Your question:
I want to apply for the lease of a land plot that is adjacent to my plot, which belongs to me on the right of private ownership.
In the application I want to indicate: ... I ask you to provide me with a land plot in accordance with paragraphs. 19 paragraph 2 of article 39.6 Z.K. without bidding for horticulture in accordance with the classifier of permitted use of land plots according to code 2.2 (name of the type of permitted use of land plots - personal subsidiary plot, description of the type of permitted use of land plots - production of agricultural products) ...
Is such a statement correct?
Can they refuse me?
What are the reasons for refusal?
Lawyer's response:
Hello, Natalia!
How do you understand you want to get a land plot for further purposes?
Article 39.6. Cases of provision of land plots, located in state or city ownership, for rent at auctions and without auctions
[Land Code of the Russian Federation] [Chapter V.1] [Article 39.6]
2. The contract for the lease of a land plot, located in state or city ownership, is concluded without bidding in case of provision of:
19) a land plot to a citizen for mowing, grazing farm animals, gardening or a land plot located outside the boundaries of a populated area, to a citizen for running a personal subsidiary farm;
Is such a statement correct?
Natalia You can get a sample application specifically at the Administration of the city of Khimki
Can they refuse me?
Natalia
Probable grounds for refusal are set out in Article 39.16. Grounds for refusal to provide a land plot, located in state or city ownership, without bidding (http://www.
Your question: land code article 39 6
According to my application, the formation of a land plot was initiated by developing a site planning project, all the costs of engineering and geodetic surveys and a planning project were incurred by me, further registration is also planned at my expense. Can I demand the conclusion of a lease agreement for this site without bidding in accordance with any of the paragraphs of Article 39.6 of the RF LC (for example, paragraph 6).
With paragraph 15, everything is of course clear, but there are risks, is it possible to demand on the basis of the fact that everything was done at your own expense without this procedure.
Lawyer's response:
In the event that a land plot was provided to you for running a personal subsidiary plot, gardening, dacha farming (clause 15, clause 2, article 39.6 of the Labor Code of the Russian Federation), for gardening or a land plot located outside the boundaries of a populated area for running a personal subsidiary plot ( 19, clause 2, article 39.6 of the Land Code of the Russian Federation), you have the right to conclude a new lease contract without bidding if the criteria provided for in clause 4, art. 39.6: 1) an application for concluding a new lease contract for such a land plot was submitted before the expiration date of the previously concluded lease contract for a land plot;
2) the exclusive right to acquire such a land plot in cases not possessed by another person;
3) a previously concluded lease contract for such a land plot was not terminated on the grounds provided for in paragraphs 1 and 2 of Article 46 of the Land Code of the Russian Federation;
4) at the time of the conclusion of a new lease contract for such a land plot, there are subparagraphs 1 - 30, paragraph 2 of Art. 39.6 of the Land Code of the Russian Federation grounds for providing a land plot without bidding, the lease contract for which was concluded without bidding (in your case, paragraphs
________________________________________
Your question: land code article 39 6
39.10 of the Land Code of the Russian Federation, clause 6, how can any citizen draw up this article correctly?
I can not understand what it means to be defined by the law of the subject. it municipalities defined by law or what.
Lawyer's response:
According to subparagraph 6, paragraph 2, article 39.10 of the Land Code of the Russian Federation, land plots that are in state or city ownership can be provided in
gratuitous use, including for a citizen for personal
housing construction, maintaining a personal subsidiary plot, whether the embodiment
peasant (farm) economy of its activities in urban
formations determined by the law of the subject of the Russian Federation, for a period not
more than 6 years.
In other words, in this case, the legislator foresaw the broad possibilities of the constituent entities of the Russian Federation to determine the corresponding urban formations, based on
socio-economic and demographic situation in a particular region,
which appropriate land plots can be provided in
free use.
I hope the answer was helpful to you!
________________________________________
Your question:
Hello! Please help me find a way out:
there was a lease agreement for planting vegetables without the right to cap. construction,
the contract has ended. The conclusion of a new contract is impossible without bidding in paragraph 2 of Article 39.6 of the RF LC. is it possible to conclude such an agreement without bidding for a new term.
According to the terms of the contract, it is terminated after the expiration of the specified period.
Lawyer's response:
Hello Love. Unfortunately, according to part 15 of article 39.8. of the Land Code of the Russian Federation, the tenant of a land plot, located in state or city ownership, does not have a pre-emptive right to conclude a lease contract for such a land plot for a new term without bidding.
________________________________________
1. A lease agreement for a land plot that is in state or municipal ownership is concluded at an auction held in the form of an auction, except for the cases provided for in paragraph 2 of this article.
2. A lease agreement for a land plot owned by the state or municipality shall be concluded without bidding if the following is provided:
1) land legal entities in accordance with the decree or order of the President Russian Federation;
2) a land plot for legal entities in accordance with the order of the Government of the Russian Federation for the placement of social and cultural facilities, the implementation of large-scale investment projects subject to the compliance of the specified objects, investment projects with the criteria, established by the Government Russian Federation;
3) a land plot to legal entities in accordance with the order of the highest official of a constituent entity of the Russian Federation for the placement of social, cultural and domestic facilities, the implementation of large-scale investment projects, provided that the specified objects, investment projects comply with the criteria established by the laws of the constituent entities of the Russian Federation;
4) a land plot for the fulfillment of the international obligations of the Russian Federation, as well as for legal entities to locate facilities designed to provide electricity, heat, gas and water supply, sewerage, communications, oil pipelines, federal, regional or local importance;
5) a land plot formed from a land plot that is in state or municipal ownership, including those provided for the integrated development of the territory, to the person with whom the lease agreement for such a land plot was concluded, unless otherwise provided by subparagraphs 6 and 8 of this paragraph;
6) a land plot formed from a land plot provided to a non-profit organization created by citizens for the integrated development of the territory for the purpose of individual housing construction, with the exception of land plots classified as public property, to members of this non-profit organization or, if provided by the decision general meeting members of this non-profit organization, this non-profit organization;
7) a land plot formed from a land plot provided to a non-profit organization created by citizens for gardening, horticulture, dacha farming, with the exception of land plots classified as public property, members of this non-profit organization;
8) a land plot formed as a result of the division of a land plot limited in circulation, provided to a non-profit organization created by citizens, for gardening, horticulture, dacha farming or for the integrated development of the territory for the purpose of individual housing construction and classified as common use property of this non-profit organization ;
9) a land plot on which buildings, structures are located, to the owners of buildings, structures, premises in them and (or) persons to whom these real estate objects are provided on the right of economic management or, in cases provided for in Article 39.20 of this Code, on the right of operational management;
10) a land plot on which objects of construction in progress are located, once for the completion of their construction to the owners of objects of construction in progress in the cases provided for in paragraph 5 of this article;
11) a land plot that is in permanent (unlimited) use of legal entities, to these land users, with the exception of legal entities specified in paragraph 2 of Article 39.9 of this Code;
12) a land plot for a peasant (farm) economy or agricultural organization in the cases established by the Federal Law "On the Turnover of Agricultural Land";
13) a land plot formed within the boundaries of a built-up area, to a person with whom an agreement on the development of a built-up area has been concluded;
13.1) a land plot for the development of the territory for the purpose of construction of economy class housing or for the integrated development of the territory for the purpose of construction of economy class housing to a legal entity that has entered into an agreement on the development of the territory for the purpose of construction of economy class housing or an agreement on the integrated development of the territory for the purpose of construction of economy class housing ; (The subparagraph is additionally included from March 1, 2015 by the Federal Law of July 21, 2014 N 224-FZ)
14) a land plot to citizens who have the right to priority or extraordinary acquisition of land plots in accordance with federal laws, laws of subjects of the Russian Federation;
15) a land plot to citizens for individual housing construction, personal subsidiary farming within the boundaries of a settlement, gardening, dacha farming, citizens and peasant (farm) farms for the peasant (farm) farm to carry out its activities in accordance with Article 39.18 of this Code;
16) a land plot instead of a land plot provided to a citizen or legal entity on the right of lease and withdrawn for state or municipal needs;
17) a land plot to religious organizations, Cossack societies included in State Register Cossack societies in the Russian Federation (hereinafter referred to as Cossack societies), for the implementation of agricultural production, the preservation and development of the traditional way of life and management of Cossack societies in the territory determined in accordance with the laws of the constituent entities of the Russian Federation;
18) a land plot to a person who, in accordance with this Code, has the right to acquire ownership of a land plot that is in state or municipal ownership, without holding an auction, including free of charge, if such a land plot is reserved for state or municipal needs or is limited in turnover;
19) a land plot to a citizen for haymaking, grazing of farm animals, gardening or a land plot located outside the boundaries of a settlement, to a citizen for running a personal subsidiary plot;
20) a land plot required for carrying out work related to the use of subsoil, to a subsoil user;
21) a land plot located within the boundaries of a special economic zone or in the territory adjacent to it, to a resident of a special economic zone or management company if it is involved in the manner prescribed by the legislation of the Russian Federation on special economic zones, to perform the functions of creating at the expense of funds federal budget, the budget of the subject of the Russian Federation, local budget, extra-budgetary sources of financing of real estate objects within the boundaries of the special economic zone and in the territory adjacent to it and for the management of these and previously created real estate objects;
22) a land plot located within the boundaries of a special economic zone or in the territory adjacent to it, for the construction of infrastructure facilities of this zone to a person with whom an authorized government of the Russian Federation federal agency The executive branch signed an agreement on cooperation in the development of the infrastructure of the special economic zone. An approximate form of an agreement on cooperation in the development of the infrastructure of a special economic zone is approved by the federal executive body authorized by the Government of the Russian Federation;
23) a land plot necessary for the implementation of activities provided for by a concession agreement, an agreement on public-private partnership, an agreement on municipal-private partnership, to a person with whom these agreements are concluded; Law of July 13, 2015 N 224-FZ.
