Some Problems of Private-Legal Regulation of Land Relations (Moscow as an Example)
Lyaschevsky I.S., chief specialist-legal adviser of the Moscow Land Committee
The state of land legislation as a whole and also presence of the special real laws regulating the land relations in urban settlements define the state of legal regulation of the land relations in Moscow. According to article 5 of the Town-planning code of Russian Federation Moscow refers to super-large cities. According to articles 65, 72 Constitution RF Moscow is the subject of Russian Federation - a city of federal value, which has the right to realize public regulating of the land relations on the territory of a city by the issuing of the land legislation acts referring a subject of share support with Russian Federation.
At the same time, it is very interesting what is the private-law status of Moscow as a participant of the relations governed by the land and civil local law of Russia.
As it follows from article 124 of the Civil Code of Russian Federation the subjects of Russian Federation - towns of federal value appear in the relations governed by the civil local law, equally with other participants of these relations - the citizens and legal entities.
Standards defining involvement of legal entities in the relations, governed by the civil local law are applied to the above-stated subjects of the civil right, if other does is not stipulated by the law or singularities of these subjects.
According to the fundamental principles of the civil local law, defined in item 1 of article 1 of the Civil Code of Russian Federation, the civil local law is based on a recognition of the parity of participants of the relations, regulated by it, inviolability of the property, freedom of the agreement, inadmissibility of arbitrary interposition of someone in any private matters, necessity of unobstructed accomplishment of the civil rights, ensuring of recovering of the outraged rights, their judicial protection.
Civil rights, according to item 2 of article 1 of the Civil Code of Russian Federation, can be restricted on the basis of the federal act and only in that measure, in what it is necessary with the purposes of protection of constitutional bases, morals, health, rights and legitimate interests of other entities, ensuring of national defense and safety of the state.
The above-stated bases of the civil local law, especially defining freedom of contracts (agreements) and protection of the civil rights, are immediately spread to the land relations with involvement of Moscow.
Also it is necessary to mark, that according to article 2 of the Civil Code of Russian Federation, the civil local law regulates the relations between entities realizing a business activity, or with their involvement, recognizing that business activity is a self-supporting activity, realized on the hazard and directed on a systematic receiving of profit from the use of asset, selling of goods, executing of operations or rendering of services by entities registered in the statutory order.
The city of Moscow is the subject realizing the activity, having the signs of enterprise activity, in a land sphere.
According to article 125 of the Civil Code of Russian Federation on behalf of the subjects of Russian Federation public authorities can acquire and realize the property and personal non-property rights and duties within the framework of their competency established by the acts, defining the status of these bodies.
In a sphere of the land relations the Town Hall (urban management) of Moscow according to article 35 of the Charter of Moscow, and also the official body - the Moscow land committee appear on behalf of Moscow. As a proof of the conclusion that any subject of Russian Federation, including Moscow can be recognized as the subject of business activity on behalf of the authorized bodies of power - official bodies, it is possible to refer to the governmental Order of Russian Federation of 22.08.98 ¹1001 "On measures on transfer of the accounts of organizations funded from the federal budget in the bodies of federal treasury, under the registration of the means received from business and other activity, bringing the income in the budget" (in of the governmental orders of Russian Federation of 23.10.98 ¹1239).
In the above-stated document official bodies acting on behalf of the subject of Russian Federation, are directly called participants of business and other activity, bringing the income.
The most significant and representing a private-law interest in a land sphere activity is the activity of Moscow, as involvement on behalf of the Moscow land committee in the rent contracts on a part of the lessor, and also sale of the right on making the land rent contract and the contract on sale of land.
The city Moscow on behalf of the authorized bodies realizes the above-stated activity in a self-supporting way, on its hazard, with the purpose of systematic receiving of the profit from sale of asset and property rights.
The right of Moscow on sale of the land lots and rights on making the land lots rent contract finding in state property of city is now not restricted by the federal acts.
Nor is limited by the federal acts the size of a maximum board paid at sale and purchase of land lots and rights on making the land lots rent contract.
The city of Moscow, being a seller of lands and rights on making the land lots rent contract on behalf of the authorized bodies of power, appears as the private subject - a party of the agreement. A seller basing on the maximum real prices, present on the land market of Moscow sets the price of each agreement.
