The land under the residential building is owned. A plot of land for an apartment building. The concept of ownership of land under an apartment building

Analysis of the situation step by step:

Step 1. Hold a general meeting of owners of premises in an apartment building on the formation of a land plot
Step 2. Contact the authorized bodies with an application for the formation of a land plot
Step 3. Contact a cadastral engineer to prepare a boundary plan
Step 4. Prepare documents for cadastral registration and registration of common shared ownership of a land plot
Step 5. Contact Rosreestr for cadastral registration and registration of common shared ownership rights

The land plot on which the apartment building is located, with elements of landscaping and landscaping, other objects intended for the maintenance, operation and improvement of this house and objects located on the specified land plot belongs to the owners of the premises on the right of common shared ownership (clause 4, part 1, article 36 Housing Complex of the Russian Federation).

Note. You can obtain information about the fact of the formation of a site under an apartment building and its cadastral registration on the public cadastral map on the Rosreestr website.

To register ownership of a land plot under an apartment building, we recommend following the following algorithm.

Slight confusion of concepts and regulatory framework

After the construction (or reconstruction) of housing is completed, it is the turn of the surrounding space. The number of owners trying to create beds from fence to gate is decreasing every year. Increasingly, landowners are trying to combine practicality and beauty, and therefore, when they talk about improving the area around their house, they mean landscape design.

Meanwhile, the legislation uses the concept of local area, which differs from everyday life. Initially it referred to apartment buildings; I meant the area adjacent to the house. There is no clear definition in the documents, but the home territory means the land plot necessary for servicing the property.

The area of the local area for multi-apartment and individual buildings is determined according to different rules, but for private housing the procedure seems simplified. The site plan indicates the area owned; in this case, the adjacent territory is considered to be a strip of land 1.5 m wide outside the fence.

Land Code of the Russian Federation Source tverbti.ru

This land may be the property of the owner, and then it is included in the cadastral passport of the land plot. Otherwise, it is considered the property of municipal services. Depending on the accessory, responsibilities for care and operation are divided.

How to register ownership of a plot of land in an apartment building?

The relationship will be shared ownership.

According to the new Housing Code, the adjacent territory belongs to common property. And a lot depends on who the land is registered to: whether the owner of the apartment must pay land tax, who makes decisions about landscaping the local area. The decision to register or not to register the land depends on what you will see from the windows of your home: a landscaped green courtyard with a children's playground or unauthorized landfills and parking lots. It is also impossible to ignore Article 7.1. Code of Administrative Offenses, according to which the use of a land plot without duly executed title documents for the land entails the imposition of an administrative fine on citizens.

Our official is always right. Of course, we can explain to the official that, according to the clarifications of the Ministry of Justice of Russia (letter dated April 21, 2006 No. 04/3201-E 3) and the Ministry of Finance of Russia (letter dated May 17, 2006 No. 03-06-02-02/65), that “if rights to property subject to state registration arise from the moment of their registration (clause 2 of Article 8, Article 223 of the Civil Code of the Russian Federation), then state registration of these rights is of a legal nature, and in the case where the right to real estate subject to state registration, arises in accordance with federal law not from the moment of state registration (for example, paragraph 5 of Article 16 of the Federal Law “On the Enactment of the Housing Code of the Russian Federation”), state registration is of a legal nature.”

In accordance with Art. 36 of the Housing Code of the Russian Federation, the owners of premises in an apartment building, by right of common shared ownership, own the land plot on which the house is located, with elements of landscaping and landscaping. A similar provision is enshrined in paragraph 1 of Art. 16 Federal Law “On the entry into force of the Housing Code of the Russian Federation”.

Article 36 of the Land Code of the Russian Federation

Articles 36, 37, 44 of the Housing Code of the Russian Federation

Article 16 of the Federal Law of December 29, 2004 No. 189-FZ “On the entry into force of the Housing Code of the Russian Federation”

Article 6 of the Federal Law of December 29, 2004 No. 191-FZ “On the entry into force of the Town Planning Code of the Russian Federation”

Federal Law of July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it”

Order of the Ministry of Justice of the Russian Federation dated February 14, 2007 No. 29 “On approval of instructions on the specifics of making entries in the Unified State Register of Rights to Real Estate and Transactions with It during the state registration of rights to real estate objects that are common property in an apartment building, providing information on registered rights of common shared ownership of such real estate objects.”

On the basis of these regulatory legal acts, the constituent entities of the federation adopt their laws and regulations, taking into account the specifics of their regions.

