"Real Estate and Investments. Legal Regulation", the journal

Issue 2-3 (3-4) 2000

Th Land Property Complex of Russia as the Object of Regulation

Saj S.I., head of the Russian Federal Service of Land Cadastre

In historical background of the relation to property, as the majorants of economic type of the society, underwent repeated modifications stipulated by the desire to overcome the contravention between scarcity of resources, involved in production, and an increasing human needs. In searching paths of maximization of productive forces effectiveness the society periodically transformed patterns of ownership on factors of production and mechanism of a state participation in the government of economy.

The relations of landownership have always been the central part of social and economic relations.

The Earth represents the unique natural resource. It is a unique place of mankinds existence, main and unique factor of creation of its productive forces participating in creation of all other products and goods. Scarcity and the irretrievability of this resource results in objective necessity of public regulating of the laws and conditions of land use.

At the same time, in market economy the land acquires the form of goods and can be a subject to the property agreements, the results of which can restrain interests of other people and societies as a whole. Therefore introduction of the market relations shows heightened demands to a system of the state registration of land lots, control over their legal status and acting encumbrances, turnover of land and its rational usage.

That means, that a part of the income, which is capable to generate the land lot by virtue of the location, natural properties and possible improvements which are not stipulated by economic activity of the holder itself, can serve a source of public needs sufficing and be deducted as rental payings. It in turn requires the monitoring of cost characteristics of land lots as factors of production and plants of investment.

And, at last, land is a basic compound of any real estate. According to article 130 of the Civil Code of Russian Federation we refer to real things (real property, real estate) land lots, sites of subsoil, isolated aquatic plants and everything, that is strongly linked to ground, i.e. plants, which can not be removed without disproportionate injury to their assigning, including forests, long-term green plants, buildings.

The legislatively established definition of the real estate has common character and does not contain rules and features which can help to distinguish certain plants of the real estate in the real property in general.

That is the reason that now it is impossible to isolate such plants of the real estate, as sites of subsoil, forest and long-term green plants. Obviously, therefore the operating real estate market is restricted to plants of the real estate, isolation of which is possible on the basis of a usual business turnover. To such plants of the real estate refer: land lots, buildings (primary plants of the real estate), apartments, residential and uninhabited premises (secondary plants of the real estate).

This situation is indirectly legislated by the law " On state registration of the rights on real property and transactions with it " (Article 12, paragraph 6), which establishes, that the Uniform state registry of the rights consists of separate parts which contain records about each plant of the real property, and titles of those parts are land lots, building, apartment, premises, and indirectly are mentioned "other plants of the real property strongly linked to the land lot ", and also " other plants which make part of buildings ".

Thus, the practical significance for the operating real estate market of such plants of the real estate, as land lots, buildings and premises (flats), and also legislative determinacy of rules of state registration of the rights on them allows to make a conclusion that problems of regulating of the relations between the owners of these types of plants of the real estate should be first of all solved. In this connection there is a necessity of installation of rules, on the basis of which land lots, buildings and premises (flats) can be isolated as the plants of civil rights.

The law establishes that the rights on the real things belong to state registration (Article 131 of the Civil Code of Russian Federation). Thus plants of the real estate have the dual nature: on the one hand they are legal objects, and on the other they are the physical plants, strongly linked to land, (directly or through plant, the part of which it is, and also pure land lots. To define concept " plant of the real estate ", it is necessary to define, whether any land lot or plant, strongly linked to land, should be considered as plant of the real estate. It will show, whether it is possible to select the land lot sized of 10 sq.m. for the purpose of housing construction, to consider as a subject of the transaction 1 sq.m. of living space, to sell a building necessary for ensuring of a work cycle of operation of firm etc. In all these cases a possibility of selection of plant of the real estate depends on its assigning.

Thus, the following refer to the factors permitting to select from a set of the real property a separate plant of the real estate: presence of the right, possibility of physical isolation and assigning of plant. According to it the plant of the real estate is a legally defined part of the real property, which thus is isolated or can be isolated physically to the extent providing a possibility of its usage according the assigning.

