Documents Authorizing State Registration of the Rights for Land Lots and Other Immovable Property
Pavlov P.N., counselor of the Main state-legal department of the President of the Russian Federation
In Russia the participation of state authorities in making deals with land wasn’t required before the XVIth century. However, the need in fixing the delegation of the rights for land had been already realized. It often happened that deals were made with ceremonies to Keeps in the memory the delegation of the rights for land to a new person. That primitive way of confirming the rights for land couldn’t be effective. In the XVIIth century, it was required to show buying contract to “Prikazes”, which was the special state department, for appearing the rights for land, by the XVIIth country any deal on realty’s expropriation was registered in “Prikazes”. If the object of deal was land, the registration was made in the “estate board”; if it was house & yard the registration was made in the county council (“zemstvo”- 1864-1917). In cities “voevoda” (Russian military man, who was a head of a city) made registration. Under buyer’s petition they issued refusal’s document & sometimes obedient document which must have inspired local peasants to obey a new landowner. The documents confirmed the rights for those objects that later was called real estate. Peter the Great reformed the system of consolidation of the rights for realty with the purpose to stop abuses from the side of land lords in “prikaz”. Landowners turned into bureaucrats united in the Chambre of serf affairs. And the Justice-Colleague controlled them. Ingenious idea of the tsar-reformer was in full property’s rights’ consolidation’ in the registration of the rights for all kinds of realty in one department; in responsibility of the Justice establishments for controls. If compare that registration model with the present system of the registration of the rights for real estate, its sources become evident, they come from the Peter’s reforms. Katherine II delegated the registration to the court. Let’s pay attention that the registration of the rights for real estate in the court has been still existing in many countries.
Then the registration’s system had been changed. Notary had been carrying out the state registration since the second part of the XIXth century. Every court had its own notary. He or she kept the list of serf-affairs by realty, not by owners how it was before. The list consisted of four parts that included information about residences: Owners, limits of the rights for property, pawns, debts, etc. There is an interesting fact that now the state list has the same basis as the list of serf-affairs. After having registered deals in the serf-book the issued the special subscriptions, that confirmed the rights of private persons for realty. Notary system had been seriously criticized by the beginning of the XXth century. It had been reasonably told that the complicity of the system caused appearing many kinds of property, which were not legally fixed after certain persons. But the property belonged to them. Besides the conformable information wasn’t provided by the proper publications. To get out of that situation it was suggested to apply the system of mortgage, the registration’s system existed in west countries & in Privislinsley & Ostzeisky regions of the Russian Impair. In 1893 the first project of a patrimonial decree appeared. In had to confirm the mortgage system of registration there were other variants of a patrimonial decree. It was a big discussion on this problem. However, the project of patrimonial decree hadn’t been signed because of the historical events in Russia. Historical experience of Russia stayed uncalled for before the beginning of the economical reforms of the XXth century. But we can’t say that the registration of the rights for realty is something new for our country. We have a big experience that served as a basis of the development of the modern Russian Legislation. Russian historical experience defined the necessity in documents that confirmed the state registration of the rights for realty & for making deals with it.
The Changes, that had been in polities & economics after 1917, required to break off the system of the registration of the rights for the real estate which had been existed in Russia for centuries.