Based on the analysis of these regulatory legal acts, the following steps for registering rights to a plot should be highlighted.

Step I. Holding a general meeting of owners of premises in an apartment building.

The need for this step is stated in paragraph 3 of Art. 16 of the Federal Law of December 29, 2004 No. 189-FZ “On the entry into force of the Housing Code of the Russian Federation.” The procedure for holding a general meeting of premises owners is established by Art. 45 - 48 Housing Code of the Russian Federation. In accordance with this norm, any of the owners of premises in the house has the right to initiate a general meeting. The general meeting of owners of premises in an apartment building is valid (has a quorum) if the owners of premises in this building or their representatives with more than fifty percent of the votes of the total number of votes took part in it. Decisions of the general meeting are made by a majority of votes from the total number of votes taking part in this meeting. The general meeting of owners of premises in the house on the above issue should also authorize a person to apply to the relevant authorities with an application for the formation of a site and the acquisition of rights to it. The general meeting must discuss and make a certain decision; based on the results of the meeting, a protocol must be drawn up and a decision must be made.

I would like to draw special attention to the text of the Statement itself of the person authorized by the general meeting of owners of premises in an apartment building on the formation of a land plot. “In order to implement the decision of the general meeting of owners of premises in an apartment building at the address: _______ from _________ (date), in accordance with the Housing and Land Codes of the Russian Federation, I ask you to formulate the land plot on which the specified house is located to provide the owners with common shared ownership premises in an apartment building." I would like to recommend that owners pay more attention to the highlighted phrase and compare it with the text in Part 1 of Article 36 of the Housing Code of the Russian Federation, concerning the description of common property - a land plot. This article states more broadly: “the land plot on which this house is located, with elements of landscaping and improvement, and other objects intended for the maintenance, operation and improvement of this house, located on the specified land plot.”

Step II. Applying for the transfer of a land plot under an apartment building into the common shared ownership of the owners of the premises in it.

The need for this step comes from the requirements of clauses 5 and 6 of Art. 36 of the Land Code of the Russian Federation. The indicated rule of law is subject to application due to the fact that the procedure for providing land plots under an apartment building into the common shared ownership of apartment owners must comply with the general procedure for providing land plots into the common shared ownership of persons - owners of real estate located on this land plot, which is established by p. 5, 6 tbsp. 36 of the Land Code of the Russian Federation.

Based on the decision of the general meeting of owners of premises in an apartment building, any person authorized by the said meeting has the right to apply to a land management organization to carry out land management work;

In each subject of the federation, authorized bodies have been appointed to accept applications for the acquisition of ownership of a land plot. As a rule, the land resources department has its own information websites and information stands with sample documents.

Step III. Applying for the formation of a site.

Article 16 of the Federal Law “On the Enactment of the Housing Code of the Russian Federation” defines the procedure for the transfer of a land plot into the common shared ownership of the owners of premises in an apartment building. It says:

"1. In the existing development of settlements, the land plot on which the apartment building and other real estate objects included in such a building are located is the common shared property of the owners of the premises in the apartment building.

2. The land plot on which the apartment building and other real estate objects included in such a building are located, which was formed before the entry into force of the Housing Code of the Russian Federation and in respect of which state cadastral registration was carried out, passes free of charge into the common shared ownership of the owners of the premises in the apartment building home.

3. If the land plot on which the apartment building and other real estate objects included in such a building are located was not formed before the entry into force of the Housing Code of the Russian Federation, on the basis of a decision of the general meeting of owners of premises in the apartment building, anyone authorized by the said meeting a person has the right to apply to state authorities or local authorities with an application for the formation of a land plot on which an apartment building is located.”

Based on the land management work carried out, the local government body, by administrative act (decree, order), approves the draft boundaries of the given land plot;

Step IV. Formation of a land plot.

According to the requirements of federal legislation (clause 4 of article 16 of the Federal Law “On the implementation of the Housing Code of the Russian Federation”), the formation of a land plot on which an apartment building is located is carried out by state authorities or local governments.

According to Art. 6 of the Federal Law “On the entry into force of the Town Planning Code of the Russian Federation” before the entry into force in the prescribed manner of technical regulations on the organization of territories, placement, design, construction and operation of buildings, structures, structures in the event that the built-up areas are not divided into land plots, the boundaries of land plots on which apartment buildings are located are established through the preparation of territorial planning projects and territorial surveying projects, which are approved by the head of the local administration of the settlement, the head of the local administration of the city district, in compliance with the procedure of public hearings in accordance with Article 46 of the Town Planning Code of the Russian Federation.

