The Supreme Court decided whether part of the site could be used for other purposes

The Supreme Court decided whether part of the site could be used for other purposes

Whether it is possible to use part of the land plot not in accordance with the type of permitted use is decided by the Economic Board in proceedings No. A40-244225/2019. The Central Fuel Company went to court and appealed the fine of 700,000 rubles. according to Part 1 of Art. 8.8 Code of Administrative Offences. The company received a fine for placing a cafe, online store, offices and car service in its building, although the site was intended for “vehicle maintenance”. At the same time, the land was also used for its intended purpose. The company owned the building, and it rented the site under a 2017 agreement from the Moscow City Property Department.

The Constitutional Court considered a complaint against the provision of the Code of Administrative Offenses on fines for misuse of land

Two authorities sided with the company and canceled the fine. As they explained, the land lease agreement was prepared in accordance with the old classifier of types of permitted use of plots (approved by order of the Ministry of Energy dated September 1, 2014 N 540). In the original formulation, the type of permitted use included not only “garages, parking lots, gas stations,” but also “related trade stores, buildings for public catering,” and so on. In addition, the provision of a site for the operation of a building located on it allows its use not in accordance with urban planning regulations, two authorities indicated.

The Moscow District AC turned out to have a different opinion: the company committed a violation because it used the site not in accordance with the type of use, which is documented and recorded in the real estate cadastre. The classifier, approved in 2014, changed already in 2015, information about the type of permitted use of the site was entered into the Unified State Register of Real Estate in 2016. The land lease agreement was concluded after all these events, in 2017. This means that offices, cafes, and an online store could not be located on the site for servicing vehicles, concluded the AS MO.

In the Supreme Court

The company did not agree with this decision. Her arguments were heard by the Economic College troika on February 3. According to the representative of the plaintiff, lawyer Alexander Zak, the building in question is the former automobile plant No. 22 of Moskhlebtrans. This is a fairly large facility, where from the very beginning there were offices and a cafe. “Any complex administrative building involves different types of use,” the lawyer urged. “There may be a cafe and other facilities there.”

According to Zach, the cassation court went beyond the scope of the appeal because it considered the argument that the type of use did not comply with the real estate register; There was no such argument in the original ruling. In addition, if you take the Unified State Register of Real Estate, you will see that it indicates two types of use: not only “vehicle maintenance”, but also “for the placement of industrial and administrative buildings, structures, industrial facilities, and public utilities.” These are two equivalent uses, Zach noted. According to him, previously the type of use of the site was determined by the lease agreement, but now it is necessary to focus on the rules of land use and development.

He also criticized the position of Rosreestr: according to the lawyer, the government agency changed its position on the case several times, appealing either to the text of the agreement or to the rules of land use and development. “The task of an administrative body is to identify and prevent offenses, and not to look for a way to punish at any cost,” Zach said.

“The task of an administrative body is to identify and prevent offenses,

and not look for a way to punish at any cost.”

Dmitry Sukhov, a representative of Rosreestr, did not agree with this. He recalled that the lease agreement with the department did not provide for offices, cafes, or an online store. According to new classifiers, this is a road service facility. If the classifiers have changed, but the company has not inspected it, then it is to blame, it has ignored the requirements of the law, the Rosreestr lawyer assured.

Sukhov emphasized the principle of payment for land use. “If there are cafes, offices and shops on the territory, this is a completely different cadastral value,” he explained. “This means that the fee for use is not transferred in full, and the budget receives less money.” And entering information from the Unified State Register into the site is one of the ways to determine the fee, Sukhov pointed out.

“If there are cafes, offices and shops, this is a completely different cadastral value.”

Zach responded to these statements in the replica stage. In particular, he stated that “if there was a violation, it was necessary to recover unjust enrichment.” And when the judges left for a meeting, the lawyer criticized the authorities’ approach using another example: “What happens if you install an ATM in an office building, then you immediately need to add “banking activities”?

After the meeting, the troika announced a decision: to cancel all decisions in the case and send it for a new trial.

• Evgenia Efimenko

• Economy Board of the Armed Forces

Fines for unauthorized land seizure

One of the types of illegal actions with plots is their squatting. Responsibility for such actions is provided for in accordance with Article 7.1 of the Code of Administrative Offences. In addition to direct squatting, this article provides for liability for the exploitation of land without proper documents (the basis for performing any actions with it), and the lack of documentary permits for work performed.

An action to use an allotment during which an individual or legal entity should not have prepared documentation regarding the used allotment will not be a violation.

Unauthorized occupation (squatting) may include the following actions:

• carrying out actions to develop a site that does not belong to the developer himself, if he does not have permits to carry out such actions;
• unauthorized change of the boundaries of a site by adding other lands to them, in this case, if permanent construction is also being carried out on someone else’s territory or some temporary structures are being erected. It is worth noting that when plots are confiscated from individuals or organizations, they are not compensated for material damage, since such actions were not initially legal.

Fine for seizure
For violations that are classified as unauthorized seizure, the following fines are imposed (with a known cadastral value, as a percentage of it):

• individual – from 1 to 1.5%, but not less than 5,000 rubles;
• official representatives - from 1 to 1.5%, but at least 20,000 rubles;
• legal entity - from 2 to 3%, but not less than 100,000 rubles.

If the plot in respect of which the violation was committed does not have an established value, then the amount of penalties will be as follows:

• individuals – 5-10,000 rubles;
• company representatives – 20-50,000 rubles;
• legal entity – 100-200,000 rubles.

