On the formation of a land plot for an apartment building at the request of one of the owners of apartment buildings

The owner submitted an application to the regional government body for the formation of a land plot for an apartment building

The owner of a premises in an apartment building applied to the regional department of property relations with an application for the formation of a house plot in order to include it in the common property of the apartment building. The site was given for indefinite use to a nearby sanatorium, and the owner was a constituent entity of the Russian Federation.

The department refused the owner, citing the fact that the formation of a land plot for an apartment building is carried out on the basis of a developed and approved land surveying project. Since the owner did not provide the details of such a project, it is impossible to form a land plot.

In addition, as the department indicated in its response, the sanatorium, in whose permanent use the land plot is located, did not give consent to the allocation of the plot: the institution was ready to provide a plot of no more than 400 sq.m. while the owner asked to form a plot of 2600 sq.m.

The emergence of ownership rights to a land plot under an apartment building
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Minuses

Along with the advantages, you need to take into account some of the problems that registration of land under an apartment building as a property can bring.

You should be prepared for the duration of the procedure; it can even take up to a year.
You will need to spend money to register the site.
The person who owns the site is obliged to keep it clean and tidy and to monitor its improvement. If you do not fulfill your duties, you may receive a fine from the state.
You cannot even build structures on your own land that violate urban planning standards. Moreover, it is forbidden to do this if the land is not registered.

Any land plot, including one for an apartment building, must be used taking into account its intended purpose. If you violate this rule, you may be subject to administrative liability.

This is interesting: Re-registration of a land plot through the MFC

ATTENTION! Registration of the local area as a property is a responsible step; all its advantages should be considered. When the decision is finally made, you need to familiarize yourself with the procedure.

The owner was denied the formation of a land plot due to the lack of a land surveying project

The owner considered the department’s refusal to be illegal and filed a lawsuit demanding that the department be obliged to carry out work to form a land plot for an apartment building.

The court of first instance agreed that, based on the decision of the general meeting of owners of premises in an apartment building, any authorized person has the right to apply to government authorities with an application for the formation of the land plot on which the apartment building is located (Part 3 of Article 16 No. 189-FZ ).

However, the judge recognized as legal the refusal of the regional authority to form a land plot for an apartment building of 2,600 sq.m., since it is in constant (indefinite) use by the sanatorium, and the sanatorium agrees to the alienation of only 400 sq.m. plot.

In this case, the judge referred to the norms of paragraph 2 of Part 16 of Art. 11.10 of the Land Code of the Russian Federation. If, according to the location plan, the land plot completely or partially coincides with the location of the site according to a previously approved scheme, the validity of which has not expired, then this fact is grounds for refusing to approve the new plot location scheme.

The validity of the layout of the land plot on the cadastral plan of the territory under the multi-apartment residential building had not expired at the time of the consideration of the case in court. Therefore, it is impossible to create a site for an apartment building that intersects with the site given for use to the sanatorium.

Also, as the court indicated, by virtue of paragraph 4 of part 3 of Art. 11.3 of the Land Code of the Russian Federation, the formation of land plots within the boundaries of an element of the planning structure built up with apartment buildings is carried out exclusively in accordance with the approved land surveying project.

Since the land surveying project for the territory in question has not been developed, there are no grounds for satisfying the claim. The owner's claim was rejected.

How to register a land plot for an apartment building
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The Supreme Court of the Russian Federation noted the right of owners of premises in an apartment building to form a land plot under this house

The appellate court agreed with the conclusions of the trial court and rejected the owner's complaint, and he was also denied a cassation. Then the plaintiff appealed to the Supreme Court of the Russian Federation, which did not agree with the conclusions of previous courts.

The land plot on which the apartment building is located belongs by right of common shared ownership to the owners of the premises in this building and belongs to their common property (Clause 4, Part 1, Article 36 of the Housing Code of the Russian Federation, Resolution of the Constitutional Court of the Russian Federation dated May 28, 2010 No. 12-P ).

The boundaries and size of the land plot on which the house is located are determined in accordance with the requirements of land legislation and legislation on urban planning.

For this purpose in Art. 16 No. 189-FZ established special procedures and conditions for the transfer of a land plot into the common shared ownership of the owners of premises in the apartment building that is located on it.

The Supreme Court of the Russian Federation noted that the right of owners to shared ownership of a land plot under an apartment building is associated with the completion of the process of forming a land plot and conducting state cadastral registration:

If a land plot under an apartment building was formed before the entry into force of the Housing Code of the Russian Federation and state cadastral registration was carried out in relation to it, the right of common shared ownership to it is considered to have arisen by force of law from the moment the Housing Code of the Russian Federation came into force.
If a land plot was formed after the entry into force of the Housing Code of the Russian Federation and state cadastral registration was carried out in relation to it, the right of common shared ownership to it arises by force of law from the moment of state cadastral registration. In this case, no acts of state authorities or local self-government bodies on the provision of a land plot or on the emergence of ownership rights are required.
If the land plot has not been formed and cadastral registration has not been carried out in relation to it, the land under the MKD is the property of a public legal entity.

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Pros and cons of registering land for MKD.

If we systematize the pros and cons for owners of premises in apartment buildings, it will look like this.

ADVANTAGES of registering land for MKD:

Additional guarantees.