23.1) a land plot for the development of the territory for the purpose of building and operating a rented house commercial use or for the development of the territory for the construction and operation of a rented house social use a person who has entered into an agreement on the development of the territory for the purpose of building and operating a rented house for commercial use or an agreement on the development of the territory for the purpose of building and operating a rented house for social use, and in cases provided for by the law of a constituent entity of the Russian Federation, a non-profit organization established by a constituent entity of the Russian Federation or a municipal education for the development of territories for the construction and operation of rented houses for social use;
24) a land plot necessary for carrying out activities in the field of hunting, to a person with whom a hunting management agreement has been concluded;
25) a land plot for the placement of reservoirs and (or) hydraulic structures, if the placement of these objects is provided for by territorial planning documents as objects of federal, regional or local significance;
26) a land plot for the implementation of the activities of the State Company "Russian Highways" within the boundaries of the right of way and roadside lanes highways;
27) a land plot for carrying out the activities of an open joint-stock company"Russian Railways" for the placement of infrastructure facilities for public railway transport;
28) a land plot to a resident of the territorial development zone, included in the register of residents of the territorial development zone, within the boundaries of the specified zone for the implementation of an investment project in accordance with the investment declaration;
29) a land plot to a person who has the right to harvest (catch) aquatic biological resources on the basis of a decision to grant them for use, an agreement on the provision of a fishing area or an agreement on the use of aquatic biological resources, for the implementation of activities provided for by the said decision or agreements;
30) a land plot to a legal entity for the placement of nuclear installations, radiation sources, storage facilities for nuclear materials and radioactive substances, storage facilities, storage facilities for radioactive waste and disposal facilities for radioactive waste, decisions on the construction and location of which were adopted by the Government of the Russian Federation;
31) a land plot intended for agricultural production, to a tenant who properly used such a land plot, provided that an application for concluding a new lease agreement for such a land plot was submitted by this tenant before the expiration date of the previously concluded lease agreement for such a land plot;
32) a land plot to a tenant (with the exception of tenants of land plots specified in subparagraph 31 of this paragraph), if this tenant has the right to conclude a new lease agreement for such a land plot in accordance with paragraphs 3 and 4 of this article;
33) a land plot to a resident of the free port of Vladivostok on the territory of the free port of Vladivostok.
34) a land plot to a citizen in accordance with the Federal Law "On the peculiarities of providing citizens with land plots that are in state or municipal ownership and located on the territories of the constituent entities of the Russian Federation that are part of the Far Eastern federal district, and on amendments to certain legislative acts of the Russian Federation.
3. Citizens and legal entities that are tenants of state or municipally owned land plots have the right to conclude a new lease agreement for such land plots without bidding in the following cases:
1) a land plot has been leased to a citizen or legal entity without holding an auction (with the exception of cases provided for by paragraph 13, 14 or 20 of Article 39.12 of this Code);
2) a land plot was provided to a citizen at an auction for gardening or dacha farming.
4. A citizen or a legal entity that is a tenant of a land plot shall have the right to conclude a new lease agreement for such a land plot in the cases specified in paragraph 3 of this article, if the following conditions are present in aggregate:
1) an application for concluding a new lease agreement for such a land plot was submitted by this citizen or this legal entity before the expiration date of the previously concluded land plot lease agreement;
2) the exclusive right to acquire such a land plot in the cases provided for by this Code and other federal laws does not belong to another person;
3) the previously concluded lease agreement for such a land plot was not terminated with this citizen or this legal entity on the grounds provided for in paragraphs 1 and 2 of Article 46 of this Code;
4) at the time of the conclusion of a new lease agreement for such a land plot, there are grounds provided for in subparagraphs 1-30 of paragraph 2 of this Article for the provision without holding a tender of a land plot, the lease agreement of which was concluded without holding a tender.
5. Leasing without holding a tender of a land plot, which is in state or municipal ownership and on which an object of construction in progress is located, is carried out once to complete the construction of this object:
1) to the owner of an object of construction in progress, the ownership of which was acquired as a result of a public auction for the sale of this object, seized from the previous owner in connection with the termination of the lease agreement for a land plot in state or municipal ownership;
2) to the owner of an object of construction in progress, with the exception of the one specified in subparagraph 1 of this paragraph, if the authorized body, within six months from the date of expiration of the previously concluded lease agreement for the land plot on which this object is located, has not filed a claim with the court for withdrawal of this object by sale at public auction or the court refused to satisfy this requirement or this object was not sold at public auction due to the absence of persons participating in the auction. The provision of a land plot for rent without an auction in accordance with this subparagraph is allowed, provided that such a land plot was not provided for the completion of the construction of this object to any of the previous owners of this object.
6. If the only application for participation in the auction for the right to conclude a lease agreement for a land plot in state or municipal ownership is submitted by a person who meets the requirements for participants in the auction specified in the notice of the auction and whose application for participation in the auction meets those specified in the notice on holding an auction, the conditions of the auction, or if only one applicant is recognized as the sole participant in the auction or only one of its participants took part in the auction, the lease agreement for such a land plot is concluded with the specified person.
The commented article introduces a general rule providing that the main way to conclude a lease agreement for a state or municipally owned land plot is through auctions. The procedure for organizing and holding such an auction is provided for in Art. 39.11 and 39.12 RF LC. It also provides for the possibility of concluding a lease agreement with a person who is the only one who has expressed his intention to participate in the auction and who meets the conditions of the auction, if the auction is declared invalid (for more details, see the commentary to Article 39.12 of the Land Code of the Russian Federation).
The approach envisaged by the legislator to regulate the methods of concluding a lease agreement for a land plot has undergone major changes.
So, before the introduction of the commented article, the RF LC provided only a limited number of cases of mandatory bidding for the right to conclude these contracts for construction purposes: 1) if the land plot was formed (clause 6, article 30 of the RF LC); 2) when placing an object in a city and rural settlement in accordance with the urban planning documentation on development and the rules for land use and development (clause 11, article 30 of the Land Code of the Russian Federation); 3) in case of granting a land plot for the needs of agricultural production or land plots from the forest fund or for individual housing construction, personal subsidiary farming (clause 11, article 30 of the Land Code of the Russian Federation); 4) in the case of granting a land plot for housing construction or complex development for the purposes of housing construction (clause 2 of article 30.1, clause 2 of article 30.2 of the Land Code of the Russian Federation).
In addition, broad powers were given to state authorities of the constituent entities of the Russian Federation and local governments in terms of establishing a list of cases when the provision of land plots owned by the constituent entities of the Russian Federation, municipal property or state non-delimited property for construction is carried out exclusively at auction.
Thus, earlier legal regulation proceeded from the establishment of cases when auctions were to be held. At the same time, all these cases concerned only land plots provided for construction. The commented article implements a conceptually different approach - land lease agreements are concluded based on the results of auctions held in the form of auctions, with the exception of a limited number of cases: this approach is more consistent with the conditions market economy and aims to promote competition.
It is possible to single out the following groups of cases when the provision of land plots for rent is carried out without bidding.
1. Provision of land plots for sale state functions, large-scale investment projects and solving issues of local importance (subparagraphs 1-4, 22, 25-27, 30 paragraph 2 of the commented article).
Considering that these tasks allow for a fairly broad interpretation, subparagraphs 1-4 of paragraph 2 of the commented article for the provision of land plots provide not only for the purposes of such provision, but also for the existence of certain legal acts - a decree or order of the President of the Russian Federation, an order of the Government of the Russian Federation, a senior official faces of the subject of the Russian Federation. Moreover, objects of socio-cultural, municipal and domestic purposes, destinations, large-scale investment projects must comply with the criteria established by the Government of the Russian Federation or the laws of the constituent entities of the Russian Federation.
The concept of an investment project is disclosed in Art. 1 FZ of February 25, 1999 N 39-F3 "On investment activity in the Russian Federation, carried out in the form capital investments"(SZ RF. 1999. N 9. St. 1096; 2004. N 35. St. 3607; 2006. N 6. St. 636; 2010. N 30. St. 4015; 2011. N 30. St. 4596; N 51. Art. 7448), according to which it is a justification for the economic feasibility, volume and timing of capital investments, including the necessary project documentation, developed in accordance with the legislation of the Russian Federation, as well as a description of practical actions for the implementation of investments (business plan).
At the same time, the concept " large-scale project"should not be identified with the "priority investment project" provided for by the said Federal Law, due to different grounds for classifying investment projects from the perspective of the Land Code of the Russian Federation as large-scale and priority ones.
