By law, a residential building is an individual building that consists of rooms. As well as auxiliary premises intended to satisfy citizens’ household and other needs. Related to their residence in such a building. But let's figure out what a residential building is in reality and in simple words.
Definition of the concept of “real estate” (real estate)
According to Article 130 of the Civil Code of the Russian Federation, all things are divided into immovable and movable.
Analyzing the definition regulated in Article 130 of the Civil Code of the Russian Federation, the legislator identifies the concepts of “immovable things”, “real estate”, “real estate”.
A thing is immovable either by virtue of its natural properties (paragraph 1, paragraph 1, article 130 of the Civil Code of the Russian Federation), or by virtue of a direct indication of the law that such an object is subject to the regime of immovable things (paragraph 2, paragraph 1, article 130 of the Civil Code of the Russian Federation) (see for more details paragraphs 38 - 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I, Part One of the Civil Code of the Russian Federation”).
On the issue of the identity of the concepts “capital construction object” and “real estate object”, see the article “Capital construction object”.
Dictionaries contain the following definitions of the concept “real estate” (real estate):
- Real estate is property, the use of which for its intended purpose and without prejudice to its characteristics and value properties, excludes its movement: buildings, structures, land plots and other property attached to the land and associated with it (Finam Financial Dictionary).
- Real estate - according to the civil legislation of the Russian Federation - land plots, subsoil plots, isolated water bodies and everything that is firmly connected to the land, i.e. objects whose movement without disproportionate damage to their purpose is impossible, including forests, perennial plantings, buildings, structures... (Legal Encyclopedia. 2015).
- Real estate - land, natural land, other property attached to the land, firmly connected with it: buildings, structures, objects owned by legal entities or individuals (Dictionary of business terms. Akademik.ru. 2001).
All real estate objects can be divided into three groups :
- 1) real estate objects that are immovable by nature (land, subsoil, etc.);
- 2) objects that are firmly connected to the ground and their movement entails disproportionate damage to their purpose (buildings, structures, etc.);
- 3) objects that, by their physical nature, are movable, but the legislator classified them as real estate (ships, aircraft, etc.).
Property leasing
Leasing is the borrowing of movable or immovable property with its subsequent redemption and acquisition into one’s own ownership.
In order to lease an apartment, the client must sign an agreement with the leasing company. The leasing company acts as an intermediary between the client and the developer, thus issuing a long-term loan to the client for the use of the apartment and its subsequent purchase.
Differences between the leasing lending system and the mortgage system:
- When leasing, collateral relations are secondary than with a mortgage, and may be completely absent
- the client becomes the owner of the property after repaying the debt, and until that time it is owned by the leasing company
- In leasing, a convenient payment system can be used, which will be paid not strictly on time, but at a frequency favorable to the client
- the conclusion of the transaction and signing of the contract occurs in a short period of time within 1 week, which is attractive to clients
- the down payment is significantly lower than with a mortgage, or is completely absent, and the interest rate is 3 times less and does not change until the end of the debt repayment
Property features
The following main features are characteristic of real estate:
- the presence of a strong connection with the earth;
- impossibility of moving an object without causing disproportionate damage to the purpose of the object;
- creation of real estate in the manner prescribed by law, in compliance with urban planning and other norms and rules.
1. Having a strong connection with the earth . A strong structural connection with the land plot means the connection of the building with building structures to the land plot. This is a fundamental feature of real estate. However, the criteria for a strong connection with the land are not established by law, which, however, is not the basis for registering ownership in the Unified State Register of Real Estate, for example, for a fence installed on a foundation buried in the ground, since a fence, unlike, for example, a building, does not have an independent for economic purposes.
The sign “strong connection with the ground” allows one to distinguish immovable objects from non-permanent buildings (structures). The latter are characterized by the absence of a strong connection with the ground, and the design characteristics allow the object to be moved or dismantled and its subsequent assembly without disproportionate damage to the purpose and without changing the main characteristics of buildings and structures (Clause 10.2 of Article 1 of the Civil Code of the Russian Federation).
A strong connection with the earth involves:
- presence of foundation . A foundation is a structural element that provides a strong connection to the ground, and only when it actually serves that purpose. So, a buried foundation is a sign of a real estate property. A shallow foundation does not allow the building to be considered real estate.
- strong connection between the structure and its foundation . This connection eliminates the possibility of easily disconnecting the structure from the foundation.
