The calculation is carried out on the basis of the source provided by the customer: general plan, project or construction planning scheme, feasibility study, route project, mining allotment project.

In the practice of taps, 3 methods of calculating the land area are used:

1. According to the regulations

2. According to the maximum building area

3. By analogues

First way is the most common and is based on the use of established norms of land allotment. It is used for linear structures, airport construction, fisheries enterprises, construction sites. Standards are set differentially to determine zones, survey work, storage of materials, rock dumps.

Second way area calculation is practiced for placing additional construction objects on an already occupied territory (densification of residential construction, addition to a mining allotment). The indicator here is building density, which is defined as the ratio of the built-up area to the total land allotment area. This indicator is regulated by the use project land plot, building project and corresponds to the minimum density, which is regulated by the relevant regulations. An additional allotment is allowed if the real building area differs from the design one by no more than 0.1.

Third way suggests using analogues, i.e. data on rationally operating objects of appropriate capacity. This data is used for typical building, when placing unique objects, is used in extreme conditions.

For searching best solution several options for the placement of objects are being developed, acceptable both for the customer and for withdrawal (purchase) land plots.

Requirements:

· To use predominantly lands of the state reserve or unproductive, inefficiently used lands.

Prevent significant disruption of the existing system of land use - this is especially true for the lands of agricultural enterprises, land farms, plots of individual property.

· Avoid significant changes in the social and environmental situation in a particular area, i.е. the allocation of a land plot and the operation of the facility should not complicate the living conditions of the local population and access to especially attractive places of recreation and fishing.

These requirements are especially important for linear branches, as well as for the construction of large industrial and other enterprises. The boundaries of the projected land plots are applied to the project plan, the scale of the plan is chosen taking into account the size of the allocated plot and the zone of its influence on the surrounding territory, as a rule, the scale is 1:10000. The project plan displays the elements of the situation, types and subspecies of land, plots of land of various forms of ownership, zones for establishing special use modes, as well as the boundaries and description of adjacent land holdings.

The decision of the CA of the Krasnodar Territory dated December 25, 2016

1. Arbitration Court first instance
2. case no.
3. Krasnodar December 25, 2016
4. The operative part of the decision was announced on November 18, 2016.
5. The court decision was made in full on December 25, 2016.
6. The Arbitration Court of the Krasnodar Territory composed of Judge A.L. Nazykova, when maintaining the protocol of the court session assistant judge Oh.The. Ochkas, having considered case No.
7. according to the company's limited liability PhosAgro-Kuban (Primary State Registration Number 1022301600353 TIN 2310058004)
8. on recognizing as illegal the refusal of the department of property relations of the Krasnodar Territory to provide a land plot for ownership for a fee without bidding,
9. when participating in the case as a third party who does not make independent claims - the Department for Architecture and Urban Planning of the Krasnodar Territory,
10. with the participation in the hearing of the representative LLC «PhosAgro-Kuban» Kletnaya A.A. (by power of attorney dated 08/02/2016), representative of the Department of Property Relations of the Krasnodar Territory Isaev M.R. (by power of attorney dated July 29, 2016),

