The previous LC (1991) did not fix the rules and consequences of the requisition of land . The concept of requsitio itself has Latin roots and means "requirement" in translation. The procedure involves the removal of land by the state with compensation to the owner of the losses caused by the use of the allotment. Let's consider it in more detail.
General information
The allotment of the allotment is one of the coercive measures enshrined in law. Land is mentioned primarily in the LC. However, since the seizure procedure is considered by lawmakers as a category of civil law, relations associated with it are regulated by Article 242 of the Civil Code. In accordance with its provisions, in the event of accidents, natural disasters, epizootics, epidemics, as well as in other circumstances of an extraordinary nature, by decision of state authorities, property may be seized from its rightful owner on the terms and according to the rules enshrined in regulatory enactments. In this case, the owner of the object must be paid compensation. The procedure and conditions of the procedure are defined in Art. 51 LC RF .
Code Rules
As you know, in land law, ownership of land is the most voluminous type of rights. It may be limited only in exceptional cases. They, in particular, are: accidents, natural disasters, epizootics, epidemics, other circumstances of an emergency nature. The requisition of the land is aimed at protecting vital civil, public or state interests. This measure is temporary. That is, the seizure of the land is carried out for a specific period. A prerequisite for the implementation of state law is compensation to the owner of losses incurred as a result of the use of property. In addition, the owner is issued a document on the requisition.
Return Features
Land requisition - transfer of the allotment to the state with subsequent return to its owner. If it is impossible to return the property, its owner is compensated for its price. The market value of the land is reimbursed . It is established in accordance with the provisions of Article 66 of the LC. At the owner’s request, he may be provided with an equivalent allotment instead of monetary compensation. The subject from whom the plot was withdrawn, after the termination of the circumstances that became the reason for applying this measure, has the right to demand the return of the allotment in court.
Additional Provisions
In the event of circumstances enshrined in Article 51 of the LC in paragraph 1, if there is no need to remove the allotment, the plot may be temporarily occupied for the purposes established by the first paragraph (ensuring the protection of civil, state, public interests). At the same time, the owner is compensated for losses that he incurred as a result of the application of this measure. The assessment, on the basis of which the owner of the property is compensated for the price of the allotment, as well as losses associated with the termination and restriction of land rights , can be challenged in court.
Important point
The procedure under consideration must be distinguished from the confiscation of the site. This measure is enshrined in Article 50 of the LC. In accordance with the norm, the confiscation of the land - gratuitous compulsory seizure of the allotment from the owner by decision of the court. This measure is used as a sanction for the crime. The requisition of the land is paid and usually temporary. This measure is not applied as a sanction, but because of the need that arose as a result of extraordinary circumstances enshrined in the norms.
Compensation Specifics
The first paragraph of Article 51 of the Code states that the owner of the allotment is not compensated for its price, but for losses incurred by the subject as a result of the application of the measure. In Art. 15 of the Civil Code (paragraph 2), the concept of losses is disclosed. They are considered real damage and lost profits. The first includes loss, damage to property. Lost profit - income that a person would have received if the requisition had not been made. Thus, taking into account the provisions of Clause 6 of Article 51 of the LC, the following can be concluded. The subject whose land has been requisitioned, if there are appropriate grounds, can count on reimbursement of the allotment price (if it is impossible to return it), as well as losses that he incurred in connection with the application of the coercive measure.
Confirmation of fact
When applying a coercive measure, a special paper is issued to the owner. It must be attached to the documents for the land . This paper is of great importance to the owner of the allotment. Only if it is available can he subsequently make demands for the return of property or payment of compensation to him. A document for a land plot evidencing the application of a coercive measure is issued by the body that made the decision on the temporary seizure of the object.
Description of circumstances
Paragraph one fixes several situations of an emergency nature, upon the occurrence of which a site is requisitioned to protect vital public, state and civil interests. An accident is considered a failure, damage to a device, mechanism, machine and other equipment during movement or operation. An epidemic refers to the massive spread of human infectious diseases in a particular area or country if their level significantly exceeds the usually recorded rates for the same period. Epizootic refers to the massive spread of animal diseases.
Other emergency
Their concept is not disclosed in the legislation. Due to the fact that natural and man-made emergencies are included in such circumstances, it is likely that this is an incident that took place on a specific territory under the influence of such emergency factors. In other words, we are referring to the situation in a particular area that has developed as a result of natural disaster, accident, catastrophe, which caused or may cause harm to human health, their death, damage to nature, significant material losses, violations of living conditions and activities of the population. At the same time, other circumstances, the occurrence of which may determine the decision to requisition the site, may also be those that have become the result of a terrorist act. These include the introduction of a state of emergency, implying a direct threat to the health and life of the population, the constitutional system of the country. The elimination of such circumstances is impossible without the use of emergency measures.
