ZOA in collective joint ownership of citizens and land tax. Features of the use of common land shared joint property of spouses for land

The presence of common share ownership assumes that the owners of the site have the same rights to land and cannot dispose of property at their discretion independently of each other. In other words, the participants in the general "perpetratockers" are actually the owners of their share and cannot sell, exchange, lay, give, or rent a piece of land, as it cannot be allocated.

If the owners are close relatives and are in good terms, then such a regime of ownership does not cause special difficulties. However, if it comes to derage property, for example, when divorced, general property creates a lot of problems.

By law, each owner of a joint property may require the allocation of a share in common district.

Common property is formed when the site falls into the property of two or more persons due to the following grounds:

privatization of the site;
confession common law property to the court by the court decision;
inheritance by will or by law;
conducting a deal with the participation of citizens and organizations (for example, the sale of a plot belonging to the previously collective farm, a married couple).

As a rule, such a plot is indivisible, that is, has the minimally permissible area. Eliminate the land in general property is easier, since it does not require its interaction and division into shares.

Nearest analogue - getting into total shared property Car when receiving inheritance. It is impossible to physically divide into two parts, as it hurts it, therefore, the right to share the car is not possible to implement it: half it is impossible to sell the car, give, etc., since it is not needed anyone. All this is relevant exclusively for land plots. If the construction is being built on Earth, then it should act in different.

There is a section of the site

The right of common ownership often arises between spouses. After privatization - between all family members. Less often, property turns out to be in the hands of people unrelated by related bonds, for example, if the organization has allocated land plots to several gardeners.

The right to demand the division of the site has any owner - it says Article 252 Civil Code. In fact, this means that in voluntary or judicial order The share in the possession of each owner will be determined. After registration of documents, each host will be entitled to dispose of a dedicated share of its discretion.

If the remaining owners do not agree to the property, the applicant may apply to the court with the requirement to allocate a share in nature.

At the same time, the rest of the land will remain in the total owners of the remaining owners.

The process of section of the land

Voluntarily between owners:

the part of the site is produced, plans of the margins and acts of coordination of the border are manufactured;
documents are rendered to the administration to receive a signature of the chapter on approval of the project of new borders;
after permission to hold a section in the Property Management Committee;
documents are submitted to the Registration Chamber or MFC to obtain certificates of ownership;
So in the process of surveying, the plots will be put on cadastral records, additionally contact Rosreestr do not need.

In the reghanta, you will need to pass the following documents:

a guide document on the possession of a plot, for example, an act of privatization or sales contract;
cadastral passports;
the consent of interested persons on the formation of sites (for example, banks, if the land is in a pledge).
Each new owner will need to pay the state duty for issuing a certificate of 1000 rubles.

The section in nature occurs according to the following algorithm and only if the parties could not come to the voluntary section:

the size of the share of the total ownership is determined (the number of shares is always equal to the number of owners);
a claim is made to the court with the requirement to allocate a share in nature from the total land plot;
the court analyzes the submitted documents, considering primarily the possibility of separating the site in
accordance with the norms;
with a positive decision, the court issues the paper with which next should appeal to the regal for registration
property rights;
with a negative result, the court's decision can be appealed in an appeal.

For the discharge requirement, it is necessary to ensure that the size of the site corresponds to the standards current in the region to the minimum set area. For Moscow and the region, for example, the following standards:

maintenance farm - 2 hectares;
conducting a horticultural or country farm - 0.06 hectares;
maintaining gardening - 0.04 hectares.

If the size of the selected area is less than the above limits, it will serve as a refusal to satisfy the claim.

Solving issues in court

Sometimes even with the mutual agreement of the owners have to go to court. This happens, as a rule, if the site has a complex structure or if its interview affects the interests of third parties. For example, if the power line passes through the territory, or if there is a public road on the site. In this case, the Court determines not only what specifically areas belong to one or another applicant, but also the procedure for using disputed territories. For example, they can stay as a common property, to be presented to one of the owners or transferred to the management of the municipality.

And, of course, the appeal to the court is necessary when the owners do not converge in the issue of separation of shares or if there is at least one refusal to conduct an operation.

A few examples

In 2000, after the death of her grandmother, her children had a legacy of 16 acres. Since there were no wills, the site was generally owned. When dividing property, it turned out that in the region minimum size Forming sections of 5 acres. The court decided to leave the land as a common property. After consulting with a lawyer, the heirs came to the Voluntary Agreement: one of them refused his share, having received her monetary compensation From the rest, three shared a plot among themselves in equal proportions.

I want to note that large problems in the section arise when there are houses, buildings, etc. on Earth. Especially if the owners cannot agree among themselves. It is possible to divide, and buildings are divided, in principle, easily. But split the house and the plot so that everyone becomes the owner there (on its territory) will not be able to. Be sure this division will affect someone from the owners, since someone will have to come to terms with the fact that the selection condition of each individual section will be disturbed.

The dispute about the division of property is most often occurring at a divorce. So it happened in this matter. The wife appealed to the court with a claim for divorce and the section of jointly proven property. Among the false property was a land plot that was obtained by her husband for free, during the marriage on the basis of the decision of the local government.

What was indicated in the statement of claim

Turning to the court, the wife in his claim indicated that during the period of marriage, they and her husband had a certain property, including the land plot. All this property, in her opinion, although it was drawn up for her husband, should be divided into half, in equal shares.

What decision received the court of first instance

By the decision of the court of first instance, the claims of his wife were satisfied in part.

Marriage between spouses was terminated. Of the total property listed in the lawsuit, the court divided the house only. The land plot remained assigned to her husband, and his wife clarified that she could not claim him

Making this conclusion, the court proceeded from the fact that the land due to the provisions of paragraph 2 of Art. The 36 SC RF does not apply to the common property of spouses, since it was received by her husband for a gratuitous deal. A gratuitous transaction court called the decision of the local administration about the allocation of the land plot.

The appellate court, where the wife turned with a complaint, left the decision of the court of first instance unchanged. Disagreeing with this verdict, the wife reached the Supreme Court.

The judicial board on civil cases of the Supreme Court of the Russian Federation established that the conclusions made by the courts of the first and appeal instances were erroneous, and the decision was made with a significant violation of the norms of substantive law.

