A lot of disputes between owners of premises in apartment buildings and management companies arise around the local area. If a land plot under a residential building is formed and registered in the cadastral register, then it is part of the common property in the apartment building . Consequently, the owners pay the management company for cleaning it. And management companies are required to maintain the local area in proper order for a monthly fee.
But often the land plot for MKD is not formed and is not registered in the cadastral register. Therefore, it is impossible to determine the boundaries of the local area included in the common property of the owners of premises in the apartment building. The situation raises many questions and problems. How to register a land plot as the common property of an apartment building? Who determines its boundaries and how? What is a local area? When does the management company have the right to include in the receipt the column: cleaning of the local area? We'll try to figure it all out.
Adjacent territory as part of the common property of the apartment building
A land plot under a residential building is recognized as the adjacent territory with elements of landscaping and landscaping, which relates to the objects of common property of the owners of premises in the apartment building (Part 1 of Article 36 of the Housing Code of the Russian Federation). This is common property , which cannot become someone's private property. The size and boundaries of the site remain unchanged, unless the owners at the general meeting decide to carry out reconstruction (clause 4 of article 37 of the Housing Code of the Russian Federation).
The boundaries and size of the local area formed under the apartment building are determined in accordance with the requirements of land and town planning legislation (clause 4, part 1, article 36 of the Housing Code of the Russian Federation).
Clause 3 of the Rules for the maintenance of common property in the MKD (RF PP No. 491 of August 13, 2006) states that when determining the composition of the common property of an apartment building, it is necessary to be guided by the data of the Unified State Register and the state land cadastre on the rights to real estate objects that are common property. If there are discrepancies or contradictions between information on the composition of common property contained in Rosreestr, with the documentation of state technical or accounting records of the management company, or technical documentation for MKD, data from the Unified State Register will have priority.
At the beginning of 2021, Rosreestr will post information in the Housing and Communal Services GIS from the state real estate cadastre and the Unified State Register
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Transfer of the land plot under the house into the ownership of the owners of the premises in the apartment building
The year the house was built is important. Article 16 of Federal Law No. 189 dated December 29, 2004 “On the entry into force of the Housing Code of the Russian Federation” approves the conditions and procedure for the transfer of a land plot into the common ownership of the owners of premises in the apartment building located on it.
Therefore:
- if a land plot under an apartment building was formed before the entry into force of the Housing Code of the Russian Federation and is registered with the state cadastral register , then it passes free of charge into the common ownership of the owners of the premises in the house (Part 2 of Article 16 of Federal Law No. 189).
- owners of premises in an apartment building, the land plot under which has not been formed, can independently apply to the authorized bodies of state power or local government with a written application for their formation. The application will serve as the basis for the government body to form a land plot and register it for cadastral registration (clause 3 of the Resolution of the Constitutional Court of the Russian Federation dated May 28, 2010 No. 12-P).
Residential buildings built after the entry into force of the Housing Code of the Russian Federation are put into operation only if data on the location of the boundaries of the land plot under the apartment building are entered into the state real estate cadastre. The land plot under the house becomes the common property of the homeowners from the moment it is registered with the state cadastral register.
According to the Resolution of the Constitutional Court of the Russian Federation dated May 28, 2010 No. 12-P, the interrelated provisions of parts 2 and 5 of Article 16 and Parts 1 and 2 of Article 36 of the Housing Code of the Russian Federation were recognized as consistent with the Constitution of the Russian Federation. They provide for the transfer into common ownership of the owners of premises in an apartment building of a land plot formed under a house and registered in the cadastral register, without the adoption by state authorities or local governments of a decision to grant it ownership and without state registration of the transfer of ownership of it.
The need to determine the composition of the common property of premises owners in apartment buildings
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Until the land plot for the apartment building built before 03/01/2005 is formed, it is in municipal ownership. But the owners of premises in an apartment building can own and use it if this is necessary for the operation of the house (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010).
As a rule, an agreement is concluded between the management company and the local government body, according to which the management company undertakes to clean up and maintain in proper order the disputed land plot under the house. In turn, the local government body, under the same agreement, provides subsidies to the management company.
Privatization of land for a private house for two
Before this, it is important to consider several nuances:
- Initially, the issue of privatization will have to be resolved through the court, where they will ask for permission to carry it out without the consent of the second owner.
- When registering land in the state register, it becomes an object of common shared ownership, since in this case the house is recognized as indivisible property.
- The size of the plot shares is distributed among the owners of the house in proportion to the number of square meters they own in the total area of the house.
- To carry out the allocation of shares in this case, it is necessary to carry out a whole list of technical work, including land surveying and cadastral activities.
- Refusal to participate in the privatization of one of the owners must be in writing and certified by a notary.
Do you have questions about the privatization of land under your house? Ask them to the lawyers of our information portal.
If one of the participants in the privatization dies, then his share passes to the heirs. It is with them that the issue of the future status of the land will have to be resolved. In the case where the deceased agreed to privatization and had already written an application, or intended to draw it up, the right to transfer the plot of land into ownership can be proven in court. The refusal of authorized bodies to issue a privatization permit is legal. This decision can only be reviewed by filing a statement of claim.