After a brief characteristic of Moscow as the subject of private-law relations in a land sphere we should proceeded to problems of regulating of the land relations in Moscow.
The land law is a branch of law, a subject of which are the relations concerning usage of land as a natural resource.
In a composition of the indicated relations we can define the particular relations originating concerning usage of lands in urban and other settlements.
Now land and other branches of law of Russian Federation do not govern to the full the land relations in cities.
It is possible to speak about some positive changes in public regulating of the land relations in cities, in particular, in a sphere of regulating of town-planning activity and state control over usage and protection of lands.
At the same time, the legal institutions and standards regulating the private-law relations originating concerning the usage of lands in urban and other settlements now are insufficiently developed.
The indicated situation finds the confirmation in conclusions of the vice-president of Moscow land committee of Russia doctor of economic sciences, professor Loiko P. F., who estimates the present legal regulation of the land relations in Russian Federation in the article " Problems of land conversions in Russia in the beginning of XXI century", (Moscow, Legal regulation of the real estate market, ¹1 (2) 2000). An important document describing the modern state of land reform generally and in cities in particular, is as well a Federal target program " Development of a land reform in Russian Federation for 1999-2002 years ", affirmed by the governmental Order of Russian Federation of 26.06.99 ¹694.
The separate section of the Federal target program (further referred to as the Program) is dedicated to land conversions in cities and other settlements.
It is marked in it, that the reform in city building should be conducted simultaneously with land conversions.
Land conversions in cities and other settlements within the structure of the Program are directed on the development of a governed circulation of lands and creation of necessary conditions for realization of an investment potential of lands.
In the Federal target program it is marked, that the current legislation does not reflect a social and economic direction of conversion of the land relations and requires a significant renewal.
The conducting of a reform on the basis of subordinate legislation does not provide legal warranties to the owners, users of land, investors and other participants of the land market.
The major value is added to legal ensuring of the Program and the special section, designed is dedicated in view of present problems exacting the prompt admittance at federal and regional levels.
The legal ensuring of the development of a land reform in Russia from the point of view of the authors of the Program will be realized on directions providing necessity and sufficiency of legal regulation of the land relations. In these purposes it is provided:
- Development of the local law regulating relation of the property on land and other real estate;
- Development of the local law regulating the market of land and other real estate.
As a positive element of an implementation of a program it is necessary to regard an intent to realize the development of a concept of the draft law "On lands of cities and other settlements", establishing of a legal regime of usage of lands of settlements and order of their turnover.
It is necessary to mark that the urban land law as the body of rules regulating the land relations in urban and other settlements, reputes the presence of the subject and method of legal regulation.
Subject of the above-stated regulating are the relations on usage of the land lots within the limits of the territory of a city or other settlement.
The method of the urban land law is complex and is based on administrative - legal subordination of one party with the reference to state regulation of usage and turnover of lands of cities, and on an equality, autonomy of will and property independence of the participants of the land relations with reference to the agreements committed with the land lots and with the rights on the land lots in a city.
Despite of appreciable gaps in federal land legislation, the public authorities of the city of Moscow at accomplishment of a land reform have considerably filled a system of the urban normative acts regulating the land relations.
Legal regulation of the land relations in Moscow began with the introduction of Rules of a building order in Moscow, approved by the Council of people's commissioners of USSR of 01.10.35 ¹2221, which, differently from modern legal sources, defined the brief and understandable order of grant of the land lots for construction.
The analysis of present land legislation of Moscow allows making a conclusion that it is mainly directed on public regulating of the land relations. The majority of the Moscow normative acts was designed and is published without taking into account the academic legal tradition of the supremacy of an acting federal legislation and represent on a content interim instructions for the officials, rather than rigorous sources of the land law.
Unfortunately, the detailed legal regulation of the land relations included in chapter 17 CC Russian Federation, though not entered into force, but being progressive pattern of regulating of the land relations was left without attention.
As the most noticeable mistakes it is necessary to mark the creation in the normative act of Moscow (order of the mayor of Moscow of 17.01.94 ¹23-OM) of a legal construction, according to which a land share was called the plant of rent (individually indefinite part of the land lot), and it was offered to make out the right of rent of a land share not by the agreement, but a certain testimony.