The Supreme Court of the Russian Federation referred to Articles of the Family Code and drew attention to the fact that the joint property of the spouses arises by virtue of the direct indication of the law and acts if it was not for the marriage treaty otherwise provided.

According to paragraph 2 of Art. 34 of the RF IC of the Russian Federation to the property, the spouses during the marriage (the common property of the spouses) belong:

- income of each of the spouses from labor activity, business activities and results of intellectual activity,

- Pension, benefits, as well as other cash payments that have no special purpose (the amount of material assistance, the amount paid to the damage due to disability due to injury or other damage to health, and others).

The common property of spouses are also purchased at the expense of total revenues of spouses:

- movable and immovable things,

— securities,

- deposits

- Shares in capital entered into credit institutions or other commercial organizations,

- Any other spouses htorated during the marriage period, regardless of whether it was acquired in the name of whom from the spouses either in the name of anyone or whom from the spouses made cash.

However, the property belonging to each of the spouses before marriage, as well as the property received by one of the spouses during a marriage as a gift, in the order of inheritance or by other gratuitous transactions (the property of each spouse) is his property (paragraph 1 of Art . 36 of the RF IC).

The land plot from our history was given to her husband on the basis of a decision of the local government in perpetual use. Subsequently, when marriage between spouses was already officially decorated, the right of perpetual use to the land plot was reissued to ownership. In all documents, the owner of the site was indicated by a husband.

The court of the first and appeal instance was considered that the land plot was received by the defendant for free, he was his personal property and should not share. However, it is not.

The land plot provided for free one of the spouses during a marriage on the basis of an act of the local government body shall be included in the general property to be divided between spouses.

In accordance with sub. 1, 2 p. 1 Art. 8 of the Civil Code of the Russian Federation Civil Rights and Responsibilities arise from contracts or other transactions provided for by law, as well as from contracts and other transactions, although not stipulated by law, but not contradictory, as well as from acts of state bodies and local authorities, which are provided for by law as the basis of occurrence civil rights and duties.

Thus, the legislator delivers contracts (transactions) and acts of state bodies, local governments as the basis for the emergence of civil rights and duties.

Free transfer of the land plot to one of the spouses during a marriage on the basis of an act of the local government body cannot be the basis for his assignment to the personal property of this spouse.

The Supreme Court of the Russian Federation noted that since the ownership of the husband on the land plot did not arise on the basis of a gratuitous transaction, the conclusions of the courts of attributing this controversial property to the personal property of the defendant in the order of Art. The 36 SC RF is contrary to the above provisions of the Law.

Under such circumstances, the grounds for refusing a wife in demand to produce the section of the land plot between the spouses of the courts of subordination instances was not available.

The land plot can simultaneously be a few owners. At the same time, it is in the so-called overall ownership. Such a territory has special conditions for use, surveying, opportunities for sale.

The concept of common share ownership

There are 2 types of shared possessions:

joint;
share.

In the first case, there is no division of the land on the part, this species may arise when buying the Earth with spouses, and they own a jointly purchased territory without the allocation of shares. In the second case, property implies several owners in one site, but with a clear definition of its parts belonging to each owner.

Share ownership occurs in the following cases:

Registration of land-related transactions and implying the purchase of the share of the plot.
Entry into the inheritance in the will.
Privatization of the territory.
Obtaining a part of a domestic site or, on the contrary,.
Joint farm possession of the plot in order to obtain from it profits from agriculture.

All shared property ownership nuances are registered article 244 of the Civil Code of the Russian Federation.

Features of the use of a plot in equity property

General share ownership of land implies that this territory Belongs to several owners. It is important to notice that each of the owners has the ability to use not only its share, but also the rest of the area. But it is possible to make transactions in resale of your share or to build only in coordination with all owners. If at least one owner does not agree, the transaction is illegal.

If it is impossible to establish the procedure for the use of land, you can apply to the court. These questions solve the global judge.

Interviewing land in equity property

Specialists who conduct work on the land survey, perform geodetic surveys of the equity territory, check whether the site is complied with the fact that it is documented, only after these inspections begins separation of the territory to the necessary parts. The borders formed during the survey will be legalized officially.

The procedure for interviewing and establishing the boundaries of the agrarian plot passes the following steps:

Collect information and their careful analysis.
Obtaining consent from all owners of the land area and people who are interested in establishing borders.
Geodesic survey.
Data processing.
Creating a survey plan - the final result.
Feed a plan to the registration chamber.

To make the right to a plot in the share of possession, after all these procedures, it is necessary to contact the list of documents and the survey plan in the Cadastral Chamber.

If there are disputes about the borders of the share, judicial expertise is held.

How to do, if you need to survey and put a plot into the inventory, as well as how to stop disputes with neighbors about the borders of the site will tell the lawyer in this video:

How to divide the Earth in the share of ownership

Usually, the common ownership of the territory has spouses who purchased the station in marriage, or after the privatization of the territory of relatives. Less often, the share ownership of the area was put on people who do not have kinship.

According to Article 252 of the Civil Code, each of the owners may require the separation of the site. In this case, a person stands out by the proportion of him, borders are held. This can be carried out both voluntarily and by the court decision.

After the section, the owner may dispose of the share allocated to it at its discretion, without consulting other owners.

If the separation wants to spend only one of the owners, the rest can continue to use the total equity property.

If the section is voluntary, the boundaries are carried out, the boundaries are determined, all the paper received from the specialists are scheduled to sign the chapter of the district or city. The documents must then be given to the regulation together with the separation permit by one of the property management committee. Within 2 weeks, a new document is being prepared for the ownership of the allocated land plot.

List of documents that need to be submitted to the GCP:

purchase agreement or;
cadastral passports;
consent to division from all interested people;
receipt of the payment of state duty in the amount of 1,000 rubles from each owner.

If conflict arose, and it does not work in a peaceful way, it will be necessary to apply to the court with a statement about the request of the allocation of the share owner in natural form. In this case, you need to make a claim and provide documents for consideration. If the separation is approved, you can contact the regulation for the design of new evidence, in the event of a negative solution, you can try to file an appeal to a higher court.