11. Installed:

12. PhosAgro-Kuban Limited Liability Company (hereinafter referred to as the Company) applied to the Arbitration Court of the Krasnodar Territory with an application to recognize as illegal the refusal of the Department of Property Relations of the Krasnodar Territory, expressed in letter dated December 17, 2015 No. 52-25410 / 15-33-23, in providing the company with the property for a fee of a land plot with a total area of ​​70,978 sq.m. with cadastral number 23:11:0603320:7, located at the address: Krasnodar Territory, Kanevsky district, Kanevskoe rural settlement, village of Kanevskaya, st. Elevatornaya, 5, the obligation of the Department of Property Relations of the Krasnodar Territory, no later than 7 days from the date of entry into force of the court decision in this case, to decide on granting the company a land plot with cadastral number 23:11:0603320:7 in ownership at a price of 4,239 000 rubles, calculated on the date of filing an application for granting ownership of a land plot for a fee (12/10/2015), equal to ten times the rate land tax per unit area of ​​a land plot, as well as on the obligation of the Department of Property Relations of the Krasnodar Territory (hereinafter referred to as the Department), within a month from the date the court decision enters into force, to prepare and send to the company a draft contract for the sale of a land plot with cadastral number 23:11:0603320 :7 into ownership at a price of 4,239,000 rubles, calculated as of the date of filing an application for granting ownership of a land plot for a fee equal to ten times the land tax rate per unit area of ​​the land plot.
13. As follows from the statement of the company, on the territory of the land plot with the cadastral number 23:11:0603320:7 there are real estate objects owned by the company on the basis of ownership (production base). The land plot was leased by order of the Department of Property Relations of the Krasnodar Territory No. 81 dated January 23, 2013, a land plot lease agreement dated January 23, 2013 No. 0000002951 was concluded. The Company is the legal successor of the tenant of the said land plot in the course of reorganization. The Department, in a letter dated 12/17/2015, refused to grant ownership of a land plot for a fee, due to the fact that the area of ​​the requested land plot exceeds the area of ​​real estate objects located on this land plot. As indicated by the department, the minimum building area manufacturing enterprises should be between 20 and 87:
14. . Meanwhile, the excess of the area of ​​the land plot of the area of ​​real estate objects located on the land plot is not indicated in the Land Code as a basis for refusing to provide the land plot for ownership without bidding. The disproportion of the area of ​​the land plot to the area of ​​the real estate objects located on the plot is not a reason for refusing to grant the land plot for ownership due to the loss of the Land Code from 01.03.2015. The disputed land plot was previously leased for the operation of the same real estate. Letter No. 71-9726/15-04-01 dated November 12, 2015 from the Department of Architecture and Urban Planning of the Krasnodar Territory cannot be accepted as absolute evidence of the disproportionate area of ​​the land plot. The Department for Architecture and Urban Planning of the Krasnodar Territory, in a letter dated 03/16/2016, informs about the compliance of the area of ​​the requested land plot with the normatively necessary for the operation of real estate objects. According to the conclusions of Alfa Stroy LLC, which the company contacted in 2016 to draw up a calculation - justification of the standard area of ​​the land plot, the indicator of the minimum building density of agricultural enterprises sites (28%) satisfies the indicator of building density on a land plot with a cadastral number of 23:11: 0603320:7. The Company has the exclusive right to acquire a land plot by virtue of the Land Code as the owner of real estate objects located on the land plot.
15. By the ruling of June 29, 2016, the Department of Architecture and Urban Planning of the Krasnodar Territory was involved in the case as a third party not making independent claims.
16. In a response dated 07/26/2016, the Department of Architecture and Urban Planning of the Krasnodar Territory explained that there was no information on the building area of ​​the land plot with the cadastral number 23:11:0603320:7 in the documents submitted by the Department of Property Relations. At the same time, according to the submitted materials, objects with a total area of ​​12,393 sq.m. are located on the land plot. (without taking into account the non-public railway track with a total length of 1326 sq.m.). If we take the area of ​​real estate objects available in the submitted documents as the area occupied by buildings and structures, then the standard area of ​​the land plot can be from 14,244.8 sq.m. up to 61,965 sq.m. According to the certificate from December 09, 2015, submitted by the branch of the State Unitary Enterprise KK "Kraitekhinventarizatsiya - Kraevoye BTI" for the Kanevsky district, the built-up area of ​​the land plot, including the non-public railway track, is 17,720.9 sq.m. Taking into account the specified area, the standard area of ​​the land plot required for the operation of buildings, structures, structures can be from 20,368.8 sq.m. up to 88,604.5 sq.m. However, according to the department, to determine the exact area of ​​land required for the operation of an existing enterprise, there is not enough information on the building area of ​​individual objects. It is necessary to take into account all the factors influencing manufacturing process, as well as technical regulations on fire safety requirements, in connection with which, it is necessary to conduct a study and analysis of the technological processes of the enterprise.
17. In a petition dated 08/16/2016 No. 71-9280 / 16-09-01, the Department of Architecture and Urban Planning of the Krasnodar Territory requested that the present case be considered without the participation of a representative of the Department of Architecture and Urban Planning in the next court hearings.
18. In the response, the department of property relations of the Krasnodar Territory indicated the following. The area of ​​the requested land plot significantly exceeds the area of ​​objects located on it. The Company did not substantiate the need for a land plot of this area for the operation of real estate objects located on the plot.
19. At the court session, which was held intermittently from November 15 to November 18, 2016, the representative of the company insisted on satisfying the requirements, also petitioned for the appointment of a forensic examination to determine the area of ​​the land plot necessary for the operation of facilities located within the boundaries of the disputed land plot. The representative of the Department of Property Relations of the Krasnodar Territory requested that the application be denied on the grounds set forth in the recall.
20. The Department for Architecture and Urban Planning of the Krasnodar Territory, duly notified of the time and place of the court session (by mail), did not appear at the court session on November 15-18, 2016.
21. Having studied the materials of the case, having heard the explanations of the representatives of the parties, the arbitration court found no grounds to satisfy the application.
22. As follows from the case file, on August 19, 2014, PhosAgro-Kuban LLC registered in the Unified State Register of Rights to Real Estate the ownership of the following objects:
23. - a warehouse building with a total area of ​​673.9 sq.m., letter B, cadastral number 23:11:0603144:466;
24. - station building Maintenance with a total area of ​​935.4 sq.m., letter B, cadastral number 23:11:0603144:317;
25. - a building of a warehouse for mineral fertilizers with a total area of ​​1737.6 sq.m., letter D, cadastral number 23:11:0603144:463;
26. - a building of a warehouse for mineral fertilizers with a total area of ​​1399.4 sq.m., letters E, e, cadastral number 23:11:0603144:462;
27. - treatment facilities, with a total area of ​​11.6 sq.m., letter Z, cadastral number 23:11:0603144:465;
28. - a car wash building with a total area of ​​104.2 sq.m., letter K, cadastral number 23:11:0603144:318;
29. - an asphalt site for mineral fertilizers with a total area of ​​1701 sq.m., letter X, cadastral number 23:11:0603144:467;
30. - building of a warehouse - a canopy of mineral fertilizers with a total area of ​​1331.6 sq.m., letter Zh, cadastral number 23:11:0603144:464;
31. - a warehouse for liquid complex fertilizers with a total area of ​​168.2 sq.m., letter L.XI, cadastral number 23:11:0603144:323;
32. - parking area for machinery, with a total area of ​​1899 sq.m., letter XV, cadastral number 23:11:0603144:471;
33. - a parking area for tractors, with a total area of ​​868 sq.m., letter XIV, cadastral number 23:11:0603144:470;
34. - non-residential building with a total area of ​​206.6 sq.m., cadastral number 23:11:0603320:74;
