Right of lifelong inheritable ownership (commentary)

Having your own land is a sign of prosperity and a wise investment. Houses are built on it for permanent residence and for seasonal stay, the land is used for vegetable gardens and for other agricultural needs. In this regard, the topic of inheriting a house and the land plot under it by law constantly arouses understandable interest.

This possibility is regulated by the regulatory standards of the Russian Federation. The allotment serves both as real estate and a natural resource that guarantees the livelihoods of people, and is therefore protected by the state on the basis of Art. 130 Civil Code of the Russian Federation.

As real estate, land can be transferred or alienated. To qualify for the estate, the property must be registered, and the condition of lifelong inheritable personal ownership of a specific plot of land must be met.

Categories of plots subject to inheritance

Inheritance of your own land plots can and is carried out by will or by law, but there are several points that need to be paid attention to. Until the period of 1997, land was granted ownership on the following legal grounds:

• based on ownership with the issuance of the relevant document. After the law on real estate registration was issued, the subject came to Rosreestr and was given new documents. In such a situation, the registration of the right to inherit a land plot will take place according to the standard rules of inheritance and taking into account Art. 1181 of the Civil Code.
• PDV - at the end of the last century there was no status of private property, and the priority was the transfer of this type of real estate into lifelong ownership. This right passes to the heirs. They cannot make any transactions with the inherited land, but can only use it for its intended purpose.
• inheritance of a land plot in SNT is no different from the rules for taking possession of other real estate.
• contracts of unlimited and free use with executive committees. This right is not inherited, and the contract becomes invalid due to the death of the user of the plot, with the exception of special conditions of the contract.
• inheritance by relatives of the right to lease a land plot - in this situation, the heirs can formalize the relationship for the remaining period according to the general rules.
• inheritance of a non-privatized land plot involves submitting to the court additional documents on the basis of which it was in possession (protocol of the decision of the local administration or village council, as well as the decision of the organization in which the owner worked).

The inheritance includes the right to lease a land plot. According to paragraph 2 of Article 617 of the Civil Code of the Russian Federation, in the event of the death of a citizen renting real estate, his rights and obligations under the lease agreement pass to the heir, unless otherwise provided by law or agreement.

At the same time, the lessor does not have the right to refuse such an heir to enter into the agreement for the remaining period of its validity, except for the case where the conclusion of the agreement was conditioned by the personal qualities of the lessee. In addition, the successor will not receive the use of the leased land of the public plot, if the heir does not act as a new tenant within a year from the date of death of the testator, the contract will be considered canceled and the property will be escheated. Accordingly, in order to become a tenant under inheritance law, it is necessary to contact the notary office at the place of residence of the deceased citizen. Only after receiving a certificate of inheritance of rights can you begin to complete all legal documentation. The basis for the notary to re-register rights to a new person will be the previous lease agreement, which has undergone mandatory registration with Rosreestr. If the leased property is owned by government bodies, institutions or organizations, then the heirs will also be required to provide documents and special resolutions confirming the provision of this property for rent to the testator. The notary checks the lease agreement for legality, compliance with standards and determines whether it is possible to transfer the rights of the tenant to the heir. If the transition is possible, the notary issues a certificate of the right to inheritance. If the lease agreement has not passed the necessary state registration procedure, but was properly executed, the parties to this agreement are obliged to fulfill all obligations assumed. Consequently, the administration, as a party to an agreement that has not passed the necessary state registration, has no right on this basis to refer to its non-conclusion. The only difference between such agreements is that, due to the lack of registration, the parties have rights that cannot be opposed to an indefinite number of persons. Thus, leased land can be inherited. The lessor has no right, based on the provisions of the law, to refuse the successor of the estate to enter into the agreement until its validity expires. A different interpretation of the rules of civil law on state registration of a lease agreement contributes to the dishonest behavior of the parties to the agreement, which has not passed the necessary registration, but is being executed by them. The presence of disagreements and conflicts of interest entails the need to go to court. In particular, in the absence of state registration in Rosreestr, upon the death of one of the parties to such an agreement (the lessee), the other party (the lessor) may declare the lease agreement invalid, and then the possibility of inheriting the right to lease a plot of land will have to be proven in court. The legal process is initiated by filing a complaint. The fee is paid, the evidence base is collected. Debates between the parties are held, a resolution is issued indicating the final decision on the lease and inheritance in general.

Specifics and rules for inheriting land

The features and specificity of inheritance of personal land plots are explained by the fact that the legality of land as an inherited mass is legal in the case where the testator was the owner or could use it for life. To inherit an allotment, apart from these rules, you do not need to present any more permits.

As property, the land will be transferred to the heir exclusively with all the ensuing powers belonging to the testator, that is, together with the soil, vegetation on this territory, forest areas, etc. The law stipulates that some types of real estate are not intended for inheritance, for example, garden plots, country houses, etc.

Inheritance, which is approved by Art. 1181 of the Civil Code operates on standard grounds without the presentation of any additional permissions. Specificity in a variety of purposes, rules of use and provision of proper care.

When inheriting a personal land plot without land surveying, there are certain difficulties - the law of the Russian Federation does not allow such property to be sold or given away. The heirs, in this case, carry out land surveying themselves.

How to divide a plot of land between heirs

The process of inheriting land plots between heirs can be carried out according to the principle of the minimum size, which is regulated for the territory of a given purpose. If such an order is not acceptable in a particular situation, then it passes to the heir who has priority to receive it. This may be mutual ownership with the testator, based on legal right. For example, when inheriting a summer cottage after the death of the owner, the priority right is assigned to the legal spouse of the owner. The rest of the claimants may be paid compensation.