Other noticeable mistake was identification in the normative act of Moscow (order of the mayor of Moscow of 07.08.96 ¹192/1-OM) of such naturally different legal institutions as " the right on rent of the land lot " and " the right on making the land lot rent contract".
Despite of the conventional real laws, contracts of rent of the land lots, being the foundation of appearance of the right of rent and having a law-establishing value by virtue of the law, in many urban sources of the land entitlement continue to be called "law-establishing documents ". Also it is necessary to mark the current points of view (see, for example: A. V. Dmitriev, " How to register the rights on land in Moscow: problems of theory and practice ", Moscow, Legal regulation of the real estate market, ¹1 (2) 2000) that legal effect of the agreement of sale and purchase of the rights and duties on the land lot rent contract is an appearance of the reason for a conclusion of a new land lot rent contract with a purchaser under the contract of purchase, while according the rules of chapter 24 CC Russian Federation the change of an entity in the present and incessant bond is a legal effect in the indicated case.
Out of the recent normative acts of Moscow we should select the law on bases of stipendiary land use, which contains a rather doubtful, from the point of view of the land law, constructions and rules, as: "rent of the rent right", "registration of the right on committing the agreements with the right of rent ", "a duty of making a contract of the sublease of the land lot under a building by the leaser of uninhabited premise in a building", "a duty of the redemption of the right on a conclusion of the agreements with the right of rent in case of construction of new plants on the already rented land lot". Especially it is necessary to mark an unsuccessful rule about definition of a size of the site necessary for usage of a building, entered in force by the Law " On bases of stipendiary land use in Moscow " of 29.09.99, which it is impossible to realize in practice by virtue of its obvious inconsistency.
Proceeding to other sources of law, it is necessary to pay attention to a separation, introduced in Moscow, of the legal regime of a building and a land lot as on a pattern of ownership, duration of the right in time, and on a special-purpose designation of a uniform plant of the real estate as a matter of fact, without any consideration of legal capacity of different categories of legal entities. The main problem of the circulation ability of the land lots and rights on the land lots was solved by the most primitive way, according to which only the leaser who has paid beforehand for a so-called "right on making a contract of rent", confirmed by a seal on the agreement, could effect disposal of the rights and duties on the rent contract.
Probably, there is no necessity to underline, that a so-called die is a one-side and impermissible modification of the land lot rent contract, not attracting legal effects in a part of a modification of such important contract clauses, which would repute appearance of a of circulation ability of the right on rent.
Instead of legislative definition of the land lot necessary for usage of a building, and also installation of the base to appearance of the circulation ability of the rights on such land lot, a construction, separated from real relations was introduced, (order of the mayor of Moscow of 24.05.95 ¹254-OM), according to which rights and duties concerning a part of the land lot superior to the total square of building, could become disposal only after importation of a board "for the right on making land lot rent contract".
Without a suitable justification the rule that a land lot under building "is not redeemed" entered into force.
There was a separation of the legal regime of building and land lot occupied with a building and necessary for its usage on assigning, which has generated a lot of problems.
The above-stated regulation was introduced without legal expertise obligatory for such innovations and without the registration of negative consequences for present state firms and for development of small and average business in Moscow.
Recently, unfortunately, it has been necessary to mark an appearance of undeveloped land-real laws in the Moscow urban normative acts, regulating in a complex way the relation of other branch nature, for example, relations concerning creation and further legal life of partnerships of the owners of housing (POH) and condominiums.
Thus the jurists specializing in the field of the civil and housing law realization try to arrange the land relations originating between the state and POH concerning control over the condominium.
In this connection it is necessary to mark the governmental Order of Moscow of 29.08.2000 ¹690 "On the complex urban program of shaping of the condominium and creation the conditions for appearance and activity of partnerships of the owners of housing ".
In the given normative act the legal construction is offered, according to which it is suggested "to the Moscow land committee... to register in constant (termless) use of the houseowners the land lots in normative sizes and conclude rent contracts on above permitted standard territory... "
It is obvious, that the indicated law making has nothing in common with a principle of protection of rights and legitimate interests of the houseowners.
