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Fundamentals of Municipal Land Utilization in Moscow
Dmitriev A.V., head of the department for registration of land legal relations of the Moscow Registration Committee
Today the land in Moscow is a state property, which is divided into the federal property and property of Moscow as a subject of Federation. The charter of Moscow supposes appearance and presence of private owners of land within the city. The Moscow city Duma has passed two laws on the introduction of private property on land on the territory of Moscow in two territorial units — Zelenograd and special territorial district - Moscow - city. The first law " On territorial unit with the special status — "Moscow International Business center "Moscow - city" enables acquiring of the property laws on land under the results of investment activity. The second law " On experiment on sale of the land lots in Zelenograd " concerns a possibility of acquiring of the land lots on public tenders by legal entities. For development of this law there was a governmental order of Moscow dated 12.10.99 ¹950 "On sale of the land lots in Zelenograd ", where the enumeration of the marketed land lots and order of their sale is described, as well as the standard price of land in Zelenograd.
According the data of the legislative acts private property on land in Moscow is already possible, but the practical realization of introduction of a private property on land is delayed due to technical reasons. There is no uniform codified normative act in the field of regulating land legal relations in Moscow, therefore at a practical solution of any agrarian question it is necessary to know some establishing normative acts in this area. The following acts, except for already mentioned above, can be possibly referred to them in Moscow:
1. Law of Moscow "On bases of stipendiary land use in Moscow".
2. Order of the vice-mayor of Moscow dated 02.03.92 ¹110-ovm "On rent on land as the main form of the land-legal relations in Moscow".
3. Order of the mayor of Moscow dated 18.12.92 ¹571-om "On the order and conditions of conducting of competitions on grant in long-term rent of the land lots in Moscow ".
4. Decree of Moscow dated 25.01.94 ¹77 "On course of operations on registration of the land users and ensuring of collection of land payments".
5. Order of the mayor of. Moscow dated 26.09.94 ¹471-om "On payments for the right of making contract of land rent in Moscow".
6. Order of the mayor of Moscow dated 24.05.95 ¹254-om "On supplements and improvements to the Order of the mayor of Moscow dated 26.09.94, ¹471-om".
7. Order of the mayor of Moscow dated 26.08.98 ¹857-om "On the order of exemption in Moscow of the land lots and, thus, refund of the caused average general costs".
8. Order of the mayor of Moscow dated 25.09.98 ¹980-om "On the rent charge for land in Moscow".
9. Order of the mayor of Moscow dated 08.04.97 ¹273-om "On ordering of preparing of the preliminary documentation for conducting constructional works in territory of Moscow and on collecting the set of documents transferred to the investor for these purposes".
There is no establishing federal act in Moscow defining precisely and uniquely the procedure of differentiation of plants of a state ownership on land between Russian Federation and the subject of Federation. By the law of Russian Federation dated 15.04.93 "On the status of capital" it is established, that plants of the federal property in Moscow are the land lots, on which buildings are constructed, where are placed the supreme bodies of legislative and executive authority of Russian Federation, General Prosecutor's office of Russian Federation, Central bank of Russian Federation, Pension fund of Russian Federation.
In the other Federal act of Russian Federation "On a federal railway transportation" the concept "lands of federal value" is introduced. However patterns of ownership are established by articles 8, 9 of the Constitution and paragraph 1 of an article 212 CC Russian Federation and such aspect of the property on land, as the property on lands of federal value, is not stipulated by the data of the legislative acts. Therefore term "Lands of federal value" does not establish the legal title on land, but only defines a significance of plant in a system of federal relations of production.
It is not possible to consider the Decree of the President of Russian Federation dated 16.12.93 ¹2144 "On federal natural resources" a basis in a problem of differentiation of the property on federal land and land of the subject of Russian Federation, as the given Decree declares only a possibility of reference of different categories of the land lots to the federal property, and the concrete differentiation refers on the future.
