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Published: 12/14/2017
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The procedure for transferring agricultural land into ownership provides for the pre-emptive right to purchase it by regional and municipal authorities. This is directly stated in Article 8 of the Federal Law of July 24, 2002 N 101-FZ.
- What is the rationale for the need for a pre-emptive right to purchase?
- How to correctly obtain a waiver of the right of first refusal Essential conditions of the notice (notification) of the sale
- About opportunities for the seller
What does the law say?
The right of pre-emption of agricultural land is enshrined in the federal law “On the turnover of agricultural land”. In accordance with it, there are several categories of potential buyers who can take advantage of this right. This:
- Municipalities in whose territory the plot for sale is located;
- Tenants of land plots who acted in strict accordance with the concluded lease agreement for at least three years from the date of conclusion of the agreement;
- Founders of peasant (farm) enterprises carrying out their activities (if such activities are carried out on a plot adjacent to the one being purchased);
- Small and medium-sized businesses (if the land was previously rented by them and is now put up for privatization);
- Preferential categories of citizens (for example, large families, if they decide to organize a peasant farm in order to ensure a decent standard of living for themselves and their loved ones).
But not everyone can give up such a right. Thus, a refusal cannot be issued for privileged categories of the population, since this will lead to a deterioration in their financial situation or may affect the interests of minors.
In addition, it will be quite difficult to formalize a waiver of the priority right to purchase a land plot for those persons for whom such a right is the only opportunity to obtain ownership of the plot (for example, if we are talking about the purchase of a leased land plot).
How to sell and buy shares?
So, let’s figure out whether it is possible to sell a land share in Russia. A land share is considered to be an allotment from the state land fund . Free shares in the amount of 10 hectares were previously allocated to members of collective and state farms. In order to organize a transaction, the area of the plot with a designated border, the plan and land surveying must be previously approved at a meeting of the owners of the cooperative.
Then the plot receives all the necessary documents from Rosreestr and news about the formation of the plot is published in newspapers. After the plot receives its cadastral number and the owner receives its title documents, it can already be put up for sale.
Before selling the land, it will be necessary to offer to buy it back to the local authority, since it is agricultural land.
Due to such a complex procedure, the transaction may drag on for more than one month.
What nuances arise?
When purchasing a share, you must obtain not only a waiver from the local authorities, but also from all shareholders, who also have the right of priority purchase. To do this, each shareholder is sent a written notice of the upcoming sale indicating the price, size of the share, and deadlines for settlements. Land shares cannot be sold to foreigners or foreign companies .
Does the list of documents, conditions and grounds change?
When drawing up a purchase and sale agreement, you need to check the seller’s share and make sure that we are talking about agricultural land. The rest of the list of documents for the transaction is the same as usual, only written refusals from the shareholders are added to it.
Are there any differences in the purchase and sale agreement?
The share purchase and sale agreement is concluded in writing in accordance with the requirements of the Civil Code of the Russian Federation . It indicates the size of the share and the purpose of the land. The differences lie only in the preliminary preparation for the execution of the agreement, but the agreement itself is no different from the usual one.
The process of emergence of the right of first refusal
The right of first refusal to purchase a land plot arises in accordance with the conditions of current legislation for different categories of the population at different points in time.
So, if we are talking about the purchase of a leased land plot, then it can now be purchased only in accordance with the provisions of the Civil Code, since the Land Article on the organization of such a procedure was completely excluded.
If we talk about small and medium-sized businesses, then for them the right of first refusal comes at the moment when those lands that were leased to them and used for their intended purpose are put up for privatization.
Peasant and farm enterprises receive this right at the moment when they have documented their activities indicating the territories in which they carry out their activities.
As for municipalities and constituent entities of the Russian Federation, such a right is formalized for them if the plot being sold now falls under the jurisdiction of their territorial lands.
Features of taxation
Taxes on the sale of land for growing agricultural crops are calculated in the same way as on the sale of land for any other purpose.
If the land belongs to an individual and was in his ownership for less than the maximum period of 3-5 years, then he will need to pay 13% income tax. The amount can be reduced through a tax deduction (but not more than 1 million rubles).
If the land belongs to a legal entity, then it will be necessary to pay income tax (from 6-20% depending on the chosen taxation system).
You can find out more about the taxation of purchase and sale of land plots here.
When can a refusal be issued and when not?
Waiver of the right of pre-emptive acquisition of land is a legally significant document that does not have retroactive effect due to the fact that the potential buyer refuses such a benefit, which allows him, first of all, ahead of other buyers, to conclude a purchase and sale agreement with the owner.
