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Bibliographical attributions
Land transactions and some legal contradictions
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Bibliographical attributions



1. Jarmolinskij A.I. Experience of designing and operation. // Far East Highways.- M.: Transport, 1994. – 141 p.

2. Lazareva L.P., Litvinets O.I., Zubtsova I. L. The data base for treating waste products at the enterprises of the Meritime Province // Materials of conference – Vladivostok: FISTU, 2001.

3. S.S.Brajlovsky, A.M.Shaina. The stimulation of the waste products application. // Highways. № 4, 1990.

4. S.Muratov, V.Isaev. Waste products in business: about the application of metallurgical slags in road construction.//Highways.
№ 11, 2002


E.A. Guseva

I.F. Umanets

Pacific State University


LAND TRANSACTIONS AND SOME LEGAL CONTRADICTIONS

IN FEDERAL LAWS REGULATING LAND RELATIONS


The owners of land plots which remain tractable are free to dispose of their land as they see fit, provided they cause no harm to the environment and do not infringe on the rights or lawful interests of other persons (Art. 27, Land Code of the Russian Federation; Articles 209 and 260, Civil Code of the Russian Federation). Sale and other transactions involving land in private ownership are regulated primarily by the provisions of civil law. Certain regulations concerning particular land transactions (lease, purchase and sale) are contained in the Land Code and in the Federal Law «On Agricultural Land Transactions», which establishes specific requirements governing the disposal of agricultural land.

Land Sale and Purchase.

Under the provisions of civil law, parties to a sale and purchase transaction with land in private ownership have discretionary powers to set their own transaction terms, including price. It should be mentioned that the same tax law rules and provisions relating to transfer pricing are applied to the sale and purchase of land as to any other transaction. It is worthy of note that starting from January 1, 2005, no VAT is charged on the sale of land plots (shares therein).

Land plots can be sold only if they have been registered in the State Land Cadastre (Art. 37, Land Code of the Russian Federation).

To complete a sale, it is important not only to verify the seller's title to the land, but also to request an extract from the Unified State Register of Real Estate Rights and Transactions, the certificate of land ownership alone being not sufficient. The Civil Code requires real estate sales to be registered with the state under all circumstances. The purchaser of a land plot is issued a certificate of state registration of land ownership, but it is more important to verify that an accurate entry has been made in the Unified State Register.

Non-agricultural lands had rarely been privatized before the enactment of the Land Code, which came into force on October 25, 2001. However, the privatization of agricultural lands on a large scale began when collective and state farms, reorganized into new non-state enterprises, parceled out shares of land to their members, pursuant to the Russian Government's Resolution No. 708 of September 4, 1992, «On Privatization and Reorganization of Agricultural Enterprises and Organizations».

Undeveloped non-agricultural land plots are rarely held in private ownership, so transactions involving such land can be a delicate matter which should be handled with special care.

Land Lease.

No restrictions are imposed on owners of land who wish to lease out their holdings, except as concerns plots which are not tradable (clause 4 Art. 27, Land Code of the Russian Federation). Lease provisions of both the Civil Code and the Land Code are fully applicable to land leases.

A land lease contract must state a fixed lease term. If no fixed term is specified, the contract is deemed to be concluded for an indefinite period of time. In such a case, the contract may be terminated by either party by giving three months' notice to the other party (Art. 610, Civil Code of the Russian Federation). If at the end of the lease period the parties continue to discharge their contractual obligations, the lease is deemed to have been concluded for an indefinite period.

The tenant is entitled to the right of first refusal (clause 3 Art. 22, Land Code of the Russian Federation) when the lease comes up for renewal, except in cases of the transfer of title to buildings and structures (clause 3 Art. 35, and clause 1 Art. 36, Land Code of the Russian Federation), in which case the pre-emptive right to enter into a lease contract is granted to the owner of the buildings and structures attached to the land.

A land tenant may assign his or her rights and obligations -under a lease contract to a third party (as a lease assignment), which may include taking out a mortgage on his or her lease right, or contribution thereof to the authorized capital of a partnership or company or to a production co-operative for up to the full term of the lease contract. No consent thereto need be obtained from the landowner (unless otherwise stipulated in the lease contract) — simple notice given to the owner is sufficient. The law provides for land to be subleased for up to the full duration of the lease contract without requiring the landowner consent, provided notice thereof is given (unless otherwise provided in the lease contract).