The lack of communications (connected sewerage systems, heat and water supply) is not an obstacle to the recognition of an object as real estate, if the object is firmly connected to the ground (for example, there is a concrete foundation, brick walls and partitions).
Separation of both air, sea and river vessels, and premises along with parking spaces into separate paragraphs of clause 1 of Art. 130 of the Civil Code of the Russian Federation excludes the application to them of such a sign as a strong connection with the land . This is directly indicated by paragraph 38 of Resolution No. 25, which explains that natural properties are a criterion for classifying only buildings, structures and unfinished construction projects as real estate (paragraph 1, paragraph 1, article 130 of the Civil Code of the Russian Federation), and all other objects are classified as real estate by virtue of the direct indication of the law, and therefore there is no need to look for their strong connection with the earth.
2. The impossibility of moving an object without causing disproportionate damage to the purpose of the object is evaluative and logically related to the previous one. When determining whether a thing is immovable, it is necessary to establish whether significant damage to such a thing and its supporting structure would be caused if it were moved to another location.
3. Creation of real estate in the manner prescribed by law, in compliance with urban planning and other norms and rules . This feature of real estate is not directly indicated in the Civil Code of the Russian Federation, but its existence is dictated by civil, land and urban planning legislation.
A capital structure (building, structure), even if the first two signs are present, cannot always be recognized as real estate. We are talking about cases where the structure was erected with violations. In judicial practice about (Definition of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated December 22, 2015 in case No. 304-ES15-11476, A27-18141/2014).
Thus, a necessary condition for classifying an object as real estate as an object of civil rights is not only its constructive connection with the land, but also its legal connection - that it was created precisely as real estate . Otherwise, the structure will be an unauthorized construction (Article 222 of the Civil Code of the Russian Federation).
Why are residential buildings so popular?
People often mistake a pretty picture for the truth when they fall for a developer’s advertisement. Or after reading other people's stories on the forum about country life. Then they run and buy houses, which are captivating with their cheapness and large size (60-120 m2).
People think that they are buying a large apartment for a small amount of money. Well, how small. Everything is relative, of course, so you need to count. That this amount is simply not enough to buy a 1-room apartment in Moscow.
We will focus on 3.5 – 3.8 million rubles. After all, this is exactly how much it costs to build a minimal frame house when ordering from a company. Which in size will exceed even a three-room small apartment.
But by generally accepted standards, such a house. It will more likely resemble a large bathhouse with a relaxation room, rather than a full-fledged residential building.
Although, when you are 18-20 years old. Such housing may seem like a piece of paradise. Where you really want to spend your time. Meeting friends and planning a family. Therefore, why not.
But agree, when you are 40 years old. And you have already seen in your life how other successful people live. You no longer want to go to the bathhouse and be happy just for that. That there is a roof over your head and warmth. Therefore, it can be considered this way.
For a young family, a small residential house. This is an excellent solution to the housing problem. But middle-aged people need to think about something more serious.
Looking at a full-fledged brick house, with spacious rooms. And necessarily with all central communications.
So as not to feel disadvantaged while living on your own land. On the contrary. Go out every morning to clear the snow from the paths, with your head held high.
Types of real estate
Types of real estate objects for the purpose of entering information about them into the real estate cadastre are given in paragraph 1 of part 4 of article 8 of the Federal Law of July 13, 2015 N 218-FZ “On State Registration of Real Estate”:
- land plot;
- building;
- construction;
- premises;
- parking space;
- unfinished construction project;
- single real estate complex;
- enterprise as a property complex.
Land plot
A land plot is an object of ownership and other rights to land provided for by the Land Code of the Russian Federation, is an immovable thing that represents a part of the earth's surface and has characteristics that make it possible to define it as an individually defined thing (clause 3 of Article 6 of the Land Code of the Russian Federation).
Building
A building is a result of construction, which is a volumetric construction system having above-ground and (or) underground parts, including premises, engineering support networks and engineering support systems and intended for living and (or) activities of people, location of production, storage of products or keeping animals (clause 6 of part 2 of article 2 of the Federal Law of December 30, 2009 N 384-FZ “Technical Regulations on the Safety of Buildings and Structures”).
Construction
A structure is a result of construction, which is a volumetric, planar or linear building system, having ground, above-ground and (or) underground parts, consisting of load-bearing, and in some cases, enclosing building structures and intended for performing various types of production processes, storing products, temporary stay of people, movement of people and goods (clause 23, part 2, article 2 of the Federal Law of December 30, 2009 N 384-FZ “Technical Regulations on the Safety of Buildings and Structures”).