When providing land plots for rent in accordance with subparagraph 4 of paragraph 2 of the commented article, it must be borne in mind that the concepts of "objects of federal, regional, local significance" are disclosed in Art. 1 of the Civil Code of the Russian Federation, according to clauses 18-20 of which objects of federal significance are objects capital construction, other objects, territories that are necessary for the exercise of powers on issues within the jurisdiction of the Russian Federation, state authorities of the Russian Federation by the Constitution of the Russian Federation, federal constitutional laws, federal laws, decisions of the President of the Russian Federation, decisions of the Government of the Russian Federation, and have a significant impact on socio-economic development Russia.
The types of objects of federal significance to be displayed on the territorial planning schemes of the Russian Federation are determined by the Government of the Russian Federation, with the exception of objects of federal significance in the field of national defense and state security. The types of objects of federal importance in the field of national defense and state security, to be displayed on the territorial planning schemes of the Russian Federation, are determined by the President of the Russian Federation.
Objects of regional importance - objects of capital construction, other objects, territories that are necessary for the exercise of powers on issues related to the jurisdiction of the constituent entity of the Russian Federation, state authorities of the constituent entity of the Russian Federation by the Constitution of the Russian Federation, federal constitutional laws, federal laws, the Constitution (charter) and laws of the constituent entity of the Russian Federation , decisions of the highest executive body of state power of the subject of the Russian Federation, and have a significant impact on the socio-economic development of the subject of the Russian Federation.
The types of objects of regional significance to be displayed on the territorial planning scheme of a constituent entity of the Russian Federation are determined by the law of the constituent entity of the Russian Federation. Objects of local importance - objects of capital construction, other objects, territories that are necessary for the exercise by local governments of powers on issues of local importance and within the limits of transferred state powers in accordance with federal laws, the law of a constituent entity of the Russian Federation, charters of municipalities and have a significant impact on social -economic development of municipal districts, settlements, urban districts.
Types of objects of local importance municipal district, settlement, urban district, to be displayed on the territorial planning scheme of the municipal district, master plan settlements, the general plan of the urban district, are determined by the law of the subject of the Russian Federation.
The Town Planning Code of the Russian Federation also provides for the need to develop a program for the integrated development of communal infrastructure systems of a settlement, urban district - a document establishing lists of measures for the construction, reconstruction of electric, gas, heat, water supply and sanitation systems, facilities used for disposal, neutralization and disposal of solid household waste, which are provided for, respectively, by the schemes and programs for the development of a unified national (all-Russian) electrical network for a long-term period, the general layout of electric power facilities, federal program gasification, relevant inter-regional, regional gasification programs, heat supply schemes, water supply and sanitation schemes, waste management programs.
An analysis of the norms of the Civil Code of the Russian Federation (part 4 of article 9, parts 6 and 7 of article 26) allows us to conclude that the above objects according to general rule should be reflected in the territorial planning documents of the appropriate level (this rule does not apply to cases of granting land plots to fulfill the international obligations of the Russian Federation, which implies the existence of relevant international treaties, agreements, etc.).
Subparagraphs 25 and 30 of paragraph 2 of the commented article, which provide for the possibility of providing land plots for rent without holding tenders, are a special case of subparagraph 4 of the said paragraph. At the same time, it should be noted that the concept of reservoirs of the VK RF is not disclosed. In accordance with GOST 19179-73 "Land hydrology. Terms and definitions", a reservoir is understood as an artificial reservoir formed by a water-retaining structure on a watercourse for the purpose of storing water and regulating flow.
Hydraulic structure in accordance with Art. 3 Federal Law of July 2, 1997 N 117-FZ "On the safety of hydraulic structures" (SZ RF. 1997. N 30. Art. 3589; 2003. N 2. Art. 167; 2004. N 35. Art. 3607; 2005 No. 19. St.1752, 2006. No. 52. St.5498, 2008. No. 29. St.3418, 2009. No. 1. St.17, No. 52. St.6450, 2010. No. 31. St.4195 ; 2011. N 30. Art. 4590, 4591; N 49. Art. 7015; N 50. Art. 7359; 2012. N 53. Art. 7616; 2013. N 9. Art. , spillway, water outlet and outlet structures, tunnels, canals, pumping stations, shipping locks, ship lifts; structures designed to protect against floods, destruction of the banks and bottom of reservoirs, rivers; structures (dams) fencing storage facilities for liquid waste from industrial and agricultural organizations; erosion control devices on canals, as well as other structures, buildings, devices and other facilities designed to use water resources and prevent the negative impact of water and liquid waste, with the exception of objects of centralized hot water supply, cold water supply and (or) sanitation systems provided for by the Federal Law dated December 7, 2011 N 416-FZ "On water supply and sanitation".
The concepts of "nuclear installations", "radiation sources", "storage points for nuclear materials and radioactive substances, storage points, storage facilities for radioactive waste" are disclosed by the Federal Law of November 21, 1995 N 170-FZ "On the use of atomic energy" (SZ RF 1995. N 48. Article 4552; 2009. N 52. Article 6450; 2011. N 30. Article 4590; N 49. Article 7025; 2012. N 26. Article 3446); Federal Law of July 11, 2011 N 190-FZ "On the management of radioactive waste and on amendments to certain legislative acts of the Russian Federation" (SZ RF. 2011. N 29. Art. 4281).
Subparagraphs 4, 25 and 30 of paragraph 2 of the commented article do not specify legal entities to which land plots can be provided on the indicated grounds. Given that they mainly deal with the placement of objects of federal, regional or local significance, land plots for these purposes can only be provided to persons who have the right to carry out the construction of such objects (by virtue of the powers of such persons arising from legal acts, on the basis of agreements concluded with government or local government agreements, etc.).
Subparagraph 22 of paragraph 2 of the commented article contains an indication of the person with whom the lease agreement for the land plot is concluded, and the purpose of its provision - for the construction of infrastructure facilities of the special economic zone to the person with whom the federal executive body authorized by the Government of the Russian Federation has concluded an agreement on cooperation in the field of development infrastructure of the special economic zone. An approximate form of an agreement on cooperation in the field of infrastructure development of the special economic zone was approved by order of the Ministry economic development RF dated December 28, 2010 N 698 (Bulletin of normative acts of federal executive bodies. 2011. N 10).
Subparagraphs 26 and 27 of the commented article provide for the provision of land plots to legal entities specially created to perform certain state functions in the field of creating objects transport infrastructure- State Company "Russian Highways" and JSC "Russian Railways". At the same time, they are not provided with any land plots necessary to ensure the activities of these legal entities, but only plots directly intended for the placement of the relevant transport infrastructure facilities.
The activities of the State Company "Russian Highways" are defined by Art. 6 of the Federal Law of July 17, 2009 N 145-FZ "On the State Company" Russian Highways "and on amendments to certain legislative acts of the Russian Federation" (SZ RF. 2009. N 29. Art. 3582; 2010. N 30. Art. .3999; 2011. N 13. Art. 1688) and include activities for the trust management of the roads of the State Company; activities to organize the construction and reconstruction of highways transferred or transferred to the State Company for trust management; other activities aimed at achieving the goals of the State Company.
According to Art. 25 of the Federal Law of November 8, 2007 N 257-FZ "On highways and road activities in the Russian Federation and on amendments to certain legislative acts of the Russian Federation" (SZ RF. 2007. N 46. St. 5553; 2008. N 20 2251; N 30. Art. 3597; 2009. N 52. Art. 6427; 2010. N 45. Art. Preparation of documentation for the planning of the territory intended for the placement of highways and (or) road service facilities is carried out taking into account the norms of land acquisition.
The norms of land acquisition for the placement of highways and (or) road service facilities were approved by Decree of the Government of the Russian Federation of September 2, 2009 N 717. In accordance with Art. 26 of the said Federal Law for motor roads, with the exception of motor roads located within the boundaries of settlements, roadside lanes are established. The width of roadside lanes is also established by law depending on the class and (or) category of roads, taking into account the prospects for their development.
Describing subparagraph 27 of paragraph 2 of the commented article, it should be noted that the concept of "location of an object" currently used in the Land Code of the Russian Federation includes "construction, reconstruction and (or) operation of an object" (see the abbreviation in subparagraph 7 of paragraph 5 article 27 RF LC).
The concept of public railway transport infrastructure is disclosed in the Federal Law of January 10, 2003 N 17-FZ "On railway transport in the Russian Federation" and is a technological complex that includes public railways and other facilities, railway stations, power supply devices, communication networks, signaling, centralization and blocking systems, information complexes and a traffic control system and other buildings, structures, structures, devices and equipment that ensure the functioning of this complex.
The legislator did not provide for the provision of land plots to state and municipal unitary enterprises for the implementation of their statutory activities. This is due to the fact that such enterprises are commercial legal entities, and the establishment of any preferences for them only by virtue of their creation by a public entity does not correspond to the goals of developing competition. In view of the foregoing, land plots to state and municipal unitary enterprises should be provided according to the general rules provided for in the commented chapter.
2. The next group of cases of granting a land plot without holding an auction is the provision to a citizen or legal entity (its members) of land plots formed from a land plot previously provided to such a citizen or legal entity (subclauses 5-8 of clause 2 of the commented article).
The presence of these cases is due to the fact that there is already a tenant of the original land plot, whose rights often arise as a result of the conclusion of a lease agreement based on the results of an auction, but due to a change in the subject of the lease agreement, a new agreement is required.
As a general rule, the formed land plots are provided to the tenant of the original land plot, including when the original land plot is provided for the integrated development of the territory (for more details on the integrated development of the territory, see the commentary to Article 39.3 of the Land Code of the Russian Federation). This provision also follows from paragraph 4 of Art. 11.8 RF LC.