The ones, who wrote the Civic Legislation Book of the USSR January 1, 1923, in the footnote to the first article said that the property division into real estate & movable property was abolished together with private property. Of course, it was not necessary to register realty by the way it was in the countries with market economy. The state registration in the delegation of the rights for land & for buildings had not already been required. The stress was laid on following the forms of the deals required by a law. It is curious, that the real economic life afterwards made the soviet legislator come back to certain parts of the state registration of the rights for realty & for making deals with it. Sovnarcom of the USSR in 1935 confirmed “the State Act on termless (eternal) using the certain land by a certain legal person. Nowadays, we can’t forget that the state acts on land are valid & can be the main & sometimes the only approval of land belonging to one or another person. The documents, confirming the rights for land, were issued according to the land legislation. The characteristic of the soviet legislation was lack of the norms to the civic rights for land. Common relapses can be viewed in nowadays. So, the Land Law Book of Russia, ratified by the Russian Parliament, somehow tries to fix the state registration of the rights for land in parallel with the state registration of the rights for real estate, fixed by the civic legislation. Fortunately, the President of Russia didn’t let to ratify this completely meaningless legislative act. The Civic Legislation also fixed the necessity of the state registration of the rights for certain kinds of property. The Civic Law Book of the USSR, 196th confirmed the required registration in the executive committee of the Local Board of agreements that set an order of using dwelling’s premises & of expropriation the swelling. The 1991 in the USSR had formed the confused system of fixing the rights of citizens & legal persons for realty. They were registering separated objects not realty as a whole. Different state & local boards were responsible for the registration. The documents that confirmed the rights for the real estate, together with state acts on land must have been certificates, subscriptions & other documents with questionable legality. The market economy caused the need in the state registration of the rights for real estate.
It was said before that the authors of the First Legislation Book of the USSR considered private property as an essential condition for dividing the property into realty & movable one. Thus, private property for land was straight connected with a possibility of a civic turn of lands. The decree of workers’, solders’ & peasants’ delegates, January 27, 1918, abolished all kinds of land property, & forbidden the delegation of land & rights for using from one person to another. In other words a civic turn of lands was totally forbidden.
Aspiration to form the market economy inevitably stated a question to restore private property for land & to include it in a civic turn. Paradox is in the following, a modern Russian legislator is not successive in solving the conformable problems as against the soviet one. Having divided the property into real estate & movable one, he maximally limited private property for land & tried not to let a civic turn. However, in the conditions of real market economy it led to the confusions & different abuses. Private property & its turn required fixing the rights for realty. The conformable steps had been made. They were made within those approaches which were being used by a soviet legislator, t.e. new forms of documents that gave the rights for land, were confirmed. The term “real estate” was not being used again & the state registration was resulting in issuing the new documents for land. The decree ¹493 of the Ministers’ Board, USSR, September 17, 1991, “about confirmation of the forms of state acts on the rights for land property, inherited owning, eternal land using”; the Government Decree ¹177 of Russia, March 19, 1992, “about confirmation of the forms of certificates about land property’s rules; agreements about the rent of lands; agreements about temporary use of agricultural lands”. The decree ¹1767 of the Russian President October 27, 1993, “about regulation of the land relations & of agricultural reform's development in Russia” listed the documents that could have confirmed the lights for land. They have been still valid like the state acts on land issued according o to the USSR legislation. Invalid application of the old approaches to solving the problem of fixing the rights for realty is too evident to be proved. Sooner or Later the approaches should have been rejected.
The Civic Legislation Book of Russia gave the impulse for revival of the full state registration of realty in our country.
There is no point to list the articles in the Legislation Book where the state registration of real estate is written about, because of their big number. It is enough to tell that the articles set the rules that require the state registration for appearing the rights for realty & for making deals with it. Thus, the Civic Legislation Book of Russia made the state registration important. The 131 article in the Civic Legislation Book of Russia for the first time separated the state registration of the rights of real estate from the special state registration or account of the certain finds of realty. The new requirement is that just judicial establishments should carry out the state registration, not different organizations. The statement that the right owner can get a document about registered right or deal plays special role. Now a citizen or a legal person can get a certain document that confirms his/her rights & guarantees their preservation & realizing. We should remember that the Civic Legislation Book of Russia connected the new state registration of real estate with the ratification of the federal law about the state registration of the rights for realty & for making deals with it. Despite an acute need in this legislative act, it was worked out slowly. Therefore the forms of the state registration of the rights for realty & a requirement to present the information as a subscription from the forms to the persons, interested in it, were confirmed for realizing the conformable decrees of the Civic Legislation Book of Russia by the Russian President Laws: ¹293, February 28, 1996 “about additional ways of mortgage credit’s development”, ¹1270 August 27, 1996 “about confirming the order of presenting the information about state registration of the rights for real estate & for making deals with it”.