A structure can be a single object consisting of heterogeneous elements united by a common functional purpose, which serves to meet the needs of citizens generally not related to business activities (for example, stadiums).
Room
definition of the concept of premises in the Civil Code of the Russian Federation. In clause 14, part 2, art. 2 of the Federal Law of December 30, 2009 N 384-FZ “Technical Regulations on the Safety of Buildings and Structures” contains the following definition:
room - part of the volume of a building or structure that has a specific purpose and is limited by building structures.
residential and non-residential premises as independent objects of civil rights .
Residential premises are isolated premises that are real estate and are suitable for permanent residence of citizens (meets established sanitary and technical rules and regulations, and other legal requirements) (Part 2 of Article 15 of the Housing Code of the Russian Federation).
The legislation does not contain the concept of non-residential premises. At the same time, taking into account that a premises is a part of a building or structure that is limited by building structures and has a specific purpose, non-residential premises are any premises that are not residential, that is, not intended for permanent residence of citizens.
Non-residential premises in an apartment building - premises in an apartment building, indicated in the design or technical documentation for an apartment building or in the electronic passport of an apartment building, which is not a residential premises and is not included in the common property of the owners of premises in an apartment building... (paragraph 12 of paragraph 2 Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation of May 6, 2011 N 354).
Parking space
The definition of the concept of “ parking space ” is contained in both the Civil and Town Planning Codes.
Car space - parts of buildings or structures intended to accommodate vehicles, if the boundaries of such premises, parts of buildings or structures are described in the manner established by the legislation on state cadastral registration (clause 3, part 1, article 130 of the Civil Code of the Russian Federation).
A parking space is an individually defined part of a building or structure intended exclusively for placing a vehicle, which is not limited or partially limited by a building or other enclosing structure and the boundaries of which are described in the manner established by the legislation on state cadastral registration (clause 29 of article 1 of the Civil Code of the Russian Federation ).
Clause 6.2 of Article 24 of Federal Law N 218-FZ determines that the boundaries of a parking space are determined by the design documentation of a building, structure and are designated or secured by the person carrying out the construction or operation of the building, structure, or the holder of the right to a parking space, including by drawing markings on the surface of the floor or roof (with paint, using stickers or other means).
Unfinished construction project
An unfinished construction object is a newly created (at least partially constructed) individually defined real estate object, unfinished construction (on which work is suspended or in progress) and (or) not registered in the cadastral or other register and not registered in the prescribed manner (work has been stopped or the object is mothballed or actually in operation).
When resolving the issue of recognizing an object legally under construction as an immovable thing (an object of unfinished construction), it is necessary to establish that at least the foundation construction work or similar work on it has been fully completed (paragraph 5, paragraph 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I, Part One of the Civil Code of the Russian Federation”).
Single real estate complex
A single real estate complex is a set of buildings, structures and other things united by a single purpose, inextricably linked physically or technologically, including linear objects (railroads, power lines, pipelines and other linear objects), or located on the same land plot, if in a single The state register of rights to real estate registered the right of ownership of the set of specified objects as a whole as one immovable thing (Article 133.1 of the Civil Code of the Russian Federation).
By virtue of the direct indication of Article 133.1 of the Civil Code of the Russian Federation, in the absence of the said registration, such a set of things is not a single real estate complex (clause 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I, Part One of the Civil Code of the Russian Federation” ).
Enterprise as a property complex
An enterprise as an object of rights is recognized as a property complex used to carry out business activities. The enterprise as a whole, as a property complex, is recognized as real estate (Clause 1, Article 132 of the Civil Code of the Russian Federation).
The composition of an enterprise as a property complex includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, and work and services (commercial designation, trademarks, service marks), and other exclusive rights, unless otherwise provided by law or agreement (clause 2 of article 132 of the Civil Code of the Russian Federation).
Installation of a residential building and heating box
After the foundation is built, the box of the house is raised on it. Or they bring and assemble a ready-made prefabricated frame house structure. It is a constructor. Which was prepared in advance in production and sold as a set of building materials to the customer. Then a trained construction team will assemble this kit at the customer’s site in a matter of days. By installing the house and securing the house on a prepared and pre-built foundation.
The construction of a frame house or a house made of SIP panels now takes no more than a month. And this is “turnkey”, that is, the house will be completely built from scratch. Together with the installation of heating pipes around the house or the installation of convectors.