State registration must be obtained for land lease and sublease contracts made for a term of more than one year (federal law may require state registration for lease contracts valid for less than a year, Art. 26, Land Code of the Russian Federation). Details of lease contract registration are entered in the Unified State Register of Real Estate Rights and Transactions. The tenant may be issued a registration certificate, but normally certificates are not issued. Upon registration of the lease contract, an entry is made in the Register related to the encumbrance on the land in the form of a lease.

Lease of a land plot may be terminated on the basis and in accordance with the procedure provided for in civil law. The Land Code, too, covers specific aspects of lease termination. For example, a lease can be terminated by the lessor if the plot is used in contravention of its designated purpose or assigned category; or if the tenant has failed to redress a deliberate offence (harm caused by pollution, soil contamination, etc.); or has not used it for at least three years, unless another term is prescribed by federal law or the lease contract (Art. 46, Land Code of the Russian Federation).

In order to avoid misunderstandings in concluding land transactions, contracting parties must be aware of legal conflicts and discrepancies which currently exist between different laws. Some of these are examined in more detail below.

Provisions of Civil and Land Laws.

An example of such discrepancies is to be found in provisions regulating the legal status of land plots and real properties attached to them when the owner sells either the land plot alone or only the real properties.

The Land Code consistently adheres to the principle that land plots and fixed properties attached to them are inseparable (sub-clause 5 clause 1 Art. 1, Land Code of the Russian Federation). Buildings, structures and facilities attached to a land plot and owned by one person are sold together with the plot, except for isolated instances listed in the Code. A land plot may not be sold separately from existing buildings, structures and facilities attached to it if they are owned by the same person (clause 4 Art. 35, Land Code of the Russian Federation). This principle had been established even earher in Russia's Medium-term Social and Economic Development Program (to 2004).

The Civil Code does not subscribe to this principle and in effect allows the owner of a land plot and an attached structure to alienate either the land or the structure separately. In cases where a land plot with a building, structure or any other real property attached to it is sold without transfer of the real property to the buyer, the seller retains the right to use part of the plot occupied by, and essential for the use of, the real property, subject to the terms of the sale. In cases where the terms for the use of the respective part of the plot are not stipulated in the contract, the seller retains a limited right (easement) to make use of that part of the plot occupied by his or her real property and essential in order to use it for its intended purpose (Art. 553, Civil Code of the Russian Federation).

If, however, the seller owns the land to which real property to be sold is attached, the buyer of the real property acquires title to the property, or right to lease, or other rights under the contract to the respective part of the land plot. Where the contract does not specify the extent of the rights of the buyer of the real property to a respective land plot, the buyer acquires ownership of that part of the land plot to which the real property is attached and which is essential for its use (Art. 273, clause 1 Art, 552, Civil Code of the Russian Federation).

Here we have a dear contradiction of two branches of law. In this situation, it is important to keep in mind that land law regulates relationships involving the use and protection of land in the Russian Federation in order to provide the basis for the livelihood and activity of the people living on the respective territory. Civil law establishes the basis for the creation and exercise of ownership and other proprietary rights to property, including land, and regulates contractual and other obligations (clause 1 Art. 2, Civil Code of the Russian Federation).

Under the Russian Land Code, property relations with regard to ownership, use and disposal of land plots and land transactions are regulated by civil legislation, unless otherwise provided for in the land law or special federal laws (sub-clause 1 clause 3 Art. 3, Land Code of the Russian Federation). The Civil Code, too, makes repeated reference to land laws regarding the transferability of land. It states that specific aspects of transactions, including land plot transactions, may be regulated by other laws.

To sum up, provisions of the Land Code which may be considered to be more specific in relation to the general legal provisions of the Civil Code are applied in regulating the legal relationships covered in this work. In addition, since the Land Code was adopted after the Civil Code, it should be considered to take precedence.