There are standards of land areas if in division common territory On the number of owners, the size of the site is less than the norm, they will be denied in the section, and it is already impossible to challenge it.

Sale of a land plot

The sale of agricultural sites, which are in the share of ownership, is regulated by the Land Code, as well as a number of articles of the Civil Code of the Russian Federation.

There are a number of nuances when performing a resale plot of plot:

The land should be divided by specialists, you need to present a document where all the borders are clearly designated.
The seller must have a certificate confirming the right to own the share of the territory.
The advantage when buying a share of the co-owners of the site. Only if they sign the refusal, the seller can offer a fraction of strangers.
The refusal is prescribed the amount for which the owner offers to purchase a share of other owners, the sale of other persons for a smaller amount is illegal and may be appealed in court within 3 months from the date of sale.

Termination of equity property

Termination of equity ownership real estate 252 Articles of the Civil Code of the Russian Federation are regulated. 2 options for the cessation of equity ownership of land are possible:

In case of complete cessation of relations between co-owners.
Reorganization of a common major object by allocating from it and drawing up documents on individual possession of parts of the land area.

To the first eye, the following transactions can be attributed:

sale of a share is not co-owner;
registration of a contract for a donation or exchange;
transferring its part of the Earth to the spouse when divorced during the property section.

The second type includes:

ransom or reception as a gift to the share of co-owners;
allocation of the land in natural form, with the execution of the personal property of everyone.

In the second case, the plot is divided by the usual survey with the subsequent design of all documentation. Each dedicated area must be your entrance, there should also be the possibility of check-in from the road. In the case of the presence in the section of the construction, it gets one of the co-owners according to judicial decision or by the consent of the rest.

If the termination of the equity possession of the territory of the agrarian plot is carried out at the request of all owners, it is necessary to issue a document on the distribution of shares.

Read more about the termination of the share ownership and allocation of share in kind, you can learn from the video:

Ownership of the agrarian object in equity ownership has a number specific damns. It is important to know how to act in accordance with the law in cases of selling, donation or other transactions with shares so that there are no misunderstandings. If conflicts with co-owners are frequent, it is more convenient to distinguish their share in individual possession.

Read 5 min. Views 29. Published 08.11.2019

The land plot may have several owners who have their own interests. The share section will need if any of the owners wanted to sell its part or dispose of it legitimate way. Solding in kind or section of one section is somewhat substantiated by practical purposes and must comply with the current legislation.

Registration of the land in equity property is allowed in compliance with the norms of land and civil legislation. The transaction is possible by agreement between owners or through court - with the refusal of one of them on the section and the actual need to form several land plots - with the divorce of spouses or the requirement of the share of the share from the site of one of the co-owners. With the separation of the share it is advisable to carry out the simultaneous section of the site.

For the section of the land, you need to hold cadastral work on the interviewing of the property. A contract of contract or the provision of paid works with the cadastral engineer should be concluded.

The boundaries are determined in the presence of owners, owners of divide or related sites. When surveying may have a power of attorney.

The engineer establishes the boundaries of new sites and makes them in the air plans. They are placed in electronic storage.

Important!

The duty of the engineer to make an electronic partial plan and determine it into electronic storage can be spelled out in the contract.

An entrance and access should be provided to the land plots, and if they are used for ILS, industrial buildings are the supply of the necessary engineering communications.

Registration of an agreement on the division of the land

It can be made in conventional writing. At the request of the parties, the document is assigned in the notary. Agreement on equity ownership should sign all owners of new land plots.

The document indicates:

Cadastral number, information about all owners.
The size of the share, the area of \u200b\u200bthe new sections of their correspondence share in the source site.
Distribution of validity costs.

If one of the owners fails to participate in the dispute section can be resolved in court. The jurisdiction of such cases is indicated in the Code of Civil Procedure of the Russian Federation - Art. 23, 24.

With a statement about receiving addresses for new land plots, you need to contact the Local Land Management Department
administration. The statement denote the name of land plots, their number, the basis of assignment.

You can contact Rosreestr, MFC, regional portals of state and municipal services. The decision to assign the address or refusal is made within 18 days after the application is adopted.

Appeal for registration of ownership of shares in Rosreestre

In the section of the land plot, the inclusion of a plot (share) in the GKN, registration of property rights, the removal of the previous section with the GCN and the termination of the right of ownership is carried out simultaneously.

To Rosreestr need to provide:

Passport.
Statement.
Resolution of the head of the municipality on addresses assigning.
Agreement between shareholders.

Important!

If the new land plots have no address, then the address of the initial land plot may be specified in the registration statement, and the addresses of the new ones are determined already after state registration.

The state duty will be required. Its size is set by Art. 333.33 of the Tax Code. For the registration of a plot intended for the maintenance of LPH, from the land of the garage, countryland, the gardened partnership of the state duty is 350 rubles.

For registration of land remaining categories, you need to pay 2 thousand rubles. If the application is submitted through the portal of public services, the state duty is calculated taking into account the coefficient of 0.7.

Accounting for land plots in GKN and registration of property rights is carried out within 10 working days after the adoption of documents by Rosrester . When applying for IFC, the time of paperwork is 12 working days (Article 16 of the Federal Law No. 218 of July 13, 2015).

State registration of property rights and cadastral records are confirmed by extracting from EGRN. It is issued in paper form or heads at the applicant's email address.

Possible difficulties in the design of land in equity property

If the land equivalent of the share is required, it is possible only if its parameters allow you to highlight full-fledged real estate objects, with a permitted purpose of use.

When the transaction may find out that the boundaries of the original area were initially defined incorrectly or imposed on the boundaries of adjacent sections. The error is detected during the interview.

To eliminate the problem It is necessary to agree with the neighbors of the land of the land plot and only then begin the procedure of the section. If it is impossible to distinguish its size, it can be compensated with a commensurate amount of money.
Judicial act - As the foundation of the partition on the share is executed within the specified time frame. If the sides are slow with the section or do not want to execute the decision, the procedure can be performed with the participation of the bailiff.
Executive production It is carried out in compliance with the norms of the Federal Law No. 229 of October 2, 2007 with a statement of issuance executive Sheet The subject is drawn, in whose favor a court decision was taken.

