The right to permanent use of the site. Concept and content of law
The concept, assessment and content of using a plot of land are defined at the level of land legislation. According to the requirements of regulatory legal acts, such a perpetual right of use can only be established in relation to state or municipal property.
The right to permanent use, if it was granted before the entry into force of the new Land Code of the Russian Federation, is retained.
This right must be registered with the government agency that confirms real estate transactions. In some cases provided for by law, such a concept as the “right to perpetual use” ceases to apply. In such situations, land users are required to enter into a lease or purchase agreement.
With the so-called primary grant of the right to permanent (indefinite) use of a land plot, the basis for acquiring this right is the decision of a state authority or local government to grant it to the user (Article 20 of the Land Code of the Russian Federation). In addition, the right of permanent (perpetual) use may be acquired on other grounds provided for by law. The grounds for acquiring the right of permanent (perpetual) use are also established by Art. 268 of the Civil Code of the Russian Federation, but in accordance with the specified Art. 20 of the Land Code of the Russian Federation, from the moment the Land Code comes into force, land plots are not provided to citizens, as well as legal entities, except for state and municipal institutions and federal government enterprises. Land plots on the basis of this right can also be provided to state authorities and local governments. The right of permanent (indefinite) use of land plots in state or municipal ownership that arose among citizens or legal entities before the entry into force of the Land Code of the Russian Federation is retained. Thus, if a land plot was acquired by an organization before the entry into force of the RF Land Code, the right of permanent (indefinite) use is retained (see Article 20 of the RF Land Code). Possibility of acquiring a land plot on the basis of the right of permanent (perpetual) use after the entry into force of the Land Code of the Russian Federation for persons not specified in clause 1 of Art. 20 of the Land Code of the Russian Federation, is significantly limited. Thus, it is impossible to provide land plots from state-owned lands, including to joint-stock companies. This is also indicated by the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 24, 2005 N 11 “On some issues related to the application of land legislation”, according to paragraph 2 of which non-normative acts of authorized bodies on the provision of land plots on the right of permanent (perpetual) use legal entities not specified in paragraph 1 of Art. 20 of the Land Code of the Russian Federation, and for citizens who are individual entrepreneurs, issued after the entry into force of the Land Code of the Russian Federation, must be declared invalid by virtue of Art. 13 of the Civil Code of the Russian Federation or not subject to application in accordance with Art. 12 of the Civil Code of the Russian Federation as contrary to the law. At the same time, the transfer of this right is assumed upon the acquisition of real estate located on a land plot, on the basis of civil and land legislation, as well as upon the reorganization of a legal entity. This follows from the content of the relevant norms of the Civil Code of the Russian Federation and the Land Code of the Russian Federation. Article 271 of the Civil Code of the Russian Federation establishes that the person to whom ownership rights to real estate located on someone else's land plot are transferred acquires the right to use the corresponding part of the land plot on the same conditions and to the same extent as the previous owner of the property. Article 35 of the Land Code of the Russian Federation, in turn, determines that the person to whom the ownership rights to a building, structure, structure located on someone else’s land plot are transferred, acquires the right to use the corresponding part of the land plot occupied by the building, structure, structure and necessary for their use, on the same terms and to the same extent as their previous owner. Despite some discrepancies in Art. 271 Civil Code of the Russian Federation and Art. 35 of the Land Code of the Russian Federation, the use of part of the land plot, which is indicated by the Land Code of the Russian Federation, must be formalized by a certain legal title. The content and scope of the right transferred to the acquirer of real estate must correspond to the content and scope of the rights that belonged to the person alienating the real estate. In other words, if the person transferring ownership of the building, structure, land plot belonged to the right of permanent (perpetual) use, then the acquirer of the real estate cannot be transferred to a right other than the right of permanent (perpetual) use, since the previous owner of the property did not have any other right . It should be noted that clause 12 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 24, 2005 N 11 determines: if the ownership of a building, structure or other real estate was transferred after the entry into force of the Land Code of the Russian Federation to a person who by virtue of paragraph 1 of Art. 20 of the Land Code of the Russian Federation cannot possess a land plot with the right of permanent (perpetual) use; such a person, before January 1, 2006, must, at his own discretion, re-register the said right for the right to lease a land plot or acquire it as property. A similar position must be adhered to in cases where ownership of real estate has been transferred by virtue of contracts of exchange, donation, other transactions, as well as in connection with the reorganization of a legal entity in the order of legal succession. With regard to the transfer of rights to the legal successor in the process of reorganization of a legal entity, the provisions of the Civil Code of the Russian Federation apply. In particular, Art. 58 of the Civil Code of the Russian Federation determines that when legal entities merge, the rights and obligations of each of them are transferred to the newly emerged legal entity in accordance with the transfer act. When a legal entity is merged with another legal entity, the rights and obligations of the merged legal entity are transferred to the latter in accordance with the transfer deed. When a legal entity is divided, its rights and obligations are transferred to the newly created legal entities in accordance with the separation balance sheet. When one or more legal entities