Review of the practice of the RF Armed Forces from March 2015 to March 2020 on the issue of “Disputes over rights to real estate”

We consider disputes over rights to real estate to be one of the most complex and confusing categories of cases. There are a number of reasons for this:

1. The legislation is confusing and contradictory, and legal scholars still do not have a unified position on the question "What is an immovable thing"?
2.  In almost every dispute, one has to analyze not only the current legislation, but also the legislation that was in force before.
3.  Often, for the correct solution of a case, special knowledge from the engineering, construction, and technical fields is required.

To help participants in such disputes, we analyzed the most important judicial practice on issues related to the construction of buildings and structures, the privatization of real estate, rights to land plots and the definition of their boundaries.

Definition No. 4-KG14-25

The correct resolution by the court of a case in a dispute about the recovery of property from someone else's illegal possession requires establishing whether the will of the owner was expressed to transfer possession of the disputed property to another person. If the alienation of property took place on the basis of a power of attorney, the existence of which the owner knew, but did not try to revoke it, then the alienation should be recognized as having occurred by the will of the owner.

The limitation period for a change in the subject matter of a claim is calculated for newly declared claims based on the moment of such a change, and not on the basis of the date of the initial appeal to the court.

Definition No. 305-ES14-2292

Changing the type of permitted use of a land plot owned by a legal entity is impossible on the initiative of the authorized body alone without the will of the owner of the site.

Definition N 6-KG15-5

A dispute over the rights to a land plot between citizens may be resolved without first challenging the act of the authorized body on the provision of such a plot. At the same time, the dispute is resolved according to the rules of civil proceedings, the provisions on a three-month period for challenging the actions and decisions of authorities and officials cannot be applied.

Resolution of the Presidium of the Supreme Court of the Russian Federation N 301-PEC15

Changes to the issued building permit cannot be made in the absence of an objective need identified during the construction process to deviate the parameters of the capital construction object from the design documentation and comply with the procedure for changing the design documentation.

Definition N 303-ES15-5520

A claim for the recognition of the right to be absent on an object that does not have the characteristics of an immovable thing, but the rights to which are registered as real estate, is a type of negatory claim. The statute of limitations does not apply to such a claim.

Definition N 305-KG15-7535

Seizure of a land plot does not entail restriction of the owner's right to judicial protection, including the right to establish the boundaries of a previously recorded land plot.

Resolution of the Presidium of the Supreme Court of the Russian Federation N 1-PV16

The issue of restoring the term for appealing a judicial act to a person not involved in the case is considered with an examination of the factual circumstances indicating the rights and obligations of this person affected by the adoption of the contested judicial act.

In this case, the following legally significant circumstances should be investigated:

•  whether this person is deprived of any rights or limited in rights 
•  whether such a person is endowed with rights or has a duty assigned to him.

Definition N 11-KG15-33

Buildings and structures built closer than the minimum distances established by building codes and rules to gas supply system facilities are subject to demolition. The fact that the developer has received a building permit in accordance with the established procedure does not matter.

Definition N 18-KG15-241

The right of ownership to an unauthorized construction may not be recognized for a person who created a new object as a result of reconstruction, if the construction of such an object was carried out with a significant violation of urban planning and building norms and rules and creates a threat to the life and health of citizens.

Note: In this case, a three-story residential building was illegally remodeled into a six-story apartment building. 

Definition N 308-ES15-15218

In the case when the object was created solely for the purpose of improving the quality and maintenance of the land plot and does not have an independent functional purpose, it is an integral part of the land plot and cannot be recognized as a real estate object, the rights to which are subject to state registration. The right to file a claim for the recognition of the absence of the right of property The tenant of the land plot also has the responsibility for such an object.

Note: In this case, an “engineered rice system” was registered as a piece of real estate, designed to improve the surface layer of the soil. In accordance with the current Law on Land Reclamation, such objects can be exclusively in federal ownership, however, the privatization of the disputed object took place before the adoption of this law. Accordingly, the right of federal ownership to this object cannot be exercised bypassing the mechanism for reclaiming the object from the actual possession of other persons. The opposite will also be a violation of the principle of the unity of the fate of land plots and objects firmly associated with them.

Definition N 305-ES15-16772

The legislation does not provide for the transfer of a land plot that is in public ownership and on which a non-residential building is built, to the common shared ownership of the owners of premises in this building, if the land plot was provided to the developer under a lease agreement. The norm on land plots on which multi-apartment residential buildings have been erected cannot be applied to these relations by analogy.

Definition N 305-ES15-6246

The general (three-year) limitation period, calculated from the moment when the plaintiff knew or should have known about the loss of possession and about who is the proper defendant.