It can be issued in several cases, the list of which is indicated in the federal law “On the Turnover of Agricultural Land”.
The first case will be the refusal of municipalities or subjects of the Federation from their right if they are not interested in having such a site on their balance sheet.
In this case, a corresponding document on refusal is drawn up (as a rule, this is an order from the head of the body involved in the management of municipal or state property).
The second case will be the refusal of representatives of peasant farms, as well as small and medium-sized businesses, from their right of first refusal. In this case, they can buy the plot through auction (for example, if in this case the price for them will be set lower than during the pre-emptive purchase).
But if we talk about preferential categories, then in this case it is impossible to waive the right of pre-emptive acquisition, since in this case the only option for acquiring land for such persons can be canceled.
The tax on gift of land is 13% for residents of the Russian Federation and 30% for non-residents. Do you want to rent land from the state with the right to purchase? How to implement this is described in detail in our article. renting a motorhome will make your weekend unforgettable. You can find out about prices for such a service here.
What difficulties might you encounter?
If the seller has not sent a notice to local authorities, then the alienation transaction is void . This means that the parties must return to each other what they received under the transaction - the seller - the money, and the buyer - the land. This is a very serious problem, especially if the money received for the sale was immediately spent.
A fictitious gift agreement may also be considered void if it was drawn up to circumvent the right of priority purchase. The inclusion of a plot of land in the authorized capital can also be challenged if the seller does not receive shares of the enterprise in return.
The purchased plot will need to be used exclusively for its intended purpose - for farming. Otherwise, the authorities can return the plot to the treasury if it has not been used for more than 3 years. Misuse of land can lead to lawsuits, as well as forced seizure of the site.
What are the pros and cons?
Speaking about the waiver of the right of first refusal, it should be noted that, like any other legally significant action, it has its pros and cons. The advantages in this case include:
- Possibility of obtaining a priority right to purchase another, more suitable plot of land;
- Participation in the procedure for purchasing a land plot through auction, if in this case the established price is lower than that stated under the preferential agreement;
- The possibility of purchasing a plot using not the market price, as in the case of pre-emption, but the price established in accordance with the cadastral value.
If we list the disadvantages of such an action, then it is necessary to note the two most important of them:
- If the refusal is formalized, then the potential buyer will no longer be able to reuse the right to such a purchase and sale procedure, since in relation to a specific plot the right will already be lost;
- Redemption through participation in auctions can be carried out at a cost exceeding the value of the plot assigned for preferential acquisition, and there may also be a refusal to formulate the price for the plot by taking into account the cadastral value.
Thus, before executing a waiver of the pre-emptive right to purchase, it is necessary to analyze whether it is reasonable to draw up such a document.
Step-by-step instructions for completing a transaction
To sell land for farming, you need to obtain a waiver from local authorities, and then contact a realtor or start looking for a buyer yourself. The land seller needs to go through a number of very important steps :
- Find a buyer.
- Draw up a purchase and sale agreement.
- Register the transaction with Rosreestr or through other services.
Purchasing a plot that is not registered in the cadastral register follows a different procedure. First, you will have to go through the procedure of land surveying, drawing up a plan, assigning a cadastral number, and only after that the land plot can be put into circulation. We talked about whether it is possible to sell a plot of land without a land survey procedure in this material.
Search for a buyer
The easiest way is to find a realtor who will place an advertisement for the sale of a plot on a large number of websites, as well as in newspapers and magazines. To attract a buyer you need :
- take high-quality photographs of the site;
- advertise the fertile properties of the allotment;
- offer a large area of land;
- make copies of all title documents;
- regularly participate in viewings.
The buyer should have the opportunity to view the plot on a public cadastral map, so it will be necessary to provide him with the cadastral number, as well as provide a copy of the extract from the Unified State Register and the original refusal of the local authorities to purchase.
What should a buyer consider when choosing?
Land for agriculture is always located outside the city. Their main purpose is either the cultivation of agricultural crops - running a personal subsidiary or peasant farm (gardening, farming, farming, grazing), or scientific research in the agro-sphere.
When choosing a site it is worth considering:
- remoteness of the location from the industrial zone and hazardous production;
- soil fertility;
- proximity to infrastructure facilities;
- availability of communications, gas supply;
- Convenient access to the site.
