Grounds for deregistration of a property
A capital construction project (CCF) can be deregistered only if the building or structure on site is completely destroyed.
Information about premises and apartments is deleted from the real estate register and tax base if the building in which they are located no longer exists.
Reasons for deregistration of OKS:
- Copyright holder's decision.
- Decision of a court or local government.
- The object was destroyed due to force majeure circumstances, for example, a fire.
Features of the liquidation of state authorities and local governments
UDC 347.89
Stepanov Alexander Aleksandrovich – master’s student at the Faculty of Law of the Institute of Service, Tourism and Design (branch) of the North Caucasus Federal University in Pyatigorsk.
Stepanova Lyudmila Petrovna - Candidate of Legal Sciences, Associate Professor of the Department of Civil Law and Process of the Institute of Tourism Service and Design (branch) of the North Caucasus Federal University in Pyatigorsk.
Abstract: This article discusses some issues of the liquidation procedure for state authorities and local governments that are legal entities.
Key words: State bodies, government institutions, legal entity, liquidation.
The liquidation of state authorities and local self-government bodies has a number of significant features. Thus, to a greater extent, this procedure is regulated by by-laws, acts of state bodies of constituent entities of the Russian Federation and municipal acts, while the norms of the Federal Law “On Non-Profit Organizations”[1] and the Civil Code of the Russian Federation[2] apply only if it is not regulated by special legislation, so , for example, the provisions of Art. 19 of the Federal Law “On Non-Profit Organizations”, dedicated to the liquidation of non-profit organizations, does not apply to state-owned institutions.
The decision to liquidate a federal government institution is made by the federal executive body exercising the powers and functions of developing state policy and legal regulation. If we are talking about regional government institutions, then such a decision is made by the highest executive body of the constituent entity of the Russian Federation (for example, the Government of the Chelyabinsk Region [3]). The liquidation of a municipal government institution is carried out on the basis of a decision expressed in the form of a resolution of the local administration.
The content of such a decision is almost identical for all types of government institutions. However, attention should be paid to such a point in the decision to liquidate a government institution as the name of the legal successor, including for obligations arising as a result of the execution of court decisions. This fact alone is enough to see a complete discrepancy between the liquidation of a government institution and the liquidation of a legal entity. We consider this provision to be completely contrary to the institution of liquidation and the norms of civil legislation. We propose to exclude such a clause in the decision on the liquidation of state institutions and make appropriate changes to the Decree of the Government of the Russian Federation No. 539, regulatory acts of the constituent entities of the Russian Federation and municipal acts devoted to the liquidation of such institutions. In support of this argument, it should be added that a public legal entity is the founder of a state institution - the body of a public legal entity and bears subsidiary liability for the obligations of its institution, therefore, in the event of liquidation of such a legal entity in the event of insufficient funds, the public legal entity is subject to subsidiarity will be able to satisfy the demands of the institution's creditors. In such a situation, it is necessary to distinguish between succession in the civil legal sense and the transfer of powers and functions of the liquidated state (municipal) body. In the latter case, we are not talking about civil legal relations, but about the sphere of administrative and legal regulation of transferring the competence of one government agency to another. This process is standard for bodies of public legal entities upon their liquidation, but this does not mean that rights and responsibilities should be transferred to a new body - a legal entity in the manner of civil succession.
I would also like to note that the government body responsible for liquidation performs the role of a liquidation commission on behalf of the founder - the Russian Federation, a constituent entity of the Russian Federation or a municipal entity.
The liquidation of higher executive bodies such as ministries is carried out by decision of the Government of the Russian Federation.
In addition to the decision on liquidation, an explanatory note is also submitted, which indicates the feasibility of liquidating such an institution and the amount of accounts payable.
Another difference between the procedure for liquidating state-owned institutions and the liquidation of legal entities, established in the Civil Code of the Russian Federation and the Federal Law “On Non-Profit Organizations”, is the timing of this procedure; they are of a special nature.
A special feature of the liquidation procedure for state-owned institutions, in the organizational and legal form of which state and municipal authorities operate, is also that, by virtue of paragraph 7 of Article 63 of the Civil Code of the Russian Federation, the owner of the institution’s property bears subsidiary liability to creditors. Accordingly, creditors, during the period of liquidation of such an institution if the latter has insufficient property, can apply to the court with a statement of claim to satisfy the remaining part of the claims at the expense of the owner of the institution’s property.
From the moment the liquidation of an institution is completed, creditors of this institution who did not declare their claims during the liquidation of the institution lose the right to satisfy such claims at the expense of the owner of the property of this institution [4].
The final difference lies in the distribution of the property of a government institution. Thus, the real estate of a federal government institution remaining after satisfying the claims of creditors, as well as real estate that cannot be foreclosed on, is handed over to the federal executive body exercising the powers of the liquidation commission. Movable property is transferred to the executive authority for the development of state policy and legal regulation.