On the other hand, at a federal level there is a definite legislative solution of problems of accomplishment of the proprietary rights on federal lands in a part of grant and exemption of urban lands and lands of other settlements. In spite of the fact that the appreciable part of articles of the Land Code of RSFSR of 1991 was declared invalid by the Decree of the President of Russian Federation dated December 24, 1993 ¹2287 "On correspondence of land legislation of Russian Federation with the Constitution of Russian Federation", a series of acting papers LC RSFSR of 1991 in part "lands of settlements" regulate a problem of accomplishment of functions of the owner of federal lands in cities and other settlements. In particular, in an article 70 LC RSFSR of 1991 it is established, that all lands within the limits of urban, settlements boundary and boundary of agricultural settlements are under the jurisdiction of urban, settlements and agricultural Councils of the People's Deputies (in view of the Decree of the President of Russian Federation dated 24.12.93 ¹2287 — under the jurisdiction of organs of local management).
The acting civil local law does not stipulate such proprietary right, as jurisdiction, therefore would be possible not to take it into account in a context of the order of landownership. However an explanation of this term can be found in the text of the Land code of RSFSR of 1991 in article 19 (it is invalid according to the Decree of the President of Russian Federation dated 24.12.93 ¹2287), which establishes, that to support of municipal councils of the People's Deputies refer: grant of lands in life heritable possession, termless use, transferring them in property and rent, and exemption for state and social needs. It is necessary also to mark, that usage of lands of cities and other settlements is realized according to their general plans and drafts of design and building (article 73 LC RSFSR of 1991). This demand is quite logical, as the general plans of cities and other settlements define main directions of usage of their lands for industrial, housing and other construction, accomplishment.
With the adoption of a new Land code of Russian Federation and Federal act "On state and municipal lands" other order of legal regulation of a problem of accomplishment of the proprietary rights on federal lands disposed within the limits of urban and other settlements is possible. However now normative - legal regulation of problems of grant and exemption of lands within the limits of Moscow city includes accomplishment of these competencies of the Moscow urban management (see The decree of the President of Russian Federation dated 29.12.91 ¹334 "On additional authorities of control bodies of Moscow on a phase of conducting a radical economic reform").
The double meaning which is present in a problem of differentiation of lands on federal lands and lands of the subject of Federation put the land users in a difficult situation at registration of the rights on land on a railway territory. Very frequently railway transportation companies take their own decisions about grant of their lands in use to the third persons, without asking the permission of the Moscow urban management, Moscow committee on land in particular.
Thus the firms of a railway transportation base the right to realize the order by the land lots on article 5 Federal acts of Russian Federation "On a federal railway transportation", but the given article speaks only about legal power of usage, instead of order. Moreover, in paragraph 2 of article 5 of the given law of Russian Federation the legal regulation of transport lands, taking into account the demands of land legislation of Russian Federation is stipulated. And lands of industry and transport in a composition of urban lands according to article 70-71 are not eliminated from the jurisdiction of urban authorities.
The judicial arbitrage practice solves the given problem mainly in favor of the fact that within the limits of city the functions of grant and exemption of lands are under the jurisdiction of the Moscow urban management.
The main form of land use in Moscow is the rent of land (order of the vice-mayor of Moscow dated 02.03.92 ¹110-ovm "On rent of land as the main form of the land-legal relations in Moscow"), and for commercial organizations— the rent of land (order of the mayor of Moscow dated 18.12.92 ¹571-om "On the order and conditions of conducting of competitions on grant in long-term rent of the land lots in Moscow").
The right on land is established for a land user, land tenant or leaser by a decision of the Moscow urban management as the governmental order of Moscow or order of the prefect of an administrative district, or solution of a urban (district) commission on grant of land and town-planning regulating (see articles 28-29 LC RSFSR, article 15 of the law of Moscow "On bases of stipendiary land use in Moscow"). This administrative act defines to whom is granted the land lot, address and location of the land lot according to the plan, legal title on land (termless use, life heritable possession, temporal use or rent), period and special conditions of land use.
The right on land, established for the land user, land tenant or leaser is certified either by a rent contract on land, or agreement on gratuitous temporal use made out by the Moscow land committee, or testimony on constant (termless) use and life heritable possession which is given out by Committee on registration of rights. On behalf of the owner in a part of registration of the rights on land in Moscow acts the Moscow land committee (paragraph 3 of an article 125 CC Russian Federation and paragraph 3.1. of the order of the mayor of Moscow dated 07.10.96 ¹371/1om-1-30/1967).
The order of registration of the rights on land is regulated by the decree of Moscow dated 25.01.94 ¹77 "On course of operations on registration the land users and ensuring of collection of land payments".
