Encumbrances and restrictions on houses and plots. How to check and remove them?

When purchasing any countryside real estate, be it land or a house, you should be extremely careful. By hiding important information regarding the property, both parties can suffer: both the owner and the buyer. This may be due to their arrest or encumbrance. What does it mean?

Encumbrances are various conditions or prohibitions that are imposed on land or a house by law or by authorized bodies. The presence of such restrictions may prohibit the alienation of the property altogether, or significantly reduce its value.

Types of encumbrances

Real estate experts divide them into five main types:

Property is rented

Perhaps the most common type of encumbrance. According to the law, a lease agreement must be drawn up between the tenant and the landlord. It defines all aspects of the transaction and is signed by both parties. Only then will it have legal force. Oral agreements are not recognized by law.

After all formalities have been completed, the lessor receives the right to temporarily own and use the property in his own interests, while at the same time certain restrictions are imposed on the owner. For example, he is obliged, if he wants to sell his property, to notify the tenant without fail, and to transfer to the buyer, along with the house and land, all rights and obligations under the concluded lease agreement.

Legal regulation

No encumbrance can be imposed if it contradicts the current legislation, thereby violating the rights of the owner of the plot. The main rules governing such legal relations are:

Land Code of the Russian Federation . This legal act generally regulates relations related to land plots, their registration, transfer to other persons, encumbrance, and so on. For example, Article 11.8 establishes issues related to the emergence and termination of rights, as well as restrictions on the areas being formed;
Civil Code of the Russian Federation . Contains rules regarding contractual relations. Considering the fact that an encumbrance may arise on the basis of a contract, it is important to regulate this issue;
Federal Law No. 218-FZ of July 13, 2015 “On state registration of real estate.” All real estate transactions are subject to state registration, including those related to the imposition of encumbrances.

This is not a complete list of legal acts. Each type of encumbrance is regulated by separate rules, for example, the Federal Law “On Mortgage (Pledge of Real Estate)”, separate rules of the Civil Code on easements, and so on.

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Types of restrictions and special conditions

Having encumbrances on his property, its owner is limited in the ability to conduct transactions with it and must fulfill certain conditions.

Reason for restrictions:

A legal action that seizes or orders the installation of an easement;
A legal document between two or more people. Commissioning of real estate for a period exceeding 12 months, mortgage loan, etc.;
Legislative act.

Definition and legislation

Encumbrances on a land plot mean prohibitions and conditions imposed on it that limit its use. Moreover, these restrictions are often not removed with a change in the owner of the site and are tied to the land itself, and not to the owner.

The encumbrance of a site can be understood as:

restriction of land in circulation (for example, having it as collateral for a mortgage loan);
providing it for use by other persons (for example, easement);
limited permitted use (for example, a ban on industrial development in environmental zones).

Article 11.8 of the Land Code describes the ways in which encumbrances may arise on a site:

in clause 2, the right to unlimited and free use;
in clause 4, the specifics of the lease agreement;
clause 5 – methods for establishing the boundaries of easements.

Locally, the legal norms of the Land Code regarding encumbrances on land plots are supplemented by municipal legislative acts.

Restricted areas

When a piece of land is located next to a restricted area, restrictions are imposed on it. There are two types of such zones:

Security . On the territory of which there are water sources, natural reservoirs, and health complexes. They are under the protection and protection of the SES. Industrial production and stations monitoring the hydrological regime may be located within its boundaries;
Sanitary protective . They are surrounded by objects that have a negative impact on residential areas (chemical industry enterprises or with increased noise and vibration). The zone is determined by the characteristics of the object and the nature of the encumbrance will depend on this. In such a place it is prohibited to build housing and buildings for permanent residence of people.

Different types of zones impose corresponding encumbrances.

The concept of land encumbrance

To understand the peculiarities of the relationship associated with the encumbrance of land, the possibilities of its application and removal, you first need to understand what it is.
A similar term has been known for quite a long time, both in domestic and foreign law. In simple terms, an encumbrance, depending on the grounds for its occurrence, is often identified with a restriction (some restriction) of the property right of the owner of the allotment (for example, disposal or use), or is understood as the impossibility of using the entire allotment if a land easement is established, while the right to alienate and transfer the plot to other persons is not limited.

