Registration of transactions and rights to non-residential premises located on the territory of the city of Moscow

The concept of property rights to residential premises, the rights of its owner

Art. 288 of the Code establishes the concept that such premises must be used exclusively for the purpose of living in them by citizens. A person who has property rights to these premises can use them for the purposes of individual residence or family members.

The owner of a residential premises exercises rights regarding a residential property according to his:

• possession;
• use;
• order.

These powers must be exercised in accordance with the target and legal regime of housing.

The law regulates the rights and obligations of the owner of a residential premises and does not exclude the possibility of him taking any action in relation to property assets, including selling an apartment, transferring it while remaining the legal owner, pledging it and imposing an encumbrance in other ways. These actions must not contradict the law and other regulations.

Ownership of non-residential premises on the basis of a preliminary purchase and sale agreement

Recently, together with my colleague, I took part in a case regarding the recognition of ownership of non-residential premises on the basis of a preliminary purchase and sale agreement. The claim was due to the seller's long-term reluctance to enter into a basic contract with the buyer. In fact, the preliminary agreement was executed by the parties as the main one, since payment for the premises was made, the premises themselves were transferred to the buyer. The claim was based on the following judicial practice: As stated in paragraph 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 11, 2011 N 54 “On certain issues of resolving disputes arising from agreements regarding real estate that will be created or acquired in the future” “if the parties have concluded an agreement called by them as preliminary, in accordance with which they undertake to conclude in the future, on the terms provided for by them, a main agreement for the sale of real estate that will be created or acquired in the future, but at the same time, the preliminary agreement establishes the obligation of the acquirer of the property to pay the price before concluding the main agreement immovable property or a significant part of it, the courts must qualify it as a contract for the sale and purchase of future immovable property with the condition of advance payment. Disputes arising from the said agreement are subject to resolution in accordance with the rules of the Civil Code of the Russian Federation on the purchase and sale agreement, including the provisions of paragraphs 3 and 4 of Article 487 of the Code, and taking into account the explanations contained in paragraphs 2, 3 and 5 of this Resolution.”

The stated legal position has been repeatedly expressed by the Supreme Court of the Russian Federation. Thus, in the Ruling of the Supreme Court of the Russian Federation dated December 8, 2015 N 5-KG15-165, the court stated: “By virtue of paragraph 1 of Article 429 of the Civil Code of the Russian Federation, under a preliminary agreement, the parties undertake to conclude in the future an agreement on the transfer of property, performance of work or provision of services (main agreement) on the terms provided for in the preliminary agreement. Therefore, according to the courts of both instances, the subject of the preliminary agreement is the obligation of the parties only to conclude a future agreement. However, this conclusion of the court was made without taking into account the fact that if the parties entered into an agreement, which they named as preliminary, in accordance with which they undertake to conclude in the future, on the terms provided for by it, a main agreement for the sale of real estate that will be created or acquired in the future, but In this case, the preliminary agreement establishes the obligation of the purchaser of the property to pay the price of the real estate or a significant part of it before concluding the main agreement; this agreement must be qualified as a contract for the sale and purchase of future immovable property with the condition of advance payment. Therefore, the agreements concluded between the parties dated April 7 and July 28, 2006, called preliminary agreements for the purchase and sale of parking spaces, were not preliminary agreements within the meaning of Article 429 of the Civil Code of the Russian Federation, since in accordance with the terms of these agreements the parties provided not only the obligation to conclude in the future agreements for the purchase and sale of parking spaces, but also the plaintiff’s obligation to pay for them by purchasing bills of exchange from the issuers indicated by the defendant, that is, to make an advance payment for the main purchase and sale agreement, which was duly fulfilled by the plaintiff in full. In this regard, the defendant should have accepted the bills of exchange as payment under agreements for shared participation in construction.”

In the Ruling of the Supreme Court of the Russian Federation dated November 10, 2015 N 78-KG15-29, the court stated: “According to paragraph 1 of Article 429 of the Civil Code of the Russian Federation, under a preliminary agreement, the parties undertake to enter into a future agreement on the transfer of property, performance of work or provision of services (main agreement) on the terms provided for in the preliminary agreement. The preliminary agreement must contain conditions allowing to establish the subject matter, as well as other essential conditions of the main agreement (clause 3 of Article 429 of the Civil Code of the Russian Federation). Thus, the subject of the preliminary agreement is the obligation of the parties only to conclude a future agreement. However, the agreement concluded between the plaintiffs and NevaInvestProekt LLC, called the preliminary agreement for the purchase and sale of a residential building and a land plot, was not a preliminary agreement within the meaning of Article 429 of the Civil Code of the Russian Federation. In accordance with the terms of this agreement, the parties provided not only the obligation to conclude a contract for the purchase and sale of real estate in the future, but also the obligation of V.G. Zholnerovich. and Zholnerovich G.B. deposit funds in the amount of rubles. to the seller’s bank account, that is, to make an advance payment for the main purchase and sale agreement. This was not taken into account by the courts, which resulted in an incorrect classification of the relations that arose between the parties and, accordingly, an incorrect application of the law, which is the basis for the cancellation of court decisions.”