In a situation where no one has declared their intentions, the basis for the transfer of ownership will be based on the principle of distribution of shares in the total mass.

Land plot and rights to it as part of inheritance

G.A. PISAREV

Pisarev Georgy Anatolyevich, Associate Professor of the Department of Civil Law and Process of the Academy of Law and Management of the Federal Penitentiary Service, Candidate of Legal Sciences.

The article examines the legal regime of land plots owned and held by citizens under other real and obligatory rights, in terms of their inheritance by law and will.

Inheritance is the transfer of the property of the deceased (inheritance) to other persons in the order of universal succession, that is, unchanged as a single whole and at the same moment, unless otherwise follows from the rules of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) ( Clause 1 of Article 1110 of the Civil Code of the Russian Federation). The object of inheritance, based on its legal definition, is an inheritance, which includes things that belonged to the testator on the day the inheritance was opened, other property, including property rights and obligations, except for those that are inextricably linked with the personality of the testator, as well as rights and obligations , the transfer of which by inheritance is not allowed by the Civil Code of the Russian Federation or other laws (paragraphs 1, 2 of Article 1112 of the Civil Code of the Russian Federation) <1>. This formula of “general” inheritance allows us to make a preliminary conclusion that the inheritance may include things and other property, including property rights to things, therefore, the objects of the inheritance can be both the things themselves and the property rights to them.

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<1> See: Blinkov O.E. Current problems of inheritance law: history, theory and practice // Inheritance law. 2006. N 2. P. 61.

Land plots and rights to them, along with residential premises, bank deposits and vehicles, are the most common objects of inheritance in Russian notarial practice <2>.

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<2> On the inheritance of escheated land plots, see: Karoyan A.G. Inheritance of escheated lands by public legal entities // Inheritance law. 2009. N 1. P. 19 - 21; Blinkov O.E. Inheritance of escheatable property in the member states of the Commonwealth of Independent States and the Baltic States // Legal World. 2007. N 6. P. 65 - 69.

The land plot owned by the testator is included in the inheritance and is inherited on the general basis established by the Civil Code of the Russian Federation, while no special permission is required to accept an inheritance that includes the specified property (Article 1181 of the Civil Code of the Russian Federation). When inheriting a land plot, the surface (soil) layer located within the boundaries of this land plot, water bodies, and plants located on it are also inherited, unless otherwise established by law (Article 1181 of the Civil Code of the Russian Federation).

In the literature one can find the statement that the inheritance of land plots from agricultural lands has a special legal regime <3>. This opinion does not seem entirely correct, since Article 11 of the Federal Law of July 24, 2002 N 101-FZ “On the turnover of agricultural lands” (hereinafter referred to as the Law), called “Inheritance of land plots from agricultural lands”, does not establish any or exceptions from the general procedure for inheriting land plots, but concerns exclusively the consequences of inheriting land plots from agricultural lands. In Art. 11 of the Law prescribes that if the acceptance of an inheritance has led to a violation of the requirements established by Articles 3 and (or) 4 of the Law, the requirements established by Article 5 of the Law are applied to the heirs. In Art. 3 of the Law establishes a limitation on the civil legal capacity of foreign citizens, foreign legal entities, stateless persons, as well as legal entities in the authorized (share) capital of which the share of foreign citizens, foreign legal entities, stateless persons is more than 50%, in terms of rights to land plots from agricultural lands, namely, it is stipulated that such persons can own land plots from agricultural lands only on a lease basis. In paragraph 2 of Art. 4 of the Law stipulates that the maximum size of the total area of ​​agricultural land, which is located on the territory of one municipal district and can be owned by one citizen and (or) one legal entity, is established by the law of a constituent entity of the Russian Federation equal to no less than 10% of the total area of ​​agricultural land, located on the specified territory at the time of provision and (or) acquisition of such land plots. Thus, if inheritance leads to the fact that the owner of a land plot of agricultural land will become a foreign citizen, a foreign legal entity, a stateless person, as well as a legal entity in the authorized (share) capital of which there is a share of foreign citizens, foreign legal entities, persons stateless is more than 50%, or the maximum size of the total area of ​​agricultural land that can belong to one person will be exceeded, the Law imposes the application of the requirements established by Article 5 of the Law. The law obliges such an owner to alienate a land plot from agricultural lands or a share in the right of common ownership of a land plot from agricultural lands within a year from the date of the emergence of ownership of these land plots or the right of ownership of shares in the right of common ownership of a land plot ( clause 1 article 5). As we see, in these cases the law does not prevent the inheritance of land plots or shares in the right of common ownership of a land plot of agricultural land, establishing only legal consequences for the legal result of inheritance, i.e. ownership.

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<3> About this see: Blinkov O.E. Inheritance of land plots from agricultural lands in the CIS and Baltic countries // Inheritance law. 2007. N 2. P. 26 - 30; Blinkov O.E. Special inheritance regimes in the legislation of the CIS member states and the Baltic countries // Civilist. 2007. N 2. P. 73 - 77.

The inheritance also includes the right of lifelong inheritable ownership

a land plot (Article 21 of the Land Code of the Russian Federation (hereinafter referred to as the Land Code of the Russian Federation)), which is inherited on the general basis established by the Civil Code of the Russian Federation, while accepting an inheritance that includes the specified right does not require special permission (Article 1181 of the Civil Code RF) <4>.
The transfer of the right to lifelong inheritable ownership of a land plot by inheritance by civil law is considered as the only way to dispose of a land plot that is under the right of lifelong inheritable ownership (Article 267 of the Civil Code of the Russian Federation). It must be recalled that the right of lifelong inheritable ownership is considered an institution of land law that has been preserved from the Soviet period and was initially designed to compensate to some extent for the lack of private ownership of land by citizens. On the contrary, the right of permanent (indefinite) use
of a land plot is distinguished by a wider range of subjects of this type of legal relationship - these are citizens and organizations that have the rights of a legal entity.