A slightly different approach is adopted in relation to the liquidated property of regional institutions. Thus, both movable and immovable property remaining after liquidation is transferred to the treasury of the corresponding subject of the Russian Federation. Such a rule, for example, has been established in relation to government institutions in the Oryol region [5].
The movable and immovable property of municipal government institutions remaining after liquidation is transferred to the liquidation commission of the municipal administration.
The most correct approach seems to be the liquidation of state institutions of the constituent entities of the Russian Federation. Due to the fact that the property transferred to such a legal entity is under the right of operational management, and the public legal entity retains the right of ownership, it would be logical, and this corresponds to the institution of liquidation of a legal entity, to transfer the remaining movable and immovable property to the owner, to the treasury. Based on the above, it seems necessary to make appropriate changes to the Decree of the Government of the Russian Federation No. 539 and municipal acts.
The liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist after information about its termination is entered into the Unified State Register of Legal Entities (hereinafter referred to as the Unified State Register of Legal Entities). It turns out that from this moment the state authority or local government body loses its civil legal personality, but this does not mean that its public legal status ends.
Bankruptcy as a basis for liquidation does not apply to state-owned institutions.
Bibliography
- Federal Law of 01/12/1996 No. 7-FZ (as amended on 02/05/2018) “On Non-Profit Organizations” // Collection of Legislation of the Russian Federation, 01/15/1996, No. 3, Art. 145.
- Civil Code of the Russian Federation (Part One) dated November 30, 1994 No. 51-FZ (as amended on December 29, 2017) Collection of Legislation of the Russian Federation, December 5, 1994, No. 32, Art. 3301.
- Decree of the Government of the Chelyabinsk Region dated December 22, 2010 No. 364-P “On the procedure for creating, reorganizing, changing the type and liquidating regional government institutions, as well as approving the charters of regional government institutions and making changes to them // SPS “ConsultantPlus”.
- Paragraph 6 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 104 “Review of the practice of application by arbitration courts of the norms of the Civil Code of the Russian Federation on some grounds for termination of obligations” // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2006. No. 4.
- Decree of the Government of the Oryol Region dated December 6, 2010 No. 412 “On approval of the procedure for creating, reorganizing, changing the type and liquidation of regional government institutions, as well as approving the charters of regional government institutions and making changes to them” / URL: https://docs.cntd. ru/document/473704815 (access date: 10/02/2013).
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Voluntary demolition of OKS
The owner of the building can, at his own discretion, demolish the building at any time. This was the case until August 4, 2021. Now, before demolishing capital construction projects, you need to notify the administration about the start of work on the site, and then about its completion.
The new procedure for removing OKS from cadastral registration was determined as of 08/03/2018.
Read below what changes have been made to the town planning code, and what documents must accompany the demolition.
Step 1 – Project Preparation
Before demolishing a building, you must order a Project for organizing demolition work from design organizations (hereinafter referred to as the Project).
Any non-residential buildings, production workshops, structures and warehouses are destroyed only in accordance with the Project.
There is a closed list of real estate objects for the demolition of which the Project is not required, but can be prepared solely at the request of the owner.
In accordance with the Project, you can demolish:
- Garages of individuals built on plots not intended for business.
- Residential and non-residential buildings on garden plots.
- Houses on land plots designated as individual housing construction.
- Auxiliary buildings (intended for the functioning of the main structure - a residential building).
- Non-permanent structures.
So, for the demolition of buildings belonging to the above list, preparation of the Project is not required, but notification of the start of demolition work and the completion of demolition is required.
Step 2 – Sending the first notification
Notice of the upcoming demolition must be sent to the authority that issues construction permits 7 days before the physical destruction of the property.
Before demolition of any registered structure, a demolition notice must be filed. This rule has been in effect since August 4, 2021 and applies to both legal entities and individuals.
In order to comply with the demolition procedure defined by law, it is enough to contact the MFC. You will be given a prescribed form to fill out. The Project must be attached to this document (if its preparation is mandatory).
After 7 working days, you can begin the actual demolition of the structure.
Step 3 - Actual demolition of the site
Work on the site is carried out in accordance with the Project.
The facility is disconnected from utility networks upon prior application to the operating organization.
Step 4 – Sending a Second Notice
No later than 7 days after the work to liquidate the object in situ, it is necessary to submit a notification again to the authorized government agency, but this time about the completion of the work. This can also be done through the MFC by filling out a special form.
The authority responsible for issuing construction permits will put marks on the forms of the two notifications indicating that they have received the documents. Representatives of a government agency have the right to go to the address of the facility and check whether the building is truly completely destroyed.