A similar legal position was expressed by the Supreme Court of the Russian Federation in the Ruling of the Supreme Court of the Russian Federation dated November 10, 2015 N 78-KG15-29:

“According to paragraph 1 of Article 429 of the Civil Code of the Russian Federation, under a preliminary agreement, the parties undertake to enter into a future agreement on the transfer of property, performance of work or provision of services (main agreement) on the terms stipulated by the preliminary agreement. The preliminary agreement must contain conditions allowing to establish the subject matter, as well as other essential conditions of the main agreement (clause 3 of Article 429 of the Civil Code of the Russian Federation). Thus, the subject of the preliminary agreement is the obligation of the parties only to conclude a future agreement. However, the agreement concluded between the plaintiffs and NevaInvestProekt LLC, called the preliminary agreement for the purchase and sale of a residential building and a land plot, was not a preliminary agreement within the meaning of Article 429 of the Civil Code of the Russian Federation. In accordance with the terms of this agreement, the parties provided not only the obligation to conclude a contract for the purchase and sale of real estate in the future, but also the obligation of V.G. Zholnerovich. and Zholnerovich G.B. deposit funds in the amount of rubles. to the seller’s bank account, that is, to make an advance payment for the main purchase and sale agreement. This was not taken into account by the courts, which resulted in an incorrect classification of the relations that arose between the parties and, accordingly, an incorrect application of the law, which is the basis for the cancellation of court decisions.”

Similar legal positions are set out by the Supreme Court of the Russian Federation in the Determination of the Supreme Court of the Russian Federation dated January 19, 2016 N 5-KG15-196, the Determination of the Supreme Court of the Russian Federation dated July 21, 2015 N 78-KG15-15, in paragraph 9 “Review of the practice of resolving disputes by courts, arising in connection with the participation of citizens in the shared construction of apartment buildings and other real estate objects,” approved. By the Presidium of the Supreme Court of the Russian Federation on December 4, 2013, Resolution of the Supreme Court of the Russian Federation dated December 2, 2014 N 78-KG14-34.

In addition, the provisions of paragraph 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 11, 2011 N 54 also guide the court of general jurisdiction when considering such cases. Thus, in the Appeal ruling of the Moscow City Court dated August 26, 2015 in case No. 33-30472, it is stated “taking into account the legislation on the protection of consumer rights and the explanations contained in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 54 of July 11, 2011 (clause 8), the court The first instance came to a reasonable conclusion that an agreement for the purchase and sale of real estate was essentially concluded with the plaintiffs, payment for which was made by the plaintiff in full, the premises were transferred, and therefore, the plaintiff had the right of ownership of the disputed premises.

In accordance with Art. 12 of the Civil Code of the Russian Federation, the protection of violated civil rights is carried out, in particular, through the recognition of rights.

In accordance with Art. 219 of the Civil Code of the Russian Federation, the right of ownership of buildings, structures and other newly created real estate, subject to state registration, arises from the moment of such registration.

In accordance with Art. Art. 309 - 310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with business customs or other usually imposed requirements. Unilateral refusal to fulfill an obligation and unilateral change of its terms are not allowed, except in cases provided for by law.

By virtue of Part 1 - 4 Art. 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to enter into an agreement. The parties may enter into an agreement that contains elements of various agreements provided for by law or other legal acts (mixed agreement). The relations of the parties under a mixed contract are applied in the relevant parts to the rules on contracts, the elements of which are contained in the mixed contract, unless otherwise follows from the agreement of the parties or the essence of the mixed contract. The terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (Article 422).

By virtue of Art. 17 of the Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it” one of the grounds for state registration of the presence, occurrence, termination, transition, limitation of rights to real estate and transactions with it is entered into judicial acts into legal force.

The plaintiff fulfilled his obligations under the contract in good faith, but he was deprived of the opportunity to independently register ownership of the non-residential premises he acquired due to circumstances beyond his control, due to the defendant’s failure to fulfill its obligations. The preliminary agreement concluded between the Plaintiff and the Defendant contains all the essential terms of the main agreement, is real, the Plaintiff has actually accepted the non-residential premises for use and has the right to register its ownership.