So, the burden can be expressed in the following :

the inability to dispose of the allotment and alienate it through both compensated and gratuitous transactions;
prohibition on the placement of certain objects. For example, you cannot build a residential building on industrial land;
imposing an obligation to provide temporary rights of use to third parties (easement).

Any restriction is the result of either a voluntary agreement or a direct indication of legal norms (judicial and other legal acts). For example, the use of an easement is possible without an agreement, through the court.

How to check a house and land for encumbrances?

Each encumbrance limits the possibility of ownership and does not allow free disposal of real estate. What does it affect?

A plot of land cannot be sold or transferred for temporary use while a mortgage is issued on it;
It is possible to sell land with an easement only if the legal order is maintained (the easement will be valid until the expiration of the time for which it was established);
Under the influence of an encumbrance, the copyright holder does not always have the opportunity to use the land plot for its intended purpose. The ban can be complete or partial.

Important : The encumbrance comes into force only when it is recorded in Rosreestr. Any individual or legal entity can obtain such information about its availability. In this case, it is enough to send a request to the administrative authorities.

You can find out information about the presence of encumbrances on a house and land in three ways:

make a request through the MFC (My Documents);
contact the territorial real estate supervisory authority in charge of the property of interest;
use your personal account on the government services website (gosuslugi.ru) and submit an application;

To make a request, it is enough to have a cadastral passport or plot number and its location. Based on the results of the application, the applicant is issued an extract with a complete list of all information about the object of interest, including the types of arrests, encumbrances and other restrictions imposed.

What it is

Land plots can be transferred to citizens and legal entities for ownership, as well as for temporary or indefinite use. In each of these cases, the owners have a legal right to use the land for its intended purpose (for example, agricultural land can only be used for growing agricultural products or other similar purposes). Restrictions on the rights of owners or possessors are permitted only in cases provided for by law or based on the terms of contracts.

Legislative acts allow the following forms of encumbrances on land:

prohibitions and restrictions established in regulations and targeted restrictions on certain areas of land use (for example, a ban on constructing industrial and production facilities on lands allocated for personal farming);
restrictions associated with the emergence of a public or private easement, i.e. the ability of third parties to use someone else's land plot;
prohibitions and restrictions related to the emergence of legal claims - arrest to secure a claim or to ensure enforcement actions;
restrictions on the ownership and disposal of land that arise with the consent of the copyright holder (for example, a mortgage when purchasing land on credit);
temporary restrictions associated with the conclusion of a lease agreement (when transferring ownership of land, lease relations are maintained for the entire duration of the agreement).

Thus, various types of restrictions can arise directly by force of law, under the terms of contracts and agreements, as well as on the basis of judicial acts.

Based on the analysis of the norms of the Land Code of the Russian Federation and the Civil Code of the Russian Federation, we can distinguish the following types of encumbrances that can be established on land plots:

public and private easements;
mortgage encumbrance;
a lease agreement whose term exceeds one year;
arrest imposed by a judicial act or resolution of an official of the FSSP;
trust management;
concession.

In some cases, a prohibition or encumbrance may arise based on the special status of the property located on the site. For example, a historical heritage site automatically imposes restrictions on the corresponding land area.

How can you remove encumbrances?

Until such time as an encumbrance is imposed on the property, the ability to freely dispose of the property will be limited. Therefore, the owner is interested in having it removed and the entry in Rosreestr cancelled.

Removal of encumbrances can occur for various reasons:

When changing the category of land and canceling the administrative act;
Termination of contractual relations;
Upon expiration of the time for which the encumbrance was registered;
Upon fulfillment of all obligations;
A court decision eliminating an encumbrance.

An easement can be forcibly canceled in cases where:

The terms of the contract are not observed. Payment deadlines are violated, obstacles are created to the use of the free part of the territory;
Legal norms were violated when introducing an easement;
There are no grounds for the easement to be preserved (relocation of power lines outside the site, etc.).

To cancel an encumbrance of this type, the copyright holder goes to court and the entry in the Unified State Register is liquidated based on its decision.

How is it determined

The current legislation does not establish a precise definition of encumbrance on land. It was mentioned in the abolished Article 1 of Law No. 122-FZ, approved on July 21, 1997. According to the repealed norm of the law, an encumbrance is considered to be prohibitions and restrictive conditions that prevent the owner from exercising his rights in relation to the object - to dispose, own and use the land.

This definition remains relevant to this day, without changing the essence of the burden. It must protect the rights of a third party interested in the property - the tenant, the creditor, the lien holder.