It follows from the given definition, that the land lot of 10 sq.m. can not be plant of the real estate assigned for capital construction, but can be plant of the real estate, which is extracted from a composition of one land lot and sold to the owner of a neighboring land lot.

The question on the extent, to which the isolated property plant can be used on assigning, requires self-supporting and legislative regulating, for example, on the basis of the law " On the forming of plant of the real estate ".

As the land is a substance of the real estate, property legal relations linked to the real estate, are defined first of all by forms of the landownership. It is not by chance that the problem of the right of landownership during the twentieth century was and for the present remains in our country an object of bitter confrontation of different political forces in desire to influence on social and economic system of future Russia.

After bolsheviks nationalization of land it was in the monopoly property of the state during more then 70 years. The constitution of Russian Federation adopted December 12, 1993, has restored the right of private property on land. Under the Russian legislation the owner possesses the rights of possession, usage and dispose of the asset.

In the foreign practice the list of authorities concerning land includes 8 elements:

  • The right on the income, which is given by the realization of the right of use and dispose of land;
  • The right on disposal, consumption, expenditure at own discretion down to an extermination of a thing (except for land);
  • Warranty from expropriation, or right on security;
  • The right to transmit land lots;
  • Termless possession;
  • Inhibitory actions to use land in harm to other people;
  • Possibility of exemption of a lot as a payment for the unpaid debt;
  • Residual principle, i. . existence of standards and rules providing restoration of the outraged rights.

Above mentioned and other elements describing concept of landownership, in combination with the rights of possession, use, disposal suppose existence of about 1500 variants of the property rights.

Therefore, according to world practice the concept of the landownership should be considered as a complex of the land and property rights regulating particular conditions of land use. Strictly speaking, not land as a physical object, manned part of our planet is transmitted to the holder, but a complex of the property rights on socially useful usage of the given site. At any social and economic formation the society remains the principal owner of a territorial - land resource delegating to particular land users separate functions and open for modification rights on usage of the land property. Therefore all system of the land-property relations wears mainly limitation character restraining the rights of separate owners in a favor to public interests.

The land-property relations are a part of a special social and economic category not only because of specificity of land as unique plant of universal multiple-objective interests, but also by virtue of a duality of state of the land fund participating in public reproduction as the natural factor and goods at the same time. According to this the set of public interests concerning land can be divided into two groups: 1) interests concerning efficient assimilation of natural properties of a land resource (technological aspect); 2) interests concerning money-goods parameters of the landownership (social and economic aspect).

At resource allocation the first group of public interests is guided by parameters of functional - economic structure of land fund: scales, proportions and priorities of its allocation depending a degree of economic assimilation; aspects and categories of lands; types of their target usage; intensity of maintenance and productivity of lands, their geological and ecological state. The public and individual interests of this group will usually be synchronized with maintaining of the most efficient functional - economic structure of the territorial land fund, and the originating contravention wear non-antagonistic character and are solved on the basis of market self-regulation.

The second group of public land interests is directed on social and economic structure of the landownership depending on composition, combination and proportions of its particular forms. Here we talk about proportions of the landownership of the state, local authorities, different type of enterprise structures, different groups of the population, foreign land tenants. Thus the interests of the society are oriented on optimal, from its point of view, usage of land resources, and interests of the owners on giving to them the acquired property rights on land irrespective of effectiveness of its maintenance. From here result a contravention between interests of different levels and groups of the population followed by serious conflicts.

In the sphere of economic assimilation of land resources the public interests of the first group are focused on conservation and accruing of useful properties of land as subject and means of production, or as territorial base for particular production. Here claims of the society as a whole and separate land tenant in a long-term perspective, as a rule, coincide. However from a position of present land tenure they often are in a conflict, as the tactical advantage of the present owner of land can result in economic, ecological and social losses for country today or in the future.

The second group of public interests directed on an effective utilization of land resources, is shaped within the frames of public and private claims concerning most productive and profitable of involving in the commodity production of useful properties of land and territorial resources, including favorable application of their rentcreating possibilities.

From the point of view of conservation of an ecological balance of a habitat of the people and the recovering of useful properties of an ecosystem, lost during economic activities, in the first case interests and associations concerning neogenesis of land resources as a natural component are seen, in second as specific goods.