Definition N 18-KG16-61

A high-voltage power transmission line is a single object of property rights, its components (in particular, supports) are not independent real estate objects, and therefore they cannot be recognized as unauthorized buildings.

Definition N 16-KG16-18

Allocation of a share in kind by one of the owners of a land plot is possible only if all land plots formed during the allocation have an area not less than the established minimum size limits for land plots of the corresponding intended purpose and type of intended use (in accordance with the current urban planning regulations).

Definition N 46-KG16-8

The action of paragraph 4 of Art. 252 of the Civil Code of the Russian Federation on the possibility of compulsory payment to a participant in shared ownership of monetary compensation for his share applies both to the claims of the separated owner and to the claims of other participants in common shared ownership under specific circumstances.

Forced payment of compensation is also allowed if the owner of an insignificant share does not have other residential premises on the right of ownership, if, for example, he actually lives in another subject of the Russian Federation.

Definition N 18-KG16-125

A change by the owner of the parameters of the immovable property belonging to him, which is in pledge, does not terminate this encumbrance. In the case under consideration, a three-story residential building and a land plot were laid. Then a fourth floor was added to the residential building, and the land plot was combined with another land plot. The court did not consider such changes in the subject of the pledge as grounds for terminating the pledge.

Definition N 304-ES16-10165

When one of the owners of premises in an apartment building is obliged to vacate the premises belonging to common property and occupied by them without the consent of the other owners, he may also be obliged to restore this premises to its original state (in a specific case, to dismantle the air conditioner from the lobby, a video surveillance system, an information board displaying exchange rates, an ATM, and transfer the indicated premises to the partnership).

Definition N 308-ES16-10315

A participant in shared ownership who has made inseparable improvements to immovable property at his own expense, in compliance with the established procedure for the use of common property, has the right to a corresponding increase in his share in the ownership right.

In the case under consideration, the organization registered the right to a share in the common shared ownership of the premises in the amount of 1/5. The right of ownership for the remaining 4/5 shares in the right of common shared ownership is registered with the company. As a result of the work carried out by the organization for the reconstruction and technical re-equipment of the premises, its total area was increased from 778.5 sq. m to 953.3 sq. m. In this regard, the organization filed a lawsuit against the company with an arbitration court to recognize the right to a share in the amount of 3305/9533 in the right of common shared ownership of the premises.

Definition N 33-KG16-12

Restoration of a dwelling after a fire is not the creation of a new object for which recognition of the right is required property. It is noteworthy that in this case the court applied this position to a situation where, after a fire in a house with two owners, one of the owners essentially built a separate house on his part of the site.

Definition N 18-KG17-49

The owner of a residential building, in the immediate vicinity of which construction work is being carried out, has the right to demand that the developer ensure safe work performance, including the installation of a special protective visor, as well as a protective net in order to avoid construction debris and concrete mortar from the object under construction on the adjacent territory.

Definition N 1-KG17-6

Non-compliance by the competent authorities with the procedure for the removal of residential premises, established by Art. 32 of the Housing Code of the Russian Federation does not prevent the owner of this residential premises from demanding payment of compensation in connection with the withdrawal, if by the time the dispute was considered, the premises had actually been withdrawn without payment of compensation.

Definitions N 304-ES17-1624, 304-ES17-1639

Federal Law No. 257-FZ of November 8, 2007 "On highways and road activities in the Russian Federation and on amendments to certain legislative acts of the Russian Federation" does not define special grounds for establishing an easement on land plots located within the boundaries of the right of way highways. Such grounds are enshrined in civil law.

The company applied to the authorized body of the constituent entity of the Russian Federation (hereinafter referred to as the department) with an application to establish, in the interests of the company, a private easement on a land plot for accommodating commercial parking on the basis of subpara. 2 p. 4 art. 39.26 of the Land Code of the Russian Federation, indicating that the Federal Law of November 8, 2007 N 257-FZ "On highways and road activities in the Russian Federation and on amendments to certain legislative acts of the Russian Federation" (hereinafter - Law N 257-FZ) allows use of land plots within the boundaries of the right of way of roads. However, neither the provisions of the Labor Code of the Russian Federation, nor the Law N 257-FZ established grounds for granting a free (not provided to another person) land plot in public ownership, located in the right of way of a highway, to a citizen or legal entity only on the terms of easement.

Definition N 307-ES17-5707

If during the alienation of the premises in the building it is impossible to allocate the land plot located under these premises, the land plot enters the common shared ownership of the seller and the buyer. The right of ownership to a share in the right to a land plot arises from the buyer of the premises by virtue of the law from the moment of state registration of the transfer of ownership of the premises in the building to him.