35. - non-public railway track with a length of 1326.000 linear meters, cadastral number 23:11:0603320:133.
36. The company's ownership of these facilities was registered on the basis of an agreement on the merger of Agrokhimik LLC with PhosAgro-Kuban LLC dated February 27, 2014, deed of transfer on the transfer to LLC PhosAgro-Kuban of all rights and obligations of LLC Agrochemist (as part of the reorganization by merging LLC Agrochemist with LLC PhosAgro-Kuban) dated 27.02.2014.
37. Also, on May 14, 2015, the company registered ownership of a non-residential building with a total area of ​​14.8 sq.m., cadastral number 23:11:0603320:166; non-residential building with a total area of ​​1165.1 sq.m., cadastral number 23:11:0603320:164; non-residential building with a total area of ​​168 sq.m., cadastral number 23:11:0603320:165. The company's ownership of these objects is registered on the basis of a land lease agreement state property for non-agricultural purposes dated 01/23/2013, permits for putting objects into operation.
38. The company applied to the Department of Property Relations of the Krasnodar Territory with a statement dated 12/10/2015 on granting ownership for a fee without bidding on the basis of the Land Code Russian Federation land plot with an area of ​​70,978 sq.m. with cadastral number 23:11:0603320:7 for the operation of real estate. In a statement dated 12/10/2015, the company listed the above-mentioned real estate objects, including: an asphalt site for mineral fertilizers, a building for a storage shed for mineral fertilizers, a warehouse for liquid complex fertilizers, a parking area for machinery, a parking area for tractors; the application also indicates objects that are not subject to cadastral registration - a fence, metal gates, a brick lavatory, two non-residential one-story brick buildings in the process of destruction, scales on a metal platform, Electricity of the net, fire pond.
39. By letter No. 52-25410/15-33-23 dated 12/17/2015, the Department of Property Relations of the Krasnodar Territory refused to provide a land plot due to the excess of the area of ​​the land plot with the cadastral number 23:11:0603320:7 of the area of ​​real estate objects located on this land plot. The department also indicated that total area real estate objects located on a land plot is 12,393 sq.m., and excluding sites - 7,925 sq.m.
40. As follows from the materials of the cadastral case of the disputed land plot, submitted by the Federal State Budgetary Institution "Federal Cadastral Chamber of Rosreestr" branch for the Krasnodar Territory at the request of the arbitration court, the land plot with cadastral number 23:11:0603320:7 was put on cadastral registration on 07/08/2003 on the basis inventory list, prepared during the work on the delimitation of state property in accordance with the land management case of 1986 in the local coordinate system.
41. According to the act of inspection of the land plot No. 94 dated 11.11.2015 of the State Treasury of the Krasnodar Territory “Kubanzemkontrol” presented in the case file, as a result of the survey of the land plot with cadastral number 23:11:0603320:7 with an area of ​​70,978 sq.m. This area is located, among other things, the following objects:
42. - construction of scales (a metal platform with a weighing mechanism located below ground level, with an approximate area of ​​70 sq.m.);
43. - a warehouse for liquid complex fertilizers (metal containers on a solid foundation, number of storeys 1, letters L, XI, with an area of ​​168.2 sq.m.);
44. - site for mineral fertilizers (asphalt concrete site letter X, area 1701 sq.m.);
45. - a warehouse for mineral fertilizers (metal structures on a concrete base are sheathed with a metal profile sheet, number of storeys 1, letter E, area 1399.4 sq.m.);
46. - a parking area for tractors (asphalted area, letter XIV, with an area of ​​868 sq.m.);
47. - a storage shed for mineral fertilizers (metal structures on a concrete base are sheathed with a metal profile sheet, number of storeys 1, letter Zh, area 1331.6 sq.m.);
48. - a warehouse for mineral fertilizers (metal structures on a concrete base are sheathed with a metal profile sheet, number of storeys 1, letter D, area 1737.6 sq.m.);
49. - warehouse (metal structures on a concrete base are sheathed with a metal profile sheet, number of storeys 1, area 1165.1 sq.m.);
50. - warehouse (metal structures on a concrete base are sheathed with a metal profile sheet, number of storeys 1, area 206.6 sq.m.);
51. - treatment facilities (brick building, number of storeys 1, letter Z, area 11.6 sq.m.);
52. - a car wash building (metal structures, with a brick base, slate roof, number of storeys 1, letter K, area 104.2 sq.m.);
53. - building of a service station (metal structures on a concrete base sheathed with galvanized metal sheet, number of storeys 1, letter B, area 935.4 sq.m.);
54. - warehouse building (metal structures on a concrete base sheathed with galvanized metal sheet, number of storeys 1, letter B, area 673.9 sq.m.);
55. - parking area for equipment (asphalted area, letter XV, area 1899 sq.m.);
56. - non-public railway track (letter Zh, length 1326 linear meter);
57. - restroom (brick building, 1 storey, approximate area 3.5 sq.m.);
58. - building (brick, number of storeys 1, approximate area 14 sq.m., for production activities not used);
59. - building (brick, number of storeys 1, approximate area 2.5 sq.m., not used for production activities);
60. - fire reservoir, letter XVI, with a volume of 95 cubic meters; m.;
61. - transformer substation open type, overhead power line VL-0.4 kV (letter XVII, reinforced concrete supports 24 pcs.).
62. This certificate of inspection of the land plot was signed without objection by the representative of the company, which was notified in advance of the conduct of this inspection, which follows from the copy of the notice and the postal item (attachment to the inspection certificate).
63. From the photo table - annex to the act of surveying the land plot dated 11.11.2015 No. 94, compiled by the State Public Institution of the Krasnodar Territory "Kubanzemkontrol", it can be seen that such objects as the car wash building (actually a canopy on metal pipes without walls and ceilings), warehouse buildings (actually hangars from a metal profile on a concrete base), warehouses-canopies (actually prefabricated metal structures from a metal profile on a concrete basis), scales (equipment built into the ground), a warehouse for liquid complex fertilizers (actually metal tanks permanently installed on a land plot), sites for mineral fertilizers, for parking tractors (asphalted or paved with concrete slabs on the surface of the land plot) - there is no such main feature of the property as an inextricable connection with the land plot, which is expressed in the impossibility of moving them without disproportionate damage to the purpose, since the metal structures of warehouses or tanks for storing liquid fertilizers, with all the obviousness of the court, can be dismantled and restored with the same purpose in another place without disproportionate damage to them; concreted or asphalted areas are a surface covering of a land plot, its paving, which only improves the quality of the land plot, but is not an independent object of real estate - buildings, structures, other than the land plot itself.
64. The information of the act of inspection of the land plot of the GKU KK "Kubanzemkontrol" on the actual state of the objects on the disputed land plot is also confirmed by the data presented in the case materials of the technical passports, which contain information about the construction of the walls of the warehouses from the metal profile. Objects such as parking areas for machinery, for parking tractors are described in technical data sheets as subgrade, gravel-sand mixture, asphalt concrete pavement.
65. The photographic materials presented by the company, reflecting the condition of the objects located on the disputed land plot as of October 2016, correspond to those photographic materials that were compiled by the State Institution of Civil Code "Kubanzemcontrol" in 2015.
66. In accordance with the Land Code of the Russian Federation, without bidding, land plots on which buildings, structures are located are sold to the owners of such buildings, structures or premises in them in the cases provided for in Article 39.20 of this Code
67. In accordance with the Land Code, unless otherwise provided or by another federal law, citizens have the exclusive right to acquire land plots in ownership or for rent. legal entities, which are the owners of buildings, structures located on such land plots.
68. The Supreme Court of the Russian Federation in a number of rulings stated the following:
69. - “In accordance with Article 1 of the Federal Law of July 21, 1997 N 122-FZ “On state registration rights to real estate and transactions with it" state registration of rights to real estate and transactions with it - legal act recognition and confirmation by the state of the emergence, restriction (encumbrance), transfer or termination of rights to real estate in accordance with the Civil Code. A registered right to immovable property can only be challenged in judicial order. The concept of an immovable object is disclosed in Article 130 Civil Code, part 1 of which contains an indication that immovable things (real estate, real estate) include land plots, subsoil plots and everything that is firmly connected with land, that is, objects that cannot be moved without disproportionate damage to their purpose, including including buildings, structures, objects of construction in progress. Paragraph 38 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 25 dated June 23, 2015 "On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation" explains that, within the meaning of Article 131 of the Civil Code, the law, in order to ensure stability civil circulation establishes the need for state registration of property rights and other real rights to immovable things, restrictions on these rights, their emergence, transfer and termination. At the same time, according to general rule state registration of the right to a thing is not prerequisite to recognize it as an object of real estate (paragraph 1 of Article 130 of the Civil Code). From the foregoing, it follows that when resolving the issue of recognizing a thing as real estate, regardless of the implementation of state registration of ownership of it, it should be established that it has signs that can attribute it, by virtue of natural properties or on the basis of the law, to immovable objects. At the same time, the tiling of a land plot that does not meet the characteristics of a structure is part of it and cannot be recognized as an independent immovable thing (paragraph 1 of Article 133 of the Civil Code). The disputed object, due to the lack of an inseparable connection with the land, should be recognized as a paving of a land plot, which is part of it and, in accordance with paragraph 38 of Decree of the Plenum No. 25, cannot be recognized as an independent immovable thing. Since the disputed object, the rights to which are registered in the USRR as real estate, does not have the corresponding signs of an immovable thing, the very fact of state registration of the defendant's ownership of such property violates the rights of the land owner, since it significantly limits the ability of the latter to exercise his powers. The violated right is restored by deleting from the register an entry on the defendant's ownership of the object ”(Determination of the Supreme Court of the Russian Federation of September 30, 2015 N 303-ES15-5520 in case No.);
70. - “According to its technical parameters, the car market is an open asphalt area with a fence and does not have the necessary features real estate established by Article 130 of the Civil Code of the Russian Federation. This object, in accordance with the provisions of 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 the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation" is not an independent real estate, but is an integral part of the land plot on which it is located. Since the disputed object does not have the relevant features of an immovable thing, the very fact of state registration of the company’s ownership of such property violates the rights of the owner of the land plot - the administration, since it significantly limits the ability of the latter to exercise his powers ”(Determination of the Supreme Court of the Russian Federation of December 23, 2015 N 309 -ES15-16806 in case N);
71. - “Believing that the company has the right to acquire the requested land plot as a property, since it is located within the boundaries of the asphalt site as a real estate object, the courts took into account the court decisions held in cases in which the registered right of the company to this object was challenged. Meanwhile, since these judicial acts do not contain conclusions that the disputed object - an asphalt site has signs of real estate, as well as the motivation corresponding to such a conclusion, and the company's statement on the provision of a land plot is justified by the need to operate this property as real estate, the courts should, when considering this affairs to eliminate any contradictions regarding the belonging of the asphalt site to real estate. At the same time, the Judicial Collegium also takes into account the clarification adopted by the Decree of the Plenum of the Supreme Court of the Russian Federation dated in paragraph 38 that the paving of a land plot that does not meet the characteristics of a structure is part of it and cannot be recognized as an independent immovable thing (of the Civil Code). Thus, the recognition of an asphalt site as not an object of real estate excludes the possibility of granting the land plot under it to the property ”(Determination of the Supreme Court of the Russian Federation of December 30, 2015 N 304-KG15-8395 in case N);
72. - “A car park, the ownership of which is registered with the company, by virtue of Article 130 of the Civil Code of the Russian Federation, does not have signs of real estate. The main element of the disputed object is an asphalt site, which has an auxiliary function in relation to the purpose of the site itself, improving its useful properties. According to paragraph 39 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 Section I of Part One of the Civil Code of the Russian Federation", an immovable thing involved in circulation as one object may be a single immovable complex. According to Article 133.1 of the Civil Code, such a complex is a set of buildings, structures and other things united by a single purpose, which are either located on the same land plot or are inextricably linked physically or technologically (for example, railways, power lines, pipelines and other linear objects). At the same time, in the unified state register of rights to immovable property, the ownership right to the totality of these objects as a whole is registered as one immovable thing. By virtue of the direct indication of Article 133.1 of the Civil Code, in the absence of the named registration, such a set of things is not a single immovable complex. Paragraph 38 of Resolution No. 25 of the Plenum states that a thing is immovable either by virtue of its natural properties (paragraph one of paragraph 1 of Article 130 of the Civil Code), or by virtue of a direct indication of the law that such an object is subject to the regime of immovable things (paragraph two of paragraph 1 of Article 130 of the Civil Code). Paving of a land plot that does not meet the characteristics of a structure is part of it and cannot be recognized as an independent immovable thing (paragraph 1 of Article 133 of the Civil Code). Thus, the presence of state registration of ownership of the disputed parking lot, consisting of asphalt paving, a security booth, a fence and a gate, as one immovable thing, is not an unconditional basis for classifying it as real estate objects ”(Determination of the Supreme Court of the Russian Federation of 01/19/2016 N 306-ES15-17797 in case No.);
73. - “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. At the same time, 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 (paragraph 1 of Article 130 of the Civil Code of the Russian Federation). Paving of a land plot that does not meet the characteristics of a structure is part of it and cannot be recognized as an independent immovable thing (paragraph 1 of Article 133 of the Civil Code of the Russian Federation). Thus, when resolving the issue of recognizing a thing as real estate, regardless of the implementation of state registration of ownership of it, it should be established that it has signs that can attribute it, by virtue of natural properties or on the basis of the law, to immovable objects. The courts of first and appeal instances found that the object, the ownership of which is registered in the Register, is actually a 2-3 cm thick asphalt pavement of a land plot and an underlying layer of crushed stone that has actually become unusable, fenced off by a partially destroyed and unusable metal fence, and came to the conclusion that the site is part of the land, does not meet the signs of the structure and is not an independent immovable thing. Since, by virtue of Article 1 of the Law on Registration, state registration of rights is carried out only on real estate, an entry in the USRR in relation to a sports ground was not subject to making ”(Decision of the Supreme Court of the Russian Federation of 04/07/2016 in case N 310-ES15-16638,).
74. Thus, as the Supreme Court of the Russian Federation pointed out, when resolving the issue of recognizing a thing as real estate, regardless of state registration of ownership of it, it should be established that it has signs that can attribute it, by virtue of its natural properties or on the basis of the law, to immovable objects.
75. Paragraph 1 of the Review judicial practice in cases related to challenging the refusal to carry out cadastral registration, approved by the Presidium of the Supreme Court of the Russian Federation on November 30, 2016, the following is given:

76. "one. The current legislation does not provide for the implementation of cadastral registration of an object that is not a real estate object.
    The entrepreneur applied to the arbitration court with an application for recognition illegal decision about the refusal to put on the cadastral registration of a canopy for waiting for transport, indicating that he was provided with a land plot specifically for the construction of a disputed object that has a strong connection with the land, and its dismantling without prejudice to the purpose is impossible.
    The courts dismissed the application on the basis of the following.
    According to Article 130 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), real estate (real estate, real estate) includes land plots, subsoil plots and everything that is firmly connected with land, that is, objects that cannot be moved without disproportionate damage to their purpose, including buildings, structures, construction in progress.
    The courts, taking into account the evidence presented in the case, found that the disputed object is typical, manufactured in the factory, consists of ready-made modules and is a metal frame with enclosing structures made of impact-resistant glass and double-glazed windows; parts of the complex and connecting elements are delivered disassembled; the assembled structure is attached to a concrete platform with anchor bolts that provide a temporary strong connection with such a platform; the installation of the complex is carried out without the installation of a deep foundation, which would indicate the presence of a strong connection with the ground. The courts found it unproven that the dismantling or relocation of an object (its separate parts) will cause significant damage to the structure, excluding the possibility of using the complex for its intended purpose.
    Based on the above, the courts recognized the contested decision of the cadastral registration authority to refuse to register the disputed object for cadastral registration as corresponding to paragraph 1 of part 2 of Article 27 of the Cadastre Law.
    2. Asphalt-concrete pavement that does not meet the characteristics of an independent structure is not subject to cadastral registration in accordance with the Cadastre Law.
    The company applied to the arbitration court with an application to recognize as illegal the decision to refuse to carry out the cadastral registration of the asphalt concrete pavement, referring to the fact that the specified object is a capital structure in the form of an element of landscaping and is adjacent to the real estate object, in connection with which the refusal cadastral chamber in the implementation of state cadastral registration is illegal.
    By the decision of the court of first instance, left unchanged by the decision of the court of appeal, the application was satisfied with the reference to the fact that the disputed object has all the features of a real estate object established by Article 130 of the Civil Code of the Russian Federation.
    The District Arbitration Court annulled the judicial acts, dismissed the application, based on the fact that the evidence presented in the case file indicates that the asphalt concrete pavement does not have the features of an independent real estate object (structure), it is an improvement of the land plot on which it is located.
    In view of the above, the court recognized the decision of the cadastral registration authority to refuse to register the asphalt concrete pavement for cadastral registration as corresponding to paragraph 1 of part 2 of Article 27 of the Cadastre Law.