If the parties refuse to execute the order of the bailiff in set time, then from the subject, obliged not to interfere with the section charges the executive fee. Its size is specified in Art. 112 FZ No. 229. For citizens, it is at least 1 thousand rubles, for IP - at least 10 thousand with legal entity.

Registration It is advisable to start with the development of the agreed position of all owners on the section of joint ownership. If necessary, you should take advantage of the support of the competent specialist.

Video plot about the process of registration of the right to land plot and what changes occurred

Smolina Larisa Viktorovna - legal adviser of the law firm "Human Rights".

After the adoption and entry into force in March 2005 of the Housing Code of the Russian Federation in Russia, a significant change in housing legislation has occurred, a new institute has emerged for the law - the institution of common ownership.

General shared property is devoted to ch. 6 LCD RF.

According to Art. 36 LCD RF, owners of premises in an apartment building owned on the right of the overall validity of the premises in a given house that are not parts of apartments and intended for servicing more than one premises in this house, including inter-weltered staircases, stairs, elevators, elevator and other mines, corridors, technical floors, attics, basements in which there are engineering Communicationotherwise serving more than one room in this house equipment (technical basements), as well as roofs that enhance the carriers and non-vacant structures of this house, mechanical, electrical, sanitary and other equipment located in this house outside or indoors and maintain more One premises, a land plot on which the house is located, with elements of landscaping and improvement and other purposes intended for service, operation and improvement of this house, objects located on the specified land plot.

From this you can learn a good benefit, for example, to rent a part of the land plot. After all, it is no secret that often the yards of many houses, playgrounds are built up with garages, parking lots and other structures that are established illegally. And after registration of the land, it will be possible to know more accurate area outdoor territorywhich belongs to the law of the owners of the premises in an apartment building. At the same time, the boundaries and the size of the land plot on which the apartment building is located are determined in accordance with the requirements of land legislation and legislation on urban planning activities.

It follows from this that after the design of the land plot, it will be possible to bring to the responsibility of those persons who illegally "settle down" at the local area, to establish them a fee for the use of land. And already the profit received from renting a land plot can be spent on beautification and landscaping of the local area, for the construction of playgrounds, etc.

To become full-fledged owners not only of their apartments and non-residential premises, but also a land plot, which is located a multi-apartment building, it is necessary to issue this land plot into the total share ownership of all owners of premises (residential and non-residential) in the house in accordance with the current legislation.

However, before issuing a land plot into a total share ownership, it is necessary to pay attention to the following.

According to Art. 36 LCD Land plots on which are facilities that are part of the common property of an apartment building, residential buildings and other structures are provided as a common property in the total share ownership of homeowners in the manner and on the conditions established by housing legislation.

According to paragraph 2 of Art. 16 of the Federal Law of December 29, 2004 N 189-FZ "On the introduction of the living code for the Housing Code of the Russian Federation" The land plot on which the objects of real estate, which is formed to the introduction of the Housing Code of the Russian Federation and in With respect to which state cadastral records were conducted, it becomes free of charge in the total share ownership of the owners of the premises in an apartment building.

Thus, if until March 1, 2005, the land plot under an apartment building was formed, it passes into the total share ownership of the owners of the premises in this house. At the same time, it is not required to provide a special order for the provision of land plot into the overall shared property and setting the land plot. This meaning is contained in the above standards.

The share in the right of the common property for the common property in the apartment building of the owner of the premises in this house is proportional to the size of the total area of \u200b\u200bthe specified premises (Art. 37 LCD RF). The share in the right of the common property for the common property in the apartment building of the owner of the premises in this house follows the fate of ownership of the specified room. In the transition of property rights in an apartment building, the share in the right of common property for general property in this house of the new owner of such a premises is equal to a share in the right of common ownership of the specified common property of the preceding owner of such a premises.

To calculate the shares of owners, it is necessary to possess the following information:

list of owners of premises with an indication of apartments or non-residential premises;
the total area of \u200b\u200bthe premises of the owners.
overall area of \u200b\u200bthe house.

Example: The total area of \u200b\u200bthe apartment is 55.92 sq.m.

Total area of \u200b\u200bthe house - 10860.8 sq.m.

The share in the right of the common property is 0.514 sq.m.

The law allocates two conditions for the provision of land in total validity:

formation of a land plot;
staging a land plot on cadastral records.

These conditions must be combined. However, the legislation does not determine the mechanism for providing land in common share ownership, in connection with the practice, many people who want to issue a land plot face a lot of problems.

In connection with the ambiguous interpretation of the law state bodies, as well as judicial authorities explained some articles LCD RF about total share ownership. Thus, the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia issued a letter from 03.06.2008 No. 03-05-05-02 / 42, which indicated the following:

"Since the formation of a land plot and its state cadastral accounting The land plot on which the objects of immovable property are located in the composition of this house are located free of charge in the total validity property of the owners of the premises in an apartment building. At the same time, it should be noted that the foundations of termination of ownership of land plots are provided in Art. The 44 RF RC, to which the alienation of the owner of their land plot attributed to other persons, the rejection of the owner from the ownership of the land plot, forced withdrawal from the owner of its land plot in the manner prescribed by civil law.

Thus, the change in housing legislation does not entail the automatic termination of the right of state or municipal ownership of the land plot by its transition to the total share ownership of the owners of the premises in an apartment building.

In addition, the provisions of Art. 16 of the Federal Law N 189-FZ contain only the conditions for the transition of the land plot, which is located a multi-apartment building, in total share ownership, but do not determine the procedure for such a transition, in connection with which we believe that for the transition of the land plot into the total share ownership of the owners of the premises in An apartment building requires compliance with the overall (applicant) procedure for registration of land relations.

Based on Art. 28 and art. The 290s of the Russian Federation, providing citizens and legal entities of land plots from land in state or municipal property, is carried out for a fee on the basis of the decision of the executive bodies of state authorities or local governments, which have the right to provide relevant land plots. At the same time, in the cases provided for by the RF RF, federal laws (in particular, Article 16 of the Federal Law N 189-FZ) and the laws of the subjects of the Russian Federation, the provision of land plots to the property of citizens and legal entities can be carried out for free.