For registration of rights on land in Moscow It is necessary to address a territorial join of regulating of land use (TJRLU) of the Moscow committee on land at the location of a particular plant. The usual practice of registration of the rights on land in TJRLUs includes the following set of documents:
1. Application (declaration) of the land user at the name of TJRLU of the Moscow committee on land with the request to issue the land-legal relations on a particular site with the enumeration of documents enclosed to the application (declaration). At a new grant of land the applicant files the application (declaration) after the administrative act on land is issued.
2. Historical note signed by the land user and concerning problems of usage of the land lot with the indicating of all who owned the right on it before the land user.
3. Administrative document on land as a decision of the Moscow town executive committee on requisition of land or decision of the Moscow urban management.
4. At a new grant of the land lot the appropriate initial - licensing documentation prepared in Moscow committee on architecture.
5. Duplicate of the technical passport BTI, form 1à, the floor plan of a building with an explication.
6. Constituent and registration documents of the land user.
7. Documents reconfirming rights on a building: the testimony on the right of economic support, operating controls, rent contract etc.
8. Photocopy of the passport of the authorized representative.
All documents are filed in duplicate as the certified copies.
The right of termless (constant) use is made out mainly by organizations and firms, which are granted with the given right according to federal or urban laws. For example, it is true with the reference to state educational, scientific and medical establishments. Thus, if the legal entities are released according to the laws of Russian Federation and Moscow from payment of the land tax, in the Moscow committee on land the agreement of temporal gratuitous use can be made with them according to their will. As according to paragraph 14 of an article 12 of the Law of Russian Federation "On land payments" the lands submitted for ensuring of activity of public authorities and control, are released from payment of the land tax, with all establishments and departments which are part of a system of federal authorities, the contracts of temporal gratuitous use can be concluded.
A commercial organization can receive a land lot in a long-term rent on tenders (competition) on sale of the right of making a contract of rent of land, or as a result of the agreement of disposal of the right of the rent of land. The registration of the rights on land happens also at a new owner of a building at acquiring by him of the given plant of the real estate as a result of the agreement of disposal.
At a federal level the common procedure for concluding a treaty on tenders is established by articles 447-449 CC Russian Federation. In Moscow the grant of land in rent on the conditions of competition is regulated by the order of the mayor of Moscow dated 18.12.93 ¹571-om "On the order and conditions of conducting of competitions on grant in long-term rent of the land lots in Moscow" with consequent supplements and modifications to it.
The temporal provision on the order of grant of the land lots in long-term rent on the basis of competitions affirmed by the order of the mayor of Moscow dated 18.12.93 ¹571-om, provides conducting competition on grant to legal and physical entities of the land lots on the rights of long-term rent for consequent construction (reconstruction, restoration) and maintenance of plant. The purpose of a competition is the choice of the entity, which can offer the most favorable for the city conditions of buying the right to conclude a contract of rent of land, and consequent maintenance of ground. The land lots are submitted to competition by a commission on grant of the land lots and town-planning regulating at the Moscow urban management. The competitions are conducted by both urban and district commissions (at prefectures).
A realtor corporation is the organizer of a competition on behalf of the Moscow urban management.
The competitive documentation on each land lot, which is prepared by Moscow committee on architecture and Moscow committee on land, includes the following documents:
- Conditions of transmission of land in rent;
- The contract draft of rent of land;
- The town-planning task for engineering the of a project-budget documentation and accomplishment of construction;
Coordinated preliminary technical factors on connection to the urban communications.
After the publication of the information report about competition on sale of the right of rent of land everybody wishing to participate files when due an application with the pre-pay and warranties of a credit institution.
A commission on grant of the land lots and town-planning regulating, which defines the winner, treats the results of a competition. Criterion detecting the winner is not only the greatest price offered by a participant of the competition for the right of making contract of rent of land, but also real ability of the future tenant farmer to effect its opportune town-planning assimilation.
By the results of the competition the commission makes a decision, which is basic for a conclusion by the Moscow land committee of the rent contract of land with the winner of the competition. The contract form, offered to a conclusion of long-term rent of land is standard and affirmed by an appropriate body of the Moscow town management.
There is a problem of registration of the rights on land at transition of the property right to a building. Establishing standards of the substantive law here are article 37 LC RSFSR and article 552 LC Russian Federation. Thus by virtue of a place of the land law in a system of the Russian law and specificity of the land-legal regulation as a whole article LC RSFSR is defining, crucial.