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<4> For details, see: Pisarev G.A. Inheritance of land plots owned by the right of lifelong inheritable ownership // Inheritance law. 2008. N 3. P. 31 - 37; Buryakov V.N. Special types of inheritance of land // Inheritance law. 2008. N 1. P. 36 - 38; Popova L.I. Legal grounds for inheriting the property of a peasant (farm) enterprise // Inheritance law. 2013. N 3. P. 40 - 41.

Based on the norms of civil legislation, it is possible to identify the main similar features of these limited real rights: 1) they represent rights to land plots that already have an owner in the person of state or municipal bodies, but the use of land plots is free; 2) arise from the provisions of the law, and not from contractual and other obligations; 3) are carried out with the simultaneous existence of state or municipal ownership rights to a given land plot, therefore, initial and derivative registration of land rights occurs; 4) the holders of these limited real rights have only the right of ownership and the right to use the land plot; 5) citizens have the right to erect buildings, structures and other real estate on these land plots, acquiring ownership rights to them (Articles 266 and 269 of the Civil Code of the Russian Federation)); 6) the transfer of ownership of a land plot to another subject of public law (for example, the transfer of a land plot from federal ownership to the ownership of a constituent entity of the Russian Federation when delimiting state ownership of land) is not a basis for the termination of limited real rights to a land plot (clause 3 of Article 216 Civil Code of the Russian Federation); 7) legal relations between individual subjects of limited real rights are of an absolute nature; holders of these rights, like any subject of civil legal relations, in accordance with Art. 11 of the Civil Code of the Russian Federation have the right to protection, including from interference by the owner of a land plot if the actions of the owner are carried out in violation of the law.

However, there is one very significant difference between the right of lifelong inheritable possession and the right of permanent (indefinite) use of a land plot. In accordance with Art. 267 of the Civil Code of the Russian Federation, the disposal of a land plot that is in lifelong inheritable possession is not allowed, except in the case of transfer of the right to a land plot by inheritance (Articles 1181 and 1162 of the Civil Code of the Russian Federation). With regard to the right of permanent (indefinite) use of a land plot, the law does not provide for the transfer of this right by inheritance.

Currently, the State Duma of the Federal Assembly of the Russian Federation is considering draft law N 493406-6 “On amendments to Article 1181 of Part Three of the Civil Code of the Russian Federation,” which proposes to amend Article 1181 of Part Three of the Civil Code of the Russian Federation by adding paragraph three with the following content: “The right of permanent (perpetual) use of a land plot belonging to the testator is included in the inheritance and is inherited by law. No special permission is required to accept an inheritance that includes the specified property.”

The reasons for which it is proposed to equalize the legal regime of land plots provided to citizens on the basis of the rights of lifelong inheritable possession and permanent (indefinite) use in terms of their inheritance are determined by the author of the bill not by the similarity of these two limited real rights to land plots, but by the violation of Article 2 of the Russian Constitution Federation, according to which “recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state”, part 4 of article 35 of the Constitution of the Russian Federation, according to which “the right of inheritance is guaranteed”, the fundamental principles of civil legislation of the Russian Federation (Article 1, paragraph 1 of Article 2 of the Civil Code of the Russian Federation), since within the framework of the legal regime of land plots granted on the right of permanent (perpetual) use, citizens are placed in an unequal position compared to other participants in civil circulation - legal entities.

In accordance with Art. 37 of the now repealed Land Code of the RSFSR, “when the right of ownership of buildings, structures is transferred or when they are transferred to other enterprises, institutions, organizations and citizens, the right to use the land plots also passes along with these objects. At the same time, a new document is issued certifying the right to land.” Based on this document, these citizens can take advantage of the right provided by paragraph 9.1 of Article 3 of the Federal Law of October 25, 2001 N 137-FZ “On the Entry into Force of the Land Code of the Russian Federation” to re-register the right of permanent (perpetual) use of a land plot to ownership.

Currently, in accordance with paragraph 1 of Art. 35 of the Land Code of the Russian Federation “when the ownership of a building, structure, structure located on someone else’s land plot is transferred to another person, he acquires the right to use the corresponding part of the land plot occupied by the building, structure, structure and necessary for their use, on the same conditions and in the same amount as their previous owner" <5>. Consequently, the legal successor of a citizen who owned a land plot with the right of permanent (perpetual) use does not have a legal basis for the right granted by law to freely re-register the right of permanent (perpetual) use of a land plot to the right of ownership in relation to the entire land plot, since his powers are limited to the right to use only part of the land plot on which the property is located.

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<5> See: Amelina N.E. Inheritance of land plots and a simplified procedure for registering ownership of land plots by heirs of individual residential buildings // Inheritance law. 2008. N 1. P. 34 - 36; Elnikova E.V. On succession of rights to a land plot when inheriting residential buildings // Inheritance law. 2007. N 2. P. 30 - 32.

At the same time, paragraph 3 of Art. 268 of the Civil Code of the Russian Federation establishes that “in the event of a reorganization of a legal entity, the right of permanent (indefinite) use of a land plot belonging to it shall be transferred in accordance with the procedure of legal succession.” However, this procedure for succession does not apply to individuals who do not have the status of an individual entrepreneur. Thus, in violation of Article 2 of the Constitution of the Russian Federation, according to which “the recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state”, Part 4 of Article 35 of the Constitution of the Russian Federation, according to which “the right of inheritance is guaranteed”, the fundamental principles civil legislation of the Russian Federation (Article 1, paragraph 1 of Article 2 of the Civil Code of the Russian Federation), citizens are placed in an unequal position compared to other participants in civil circulation - legal entities.