Considering the above, as well as taking into account the current forensic arbitration practice (for example, the definition of the Supreme Arbitration Court of the Russian Federation of October 19, 2007 No. 10248/07), we believe that for registration of land and legal relations for the transfer of a land plot located in the state or municipal The property and which is located a multi-apartment building, in general shared property it is necessary to publish a corresponding abnormative act of the authorized body.

Thus, in the event that the land plot on which the apartment building is located is formed in accordance with land legislation and legislation on urban planning activities, the specified land plot is assigned a cadastral number, authorized body State power or local government authority issued a decision on the transfer of land in the total share ownership of the owners of the premises in an apartment building, the owners of the premises in an apartment building will be recognized as payers of the land tax regarding the appropriate share of the land plot. "

Are the owners of the premises in an apartment building to pay land tax For the land plot located under this house before the publication of the relevant legal act on the occurrence of ownership of this land plot? At what point from the owners there is a duty on the payment of land tax for the land plot located under this multi-family house?

The response to these topical questions gives the Department of Tax and Customs and Tariff Policy of the Ministry of Finance of Russia in a letter from 30.09.2008 No. 03-05-05-02 / 66.

In accordance with Art. 388 ch. 31 "Land Tax" Tax Code RF taxpayers land tax recognize organizations and individuals with land plots on the right of ownership, the right of permanent (perpetual) use or the right of life inherited ownership. The taxpayers are not recognized by organizations and individuals in relation to land plots that are on their right to free urgent use or the right of lease.

In this regard, the owners of the premises in an apartment building will be payers of land tax regarding the appropriate share of the land plot only if the land plot on which the apartment building is located, formed in accordance with land legislation and legislation on urban planning activities specified by the land plot The cadastral number was assigned an authorized body or local government authority, a decision was published on the transfer of land in the total share ownership of the owners of the premises in an apartment building.

Regarding the procedure for the provision of land in total share ownership it should be noted that it can be divided into several stages:

Decision by the owners of the premises on the formation and design of the land plot into total share ownership.

In accordance with paragraph 1 of Art. 16 of the Federal Law "On the Enforcement of the Housing Code of the Russian Federation" in the existing development of settlements, the land plot on which the objects of real estate and other members of the real property are located, is the total equity property of the owners of premises in an apartment building. However, in order for owners to realize their right of common share ownership, the land plot must be formed. For this purpose, the owners of the apartment building at the general meeting decide on the formation and design of the land plot under the house in general shared property. It should be noted that such a meeting can also be carried out in the form correspondence vote The owners of the premises, as the holding of this form of the meeting does not contradict the requirements of the current legislation.

In addition to the issue of the formation and design of the land plot, the general meeting of the owners should address the issue of the choice of an authorized person who will submit their interests on the design of land in total share ownership. By virtue of paragraph 3 of Art. 16 of the Federal Law "On the introduction of the Housing Code of the Russian Federation", in case the land plot on which the objects of immovable property are located in the composition of such a house, are not formed before the introduction of the LCD of the Russian Federation, on the basis of the decision general Assembly Owners Any authorized person authorized to apply to state authorities and local governments with a statement to form a land plot on which a multi-apartment building is located. The powers of the specified person can be delegated to a third party. In this case, the authorized person can be consequerated to carry out the formation and registration of the land plot to another person. It should be noted that the right of handover should be reflected in the Protocol of the General Assembly.

The decision taken at the general meeting of the owners of the apartment building is issued by the Protocol.

Let us give an example of the Protocol:

Protocol N ____ General Assembly of the owners of premises in an apartment building in the form of absentee voting

G. Saratov "___" __________ 2008
Venue: Saratov, ul. _____________, d. _____
Chairman (initiator) of the meeting - _____________________
Collection Secretary - ____________________________________
Agenda:
1. The formation and design of the land plot on which is located
apartment house N ____ on ul. ___________________ in Saratov,
in the total share ownership of all owners of the houses at home on
the basis of Art. 36 of the Housing Code of the Russian Federation and Art. 16 FZ "On the introduction of
Housing Code of the Russian Federation. "
2. Commissioning __________________________________________________
passport __________________ issued _______________________________________,
registered at: ___________________________________________

Russian Federation".
Voted:
"per" ____ %
"vs" ____ %
"abstained" ____%
Total votes: ____ votes
Take part: ____ votes
According to Article 45 of the Housing Code of the Russian Federation, there is a quorum.
On the first question decided to form and issue a land plot on
which is located a multi-apartment house N ____ on the street. ____________________
in Saratov, in the total validity of all owners of the premises
houses on the basis of Art. 36 of the Housing Code of the Russian Federation and Art. 16 FZ "On the introduction in
the action of the Housing Code of the Russian Federation. "
On the second issue they decided to authorize __________________________________
passport ____________________ issued _____________________________________,
registered at: __________________________________________
on the formation and registration of the land plot into the total share
property of all owners of premises on the basis of Art. 36 housing
code of the Russian Federation and Art. 16 FZ "On the introduction of the housing code
Russian Federation".
Chairman (initiator) of meetings _____________ / _____________ /
Collection Secretary _____________ / _____________ /

Obtaining documents in the body exercising technical inventory Objects (BTI).

After making a decision on the formation and design of the land plot, the authorized person should contact BTI to obtain the following documents:

land plan;
help for the land resource committee.

To obtain them, it is necessary to have copies of the certificates of state registration of a legal entity and on the formulation of its tax accounting (in the case of land plot on behalf of the HOA, HSC or Management company), as well as a right-ending document on the house and land.

Perform the cadastral works.

According to Art. 35 of the Federal Law of July 24, 2007 N 221-FZ "On State Cadastre of Real Estate" (as amended from 22, July 23, 2008) Cadastral works are carried out by the cadastral engineer on the basis of concluding in accordance with the requirements of civil law and this federal law of the contract Contract for the execution of cadastral works.

Cadastral activities have the right to carry out individualwhich has a valid qualification certificate of the cadastral engineer.