In article 37 LC RSFSR it is said, that at transition of the property right on a structure or a building the right of use of the land lot transfers. As in the given edition of the article nothing is said about legal power of possession, and only the legal power of use is mentioned, only the possibility of economic or other usage of the land lot under maintenance of a building according to the earlier established special-purpose designation, is transferred to the new owner, but not the right on possession of owned by a previous owner of the given asset, i.e. earlier established legal title on land, for example, as termless constant use or long-term rent.
As in article 1 of the Law of Russian Federation "On land payings" payments for the land use are established, the owner of a building is obliged to pay land payings for the use of a land lot. But the foundation for installation of land payings is the document certifying the rights on land (article 15 of the Law of Russian Federation "On land payings").
Therefore it is possible to say, basing on the analysis of article 37 LC RSFSR, articles1 and 15 of the Law of Russian Federation "On land payings", that to the new owner of a structure, the buildings are transferred with the right of registration of the land-legal relations. But the given right will be made out by a solution of the Moscow urban management according to the legal personality of any particular land user. For example, for an official body of education the right of constant (termless) use, for a person — the right of life heritable possession, and for a commercial organization — the right of rent can be made out, etc.
The necessity of registration of the legal title on land after committing the agreement of disposal of a building depending on a legal status of the subject is visible on an example of sale of a building, owned, for example, by a kindergarten. Initially the land lot of the large size depending on the given special-purpose designation of a site is selected for the purpose maintenance of a kindergarten; its sizes are governed by appropriate town-planning standards of building linked to a balance of urban territories, demands providing socially secured conditions of vital activity of the man in city, protection of health of the growing generation, fire-fighting and other safety requirements, standards and rules of organizing of systems of an upkeep and placing of plants of social infrastructure (see governmental order of Moscow dated 25.01.2000 ¹49 "On the affirmation of standards and design rules of a design and building of Moscow MGSN 01.01.99").
However, if the buyer of a building is, for example, a financial institution, maintenance of a building for a bank does not require according to town-planning standards such large land lot (see Governmental order of Moscow dated 06.05.97 ¹324 "On the affirmation of urban building standards of projection of design and building of Moscow MGSN 01.01.99"), therefore according to the articles 1 and 15 of the Law of Moscow "On bases of stipendiary land use in Moscow" and on the basis of an article 53 Town-planning complex the right on the land lot having sizes, necessary for its usage are registered.
The analysis of paragraph 3 of an article 552 CC Russian Federation also says that the new owner of a building acquires the right to use land, i.e. right of registration of the land-legal relations.
It is necessary to remember, that the owner of a building can gain free-of-charge right to use land found immediately under a building necessary for their usage.
The urban lawgiver in article 1 of the Law of Moscow "On bases of stipendiary land use in Moscow" has proposed a concept of the indivisible land lot which includes a site under a building and a neighboring site, necessary for maintenance of the occupied building. The size and boundaries of this neighboring lot in the case of sale of a building is established by the authorized bodies of the Moscow urban management in the view of town-planning and other standards.
The neighboring land lot is granted for money, including cost of the right on making contract of rent of land.
Another possibility of acquiring of the rights on land in Moscow — is buying of rent of land as a result of the agreement of disposal of the given right. A possibility of the leaser to conclude such agreements are stipulated by article 128, paragraph 2 of article 129, paragraph 4 of article 454 CC Russian Federation in the view of presence of a consent of the lessor of urban lands according to article 615 CC Russian Federation.
In Moscow the consent of the lessor of urban lands is given by a competent body of the Moscow urban management - the Moscow land committee according to the Law of Moscow "On bases of stipendiary land use in Moscow".
At accomplishment of construction in Moscow by a way of concluding an investment contract with the Moscow urban management, it is necessary to take into account that by the acting normative acts of Moscow the possibility of offset is stipulated of a whole amount of the cost of share in building transferred by the investor to the city at definition of a payings for the right on making contract of rent of land (redemption), i.e. at equality of these two payings an investor can select either payment (transmission) of a share of city, or paying of the right of rent (see article 6 of the Law of Moscow "On bases of stipendiary land use in Moscow", order of the Mayor of Moscow dated 08.04.97 ¹273-om, paragraph 9 of the common governmental order of Moscow and Russian committee on land dated 04.06.96 ¹458-49).
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