The situation had changed when in 1998 the federal law “about of the estate registration of the rights for real estate & for making deals with it” was ratified. The law required approving the Rules of keeping the estate list of the rights for realty & for the deals no later than three months before the law’s ratifying .
The Law’s realization would be impossible without carrying out this requirement. However, the Decree 219 of the Government of Russia, February is, 1998 “about confirming the Rules of keeping the state schedule of the rights for realty & for the deals with it “was signed after the Law ratification. What’s more, it turned out to be impossible to provide the conformable establishments with the documents essential for the state registration. It happened because of the technical reasons. The documents about the rights for realty were continuing to be issued according to the old legislation. No one questioned the legality of using it. The letters of the Federal Notary Chamber ¹175, May 16, 1998 & of the Justice Ministry of Russia ¹2790-PK, April 27, 1998 paid attention to those problems. By 1999 it was required to clear according to what legislation the documents could be issued; what documents were valid; & when to stop issuing them.
The Presidential Decree¹112, January 25, 1999 “about some acts of the Russian President, who lost the power; & about their changing” solved the problem of correcting the Presidential decrees according to the federal law “about the state registration of the rights for realty & for deals with it”. The question about documents confirming the rights for realty was also cleared. The first paragraph of the named normative act of Russia declared the basis decisions of the Russian President who regulated the state property registration invalid. At the level of legal acts the decisions of the Russian Government became the main regulator of the conformable relations. The Rules of keeping the state schedule for realty takes the central place among governmental decisions. The appendix ¹14 to those Rules declared the form of a certificate about the state registration of the rights. The paragraphs 71-80 in the Rules listed date that is subjected to be fixed in a certificate, & technical distinctions of the rights’ identification. Mow is not necessary to receive different forms of documents for certain kinds of real estate. There is no need for official registration of papers, confirming the rights for land. The norms concerned the confirmation of the structure of documents about the rights for land were not considered valid in the Presidential Decree. It doesn’t say that these documents can be issued parallelly with the certificate about the state registration of the rights. The norms were left valid to exclude contradictions with the third paragraph in the Decree & with the Governmental documents about the confirmation of the forms of papers about the rights for land. Another position would cause the violation of the rights for land of millions of citizens & legal persons who had gotten land in an order fixed by the law & had registered the state acts & certificates.
Annulment of the effect of issued documents about the rights for land wouldn't let talk about fair stability of the land market in Russia. The 3rd Paragraph in the Decree says that all documents about the rights for land, received before issue of certificates about the state registration, are valid, law practice has proceeded from the validity of the documents. It tells us again about the right position in the Presidential Decree. There are many court’s decisions which prove the belonging of land to the certain persons by the fact that the state acts for land were issued to persons according to the USSR legislation that was valid before.