Definition N 18-KG17-121

The buyer, who has lost the thing he acquired on the basis of a court decision issued at the suit of a third party, has the right to demand compensation from the seller for damages based on the amount of money actually paid by him for the goods, including the amount paid by receipt in excess of the price under the contract.

The limitation period at the request of the buyer is calculated from the moment the court decision on the recovery of the thing comes into force.

Definition N 11-KG17-37

A participant in shared ownership who has incurred expenses for inseparable improvements to the common property in the form of a dwelling in order to bring it into a habitable condition, has the right to demand their compensation from the other co-owner in proportion to his share.

Definition N 304-ES18-2938

If there are conflicting conclusions of a judicial construction and technical expertise on whether an unauthorized object poses a threat to the life and health of citizens, the court must eliminate this contradiction using the mechanisms provided by the procedural legislation (calling an expert to give explanations, appointment of additional and repeated examinations). Simultaneous denials of a claim for the demolition of an unauthorized structure and a claim for recognition of ownership of the unauthorized structure by the developer are contrary to the principle of legal certainty.

Definition N 306-ES17-20590

The presence of a security zone of a power facility does not exclude the possibility of establishing an easement to obtain authority to use someone else's land for the purpose of operating a real estate object (linear facility) that does not prevent the use of the land in accordance with the permitted use, and within that part of the land that is occupied by high-voltage power towers lines.

Rationale: the security zone of a linear power facility (which includes overhead lines) is established not for the purpose of using the land plot by the owner of the overhead line, but to ensure safe operating conditions for this facility and exclude the possibility of damage, determination of protection this zone does not depend on the will of the owner of the land plot or the grid organization operating the overhead lines. The presence of a security zone of a power facility does not exclude the possibility of establishing an easement to obtain authority to use someone else's land for the purpose of operating a real estate object (linear facility) that does not prevent the use of the land in accordance with the permitted use, and within that part of the land that is occupied by overhead line supports .

Definition N 305-KG17-23190

The obligation to fulfill the security obligation of an object of cultural heritage of federal significance rests with the owner of such an object, even if the specified object is in the possession or use of a third party (third parties) on the basis of a civil law contract (tenant).

Definition N 309-KG17-20985 

An additional agreement to a lease agreement that changes the type of permitted use of a land plot not related to construction to one used for construction purposes cannot be considered a title document when obtaining a construction permit if this agreement is concluded in circumvention of the procedures provided for by land legislation for the provision of land plots for the purposes of construction of real estate objects.

Definition N 304-ES18-2923

The requirements of the local self-government body to the owner of the land plot on the demolition of an unauthorized building are subject to satisfaction if the construction of the object is carried out in the absence of a permit for the construction and operation of this building poses a threat to the health and life of citizens.

Definition N 49-KG18-13

A claim for the recognition of a registered right or encumbrance as absent is an exclusive method of protection, which is subject to application only when the violated right of the plaintiff cannot be protected by filing special claims provided for by the current civil legislation. Such a requirement cannot replace, in particular, the requirement to demolish an unauthorized building.

Definition N 305-ES18-12573

If one lessor has concluded several lease agreements with different tenants regarding the same property as a whole, then the tenant to whom the property that is the object of the lease agreement has not been transferred has the right to demand from the landlord who has not fulfilled the lease agreement to compensate for the damages caused and pay the penalty established by the agreement .

Definition N 86-KG18-11 

A person whose rights and legitimate interests have been violated by the construction and (or) operation of an unauthorized structure or a threat of their violation has been created, has the right to demand from the persons who committed such a violation to restore the situation that existed before the violation of the right, and to stop actions that violate the right or create a threat of its violation. (for example, install snow retainers on the roof slope, remove construction debris).

Definition N 308-ES18-10260

When resolving a boundary dispute, the court establishes the actual and (or) legal border of adjacent land plots, taking into account, among other things, information about the location of the boundaries of such plots and their agreement at the time the disputed plots were formed. If there is a boundary dispute, a claim for the recognition of the missing registered ownership of a land plot is an improper way to protect the right.

Definition N 307-KG18-21642

If the authorized body issued a building permit, but subsequently found that it was issued in conflict with the current legislation at the time of its issuance, then the termination of such a building permit is lawful.

Definition N 309-ES19-6328

In the event of termination of the lease agreement and loss of interest of the tenant in the execution of a judicial act, the owner of the land plot has the right to declare procedural succession in the claim of the tenant against a third party to eliminate the violation of the right to use the land plot, not related to deprivation of possession.

Do you have any questions?

Using them, you can contact the author Daria Vladimirovna Tretyakova (head of representative office in Moscow)

Author

Daria Vladimirovna Tretyakova

Head of representative office in Moscow