77. Based on the foregoing, the court concludes that the company, in order to acquire ownership of the disputed land plot without holding an auction in accordance with subparagraph 6 of the Land Code, indicated in the application dated 10.12.2015 No. 700 objects that are actually not real estate (warehouses - metal hangars from collapsible standard structures industrial production; sites; storage of liquid fertilizers - tanks permanently mounted on the site; scales on a metal platform).
78. Since the disputed land plot was formed, among other things, for the placement of objects that are not real estate, and the company claims precisely this land plot with an area of ​​70,978 sq.m. with cadastral number 23:11:0603320:7, it cannot be recognized as the subject of the exclusive right to acquire the said land plot into ownership without bidding, since far from all the objects indicated by the company in the application for granting the land plot into ownership are buildings, structures .
79. Meanwhile, the Land Code provides for the exclusive right to acquire ownership without bidding of a land plot only for owners of buildings, structures located on the land plot.
80. The case materials do not confirm that for the placement and operation of objects that are actually buildings, structures ( capital facilities), the society needs the entire land area of ​​70,978 sq.m. with cadastral number 23:11:0603320:7.
81. The arguments of the company on the exclusion from the requirements for establishing the proportionality of the area of ​​the land plot requested for ownership for the placement and operation of real estate objects located on this plot are rejected by the arbitration court as unfounded and contrary to the meaning of the relevant provisions.
82. Since the company is asking for ownership of the entire land plot with an area of ​​70,978 sq.m. with the cadastral number 23:11:0603320:7, where most of the objects that are not buildings or structures are located, the refusal of the department to grant this land plot to the property without holding an auction should be recognized as legal and justified, in connection with which, the court does not find grounds for appointing a forensic examination to determine the area of ​​the land plot necessary for the operation of the company's facilities.
83. In the application for the appointment of an examination, the company asks to determine the area of ​​the land plot necessary for the operation of real estate objects, including also sites, a storage shed, a warehouse for liquid fertilizers, that is, objects that are obviously not real estate objects and cannot be included in the building area land plot. With such a formulation of the question, the answer of the expert, based on the attribution of all objects located on the site to real estate, will be obviously wrong.
84. The company, in an application to the arbitration court, seeks to provide it with the ownership of the entire land plot with an area of ​​70,978 sq.m. with cadastral number 23:11:0603320:7, which cannot be considered justified regardless of the results of the forensic examination, since the company requests this site not for the operation of buildings and structures, but for placement, including objects that are not capital structures, and sites related to the paving of the land.
85. The right of ownership of the company to these objects as a single immovable complex is not registered.
86. In accordance with the Civil Code of the Russian Federation, an immovable thing involved in circulation as single object, may be a single immovable complex - 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, etc.), or located on the same land plot, if in The unified state register of rights to immovable property registered the ownership of the totality of these objects as a whole as one immovable thing.
87. Evidence of such registration by the company is not provided.
88. The use of all of the above objects as part of the production or storage base of the company does not give the company the right to buy out a land plot in an exceptional manner, since the Land Code speaks of the exclusive right to acquire a land plot into ownership in relation to the owners of only buildings or structures, but not any aggregates production facilities, united by a common purpose, including production or warehouse bases.
89. Conclusion by the department of property relations of the Krasnodar Territory and the legal predecessor of the company of a lease agreement dated January 23, 2013 No. 0000002951 for a land plot with cadastral number 23:11:0603320:7 with an area of ​​70,978 sq.m. in itself does not give the company the right to buy out the specified land plot in an exceptional manner without holding an auction, since this land plot was not formed specifically for the placement and operation of specific buildings and structures of the tenant.
90. The existence of a lease agreement for a non-agricultural land plot does not give its tenant the exclusive right to purchase the land plot without bidding. The relevant grounds for acquiring a land plot without bidding are not mentioned in the Land Code.
91. The company’s arguments that the ownership of the objects located on the disputed land plot passed to it in the course of reorganization should be recognized as untenable, since this circumstance is not a basis for refusing to investigate the question of whether the objects located on the disputed plot are actually buildings or structures.
92. Under such circumstances, the court comes to the conclusion to refuse to satisfy the stated requirements and reject the petition for the appointment of a forensic examination.
93. On the basis of the foregoing and guided by Articles 167 - 170 To refuse to satisfy the stated requirements.
94. The decision of the arbitration court may be appealed in the manner prescribed by Chapter 34 of the Arbitration Procedure Code of the Russian Federation, to the Fifteenth Arbitration Court of Appeal through the Arbitration Court of the Krasnodar Territory.
95. Judge A.L. Nazykov

