Contemporary Problems of Social Work
The question of features of establishment of rights to ownerless real estate
Автор/Author: Neznamova А.А.
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A question of acknowledgment and acquisition of right for ownerless real estate becomes more and more actual in the modern legal science. The problem of conversion of ownerless immovable object to the private property takes an important place in modern law-enforcement practice.
Before adoption of the Land Code of the Russian Federation on October 25, 2001 there was no consensus concerning application of regulations to the land parcels of ownerless property in the legal science, therefore, there also was no possibility of title acquisition to these land parcels by municipal formation.
With coming into effect of the Land Code of the Russian Federation it was found that in case of refusal from the land title, this land parcel gets a legal structure of ownerless immovable object, the order of rights termination on which it is established by the civil legislation.
It is expected that the main goal of the research is offer of the complex measures, intended to ensure proper safeguard of ownerless lands, to minimize risk of their pollution, littering, degradation. Also to consider options of legislative amendments, to offer some legislative improvements to the current regulation of arrangements for use of the ownerless land parcels.
Methodological foundation is the complex of scientific methods of knowledge, such as system, historical, legal, comparative and legal, logical, dialectic and other methods of research. Also materials and key sources of various popular scientific literature on the offered subject were investigated.
The author studied works of scientists, among which: Yu.N. Andreev, N. M. Korshunov, M. Yu. Tikhomirov, L.V. Tikhomirova, S.Yu. Starodumova also he investigated topics of the most topical questions of establishment of the rights for ownerless real estate.
Currently there are no norms in the legislation according to which municipal formations automatically get the property right or other land titles after recognition of ownerless of parcels in their territory. Cases, considered by court about recognition of property ownerless has a number of features, such as an orientation of court’s actions on detection of the absent owner, i.e. the person with other title for the purpose of his enabling to call dibs, and in case of absence – to create suggestion of the loss of the property right by him and recognition of the right for the applicant party.
Perhaps, it is possible to suppose that development of the mechanism on improvement of management structure of public property positively reflects to the extent of establishment of rights for ownerless real estate, including an order and terms of its acquisition. Thus the structure of management of the public property has to reflect ability to solve topical issues and provide receipt of the additional income to local budgets due to application of modern methods and financial instruments, effective use of the available property and a detailed legislative regulation of management activities.
The land parcel which actually isn’t used, drops out of economic turnover for extended length of time and doesn't receive proper protection as a natural resource, it cannot be recognized relevant to the basic principles of the land law, for which reason arises a need to solve this problem.
We believe that it is practical to bring some legislative improvements to the existing regulation of arrangements for the use of the ownerless land plots, drawing of ownerless land plots into economic circulation is necessary according to such principles of the land right as compulsory use of the land parcel. It is estimated that use of such land parcels is possible only according to their intended purpose.
Under Article 25 of the Land Code of the Russian Federation land titles, emerge on the grounds, established by civil legislation, federal laws, and are due to state registration.
Thus, the Land Code involves the invocation of Article 225 of the Russian Federation Civil Code to the emergence of title to ownerless land .
Thus, under article 225 of the Russian Federation Civil Code an ownerless thing is that, that has no owner or the owner is unknown or, the right of title to which the owner has refused from.
Just the same, title to ownerless things can be acquired in force of prescription, but in the legal literature there is no consensus on this issue, some authors believe that the parcel of land and the land as an object of government property get immunity to the Institute of acquisitive prescription activities . This provision issues from a presumption of government property of the parcels of the land that are not objects of private or municipal property . In the event that the ownership of land is not divided, the disposal of such parcels of the land is carried out by body of local self government, i. e. in the absence of established real estate owner, this is not possible to recognize as ownerless.
In this regard, some scholars, such as S.Yu. Starodumova suggest that the lawmaker’s goal is – to put into civil circulation actually existing immovable estate - can not be realized in view of adopted in 2006, changes in the civil law, relating to exclusion of the paragraph on the recognition of ownership of unauthorized construction on non-owned immovable estate, pursuant to that the parcel will be provided to that person for the construction of the building .
Thus, the Russian Federation Land Code is provided one of the admission foundations of the parcel of the land ownerless - the owner’s refusal of the rights to the parcel of the land. It should be noted that this is only the owner can be a natural or legal person, as otherwise is not provided for by law.
Under the Article 236 of the RF Civil Code citizen’s or legal person’s waiver of ownership of the belonging property, does not entail termination of rights and obligations in respect of this parcel until the acquisition of title by another person.
Under the Article 43 of the RF Land Code citizens’ and legal persons’ refusal to exercise their rights on the parcels of the land does not entail the termination of their duties established by Article 42 of this RF Code:
- The use of the parcels of the land in accordance with their purpose in ways that should not harm the environment, including the land as a natural object;
- Preservation of boundary, geodetic and other special markers that are installed on the land in accordance with the law;
- Implementation of measures for the protection of land, forests, water bodies and other natural resources, including fire safety measures;
- Timely usage initiation of the parcels of the land in cases, if the terms of the land development are contract-stipulated;
- Timely payment of payments on the ground;
- Adherence, while using the parcels of the land, of town-planning regulations, construction, environmental, sanitary, fire and other rules, standards;
- Prevention of pollution, depletion, degradation, damage, destruction of land and soil and other negative impacts on land and soil;
- Other obligations provided for by law .
Thus, the proper implementation of the duties assigned to owner, is quite cumbersome, most often the cause of failure is just unbearable burden to maintain the parcel of the land for a specific owner.