Land Privatisation Laws. The buy-out price of land plots to be privatised by owners of buildings, structures and facilities attached to them is determined, as described in Chapter 2, «Land Privatisation», above, in accordance with Art. 2 of the Law «On the Enactment of the Land Code of the Russian Federation».

It should be noted, however, that the Land Privatisation Law also lays down rules for calculating the buy-out price which differ slightly from the rules set out in the Law «On the Enactment of the Land Code of the Russian Federation». While the latter stipulates that until land prices are set by Russian constituent entities, the sale of such land plots should be taxed at the minimum applicable land tax rate, the Privatisation Law requires the buy-out price to be determined in these cases on the basis of minimum buy-out prices indicated in the Privatisation Law (clause 7 Art. 28).

In our view, this conflict of laws should be resolved by applying the provisions of the Privatisation Law. Enacted after the Law «On the Enactment of the Land Code of the Russian Federation», this law clarifies provisions relating to buy-out prices.

A few words need to be said about the agencies and bodies authorised to take decisions related to land privatisation.

Clause 10 Art. 3 of the Law «On the Enactment of the Land Code of the Russian Federation» contains a general provision stating that the right to dispose of land plots is exercised, prior to delimitation of state land ownership, by municipalities within the limits of their powers, unless otherwise provided by law.

The Privatisation Law establishes different rules. Clause 14 Art. 43 of the Law states that decisions to privatise land are made by those authorities that have made decisions to privatise real properties attached to the land, while decisions to privatise land to which any other real properties are attached are made by bodies authorised by the Russian Government to take such decisions.

Resolution No. 576 of the Russian Government dated August 7, 2002 clarifies these provisions by naming the specific authorities empowered to make decisions on privatisation. Specifically, these are: the Property Relations Ministry in cases where the real estate purchased was in federal ownership; an authorised body in a Russian constituent entity in cases where the real estate purchased was owned by the constituent entity or where the land plot had been allocated by a decision of the executive authorities of the constituent entity; and municipalities in all other cases.

It is our view that, considering the foregoing arguments, the provisions of the Law «On the Enactment of the Land Code of the Russian Federation» must be brought into harmony with the provisions of the Privatisation Law. In addition to the contradictions examined above, current laws suffer from other discrepancies in provisions regulating land privatization.

Russia is currently undergoing a second stage of reform. As paradoxical as it may seem, the steps taken by the Russian President and the Russian Government are indeed aimed at introducing momentous changes to both the law and law enforcement practices.

These changes will also have a direct influence on land relations. As the government is becoming all the more determined to protect its own interests and priorities, practising lawyers are increasingly often involved in settling disputes which have arisen out of transactions dating back to the early 1990s. Moreover, transactions made a decade later, in 2000-2001, are also beginning to draw the close attention of the prosecutor's office. This is an objective process. No reform is possible without the observance of the laws passed to facilitate it.

The enactment of the Land Code of the Russian Federation has brought significant changes to the practice of buying and selling land in Russia, and law enforcers are gradually becoming accustomed to the new rules. Of particular interest is the problem of land privatization – the transfer of land plots from state or municipal ownership into private hands. The gradual privatisation of land is a natural process, as new ways are being found to increase the efficiency of land use. Land is acquiring real owners.

The privatisation of land plots and their transfer for a consideration from state or municipal ownership into private ownership is governed by a number of regulatory acts. These include the Land Code of the Russian Federation; the Federal Laws of December 21, 2001, «On Privatisation of State and Municipal Property», and df July 24, 2002, «On Agricultural Land Transactions», Resolution of the Russian Government No. 576 of August 7, 2002, "On the Rules for Managing State-owned Land Plots until the Delimitation of State Ownership of Land", and other federal laws and regulatory acts of the Russian Federation and its constituent entities.

In order to ensure the stability of land transactions, inconsistencies in the current legislation governing land relations need to be resolved or adjusted through appropriate amendments to the law.

Whatever deficiencies the new laws may have, they do provide a legal framework for the regulation of the land market. From now on, practical experience will be the only way to fine-tune the land legislation so that the use of land resources deliver real benefits not only to landowners but to the nation as a whole.


M.A. Danilovskiy

N.G. Grinevich

Pacific State University