What is the size of the plot that the court considers reasonable?

Often, citizens and legal entities demand that municipal land plots be provided to them for servicing facilities. capital construction that are located in these areas. At the same time, the size of the requested site may exceed town-planning and other standards. The owners refer to part 1 of article 39.20 of the Land Code of the Russian Federation. This norm provides for the exclusive right of the owners of buildings and structures to acquire a land plot under these objects for ownership or lease. When denied, property owners often sue.

The size of the provided land plot must correspond to the purpose of the building and the maximum size of land plots according to urban planning regulations (rules of land use and development). If in the territory municipality urban planning regulations are not approved, apply limit dimensions provided land plots that were established before the entry into force of the Federal Law of June 23, 2014 No. 171-FZ in accordance with the rules of Article 33 of the Land Code of the Russian Federation. The need to be guided by this rule when considering disputes is confirmed by judicial practice. An example is the decision of the Presidium of the Supreme Court of the Republic of Bashkortostan dated November 9, 2016 in case No. 44ga-278/2016.

Thus, in the absence of urban planning regulations, the maximum sizes of land plots are established in accordance with the norms for land acquisition for specific types of activities, approved by land management, urban planning and project documentation. The boundaries of the transferred land plot should include both the part that is occupied by real estate and the part necessary for its use (maintenance, operation). But the applicant does not have the right to arbitrarily determine the area of ​​the plot to be provided (Article 33 of the Land Code of the Russian Federation).

When considering cases on the provision of plots under buildings, structures and structures, the court will first of all establish whether such an area is objectively necessary for the operation of the facility and whether it complies with building standards (resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 1, 2011 No. 13535/10, dated April 3, 2012 No. 12955/11). If the court considers the area of ​​the requested plot unreasonable, it will dismiss the claim. For example, in one of the cases, the court refused to grant ownership of a land plot, the area of ​​​​which was more than 16 times the area of ​​the building located on it (decision of the Arbitration Court of the Moscow District of May 19, 2016 in case No. A41-75113 / 2015). The arguments of the plaintiffs that they need a plot of such an area for the construction of other facilities will not work in court.

EXAMPLE 1. The company filed a lawsuit demanding that the administration of the city of Magnitogorsk, Chelyabinsk Region, provide ownership of a land plot to service the building. The area of ​​the requested land plot is 16,211 sq. m, and the area of ​​the building located on it is 1,464.8 sq. The company indicated that it plans to build several more facilities on the site in the near future. The court noted that the plaintiff did not prove the need for a plot of the requested area for the operation of the building, and dismissed the claim (decision of the Eighteenth Arbitration Court of Appeal dated August 22, 2016 No. 18AP-9188/2016).

What documents can justify the size of the plot

To justify the size of the land plot, the plaintiff may use, in particular, an expert opinion or a lease agreement.

Expert opinion

Evidence can be technical conclusion profile specialist. When conducting examinations, such specialists use SNiP 2.07.01-89 “Urban planning. Planning and development of urban and rural settlements. If the plaintiff submits an expert opinion, the municipality will have to challenge it. Present a conclusion with opposite conclusions, otherwise the court will satisfy the plaintiff's requirements.

EXAMPLE 2. The company filed a lawsuit to declare illegal the refusal of the Administration of the Stupinsky municipal district of the Moscow region to provide ownership of a land plot of 250 sq. m. The area of ​​the building located on it was 128 square meters. m. The plaintiff submitted to the court a technical opinion, which confirmed that the site corresponds to the area of ​​the building. The administration did not refute the plaintiff's evidence with another conclusion. Therefore, the court satisfied the stated requirements (decision of the Arbitration Court of the Moscow District of December 15, 2015 in case No. A41-5090/15).

Lease contract

If the owner of the land wants to become a tenant who previously received this site for the same purposes and the same area for rent, the court recognizes the lease agreement as proper evidence.

EXAMPLE 3. The administration of the Ufimsky district of the Republic of Bashkortostan refused to give the land under the building into the ownership of the entrepreneur. He went to court and demanded that the decision be declared illegal. The businessman indicated that he had previously leased this land for similar purposes. The court found that the plot of the requested area was originally provided for the operation of the building, and agreed with the plaintiff (decision of the Arbitration Court of the Urals District dated February 11, 2015 No. Ф09-60/15).

EXAMPLE 4.

The courts granted the stated requirements. However, the Supreme Arbitration Court of the Russian Federation canceled these decisions. The court pointed out that the company did not provide evidence confirming the need to use the land plot of the requested area for the operation of the acquired real estate. The Presidium of the Supreme Arbitration Court of the Russian Federation sent the case for a new consideration ().

Litigation may also lead to the provision of land plots with an overestimated area to the tenant.

EXAMPLE 5. The administration of Dubna provided the company with a land plot for rent. Then the tenant bought the plot and divided it into two areas of 0.3 and 0.7 hectares. The company retained a smaller plot for the operation of the building located on it, and sold the larger plot to third parties for the construction of a house. Interested in this antimonopoly service. OFAS considered that the administration and the company acted in concert. Thus, they violated the Federal Law of July 6, 2006 No. 135-FZ “On Protection of Competition”. The administration applied to the court demanding that the decision of the OFAS be recognized as illegal. Courts of three instances satisfied the claim. They noted that the sizes of the originally leased land and the land granted to the property are the same. But Supreme Court did not agree with this position. The authority was obliged to take into account the company's need for a land plot when it provided it for ownership. It was necessary to proceed from the purpose of the real estate object located on the site, urban planning and other requirements for operated real estate objects, as well as planning and development projects for the city. In fact, the site provided to the company for the operation of the building was not required, which confirmed the fact of the subsequent sale of this site. Thus, the administration acted illegally (ruling of the Supreme Court of the Russian Federation of March 6, 2017 in case No. A40-100700/2015).

The cadastral work carried out by the applicant in relation to the land plot does not substantiate the requirement to grant it ownership.

EXAMPLE 6. A company that owns a property complex with an area of ​​44,269.8 sq. m, filed a lawsuit with a demand to grant ownership of a land plot of 490 thousand square meters. m. The company put this site on cadastral registration.

The courts granted the stated requirements. However, the Supreme Arbitration Court of the Russian Federation did not agree with the position of the lower courts and canceled their decisions. The court pointed out that the company did not provide evidence confirming the need to use the land plot of the requested area for the operation of the acquired real estate. The Presidium of the Supreme Arbitration Court of the Russian Federation sent the case for a new trial (Decree of March 1, 2011 No. 13535/10).