Not every piece of land for agricultural purposes has a building permit. It is advisable to check with the seller what buildings are on the land and whether there are permits for them. Please note that this type of structure may not allow permanent registration.
When choosing land, the fertility coefficient is very important, as well as the presence on the site of all communications important for work.
Collection of necessary documents
To complete a purchase and sale transaction, you will need to collect a package of documents.
Package of documents for the buyer:
- passport, INN or SNILS;
- spouse's permission for the transaction.
Package of documents for the seller:
- passport, INN or SNILS (for individuals);
- certificate of state registration of the company, power of attorney of the representative or confirmation of the powers of the director (for legal entities);
- extended extract from the Unified State Register of Real Estate (indicating encumbrances);
- contract of sale, exchange, donation or other confirmation of ownership of the site;
- written refusal of the local authorities to purchase.
At the transaction, all listed documents must be presented in originals and not copies, including the waiver of priority purchase.
Authentication of papers
The authenticity of documents is verified independently or with the assistance of lawyers. If the transaction is executed by a notary, then this important work can be entrusted to him. Sometimes realtors undertake to check the legal purity of the transaction . They find a buyer, but do it for a fee.
Greater risks arise when purchasing land from a private individual, which is called a secondary sale. You should be especially careful with this transaction. In this case, it must be carried out especially carefully.
It is not difficult to collect all the documents for purchasing an apartment on your own, but it is better to entrust the legal examination of the purchase and sale agreement and a full legal verification of the transaction to realtors.
Preliminary agreement with the owner
Before signing the contract, a deposit of 5-10% of the cost of the land is usually transferred . To formalize the transfer of money, a preliminary agreement is officially signed and a receipt is drawn up.
In the preliminary agreement, the parties agree to conclude the main contract within a certain time frame (for example, in 1-2 weeks). The main sections of the agreement are also indicated, including essential conditions: the subject and price of the transaction.
Conclusion of an agreement
The contract for the sale and purchase of land intended for agriculture has its own characteristics. Firstly, before completing the transaction, it is necessary to obtain a refusal from the authorities to purchase the site. Secondly, the land that was purchased can only be used for permitted purposes - growing crops, sometimes with the possibility of construction.
How to register it?
The contract for the purchase and sale of agricultural land is drawn up in simple written form. It can be concluded with individuals, if they are not foreigners, as well as with companies (can a foreigner buy land in the Russian Federation?). A condition of the transaction is the mandatory registration of the transfer of ownership rights in Rosreestr.
The contract specifies:
- location, area of the site;
- cadastral number;
- category of land and permitted use;
- buyer and seller data;
- seller's rights to land;
- price and terms of payment;
- rights, obligations, responsibilities of the parties.
Before signing the contract, the buyer will definitely ask the seller to show a waiver of the preferential purchase of land from the local authorities. If an individual is involved in the transaction, it will also be necessary to obtain a notarized consent of the spouse for the purchase and sale of land. If the land is sold to a company, then documents confirming the registration of the legal entity and the powers of representatives will be required.
The area of the site specified in the contract should not exceed the maximum permissible size specified in the regional regulations. A transaction is possible only with a plot that has been registered in the cadastral register, that is, has undergone the land surveying procedure.
Registration and state duty
The transfer of ownership occurs only after registration of the transaction in Rosreestr . When registering agreements for the purchase and sale of agricultural land, a reduced state duty is paid - 350 rubles. To register, the buyer and seller will need to fill out two applications and submit the purchase and sale agreement (original) for review. We described in detail how to properly formalize the sale and purchase of a land plot and register the transfer of ownership rights here.
Deadlines and costs
If a refusal from local authorities has already been received, then the purchase and sale transaction will take no more than 1-2 weeks. The parties' expenses are associated only with payment of the state duty - 350 rubles. If a decision is made to formalize the transaction by a notary, then you will have to spend at least another 0.1% of the cost of the land. More details about the cost of notary and realtor services, as well as when you need the help of a specialist when buying and selling a land plot, can be found here.
You will also have to pay taxes separately, but their amount depends on the status of the seller (individual or legal entity).
Transactions with land shares
You can make transactions with a share in 2021 in any legal status (except when it has not yet been allocated). In addition to the standard purchase and sale, it can be rented out.
Renting is one of the most profitable ways to make some profit from a share. Typically, land is leased for the agricultural activities of a large entrepreneur (both a legal entity and an individual).
Such a lease is formalized in exactly the same way as a regular one, with the exception that it will not be possible to conduct activities on the site that are not provided for by law (construction, for example).