A small house can be heated with electricity. Energy-saving convectors heat the house very economically in winter. And heating costs in the cold months are no more than 5,000 - 6,000 rubles. Which is approximately equal to the payment for utilities in a 2-room apartment.
Then everything will depend on the area of the house itself. And on what constant temperature is maintained in it. If there is a child in the house, then there is no escape and you will have to heat it hard. And if the owners are adults, then they can get by with a standard 20 degree temperature.
It is very profitable to heat a house with a heated floor system, which evenly distributes heat throughout the entire residential building. But this system is not durable. On average it lasts 10 - 12 years. Although it happens that it works longer. It depends on your luck here.
If the house is poorly insulated, then no matter how much you heat it, all the heat will come out into the cracks in the corners of the house. By creating condensation in these places, which will contribute to the rotting of the wood.
To prevent this from happening. During construction, a special membrane is used. This is a fabric that serves as a vapor barrier. If the insulation layer and vapor barrier are not damaged, then the heat in the residential building will be well retained. And heating costs will be minimal.
After building a house, it is very easy to identify those corners and crevices in the walls. Through which heat escapes, using a special device - a thermal imager. Which will show the degree of freezing and the place where heat escapes from the house to the street.
This device is quite expensive and it is easier to order this service from a specialist. Why buy the device itself without professionally building residential buildings? After all, it is not known when the device will be needed next.
Movable things
Clause 2 of Article 130 of the Civil Code of the Russian Federation states that movable things include things that are not related to real estate, including money and securities. The law does not define the concept of “movable property”.
As a general rule, registration of rights to movable things is not required.
The different material and legal nature of movable and immovable property often determines the difference in the procedure for acquiring, realizing and protecting rights to such property. about the differences between movable and immovable property in legal regulation in the article “Movable property. Concept, examples. Differences between movable property and immovable property.
What does well-maintained mean?
Article 89 of the Housing Code of the Russian Federation determines that improvement standards directly depend on the location of the property in a particular locality . For villages and rural areas, some characteristics that housing in the city must necessarily meet are not feasible.
In general, livability is what makes a room as comfortable as possible for living in:
- electricity;
- central heating;
- room layout;
- availability of elevators and garbage chutes;
- hot water supply;
- etc.
The practice of recognizing buildings and structures as real estate by courts
For example, the courts recognized the following buildings and structures as real estate objects:
production site for trucks , which has a sand bed, crushed stone preparation and a layer of concrete 20 centimeters thick. This structure is recognized as a real estate object (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 16, 2008 N 9626/08 in case N A08-7744/06-5);
stationary retail and warehouse facilities such as buildings (parts of a building) and structures meet the characteristics of real estate, the rights to which, their origin and termination are subject to state registration in the Unified State Register of Real Estate (Definition of the Supreme Court of the Russian Federation dated 06/09/2010 N 8-G10-7);
stationary industrial refrigerator . The court came to the conclusion that the nature of the work on tying the foundation to the terrain, manufacturing the foundation of the refrigerator and installing the refrigerator indicate the construction of a structure related to real estate firmly connected to the ground. There is no evidence that moving the refrigerator will not be associated with disproportionate damage to the use of the refrigerator for its intended purpose (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 12, 1999 N 2061/99 in case N A72-2212/98-Kd136/1);
storage tanks with sewer pipes . They are engineering structures, located underground and firmly connected to it, their movement without disproportionate damage to their purpose is impossible (Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 19, 2016 N 74-KG16-1);
stadium is a single sports facility consisting of a land plot, equipped in a special way and intended for sports games (football field and mini-football field), as well as auxiliary real estate (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 28, 2013 N 17085/12 on the case N A32-29673/2011);
stadium is a single sports facility, firmly connected to the ground and incorporating auxiliary real estate objects. The administrative building of the stadium, locker room, toilet and water booth cannot be used for the purposes of physical education and sports in isolation from the sports facilities and grounds themselves (city and athletics grounds, football and hockey fields, running track and jumping pits) (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 10.20.2010 N 6200/10 in case N A56-50083/2008);
interschool stadium (universal sports ground with artificial turf). In addition to the asphalt concrete surface, a sports facility also consists of other objects (tribunes, external lighting networks, sewerage and water supply, fencing), united by a common functional purpose, the totality of which represents a single object, that is, a sports facility firmly connected to the ground. Such a structure is subject to state cadastral registration as a real estate object (Resolution of the Arbitration Court of the Ural District dated September 1, 2017 N F09-5399/17 in case N A50-27178/2016).