If the inheritance of a land plot that belonged to a citizen with the right of permanent (perpetual) use will occur in the order of universal succession, i.e. by law and not by will, this will not be considered an act of disposition on the part of the testator. Therefore, it is proposed to make appropriate changes to Art. 1181 Civil Code of the Russian Federation. Inheritance by law must be the legal basis for the right granted by law to re-register the right of permanent (perpetual) use to the right of ownership of a land plot or to apply such a method of protection as recognition of ownership of a land plot in the event of refusal by state or municipal authorities to such re-registration .

The inheritance also includes the right to rent

land plot. According to paragraph 2 of Art. 617 of the Civil Code of the Russian Federation “Keeping the lease agreement in force when the parties change” in the event of the death of a citizen renting real estate, his rights and obligations under the lease agreement pass to the heir, unless otherwise provided by law or agreement, while the lessor has no right to refuse such heir entering into an agreement for the remaining term of its validity, with the exception of cases where the conclusion of the agreement was conditioned by the personal qualities of the tenant. Clause 1 of Art. 46 of the Land Code of the Russian Federation establishes that the lease of a land plot is terminated on the grounds and in the manner provided for by civil legislation; therefore, land legislation does not establish a ban on inheriting the right to lease a land plot.

Among the rights to land plots established by Russian legislation, the right to free use

land plot, which is of a contractual nature. When providing a land plot that is in state or municipal ownership for free use, an agreement for the free use of the land plot is concluded by the citizen with the authorized body, and in the case provided for by law, with the organization to which the land plot that is in state or municipal ownership is provided for permanent (indefinite) use (Clause 1, Article 39.10 of the Land Code of the Russian Federation). Land plots in state or municipal ownership may be provided for free use:

1) in the form of official allotments to employees for the term of the employment contract concluded between the employee and the organization;

2) for running a personal subsidiary plot or for a peasant (farmer) farm to carry out its activities in municipalities determined by the law of a constituent entity of the Russian Federation, for a period of no more than six years;

3) for individual housing construction or running personal subsidiary plots in municipalities determined by the law of a constituent entity of the Russian Federation, to citizens who work at their main place of work in such municipalities in specialties established by the law of a constituent entity of the Russian Federation, for a period of no more than six years;

4) to a citizen, if on the land plot there is a service residential premises in the form of a residential building, provided to this citizen for the period of the right to use such residential premises;

5) citizens for the purpose of carrying out agricultural activities (including beekeeping) for their own needs in forest areas for a period of no more than five years;

6) citizens for agricultural, hunting, forestry and other uses that do not involve the construction of buildings and structures, if such land plots are included in the list of land plots approved in accordance with the procedure established by the Government of the Russian Federation, provided for defense and security needs and temporarily not used for these needs , for a period of no more than five years;

7) persons belonging to the indigenous peoples of the North, Siberia and the Far East of the Russian Federation, in places of traditional residence and traditional economic activities for the placement of buildings and structures necessary for the purpose of preserving and developing the traditional way of life, economic management and crafts of the indigenous peoples of the North, Siberia and the Far East of the Russian Federation, for a period of no more than ten years;

a person whose right to gratuitous use of a land plot in state or municipal ownership has been terminated in connection with the seizure of a land plot for state or municipal needs, in exchange for the seized land plot for the period established by this paragraph, depending on the basis for the emergence of the right to gratuitous use of the seized land plot;

9) a person who has the right to conclude an agreement for the gratuitous use of a land plot, in the case and in the manner provided for by Federal Law No. 161-FZ of July 24, 2008 “On promoting the development of housing construction” (clause 2 of Article 39.10 of the Land Code of the Russian Federation) .

The above-mentioned grounds for granting a land plot in state or municipal ownership for free use indicate that the conclusion of an agreement for the free use of a land plot is determined by the personal qualities of the user, therefore, by inheritance, the right to free use of a land plot is not transferred. If a contract for gratuitous use is concluded in relation to a land plot that is not in state or municipal ownership, then in this case the right to gratuitous use does not pass by inheritance, since Art. 701 of the Civil Code of the Russian Federation categorically establishes that a contract for gratuitous use is terminated in the event of the death of the citizen-borrower, unless otherwise provided by the contract. Thus, only in the case expressly provided for by the contract, the right to free use of a land plot can be transferred by inheritance.

Literature

1. Amelina N.E. Inheritance of land plots and a simplified procedure for registering ownership of land plots by heirs of individual residential buildings // Inheritance law. 2008. N 1. P. 34 - 36.

2. Blinkov O.E. Current problems of inheritance law: history, theory and practice // Inheritance law. 2006. N 2. P. 61 - 63.

3. Blinkov O.E. Inheritance of escheatable property in the member states of the Commonwealth of Independent States and the Baltic States // Legal World. 2007. N 6. P. 65 - 69.

4. Blinkov O.E. Inheritance of land plots from agricultural lands in the CIS and Baltic countries // Inheritance law. 2007. N 2. P. 26 - 30.

5. Blinkov O.E. Special inheritance regimes in the legislation of the CIS member states and the Baltic countries // Civilist. 2007. N 2. P. 73 - 77.

6. Buryakov V.N. Special types of inheritance of land // Inheritance law. 2008. N 1. P. 36 - 38.

7. Elnikova E.V. On succession of rights to a land plot when inheriting residential buildings // Inheritance law. 2007. N 2. P. 30 - 32.

8. Karoyan A.G. Inheritance of escheated lands by public legal entities // Inheritance law. 2009. N 1. P. 19 - 21.

9. Pisarev G.A. Inheritance of land plots owned by the right of lifelong inheritable ownership // Inheritance law. 2008. N 3. P. 31 - 37.

