The occurrence of errors may be associated with technical issues or inaccuracies formed directly during the entry of data into the general register.
The presence of any errors necessitates challenging the land survey and such a process has an established procedure.
The most common mistakes when surveying
The difference between a land surveying error and a deliberate unlawful act is in the form of guilt.
The crime provided for in Article 170.2 of the Criminal Code of the Russian Federation implies exclusively direct intent, that is, the offender specifically wanted to introduce false information.
Any of the owners, accounting authorities, engineers and other persons can make a mistake, without even knowing it.
But the fact of violation means the need to restore rights.
The most common mistakes when surveying can be of the following nature:
- incorrectly specified coordinates.
- Insufficiently thorough data analysis leading to inaccuracies.
- Incorrect determination of the exact boundaries of areas.
- Cadastral errors - discrepancy between real and formal (indicated in the register) perimeter lines, imposition of boundaries on buildings and structures.
- Other technical errors, inconsistencies and inaccuracies.
The provisions on cadastral defects are specified in Article 28 of the Law “On the State Real Estate Cadastre”.
Length of limitation period
Art. 196 of the Civil Code establishes a three-year limitation period from the moment when the applicant discovered the fact of a violation of his rights or should have known about it. And also who is the defendant in this case (Article 200, paragraph 1 of the Civil Code).
When concluding a small transaction, the starting point is the moment the terms of the agreement are fulfilled. In this case, the supporting document is a certificate of land ownership.
In some cases, vague wording of the start of the term opens up scope for manipulation. The person filing the claim is obliged to indicate the date of discovery of the fact of violation of his rights. And often its reality is almost impossible to prove.
Therefore, if there are justified reasons, the court may declare the transaction invalid even after 10 years.
How to detect inaccuracy and who may be to blame for it?
It is not so easy to find out about the presence of a boundary error; the owner can live on the site for a long time without even knowing about the problem he has. To detect it, you need to carefully study the available documentation and cadastral data.
It is not uncommon for a problem to surface only during a conflict between adjacent landowners.
For example, one of them sets boundaries and a fence along them, registers the data, and the other discovers that his plot has been reduced in this way.
The main cause of disagreement may just be a cadastral error.
The following may be at fault for committing an unintentional violation of rights or credentials:
- specialists, surveyors and engineers who make technical and other shortcomings during land surveying;
- employee of the cadastral authority.
Read about what errors in land surveying are acceptable and how to correct discrepancies in this article.
The concept of limitation of actions
The law defines this norm as the period during which the court is obliged to provide the injured party with protection of its violated right (Article 195 of the Civil Code of the Russian Federation).
The need to establish restrictions is explained by several reasons:
- the time limit makes it easier for the court to establish the circumstances of the dispute, which facilitates the adoption of an informed decision;
- helps eliminate uncertainty in the relations between participants in a land dispute, which inevitably arises as a result of the fact that the violator is constantly under the threat of application of coercive measures against him as provided for by law;
- a long delay in filing a claim by the injured party is evidence that it is not sufficiently interested in protecting its rights, or doubts the legality of its claims;
- contributes to the strengthening of contractual relations, is an incentive to protect one’s rights and mutual control over the fulfillment of obligations.
This norm is established by the Civil Code of the Russian Federation and is imperative in nature, that is, it cannot be changed as a result of an agreement between the parties to the dispute (Article 198 of the Civil Code of the Russian Federation).
A change in the owner of a land plot is also not a reason for changing the established period (Article 201 of the Civil Code), therefore, the successor, if necessary, to protect his rights, should take into account the remaining time before the end of the period allotted by law.
What to do if land surveying was done incorrectly?
There are two main ways to restore your rights violated by an error:
- pre-trial (administrative) decision.
- Trial
Pre-trial proceedings
Establishing the truth and restoring rights in a pre-trial manner can significantly alleviate the consequences of a boundary mistake.
A technical error can be corrected by the accounting authority itself, if it discovers it, within 5 days.
After this, the owner receives a copy of the decision and a cadastral passport. In case of disagreement, this decision can be appealed in court. On the other hand, the department does not have the right to independently correct cadastral errors; it can only send the owner a corresponding proposal.
How to correct a land surveying error during pre-trial proceedings? To correct at the initiative of the owner, it is necessary to write a corresponding application in the form of Appendix No. 1 or No. 2, approved by the Ministry of Economic Development by Order No. 125 of April 13, 2009. It is submitted to the territorial accounting authority or to the MFC.
It is also possible to send it electronically through the State Services portal.
All evidence of the validity of the application (document of establishment, confirmation of rights, boundary plans, etc.) must be attached to it.
For plots registered after 2008
To confirm your words, you can hire a specialist - a cadastral engineer, who will draw up a conclusion. The customer pays for the employee, but no state fee is charged for filing the application itself.
The result of the inspection will be issued within 5 (for a technical error) or 10 (for a cadastral error) days. In case of disagreement, the owner (applicant) may apply to the arbitration authority.
Litigation
Many citizens also ask the question: “What to do if the land survey is incorrect, if the error could not be resolved peacefully?” We need to go to arbitration court. The statement of claim must indicate:
- details of the participants - the applicant and the court;
- the essence of the problem, starting from the moment of acquisition of the site until the moment the discrepancy is discovered;
- a complete description of the land plot itself, a boundary plan, any information useful for the business;
- responses from the cadastral authorities or their absence (if there was an administrative proceeding);
- the essence of the applicant’s demands and claims, for example, to correct a cadastral error.
Along with the claim, the same evidence is attached as for the pre-trial proceedings, along with the responses of the registering authorities.
If the court satisfies the requirements, the defendant can be recovered for the losses incurred (for example, remuneration for a cadastral engineer).
Court orders are binding.