At this stage with the cadastral engineer, it is necessary to conclude a contract for the execution of cadastral works. According to the specified agreement, the cadastral engineer ( individual entrepreneur or legal entity) undertakes to ensure the fulfillment of cadastral work on the task of the Customer of these works and convey to it documents prepared as a result of the implementation of these works, taking into account the requirements of the Federal Law of July 24, 2007 N 221-FZ, and the customer of these works undertakes to accept specified documents And pay for the existing cadastral works.

As a result of the implementation of these cadastral works, preparation of documents for submission to the authority of the cadastral accounting of an application for registration of the object of real estate or real estate objects, about accounting for changes in the object of real estate, consider the part of the property or deregistration of the real estate object. The volume of cadastral works to be fulfilled is determined by the Cadastral Customer. At the same time, the contract for the execution of cadastral works is a public contract. In addition, the cadastral work to be fulfilled is paid, their price is envisaged in a contract for the implementation of cadastral works by compiling a solid estimate.

The cadastral engineer produces geodetic surveillance with departure to the area, produces an intertime (the boundaries of land plots are established with their integrated signs and the determination of their coordinates).

As a result of cadastral works, an individual entrepreneur or legal entity (cadastral engineer) conveys the following documents to the customer:

meeting plan (in the performance of cadastral works, as a result of which the preparation of documents is ensured for submission to the authority of the cadastral registration of an application for registration of land or land plots, about accounting for changes in the land plot or accounting of the part of the land plot);
the technical plan (when performing cadastral works, as a result of which the preparation of documents are provided for submission to the authority of the cadastral accounting of the statement on the registration of the building, facilities, the premises or the object of unfinished construction, about accounting for its changes or accounting for its part);
the act of examinations (when performing cadastral works, as a result of which the preparation of documents is provided for submission to the authority of the cadastral accounting of an application for removal from the accounting of the building, structures, premises or facility of unfinished construction).

The Mechanical Plan is a document that is based on the cadastral plan of the relevant territory or cadastral statement on the relevant land plot and in which certain information-specific information reproduced in the State Cadastre and information about the land or land regulations formed, or part or parts or parts of the land plot. or new information about the land plot or land plots in the State Real Estate Cadastre.

In the Meeting Plan, information about the landfills formed or land plots are indicated in the event of cadastral works, as a result of which the preparation of documents are provided for submission to the authority of the cadastral accounting of a statement on registration of land or land plots, information about the part or parts of the land plot in the case of The fulfillment of cadastral works, as a result of which the preparation of documents are provided for submission to the authority of the cadastral accounting of a statement of part or parts of the land plot, new information about the land or land plots in the State Cadastre of Real Estate, in the event of cadastral works, as a result of which is ensured Preparation of documents for submission to the authority of the cadastral accounting of a statement about the accounting of changes in the land plot or land plots.

The location of land borders is subject to compulsory agreement, and the part-based plan should contain information on such coordination.

Meeting plan consists of:

the graphic part in which the information of the cadastral plan is reproduced by the relevant territory or cadastral statement of the corresponding land plot, as well as the location of the boundaries of the formed land or land plots, or the boundaries of the part or parts of the land plot, or the refined landstand boundaries, access to the formed land plots (passage or pass from land plots), including by establishing a servitude;
the text part in which the necessary information on the land plot or land plots in the amount established by the regulatory regulatory authority in the field of cadastral relations, as well as information on coordinating the location of landlines in the form of an act of coordination of such boundaries (hereinafter - the act of coordination of the location of borders).

Persons whose rights may be affected when conducting intertaries, are notified about the place and time of the survey. As a choice of cadastral engineer, a meeting of interested persons is held or coordination occurs individually with the interested person. These include persons with adjacent land plots on the right:

property (except for cases, if such related land plots, which are in state or municipal property, are provided to citizens in life inherited ownership, permanent (perpetual) use or legal entities who are not state or municipal institutions or executive enterprises, permanent (indefinite) use);
lifelong inherited ownership;
permanent (perpetual) use (except for cases, if such related land plots are provided to state or municipal institutions, government enterprises, state authorities or local government agencies in constant (perpetual) use);
rental (if such adjacent land plots are in state or municipal property and the relevant lease agreement is concluded for more than five years).

On behalf of the specified persons, their representatives acting by the authority, based on a notarized power of attorney, instruct the federal law or an act of an authorized state authority or local government, are entitled to participate in coordinating the location of the borders. At the same time, in coordination of the location of the borders on behalf of the owners, a representative of the owners of the premises in an apartment building, authorized on such coordination of the procedure adopted in accordance with the procedure established by the Federal Law, the decision of the General Assembly of these Owners (if the corresponding adjacent land plot is part of the common property of these owners), representative owners of a share in the right of a common property for land from agricultural land - by the decision of the general meeting of the owners of such fractions (if the corresponding adjacent land plot is part of the land of agricultural purposes and is owned by more than five persons), a representative of the members of the horticultural, garden or dacha not commercial associations of citizens - by the decision of the General Meeting of the members of this non-commercial association or by the decision of the Assembly of the Commissioner of this non-commercial association (if the corresponding The adjacent land is located within the territory of this non-commercial association and refers to the property of common use).

The subject of coordination of land plots with an interested person when performing cadastral works, as a result of which the preparation of documents are ensured for submission to the authority of the cadastral accounting of the statement of appropriate changes in the land plot, is to determine the location of the boundary of such a land plot, which is simultaneously the boundary of another land-owned land Plot. The interested party is not entitled to represent objections on the location of other boundaries of the land belonging to him or coordinate the location of the borders on a reimbursable basis.

Coordination of the location of borders is carried out on the choice of customer of cadastral works with the establishment of land boundaries on the ground or without the establishment of land boundaries on the ground. The interested person is entitled to demand the coordination of the location of borders with their establishment on the ground. In this case, such coordination is carried out with the establishment of relevant boundaries on the ground, with the exception of the following cases:

if land plots, the location of the borders of which is agreed, are forest areas, land plots as part of the lands of specially protected natural territories and objects or as part of agricultural land, intended for the implementation of traditional environmental management by the indigenous small peoples of the North, Siberia and the Far East of the Russian Federation;
if the location of the borders of land plots are subject to coordination, it is determined by guidance on natural objects or objects of artificial origin or their external borders, information about which is contained in the state real estate cadastre, which allows to determine the location of the boundaries of such land plots to be coordinated;
if the location of land boundaries subject to negotiating is determined by the location on one of these land plots linear object and land removal standards for its placement.