10. Popova L.I. Legal grounds for inheriting the property of a peasant (farm) enterprise // Inheritance law. 2013. N 3. P. 40 - 41.

Source: INHERITANCE LAW magazine

The process of transferring land on the right of personal ownership

In the case where the testator was the owner, then it is included in the total estate and is subject to the general rules of transfer regulated by the legislator. When inheriting a land plot on the basis of law, no special permits are required for such property. This mass also includes the soil layer and reservoirs that are located on the territory, unless there are special conditions under the law.

Inheritance of a personal share in the total estate

Today, the estate includes and is subject to registration of rights on standard grounds: a plot of land under the right of ownership of the testator or his legal lifelong possession. In a situation where there are several owners, this implies a share in the total ownership. In this case, the standard design algorithm applies.

In a situation where a non-resident of the Russian Federation owns real estate on the territory of the Russian Federation, he can legally carry out any actions with it, that is, the process of inheritance, including a land plot, by a foreign citizen does not oblige such a citizen to undergo the procedure for obtaining Russian citizenship.

Right of lifelong inheritable ownership (commentary)

Dear Colleagues! Please look at the draft text of the commentary on NVD. This text seems very crude to me, so I ask anyone to help in any way they can.

Right of lifelong inheritable ownership

Article 265. Grounds for acquiring the right of lifelong inheritable ownership of a land plot

The right to lifelong inheritable ownership of a land plot in state or municipal ownership is acquired by citizens on the grounds and in the manner provided for by land legislation.

1. General notes. The right of lifelong inheritable ownership of a land plot (hereinafter also referred to as PPNV) is a living fossil of Russian private law. In essence, PPNV is the heir of emphyteusis, chinsha ownership and the right of hereditary quitrent ownership provided for in the Draft Civil Code.

After the revolution of 1917, the “Decree on Land” stated that “the right of private ownership of land is abolished forever,” “turned into the public domain and transferred to the use of all workers on it.” However, it quickly became clear that the vague “national property and enjoyment of all working people” was an unimportant substitute for clearly defined land rights. Since the right of private ownership of land could not be returned for ideological reasons, there was a need for surrogates that would allow establishing some kind of private right to land, while leaving ownership rights to the Workers' and Peasants' State.

Therefore, the “right to direct use of agricultural lands from the unified state land fund” for private individuals was already recognized by the Land Code of the RSFSR of 1922. The right to land provided for labor use was declared indefinite and could be terminated only on the grounds specified in the law. All structures, buildings, crops and plants, “and in general everything connected to a plot of land in the use of a land user,” were recognized as belonging to the land user (presumably by right of ownership), and the purchase, sale, will or donation, as well as the mortgage of land were prohibited under pain of invalidity of the transaction, criminal punishment and seizure of land.

The Land Code of the RSFSR of 1970 confirmed this approach. The land was declared the common property of the entire Soviet people, the exclusive property of the state and provided only for use (Article 3).

In a form close to its modern one, the right of lifelong inheritable ownership appears in late Soviet law; it was provided for in Art. 5 and 20 of the Fundamentals of Legislation of the USSR and Union Republics on Land dated February 28, 1990, and then in the USSR Law “On Property in the USSR” dated March 6, 1990 and in the Decree of the President of the USSR dated January 5, 1991 No. 1285 “ On the priority tasks for the implementation of land reform." Then the provisions on the right of PNV were practically reproduced in early post-Soviet legislation - the right of lifelong inheritable ownership of land was mentioned in the Law of the RSFSR “On Peasant (Farm) Economy” of November 22, 1990, the Law of the RSFSR “On Land Reform” of November 23, 1990, Law of the RSFSR “On Property in the RSFSR” dated December 24, 1990, and detailed regulation of the institute was contained in the Land Code of the RSFSR dated April 21, 1991.

The new Land Code of the Russian Federation provides in Art. 21 (Federal Law No. 171-FZ, Art. Art. 20 and the Land Code of the Russian Federation, devoted to the right of permanent (perpetual) use and the right of lifelong inheritable ownership of a land plot, have already been recognized as no longer in force), that the provision of land plots to citizens on the right of lifelong inheritable ownership after The entry into force of the Code is not allowed, however, the PPNV of a land plot in state or municipal ownership, previously acquired by a citizen, is retained (clause 1).

According to Art. 3 of the law on the entry into force of the Land Code of the Russian Federation, the right of lifelong inheritable ownership of land plots in state or municipal ownership, acquired by a citizen before the date of entry into force of the Land Code of the Russian Federation, is preserved; rights to land not provided for by the Land Code of the Russian Federation are subject to re-registration from the date of entry into force of the Land Code of the Russian Federation (Part 1). If a citizen has exercised his right to “re-register in ownership” the right of lifelong inheritable ownership that belonged to him, from the moment of state registration of the citizen’s ownership of such land plot, the right of lifelong inheritable ownership is terminated due to the fact that, as a general rule, no one can have a limited real right to his own thing.

Since the registration of land plots previously granted to them for lifelong inheritable ownership into the ownership of citizens is not limited to any period of time (Part 3 of Article 3 of the Introductory Law), it can be assumed that the PPNV will exist in Russian law for a long time.

2. In accordance with the commented norms, the right of lifelong inheritable possession is a limited real right to a land plot, which can only belong to a citizen. Apparently, the commented norm refers to any individual who may not be a citizen of Russia and at the same time receive such a right by inheritance, for example.