2. General provisions

2.1. If the land plot on which the apartment building and other real estate objects included in such a building are located is not formed before March 1, 2005, on the basis of a decision of the general meeting of owners of premises in the apartment building, any person authorized by the said meeting has the right to contact the authorities local government with an application for the formation of a land plot on which an apartment building is located.

2.2. The land plot on which the apartment building and other real estate objects included in such a building are located, from the moment of its formation and state cadastral registration, passes free of charge into the common shared ownership of the owners of premises in the apartment building in the manner and on the conditions established by civil and housing legislation. To transfer such a plot of land into the common shared ownership of the owners of premises in an apartment building, the publication of a special administrative act of local government bodies is not required.

2.5. The composition of common property owned by the right of common shared ownership to the owners of premises in an apartment building is determined in accordance with Decree of the Government of the Russian Federation dated August 13, 2006 No. 491 “On approval of the rules for maintaining common property in an apartment building.”

2.6. The boundaries of land plots on which an apartment building and other real estate objects included in such a building are located are established along red lines, the boundaries of adjacent land plots (if any) and driveways, natural boundaries, the boundaries of the allotment of main engineering and transport communications, if urban planning requirements not stated otherwise.

2.7. The boundaries of the land plot include all objects included in the real estate, entrances and passages to them, and also provide access to all objects of social engineering and transport infrastructure.

2.8. When establishing boundaries, provision must be made to ensure the rights of other persons to use the objects necessary for them within the boundaries of the land plot: parts of underground and above-ground space occupied or intended for the placement of main utilities, pedestrian walkways and driveways to objects located outside the site, unless otherwise access to them is impossible, as well as to the necessary public facilities in accordance with urban planning standards and land use and development rules in force during the construction period.

2.9. The public territory (main passages, children's, physical education and sports grounds and structures, tracts of green space, other public facilities) within the boundaries of a block, microdistrict or other element of the planning structure is subject to transfer into ownership or lease to the owners of premises in an apartment building only if it is established relevant restrictions and easements.

2.10. The boundaries of isolated land plots within which real estate objects are located, intended for electricity, heat, gas and water supply to the population and sewerage, as well as the boundaries of the zones of public easements within residential areas, microdistricts to ensure unhindered servicing of the specified property are established by the authorities local government until July 1, 2007

2.11. The standard size of a land plot transferred into common shared ownership to the owners of premises in an apartment building free of charge is determined depending on the area of the land plot on which the apartment building and other real estate objects included in such a building are located, as well as taking into account the territories adjacent to them, necessary to ensure their functioning (maintenance), taking into account compliance with the requirements of urban planning standards, fire safety, sanitary gaps between buildings and other standards that ensure normal living conditions in an apartment building, maintenance of residential buildings and other property, as well as access to these objects. At the same time, normal living conditions for citizens on adjacent land plots and the rights of owners, owners, users and tenants of these plots, as well as the owners of buildings, structures and structures located on them, must be ensured.

2.12. Calculation of the standard sizes of land plots on which an apartment building and other real estate objects included in such a building are located is carried out according to the methodology approved by order of the Ministry of Land Construction of the Russian Federation dated August 26, 1998 No. 59 “On approval of methodological instructions for calculating the standard sizes of land plots in condominiums” .

2.13. If the actual area of a land plot in an existing building is less than the standard size of the area transferred free of charge into the common shared ownership of the owners of premises in an apartment building in accordance with current legislation, and increasing the size of the land plot at the expense of adjacent land plots is not possible, then the boundaries of the transferred land plot of the apartment building houses are established along actually existing boundaries.

2.14. The excess territory can be transferred to the owners of premises in an apartment building for ownership (for a fee), rent or free use only on the condition that, in accordance with the approved urban planning and land management documentation, it cannot be used as an independent object.

2.15. The division of a land plot provided for the use of several apartment buildings into several land plots is carried out upon a joint application to the local government body by authorized representatives of the owners of the premises of these buildings who wish to demarcate this site with the provision of a delimitation project carried out by an organization that has the right to carry out these works.”

Step V. Making a decision to provide a land plot into common shared ownership

Please note that in accordance with Art. 16 of the Federal Law of December 29, 2004. No. 189-FZ “On the entry into force of the Housing Code of the Russian Federation”, a land plot formed and passed cadastral registration passes into the common shared ownership of the owners of premises in an apartment building, that is, common shared ownership of the owners of the premises of the house arises by force of law.