In practice, there are cases when the land owner waives the rights to it, not by filing a declaration to the competent authorities, namely removing from property, use and disposition of property, i.e. legally the owner of such land exists, but in fact the land is abandoned, ownerless.
Under the current applicable law ownerless lands may be acquired in the property on the basis of acquisitive prescription, under the Article 234 of the RF Civil Code, or be forcibly removed as not used for its intended purpose under the Articles 284, 285 of the RF Civil Code.
By the Article 234 of the Russian Federation Civil Code is founded that the acquisition of property rights is possible in the presence of a person who would honestly and openly, continuously has owned the parcel of the land as his own for fifteen years. It is also necessary to note that the person, referring to the acquisitive prescription, can add to his possession time, all time during which another person has owned this property, whose successor this person is.
In the cases provided for in Articles 284 and 285 of the RF Civil Code, the right of withdrawal area has a local government. A person, who has an interest in the parcel of land, can only initiate its forced withdrawal of a legal authority by filing an application. And in future – to pretend for the acquisition of land ownership in total ordering.
Under the Article 225 of the RF Civil Code, the parcel of the land that is ownerless, can be purchased in the municipal property, it is accepted for registration by the body carrying out state registration of rights to immovable property, according to the local authority on whose territory it is located.
The order of registration of ownerless parcels of the land is governed by the Regulation "On the registration acceptance of the ownerless immovable things" approved by the Decree of the Government of the Russian Federation of September 17, 2003 N 580 (hereinafter - Regulations). Immovable property objects, which do not have the owner or owners of which are unknown, are taken on record as ownerless body carrying out state registration of rights, under the Articles 225 and 236 of the RF Civil Code .
In accordance with the Regulations the registration acceptance of the immovable property is carried out on the basis of the sending application in a single copy of the local government body on the territory of which the immovable property is. The application must be accompanied by the documents proving that the immovable property has no owner or the owner is unknown, as well as documents containing the description of the immovable property. After the registration acceptance of the real property that has no owner or the owner is unknown, an extraction from the Unified State Register of Rights on account of the registration acceptance of the immovable property is issued to the local government body.
Under the paragraph 3 of Article 225 of the Russian Federation Civil Code, the State registration of municipal ownership of immovable property is carried out upon expiry of one year after the date of registration acceptance of this immovable property object on the basis of the final court judgment.
The cases on the recognition of the property to be ownerless considered by the court have a number of features, such as the course of action of the court to the detection of a missing owner in order to enable him to assert his right, and in the case of his non-appearance – the creation of the assumption about his loss of the property rights and the recognition of the rights of the applicant. A public notification on the transfer of ownerless property to municipal ownership, which should be carried out by means of publications in the local media to inform the widest possible audience, serves these goals.
It should be noted, however, that to the period of time during which the land is not actually used by the owner, the period necessary for the recognition of the land to be ownerless is added, as well as the time spent on applications to the registration and the judiciary, time needed for the consideration of this question and taking an appropriate decision.
It should also be noted that the Government of the Russian Federation on October 31, 2014 submitted a bill aimed at identifying ownerless property in the country to the State Duma, proposing to establish a new basis for registration of immovable property as ownerless .
The main purpose of the bill is to identify immovable property objects that lack factual and legal ownership. The changes will not apply to immovable property objects the rights on which have arisen prior to January 31, 1998.
It is planned to establish that in the absence of information on the rights for the immovable property objects of non-residential property in the State Immovable Property Cadaster within five years from the date of assignment of cadastral numbers such objects can be put on the list as ownerless, and subsequently transferred, for example, to the municipal property.
It is assumed that this regulation will be applied to previously recorded buildings, structures, premises and assets under construction. Under the bill the cadastral registration authority must send information on such facilities to the appropriate authorities of local government within 10 working days from the end of the five year period. Authorized state authorities and local government agencies may within 10 days from the date of receipt of this information contact the body which is responsible for the state registration of rights with a statement of acceptance of the immovable property object on the list as the ownerless immovable object.
The bill contains other regulations; in particular, it is offered to reduce the overall term of the state registration of the rights from 18 calendar days to 10 working days. The reference time of the term will continue to start from the date of receipt of the application and required documents.
The effect of this bill in our view will stimulate owners of immovable property objects, information about which is brought into the state cadaster of real
estate, but the rights on which are not registered in the prescribed manner for a long time, to register such rights in the Unified State Register of Rights to Real Property for tax purposes.
Underlining the need to solve these issues, we believe it is possible to make some improvements to the current regulation of the use order of ownerless land plots.
Thus, we can conclude that it is necessary to involve ownerless land plots into the commercial production in accordance with such principles of land law as the mandatory use of the land plot in accordance with its intended purpose. It is assumed that such land plots can be used in accordance with their purpose.
It also should be noted that an effective measure to improve the legal actions aimed at ensuring the putting on the list and removal from the register of ownerless immovable property objects is the creation of a mechanism to improve the structure of municipal property management, herewith the structure should reflect
the ability to solve problematic issues and provide additional revenues to local budgets through the use of modern techniques and financial instruments, the effective use of existing property and detailed legal regulation of management processes.
Summing up, it can be assumed that the implementation of the proposed by us will help to ensure adequate protection of ownerless land plots, to minimize the risk of pollution, littering, deterioration, damage of lands and soil and other negative impacts on the lands.