It is enough to think of some hundreds of land cases and certificates on state registration of a share in the right of constant use of the land lot (on each of tens thousand houses), made out, mainly, on the individuals-houseowners.
To this it is necessary to add, that by virtue of a federal legislation the right of constant use of land lot is not inherited by individuals and is not subject to disposal to other faces at disposal of living quarters.
The land-legal effects of acquiring or disposal of living quarters are not arranged in any way in the published normative act, in spite of the fact that the number of daily agreements with living quarters in Moscow is rather high.
A problem of realization of shares in the common law of constant use of the land lot and shares in the common law of rent of the land lot of condominium, owned by houseowners, has remained without normative settling, but could be quite solved by the way of normative definition of the order of use of the land lot of the condominium by co-users and co-leasers of the land lot.
Proceeding from the normative acts of Moscow to the normative acts of Russian Federation, it is also especially necessary to mark the appreciable gaps in the field of the land relations regulating.
Most clearly it is seen concerning regulation of appearance and transition of rights on land to the purchasers of immovable and other buildings.
In particular, the rules of article 552 and 652 CC RF repute apparition of the rights on the land lots for the purchasers of the real estate under the contracts of purchase and rent by virtue of "simultaneous transmission" of such rights by a seller or lessor of the real estate. At the same time, it is completely vague, on the basis of what rule of law a seller or a lessor of a building located in Moscow, have the right " to transmit simultaneously" the rights on the land lot being in a state property Moscow, without declaration of intent of the owner.
It is not clear also, how by virtue of article 552 CC RF for example, a right of life heritable possession of the land lot established only concerning individuals can "be simultaneously transmitted" to a legal entity - buyer of an apartment house, owned by an individual.
Especially undeveloped, concerning regulation of the land relations, are articles 552 and 652 CC RF in a part of permitted usage and squares of the land lot groundlessly remaining constant at so-called "simultaneous transmission" of right on the land lot.
In case of acquiring a building of a kindergarten by an establishment of a bank it is hardly possible to agree with transition to a bank of the right of constant (termless) use on the land lot of a kindergarten of the same square and for the purpose of accomplishment of educational activity.
Completely impermissible is literal application of item 3 of article 552 CC RF, according to which "at sale … of the real estate a buyer acquires a right on use by an appropriate part of the land lot on the same conditions, as a seller of the real estate ".
If the land lot was granted to the owner of a building in rent for 25 years, in case of sale of a building in 24 years a new owner will have by virtue of article 552 CC RF "acquire" the land lot on "the same conditions", i.e. in rent for only 1 year. Such legal regulation goes interferes with a principle of termlessness of the property right on the real property and with a principle of indivisibility of a property complex of firm, established in article 132 CC RF.
And, probably, the arbitration Court of Moscow not at random, solving in 1999 a dispute about compulsion of an authority to make the land lot rent contract (decision of 25.02.99 on case ¹À40-44230/98-57-603), has applied article 552 CC RF in such an original way, that has bound the authority to conclude with an entity (who has "acquired" by virtue of article 552 CC RF from a seller of a building the land lot rent right for the period of 3 years) a new land lot rent contract for the period of 49 years, actually having added 46 years by the will of the court! A serious constraining condition there is a lack of regulations, understandable by law-applicants, of the relations linked to installation, modification and cease of the private easements applied as to the land lots, and to the rights on the land lots.
Regulations of private easements Included in article 64 of Town-planning code of Russian Federation can not be considered complete with reference to the land relations in cities.
A federal target program "Development of a land reform in Russian Federation for 1999-2002 years" stipulates development of the classifier of public and private encumbrances of the land lots (easements).
In view of this, the creation of the legal institutions and standards regulating the private-law land relations in cities is obviously necessary outgoing from subjective singularities of the legal owners and objective singularities of the land lots.
It is time already to put a question about introduction to legal practice of the new legal institutions, as, for example, conversion of the land lot rent contract. Speaking in details about last singularity, it is necessary to mark, that in a law-applying practice there are situations, when the owner of the large square land lot rent right with a circulation ability, wishes to effect disposal of the rent right concerning a part of a site.