Some regions, with their regulatory documents (for example, the Rostov region), do not require the publication of a special administrative act of local government bodies for the transfer of a land plot into common shared ownership of the owners of premises in an apartment building.

In Moscow, for example, the Department of Land Resources is preparing a decision on the gratuitous provision of a land plot into the common shared ownership of the owners of the premises in it.

In accordance with paragraph 5 of Art. 16 of the Federal Law “On the entry into force of the Housing Code of the Russian Federation”, from the moment of state cadastral registration, the land plot on which the apartment building and other real estate objects included in such a building are located passes into the common shared ownership of the owners of the premises in the apartment building.

Let us repeat and recall that according to the clarifications of the Ministry of Justice of Russia (letter dated April 21, 2006 No. 04/3201-E 3) and the Ministry of Finance of Russia (letter dated May 17, 2006 No. 03-06-02-02/65), that “if the rights to property subject to state registration arise from the moment of their registration (clause 2 of Article 8, Article 223 of the Civil Code of the Russian Federation), then the state registration of these rights is of a legal nature, and in the case where the right to real estate subject to state registration arises in accordance with federal law, not from the moment of state registration (for example, paragraph 5 of Article 16 of the Federal Law “On the Enactment of the Housing Code of the Russian Federation”), state registration is of a legal nature.”

Step VII. State registration of common shared ownership rights.

From the moment the land plot is formed and its state cadastral registration is carried out, the land plot on which the apartment building and other real estate objects included in such a building are located passes free of charge into the common shared ownership of the owners of the premises in the apartment building. But, in order to avoid state registration of the rights of other persons to a land plot that has become common shared ownership of the owners of residential and non-residential premises in an apartment building, the authorized person must contact the Office of the Federal Registration Service to carry out state registration of the right of common shared ownership of the land plot.

It is advisable to make an entry about the right that has arisen by force of law in the Unified State Register of Rights to Real Estate and Transactions with It (USRP), which meets the requirements of paragraph 1 of Art. 2 Federal Law “On state registration of rights to real estate and transactions with it.”

For state registration of the rights of owners of premises in an apartment building to the common property of this building, the following documents are required: an application for state registration of the right of common shared ownership (for each object of common real estate). (The application can be submitted by a person authorized by the general meeting of owners or a representative of the HOA); a document confirming the authority of the owner’s representative; document confirming payment of state duty; information about the owners and the premises they own; right establishing documents for common real estate; technical passport of the house.

All the best.

When the adjacent territory is registered in the name of the owner of the house

A full list of rights and obligations of land owners, including in relation to the local area, is prescribed in the Land Code. If the plot outside the fence belongs to the owner of the house, then the improvement of the local area falls almost entirely on his shoulders. Responsibilities include the following types of work:

Timely cleaning.

This is a key responsibility of land owners or occupiers in the private sector. They are responsible for removing debris and snow and installing a garbage container.

Roads are not included in the list - they are always on the balance sheet of public utilities (the municipality). It is possible to delegate cleaning responsibilities to the management company.

Where does the area of responsibility end Source kpcdn.net

Maintaining an aesthetic appearance.

It is understood that landscaping and vegetation maintenance is carried out by the owners. Usually, owners willingly plant trees, bushes and flowers, trying to make the site beautiful and useful.

If you need to cut down dry branches, you can contact the management company. If the local area is not privatized, municipal services take care of the maintenance and landscaping themselves.

Lighting of the local area.

Lighting outside the perimeter is provided by the owner; municipal services are not involved.

Security.

The owners provide free access for emergency services, and also monitor the normal operation of communications.

How to register the property of a local area for free

Note:
before state registration of the right of common shared ownership of a land plot, which is common property in an apartment building, the owner of a residential premises must register his right to this premises, which arose before the entry into force of the Registration Law.
Also read: Is it possible to challenge a will after the death of the testator?

We submit these documents to the administration’s “Single Window”. We receive the incoming number and wait. In the meantime, the administration, at its own expense, carries out a topographic survey of the site, and after that you are invited to agree on its boundaries. After this, the Administration issues an “order to approve the land plot scheme” for your house. Now money for the design of local areas is allocated from the local budget. Therefore, after receiving the order, you will have to wait for the city to allocate money for land surveying and registration of a cadastral passport for your land plot.