Of the specified general rule there is an exception. It refers to land plots formed from a land plot provided to a non-profit organization created by citizens for the integrated development of the territory for the purpose of individual housing construction. In this case, the formed land plots directly intended for individual housing construction are provided to citizens - members of this non-profit organization, or if this is provided for by a decision of the general meeting of members of this non-profit organization (subclause 6, clause 2 of the commented article).
Exceptions to the general rule include the provisions of subparagraph 7 of paragraph 2 of the commented article, which regulate the issues of granting land plots formed from land plots provided to non-profit organizations created by citizens for gardening, gardening, and dacha farming.
In this case, the formed land plots directly intended for gardening, horticulture, dacha farming are provided to citizens - members of a non-profit organization. This is due to the fact that the original land plot is provided to a non-profit organization to meet the needs of specific citizens. Moreover, for horticulture and horticulture, the area of the land plot is calculated based on the number of the association (see commentary to Article 39.10 of the Land Code of the Russian Federation).
Subparagraph 8 of paragraph 2 of the commented article provides for the provision of a non-profit organization of citizens as a legal entity for lease of land plots formed from a land plot provided to such a non-profit organization for gardening, gardening, summer cottages, and related to public property. It is important to note that the original land plot must be limited in circulation, otherwise the provision of these land plots is carried out in accordance with Art. 39.3 and 39.5 of the Land Code of the Russian Federation.
3. The next group of cases of granting a land plot for rent without bidding follows from subparagraph 5 of paragraph 1 of Art. 1 of the Land Code of the Russian Federation of the principle of the unity of fate of land plots and objects firmly connected with it and provides for the provision of a land plot to the owner or other right holder of a building, structure, premises located on such a land plot (subparagraphs 9, 10, paragraph 2 of the commented article).
The issues of providing a land plot on which buildings, structures are located, for rent are regulated by Art. 39.20 RF LC.
The group of grounds under consideration can also include the case provided for in paragraph 20 of Art. 3 of Law N 137-FZ, according to which citizens and legal entities whose ownership of perennial plantations is registered in accordance with the Federal Law of July 21, 1997 N 122-FZ "On state registration rights to real estate and transactions with it" until the date of entry into force of the Federal Law of December 4, 2006 N 201-ФЗ "On the Enactment of the Forest Code of the Russian Federation", acquire land plots that are in state or municipal ownership and on which these perennial plantations are located, without bidding for ownership or lease at the choice of these citizens and legal entities in accordance with the rules established by Chapter 5.1 of the RF LC.
Special attention should be paid to legal regulation issues of registration of rights to land plots by the owners of objects of construction in progress located on such land plots.
The previous Art. 36 of the Land Code of the Russian Federation provided for the right to acquire a land plot by the owners of buildings, structures, structures. The absence of an indication of the existence of a similar right for the owner of an object under construction in practice led to a refusal to provide him with a land plot on which such an object is located, except for cases expressly provided for by law.
________________
As noted in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 23, 2008 N 8985/08, the application of the procedure for acquiring rights to land plots provided for in Art. 36 of the Land Code of the Russian Federation in relation to land plots occupied by objects of construction in progress, possibly in cases expressly specified in the law. Such cases, in particular, include the privatization of construction in progress in accordance with paragraph 3 of Art. 28 of the Federal Law of December 21, 2001 N 178-FZ "On the privatization of state and municipal property". According to the specified paragraph, the owners of real estate objects (including objects of construction in progress) that are not unauthorized buildings and located on land plots belonging to state or municipal property are required to either lease or purchase from the state or municipality these land plots, unless otherwise provided by federal law.
At the same time, the presence on the land plot of an object of construction in progress, registered in ownership, actually removes such a plot from circulation. On the other hand, the establishment of the possibility of registration of rights to a land plot in connection with the location of an object under construction on it can lead to abuse by citizens and legal entities, especially considering that the legislation of the Russian Federation lacks criteria for objects of construction in progress (for example, the percentage of construction, etc.). .P.).
Under these conditions, the legislator found a certain compromise. So, subparagraph 10 of paragraph 2 of the commented article provides for the lease without holding a tender of the land plot on which the objects of construction in progress are located, once for the completion of their construction to the owners of objects of construction in progress. In this case, the cases in which it is possible to provide a land plot on this basis are determined by paragraph 5 of the commented article, and the terms of the lease agreement - subparagraph 6 of paragraph 8 of Art. 39.8 RF LC.
In addition, according to paragraph 21 of Art. 3 of Law N 137-FZ, if the object of construction in progress is located on a land plot that is in state or municipal ownership, and the ownership of the specified object was registered before March 1, 2015 or such land was leased until March 1, 2015, the owner of the specified object has the right to acquire such a land plot on lease for a period of 3 years once to complete its construction without bidding. The provisions of this paragraph shall apply if such a land plot has not previously been provided to any of the previous owners of the specified object of construction in progress in accordance with this paragraph.
________________
According to paragraph 4 of Art. 25 of the Federal Law "On state registration of rights to real estate and transactions with it", if the land plot allocated for the creation of a real estate object belongs to the applicant on a different right than the right of ownership, the applicant's ownership of the object of construction in progress is registered on the basis, among other things, documents confirming the right to use this land plot ... The specified provision does not prevent state registration of ownership of the object of construction in progress created during the term of the lease agreement, if by the time the application for state registration was submitted, the lease period had expired. In this regard, the refusal to register the right of ownership to an object of construction in progress only on the basis that the term of the lease of the land plot on which the object of construction in progress has expired is contrary to the law. At the same time, if, during the legal examination, the registering authority comes to the conclusion that there is no object of construction in progress as an independent immovable thing (for example, foundation work has not been fully completed at the object, etc.), then the refusal to state registration of rights is lawful ( Clause 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 17, 2011 No. 73 // Bulletin of the Supreme Arbitration Court of the Russian Federation, 2012. No. 1; 2013. No. 4; 2014. No. 3).
In the event of termination of the lease agreement for a land plot owned by the state or municipality, which was concluded without bidding in order to complete the construction of an object under construction, provided that the construction of this object has not been completed, such objects under construction may be withdrawn from the owner at a court decision by selling at public auction (clause 6 of article 239.1 of the Civil Code of the Russian Federation).
4. The next group is represented by the grounds related to the re-registration by legal entities of the right to permanent (unlimited) use of a land plot (subclause 11, clause 2 of the commented article). In this subparagraph, we are talking only about legal entities, since a procedure is provided for citizens to re-register the right of permanent (perpetual) use of a land plot to the right of ownership in accordance with paragraph 9.1 of Art. 3 of Law N 137-FZ. Also, this ground is not applicable to legal entities specified in paragraph 2 of Art. 39.9 of this Code, since they must use land on the right of permanent (unlimited) use.
5. The fifth group of cases of granting land plots for rent without holding tenders is the provision of land plots to citizens who have the right to first-priority or extraordinary acquisition of land plots in accordance with federal laws, laws of the constituent entities of the Russian Federation (subparagraph 14, paragraph 2 of the commented article).
Having consolidated this provision, the legislator eliminated the legal conflict and resolved the issue of the right and conditions under which a land plot is provided to citizens in respect of whom the legislation does not establish the right to free receipt the land plot in the property, and the right to priority or extraordinary acquisition of land plots is provided. Such citizens are provided with land plots once without holding tenders for rent, while the amount of rent for the land plot is determined in an amount not exceeding the amount land tax calculated in relation to such a land plot (subclause 3, clause 5, article 39.7, clause 6, article 39.14 of the Land Code of the Russian Federation). It seems that this approach is consistent with the principle of social justice and takes into account the balance of interests of the state and a particular citizen.
________________
In a review of legislation and judicial practice Supreme Court of the Russian Federation for the second quarter of 2008, approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of September 17, 2008, it is noted that within the framework of the auction, which requires compliance with certain conditions (deposit, "auction step", etc.), as well as mandatory participation several persons, it is impossible to implement the principle of priority provision of land plots to citizens.
See: Articles 13, 16, 20 of the Law of the USSR of May 2, 1991 N 2146-1 "On the social protection of citizens affected by the Chernobyl disaster" // Bulletin of the Congress of People's Deputies and the Supreme Council of the RSFSR. 1991. N 21. St. 594; Art. 14, 17 of the Law of the Russian Federation of May 15, 1991 N 1244-1 "On the social protection of citizens exposed to radiation as a result of the Chernobyl disaster" // Gazette of the Congress of People's Deputies and the Supreme Council of the RSFSR. 1991. N 21. St. 699; Art. 17 of the Federal Law of November 24, 1995 N 181-FZ "On the social protection of persons with disabilities in the Russian Federation" // SZ RF. 1995. N 48. St. 4563; Federal Law of May 27, 1998 N 76-FZ "On the status of military personnel" // СЗ. RF. 1998. N 22. St. 2331; Clause 16 of Art. 2 of the Federal Law of January 10, 2002 N 2-FZ "On social guarantees for citizens exposed to radiation due to nuclear tests at the Semipalatinsk test site" // SZ RF, 2002. N 2. Art. 128.