When encumbrance occurs, conditions arise that constrain the rights of the owner, but do not completely deprive him. The effect of restrictions is most often limited to a specific period of time.

How to find out about the presence of an encumbrance

Before purchasing land, you need to check whether it is under encumbrance. It's not difficult to do this.

The main option is to contact Rosreestr or MFC and order an extract from the Unified State Register of Real Estate. It will indicate the presence of imposed restrictions.

Also popular is the question of how to find out about the presence of prohibitions via the Internet. At the moment, you can get an extract from the Unified State Register of Real Estate online without leaving your home. The service will be paid, but will be cheaper than the paper version.

Legal subtleties - nuances of executing a transaction for the sale of a land plot with a mortgage

Unlike a standard loan, a mortgage involves the transfer of debt obligations from one owner to another.
If the buyer does not insist on pre-payment of the remaining amount of the debt, it is necessary to meet with a bank employee to become familiar with the amount of the debt. The issue of debt repayment can be resolved jointly by meeting with the owner of the land plot and a bank specialist. The seller can resort to the following actions:

Pay off the debt yourself before completing the transaction.
Pay off the debt at the expense of the buyer, after which the cost of the purchase and sale agreement will decrease by the amount of the paid loan.

In the case of a mortgage, the land acts as collateral. Therefore, it cannot be sold legally without the consent of the bank. If the bank agrees, the land can be sold along with the debt obligations. After the transaction is completed, another person is registered as the owner, and all obligations are assigned to him. But in practice, banks rarely take such a step, requiring advance repayment of the debt.

Thus, you can sell a plot of land even if it is encumbered with a mortgage. But to do this, you first need to resolve the debt issue. After this, you can conclude an agreement and sell the land.

The video story will tell you how to remove the encumbrance from a plot of land

Results

Restrictions, whatever their nature, are always unpleasant. The law prohibits not paying taxes or violating obligations to financial organizations, and protects the rights of participants in economic relations. Therefore, the property is used as collateral, which includes land. Ignorance of the laws has never saved anyone from responsibility. It is necessary to fulfill the duties assumed, then the land will not be seized and sold to cover debts.

May be useful:

The concept of encumbrance on an apartment

Limitation of a subject's real rights to land: legal grounds

The rights of a certain person in relation to a specific piece of land may be limited if this is provided for by legal requirements. Thus, for a land plot, an encumbrance can be introduced on the following possible grounds:

this is stipulated by the terms of the transaction (agreement). In such a situation, the owner of the plot, acting as a party to the transaction, voluntarily agrees to limit his property rights or transfer them to another party. An example of such a case is a lease agreement;
it is prescribed by an official act issued by the authorized body. Government agencies and other competent structures have the right to impose encumbrances on real estate in situations clearly defined by law. Examples could be a court verdict, a municipal decision, or a decree issued by a bailiff;
requirements of regulatory legal acts - laws, regulations - may limit rights holders from using certain areas. For example, the construction of buildings on agricultural land is prohibited.

There is a clear relationship between the nature of the restriction imposed and the basis for its introduction. Every encumbrance must have a specific reason. For example, a seizure cannot be formalized by concluding an agreement, and a court verdict cannot be the basis for encumbering a specific plot with a lease agreement. However, some restrictions may be imposed for two or more reasons.

What is the difference between an onerous burden and a restrictive requirement?

When an encumbrance is placed on an object, the owner is obliged to comply with the rules for exploitation of the land plot, regarding:

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guarded borders near gas pipelines and power lines;
construction near a reservoir.

The owner of such a plot is prohibited from building in the zone that passes through his territory. It is impossible to carry out transactions with land if debt obligations to banks serve as an obstacle. This means that you need to ask the lender for permission until full payment has been made. In the event of debt formation and refusal to return funds, the credit institution may sell the plot to pay off the arrears.

Restriction should be understood as reduced ownership rights . A citizen is the owner of the plot, but cannot dispose of it in full. The basis is the legislative acts of the Land Code of the Russian Federation:

Art. 105 – gives an idea of the types of protective zones;
Art. 56 – limits the rights to use territories where flora, fauna, cultural or natural monuments are located.

Reference! Clause 6 of Article 56 of the Land Code of the Russian Federation approves the procedure for registering restrictions and encumbrances based on documentary evidence of contracts, decisions, and grounds due to which such legal phenomena arose.