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Graveyard property protection

You have to pay, even for the cemetery ...

The market of funeral services in Russia is wide and multifaceted. And extremely dangerous. On the one hand, there are the owners of the cemetery business, earning money from situations and zealously defending their "boundaries". On the other hand, oddly enough, a state that violates foreign borders. And the question is - who is more dangerous?

The lawyers of Yurproekt managed to achieve justice in a complex case to protect the rights of their client, whose land plot within the city of Kemerovo was deliberately occupied by the municipality as a cemetery.

Let me remind you that, in accordance with the current legislation, the organization of funeral services and the maintenance of burial sites are classified as issues of local importance of the city district. That is, in Kemerovo, the City Administration is responsible for providing land plots for burials. Cemeteries and the land below them can only be in public ownership.

Cemetery "Central 4" of the city of Kemerovo was organized in 2005 and since then has grown to a huge size, gradually occupying adjacent land plots owned by a Kemerovo businessman - our trustee.

At the same time, the occupied land plots were removed from state ownership back in the 90s of the 20th century, and had an industrial purpose, which did not prevent the municipalities and their subordinate organizations from developing the cemetery business on them. That is, in fact, to occupy the territory under the cemetery, without formalizing the land management documentation and the rights of the municipal enterprise to the land plots occupied by the cemetery.

For many years, the entrepreneur tried to resolve the issue of the withdrawal of his land plots into municipal ownership (negotiations with officials, courts). But his actions did not lead to a result. At the same time, no one removed the obligation to pay land tax for a plot, the use of which was impossible for reasons beyond his control, from him as an owner. Accumulating huge tax debts (about 5 million rubles a year!) Threatened the financial viability of the entrepreneur.

As a result, the land owner turned to us for help in protecting his rights. We considered various options: to invalidate the sale and purchase agreement, to terminate it, to challenge the obligation to pay land tax as a result of being on the cemetery plot - all these options did not lead to the desired result. Under this, it was thought, first of all, to remove the tax debt, and secondly, to receive an adequate payment for the inability to use the site. & nbsp;

Based on the results of the analysis, we came to the conclusion that it will not be possible to cancel the tax debt, it is only possible to reduce the cadastral value and reduce the size of the land tax for the current and future periods. In terms of "monetization" of land ownership, there were 2 options: to collect a fee for use and to demand a forced purchase of a plot at a market price. We decided to start with the recovery of unjust enrichment for the use of land based on market prices for the lease of land.

It was important to determine exactly what evidence needed to be collected to confirm the fact of the occupation and the amount of the fee for use. At the same time, the collection of such evidence took more than 9 months - such was the resistance of the supervisory authorities to hold the administration of the city of Kemerovo accountable. The penalty under Art. 7.1 of the Code of Administrative Offenses of the Russian Federation, assigned to the Administration, amounted to 700 & nbsp; 000 rubles.

Bringing the City Administration to administrative responsibility for the unauthorized occupation of land plots has become indisputable proof that the cemetery is located within the boundaries of the land plots of our Principal. Attempts by the administration to appeal the decision to the Arbitration Court of the Kemerovo Region, the Seventh Court of Appeal Arbitration and the Arbitration Court of the West Siberian District did not lead to any result - all courts agreed with the fact of unauthorized occupation of land and upheld the decision.

The collected evidence formed the basis of the businessman's statement of claim against the Administration of the city of Kemerovo for the recovery of unjust enrichment.

The trial lasted almost a year, including a forensic examination to determine the market value of the fee for the use of the land, more than 13 meetings. As a result, the requirements of the entrepreneur were satisfied in full, more than 6 & nbsp; 500,000 rubles were collected from the municipality represented by the Administration of the city of Kemerovo. And this is a fee for only one calendar year of unauthorized use (the decision has not entered into force as of March 12, 2020).

As the squatting continues, the lawyers still have a lot of work to do!

By the way, in parallel with the trial, the cadastral value of the land plot of the entrepreneur was reduced, which made it possible to significantly reduce the land tax. After all, despite the arbitrariness Occupation of the site The administration is in no hurry to buy it into municipal ownership to resolve issues of local importance, and the obligation to pay land tax lies with its owner.

Yana Yurievna Alexandrova
Senior Associate, Land. Real estate. Construction"

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