Thus the disposal by the leaser of the rent right concerning a part of the land lot defined by individual signs, from our point of view, is possible after preliminary registration of the separate rent contracts (conversion of the agreement): the agreement (agreements) of rent of an alienable part (parts) of the land lot and a rent contract of an inalienable part of the land lot.
Thus it is necessary to understand as conversion of the rent contract of land a production of a necessary number of the genuine agreements corresponding the number of entities acquiring the right of rent concerning parts of the alienable land lot of the leaser defined by individual signs, with consequent importation of modifications in such contracts in a part of diminution of square of a primal site before consequent committing of the smaller square site rent agreement.
It is represented correct, if the conversion of the land lot rent contract on several rent contracts on smaller land lots are effected by the Moscow land committee (or other state body on control over land resources) on the basis of a written declaration of intent by a leaser having the right to commit the agreement with the land lot rent right, and order of the Moscow land committee on conversion of the rent contract.
At the above-stated conversion the significant land lot rent contract clauses vary only in a part of resizing of the land lot and rent charge, appropriate to this size.
As a matter of fact, conversion of the land lot rent contract represents an apparition of plurality of the rent contracts between parties, corresponding to plurality of the land lots constituting in aggregate a subject of the primal rent contract.
The contracts of land rent are not subject to the above-stated conversion, the right of rent on which is a subject of deposit, arrest, inhibitory action or other limitation to disposal established according the law.
Also, especially important is to introduce into legal practice a concept opening dimensioned singularities of realization of the rights on the land lots, and singularities both vertical and horizontal.
Let's consider a bright example from "vertical" Moscow practice: in stilobate part of a high building opposite to the metro station "Barrikadnaya" the property complexes of different legal entities are located. The land relations in the shape of rent are made out according to article 37 of the land Code of RSFSR with the owners of the rights on property complexes (uninhabited premises in a building). At the same time, the unrestricted amount of individuals can mount easily the steps of a stilobate part of a building and pass to a shop through a parking place actually on a roof of the above-stated uninhabited premises. It is easy to understand that a legal entity exploiting parking place, has also addressed the authorities with an application on registration of the land lot right and has received a refusal whereas the site is already registered on a legal entity "located below ".
The second bright example of "vertical singularities" is the following: there is a residential multi-store multiaccess building with an arch in the middle, and above an arch there are a lot of floors. It is obvious, that the land lot in an overall dimension of a building is completely occupied by a building and belongs to the houseowners. At the same time, there is an interested legal entity, which files an application in the authorities on grant of the land lot within an arch for building an uninhabited premise.
Let's consider a bright example from "horizontal" Moscow practice: in a part of a Ã-figure building on Leningradski prospect the hotel "Sovietski" is located, and in the other part of this building is located the theatre "Roman"; the interior court yard is built up by economical buildings of the hotel and the theatre. There is a problem on setting the sizes and boundaries of the land lots occupied by the property complexes of the hotel and the theatre and necessary for their usage according to assigning. In what case and according to what criteria it is necessary to grant individually defined land lots to the hotel and the theatre, and when it is necessary to register the common rights of the indicated entities on the shared parts of the land lots.
The adjoining location of property complexes of different subjects on a vertical (from above - from below) and on a horizontal structure in urban building also generates a problem of suitable legislative definition of the easements and limitations (encumbrances) of the rights on property complexes and land lots, order of their installation, modification and cease, including transition to other entities in view of dimensional singularities.
It is important also to reveal private-law singularities of involvement of city of Moscow in the rent contracts on land and agreements of sale and purchase of land and treaty-making power of land rent, which are exhibited, for example, in the fact that Moscow, directing an offer (contract draft) to another part, defines significant conditions of the concluded land-legal agreement founded on private-law performances of the land lot (square, configuration of boundaries, established private easements, cost of the property right) and on a private-law interest of other party of the agreement (aspect, period of activity on the land lot, procedure of concluding a treaty on a new period).
Moscow bears equal with other party civil responsibility for non-execution or inadequate execution of the bonds under the concluded land-legal agreements, but thus has a possibility to grant in case of renunciation of other individually definite land lot or to commit the substituted rent bond agreement with transfer of other individually definite land lot.
In this connection extent and limits of state regulation of private-law relations between an executive body - a lessor and a leaser of the land lot should also be reflected in the appropriate real laws.