Since the Plaintiff properly fulfilled its obligations under the contract in full by paying a fee, by virtue of Art. 12, 309, 310 of the Civil Code of the Russian Federation, he had the right to count on the proper fulfillment of obligations on the part of the defendant, and if the defendant failed to fulfill them, to demand protection of his rights, including by filing a claim for recognition of ownership rights (Review of the judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2012, approved December 26, 2012).

According to paragraph 58 and paragraph 59 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights, a person who considers himself the owner of real estate in his possession, the right to which is registered with another entity, has the right to apply to the court with a claim for recognition of ownership rights. (clause 58) Unless otherwise provided by law, a claim for recognition of a right is subject to satisfaction if the plaintiff presents evidence that he has the corresponding right. (clause 59).

In accordance with paragraph 1 of Art. 17 of the Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it” the grounds for state registration of the presence, occurrence, termination, transition, restriction (encumbrance) of rights to real estate and transactions with it are entered into judicial acts into legal force. According to paragraph 1 of Art. 28 of the same law, rights to real estate established by a court decision are subject to state registration, which the state registrar has the right to refuse only on the grounds specified in paragraphs four, six, seven, nine, ten, eleven, twelve, thirteen, fourteen of paragraph 1 of the article 20 of this Federal Law.

Taking into account the stated legal positions, a demand was made for recognition of ownership of non-residential premises. The court satisfied the plaintiff's request in full.

Ways to acquire property rights to residential premises

Individuals can acquire property rights to apartments in the following ways:

• carry out the privatization procedure in the manner prescribed by law in relation to occupied housing in housing stock buildings, including those located in departmental funds;
• self-development;
• participation in residential complexes and housing cooperatives;
• purchase real estate, including through stock exchanges;
• through the acquisition of property by inheritance.

Limits for the exercise of property rights regarding real estate

The main limits for the exercise of property rights are established in Art. 209 of the Code, which talks about the almost complete freedom of a citizen to carry out actions with real estate, but only if they do not contradict the law.

A certain regime of restrictions is established for plots of land that are inextricably linked with real estate objects built on them. So, part 3 of Art. 209 of the Civil Code of the Russian Federation defines the concept that the use of a plot of land is carried out in a free mode, but only if it:

• does not cause damage to nature and the environment;
• does not violate the rights and interests of other subjects of civil law.

The legislator established the concept that limits, as such, are based on the characteristics of the interests, rights and obligations of other subjects of civil relations. In other words, the rights and obligations of the owner of a residential premises can be implemented in the form of any actions, but not in conflict with the laws and interests of other persons.

A separate point is the restrictions imposed based on the intended purpose of residential premises. Since they necessarily have a specific purpose, the corresponding actions of the owners must not be carried out in conflict with the intended purpose of the apartment.

For example, the law prohibits placing industrial production in residential premises. From the legal norms we can also conclude that it is inadmissible to place offices, retail outlets and any other type of production facilities in residential premises.

Definition, concept and classification of residential and non-residential real estate: what is it?

Property is understood as a certain form of appropriation by a citizen or legal entity of specific material assets.
It allows you to use and dispose of property at the discretion of its owner. Disposing of property means the ability to sell goods, exchange them for others, rent or donate them, and carry out other similar actions. The main essence of property is that in order to change the rights to property, two entities are required, between whom an agreement is concluded.

In order to have the most complete understanding of the concept of property, it is necessary to distinguish the subjects and objects of property.

Property subjects are the owners of specific values, i.e. owners. Property objects are direct material or intangible benefits belonging to the owner.

Can not understand anything?

Try asking your teachers for help

All subjects interact with each other, resulting in the formation of various relationships between them.

The main properties are:

• Property, which includes movable and immovable property, cash, securities. Real estate is land, buildings, water bodies, forests, etc. Movable property is various objects that do not belong to real estate, i.e. vehicles, goods, raw materials, etc.;
• Works and services;
• Valuable data;
• Intellectual property, which includes inventions, works of science or art, etc.;
• Intangible goods that usually belong to a person from birth, and can also become property by law. Intangible benefits include human health, reputation, private life, etc.

Property can be:

• Private, which appears as a result of denationalization of the property in respect of which privatization is being carried out;
• Collective;
• Cooperative. A cooperative is a special association of citizens formed on a voluntary basis. All members of the cooperative jointly own various objects;
• Civil, which is formed with the help of labor income of citizens participating in social reproduction;
• Property of a joint stock company. In this case, the property is acquired by the organization at the expense of income received from the sale of securities;
• Individual labor. This type of ownership presupposes that a person is both an owner and a worker, and the purpose of work is to satisfy social needs.