6. As the next group, it is possible to single out the grounds for leasing land plots without bidding, the use of which is necessary in connection with the implementation of certain types of activities, a permit (license) or an agreement for the implementation of which has been obtained or concluded by a person in accordance with sectoral legislation, including and as a result of bidding (subclauses 13, 13.1, 20, 21, 23, 23.1, 24, 28, 29 clause 2 of the commented article).
Thus, an agreement on the development of a built-up area is concluded based on the results of an auction, the procedure for which is determined by Art. 46.3 of the Civil Code of the Russian Federation. Land plots formed within the boundaries of a built-up area are provided to a person with whom an agreement on the development of a built-up area has been concluded, only after fulfilling certain obligations related to the preparation of documentation for the planning of the territory, the resettlement of residents apartment buildings, recognized as emergency and subject to demolition, or demolition, the reconstruction of which is planned on the basis of municipal targeted programs approved by the representative body of local self-government.
Federal Law No. 224-FZ of July 21, 2014 "On Amendments to Urban planning code of the Russian Federation and certain legislative acts of the Russian Federation" (Official Internet portal of legal information http://www.pravo.gov.ru, 07/22/2014), the institution of territory development was introduced for the purpose of building economy class housing - the creation of residential premises that comply with conditions for classifying it as an economy class housing, established by the federal executive body that performs the functions of developing public policy and legal regulation in the field of construction, architecture, urban planning.
The content of the agreements on the development of the territory and on the integrated development of the territory for the construction of economy-class housing is regulated by Art. 45.5-45.8 GK RF. Such an agreement is concluded based on the results of the auction, while the land lease agreement is concluded with the winner of such an auction simultaneously with the conclusion of an agreement on the development of the territory or an agreement on the integrated development of the territory for the construction of economy-class housing.
When providing a land plot for rent on the basis of subparagraph 20 of paragraph 2 of the commented article (to a subsoil user), it must be borne in mind that in accordance with Art. 25.1 of the Law of the Russian Federation of February 21, 1992 N 2395-1 "On Subsoil", a land plot necessary for conducting work related to the use of subsoil from lands that are state or municipal property is provided to the user of the subsoil after obtaining a license for the use of subsoil and registration geological allotment and (or) mining allotment, as well as after the approval of the project for the implementation of these works.
Law N 171-FZ establishes the possibility of using lands or land plots that are in state or municipal ownership, with the exception of land plots provided to citizens or legal entities, for the purpose of geological exploration of the subsoil without granting and establishing servitudes based on the permission of the authorized state authority or body local self-government (Article 39.33 RF LC).
According to subparagraph 21 of the commented article, it should be noted that the issues of establishing the boundaries of special economic zones, requirements for residents and a management company, the procedure and grounds for attracting a management company, the procedure for concluding an agreement with residents on the implementation of industrial production, technological innovation, tourism and recreational activities or activities in the port special economic zone, the procedure for maintaining the register of residents of special economic zones is regulated by the Federal Law of July 22, 2005 N 116-FZ "On Special Economic Zones in the Russian Federation" (SZ RF. N 30. St. 3127; 2007. N 45. Article 5417; 2011. N 49. Article 7043).
Concession agreement in accordance with Art. 13 of the Federal Law of July 21, 2005 N 115-FZ "On Concession Agreements" (SZ RF. 2005. N 30. Art. 3126) is concluded by holding a tender for the right to conclude a concession agreement, except for the cases provided for by Art. 37 of the said Federal Law.
Subparagraph 23.1 of paragraph 2 of the commented article provides for the provision of a land plot for the development of the territory for the construction and operation of a rented house for commercial use or social use to a person who has entered into an agreement on such development of the territory, and in cases provided for by the law of a constituent entity of the Russian Federation, to a non-profit organization created by a constituent entity of the Russian Federation or municipality for the development of territories for the construction and operation of rental houses for social use.
The development of the territory for the purpose of building and operating a rented house is a new institution of Russian legislation and was introduced by the Federal Law of July 21, 2014 N 217-FZ "On Amending the Housing Code of the Russian Federation and certain legislative acts of the Russian Federation in part legislative regulation relations for the rental of residential premises of the housing fund for social use "(RG. 2014. July 23. N 163).
At the same time, a building intended for rent - a rented house is recognized as a building, which or all the premises in which belong to one person by right of ownership and which or all the residential premises in which are intended to be provided to citizens for possession and use for living. Residential premises in a rented house for social use are provided under contracts for renting residential premises, in a rented house for commercial use - under contracts for renting residential premises. The status of such houses, the procedure for using residential premises in them are regulated housing code RF.
The hunting agreement, the existence of which is the basis for the provision of a land plot necessary for the implementation of activities in the field of hunting, to the person with whom such an agreement is concluded (subparagraph 24, paragraph 2 of the commented article), is regulated by the Federal Law of July 24, 2009 N 209- Federal Law "On hunting and on the conservation of hunting resources and on amendments to certain legislative acts of the Russian Federation" (SZ RF. 2009. N 30. Art. 3735).
According to Art. 25 of the specified Federal Law located within the boundaries of hunting grounds, not provided individuals, legal entities and state-owned land plots and forest plots (if the provision of such land plots and forest plots is carried out by the executive authorities of a constituent entity of the Russian Federation) are leased for the implementation of activities in the field of hunting in order to locate hunting infrastructure and (or) for purposes not related to their placement, to legal entities, individual entrepreneurs according to the results of auctions for the right to conclude hunting agreements.
When applying subparagraph 28 of paragraph 2 of the commented article, it must be borne in mind that the territorial development zone in the Russian Federation is a part of the territory of a constituent entity of the Russian Federation, on which, in order to accelerate the socio-economic development of a constituent entity of the Russian Federation by creating favorable conditions for attracting investments in its economy, residents territorial development zones are provided with measures of state support.
Federal Law of December 3, 2011 N 392-FZ "On the zones of territorial development in the Russian Federation and on amendments to certain legislative acts of the Russian Federation" (SZ RF. 2011. N 49. Art. 7070; 2013. N 52 (part 2) 1) Article 6972) establishes requirements for legal entities, individual entrepreneurs to be included in the register of residents (Article 11). A land plot may be provided to a resident on this basis only within the boundaries of the territorial development zone and only for the implementation of an investment project in accordance with an investment declaration, the requirements for which are established by the said Federal Law.
And the last in this group is the ground provided for in subparagraph 29 of paragraph 2 of the commented article on the grounds for granting a land plot for rent without bidding - to a person who has the right to harvest (catch) aquatic biological resources on the basis of a decision to provide them for use, an agreement on the provision of a fishing plot or agreements for the use of aquatic biological resources, for the implementation of activities provided for by the said decision or agreements.
Issues related to the grounds and procedure for issuing these permits, concluding these agreements are regulated by the Federal Law of December 20, 2004 N 166-FZ "On Fishing and Conservation of Aquatic Biological Resources" (SZ RF. 2004. N 52. St. 5270; 2008. N 49. Art. 5748).
At the same time, an agreement on the provision of a fishing area is concluded based on the results of a tender for the right to conclude such an agreement. Agreement of use aquatic biological resources may be concluded based on the results of the auction in the cases provided for by the specified Federal Law. The rules for organizing and conducting tenders (competitions, auctions) for the right to conclude an agreement on the use of a fish breeding site were approved by Decree of the Government of the Russian Federation of May 15, 2014 N 450.
7. The next group of cases of granting land plots without bidding can be characterized as related to the development of agricultural production (subparagraphs 12, 17, 19, 31, paragraph 2).
This includes cases of granting land plots to a peasant (farm) economy or agricultural organization in cases established by Federal Law N 101-FZ (subclause 12, clause 2 of the commented article).
So, according to paragraph 5.1 of Art. 10 of Federal Law N 101-FZ, a land plot that is in municipal ownership and allocated on account of land shares that are in municipal ownership, is transferred to the ownership or lease of an agricultural organization or a peasant (farm) enterprise using such a land plot without holding an auction if an agricultural organization or a peasant (farm) economy applied to the local government with an application to conclude a sale and purchase agreement or a lease agreement for such a land plot within 6 months from the date of state registration of the right of municipal ownership to such a land plot.
This group should also include the case of granting a land plot to religious organizations, Cossack societies entered in the state register of Cossack societies in the Russian Federation, for agricultural production, preservation and development of the traditional way of life and management of Cossack societies in the territory determined in accordance with the laws of the subjects RF (subclause 17 clause 2 of the commented article). Previously, such a basis was provided for in paragraph 5 of Art. 10 of Law N 101-FZ.
According to Art. 123.15 of the Civil Code of the Russian Federation (as amended by the Federal Law of May 25, 2014 N 99-FZ), Cossack societies are recognized as associations of citizens entered in the state register of Cossack societies in the Russian Federation, created in order to preserve the traditional way of life, management and culture of the Russian Cossacks, as well as in other purposes provided for by the Federal Law of December 5, 2005 N 154-FZ "On public service Russian Cossacks" who voluntarily assumed, in accordance with the procedure established by law, obligations to perform state or other service.
In accordance with Art. 6.2 Federal Law of January 12, 1996 N 7-FZ "On non-profit organizations"(SZ RF. 1996. N 3. St. 145; 2006. N 3. St. 282; N 45. St. 4627; 2008. N 30. St. 3616; 2009. N 29. St. 3607; 2010. No. 19. St. 2291; No. 21. St. 2526; 2012. No. 30. St. 417) and Article 2 of the Federal Law of December 5, 2005 N 154-FZ "On the public service of the Russian Cossacks" (SZ RF. 2005. N 50. Art. 5245) Cossack society - a form of self-organization of citizens of the Russian Federation, united on the basis of a common interest in order to revive the Russian Cossacks, protect their rights, preserve the traditional way of life, management and culture of the Russian Cossacks.