For example, the Higher court of Arbitration of Russia in the suitcase ¹3 208/1 argued the cancellation of the decision of Smolensk court of arbitration & admitting the Mayer’s Decree ¹526, July 13, 1994, Smolensk, “about confiscation of land belonged to the limited partnership “Ergo” in Gagarin st” invalid by the state act A-1 ¹596085 for termless free use of the land , July 1, 1991. Besides, the court of arbitration didn’t analyze why despite Smolensk Mayer’s Decrees ¹225, April 15, 1992, & ¹809, December 23, 1992 “about providing land” the state act was not officially registered in one case, & there was no new property registered state act in the other case. The Presidential Decree ¹112, January 25, 1999 tells about validity of the state acts & certificates about the rights for land & does not concern the validity of a certificate about registered rights for other real estate. This drawback in the Decree should not be understood as invalidity of those certificates. If certificates were registered before issuing the certificates about the state registration of the rights according to the form, confirmed by the Governmental Decree ¹219, February 18, 1998, they stayed valid. There are court’s decisions, which have references to the common certificates. So, the Court of Arbitration in Kemerov rg, having tried the suitcase of the private company “Doka Firm” about recovery of the public limited company “Domostroitel”’s debts, rejected it, having made a reference to carrying out obligations by the defendant. However, the Federal court of an arbitration of the West Siberian rg. had changed the decision, satisfied the suitcase in the amount of a basic debt, because the selling-buying contract of the apartment didn’t get the state registration. Nevertheless, the Decree of the Higher Court of Arbitration of Russia ¹5308/97 about the case ¹A27-2-587/96 cancelled the Decree of the Federal Court of Arbitration of the West Siberian rg, left the Decision of the Court of arbitration of Kemerov rg in the effect. The Higher Court of Arbitration of Russia explained its position by the fact that the deal was registered in July 17, 1995, & the certificate about the property right for the real estate was issued to a plaintiff. The Decree didn’t set an exact date when they stop issuing the documents about the rights for land & the state registration of the rights according to the old forms. It happened, because they didn’t put the federal law & de facto decision of the Russian Government into effect within the fixed terms. The Russian President corrected the mistakes of the Russian Parliament & Government. The mistake of the Parliament was to set unreal terms of putting the federal laws into effect. The mistake of the Government was its sluggishness. The President highlighted in his Decree that old forms of documents were issued before issuing the certificates about state registration of the rights according to the form that was confirmed in the Governmental Decree ¹219, February 18, 1998. So, we could draw a conclusion that the terms of putting the Decree ¹219, February 18, 1998 into effect would be different. It is not possible to consider the situation with the documents that confirm the state registration of the rights for land & other realty in all regions of Russia within an article. There is a point to characterize the situation in a region. The Law of Moscow region, February 1, 1996 “about an integral system of the state registration of entrepreneurs, property rights, & deals on the territory of Moscow region” is the main regional legislative act that regulates the state registration of the rights for the real estate & for deals with it. It should be taken into account that the Law has been fulfilled with inputs & changes. The law regulates the activity of the Moscow Regional Chamber of Registration. In particular, the chamber should issue the certificates about the state registration of rights. The Chamber consists of the Central department, territorial representations & branch offices. The Law ratification means that Moscow region started building a state registration system of the rights for realty earlier than the Russian Federation. It put a serious stamp on applying the federal legislation in Moscow region. The Federal Law “about the state registration of the rights for realty & for deals with it” has been put into effect since January 31, 1998. The state has registration of the rights for realty has been made exclusively by the . the Moscow regional Chamber of Registration since then. The Moscow regional Notary chamber, the Moscow regional Chamber of registration & the land resources Committee wrote an informational letter ¹109/2-18, RP-274, 381-6, March 5, 1999, “about the Presidential acts which lost the power & about their changing” which was approved by Justice Department of Moscow rg. The letter says that the documents about the rights for property issued before January 31, 1998, are considered valid if they are not registered in the Moscow Regional Chamber of Registration. The certificates about the state registration of the rights that are issued by the Moscow Regional Chamber of Registration & had the structure confirmed by the Government in February 18, 1998, has been considered valid since January 31, 1998. In some cases, the land resources committees were stated to stop issuing documents, that confirmed the rights for real estate, in particular, it was written in the decision ¹651 of Zheleznodorozhny Mayer March 21, 1996 “about the state registration of the rights for property & deals with it”. The new structure of the certificate was approved later than the Federal Law was put into effect. In other words, the Governmental decision had a reverse power. It couldn’t be considered right. However, no one questioned it . the example of Moscow rg showers that there is a specific situation with the property documents in every region of Russia.
The problem about the documents, that approve the state registration of the rights for realty, has the rich historical past. At the present, this problem has been solved after the long & contradictory process.
However, when the realty arguments arise the history of the legislation development & the practice of using it could not be just the historical past but strong legal means for regulating the conflict.
That’s why we hope this article could be useful in law practice.