Too lazy to read?

Ask a question to the experts and get an answer within 15 minutes!

One of the main concepts in this area is the definition of “real estate”. Part 1 art. 130 of the Civil Code of the Russian Federation classifies as real estate land plots, subsoil plots and everything that is inextricably linked with the land, that is, objects whose movement without damage to them is not possible. This standard includes buildings, structures, and unfinished construction projects.

The exact definition of the concepts “building” and “structure” is established by the Federal Law “Technical Regulations on the Safety of Buildings and Structures” dated December 30, 2009 No. 384-FZ.

• A building is the result of construction, which is a volumetric system with above-ground and (or) underground parts, including premises, engineering support networks and engineering support systems for living and (or) activities of people, production location, product storage , says sub. 6 paragraph 2 art. 2 of the above Regulations.
• A structure is a result of construction, which is a volumetric, planar or linear construction system, having ground, above-ground and (or) underground parts, consisting of load-bearing and enclosing building structures, for performing various production processes, storing products, moving people and goods, it is said in sub. 23 clause 2 art. 2 Regulations.

The concept of the term “structure” remains open. Analyzing the entire regulatory framework governing the interaction of these terms “building” and “structure”, the term “structure” can be characterized as follows:

• A structure is any structure made by construction, inextricably linked to the earth's surface.
• A room is a part of the volume of a building or structure that has a specific purpose and is limited by building structures, in accordance with subclause. 14 paragraph 2 art. 2 Regulations.

We invite you to familiarize yourself with the Illegal provision of land plots in ownership

All objects of this type of real estate can be classified on several grounds (Table No. 1).

Objects of this type of real estate also have a number of certain characteristics (Table No. 2).

Common features for both types of premises:

• They are real estate.
• An inextricable connection with the land plot on which they are located.
• Isolation.
• Durability.
• Uniqueness.
• Variety.
• Materiality.
• Cost form.
• Inability to move in space.

Structure of common property rights

Not only one person, but several at once can have property rights to an apartment.

Collective property rights can be of the following types:

• right of common shared ownership (shares are determined);
• joint right (shares not established).

The procedure for owning and using an apartment, the right of common shared ownership of which individuals have, is determined by agreement of the owners, and in the absence of such, in court.

The agreement may also provide for a regime of separate use of the premises, regardless of the size of the shares in the common property.

The sale of a share in collective property can only be carried out in accordance with the procedure for the pre-emptive right to acquire a share by other property participants. The seller of the share is obliged to properly notify the other members of the ownership of the desire to sell the share, indicating the cost, conditions and features of the sale.

Author of the article

Real estate ownership and its forms

Any property must belong to someone by right of ownership. All information about the owner, characteristics of the property and the emergence of ownership rights can be found in the unified Rosreestr database. According to Article 212 of the Civil Code of the Russian Federation, the following forms of ownership of real estate are distinguished:

• Private, in which the owners of real estate are individuals or legal entities;
• Municipal, in which ownership rights to property are held by local governments;
• State, when the owner of the property is the state or a subject of the Russian Federation;
• Other forms provided for by current legislation.

The right to own property is confirmed by a corresponding certificate issued by Rosreestr, as well as title documentation, for example, a purchase and sale agreement, a deed of gift.

Let's take a closer look at the listed forms of real estate ownership.

Municipal and state property arises only in cases provided for by law. Not every property can become the property of the state or municipality. The state's ownership rights to specific real estate are limited, since it has the right to dispose of property only within the framework of respecting the interests of society.

State property can be federal or the property of a constituent entity of the Russian Federation. The first type means that real estate belongs to the Russian Federation, and the second - to regions, republics, etc.

The state and its subjects own the property that is required to carry out specific functions, for example, buildings for the needs of the RF Armed Forces, federal roads, some plants and factories.

This type of property right also includes schools, parks, public gardens, and kindergartens.

Private property is property owned by a citizen or commercial organization. Such real estate includes apartments, private houses, warehouses, offices, garages, bathhouses, etc.

Any person can acquire ownership of real estate in one of the following ways:

• Through privatization;
• Through purchase;
• Receiving as a gift;
• Inheritance;
• Construction.

Private property is divided into individual property, when only one person owns the property, and common property, in which case several persons have the right to the property at the same time.

Common property in turn is divided into:

• Joint - shares are not allocated, arises when spouses purchase housing or during privatization;
• Shared, when a clear share of each co-owner is allocated.