The responsibilities of the authorized body include posting information from notifications in the ISOGD.
Step 5 – You need to order an inspection report
Your two notifications with marks from the authorized body serve as the basis for preparing an inspection report. The cadastral engineer is responsible for the survey reports.
With this document, the engineer confirms the actual absence of the property.
Without notifications as part of the inspection report, the object will not be removed from the cadastral register. Just like the presence of two notifications without an act is also not enough to complete the procedure for the legal demolition of a capital structure.
Step 6 – Removing the property from the cadastral register
The owner of the building must submit an application to Rosreestr (through the MFC) to deregister the property.
Along with the application you will need:
- Passport of a citizen of the Russian Federation.
- Inspection report.
- First notification of the start of work.
- Second notice of completion of work.
- Application (filled out by an MFC employee).
The processing time for documents is 7-10 business days.
From the moment the OKS is deregistered, it will no longer be subject to taxation.
Read: How to challenge the cadastral value of real estate
OKS destroyed due to force majeure
If the OCS is damaged as a result of a fire, then notifications are not required. The notification system is applied only in cases of voluntary destruction of a structure by the copyright holder.
There should be nothing left of the structure, including the foundation.
Therefore, if the building is partially destroyed and you do not plan to restore it, you need to eliminate the remains, and only then order an inspection report.
The act is being prepared despite the presence of a certificate from the fire inspectorate confirming the demolition.
The building was demolished until August 2018
If the building was destroyed by the owner before the introduction of the notification system, that is, before August 2021, but the object was not deregistered at the time, now the documents will have to be drawn up in accordance with current laws. Notifications must be sent to the administration. Without notifications, it will be possible to exclude information from the Unified State Register only if it can be confirmed with any documents that the building was actually destroyed before August 2018. Administrations of some regions accept formal notifications of proposed demolition for those objects whose actual demolition has already been completed.
The presence on the site of only the foundation of a building, and not the entire object, does not in any way affect the order of demolition. It is necessary to prepare a Project, send a notification to the administration, liquidate the foundation, send a notification to the administration again, prepare an inspection report and submit documents to Rosreestr.
By law, the owner of a land plot cannot apply to deregister the property. Therefore, if the right to a building is not registered in the Unified State Register of Real Estate, the object will have to be removed from the cadastral register through the court.
Read: How to register a house under the dacha amnesty
Grounds for termination of ownership rights
The grounds for termination of property rights are outlined in civil legislation. Art. 235 of the Civil Code of the Russian Federation indicates 2 ways of terminating ownership rights:
- of one's own free will;
- forcibly.
In the first case, the owner of the property himself decides to alienate it and puts into action the instruments, as a result of which he loses the right of ownership. This could be the purchase and sale of property, donation, death of the owner, etc.).
In the case of forced loss of ownership rights to real estate, the owner loses his rights in accordance with the provisions of Art. 235 of the Civil Code of the Russian Federation.
Termination of property rights at the will of the owner consists of the free will of the property owner, who decides to renounce them based on his needs and of his own free will.
In addition, this group includes cases when the owner of the property dies, and by law all valuables pass under the control of his heirs.
The grounds for termination of proprietary rights on a voluntary basis may be:
- contract of sale;
- deed of gift;
- voluntary renunciation of the owner's rights of his own free will.
Forced termination of property rights, or confiscation of property, from the owner may occur if the following grounds exist:
- sale of property in order to obtain funds necessary to pay off property obligations;
- confiscation in court for criminal acts committed by the owner;
- repurchase of valuables officially recognized as ownerless, as well as those whose contents do not comply with the requirements of the law;
- alienation of values that cannot be transferred into private ownership.
In the event of a forced seizure of ownership, the property may be transferred to a person who has suffered financial losses or who has been illegally deprived of property.
In some cases, material assets are alienated in favor of the state on the basis of Art. 306 of the Civil Code of the Russian Federation (for example, seizure of a plot of land for state/municipal needs) or due to improper use.
This is impossible without termination of ownership of the structure located on this site; This property can be confiscated from the owner through government redemption or sale at public auction.
Residential premises, in turn, can be seized from the owner through redemption in connection with the seizure of a land plot for state or municipal needs.
Requisition is the forced seizure of property from a citizen or legal entity by decision of government agencies in urgent public interests and with mandatory compensation.
This procedure is initiated in cases of natural disasters, accidents, epidemics and other situations of an emergency nature, in the manner established by Article 242 of the Civil Code.
Confiscation is a sanction applied to the owner on the basis of Art. 243 of the Civil Code of the Russian Federation for the offense he committed.
In cases provided for by law, property may be confiscated from the owner free of charge by a court decision (Article 169 of the Civil Code of the Russian Federation) in favor of the state in the event of a deliberate commission of an illegal transaction.