The concept of a religious organization is revealed in Art. 8 of the Federal Law "On Freedom of Conscience and on Religious Associations" (for details, see the commentary to Article 39.5 of the Labor Code of the Russian Federation).
Subparagraph 19 of paragraph 2 of the commented article provides for the provision of a land plot to a citizen for haymaking, grazing farm animals, horticulture, or a land plot located outside the boundaries of a settlement, to a citizen for personal subsidiary farming.
In this subparagraph, we are talking about the provision for personal subsidiary farming only of a land plot located outside the boundaries of a settlement. This is due to the fact that the Federal Law of July 7, 2003 N 112-FZ "On personal subsidiary farming" (SZ RF. 2003. N 28. Art. 2881; 2008. N 30. Art. 3597) establishes a different legal regime for land plots within the boundaries of the settlement (homestead land) and land plots outside the boundaries of the settlement (field land).
At the same time, the field land is used exclusively for the production of agricultural products without the right to erect buildings and structures on it.
Thus, the specified subparagraph provides for the provision of land plots for agricultural needs - the cultivation of agricultural products, grazing of farm animals, haymaking and does not provide for the possibility of construction on the land plot.
Therefore, this subparagraph does not contain any reservations on the terms of provision, in contrast to subparagraph 15 of paragraph 2 of the commented article, which provides for the provision of a land plot for lease without holding an auction to citizens for individual housing construction, personal subsidiary farming within the boundaries of a settlement, horticulture, dacha economy, citizens or peasant (farm) enterprises for the implementation of the peasant (farm) economy of its activities.
In this case, the provision of a land plot is possible only in the case provided for in Art. 39.18 of the Land Code of the Russian Federation, - subject to prior notice of the possibility of acquiring a land plot for the specified purposes and the absence of other persons interested in acquiring such a land plot.
The group of grounds under consideration should also include subparagraph 31 of paragraph 2 of the commented article, which provides for the provision of a land plot intended for agricultural production to a tenant who properly used such a land plot, provided that the application for the conclusion of a new lease agreement for such land plot filed by this tenant before the expiration date of the previously concluded lease agreement for such a land plot.
It should be noted that the possibility of concluding a lease agreement for a new term applies not only to land plots from agricultural land, but to all land plots intended for agricultural production (regardless of the category of land).
Considering that not all legal entities have re-registered the right of permanent (unlimited) use of a land plot to the right of lease or ownership, but such an opportunity remains for them, clause 28 of Art. 3 of Law N 137-FZ provides that in the event of a land plot being seized for state or municipal needs, which is in state or municipal ownership and granted on the right of permanent (unlimited) use not specified in paragraph 2 of Art. 39.9 of the Land Code of the Russian Federation to a legal entity prior to the date of entry into force of the Land Code of the Russian Federation, this legal entity may be provided for rent without bidding or if this legal entity has the right to free re-registration of the withdrawn land plot into ownership, into the ownership of another land plot located in state or municipal ownership, instead of the withdrawn land plot.
The case provided for by subparagraph 32 of paragraph 2 of the commented article does not seem to be entirely correct to consider as an independent basis for the provision of a land plot without bidding, since it is, in fact, about prolongation - the conclusion of a new lease agreement for such a land plot with the tenant of the land plot .
The appearance of this norm in land legislation deserves special attention, since earlier, by virtue of the provisions of Art. 209, 264, 421 and 621 of the Civil Code of the Russian Federation, the intention of the tenant to extend the lease agreement for the land plot did not mean that the landlord had an unconditional obligation to lease the land plot for a new term, and the tenant’s pre-emptive right to conclude a lease agreement for a new period could only be exercised by him in the event that the lessor leases the disputed property to a third party (Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 19, 2005 N 3440/05, of July 5, 2012 N 17540/11).
________________
Bulletin of the Supreme Arbitration Court of the Russian Federation. 2012. N 9.
Taking into account the law enforcement practice, the legislator directly fixed the possibility of the tenant (and the obligation of the authorized body) to conclude a new lease agreement for this land plot and excluded the provision on the preemptive right, as it does not really guarantee the acquisition of a land plot for rent.
If, in accordance with the Land Code of the Russian Federation, it is allowed to provide a land plot to a person for ownership or lease without holding an auction, the type of right on which such a land plot is provided is chosen by the applicant (clause 6, article 39.14 of the Land Code of the Russian Federation).
If you still have questions on Article 39.6 of the RF LC and you want to be sure that the information provided is up to date, you can consult the lawyers of our website.
You can ask a question by phone or on the website. Initial consultations are free of charge from 9:00 to 21:00 Moscow time daily. Questions received between 21:00 and 09:00 will be processed the next day.
TVER REGION
On the implementation on the territory of the Tver region of subparagraph 3 of paragraph 2 of article 39.6
(as amended on November 6, 2019)
(As amended, dated 04/09/2019 N 14-ZO, dated 11/06/2019 N 67-ZO)
1. In order to implement subparagraph 3 of paragraph 2 of Article 39.6 of the Land Code of the Russian Federation, paragraph 11.4 of Article 2 of the Law of the Tver Region of 04/09/2008 N 49-ZO "On the regulation of certain land relations in the Tver Region" land plots that are state-owned by the Tver Region , municipal property, as well as land plots, state property for which it is not delimited (hereinafter - land plots), are leased without bidding to legal entities in accordance with the order of the Governor of the Tver Region for the placement of social, cultural and domestic facilities (hereinafter - objects), the implementation of large-scale investment projects (hereinafter - projects) provided that the specified objects, projects simultaneously meet the following criteria:
1) the location of the facility, the implementation of the project correspond to the priorities and goals defined in the strategic planning documents of the Tver region and (or) the strategic planning documents of the municipalities of the Tver region;
2) the location of the facility, the implementation of the project comply with the territorial planning documents of the Tver region and (or) the territorial planning documents of the municipality of the Tver region;
(in ed.)
3) the location of the facility, the implementation of the project relate to one of the following areas:
a) is no longer valid. - ;
b) culture;
c) physical culture and sports;
d) healthcare;
e) education;
f) social protection;
g) public utilities;
h) road activities and transport infrastructure;
i) tourism and recreational activities;
j) conducting research and development, high-tech and innovative activities;
k) development of manufacturing industries;
l) development of agriculture, forestry, fish farming;
m) production of electricity, gas;
n) production of pharmaceutical products and medical equipment;
o) development of a logistics cluster;
p) development of infrastructure for marketing own agricultural and livestock products;
c) development of transport hubs;
r) construction of standard housing, determined in accordance with regulatory legal acts Russian Federation and Tver region;
(as amended by the Law of the Tver region of 04/09/2019 N 14-ЗО)
s) construction of individual residential buildings, multi-apartment buildings transferred to the ownership or social lease of citizens who have lost their housing as a result of emergency situations, as well as citizens resettled from emergency housing stock;
t) completion of the construction of a problematic facility in order to implement the Law of the Tver Region dated April 26, 2012 N 29-ZO "On additional measures to protect the rights of citizens - participants in the construction of apartment buildings in the Tver Region affected by the actions (inaction) of unscrupulous developers, and on the introduction amendments to the Law of the Tver region "On the management state property Tver region";
x) ensuring the rights of citizens - participants in the construction of apartment buildings in the Tver region, affected by the actions (inaction) of unscrupulous developers, to residential premises in the ways and in the manner prescribed by the Law of the Tver region dated April 26, 2012 N 29-ZO "On additional measures to protect the rights of citizens - participants in the construction of apartment buildings in the Tver region, affected by the actions (inaction) of unscrupulous developers, and on amendments to the Law of the Tver region "On the management of state property of the Tver region";
v) activity of the innovation-industrial park of the Tver region, ecotechnopark of the Tver region;
(items "c" introduced)
4) the location of the facility, the implementation of the project provide for capital investments, the minimum values of the volume of which in the areas provided for in clause 3 of part 1 of this article are determined by the annex to this Law;
(as amended by the Law of the Tver region dated December 29, 2016 N 101-ZO)
5) the placement of the facility, the implementation of the project provide for the creation of new jobs, and in the case of placement of the facility, the implementation of the project in the areas provided for in subparagraphs "i", "l", "m" (in terms of forestry), "n" - "s "Clause 3 of Part 1 of this Article provides for the creation of at least 10 new jobs within 4 years from the date of granting a land plot to a legal entity for rent without bidding;
(clause 5 introduced)
6) the placement of the facility, the implementation of the project provide for the deductions of annual tax and other mandatory revenues to the budgets of all levels, and in the case of placement of the facility, the implementation of the project in the areas provided for in subparagraphs "i", "k", "m" (in terms of forestry) , "n" - "c" of clause 3 of part 1 of this article, provide for annual receipts in the amount of at least 5 million rubles of tax payments to the consolidated budget of the Tver region, starting from the 4th year of granting a land plot to a legal entity for rent without bidding;
(Clause 6 was introduced by the Law of the Tver Region of December 29, 2016 N 101-ZO)
7) the placement of the object, the implementation of the project are carried out by a legal entity registered in tax authorities on the territory of the Tver region as a taxpayer.