Differentiation of concepts
In the second paragraph of Article 51 of the LC there is a delimitation of the withdrawal of land due to emergency circumstances and related to the need to satisfy state or municipal needs. As the 55th article of the Code indicates, the latter is permissible, including through the redemption of allotments, on the grounds enshrined in Art. 49. Exceptional situations in which an exemption may be made for municipal or state needs cannot be regarded as emergency circumstances.
Allotment rights
Paragraph three of the 51st article of the Code stipulates the possibility for the owner of the object to choose a method of compensating the price of property if it is impossible to return it in kind. The subject has the right at his own discretion to submit a demand for reimbursement to him of the market value of the land plot or the provision of an equivalent allotment. Equivalence is assumed in terms of price, availability of communications and access roads, location, etc. When calculating compensation, the market value of the allotment that existed before the onset of emergency circumstances in connection with which a temporary withdrawal was carried out is used. However, as mentioned above, the owner of the object may demand compensation for losses incurred in connection with the application of this measure.
Going to court
Clause 4 of Article 51 of the LC establishes the right of the owner of the facility to request the return of the site if it was not returned after the cessation of the circumstances that served as the basis for the temporary withdrawal. The jurisdiction of the dispute is determined in accordance with the rules of Chapter 3 of the Civil Code, as well as Ch. 4 agribusiness. The legal grounds for filing a lawsuit may be the 301st article of the Civil Code, which regulates the specifics of claiming property from illegal someone else's use, as well as, in fact, the 51st norm of the LC.
Restriction of rights
The rules of the fifth paragraph of Article 51 of the LC exclude the application of the provisions of paragraphs 1, 3 and 4 if, due to emergency situations, which serve as the basis for the requisition, the allotment belonging to the entity was temporarily (for the duration of the circumstances) occupied to provide protection vital civil, state and public interests from emerging threats. For example, this is possible if the site is located in the area of the anti-terrorist operation in accordance with Art. 13 Federal Law No. 35. It seems that the legal consequences of restrictions should be determined in the context of Article 56 of the LC. However, in view of the direct indication of paragraph 5 of the 51st norm, the owner of the allotment may demand compensation in court for losses incurred in connection with the restriction of his right. Other consequences may be fixed by other normative acts (for example, the already mentioned Federal Law No. 35).
Challenge assessment
The possibility of appeal is fixed in paragraph 6 of Article 51 of the LC. The stipulated provisions allow the subject to demand a review of the assessment, on the basis of which the calculation of compensation for the allotment price and the losses incurred is made. One point should be clarified. We are talking not only about compensation for losses caused directly by the requisition, but also about losses arising from the restriction of the owner’s right, the code of his property was used to ensure the protection of public, civil or state interest.
Return Procedure
As mentioned above, the requisition procedure must be confirmed by an appropriate document. It is drawn up by the executive power structure in accordance with the decision on the temporary seizure of property. A document confirming the application of a coercive measure is necessary when:
- Contesting the amount of compensation in court.
- Claim for return of allotment.
ZK provides a situation when the return of the site cannot be carried out for one reason or another. In this case, the owner must receive compensation for the price of the object or an equivalent plot. In addition, under the law, a citizen has the right to demand compensation for moral damage along with material damage. If the reasons why the plot was requisitioned have disappeared, the property must be returned to the owner.
The difficulty of calculating the redemption payment
As the judicial practice shows, in determining the amount of compensation a lot of controversy arises. The calculation takes into account many factors. First of all, when determining the amount of payment, the type of allowable use of the allotment is taken into account. It sets the Classifier of land . Of course, location is also of great importance. For example, a land plot in a city with developed infrastructure will have a greater value than it would in a suburb.
The owner must submit an application for payment of the real price of the object. Depending on the type of permissible use established in accordance with the Classifier of land plots, the inventory and cadastral value of the allotment is determined. When determining the real price of property, qualitative indicators are also taken into account. In particular, we are talking about the condition and fertility of the soil. When determining the final amount of payment, the owner and the authorized body enter into an agreement. It indicates, in fact, the amount of compensation, and also marks the absence of claims of the parties to each other.
Allotment of land for municipal and state needs
The grounds for applying this measure are enshrined in article 49 of the LC. The withdrawal of property for municipal and state needs is carried out in connection with:
- Fulfillment of the terms of international agreements of the Russian Federation.
- The construction / reconstruction of facilities of energy systems, nuclear energy, defense and security of the state, communications and transport of federal / regional significance, providing space activities, electricity, heat and gas supply, hot / cold water supply or sanitation, linear facilities providing natural monopolies, and also roads of inter-municipal, local, regional and federal significance.
This list is considered open. Other grounds for withdrawing plots for municipal or state needs may be provided for by other federal laws.
Conclusion
As practice shows, disputes over the return of requisitioned land to owners are rare. The main difficulties appear in the calculation of compensation. However, it is worth saying that this issue is under special control of state and regional authorities. In any case, a person who does not agree with the assessment may apply to the court to protect their interests. It is advisable to use the help of a qualified lawyer. The fact is that in such disputes it is necessary to know the nuances of the law and apply them correctly. Not every owner knows the provisions of regulatory acts so well.