Appealing a fine

Of course, any actions of officials and decisions made by them can be appealed. A fine for inappropriate use of memory is no exception. But you should not immediately, having received a decision, run to court with a claim. You will most likely get your claim denied.

First of all, you should carefully review the identified violations and consider the legality of your actions or inactions. If you think that the amount of the fine has been significantly exceeded or that it was impossible to comply with the requirements of the law, then write a statement to Rosreestr and, if necessary, to the Settlement Administration.

The answers received can be submitted to the court along with the claim. This will indicate that you did not intentionally break the law and were trying to resolve the issue without going to court.

Example

An example is a case considered in 2021 in one of the district courts of the Republic of Bashkortostan. Having received a plot for individual housing construction, citizen A. did not build anything for 6 years. The site was empty, but was fenced. The inspector carried out a scheduled inspection and issued a ruling on an administrative violation and imposed a fine of 10 thousand rubles. Citizen A. did not agree, since construction was not carried out due to the lack of communications and access to the site. He wrote 2 statements justifying the reason (to Rosreestr and the Administration).

Having received two refusals, citizen A. went to court, provided documents for the site, a boundary plan, a situation plan and written refusals.

The court, having analyzed the arguments of the participants in the case, the materials of the case, and relying on Russian legislation, found that the installation of communications and access is the responsibility of the administration, according to the purchase and sale agreement. And he took into account the fact that the site was not abandoned - the territory was fenced and landscaped. The application was granted, and the Administration was obliged to fulfill its obligations.

Main signs of violations

The grounds for penalties are formalized by a decision of an administrative commission or court, included in acts and expert opinions. Therefore, they must have a factual and legal basis for their legal registration. That is, to be described in legislative acts and to identify inconsistencies in the appearance of the site.

Inappropriate use

Here we pay attention to the need to treat the soil in accordance with its intended purpose:

• vegetable gardens must be plowed and planted;
• the weeds have been destroyed;
• the fertile layer is processed and fertilized;
• Seedlings were planted on the land plots provided for garden plots.

If, instead of the listed and other signs, the construction of a permanent residential building, the use of land for industrial needs or warehouse space is present, the indicated violations are evident. Agricultural land can only be used for work related to agriculture.

Note: All actions carried out on a land plot and not related to its intended purpose are considered violations.

Failure to fulfill reclamation obligations

Here, first of all, you should focus on the absence of traces of land cultivation within one year . If the area was not processed, there is a violation. In this case, the plot will look like ownerless, abandoned and without an owner.

A separate clause identifies a violation if agricultural lands are not cultivated, the necessary measures for reclamation and protection of soils from harmful influences that worsen the quality of the fertile layer are not carried out, even if buildings are erected and the site is fenced off.

We wrote about the reclamation of agricultural land in a separate article.

Other

These include damage to irrigation and drainage systems, which are identified based on the conclusion of a competent specialist, cutting down a forest shelterbelt and the deliberate destruction of an imported object used as a water reservoir for irrigating land. When squatting, traces of activities carried out on territory that does not belong to the person who carried out the work are revealed.

What to do if you receive a fine?

After receiving such a fine, the land user must pay it within 2 months and eliminate the violations, i.e. begin construction, sow fields or otherwise use the site in accordance with its category and purpose.

The law also allows for the transfer of land from one category to another. Those. if, for example, a detergent production plant is built on a site for agricultural use, then the designation should be changed to “Industrial Land”.

However, even if you eliminate the violations in any way, you will still have to pay a fine. Otherwise, it will increase by 2 times, and instead of 10 thousand there will be 20 thousand rubles.

If the order of the authorized body was ignored, the site may be seized. And it doesn’t matter how it was received - purchased, privatized or inherited. If the leased land is not used for its intended purpose, the lease agreement is terminated early.

What checks are carried out?

The main supervisory authority over the use of land plots is Rosselkhoznadzor. This body was appointed by RF Government No. 1 of 01/02/15 to conduct regular inspections of compliance with veterinary and phytosanitary standards established by law. The scope of attention of Rosselkhoznadzor includes only lands involved in circulation in accordance with the norms of Federal Law No. 101-FZ; they do not supervise the activities of gardening partnerships and cooperatives. Inspections are aimed at identifying violations:

1. In accordance with the requirements prohibiting the unauthorized removal, movement and destruction of the top fertile layer of soil, including as a result of damage due to the use of pesticides, herbicides and agrochemicals.
2. For violation of ecology and the environment by unauthorized activities on the site.
3. To carry out the necessary measures related to reclamation, hydromelioration and protection of lands from erosion and other harmful effects.
4. Supervision of compliance with the mandatory use of land.

The checks are as follows:

• planned - in accordance with the established and approved schedule;
• unscheduled - based on complaints and other signals;
• according to orders issued on the basis of identified violations;
• joint raids with the administrative commission.

Scheduled inspections are scheduled once every 3-5 years for one land property. Once violations are identified, depending on their volume, a period for correction is set. The deadline and violations are indicated in the order. Repeated inspections are carried out based on the instructions.

Unscheduled events can be regulated only approximately, since they are carried out based on the body’s response to complaints related to land use violations. If violations are detected, the guilty person is also given an order indicating the time frame for correction, and therefore a repeat inspection is scheduled.

Important: When assigning penalties, Rosselkhoznadzor is guided by the relevant articles of the Code of Administrative Offences.

If we are talking about gardening and gardening partnerships, lands for private household plots, responsibility for inspections rests with the administration of the locality. It has the right to invite authorized representatives from other authorities, including Rosselkhoznadzor.