(Clause 7 was introduced by the Law of the Tver Region of December 29, 2016 N 101-ZO)
2. The provision of land plots to legal entities for lease without holding tenders for the placement of objects, the implementation of projects in the areas provided for in subparagraphs "y", "f", "x", "c" of paragraph 3 of part 1 of this article, is carried out without taking into account the criteria, established by paragraphs 1, 2, 4 - 7 of part 1 of this article.
(as amended by the Laws of the Tver region dated December 29, 2016 N 101-ZO, dated November 6, 2019 N 67-ZO)
3. The provision of a land plot to a resident of the innovation-industrial park of the Tver region, a resident of the eco-technopark of the Tver region for rent without bidding for the placement of objects, the implementation of projects in the direction provided for in subparagraph "c" of paragraph 3 of part 1 of this article, is subject to the compliance of the resident with the requirements, established by part 1 of article 5 of the Law of the Tver region "On innovation and industrial parks of the Tver region, ecotechnoparks of the Tver region and on amendments to certain laws of the Tver region", and the criteria determined in the manner prescribed by part 5 of article 5 of the Law of the Tver region "On innovation and industrial parks of the Tver region, ecotechnoparks of the Tver region and on amendments to certain laws of the Tver region".
(Part 3 was introduced by the Law of the Tver Region of November 6, 2019 N 67-ZO)
1. The conditions and procedure for making a decision on the compliance of objects, projects for the placement (implementation) of which are provided with land plots for lease to legal entities without holding tenders, with the criteria established by this Law, are determined by the Government of the Tver Region.
2. No longer valid. - Law of the Tver region of December 29, 2016 N 101-ZO.
3. If on the date of receipt by the authorized government of the Tver region the executive body of state power of the Tver region (hereinafter referred to as the authorized body) of the application of the legal entity to determine the compliance of the object, the project with the criteria established by Article 1 of this Law (hereinafter referred to as the application), for placement (realization) of which a land plot is requested, or a land plot that is to be formed or the boundaries of which are subject to clarification in accordance with the Federal Law of July 13, 2015 N 218-ФЗ "On State Registration of Real Estate", the authorized body is considering application in respect of the same land plot, the authorized body makes a reasoned decision to suspend consideration of the application filed later, until a decision is made on the application filed earlier, and sends decision the applicant.
(As amended by the Laws of the Tver Region dated December 29, 2016 N 101-ZO, dated April 9, 2019 N 14-ZO)
4. In order to ensure the location of the facility, the implementation of the project, as well as ensuring the efficiency and conditions for the use of the provided land plot (including compliance with the criteria established by this Law), an agreement is concluded between the legal entity and the Government of the Tver Region, in without fail providing for the termination of the land lease agreement in case of non-compliance by the tenant with obligations to place the facility, implement the project within the terms established by the agreement.
5. The provision, in accordance with the order of the Governor of the Tver Region, of land plots to legal entities for rent without holding tenders for the placement of objects, the implementation of projects that meet the criteria established by this Law, is carried out by the body authorized to dispose of such land plots in accordance with the law.
6. The concepts of "problematic facility", "unscrupulous developer", "construction participant affected by the actions (inaction) of an unscrupulous developer" are used in this Law in the meanings determined by the Law of the Tver Region dated 26.04.2012 N 29-ZO "On additional measures to protecting the rights of citizens - participants in the construction of apartment buildings in the Tver region, affected by the actions (inaction) of unscrupulous developers, and on amending the Law of the Tver region "On the management of state property of the Tver region" .
The terms "innovation industrial park of the Tver region", "ecotechnopark of the Tver region", "resident of the innovation industrial park of the Tver region", "resident of the ecotechnopark of the Tver region" are used in this Law in the meanings determined by the Law of the Tver region "On innovation and industrial parks of the Tver region". region, ecotechnoparks of the Tver region and on amendments to certain laws of the Tver region".
(the paragraph was introduced by the Law of the Tver Region dated November 6, 2019 N 67-ZO)
This Law shall enter into force on the day of its official publication.
Governor of the Tver Region
A.V.SHEVELEV
Application
to the Law of the Tver region
dated December 23, 2015 N 139-ZO
"On the implementation on the territory of Tverskaya
areas of subparagraph 3 of paragraph 2 of Article 39.6
Land Code of the Russian Federation"
The minimum values of the volume of capital investments provided for when placing objects of social, cultural and domestic purposes, implementing large-scale investment projects, in the areas provided for in paragraph 3 of part 1 of Article 1 of the Law of the Tver Region of December 23, 2015 N 139-ZO "On implementation on the territory Tver region of subparagraph 3 of paragraph 2 of Article 39.6 of the Land Code of the Russian Federation"
Directions provided for by paragraph 3 of part 1 of article 1 of the Law of the Tver region of December 23, 2015 N 139-ZO "On the implementation in the territory of the Tver region of subparagraph 3 of paragraph 2 of article 39.6 of the Land Code of the Russian Federation" | Minimum values of the volume of capital investments in the municipalities of the Tver region, million rubles. |
||
urban district city of Tver | Udomelsky urban district, Zharkovsky district, Zapadnodvinsky district, Kuvshinovskiy district, Likhoslavl district, Spirovsky district, Firovsky district and municipalities that are part of the territories of these municipal districts | other municipalities of the Tver region |
|
culture | |||
physical Culture and sport | |||
healthcare | |||
education | |||
social protection | |||
public utilities | |||
tourism and recreational activities | |||
road activities and transport infrastructure | |||
scientific research and development, implementation of high-tech and innovative activities | |||
development of manufacturing industries | |||
development Agriculture, fish farming | |||
forestry development | |||
production of electricity, gas | |||
production of pharmaceutical products and medical equipment | |||
development of a logistics cluster | |||
development of infrastructure for marketing own agricultural and livestock products | |||
development of transport hubs | |||
construction of standard housing, determined in accordance with the regulatory legal acts of the Russian Federation and the Tver region | |||
On March 1, 2015, large-scale changes in the RF LC came into force. In particular, there was a rule sub. 2 p. 5 art. 39.6 of the Land Code of the Russian Federation, which provides for the possibility of leasing a land plot to the owner of an unfinished construction object without holding an auction if the authorized body, within six months from the date of expiration of the previously concluded lease agreement for the land plot on which this object is located, does not a demand was made for the withdrawal of this object by sale at a public auction or the court refused to satisfy this requirement or this object was not sold at a public auction due to the absence of persons participating in the auction.
Subparagraph 2 of paragraph 5 of Art. 39.6 of the Land Code of the Russian Federation provides for 3 alternatives, under which the possibility of providing a land plot on this basis is allowed:
1. failure of the authorized body to apply to the court within 6 months with a demand to withdraw an object of construction in progress by selling it at public auction;
2. refusal of the court to satisfy the claim of the authorized body;
3. non-sale of an object of construction in progress at public auction due to the absence of persons participating in the auction.
Relations on the termination of the right of ownership to an object of construction in progress located on a land plot that is in state or municipal ownership, in connection with the termination of the lease agreement for such a land plot, are also regulated by Art. 239.1 of the Civil Code of the Russian Federation.
Paragraph 4 of Art. 239.1 of the Civil Code of the Russian Federation provides for a rule on the possibility of the state (municipality) to acquire ownership of an object of construction in progress if public auction on the sale of an object under construction were declared invalid.
In my opinion, there is a conflict between paragraph 4 of Art. 239.1 of the Civil Code of the Russian Federation and sub. 2 p. 5 art. 39.6 of the Land Code of the Russian Federation in the part in which sub. 2 p. 5 art. 39.6 of the Civil Code of the Russian Federation does not provide for the possibility of the state (municipality) to acquire ownership of the withdrawn object of construction in progress if the public auction is declared invalid. Subparagraph 2 of paragraph 5 of Art. 39.6 of the Land Code of the Russian Federation indicates the non-sale of an object of construction in progress at public auction due to the absence of persons participating in the auction, as a basis for providing a land plot without auction to the owner of an object of construction in progress.
Judicial practice on this issue has not yet been formed, however, it is obvious that this issue will soon come before the courts.
Which of the rules in question takes precedence? On the one hand, both the Land Code of the Russian Federation (in terms of land legal relations) and the Civil Code of the Russian Federation (in terms of civil legal relations) establish their priority over other federal laws. From the point of view of legal logic, the priority of any of the norms can be justified.
Despite the fact that the position on the priority of the norms of the Civil Code of the Russian Federation is ideologically closer to me, I believe that priority in this case should be given to the norm of the Land Code, since the relevant decision (the inability to acquire the state (municipality) an object of unfinished construction in the case when the public auction is declared invalid ) in most cases is economically justified, since the state, by virtue of the law, is not burdened with an economically burdensome object, the auction for the sale of which did not take place. At the same time, the state will receive a fee for providing a land plot for rent, and will also continue to receive rent for land from the owner of the unfinished construction object. In addition, the recognition of priority for the LC in this case reduces the managerial discretion of the competent authorities, which reduces corruption risks.
If you, dear colleagues, have any weighty arguments in favor of the priority of the norm of the Civil Code of the Russian Federation, I ask you to express them (of course, except for paragraph 2, clause 2, article 3 of the Civil Code of the Russian Federation).