The right of lifelong inheritable ownership may also belong to several individuals, each of whom in this case has a share in the right of lifelong inheritable ownership. Thus, in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 o (clause 74); “Article 1181 of the Civil Code of the Russian Federation does not establish any exceptions for cases of inheritance by several persons, as a result of which each heir acquires a share in the specified right, regardless of the divisibility of the land plot” (clause 78).

In the case of a plurality of persons, relations between them should be built according to the rules on common property, similar to the law.

The object of the PNV can only be land plots that are in public ownership (Article 265 of the Civil Code), and the basis for the emergence of the PNV can only be a decision made by the public owner to grant possession of the land plot.

Article 266. Possession and use of a land plot on the right of lifelong inheritable possession

1. A citizen who has the right of lifelong inheritable ownership (the owner of a land plot) has the rights of ownership and use of a land plot, transmitted by inheritance.

2. Unless otherwise follows from the conditions for use of a land plot established by law, the owner of the land plot has the right to erect buildings, structures and other real estate on it, acquiring ownership rights to it.

The right of lifelong inheritable ownership historically arose as a functional analogue of the right of ownership, which predetermined its content. A public owner who transfers a land plot to a citizen on the basis of the right of lifelong inheritable ownership actually loses any powers of the owner, remaining, in fact, only the holder of a bare right.

PPNV presupposes the owner’s right to own and use a land plot, erect buildings, structures on it and create other real estate, acquiring ownership of it. The owner of the PPNV owns the crops and plantings of agricultural crops, the resulting agricultural products and the income from their sale (clause 2 of article 40 of the Land Code). This is consistent with Art. 136 of the Civil Code, according to which the fruits, products, income received as a result of the use of a thing belong to the owner of the thing, unless otherwise provided by law, other legal acts, contract or follows from the essence of the relationship.

The owner of a plot of land with the right of PNV, who has erected an unauthorized building on it, as well as the owner of the plot, may demand recognition of his ownership of this building on the basis of clause 3 of Art. 222 Civil Code. However, if this fails, he must keep in mind that (like the owner) he may lose the right to the plot according to the rules of Art. 54 ZK.

Holder of PPNV on the basis of Art. 305 of the Civil Code has the opportunity to resort to vindication and negatory claims to protect its rights - including against the owner.

The owner has the right to seize a land plot from the owner only in cases provided for by law. The right to lifelong inheritable ownership of a land plot can be forcibly terminated in the cases specified in paragraph 2 of Art. 45 of the Land Code - when using a land plot in violation of legal requirements and when withdrawing a land plot for state or municipal needs.

Using a site in violation of legal requirements means using it for other than its intended purpose or if such use leads to a significant decrease in the fertility of agricultural land or harm to the environment; damage to lands; failure to fulfill obligations for land reclamation, mandatory measures to improve land and protect soils; failure to fulfill obligations to bring land into a condition suitable for use for its intended purpose; non-use of a land plot intended for agricultural production or housing or other construction for these purposes for three years, unless a longer period is established by federal law; creation or erection of an unauthorized structure on a land plot or failure to fulfill the obligations provided for in Part 11 of Article 55.32 of the Town Planning Code of the Russian Federation, within the time limits established by the decision to demolish the unauthorized structure or the decision to demolish the unauthorized structure or bring it into compliance with established requirements.

Forced termination of the right to lifelong inheritable ownership of a land plot is carried out on the basis of a court decision on the seizure of the land plot (subject to the failure to eliminate the administrative offense associated with the failure to use the land plot for its intended purpose or use in violation of the legislation of the Russian Federation, after the imposition of an administrative penalty) - clause 1 of Art. . 54 ZK.

The seizure of a plot of land owned by the right of lifelong inheritable ownership for state or municipal needs is carried out, in general, according to the same rules as the seizure of a plot from its owner. Moreover, even the amount of compensation in the event of termination of the right to lifelong (heritable) ownership of a land plot, the market value of this right is determined as the market value of the land plot (subclause 2, clause 3, article 56.8 of the Land Code).

It is interesting to note that if a land plot owned by a municipal entity and provided to a citizen by the right of lifelong inheritable ownership is seized for state needs, the citizen will receive the entire market value of this plot, while the municipal entity will receive nothing. This well illustrates the content of the ownership of the plot transferred to the PNV.

On the grounds specified in the law, PNV, like the right of ownership, may be limited - for example, in zones with special conditions for the use of territories. In such cases, the owner, according to the rules provided for in Articles 57 and 57.1 of the Land Code, is subject to compensation for losses caused by the restriction of the rights of landowners. This again indicates that the holder of the PNV is the “actual owner” of the land plot. Finally, according to Art. 388 of the Tax Code, a person who owns a land plot for lifelong inheritable ownership is a payer of land tax.

Article 267. Disposal of a land plot located in lifelong inheritable possession

Disposal of a land plot that is in lifelong inheritable possession is not permitted, except in the case of transfer of the right to a land plot by inheritance.

1. The commented norm establishes a ban on the disposal of a land plot, allowing the transfer of the right of lifelong inheritable possession only in the order of universal succession.

1.1. Until recently, special rules were established by the Federal Law “On gardening, gardening and dacha non-profit associations of citizens” for dacha, garden and vegetable plots of land. In accordance with Part 2 of Art. 30 of this law, such plots could, in particular, be exchanged. In addition, the same norm established that these plots are inherited only by law. Currently, this norm has lost force, and in accordance with Art. 1181 of the Civil Code, the right of lifelong inheritable ownership of a land plot belonging to the testator is included in the inheritance and is inherited on a general basis, that is, including by will. The Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases” states that land plots and buildings, structures, structures located on them act as independent objects of civil circulation (Article 130 of the Civil Code of the Russian Federation), therefore the testator has the right to make separate orders in relation to them, including disposing only of a building belonging to him or only a land plot (the right of lifelong inheritable ownership of a land plot) (clause 79). However, disposal of the right to lifelong inheritable ownership in the event of death is possible with restrictions due to the nature of this right: for example, you cannot bequeath PPNV to a legal entity. The Plenum of the Supreme Court of the Russian Federation in paragraph 78 of Resolution No. 9 of May 29, 2012, in particular, states: “Only citizens can be heirs of a land plot that belonged to the testator under the specified right. The inclusion in the will of an order regarding such a plot of land in favor of a legal entity entails in this part the invalidity of the will.”