In the first case the population of public interests forms the basis for the compromise concerning the purposes, problems, mechanisms and sources of finance of measures on conservation and augmentation of useful properties of land and territorial fund of a particular locale.

In the second case a subject of interests is the activity on maintaining on the due level commodity properties of the landownership by regulating price parameters on the land market, creating conditions for conservation of fluidity of the land lots, their efficient market turnover, conservation of the real cost form etc. Thus the interests of the society and a particular land tenant coincide in some positions, in others conflict. So, they coincide in conservation of a market price on land at a certain level, as a pledge cost, and they are not so harmonical concerning valuation of land with the purposes of its taxation.

At research of the foundation for inclusion of the land relations in a special social and economic category it is necessary to mention two important circumstances.

One of them is, that the land resource harmonically participates in all spheres of reproduction process. So, in a phase of the vital goods and resources production land is a part of costs, defining through the price parameters the magnitude of socially needed and individual fix costs. The retaining of rent by tax methods includes the land factor in the sphere of allocation, and the spatially - geographical and communication parameters of the land lot influence directions, intensity and running speed of the created product, providing involvement of the given factor in the sphere of distribution and consumption.

Thus, being plant of universal interests and "open" factor of a reproductive process the land-property complex becomes a central element of the public relations. The land relations move in the structure of public relations towards its base, become the governor of all remaining population of public connections and associations, including not only economic, but social - demographic, political and other spheres of public reproduction.

Other important circumstance is that a land resource, as a plant of the real estate can not be physically withdrawn and displaced, processed and dissolved in another production, which can be displaced, used and depreciated without any residual. This specific characteristic of the landownership allows keeping it in a focus of public attention and monitoring, to stipulate it by a complex of regulating demands and limitations. Thus the possibility to provide priority of public interests above individual always remains, the society has free-hand in modification of standards of land use and provisions on the rights of land tenants.

The indicated peculiarity of the landownership creates the objective reasons and technological possibilities for interposition of authorized bodies in correlation and mutual relation between people, originating from allocation, redistribution, usage and restoration of land resources. This interposition can have both - administrative and economic basis, to be more or less command-bureaucratic or liberal-market. But anyway the society remains the principal owner of territorial - land resources, regulating the land-property relations in different legal ways.

According the data of the State land registration, the land fund of Russian Federation constituted on January 1, 1999 1709.8 millions hectares (without the registration of inland waters and territorial sea). The socially-economic changes, initiated in 1990, in Russia have resulted in appreciable modifications in the structure of the land fund of the country, stipulated by the selection of the variety of patterns of ownership. According data of the state land registration, part of lands being in state and municipal property makes 92.4 % in the structure of land fund, or 1579.8 millions hectares. In the private property of citizens and their associations and legal entities la 130 millions hectares, or 7.6 % of all lands, including the property of legal entities 28.3 millions hectares (1.7 %) and the property of citizens 101.7 millions hectares (5.9 %).

The imperfection of legislative and normative base yet does not actually allow to differentiate state ownership on levels of control and to take into account in separate lands being in the federal property, the properties of the subjects of Russian Federation and property of municipal formations. The considerable of lands being in the state and municipal property is granted to the citizens in rent, life heritable possession and constant use, so it is actually behind the sphere of direct administration of government.

Out of 130 millions hectares of lands being in a private property, 126 millions hectares (97.2 %) are lands of agricultural assigning. On January 1, 1999 the share of these lands being in the property of citizens, has constituted 98.2 millions hectares (21.6 %) and in the property of legal entities 28.2 millions hectares (6.2 %). Out of remaining 327.3 millions hectares of lands of this category 319.5 millions hectares (97.6 %) is granted to the citizens and legal entities in life heritable possession, constant and time use or rent. We can make a conclusion, that the overwhelming part of lands of agricultural assigning now is held by the private land users, which are first of all subject of regulating action of the land - property changes.