Attention! From March 1, 2015, it is possible to rent a land plot that is in state or municipal ownership only at auctions (auctions). But the law provides for several exceptions.
As a general rule, it is impossible to lease a land plot without bidding. Moreover, bidding is carried out only in the form of an auction (the competition is not held). This follows from paragraph 1 of Article 39.6 of the Land Code of the Russian Federation.
But there are exceptions. AT individual cases a lease agreement for a plot of public land can be concluded without bidding. The list of such cases is closed (clause 2, article 39.6 of the Labor Code of the Russian Federation). So, these include the provision of land plots to organizations:
In addition, land can be leased without bidding (clause 2, article 39.6 of the Land Code of the Russian Federation):
Finally, it must be borne in mind that the law has established a special list of cases when a land plot cannot be the subject of an auction at all (clause 8, article 39.11 of the Land Code of the Russian Federation). For example, the subject of an auction cannot be a land plot:
Until March 1, 2015, the procedure for leasing a land plot in public ownership depended on the purposes for which it was leased:
For construction, the procedure for granting a site differed depending on the need for certain work, that is:
Without bidding, it was possible to obtain land with a preliminary agreement on the location of the object. This procedure was determined by Article 3032 of the Land Code of the Russian Federation. At the auction, land plots were provided for the purposes of construction without prior approval of the location of objects (Article 38 of the RF LC). That is, until March 1, lease agreements for a state or municipal land plot were concluded based on the results of auctions, competitions and without bidding.
After March 1, 2015, the regime for granting land plots for construction with prior agreement on the location of the object and without agreement does not differ. Now the law distinguishes between the provision of land for rent, depending on whose initiative this happens (clause 34, article 39.11 of the Land Code of the Russian Federation):
The initiator of the registration process prepares documents for the land.
If the auction is held at the initiative of an interested person (citizen or organization), then it prepares a layout plan for the land plot. An exception will be in the case when the site is located within the boundaries of the subject of the Russian Federation of a city of federal significance (Moscow, St. Petersburg, Sevastopol) or within the boundaries of settlements. Then the layout of the land plot should be prepared by the authorized body (paragraph 2, subparagraph 1, paragraph 4, article 39.11 of the Land Code of the Russian Federation).
Does a tenant of a public land plot have a pre-emptive right to conclude a lease agreement for a plot for a new term?
No, it doesn't. In order to conclude a new lease agreement after the expiration of the previous agreement, an auction is required from March 1, 2015. This follows from paragraph 15 of Article 39.8 of the Land Code of the Russian Federation.
Previously, the law provided for the tenant such a pre-emptive right to conclude a lease agreement for a new term (clause 3, article 22 of the Labor Code of the Russian Federation).
It follows that the cancellation of the pre-emptive right affects contracts concluded before March 2015, and not only contracts that will be concluded after this date. However, in some cases, the tenant retains the pre-emptive right to conclude a lease agreement. So, in particular, the law establishes that it is not necessary to conduct an auction if (clause 3, article 39.6 of the Labor Code of the Russian Federation):
Exception: cases when the site was provided without bidding due to the recognition of the auction as invalid. That is, if only one applicant was recognized as a participant in the auction (clauses 13, 14 and 20 of article 39.12 of the Labor Code of the Russian Federation). In these cases, a new lease agreement must be concluded at the auction.
In order to conclude a new contract without bidding, several conditions must be taken into account (clause 4, article 39.6 of the Labor Code of the Russian Federation):
Attention! For certain types of lease agreements, from March 1, 2015, the law established restrictions on the terms of the conclusion of contracts
Depending on the purpose of using the land plot, an agreement can be concluded for a certain period within the limits provided for by law, namely (clause 8, article 39.8 of the Land Code of the Russian Federation):
Who should be notified in case of assignment of rights under a lease agreement for land in public ownership: the owner or the lessor?
It is necessary to notify the landlord (clause 9, article 22 of the Labor Code of the Russian Federation).
Owner and landlord are not always the same person. For example, the owner of the site may be the administration of the municipality, and the lessor may be the municipal unitary enterprise (MUE) (decree arbitration court of the West Siberian District dated January 21, 2015 No. F04-14360/2014 in case No. A46-6723/2014).
Therefore, in the event of the assignment of the right to lease a site in public ownership, third parties need to be notified not of the owner, but of the lessor (previously the law fixed the obligation to notify the owner).
Do the new norms of the Land Code of the Russian Federation apply to lease agreements that were concluded before March 1, 2015?
No, the new lease provisions do not apply to contracts entered into prior to March 1, 2015. This follows from Article 34 of Law No. 171-FZ.
Such contracts will operate according to the rules that existed at the time of their conclusion. In particular, until March 1, 2018, a land plot is leased in accordance with the provisions of the Land Code of the Russian Federation, which were in force until March 1, 2015, without bidding (part 1 of article 34 of Law No. 171-FZ):
This also follows from Part 1 of Article 34 of Law No. 171-FZ.
Land plots are leased in accordance with the version of the Land Code of the Russian Federation, which was in force until March 1, 2015, if it was published before that date (part 2 of article 34 of Law No. 171-FZ):
Similar rules apply if the authorized body has already approved the layout of the land plot on the cadastral plan or cadastral map of the territory for its provision for purposes not related to the construction or operation of buildings and structures. This is indicated in part 3 of article 34 of Law No. 171-FZ.
At the same time, it should be noted that the rule on the abolition of the pre-emptive right to conclude lease agreements applies, among other things, to agreements that were concluded before March 1, 2015.
Due to the fact that the procedure for leasing public land has changed, the procedure for determining the rent for such land plots has also changed.
Coordination of the terms of the contract for the lease of public property and its state registration
In a lease agreement for public real estate, as in a lease agreement for any other property, the parties agree:
A real estate lease agreement agreed upon and signed by the parties is subject to state registration, unless otherwise provided by law (clause 2, article 609 of the Civil Code of the Russian Federation).
The obligation to register depends on such a condition as the term of the lease agreement. Registration is not required if the contract is concluded for a period of less than one year or for an indefinite period. If the lease agreement is concluded for a period of one year or more, then registration is required (clause 2, article 651 of the Civil Code of the Russian Federation). An application for state registration of a real estate lease agreement can be submitted by any of the parties to the agreement, the tenant or the landlord. To register a lease, you need to contact the territorial authority Federal Service state registration, cadastre and cartography (Rosreestr). The registration procedure is established by the Instruction on the procedure for state registration of real estate lease agreements (approved by order of the Ministry of Justice of Russia dated August 6, 2004 No. 135). The list of documents submitted for state registration of the lease agreement is specified in paragraph 8 methodological recommendations on the procedure for state registration of rights to real estate and transactions with it, approved by order of the Ministry of Justice of Russia dated July 1, 2002 No. 184. For more information on the procedure for state registration of a lease agreement, see What a tenant needs to consider if a real estate lease agreement requires registration.
If the parties do not agree on the essential terms of the contract, then it is recognized as not concluded. If you do not register a lease agreement that requires state registration, then it will also not be considered concluded.
At the same time, until recently, it was not clear by what rules it is possible to challenge lease agreements in certain situations: as not concluded or invalid.
The Presidium of the Supreme Arbitration Court of the Russian Federation clarified these issues in the Review of Judicial Practice on Disputes Related to the Recognition of Contracts Not Concluded, approved by the information letter dated February 25, 2014 No. 165 (hereinafter referred to as the information letter No. 165).
Firstly, the Presidium pointed out that if there is no essential condition in the lease agreement, then it will be unconcluded, and not invalid (clause 1 of the information letter No. 165).
The parties did not agree on the essential terms of the contract for the lease of public property and did not obtain the consent of the owner of the subject of the Russian Federation to lease the property. The parties did not fulfill the lease agreement. With what claim can the landlord apply to the court with a claim for the recognition of the contract as invalid or not concluded
In this case, it is correct to declare in court the requirement for the non-conclusion of the lease agreement.
The Presidium of the Supreme Arbitration Court of the Russian Federation explained: if the parties do not agree on the essential terms of the lease agreement, then it is not considered concluded. The rules on the grounds for the invalidity of transactions are not applicable to such an agreement. From this clarification, the following practical conclusion can be drawn: if the parties have not agreed on the essential terms of the contract, then it can only be challenged as not concluded, and not as invalid. Moreover, an error in the selection of a claim will not result in a refusal of the claim. If the plaintiff, for example, the landlord, demands to recognize such an agreement as invalid, then the court will not refuse his demand, but will correct it and change the method of legal protection, recognizing the agreement as not concluded.
Secondly, if the contract subject to registration has not been registered, then even in the absence of state registration, the court may invalidate it (clause 2 of the information letter No. 165).
The parties entered into a public property lease agreement for a period of five years. However, they did not receive the consent of the owner of the property of the constituent entity of the Russian Federation to lease the property. In addition, they did not register the contract. Is it possible to declare such a lease agreement invalid?
Yes, you can. After all, a lease agreement already from the moment the parties reach an agreement on all of its essential conditions entails legal consequences in relations between them. Therefore, such an agreement can be challenged under the rules on the invalidity of transactions.
At the same time, the Presidium emphasized that a different interpretation would lead to the fact that a party to an invalid transaction could demand its registration in judicial order.
An important practical conclusion follows from this: a third party can declare the requirement to recognize the lease agreement as invalid even before the state registration of the lease agreement.
Legal Reference System Material Lawyer System