Most acute is a problem of setting boundaries on lands in view of constant rise of an amount of the subjects possessing real and contractual rights on buildings, their parts and other plants of the real estate generating the rights on the appropriate land lots necessary for usage of plants for the real estate according to their assigning.
Federal target program "Development of land reform in Russian Federation in 1999-2002 years" underlines a necessity of development of a technique of shaping and setting boundaries on the land lots as plants of the real estate in cities and other settlements.
Common principles of regulating of the relations on setting boundaries on the land lots appropriate to private-law interest of the subjects of the land relations now are not defined.
The available normative acts in the given sphere (for example, Town-planning code of Russian Federation, the governmental orders of Russian Federation of 02.02.96 ¹105, of 26.09.97 ¹1223, order of Ministry of land of Russian Federation of 26.08.98 ¹59) define only most common principles of setting boundaries.
The most urgent and complete legal regulation is required by the land relations in the subjects of Russian Federation - cities of federal value Moscow and St.-Petersburg in view of real rates of construction and fast rise of number of subjects of the land relations.
At such situation at a solution of the above-stated problems it is obviously necessary first of all to pay attention to a land reform, conducted in the state and solution of a problem of regulating of the land relations in cities.
The analysis of the above-stated relations is expedient to conduct with the registration of a law-application practice of the Moscow land committee and practice of the suitable judicial solution of the disputable land-legal relations, which have not been sufficiently arranged by the law.
In the second turn the solution of the above-stated problems should be made with engineering of a detailed legal regulation of the land relations in the cities, based as well on the rather - legal analysis of regulating of the similar relations in foreign legal systems.
Thus it is expedient to define a content of the state and municipal property right on land in cities; circulation ability of land in cities; to consider the order of regulating of the land agreements in cities; limitations of the rights on the land lots in cities; a system of legal institutions and standards regulating the land relations in cities.
It is completely necessary to fill the appreciable gap of present legal regulation concerning the common laws on land in cities originating for the owners, co-tenants, co-owners of the land lots.
For example, whether one co-tenant of the land lot can use a site for maintenance of a building of bank (1-st floor of a building), and another co-tenant of the same site - under other activity, for example, sports (2nd floor of a building). How in such case to define correctly a special-purpose designation of the same land lot for suitable operation of the state land cadastre?
Rather actual is engineering of common principles of definition of using the land lots subject of the right of common rent, the right of common constant use, the right of common life heritable possession in view of dimensional singularities of plants of the real estate.
In this case, apparently, the regulating by the means of provisional rules is more applicable, leaving definite independence to parties of the agreement about the order of using the land lot, finding on the common right.
Already now there are practical problems of transfer of a part of the land lot in the sublease to one entity by several co-leasers.
It is impossible to eliminate s well the cases of transfer of the land lot in the common sublease to several subjects by one leaser etc.
In practice of the Moscow land committee took place a case of succession in equal proportions of rights on a land lot rent by the wife of the died leaser and his infant daughter on the basis of the testimony on the right to the patrimony under the law, made out by the notary. The transfer of the right of rent from one entity to two co-leasers was effected by the way of conclusion of the additional agreement to the rent contract, which reflected the fact of change of entities in the bond by virtue of heritable legal succession.
It is important to mark, that contrary to a popular unjustified belief, share in the land lot rent right is not a part of the land lot and is not subject to measuring in hectares or square meters, as it has no dimension and is expressed, as a rule, in fraction. The above-stated examples of law-application practice display complexity of originating land-legal problems and necessity of their legal solution.
In conclusion is necessary to mark, that in modern conditions it is represented as the most expedient problem to arrange explicitly the foundation and order of rise, modification and cease of the common rights on land in cities, ways of definition and documentary veneering of a share in the right on land, and also order of regulating of the agreements with the common rights on land.
The private-law regulating of the land relations in cities should be explicated on the basis of the provisions of the Constitution of Russian Federation and conventional land-legal doctrine, and in a part of legal regulation of the market of land and other real estate, linked to it - on the basis of the Civil Code of Russian Federation by the extension of standards of the civil right in view of the unconditional registration of dimensional and legal specificity of the urban land relations.