The results of these changes do not bring optimism. The steady tendency of exemption of appreciable parts of productive lands from an agricultural turnover proceeds. Moreover, during the last years this process has even accelerated considerably. So, during 1971-1990 the common area of agricultural lands diminished by 8.2 millions hectares, and during 1991-1997 by 7.6 millions hectares. Most valuable part of farmland arable lands decreased during 7 years (1991-1997) by 7.4 millions hectares against 1.5 millions hectares during the 20-years phase 1971 - 1990.

The productive agricultural lands, as before, were used in building, placing of the transport communications, industrial firms etc. Despite of common slump in production in the majority of industries during 1991-1998 firms of a not agricultural profile got 1.6 millions hectares of lands, more then a half of which were agricultural lands. As monitoring of land shows, in most cases demands of firms about selection of additional squares were not an industrial necessity, but represented purely commercial interests of their principals linked to possibilities of consequent resale or renting of land. The current system of land payings does not stimulate the holders of land to effect its economical usage.

Serious problem of land use today is the aggravating contravention between interests of the land users and possibility of conservation of useful properties of land resources. The following data shows scales and sharpness of the given problem for modern Russian conditions, especially in the sphere of agricultural land use. On January 1, 1999 out of 190.6 millions hectares of agricultural lands, grounds, making part of lands of agricultural assigning, about 60 millions hectares are eroded, 40 millions hectares are salted lands, 26 millions hectares are moistened and swamped. From 1990 to 1998 the square of irrigated lands with good melioration state reduced more than on 30 % and drained on 60 %. Lands with unsatisfactory melioration state on irrigation systems now make more than 15 % and on draining systems - 24 %.

The special concern is a result of universal decreasing of the fertility of soils because of negative actions on lands and sharp cutting of amounts of works on their improving. For the last 8 years volumes of conducting of agrochemical measures have declined in 2.5-5 times, melioration in 5-7 times, importation of organic fertilizers in land decreased more than 2.5-3 times, mineral - in 4-5 times. The result is an exhausting of soils, especially of arable lands. The content of humus in them has reached extreme minimum level: 1.3 % in a non-black soil zone, 5 % and less in central black -soil areas. The accrued store of calcium in soils decreased to the minimum, soils became sensitive to the use of machines at operating of fields. The areas of acid soils sharply magnified, including black-soil lands, which have not undergone this process before.

Abusive usage of lands has resulted in lowering productivity of agricultural structures. So, according to data of the State land registration, productivity of grain crops on the average for 1986-1990 constituted 15.9 centner/hectare, for 1991-1995 14.8 c/h, in 1996 12.9 c/h, and last years less than 11 c/h. According the expert valuation only owing to cutting volumes of importation of mineral fertilizers we under-receive more than 4 billion dollars annually of agricultural production in a grain equivalent.

The serious worry is also about ecological state of lands. The inspections have shown, that about 5 millions hectares of agricultural lands are contaminated by radionuclides. Lands, close to all highways, at the lack of protective trees are intensively polluted by heavy metals which penetrate on a trophic circuit in the body organism of a human, producing different diseases. In many southern locales of the country the process of desertification progresses, being especially characteristic for Republic Kalmykia.

At the same time in a series of areas of Volga, Western Ural, Yakutia, Nenetsk autonomous area and in a number of other locales waterlogging of territories is a serious danger, and more than 2000 cities and other settlements, including such cities, as Moscow, St.-Petersburg, Novgorod, Novosibirsk, Rostov-on-Don, Saratov etc. are subject to it. All that shows the critical state of a land complex of Russia and its ecosystem in whole. Certainly, the indicated problems were not a surprise. They cannot be considered, as it is done by some politicians and journalists, as outcome of unreasoned destroying of an old command management system and its substitution by a more liberal market system of socially-economic regulating. On the contrary, the necessity of such conversions was historically determined by long-time accruing of the social and economic, political, ideological, natural and ecological contraventions which have become excessive, and clearly seen at the moment of total reforming of the settled social structure.

Other matter, that this reformation has better to say, declarative and superstructural character, than structural - basis character, differs by an extreme inconsistency and unpredictedness, what has resulted in a continuation of a difficult process of public perturbations. Land-property relations were in the epicentre of this process. Therefore the development of mechanisms and strategy of their regulating in modern conditions acquires substantial value for integrated development of the nation, ensuring of its economic and ecological safety.