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

Issue 2-3 (3-4) 2000

Issues of the Day Related to Documents Preparation of the Transactions With Real Estate Belonging to the State

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

In the given article two incidental points on the subject, marked in the title, are suggested for the discussion; the publications on this subject will appear in the following editions of a journal.

Application of the local law on lease of the real estate of scientific organizations and educational establishments

Now there are dissents about a possibility of leasing of the premises of educational establishments allotted to them on the right of operating control. The difference of positions is stipulated by a series of the contraventions being discovered in practice of application of the Law of Russian Federation dated 10.07.92 3266-1 "On education" and the federal Act of Russian Federation dated 22.08.96 125- "On higher and professional education".

Article 39 of the Law of Russian Federation dated 10.07.92 3266-1 "On formation" and article 27 of the Federal act of Russian Federation dated 22.08.96 125- "On higher and professional education" supposes leasing of the real property allotted to educational establishments. These provisions interfere with standards established by the Civil Code of Russian Federation and even by the Constitution.

Article 298 of the Civil Code of Russian Federation establishes that the establishments have no right to dispose of the asset, allotted to them. According to article 3 of the Civil Code of Russian Federation of its standards inclusive in other laws, should correspond to the Civil Code of Russian Federation.

By article 9 of the federal Act dated 12.01.96 7-FL "On noncommercial organizations" is established, that the rights of establishment on the asset, allotted to it, are defined according to the Civil Code of Russian Federation.

Article 2 (paragraph 2) of the federal Act "On noncommercial organizations" defines the purposes of creation of noncommercial organizations, namely social, educational, scientific, administrative; the leasing of asset is not the purpose of creation of establishment. The transmission in rent of premises allotted to educational establishments, offends against a principle of target usage of the asset, allotted to an establishment, that according to article 296 Civil Code of Russian Federation are the foundation for exemption of redundant, unused or used not on assigning asset.

The purpose of installation in the laws "On education" and "On higher and professional education" of the standards permitting to educational establishments to act as the lessors of asset, allotted to them, is the additional financing of educational establishments in a part of receiving the rent charge directly by the establishments. Now nothing interferes with a conclusion of the rent contracts according to the Civil Code of Russian Federation, where the lessor is the Ministry for state property of Russia, thus the rent payings will be transferred on the accounts of educational establishments, open in departments of federal treasury according to the governmental order of Russian Federation dated 24.06.99 689.

The ministry of the property relations of Russian Federation is the unique state authority, which, according to the governmental order of Russian Federation dated 04.12.95 1190, has the duty to realize control over the usage on assigning and safety of asset, being in the federal property. The conclusion of the rent contracts without involvement of the Ministry of the property relations of Russian Federation deprives it the possibility to realize its duties. Besides the means from the lease of asset transferred directly on the accounts of educational establishments, are not reflected in the incomes of the federal budget, that breaks the rule established by the governmental order of Russian Federation dated 24.06.99 689.

Now the necessity of matching of the Law of Russian Federation dated 10.07.92 3266-1 "On education" and Federal act of Russian Federation dated 22.08.96 125- "On higher and professional education" appeared, with the Constitution of Russian Federation and Civil code of Russian Federation.

Limits of authority of state bodies of registration the rights on the real property and transactions with it

January 31, 1998 the federal Act of Russian Federation "On state registration of the rights on the real property and transactions with it" came into force. This Law defines the common order of registration of the rights on the real property on all territory of Russian Federation, introduces a system of bodies realizing state registration. It is possible to consider the date of coming into force of the Law as a starting point on creation of the Uniform State registry of rights.

The period between adoption of the Civil Code of Russian Federation establishing standards on obligatory state registration of the transactions with the real property and adoption of the appropriate law was long, and during it in a series of the subjects of RF the normative acts defining a system of bodies and the order of registration of the transactions with the real property were passed. Some kind of practice has developed. However, experience and the methods of work directed on realization of the Law on registration, can be used only in that measure, in which they do not contradict the principles, established in the Law.

With adoption of the Law the conducting of state registration is secured behind an appropriate establishment of justice, the activity of bodies, created in locales, is terminated.

State bodies on registration of the rights on the real property, acting on the basis of the appropriate provision, are being created. So, on the territory of Moscow the Moscow urban committee on registration of rights on the real property and transactions with it (Moscow committee on registration) is created. The provision on the Moscow committee is affirmed by the order of the Mayor dated 08.04.98 341-.

Article 9 of the Law defines, what operations refer to competency of establishments of justice on registration of the rights on the real property and transactions with it:

  • Checking of validity of the documents, sent by the applicant, and presence of the appropriate rights for the person, who has prepared the document, or authority;
  • Checking of the presence of before recorded and before alleged rights;
  • Registration of the rights and issuing of the appropriate documents.

Though article 9 of the Law does not give a duty on legal expertise of the agreement to the establishments of justice, the order of conducting of state registration of the rights established by article 13 of the Law, provides obligatory check of lawfulness of the agreement.

The correspondence of the agreement to standards of the Law provides, that the parties have the civil legal capacity and active capacity, the representatives of parties have suitable authorities on its conclusion, the asset is found in the property law or other real right and right of disposal, the agreement is concluded in the statutory form, and also contains the conditions recognized significant by the law for the agreements of the given aspect.

In practice the state body on registration of rights frequently not only tests the lawfulness of the concluded agreement, but also realizes the analysis of the text of the document.

So, the state registration was suspended, and in a series of cases the decision about the refusal in state registration of the rights was made on the basis of non-execution by the parties of the obligations, foreseen by the contract clauses.

The foundation for state registration of rights is the documents, the list of which is established in paragraph 1 of article 17 of the Law. The law does not suppose reclamation for the applicant of the additional documents, except for cases, when the local law of Russian Federation establishes other. However, in practice it not always like this.

The complexities arise at registration of the before existed rights and, especially, rights of economic support or operating control on the real property. The civil local law did not provide and does not provide the obligatory contract of economic support or operating control. Such rights could arise by virtue of the law as well.

In article 299 of the Civil Code of Russian Federation it is said, that the right of economic support or operating control arises from the moment of transmission of this asset, if other is not established by the law, by other legal acts or decision of the owner.

Now frequently there is a situation, when the plants of the real estate were specially constructed for placing of firms and establishments or were transmitted to them, we shall tell in 30ths or 40ths. And at the end of 90ths the appropriate order is made on allotting of asset on the right of economic support or operating control, i.e. as a matter of fact the earlier arisen right is confirmed. Naturally, in this case actual cession of goods is not made, as to the moment of the issuing of the appropriate order it is already in possession of organization, and limitation it is impossible to found the acts of reception - transmission of fifty years' old even in archives.

The operations of establishments of justice refusing in registration, can be considered as not lawful, as they contradict standards of articles 19 and 20 of the Law establishing the foundation for suspension or the refusal in state registration.