Without the consent of the owners, it is impossible to use the land, such as laying new roads, construction, organizing commercial and other enterprises (car washes, parking lots, garages, etc.) on the territory owned by the owners of the apartment building.
Without the consent of the owner, any alienation of part of the land plot is not possible, nor is the demolition (construction) of any buildings possible.
It is impossible to seize a land plot for municipal (state) needs free of charge.

Additional possible profit.
Owners have the right to rent out part of the land plot or provide it for other paid use.
In addition, the presence of land ownership significantly increases the cost per square meter of residential or non-residential premises. Ease of use.
Owners have the right to perform various actions with the land plot, incl. aimed at its improvement, construction of additional structures, playgrounds and other buildings necessary to ensure the normal functioning of the apartment building.

DISADVANTAGES of registering land for MKD:

Taxes.
Since 2015, owners of premises in apartment buildings have been exempted from paying land tax in accordance with Art.
389 Tax Code of the Russian Federation. However, it should be borne in mind that the presence of a share in the right to land may increase the cadastral value of the premises itself, and, consequently, the tax burden. Responsibility.
Owners are required to be responsible for the maintenance of their land. Consequently, the responsibility for maintaining, repairing, cleaning roads, landscaping elements (lawns, playgrounds, green areas, parking spaces, etc.) lies with the owner, and, therefore, liability measures can be applied to him. The owner (his DUK) may be fined for not removing snow, for not removing garbage, etc.
Price.
As a minus, one should also point out the increase in the cost per square meter of premises, since this narrows the circle of buyers and tenants for the owners, as well as an increase in the costs of maintaining the common property of the apartment building.

As we see, the number of advantages outweighs the number of disadvantages, however, at second glance, obvious advantages can become negative.

Unobvious disadvantages of registering land for MKD.

As an argument for the speedy registration of land ownership, some residents cite the following - the possibility of building useful and necessary facilities for citizens in the local area. But here you need to know and remember that any territory in the city has its own purpose and on the site under an apartment building, for example, no one will be allowed to build a stall selling alcoholic beverages. The possibilities for using local areas are very limited.

This is due to many factors: crowded residential buildings, urban planning restrictions and regulatory and technical requirements, as well as other factors.

In addition, some people consider an increase in the market value of housing after registration of common ownership of land as a plus of registering land ownership. Actually this is not true. The share in the land plot under an apartment building itself exists only hypothetically: it cannot be sold, donated, or received a loan for it. The land plot is inseparable from the residential building, that is, it is deprived of independent negotiability.

Just as the part of the common property owned by the owner is inseparable - a piece of the landing or a square decimeter of the attic.

Summarizing the discussion about the usefulness or harm of privatization of the local area, one should remember one very significant circumstance: the transfer of land plots into ownership under MKD will first of all reduce the financial burden of the local government, and accordingly, it is very profitable for the authorities to transfer the costs of maintaining home areas to citizens. It was for this purpose that public hearings were held in the city of Nizhny Novgorod on the formation of a land plot, which subsequently became big surprises for citizens, since the authorities tried to register the largest possible plots for small residential buildings, including the territory of internal passages, communication zones, etc.

Recommendations.

If the land plot for an apartment building has not yet been formed, think about its boundaries and the costs of its maintenance. It must be remembered that on lands occupied by communications, it is impossible to build permanent structures, but any temporary ones, incl. and lawns can be destroyed at the same time. If the plot has already been registered, it is probably worth thinking about reducing its cadastral value in order to minimize the tax burden.

Nikonenkova E.V. 01/12/2018

The authority cannot deny the owners the right to form a plot for an apartment building

In the case under consideration, the land plot was not formed and cadastral registration was not carried out in relation to it. Therefore, as noted by the Supreme Court of the Russian Federation, the formation of a land plot must be carried out by state authorities or local governments at the request of any owner of premises in an apartment building (Part 4 of Article 16 No. 189-FZ).

An appeal by any owner of premises in an apartment building to state authorities or local self-government bodies with an application for the formation of a land plot on which this apartment building is located should be considered as the basis for the formation of a land plot and its state cadastral registration.

Consequently, it is the regional department to which the plaintiff applied that has the responsibility to form a land plot for an apartment building. The absence of an approved territory planning project is not a basis for refusing citizens the exercise of their right to form a land plot.

The RF Supreme Court also pointed out that the court of first instance did not check the fact that the validity of the layout of the disputed land plot had not expired at the time of the trial.

The Supreme Court of the Russian Federation concluded that when considering the owner’s claim, there were violations of substantive law that influenced the outcome of the case. The decision of the trial court was canceled and the case was sent for a new trial.

When the case was reconsidered, the owner's claim was satisfied. The court ordered the regional department of property relations to carry out work on the formation of a land plot for an apartment building.

Documents for registration of land ownership

The documents necessary for registration of ownership of the site are submitted to the Administration of the city or regional center. The bodies that are involved in the formation of plots have different names, for example, a committee or department of land resources.

When drawing up an application, you should attach copies of some documents:

Schemes for the distribution of shared property between owners;
Notifications of the general meeting;
A registration sheet, which noted the number of residents present at the general meeting;
Powers of attorney issued to representatives of owners;
Minutes of the general meeting;
Permissions from the owners, adopted at the meeting, on the formation of the site;
Representative's passport.