Sample documents
The main documents on the basis of which the established boundaries are revised, old values are canceled and changes are made to the registers are a claim to invalidate the results of the land survey or an objection directed to the land survey.
Statement of claim to invalidate the results
The statement of claim is drawn up taking into account the requirements of the reflection of the person who sends the statement itself and the defendant in the form of another person or government body .
The most important component of such a document is the substantive part, reflecting the essence (reason) of the appeal being sent, where the plaintiff must indicate the fact of violation of the current legislation or reflect the presence of an error in land surveying.
In most cases, they also provide a regulatory framework, based on which the court can accept the case in favor of the plaintiff and reflects a request to satisfy the requirement in revising the established boundaries.
Objection
In contrast to the act of declaring the results invalid, an objection to land surveying is drawn up in a general manner and transferred directly to the company that drew up the plan .
An objection to the drawn up land surveying plan is sent even before the data is entered into the register and consists of contacting the engineer who performed the work and reflecting the essence of the objection.
If there are actual errors, the cadastral engineer must bring the boundaries into line with the actual value of the turning points and enter the correct data into the register.
Overlapping areas during land surveying - causes, consequences, solution
The overlap of boundaries is a consequence of boundary errors and one of the possible reasons for refusal of a decree for cadastral registration (clause 1 of Article 26 of Law No. 218-FZ of July 13, 2015 “On State Registration of Real Estate”).
It arises in situations when one of the neighbors of adjacent properties conducts land surveying and registers it, but the second is denied registration.
There are two solutions to this problem - engaging a cadastral engineer to make an opinion, in the absence of disputes between neighbors, and litigation in court if one owner does not agree with the claims of the other.
Suspension and restoration of the limitation period
The end of the statutory period does not always mean for the injured party that all is lost. Art. 202 of the Civil Code of the Russian Federation provides for certain conditions under which the period may be suspended:
- filing a claim was impossible due to force majeure (natural disasters, etc.);
- one of the parties to the land dispute was part of the Armed Forces units carrying out military operations;
- the law regulating legal relations in this dispute has lost force or has been suspended;
- in connection with the moratorium established on the basis of the current legislation of the Russian Federation.
The listed circumstances can be the reason for the suspension of the period only if they occurred within 6 months preceding its end.
The resumption of the limitation period begins after the circumstances that prevented the filing of a claim have ceased.
In special cases, the court can restore the validity of the norm if it considers the reasons for its omission to be valid (Article 205 of the Civil Code of the Russian Federation). Such circumstances are considered to be the helpless state or serious illness of the plaintiff during the 6 months preceding the end of the term. Circumstances relating to the personality of the defendant are not a reason for reinstating the term.
The limitation period applies not only in land disputes, but also in all civil legal relations. Except for cases related to harm to human health and life, violation of personal non-property rights, as well as requirements for the issuance of bank deposits.
It is worth noting that the statute of limitations on land disputes missed by legal entities and citizen entrepreneurs cannot be restored.
Incorrect boundary division
Improper execution of land surveying is one of the most common causes of cadastral errors. It can be expressed in the incorrect establishment of coordinate points along which the boundaries of the perimeter of the plots pass. In this case, the mistake should be corrected by contacting the cadastre authorities for a commission and geodetic specialist to visit.
Various companies carry out land surveying activities, but the lack of experience or qualifications of their engineers can lead to such a banal mistake, which, nevertheless, can occupy the owner for a long time.
Land surveying will also be incorrect if it does not correspond to the register data (without or with a cadastral error).
Other signs of invalid boundary definition:
- completed without the consent of neighbors, if it was required (are signatures of neighbors needed when surveying?);
- the approval procedure on the part of the engineer is violated;
- a violation of the rights of adjacent land users was committed.
Carrying out incorrect land surveying may lead to refusal of registration and registration of property rights.
Judicial practice of the Academy of Sciences "Pravozem"
Our lawyers have extensive experience in defending client interests in court on land surveying issues. For example:
- The administration was brought in as a defendant and proved that because of their employees, an error was made in the documents, as a result of which our client’s ownership was recognized.
- As a result of the survey, the overlap of boundaries was identified and the client’s boundaries were defended.
- They proved the mistake of duplicating cadastral numbers and brought everything into compliance.
When contacting us, the client will receive a free consultation on his problem, solutions and an analysis of the prospects for the proceedings. If possible, we will offer peaceful options for resolving the conflict.
Which boundary plan is considered correct?
The procedure for carrying out and approving geodetic work is clearly specified in Federal Law-221 dated July 24, 2007 :
- work can only be performed by a licensed organization, as well as a specialist entered in the register of cadastral engineers;
- Land users of all neighboring (adjacent) plots are notified of the planned measurements. If their contacts are unknown, the owner must take care of finding them: obtain information from the cadastral chamber and send registered letters;
- measurements are carried out with a mandatory visit to the area, using special instruments. The length, width, angle of inclination, terrain, proximity of public facilities, reservoirs, and features of the surrounding surface are measured;
- based on the results, a site survey report, boundary or technical plan is drawn up;
- it must be signed by land users of adjacent plots;
- After signing, the plan is registered in the cadastral chamber.
Let's sum it up
The document can completely resolve the conflict between neighbors. According to the drawn up boundary plan, the fence is moved to its rightful place, and the issue is closed. This issue is controlled by the Land Management Committee. However, if a neighbor has occupied someone else’s territory with a building and does not want to demolish it voluntarily, he will have to go to court.
The statement of claim is usually of a non-property nature: a demand to recognize the neighbor’s actions as unlawful and to demolish the illegal building.
It is quite difficult to understand issues of land law without being a specialist in this field. Therefore, if conflict situations arise with neighbors regarding the boundaries of the property, you will most likely have to go to court.