When the owner is a municipal service

If the land outside the perimeter does not belong to the owner of a private house, it is managed by structural units of the municipal service; their rights are also spelled out in the land code. The home owner must understand that in this case the services have the right to take the following actions:

Carry out landscaping and landscaping at your own discretion.

Around the house Source rixot.ru

Ensure order and security with the right to install video surveillance.
Take care of lighting, install functional or decorative lamps.
Remove debris, leaves, snow; cut down branches that are dangerous for communications.
Asphalt the roadway.

Housing and communal services consulting

Before we begin to address this issue, let’s name the main legal acts at the federal level. So that every owner of premises in an apartment building has an idea of the procedure for registering the right of common shared ownership of the land plot under his apartment building, we will try to construct this article with explanations of each step of action on the way to registering a plot of land as ownership. But, first, let’s name the starting points - federal regulatory legal acts, which in one way or another stipulate the rights of the owners of premises in an apartment building to the land plot under the house and the adjacent territory: - Article 36 of the Land Code of the Russian Federation; — Articles 36, 37, 44 of the Housing Code of the Russian Federation; — Article 16 of the Federal Law of December 29, 2004 No. 189-FZ “On the entry into force of the Housing Code of the Russian Federation”; — Article 6 of the Federal Law of December 29, 2004 No. 191-FZ “On the entry into force of the Town Planning Code of the Russian Federation”; — Federal Law No. 122-FZ dated July 21, 1997 “On state registration of rights to real estate and transactions with it”; — Order of the Ministry of Justice of the Russian Federation dated February 14, 2007 No. 29 “On approval of instructions on the specifics of making entries in the Unified State Register of Rights to Real Estate and Transactions with It during the state registration of rights to real estate objects that are common property in an apartment building, providing information on registered rights of common shared ownership of such real estate objects.” On the basis of these regulatory legal acts, the constituent entities of the federation adopt their laws and regulations, taking into account the specifics of their regions. Based on the analysis of these regulatory legal acts, the following steps for registering rights to a plot should be highlighted.

An authorized person elected by the General Meeting of Premises Owners must apply to a state authority or local government body with an application for the formation of the land plot on which the apartment building is located. This requirement is contained in clause 3 of Art. 16 Federal Law “On the entry into force of the Housing Code of the Russian Federation”. Article 16 of the Federal Law “On the Enactment of the Housing Code of the Russian Federation” defines the procedure for the transfer of a land plot into the common shared ownership of the owners of premises in an apartment building. It says: “1. In the existing development of settlements, the land plot on which the apartment building and other real estate objects included in such a building are located is the common shared property of the owners of the premises in the apartment building. 2. The land plot on which the apartment building and other real estate objects included in such a building are located, which was formed before the entry into force of the Housing Code of the Russian Federation and in respect of which state cadastral registration was carried out, passes free of charge into the common shared ownership of the owners of the premises in the apartment building home. 3. If the land plot on which the apartment building and other real estate objects included in such a building are located was not formed before the entry into force of the Housing Code of the Russian Federation, on the basis of a decision of the general meeting of owners of premises in the apartment building, anyone authorized by the said meeting a person has the right to apply to state authorities or local authorities with an application for the formation of a land plot on which an apartment building is located.” Based on the land management work carried out, the local government body, by administrative act (decree, order), approves the draft boundaries of the given land plot. As an example, we add that based on the already mentioned PPM No. 431-PP dated June 27, 2006, the Department of Land Resources is also such an authorized authority in the city of Moscow.

More to read: What maternity benefits are due in 2020

How to landscape a yard

The site maintenance conditions include mandatory and recommended measures. If taking out garbage, preventing bushes from growing and cutting down dry branches is a duty, then the following work on arranging the local area is carried out at the discretion of the owners:

Landscape changes: leveling the territory, or, conversely, organizing the relief.
Planting fruit and ornamental plants.
Laying out the lawn and flower beds.
Taking care of soil quality, timely cultivation and fertilization.
Arrangement of the fence, possibly replacing part of it with a hedge made of deciduous shrubs or coniferous trees.

Reasonable approach Source artumstudio.ru

Arrangement of a recreation area (depending on preferences - gazebo, barbecue area, bathhouse).
Construction of a children's playground or sports ground, swimming pool.
Construction of a decorative pond.
Small landscape works: fountain, alpine slide.

The owner can arrange the private area as he sees fit. Within the framework of the land plot, any transformations and projects necessary for a comfortable life are possible. It is important that all actions do not go beyond the standards established by law and do not lead to a change in the purpose of the site.

See also: Catalog of companies that specialize in landscape work of any complexity