Residential building foundation
In order not to go deeper into the construction process, let's briefly look at what types of foundations exist. And what each of them is used for.
- Strip foundations
are simple and cheap to use, but you need to accurately calculate the depth of soil freezing. And control the quality of concrete when pouring it. Otherwise, such a foundation may swell with frozen soil and cracks will appear along the wall of the house. But such a foundation can be built by one family, without involving specialists for the work. The main thing is that someone has experience installing permanent formwork and can calculate the required depth of recess. Houses are usually built on such a foundation, no higher than 2 floors in height. - Pile foundation
- a pile-screw foundation is used where it is necessary to quickly build a house. This type of foundation is being built for light frame houses, houses made of rounded logs or timber. The foundation is built and tied with a grillage to make the structure monolithic in just a week. - Columnar foundation
- Supports are located throughout the entire area of the future house, at a distance of two to three meters from each other. The supports are built from blocks or bricks, and then tied together with a grillage. Again, this is necessary to give the structure strength. This foundation is also simple to implement and can be assembled by a married couple. - Slab foundation
- used in the construction of heavy, multi-story buildings, up to 5 floors in height. Or houses of non-standard designs. A layer of concrete filling the slab under the house. It can reach a thickness of 30 to 110 cm plus reinforcement, which also significantly increases the cost of construction. Therefore, such a foundation is the most expensive of all. And during its construction, one cannot do without the help of specialists. Since the design itself ultimately turns out to be quite complex and the work of installing it is quite labor-intensive.
Judicial practice of refusals to recognize objects as real estate
Courts do not recognize the following objects as real estate:
platform covered with concrete . Laying a certain covering (of concrete, asphalt, crushed stone) on a land plot, including for passage or travel, parking, does not create a new property, but represents an improvement in the useful properties of the land plot (has an auxiliary function in relation to the purpose of the land site) and is only an element of improvement of this site (Resolution of the Arbitration Court of the Volga-Vyatka District of December 19, 2018 N F01-5740/2018 in case N A43-47512/2017). We recommend publications on the topic: “Is asphalt pavement a real estate property? Arbitrage practice"; “Is a concrete pad a piece of real estate? Arbitrage practice".
the parking lot does not have an independent functional purpose, but only improves the useful properties of the land plot on which it is located and is an integral part of it. Asphalt paving is a common improvement of a land plot (Resolution of the Arbitration Court of the Volga District of February 28, 2019 N F06-43775/2019 in case N A12-17548/2018);
a fence located along the perimeter of the site cannot be classified as real estate (Definition of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated 02/01/2018 in case No. 305-ES17-13675, A41-103283/2015);
the fence does not have the characteristics of a real estate property, since it does not have an independent economic purpose and performs the servicing function of the main thing - a land plot or is an improvement of the latter (Resolution of the Arbitration Court of the Volga-Vyatka District of May 30, 2018 N F01-1757/2018 in case N A43-28525 /2017);
the fence does not have an independent economic purpose, is not a separate object of civil circulation, performing only a service function in relation to the corresponding land plot and the buildings located on it (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2013 N 1160/13 in case N A76-1598/2012 );
the fence is not an independent piece of real estate, regardless of its physical characteristics and the presence of individual elements that ensure a strong connection of this structure with the corresponding land plot (Resolution of the Arbitration Court of the Volga District dated May 29, 2018 N F06-31904/2018 in case N A57-14689/2017 );
a power transmission tower (reinforced concrete pole) as an integral part of a single real estate complex is not an independent real estate object (Definition of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated July 19, 2016 N 18-КГ16-61);
an advertising structure is always installed for a certain period and, within the meaning of the Law on Advertising, is a movable thing (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 15, 2014 N 5798/14 in case N A50-6337/2013);
advertising structures are a technical means for placing advertising and movable things, obviously installed for a certain period of time and dismantled (Resolution of the Arbitration Court of the Volga District of July 25, 2016 N F06-10713/2016 in case N A12-50935/2015);
mini-football field and football field are improvements to a plot of land that consist of adapting it to meet the needs of persons using the plot. The named structures are not independent immovable things, but represent an integral part of the land plot on which they are located (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 28, 2013 N 17085/12 in case N A32-29673/2011);
a multifunctional sports ground , consisting of a rubber coating, with reinforced concrete bases, represents an improvement of the land plot on which they are located and are not independent objects of real estate and separate objects of civil circulation, they perform a service function in relation to the corresponding land plot (Resolution of the Arbitration Court of the North Caucasian District dated 08/07/2019 N F08-6212/2019 in case N A32-42855/2018);
