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

Issue 2-3 (3-4) 2000

Rights Are neither Taken Nor Given - Rights Are Registered (notes of the state registrar)

Ursov V.N., chairman of Moscow city committee on state registration of real estate rights and transactions related to it

1. Who needs this state registration?

We will try to answer this question by a story from the book of V. Guiliarovski "Moscow and the Muscovites":

"This Schpeier, as a rich landowner, was admitted on balls to V. A. Dolgorukov, at the first acquaintance has fascinated the old man by his courtesy, and is then visited him during the receptions, in the cabinet, and once has asked the permission to show the general - governor's house to his familiar, English lord, who has arrived in Moscow. The prince has allowed, and on the other day Schpeier has brought the lord, has shown, in attending of the official on duty, all the house, court yard and even paddocks and horses. The official kept silence, as understood nothing in English. In two days, when Dolgorukov was absent, at the entrance of his house a cart stopped with chests and suitcases, after it in a carriage came the lord with the secretary - Englishman and has ordered to carry the luggage directly to the cabinet of the prince I am not aware of the details of this scandal, rumors were different. It is only known, that the case was ended in a security room of general - governor's office.

The Englishman was rowing and proving, that it was his own house, that he has bought it from the holder, nobleman Schpeier, for 100 thousand roubles with all stock and has arrived to live in it. As an evidence he has presented the bill of sale certified by the notary, which was fully paid. This fraud of Schpeier was not examined by the court, it was hidden, and what was the way to calm the Englishman remained unknown. It turned out, that on 2nd Iamskaya street the false office of the notary was arranged for one day, where the sale of a house was arranged... "

Why such story could take place? In Moscow, moreover on the Tverskaya street!!! Yes because the receiving of the answer on questions" To whom belongs this building? To whom belongs this real estate? " is not such simple and trivial procedure as a matter of fact. Who should respond on these questions, who registers the right on land? One of "mechanisms" invented by mankind in this area is state registration of the rights.

To be or to not be that is the question, concerning the right. This question is answered by a state registration according to the law:

"State registration of the rights on the real property and transactions with it (further also state registration of rights) the juridical act of confession and confirmation by the state of appearance, limitation (burdening), transition or cease of the rights on the real property according to the Civil Code of Russian Federation ".

"State registration is the unique evidence of existence of the recorded right. The recorded right on the real property can be contested only judicially" (article 2.122 - FL).

As a matter of fact state registration is a system of legal, organizational, procedural measures providing a uniqueness and propriety of records about the rights on plant of the real estate. The system of state registration is a system of state warranties for the legal owners and for all participants of the market of the real estate. That is why a situation described above by V. Guiliarovski, is impossible at an operating system of state registration of rights on the real estate.

The record about state registration it is that "the most definitive paper", about which the professor from "The Dog's Heart" spoke.

2. Can not be moved, but must be registered

During centuries a man has not learned to manage without the real estate. As well as according many other indices (for example, consumption of energy) the level of usage of the real estate characterizes a level of development of the society. In many respects the man became the man, when he has found dwelling began to use natural shelter, or to build a residential real estate appeared. Before it was possible to speak about usage of the land lots, as to the real estate. Caves - the first buildings were used both for housing and for the elementary home production.

"My native country is wide, There is a lot of forests, fields and rivers in it".

What has changed our forests, fields and rivers? Why they suddenly became the real estate? Everything is as usual. Among "forests, fields and rivers" the man has appeared. And not only the man but people operating these forests, fields and rivers and so on. And between these people there were relations concerning forests, fields and rivers. There were legal relations.

But these relations are also vital for the people, and it stipulates the necessity of regulation and appropriate regulation of these relations. Therefore the following step registration of rights.

It is possible to make a schematic road of a mankind as follows:

  • The usage of land and everything linked to it;
  • Land and everything linked to it;
  • The right of use (possession and order) of land and everything linked to it;
  • The registration of the right of use (possession and order) of land and everything linked to it;
  • Registration of other things not necessarily linked to land, but being the real estate by virtue of the law and registration.

Now it is possible to use two definitions of the real estate:

1) The physical real estate - it is all inextricably related to land;

2) Legal real estate - it is everything linked to special conditions of registration (vessels etc.).

According to the Civil Code of Russian Federation (article 130. Real movable things):

"1. To the real things (real property, real estate) the land lots, sites of a subsoil isolated aquatic plants and everything, that is strongly linked to land refer, i.e. plants, which can not be removed without disproportionate damage to their assigning, including forest, long-term plantations, building.

The subjects of state registration - aerial and maritime vessels, inland vessels, space plants refer also to the real things. Other asset can be referred to the real things by the law".

According to the federal Act on state registration of rights on the real property and transactions with it 122-FL:

"... The real property (real estate), the rights on which are subject to state registration according to the present Federal act, the land lots, sites of a subsoil isolated aquatic plants and all plants, which are linked to land so, that their removal without disproportionate damage to their assigning is impossible, including, building, residential and uninhabited premises, forest and long-term plantations, firms as property complexes ".

Actually two definitions of the real estate reflect the historical development of treatment of the real estate from prevailing of a physical, natural element (connection with land) up to prevailing of welfare aspect (reference to things subjects of registration). The concept of the real estate leaves off land and flies up to space heights of intellectual achievements of the law.

In particular, from this duality of comprehension of the real estate there is a rather paradoxical situation, when the plant of incomplete construction (the fact that it is inextricably linked to land, does not call doubts) becomes the real estate (legally) only after state registration.

3. Three main problems of state registration WHO, HOW and WHY

What signifies to realize state registration? As a matter of fact matters it means to answer three main questions:

1. Who is the legal owner (description of the subject);

2. What is a legal object (description of a plant);

3. Why legal bases (rightestablishing documents).

The detailed answer on these questions, the answer according to the statutory procedure provides, warrants univalent correspondence between all constituting of a triade (plant, subject, right).

How can a system of registration answer the request for registration?

So, actually all answers are "yes" and "no".

4. Yes yes, no no

"And be your word: "yes, yes", "no, no"; and that over it, that is from devil" (Mathew 5:37).

Rarely someone from the citizens enjoys the dialogue with "the bureaucratic machine". In this respect " the registration machine " is unique in many respects. Practically all procedures conducted at registration are rather detailed in the law and by that way the field for possible "bureaucratic freedoms " is narrowed (someone will tell: bureaucratic arbitrariness). Besides a general requirement of the answer on the applications of the citizens, for the establishments of justice on registration of rights are established rigid periods for all operations, and number of operations is not big.

Actually the application for registration can call a reaction of only two aspects of answers yes and no. Either registration, or refusal, possibly with prolongation of the period, but either yes, or no. Moreover, there is a rigid period:

"State registration of rights is effected not later than in a month's time from the date of filing the application and documents necessary for state registration".

"State registration can be suspended no more than for one month"

"State registration can be suspended no more than for three months on the basis of application in a written form of legal owner or a person, authorized by him having the properly made out letter of attorney ". (article 13 122-FL).

Summarizing we shall tell: The right becomes the right only after registration, and the state registration of rights is a state warranty of rights.