1.2. At the same time, in addition to the mortis causa order, the PPNV does not exclude the possibility of an order not aimed at alienating the PPNV.

The owner, for example, can enter into an agreement to establish an easement - both as an easement and “on behalf of” the servient plot, and in the latter case the owner’s consent is not required (Article 39.24 of the Land Code).

Does not contradict the meaning of Art. 267 of the Civil Code and the transfer of property, for example, for rent, especially since Art. 617 of the Civil Code directly speaks of the consequences of transferring the right of lifelong inheritable ownership of leased property to another person.

1.3. The owner of the PPNV has the opportunity to renounce his right to a land plot according to the rules of Art. 53 of the Land Code by sending an application to the owner of the land plot.

1.4. The commented article, however, establishes a mandatory prohibition on the alienation of the very right of lifelong inheritable possession. However, this ban, seemingly so important, in fact turns out to be a fiction due to the principle of the unity of fate of land plots and objects firmly associated with them. Thus, in the Determination of the Supreme Court of the Russian Federation dated October 30, 2012 No. 18-KG12-53, the following is stated: “Subparagraph 5 of paragraph 1 of Article 1 of the Land Code of the Russian Federation establishes the principle of the unity of fate of land plots and objects firmly associated with them, according to which all With land plots, objects follow the fate of land plots, with the exception of cases established by federal laws.

In accordance with paragraph 1 of Article 35 of the Land Code of the Russian Federation, when the ownership of a building, structure, structure located on someone else’s land plot is transferred to another person, he acquires the right to use the corresponding part of the land plot occupied by the building, structure, structure and necessary for their use, on the same terms and to the same extent as their previous owner.

A similar provision is contained in paragraph 3 of Article 552 of the Civil Code of the Russian Federation, according to which, when selling real estate located on a land plot that does not belong to the seller by right of ownership, the buyer acquires the right to use the corresponding part of the land plot on the same terms as the seller of real estate.

Clause 9.1 of Article 3 of the Federal Law of October 25, 2001 No. 137-FZ “On the Entry into Force of the Land Code of the Russian Federation” also provides that citizens to whom the ownership rights to buildings, structures and ( or) structures located on land plots specified in this paragraph and being in state or municipal ownership have the right to register ownership rights to such land plots, except for cases where, in accordance with federal law, such land plots cannot be provided for private ownership.

From the above legal norms it follows that the right of lifelong inheritable possession of the corresponding part of the land plot occupied by a building, structure, structure and necessary for their use passes by succession from the previous owner to the new owner simultaneously with the acquisition of ownership of the building, structure, structure.”

The same position is reflected, for example, in the Cassation ruling of the Supreme Court of the Russian Federation dated October 19, 2018 No. 4-KG18-62: “a land plot that is under the right of lifelong inheritable ownership is not in itself subject to alienation to another person under a civil law transaction.

In accordance with paragraph 2 of Article 271 of the Civil Code of the Russian Federation (as amended in force during the period of disputed legal relations), when the ownership of real estate located on someone else's land plot is transferred to another person, he acquires the right to use the corresponding part of the land plot on the same conditions and in the same amount as the previous owner of the property.

Paragraph 1 of Article 35 of the Land Code of the Russian Federation (in force at the time of the emergence of controversial legal relations) establishes that when the ownership of a building, structure, structure located on someone else’s land plot is transferred to another person, it acquires the right to use the corresponding part of the land plot occupied building, structure, structure and necessary for their use, on the same terms and to the same extent as their previous owner.

From the above provisions of the legislation it follows that when the owner sells a building located on a land plot held by the same person on the right of lifelong inheritable possession, he cannot retain the land plot on the right of lifelong inheritable possession, which, to the same extent of rights, is transferred to the new one. the owner of the building. At the same time, the right of ownership and use of a land plot for the new owner of the real estate located on it arises by force of law, which means the termination of the right of lifelong inheritable possession of the disputed land plot from the seller of the building.”

It is worth remembering, however, that this approach can only be applied in cases where buildings located on a plot of land are alienated to an individual, since only citizens can possess PPNV. In case of alienation of the building to another entity, its right to land must have a different nature (lease).

1.5. The same rules should apply when mortgaging a building.

1.6. Judicial practice and commentators agree that foreclosure on a land plot that is in lifelong inheritable possession is impossible.

This decision is unlikely to be fair. The right of lifelong inheritable possession is not property reserved from foreclosure, and such seizure, without reasonable grounds, only needlessly violates the rights of creditors. If there are buildings on the site that belong to the debtor by right of ownership, they may become the object of foreclosure with all the ensuing consequences for the fate of the land plot.

What documents will be required for registration by a notary?

Legal certificate is provided to citizens based on the provision of documents, a list of which can be obtained from a notary and an identity document. The set of documents requested by the notary may include:

- death certificate of the citizen whose property is claimed;

- documents showing the degree of relationship with the deceased in the event of receiving an inheritance by law;

— the testator’s will or copies, certified by a notary, of the protocol of opening the envelope with the will form;

- confirmation of the legality of ownership of the land of the deceased - certificate of ownership, extract from the Unified State Register of Real Estate;

- a document confirming the value of real estate or an extract of the actual cadastral value obtained from Rosreestr.

