In the current edition of Art. 552 of the Civil Code of the Russian Federation , rules are established for determining the fate of a land allotment during the alienation of a structure, building or other immovable object located on it. The provisions of the norm are applied subject to Articles 35-36 of the LC. Consider Art. 552 of the Civil Code of the Russian Federation with the comments of lawyers.
The content of the norm
For hours 1 tbsp. 552 of the Civil Code of the Russian Federation , under the contract for the sale of a building, building or other real estate, the buyer, together with the right to own it, receives the rights to the land occupied by this property and necessary for its operation.
If the seller is the owner of the allotment, the buyer also becomes its owner after the alienation of the building located on it, unless otherwise provided by law.
The alienation of an immovable object located on a plot not owned by the seller is permitted without its legal owner, if it does not contradict the law or the contract. Upon sale, the buyer receives the right to use the allotment on the same conditions that were established for the seller. This rule is enshrined in paragraph 3 of Art. 552 of the Civil Code of the Russian Federation .
Rules implementation specifics
As mentioned above, the rule in question should be applied in conjunction with the provisions of 35-36 articles of the LC. When considering cases under Art. 552 of the Civil Code of the Russian Federation in judicial practice, the specified norms of the Land Code take precedence.
According to a number of lawyers, the rules enshrined in the article under review should apply not only to purchase and sale transactions, but also to gift and exchange contracts, cases of making immovable objects in the authorized capital of partnerships, companies, etc. This conclusion is also confirmed by judicial practice.
So, in one of the cases, the cassation court indicated that the plaintiff, when transferring real estate to the capital of the company, received not only the legal opportunity to use the plot, but also the obligation to re-register the right of unlimited use to the right to lease.
The unity of the fate of the plot and real estate
This principle is considered fundamental when applying Art. 552 of the Civil Code of the Russian Federation . It is enshrined in 5 subparagraph 1 of paragraph 1 of the article of the LC. This principle means that objects that have a strong connection with land plots follow their fate. Exceptions to the rule can only be defined in federal law.
Taking into account the content of the norms of the LC, taking into account the judicial practice of their application together with the provisions of the Civil Code, we can say that in reality the principle of “unity of fate” is understood somewhat more broadly than formulated in Art. 1 ZK. It can be expressed not only in the fact that an immovable object usually follows the fate of the allotment, but also vice versa. In the case of the sale of a structure, building, etc., the issue of the rights of the acquirer to the site must be decided without fail.
Explanations of the BAC Presidium on non-residential objects
In Resolution No. 12277/08 of 2009, the court indicated that the LC was a key principle of land legislation in Art. 1 proclaimed "the unity of fate of allotments and objects, firmly connected with them." The plaintiff, who acquired non-residential premises in the building of the production facility and completed the reconstruction, created a separate facility intended for trade. In this regard, he receives on the basis of Art. 35 ZK the opportunity to claim ownership of the corresponding part of the site.
Difficulty in practice
Often there are situations when the legal owners of the real estate and the land on which it is located do not match. In these cases, the provisions of clause 1 of clause 558 of the Civil Code of the Russian Federation and clause 1 of Article 35 of the LC retain their effect.
In accordance with the indicated standards, the acquirer of a building, buildings, etc., may require registration of rights to an allotment occupied by an object and necessary for its operation, in the amount and on conditions stipulated for the seller, from the date of state registration of the right to real estate.
Indefinite use
If the object is located on a site provided for perpetual use, the buyer cannot receive this right by virtue of the provisions of Article 20 of the LC. The acquirer in this case, as an entity to which the right to use the allotment has been transferred in connection with the purchase of an immovable object located on it, may issue it for rent by concluding an agreement or in ownership. In the latter case, he should be guided by the provisions of paragraph 2 of paragraph 3 of article FZ No. 137.
Lot size
It should be noted that the right to use the buyer by virtue of Art. 552 of the Civil Code of the Russian Federation receives only the part of the allotment that is necessary for the operation of the facility. In judicial practice, the question arose repeatedly about the area of such a site.
In paragraph 3 of article 33 and paragraph 2 of 35 of the LC code, criteria for assessing the size of allotments are fixed. In addition, the rules are defined in paragraph 13 of the plenary decision of the Supreme Arbitration Court No. 11 of 2005 to determine the allotment area, if necessary, the court has the right to appoint an examination.
Features of the application of Clause 2, Article 552 of the Civil Code
In paragraph 4 of paragraph 35 of the article of the LC, exceptions are fixed, according to which the allotment and the immovable object located on it, although they belong to the same entity, can be alienated separately. We are talking about cases of transfer of rights to:
- Parts of the structure, building, structure that cannot stand out in kind with part of the site.
- Objects located on the allotment withdrawn from circulation on the basis of regulation 27 of the Civil Code.
The alienation of real estate located on a site limited in circulation is carried out together with this land, if the federal law provides for the possibility of granting property rights to it. Accordingly, the provisions of paragraph 2 of Art. 552 of the Civil Code of the Russian Federation should be applied subject to the exceptions enshrined in paragraph 4 35 of the LC Code .
Share ownership
If the object is transferred not to one but to several owners, the procedure for using the plot is established in accordance with the shares in the right to real estate or according to the established procedure for using the allotment. The corresponding provision is enshrined in paragraph 1 of article 35 of the LC.
Alienation of shares in the right of ownership of an object located on a site belonging to several entities also entails alienation of a share of the land. Its size should be set in proportion to the part of the structure.
Preemptive right
The rule under consideration sets forth the rules that apply when transferring rights to a site in the event of the sale of a structure or other facility located on it. The question regarding the possibility of subsequent redemption of the allotment is decided by the rules 35 and 36 of the LC.
In accordance with paragraph 3 of clause 35 of the norm, the owner of a building located on a foreign land is vested with the preemptive right to acquire or lease this land. It is implemented in the manner enshrined in the Civil Code for cases of alienation of a share to an external entity.
It appears that the legislation refers to the transfer to the acquirer of property rights or leases of the land belonging to a person who did not act as a seller of the immovable property. It is worth saying that disputes on such issues rarely arise in practice. This is due to the fact that the rights to a land owned by someone else are usually limited to rent.
If, upon the alienation of the building, the right to the allotment that is in municipal or state ownership passes to the acquirer, he has the right to redeem it or to receive it for rent according to the rules enshrined in article 36 of the LC.
Legal requirements
When selling an object under the conditions established in paragraph 3 of paragraph 552 of the Civil Code, consent from the owner of the site does not need to be obtained. Meanwhile, if the alienation is contrary to the rules for using the allotment, fixed in the contract or law, the seller needs to get it. Failure to comply with the requirement will serve as the basis for the recognition of the invalidity of the transaction. Accordingly, the consequences enshrined in law will be applied (bilateral restitution, in particular).
The acquirer of a building located on a plot of land owned by the seller on lease receives the right to use this allotment from the date of state registration of ownership. The right to use, in turn, will pass to the buyer, regardless of whether there has been a re-registration of the lease or not.