When analyzing legal practice, it becomes clear that usually a part of a property cannot be considered a full-fledged object of property relations. Nevertheless, the issue of a portion of the land is controversial. Currently, agreements have already begun to be concluded in which parts of allotments of land are used as full-fledged objects of law.
Concept and object
Part of the land is not an object of ownership. If a person owns the entire site, then he cannot be the owner of its part. Otherwise, the conclusion is that one title is awarded to a person twice. This fact is also confirmed by the practice in which it is considered impossible to be the owner of only a part of the land plot, if cadastral registration has been made with respect to the whole plot. Part of the land allotment in the cadastre is displayed separately on the basis of the owner’s desire to encumber the given territory with a lease, pledge or easement.
Article 6 of the RF Labor Code says that the objects of the respective relations are parts of the allotment of land. The law does not call them rights directly. At the same time, if part of the land plot is the objects of the relevant relations, then it will be logical to recognize them as objects of civil rights.
When part of the land is an object of law
From the provisions of the current law, we can conclude that the consideration of the allotment as an object of civil rights is directly related to such concepts as rent, pledge and easement.
At the same time, a pattern is observed in the norms of civil law, which consists in the fact that it is possible to determine parts of land plots as objects of property rights. Relevant provisions can be found in various laws besides the Civil Code.
It is possible to consider parts of the boundaries of the land plot and of it in the form of a GP object as a forced concession by the legislator, a kind of departure from theory (legal) to practice (economic). Part of the allotment is considered indivisible without the implementation of special procedures prescribed by law (cadastral registration). Thus, after the corresponding event, it actually becomes divisible.
Features of the procedure for obtaining a cadastral passport
When work is carried out on the cadastre, the specialist will not only keep records, consider the area of part of the land, but also take into account the legal consequences. It is important to know what will happen in the future with part of the allotment of land for which cadastral registration is carried out. For example, the law "On Cadastral Activities" No. 221-, in particular, clause 4 of Article 24 says that the data that are entered into the cadastre when registering is temporary. They lose their respective character from the moment of state registration of the property. Or when an educated object arises. If after one year from the date of registration the state registration of the lease is not carried out, then this information is canceled and not included in the cadastre of real estate.
If the applicant has submitted to the cadastral authority a land survey plan that contains data on the simultaneously created land plot and its part, then after the cancellation of the data on the corresponding part, the applicant will be sent only the decision made. The boundary plan is not sent to him, because it contains sections in which the temporary status of a part of the allotment of land has not expired or changed to the “recorded” temporary status that the land has (land, part of the land).
That is why the engineer must understand before starting work on what the customer is going to do with part of the land plot in the future. Otherwise, a situation may occur in which, upon the expiration of the established period, the cadastral data will be canceled and the corresponding work will need to be carried out again.
Information in the inventory
Clause 1, Article 5 of Law No. 221- mentioned above states that real estate objects included in this cadastre are assigned a unique account number in the territory of Russia. The cadastre contains data on a specific property, in particular:
- type (land or part thereof, building, premises and others);
- inventory number indicating the date of entry in the State Property Committee;
- description of the boundaries of the object (if it is a land plot or part thereof);
- area.
If a part of the object is encumbered, which does not apply to the entire property, this information is also indicated in the cadastre.
The persons who have the right to apply to the cadastre for registration of part of the land plot are the owners of the property or those for whose benefit the corresponding encumbrances are established.
When a cadastral passport is required
In paragraph 2 of article 26 of the law "On state. registration of rights to real estate and transactions with it »No. 122- states that if a plot or part of it is rented out, then a cadastral passport of the allotment must be attached to the lease agreement, in which the part to be leased is indicated. Based on this provision, we can assume that part of the allotment can still be leased without this document. One way or another, a lease agreement for a part of a land plot must be registered if it is concluded for a period of at least one year.
Approximately the same content can be found in paragraph 2 of article 27 of the same law. It says that if part of the allotment or other property belongs to the easement, then a cadastral document with a note about the easement's scope or an extract about this real estate property (which contains relevant information) should be attached to the necessary documents indicating the easement area ) Even if the scope of the easement is associated with a small area compared to a whole plot of land, it is impossible to use this part of the allotment without providing the necessary access.
If a servitude is drawn up
Article 274 of the Civil Code of the Russian Federation says that easements can be established for the laying and maintenance of power lines, communication lines and pipelines. Part of the land (this is where the communications are located) always takes up a smaller area compared to the one required for laying and maintenance. Therefore, the easement may also provide for a short-term right to use the entire plot or a significant part of it.
If a deposit is made
In connection with this Law “On Mortgage” No. 102-, namely, Clause 2 of Article 63, it is said that a mortgage will be prohibited in respect of a part of the allotment, the area of which is less than the size established by the regional regulatory documentation. From this provision, we can conclude that in general an appropriate mortgage agreement is allowed. Part of the land at the same time, according to some lawyers, cannot become a guarantee due to the difficulty of individualizing the property.
Site customization
Most likely, there is no problem in individualizing part of the site, since the law establishes the possibility of carrying out its cadastral registration. But the problem may be that the usual result of imposing a pecuniary penalty is the termination of obligations to the bank (full or in a certain part), as well as the transfer of ownership to a third party.
At the same time, the law does not provide for transactions in which a part of a land plot can be registered as a property. Thus, the allotment of land cannot be recognized as a full-fledged object of turnover in civil law. From an economic point of view, a pledge would be possible if a compulsory division of the site was also possible. But at the same time, it is not clear what the collateral object of the allotment could be if viewed from the perspective of jurisprudence.
The fact that part of the land is subject to registration is stated in the law “On state. cadastre of real estate »No. 221-FZ. In particular, it contains the following provisions:
- when describing the documents required for cadastral registration;
- at installation of accounting features of separate real estate objects and their parts;
- in standards and the transfer of the results of work on the compilation of a cadastral passport and land survey plan.
Arbitrage practice
Judicial practice, in addition to parts of land plots that have passed cadastral registration, recognizes the need to assign them a cadastral number in order to legally lease part of a residential building, a land plot, or rather, a part of it. It does not matter if the contract is concluded for a period of less than a year or is unlimited. The main thing is that it can be individualized according to the area and coordinates of the area. Many lawyers believe that registering part of the site for sublease is also optional.
It should be borne in mind that a clear position in judicial practice on this issue has not yet developed. There are examples in which the consideration of parts of the plots as objects of relevant rights was recognized as possible only when registering with cadastral registration.
Conclusion
Having analyzed the existing legislative provisions, we can conclude that part of the land is almost a full-fledged object of law, if the goal is to lease it. However, part of the allotment cannot be recognized as such, when it comes to collateral and easement. Even with the relevant provisions in the mortgage law, this possibility is excluded.
In addition, when transferring part of the land allotment for rent, cadastral registration is an optional procedure (according to many lawyers). Part of the allotment of land becomes the object of law not from the moment of registration, but from the moment of conclusion of the lease.
But it should be noted that at the present time there is no stable law enforcement practice on this issue. It seems that the situation will improve if the Land Code explicitly indicates a part of the land as an object of the right to lease.