The issuance of a certificate requires payment of a state fee or other tariff if the service is received from a private notary. Additional fees may apply for technical services provided. There is no regulated list of documents for registration of rights to inherited land. Therefore, the notary has the right to request additional information from the citizen.

How to register

Registration of the legal rights of an heir contains the following steps:

• provision of a set of documents;
• checking documents for their authenticity and legality;
• adding information to the Unified State Register;
• issuing documents to citizens that indicate registration of ownership of a plot of land.

This procedure is considered completed when the Unified State Register entries are made and the certificate is issued to the citizen.

The Federal Law “On state registration of rights to real estate and transactions with it” regulates the list of documents required for state registration:

• application for registration and issuance of a certificate;
• the applicant’s personal passport or power of attorney;
• confirmation of the basis of ownership and a plan of the territory;
• receipt of payment of state duty.

A set of documents must be submitted to the local authorities of Rosreestr upon the discovery of the inheritance mass. MFCs are authorized organizations whose functions are to receive and issue documents to citizens. But they have no legal authority to take legal action and cannot register property.

Rosreestr dated June 24, 2021 N 14-4759-GE/21

FEDERAL STATE REGISTRATION SERVICE,

CADASTRE AND CARTOGRAPHY

LETTER

dated June 24, 2021 N 14-4759-GE/21

The Federal Service for State Registration, Cadastre and Cartography, having considered, within the competence of Rosreestr, the appeal of the Federal Notary Chamber, taking into account that, according to the Regulations on the Federal Service for State Registration, Cadastre and Cartography, approved by Decree of the Government of the Russian Federation dated 01.06.2009 N 457, Rosreestr is not authorized to explain and interpret the legislation of the Russian Federation, reports.

According to Article 34 of the Family Code of the Russian Federation, property acquired by spouses during marriage is their joint property; such property includes immovable property acquired at the expense of the common income of the spouses, regardless of which spouse’s name it was purchased in or in the name of which or which of the spouses contributed funds. Accordingly, if state registration of ownership of a real estate object, which is the common property of spouses, is carried out in relation to one of the spouses, this fact does not cancel the legal regime of the spouses’ property (if it has not been changed in the prescribed manner), that is, in this case both spouses are owners of such an object, although only one of them is indicated as the copyright holder in the Unified State Register of Real Estate (hereinafter referred to as the EGRN).

By virtue of paragraph 2 of Article 8.1 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), rights to property subject to state registration arise, change and terminate from the moment the corresponding entry is made in the state register, unless otherwise provided by law.

A different moment of emergence of the right is established, in particular, for the acquisition of ownership of real estate through inheritance. According to paragraph 4 of Article 1152 of the Civil Code, an accepted inheritance is recognized as belonging to the heir from the date of opening of the inheritance, regardless of the time of its actual acceptance, as well as regardless of the moment of state registration of the heir's right to inherited property, when such a right is subject to state registration.

Thus, state registration of the heir’s ownership of real estate in this case only confirms the emergence of the right (that is, it is not law-forming, but law-confirming in nature).

In accordance with Article 1150 of the Civil Code, the right of inheritance belonging to the surviving spouse of the testator by virtue of a will or law does not detract from his right to part of the property acquired during the marriage with the testator and which is their joint property; the deceased spouse's share in this property, determined in accordance with Article 256 of the Civil Code, is part of the inheritance and passes to the heirs in accordance with the rules established by the Civil Code.

Taking into account the above, as well as the provisions of paragraph 113 of the Procedure for maintaining the Unified State Register of Real Estate, approved by order of Rosreestr dated 06/01/2021 N P/0241, which comes into force on 06/29/2021 (hereinafter referred to as the Procedure), since the surviving spouse was a participant in the common joint ownership of the property real estate, as well as the fact that the right to real estate transferred by inheritance (including the right to part of the property acquired during marriage with the testator (spouse) does not arise by force of law from the moment of state registration, we believe that:

if the property right of only the surviving spouse (heir) is registered in the Unified State Register, if the testator does not have any other heirs (besides the surviving spouse), making new entries in the Unified State Register is the implementation of “re-registration” of the property right of the spouse, a record of whose registered property right is already contained in the Unified State Register, on basis, including a certificate of inheritance right is not required. In this case, on the basis of a certificate of the right to inheritance, changes will be made to the record of state registration of the right in accordance with paragraph 15 of the Procedure - the words “the regime of common joint ownership has been changed”;

if the deceased spouse has other heirs, then the surviving spouse (title owner), in addition to his 1/2 share in the right to this real estate (as his marital share of property acquired during the marriage), “remains” the share that passed to him by inheritance. In this case, it will be necessary to make a new entry in the Unified State Register of Real Estate - state registration of the right of common shared property of the surviving spouse on the basis of a certificate of inheritance and the document on the basis of which the property right was previously registered;

if the right of common joint ownership of both spouses is registered in the Unified State Register of Real Estate, the previously made entry on the state registration of the right of common joint property must also be canceled and a new entry on the implementation of state registration of the right of ownership (right of common shared ownership, if there are other heirs who accepted the inheritance) must be made. the surviving spouse on the basis of a certificate of inheritance and a document on the basis of which the right of common joint property was previously registered (a similar rule is contained in paragraphs one - four of paragraph 113 of the Procedure).

We also inform you that a copy of this letter will be brought to the attention of Rosreestr to its territorial bodies, the Federal State Budgetary Institution "FKP Rosreestr", the State Committee for State Registration and Cadastre of the Republic of Crimea, the Department of State Registration of Law and Cadastre of Sevastopol.

G.YU.ELIZAROVA