guest parking, a tennis court, a basketball court, by their characteristics, are actually not independent real estate objects (Resolution of the Arbitration Court of the North Caucasus District dated 02/08/2017 N F08-10355/2016 in case N A53-8645/2016);
sheds, garages, wells and other various types of auxiliary buildings and structures in a household intended for servicing a residential building, including capital ones, based on the provisions of Articles 130, 131, 135 of the Civil Code of the Russian Federation, are not independent objects of real estate (Resolution of the Arbitration Court of the Moscow District dated 09/07/2017 N F05-12334/2017 in case N A40-139810/2016);
engineered rice system . The courts proceeded from the fact that the use of an engineered rice system in isolation from rice production is impossible; the system is designed to improve the surface layer of the soil and has no other economic purpose. In the case where an object was created solely for the purpose of improving the quality and maintenance of a land plot and does not have an independent functional purpose, it is an integral part of the land plot and cannot be recognized as a real estate object, the rights to which are subject to state registration (clause 6 of the Review of Judicial Practice Supreme Court of the Russian Federation No. 2 (2016)", approved by the Presidium of the Supreme Court of the Russian Federation on July 6, 2016);
hydraulic structures , consisting of open conductive channels (ditches lined with reinforced concrete trays) and a closed drainage network consisting of asbestos-cement pipes of various diameters, laid at a depth of 0.9 meters, were created for the purpose of draining agricultural land (the structures are firmly connected to the ground, their relocation without disproportionate damage to the destination is impossible). At the same time, the disputed objects do not have an independent functional purpose, they were created solely for the purpose of improving the quality of land and serve only the land plot on which they are located, therefore they are an integral part of it and must follow the fate of this land plot (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 17.01. 2012 N 4777/08 in case N A56-31923/2006).
State registration of ownership and other proprietary rights to real estate
The need to register such rights (their occurrence) is indicated in paragraph 1 of Art. 131 Civil Code of the Russian Federation, part 3, 6 art. 1 of the Law on State Registration of Real Estate.
In addition to the right of ownership, in particular, the following rights must be registered (clause 1 of Article 216 of the Civil Code of the Russian Federation):
- economic management;
- operational management;
- permanent (indefinite) use of a land plot;
- easement (also registered as a restriction, encumbrance).
Is an object considered real estate if it is not registered in the Unified State Register of Real Estate?
An object can be considered real estate, even if it is not registered in the Unified State Register as real estate. The Supreme Court of the Russian Federation pointed out:
“Within the meaning of Article 131 of the Civil Code of the Russian Federation, in order to ensure the stability of civil circulation, the law establishes the need for state registration of ownership and other real rights to immovable things, restrictions on these rights, their emergence, transfer and termination. Moreover, as a general rule, state registration of the right to a thing is not a prerequisite for recognizing it as an object of real estate (clause 1 of Article 130 of the Civil Code of the Russian Federation)" (clause 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 N 25 "On the application by the courts of certain provisions of the section I of part one of the Civil Code of the Russian Federation").
At the same time, registration of the right to an object in the Unified State Register of Real Estate is also not an unconditional guarantee that the object is real estate. If the registered object does not have the signs of real estate specified in Art. 130 of the Civil Code of the Russian Federation or violations of the law were committed during the construction of the object, the owner of the land will be able to challenge the ownership of such an object, have the record of rights to it excluded from the Unified State Register of Real Estate, and then have it demolished. There are also clarifications on this matter from the Supreme Court of the Russian Federation:
In cases where the ownership of movable property is registered as real estate, challenging the registered right or encumbrance can be carried out by filing a claim to recognize the right or encumbrance as absent (clause 52 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated 04/29/2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights”).
How is it different from an apartment?
Article 16 of the RF Housing Code states that residential premises include residential buildings and their parts, apartments (as well as parts of apartments) and rooms. Article 15 explains the difference between residential premises in detail: an isolated property suitable for permanent residence.
This premises must comply with SNiP and legal requirements. Under certain conditions, a residential premises may be declared unfit for habitation.
In fact, residential premises are a broad concept, the structure of which includes the concept of “apartment”, and in addition to it - “residential building”, “room”, “part of the room”, “part of the house” .
