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How the rights of farmers are protected in Kuzbass
The bone of contention was the agricultural land for haymaking. In 2017, this plot, at the request of an individual entrepreneur Pavel Shaport (the head of the farm), was put up for auction to sell the right to lease. At the auction, the amount of rent was raised to the limit (more than 20 million rubles a year) and citizen Vasily Klyachin was declared the winner. However, this citizen did not conclude a lease agreement in due time, and the right to conclude an agreement was transferred to the businessman Shaport. Considering the unreasonably high amount of the rent, Shaport refrained from concluding the contract.
After the expiration of the term for signing the lease agreement, Shaport re-applied to the Committee for Management of Municipal Property of the Kemerovo District with a request to lease the land. But I received an answer that the land plot had already been provided to another person for gratuitous fixed-term use, that is, for nothing.
The head of the farm, Pavel Shaport, turned to the Yurproekt Bar Association to protect his rights.
What was the violation of the farmer's rights
As it turned out, the issue of transferring the disputed site free of charge was resolved in 3 working days (!) in favor of one of the participants in the previous auction - individual entrepreneur Vitaly Suvorov. He submitted an application for granting him a plot without bidding immediately the next day after the expiration of Pavel Shaport's pre-emptive right to conclude a lease agreement at bidding.
In the course of the legal analysis of the situation, we proceeded from the fact that the KUMI of the Kemerovo region, having received an application from IP Suvorov for the provision of a plot for the needs of a peasant (farm) economy, had to follow the procedure for publishing a notice of the possible provision of a land plot for the stated purposes. Being interested in replenishing the district budget at the expense of rent or income from the sale of a land plot, the Committee, if there were several interested parties in relation to one plot, was obliged to hold an auction for the sale of a land plot or an auction for the right to conclude a lease agreement, and not give it away free of charge.
However, KUMI did not make any publication and concluded with Suvorov on the third day after receiving the application a contract for gratuitous use for a period of 6 years.
The advantages of this method of provision are obvious: firstly, the borrower throughout the entire term of the contract uses the land plot absolutely free of charge, simultaneously deriving profit from it; and secondly - after 5 years of such use, the borrower has the right to free provision of such a plot already in the property, provided that he used it for its intended purpose.
From the position of the authorities, defended in court, the municipality has the right to dispose of the site "at its own discretion." Suvorov himself subsequently explained in court: “I was told in the district administration: you wait, if no one signs this agreement, we will provide you with a plot.”
From our point of view, the Committee gave an unreasonable preference to the "elected" applicant when concluding a contract for free use, which served as the basis for appealing to the court against the inaction of KUMI and the concluded transaction.
What decision did the court make
In January 2018, the Arbitration Court of the Kemerovo Region declared illegal the decision of the Committee to provide a land plot for free use without observing the procedure established by law for publishing a notice of a possible provision of a land plot.
During the trial, lawyers and lawyers of the Yurproekt Bar Association managed to prove that public property, namely, land plots, state ownership of which is not delimited, cannot be provided at the discretion of the administrative body without observing the procedures prescribed by law. And the procedure for providing agricultural land plots for the needs of peasant (farmer) households is strictly regulated by the Land Code of the Russian Federation: in the event of an application for the provision of a plot on any right, the body authorized to dispose of land plots must publish a notice of the possible provision of such a plot, indicating the purposes provision and the right on which such provision is planned. If within 30 days no applications were received from other applicants, then the authority decides to provide the site to a single applicant without holding an auction. If applications of other persons are received, then the authority must decide to refuse to provide the site without bidding to the first applicant and organize the bidding procedure.
This procedure was not followed, and these circumstances formed the basis of a positive court decision for the businessman Pavel Shaport to recognize the inaction of KUMI as illegal, and the concludedagreement - invalid with the application of the consequences of the invalidity of the transaction: the return of the site back to the municipality.
He did not agree with the court decision of the KUMI of the Kemerovo region and appealed against it in the appeal, and later in the cassation procedure. But all the courts only confirmed the position of the lawyers of the Bar Association "Yurproekt" - it is impossible to dispose of state land at one's own discretion!
The case can be found at link“Such a tool as the provision of a land plot for free fixed-term use really exists with the authorities, however, it must be used correctly, in accordance with the law: by publishing information about the upcoming provision of a land plot for individual housing construction, personal subsidiary farming within the boundaries of a settlement, gardening, dacha economy, for the implementation of the peasant (farm) economy of its activities. In cases where land plots are provided for gratuitous use for other purposes, such publication is not required.
Then the principles of fair competition will be observed, and municipal budgets will be replenished. And if we are talking about plots that are completely hopeless for leasing, then we can agree that someone will use them free of charge - so that all lands have their own owner.