The result of the coordination of the location of the borders is issued by the cadastral engineer in the form of an act of coordination of the location of the boundaries on the turnover of the sheet of graphic part of the land plan.

As a rule, the location of the boundaries of the land plot is considered consistent if there is an act of coordination of the location of the borders of personal signatures of all stakeholders or their representatives. However, there are exceptions. So, if a properly notified interested person or his representative did not express his consent through the certification of the act of coordination of the location of the borders or did not provide its objections in writing with their rationale, the location of the relevant borders of land plots is considered agreed by such a person. The corresponding entry is made to the location of the location of the borders. Documents confirming the compliance with the procedure for notifying the said person established by the Law. These documents are an integral part Meeting plan.

What if the adjacent land user does not coordinate the boundaries of the plots? Is it really not possible to arrange a land plot as long as the "neighbor" does not agree?

If the location of the relevant borders of land plots is not agreed by the interested person or his representative and such a person or his representative submitted in writing objection on this coordination with the rationale for refusal in it, records of the content of these objections are made in the act of coordination of the location of the boundaries. The objections presented in writing are attached to the land plan and are an integral part.

Turn to K. judicial practice solutions such a problem.

One of the courts refused to meet the requirements of the Organization on the obligation of the adjacent land user to coordinate the act of establishing and harmonizing the boundaries of the land plot. At the same time, the court referred to the fact that the current legislation does not provide for the possibility of harmonizing the boundaries of the land plot by adopting a relevant judicial act. The Federal Arbitration Court of the Moscow District recognized these conclusions erroneous and in its decree dated 14.05.2008 N kg-A41 / 3614-08-P explained the following.

In this case, the plaintiff was provided with a land plot on the right of indefinite and free use, which, by virtue of paragraph 3 of Art. 20 ZK RF is preserved. To decorate the rights to the land used in accordance with the requirements of the current legislation, it is necessary to carry out land management work, one of the stages of which is the establishment and description of the boundaries of the site, which implies obligatory Coordination of borders with adjacent land users. The unmotivated refusal of the adjacent land user from the design of documents in coordinating the boundaries of the land plot is definitely prevents the plaintiff in the design of its rights. The fact that the plaintiff is not an authority authorized to carry out land management work, the values \u200b\u200bhave no meaning, since the boundaries of the adjacent sites should be coordinated by users. Under such circumstances, the withdrawal of the lower court that the plaintiff was elected inappropriate way to protect the right is unreasonable.

Further, after the coordination of the boundaries of the land plot draws up a draft border of the land plot, which is agreed with the Committee on Architecture and Town Planning, as well as the Land Resource Committee.

Disputes about the boundaries of land are considered in court. They may occur when the boundaries of land plots are imposed, in the absence of coordination with adjacent land users (interested persons).

From the moment of registration of the land supro, coordination of the project of the borders, the land plot is formed.

Obtaining an authorized state authority or local government decision on the transfer of land in the total share ownership of the owners of the premises in an apartment building.

As a rule, this decision is made in the form of a resolution. To obtain a resolution, an interested person authorized by the general meeting of the owners of premises in an apartment building is applied to the competent property management body. At the same time, the following documents must be submitted:

the right-point documents for the land plot (if available);
certificates of state registration of a legal entity, on the formulation of tax accounting, constituent documents, an extract from the protocol on the election of the Chairman (if the chairman of the Chairman of the HOA, the ECC, the Management Company) is drawn;
certificate of the body carrying out the technical inventory of real estate objects on the land plot;
draft limits of land plots;
cadastral plan (if he was previously issued, and the land has changed);
list of residents at home with copies of certificates, certificates of paying share, etc.;
minutes of the general meeting of owners of premises in an apartment building;
an extract from a single state register of rights to real estate and transactions with it about registered rights to the land plot;
issument from the State Land Cadastre.
Staging a land plot on cadastral records.

In accordance with Art. 5 of the Federal Law of July 24, 2007 N 221-FZ "On State Cadastre of Real Estate" (as amended from 22, July 23, 2008) Each property of real estate, information about which is listed in the State Cadastre of Real Estate, has no time recurring and On the territory of the Russian Federation, the State Accounting Room (hereinafter - the Cadastral Number). Cadastral numbers are assigned real estate objects by the authority of cadastral accounting.

The cadastral number is assigned to the land plot in the implementation of cadastral accounting and is preserved until this property exists as a unified object of registered right.

In order to assign real estate objects of cadastral numbers, the cadastral accounting authority carries out the cadastral division of the territory of the Russian Federation to the cadastral districts, cadastral areas and cadastral quarters (hereinafter also - units of cadastral division). When establishing or changing the units of cadastral division of the territory of the Russian Federation, relevant information is entered into the state real estate cadastre on the basis of legal acts of the cadastral accounting authority.

The State Real Estate Cadastre includes the following information about the unique characteristics of the property:

type of real estate object;
cadastral number and date of making this cadastral number in the State Cadastre of Real Estate;
description of the location of the boundaries of the real estate object, if the object of real estate is the land plot;
description of the location of the property in the land plot, if the object of real estate is the building, structure or object of unfinished construction;
the cadastral number of the building or facilities in which the room is located, the room number on which this room is located (with the presence of floors), a description of the location of this room within this floor, or within a building or structure, or the corresponding part of the building or structure, if the object real estate is room;
the area defined taking into account the requirements established by the law, if the object of real estate is a land plot, building or room.

