq. meters. Shares in ownership will be distributed as follows: owners of two-room apartments will have one-sixth, and owners of four-room apartments - one third.

We have decided on the size of the share in the common shared property, but is it possible, in principle, to divide the land plot under the apartment building?

The RF ZhK directly says that the territory under an apartment building, like the land adjacent to the building, can only be in the collective ownership of all owners of residential premises in this building. That is, the legislation explicitly states that the division of the land plot under an apartment building is not allowed.

On this one could put an end to, if not for certain nuances of the section of one-story apartment buildings. Let's consider them in more detail.

Preliminary section of single-storey residential buildings

If a multi-apartment residential property is located on a plot of land cottage, in which there are two, three, four apartments, which, in turn, have separate exits to land adjacent to the house, they can be divided by allocating shares in kind.

But ... In practice, the following often happens: a residential building has several separate apartments, each residential building has its own separate entrance from the others, a separate address, it seems that there are no obstacles to the division, but the land under the building belongs to the IZHS category, and the house has the status multi-apartment.

The output will be:

• preliminary registration of the entire house in common shared ownership, by this the owners confirm the intended use of the land plot;
• subsequent allocation of shares in kind.

The section procedure is rather complicated, but possible. First, the co-owners must establish the possibility of a section in a technical plan, that is, determine whether there is a technical possibility of a real section of an apartment building. The answer to this question will be given by an independent construction and technical expertise.

For example, you have a semi-detached residential building with a plot of land measuring 40,000 square meters. meters adjacent to it. Each of the apartments has a separate exit, the water supply of the apartments is autonomous, as is the sewerage outlet. Only the foundation of the house and the roof are common. An independent construction and technical examination established that a real division of the house is technically possible.

If experts have confirmed the possibility of the actual division of the building, all owners must obtain permission to rebuild or redevelop a residential building, which they can obtain from the local municipality.

The next step will be the actual division of the house, which takes place through the allocation of shares in kind. As a result, from one residential apartment building, two (three, four) autonomous, independent parts of one residential building are actually formed.

Until all the owners of a residential building do not divide it in kind, there can be no question of any division of the land plot or the allocation of a separate share from it.

Subsequent division of land

So, the owners of residential premises in a one-storey apartment building made the allocation of shares in a residential building in kind, and only now they can proceed to the division of the land plot located under the house and in the adjacent territory.

But there are also some nuances here.

For example, the division of land will be permitted only if, in the process of such division, autonomous land plots are obtained with the same permitted type of use as the primary storage unit. In other words, if the original plot of land was intended for residential construction and private farms, then the newly formed ZU should have the same category.

The second condition for the possibility of dividing the land is the so-called "unity of fate" of the allocated share of the house with the land adjacent to this share. That is, it is the owner who will receive a specific share allocated from a common residential building that will become the owner of the land plot under this part of the house.

Methods for the actual division of an apartment building

Like any other property, the division of the house and the land plot under it is possible in two ways:

1. In peaceful way... This is possible by signing a voluntary agreement on the allocation of shares in a residential building and the land under it.
2. Through the court... This method is practiced in cases where the owners of residential premises cannot agree with each other.

Written agreement

If all apartment owners agree with the allocation of separate premises and the division of the land plot, they can draw up a voluntary agreement about this. In this case, it is necessary to follow a certain order of actions, namely:

1. Discussion of the situation with the owners of other apartments, the solution of all the nuances, features, rights of each of the parties and the likely material costs.
2. Drafting the text of the agreement.
3. All the signatories visit the notary office in order for the lawyer to certify all the signatures and the document itself.

When visiting a notary, all parties to the agreement must have with them passports or other documents proving the identity of the signatories, as well as all documents of title to living quarters and land.

Section through the court

If the tenants of an apartment building could not agree, the problem can be solved with the help of judgment... The one of the owners who wants to allocate their actual share in the house and in the land plot applies to the judicial authorities with a claim for the division of a residential building in kind.

The statement of claim must mandatory contain the following information:

1. Requisites judicial authority to which the claim is filed.
2. Information about the plaintiff, the defendant and third parties, if their participation in the meeting is expected.
3. The cost of the claim.
4. Title documents for the disputed real estate.
5. A brief description of the situation prior to filing the claim. Here the applicant can describe the essence of the problem, what steps he took to solve it.
6. References to those articles of the Law that are applicable in a particular case.
7. Claims of the applicant.
8. List of attached documents.
9. Date and signature.

The following package of documents must be attached to the statement of claim:

1. A copy of the passport of the plaintiff and, if possible, the defendant and third parties involved in the process.
2. Registration certificate for the disputed real estate object.
3. Documents of title.
4. Receipt for payment of state duty.

This list is not complete, depending on the specific situation, other papers may be required. Complete list required documents in relation to your situation, a lawyer will tell you who it is advisable to contact at the stage of drawing up statement of claim and collecting the necessary evidence.

If the owners of apartments in an apartment building decide to divide the land under it, the right first step is to seek legal advice for several reasons:

1. With such a section, there is a great risk of making a mistake, making some wrong steps, the owners risk not only not getting the desired result, but also losing what they have if the section is later recognized as illegal.
2. A competent lawyer will tell you what steps need to be taken, what documents to collect, if necessary, he will be able to warn against rash steps and illegal actions.