Arbitrage practice
As we have already noted, there is a rich jurisprudence in cases concerning the ownership of the adjacent territory of an apartment building, as well as challenging the payment for its cleaning. The owners of the premises in the house and management companies, as well as the residents of the house, are constantly suing each other over the land plot under the apartment building.
Explanations from the Ministry of Construction to help the management company
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Above we cited Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of 04/29/2010. The case considered in it talks about mutual claims by neighbors of an apartment building who could not divide the adjacent territory. One neighbor had small buildings near her house that were disturbing the other resident of the house.
During numerous legal proceedings, the neighbors' claims were disputed several times, and various decisions were made in favor of one or the other owner of the premises in the apartment building. Some judges referred to the 30-year procedure for using the land plot under the MKD. Others abolished this order.
As a result, the Supreme Court of the Russian Federation judged everyone, citing Federal Law No. 189 of December 29, 2004 “On the entry into force of the Housing Code of the Russian Federation.” By law, this land plot under the house is considered the common property of the owners of the premises in the apartment building.
If ownership of a real estate property passes to several owners, then the right to a land plot passes in proportion to the shares of ownership in the house (Article 37 of the Land Code). If ownership of a house passes to several owners, then the procedure for using the local area is determined taking into account the share in the ownership of common property in the apartment building.
The Supreme Court of the Russian Federation emphasized that in this case, the owners of premises in an apartment building, by the right of the legal owners of the land plot under their house, can demand the elimination of any violations of their interests (Article 305 of the Civil Code of the Russian Federation).
What is needed for this?
In order to divide a residential building and a land plot, it is necessary to have either an agreement signed by all property owners, or a court decision authorizing such actions.
Agreement
If all homeowners agree with the allocation in kind of the agreed premises and the division of the land plot, the latter have the right to enter into a voluntary agreement.
To do this, you must adhere to a certain algorithm of actions, namely:
- discuss all possible options and nuances of the division, as well as determine the possible material costs associated with such a process;
- draw up and formalize the agreement itself;
- in full force, contact a notary office to certify the specified document.
Important! When visiting a notary, all parties to the agreement must have personal identification documents with them, as well as papers confirming property rights to the divisible property. In this case, notarization of such an agreement is not required - but can be done at the request of the parties.
Subsequently, the agreement and package of documents are submitted to Rosreestr or MFC for re-registration of ownership of the land plot.
For more details, see the material “Division of a plot between owners by agreement,” which provides the most detailed information on the procedure for dividing land.
An important condition for division by agreement is that it must be technically and legally possible to divide the allotment between the owners of parts of the building. If the plot is indivisible, you can forget about the division.
Judgment
If persons living in an apartment building have not been able to find a compromise on the issue of dividing the disputed property, then the only way available for such action is to obtain a court decision.
For this purpose, one of the co-owners needs to file a claim for division of the house and land plot with the judicial authorities.
Statement of claim
To initiate the procedure for judicial division of a land plot, it is necessary to prepare a statement of claim and collect all the necessary documents. The claim is drawn up according to the provisions of Art. 131-132 Code of Civil Procedure of the Russian Federation.
The statement of claim must contain the following information:
- name and address of the authority to which the document is submitted;
- personal data of all parties to the trial (full name, place of residence, contacts);
- price of the statement of claim;
- a detailed statement of the circumstances that preceded the filing of the claim, including the shares of real estate belonging to the owners, as well as information about the pre-trial settlement of disputed relations;
- a reflection of the plaintiff’s position regarding the fair division of the building and land allotment, argued by the norms of the current legislation;
- a statement of the applicant's final claims;
- list of attached documentation;
- signature of the plaintiff and date of drawing up the document.
Sample claim
For an approximate example, you can use any claim relating to the forced division of a land plot.
At the same time, you should not overestimate your strengths and refuse the help of lawyers. Remember. That you will hardly be able to draw up a statement of claim on your own.
Documentation
In addition, the following documents must be attached to the statement of claim:
- copies of passports of all parties to the case;
- technical and cadastral passports;
- title documents for the disputed real estate;
- conclusion of the examination, if one was carried out
- confirmation of payment of state duty.
Documents can be attached in copies (excluding the expert opinion), but be prepared to show the originals in court.
The claim and a package of documents are submitted personally by the applicant to the judicial authority or sent by registered mail. If you have an electronic digital signature, you can file a claim directly without leaving your home, using the State Services website and the portal sudrf.ru
Where to submit?
Claims for the division of real estate, taking into account the price of the statement of claim and the specifics of the dispute, will be considered only by the district (city) court.
- Magistrates have no authority to hear such cases;
- Geographically, such claims must be filed at the location of the disputed property and without regard to the place of registration of the plaintiff or defendant.
Example . If the plaintiff lives in Moscow, the defendant lives in Volgograd, but they decide to divide the land under an apartment building in Perm, the claim will be filed in Perm. In this case, neither the place of official registration of the parties nor the place of their actual residence matters.