are separated from a legal entity, the rights and obligations of the reorganized legal entity are transferred to each of them in accordance with the separation balance sheet. When a legal entity of one type is transformed into a legal entity of another type (change of organizational and legal form), the rights and obligations of the reorganized legal entity are transferred to the newly emerged legal entity in accordance with the transfer deed. Thus, the right of permanent (indefinite) use in accordance with the Land Code of the Russian Federation is retained by persons if it was granted before the entry into force of the Land Code of the Russian Federation. In addition, this right can be transferred to a person upon transfer of rights to real estate located on a land plot, as well as in cases of reorganization of a legal entity described above, since the acquirer of real estate and the legal successor of the reorganized legal entity can only have those rights to property, including including land plots that belonged to the persons transferring their rights. The subsequent implementation of the right of permanent (indefinite) use of a land plot by joint-stock companies is directly related to the conditions for the implementation of Art. 3 of the Federal Law “On the Entry into Force of the Land Code of the Russian Federation” (Introductory Law). According to this article, legal entities, with the exception of those specified in paragraph 1 of Art. 20 of the Land Code of the Russian Federation, legal entities are required to re-register the right of permanent (perpetual) use of land plots to the right to lease land plots or acquire land plots into ownership at their own request before January 1, 2006 in accordance with the rules of Art. 36 of the Land Code of the Russian Federation. It should be noted that the re-registration of the right to a land plot in accordance with Art. 3 of the Introductory Law is directly related to the conclusion of the relevant agreement - an agreement for the sale or lease of a land plot. However, obliging a person to enter into an agreement on the basis of civil law is possible only in exceptional cases. According to Art. 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to enter into an agreement. Compulsion to enter into an agreement is not permitted, except in cases where the obligation to enter into an agreement is provided for by the Civil Code, the law or a voluntarily accepted obligation. In this case, the compulsion to conclude an agreement is subject to the procedure established by Art. 445 of the Civil Code of the Russian Federation, according to which if a party for whom, in accordance with the Civil Code or other laws, the conclusion of an agreement is mandatory, evades its conclusion, the other party has the right to apply to the court with a demand to compel the conclusion of an agreement. Based on the above norms, it should be concluded that the right of permanent (indefinite) use of land plots is retained by land users after the entry into force of the Land Code of the Russian Federation. After January 1, 2006, this right cannot be terminated automatically or administratively, since it was acquired properly and in full compliance with the legislation in force at the time of acquisition of this right, and is retained by the copyright holder until the conclusion of a lease or sale agreement land plot. Disputes about the right to a land plot are resolved in court, including if government bodies authorized to dispose of state-owned land plots go to court to compel the conclusion of the above agreements. With regard to the possibility of establishing by the Introductory Law the norms contained in paragraph 2 of Art. 3 and concerning the mandatory re-registration of the right of permanent (unlimited) use until January 1, 2006, in our opinion, attention should be paid to several points. This norm is aimed at accelerating the processes of changing the land legal regime, bringing it into line with the provisions of the Land Code of the Russian Federation, as well as reducing the transition period after the entry into force of the Land Code of the Russian Federation (which is one of the goals of the adoption and operation of this Federal Law). At the same time, the application of this norm is possible only in conjunction with the established and cited above articles of the Civil and Land Codes of the Russian Federation. At the same time, the articles of the Land Code of the Russian Federation as the main law of land legislation have the highest legal force, as indicated by Art. 2 of the Land Code of the Russian Federation, according to which the norms of land law contained in other federal laws and laws of the constituent entities of the Russian Federation must comply with the Land Code of the Russian Federation.
Grounds for termination of the right to permanent, unlimited use. Termination procedure
The legislation identifies several cases of termination of the right to perpetual use of a site:
1. If the land user voluntarily renounces his right.
2. When using a site in violation of established Russian legislation:
- using the site not for its intended purpose or in such a way that the properties of the fertile soil layer are reduced.
- damage to lands.
- failure to fulfill assigned duties for timely land reclamation, as well as other mandatory actions aimed at preserving and protecting soils.
- failure to fulfill assigned duties to return the lands to a condition suitable for their intended use.
- non-use of the site for more than three years.
3. When a site is withdrawn to meet the needs of the state, individual subjects of the state, and local governments.
Termination of the right of perpetual use is possible only on this list of grounds. Federal and regional regulations may provide for a number of other reasons for terminating the right to indefinite use of a site.
If a land user independently decides to renounce the right to permanent use of a plot of land, he must submit a corresponding application to the authorized state body. The application must be accompanied by a copy of the identity document of the applicant.
If the executive body independently terminates the right to permanent use of a plot of land due to the land user’s failure to comply with legal requirements or in order to meet the needs of the state, it makes an appropriate decision.
Upon receipt of an application for the owner’s refusal of the right to use the site, the authorized body must also make a decision on termination of the right within a month. A copy of this document must be sent to the person who decided to renounce the right to use within three days from the date of its acceptance.