The State Cadastre of Real Estate also includes the following additional information About property:

previously assigned state accounting number (cadastral, inventory or conditional number), if such a number was assigned to assignment in accordance with Federal law dated July 24, 2007 N 221-FZ of the cadastral number, and the date of assigning such a number, information about the organization or body, which appropriated such a number in the procedure established by law;
the cadastral number of a different real estate object, as a result of the partition, was distinguished by the share in kind or other relevant legislation of the Russian Federation (hereinafter referred to - the object of real estate) was formed by an object of real estate, if the latter was formed as a result of transformation of another real estate object;
the cadastral number of another real estate object formed as a result of the conversion of the real estate object, if the latter was the object of real estate from which another real estate object was formed;
the cadastral number of the land plot, within which the building is located, the construction or object of unfinished construction, if the object of real estate is the building, construction or an object of unfinished construction;
cadastral rooms located within the land plot of buildings, structures, facilities of unfinished construction, if the object of real estate is the land plot;
the cadastral number of the apartment in which the room is located if the property is a room;
address of the object of real estate or, in the absence of such an address, a description of the location of the object of real estate;
information about real estate objects and the owners of these rights in the amount of information that is contained in the Unified State Register of Rights to Real Estate and Transactions with Him;
information on restrictions (encumbrances) of real rights to the object of real estate and on behalf of which such restrictions (encumbrances) are established, in the amount of information that is contained in the Unified State Register of Rights to Real Estate and Transactions with Him;
information about the part of the real estate object on which the restriction (encumbrance) is applied if such a limitation (encumbrance) does not apply to the entire object of real estate;
o. Information cadastral value object of real estate, including the date of approval of the results of the definition of such a value;
forest information, water objects and other natural objects located within the land plot if the object of real estate is the land plot;
the land category to which land plot is attributed if the object of real estate is the land plot;
allowed use if the object of real estate is a land plot;
the appointment of the building (apartment building), if the object of real estate is the building;
purpose of the room ( residential premises, non-residential premises), if the object of real estate is the room;
view of residential premises (room, apartment), if the object of real estate is a residential premises located in an apartment building;
appointment of the construction, if the object of real estate is the construction;
the number of floors (floors), including underground floors, if the object of real estate is a building or structure (in the presence of floors from a building or structure);
the material of the exterior walls, if the object of real estate is the building;
postal address and / or address emailwhich communicates with the owner of the property or if the property is a land plot, with a person with this land plot on the right of life inherited ownership or permanent (indefinite) use;
information about the cadastral engineer who carried out cadastral work on the object of real estate;
the year of commissioning of a building or structure upon completion of its construction or the year of completion of its construction, if the object of real estate is a building or structure;
information on the cessation of the existence of a real estate object, if the property has ceased to exist.

Cadastral registration is carried out in connection with the formation or creation of a real estate object (hereinafter referred to as a real estate registration), the termination of its existence or a change in the unique characteristics of the real estate object or other information about the real estate object established by law.

Real estate registration is carried out on the basis of the cadastral accounting statement submitted to the cadastral accounting authority and necessary for the implementation of such accounting of documents.

On behalf of the owners of premises in an apartment building with a statement about cadastral accounting, their representative is entitled to file such a statement adopted in accordance with the procedure established by the Federal Law, by the decision of the general meeting of these owners.

Application for cadastral accounting and documents necessary for cadastral accounting are submitted to the cadastral accounting authority by the applicant or its representative personally or by mail with the description of the investment and with the notification of the presentation. When registering the property, the statement and necessary for cadastral accounting documents may be submitted to the cadastral accounting authority in the form of electronic documents using public communication networks in the manner prescribed by the authority of regulatory regulation in the field of cadastral relations. The application must be certified by the applicant's signature or the signature of its representative.

The following documents necessary for cadastral records must be submitted to the cadastral accounting authority:

a document confirming the payment of state duty for the exercise of cadastral accounting, or a copy of the document confirming in accordance with the legislation of the Russian Federation on taxes and fees, the presence of grounds for exemption from payment of the specified duty (when registering the property);
meeting plan (when registering for the land plot, accounting for a part of the land plot or cadastral accounting in connection with the change in the unique characteristics of the land plot), as well as a copy of the document confirming the permission of a land dispute on coordinating the location of the boundaries of the land plot in the procedure established by land legislation;
a document confirming the appropriate authority of the applicant's representative (if the applicant's representative is referred to);
copies of shutdown documents (their number include including a decree on the provision of land in general shared property).

Obtaining an application for the conduct of state cadastral accounting of the land plot is confirmed by issuing a receipt to the applicant on obtaining relevant documents. If the application and the documents necessary for cadastral accounting are submitted to the cadastral accounting authority by the applicant or his representative personally, this body issues this applicant or its representative to receipt in obtaining such documents indicating their list and date of receipt. The receipt must be issued to this applicant or its representative on the day of receiving the cadastral accounting authority of such documents. Upon receipt of the application and necessary for the cadastral accounting of documents to the cadastral accounting authority, by means of postage, the receipt is sent during the working day following the day of receipt by the authority of the cadastral accounting of such documents, according to the statement specified in the application postal address With a receipt notice. The procedure for confirming the receipt of the cadastral accounting authority submitted in the form of electronic documents using public-use communication networks and necessary for cadastral records of documents is established by the authority of the regulatory and legal regulation in the field of cadastral relations.

At this stage of the design of the land plot, the documentation presented by the applicant is checked, a description of the land plot in the Unified State Register of Land is drawn up, the cadastral number is assigned, the cadastral plan is made and the cadastral business is generated.

The design of the land plot on cadastral records is carried out on time not more than twenty working days from the date of receipt by the authority of the cadastral accounting of the relevant statement of cadastral accounting. At the same time, the date of completion of cadastral accounting recognizes the day of submission by the authority of the cadastral accounting in the State Cadastre of Real Estate Information on the Cadastral Number assigned to the relevant real estate object.

Registration registration is carried out in the case of the adoption by the cadastral accounting authority of the relevant decision on the implementation of cadastral accounting.

When registering the object of real estate, the cadastral accounting body in the event of an appropriate decision on the implementation of cadastral accounting is obliged to give the applicant or its representative personally on receipt of the cadastral passport of the real estate object.

State registration of the rights of overall validity property.

State registration of rights to real estate and transactions with him in apartment houses It is held in accordance with the Federal Law of July 21, 1997 N 122-FZ "On State Registration of Rights to Real Estate and Transactions with Him" \u200b\u200band LCD RF.

State registration of the emergence, transition, restrictions (encumbrances) or termination of the right to a residential or non-residential premises in apartment buildings at the same time is state registration Insiscimulating the right of general share ownership of common property in this house, including the land plot.