Areas under auxiliary, non-stationary, linear objects

Many property owners seek to increase the area of ​​land on which they are located. To do this, companies are building auxiliary facilities on the plots and trying to register them as property in a simplified manner. However, the higher courts do not agree with the registration of ownership of auxiliary facilities.

EXAMPLE 7. The Central Bank applied to the Rosreestr department with an application for state registration of ownership of the fence as an auxiliary property. This fence was located on the same site with the administrative building of the Central Bank. For registration, he submitted a declaration on the immovable property and a technical conclusion of the inspection of the fence.

The Rosreestr's Office refused state registration of ownership of the fence. The reason was that the applicant did not submit the document of the authority local government, confirming that the fence belongs to the category of auxiliary facilities, the construction of which does not require a building permit. The courts of the first, appeal and cassation instances considered that the refusal did not comply with the law. They pointed out that Rosreestr had no reason to demand documents from the Central Bank other than those that it submitted. When erecting an auxiliary facility, the developer is not required to obtain construction permits and to put the facility into operation. Ownership of auxiliary facilities is registered in a simplified manner on the basis of a declaration that confirms the creation of such facilities and contains their technical description.

The Supreme Arbitration Court of the Russian Federation did not agree with the decisions of the lower courts on the registration of an auxiliary object as a real estate object and canceled them. The judges noted that the fence does not have an independent economic purpose and is not a separate object of civil circulation. It performs only a service function in relation to the land plot and the buildings located on it. The fence lacks the qualities of an independent property. Real estate objects include only objects firmly connected with the land, the movement of which is impossible without disproportionate damage to their purpose. Consequently, the ownership of an auxiliary facility is not subject to registration (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2013 No. 1160/13).

Since an auxiliary object cannot be registered in ownership, the court does not recognize ownership of the land under it. This also applies to a non-stationary object. When considering disputes on the provision of a plot under it, municipalities will have to challenge the status of the object as real estate.

EXAMPLE 8. The owner of the trade pavilion applied to the administration of the city of Kaliningrad with a demand to grant ownership of the land plot under the object. The municipality refused the entrepreneur, and he went to court. During the consideration of the case, the court found that the object owned by the entrepreneur does not have the features of a real estate object. Therefore, there are no grounds for granting ownership of the land plot under it. The presence of a certificate of state registration of the right to a building is not an unconditional proof that this object is real estate (decree of the Federal Antimonopoly Service of the North-Western District of May 12, 2008 in case No. A21-3780 / 2007).

It will not be possible to recognize the ownership of the land plot under the linear facility through the court of the persons interested in this either. For example, the Arbitration Court of the North Caucasus District indicated that line object the procedure established by the Land Code of the Russian Federation for granting ownership of a land plot under capital construction projects does not apply (

Victoria Beskrovnaya, leading expert of the construction and technical department:

Due to the fact that the size of the land plot does not always correspond functional purpose real estate, property owners have to justify the size of the land plot required for its operation: the owner of real estate must prove that he needs a land plot of a certain size to operate the real estate. At the same time, the authorized authority may refuse to provide the requested size of the plot, justifying its refusal by the fact that area of ​​the requested land significantly exceeds the area of ​​real estate objects located on it.

Conducting a forensic examination on the calculation-justification of the area of ​​the land plot suggests the possibility of solving the problem associated with the justification of the requested size of the plot, which should objectively include both built-up parts (“building spots”) and non-built-up parts necessary for the operation of real estate. Calculation-justification of the area of ​​the land plot can be carried out only in strict accordance with the basic provisions federal law of the Russian Federation No. 73-FZ of May 31, 2001 “On state forensic activities in the Russian Federation” (as amended on March 8, 2015).

Let's talk about the methodology for conducting this type of examination.

Starting work on the examination of the calculation-justification of the area of ​​the land plot, the expert first of all conducts preliminary analysis of the documentation contained in the case file, as a result of which it determines the fundamental parameters of the object under study:

The location of the land on which the buildings are located;

The main characteristics of the land plot;

Location of buildings in the structure of the land plot;

The functional purpose of buildings, according to the technical documentation.

The stage of preliminary analysis of the documentation is followed by stage field survey , within which the expert establishes the actual location of the objects under study, the actual functional purpose buildings, the actual boundaries of the land plot, as well as buildings and structures not specified in the documentation.

If necessary, the expert generates court request for additional documentation. For example, an examiner may request the following documentation:

1. Description of the production technology at the enterprise, including the schedule and description of the work process taking place in the territory adjacent to the buildings.

2. List of employees with indication of positions.

3. Information about the volume of accumulation and the frequency of garbage collection (garbage collection agreement).

4. The list of vehicles (cargo) on the balance sheet of the organization in relation to the considered buildings only (PTS).

5. Actual at the time of the forensic examination topographic survey of the territory of the considered land plot, with consideration of the adjacent territory (5-7 m), as well as indicating the status of utilities.

Next, the expert selection of the complex building codes and rules, regulating the formation of land plots for buildings of one or another functional orientation, after which it proceeds to the actual research part of the work on the question posed:

1. Carries out a detailed selection of the required composition of infrastructure elements for each of the objects and determines the value of the areas of land plots necessary for the operation of buildings without taking into account their relative position in the structure of the land plot.
2. Determines the area of ​​the land plot required for the operation of objects, taking into account their relative position in the structure of the land plot.
3. Having studied the additionally provided documents, distributes the equipment recorded in them on the territory of the land plot in compliance with the requirements of building codes and rules for their placement.
4. Determines the area of ​​the land plot, taking into account the study, which will differ significantly from the original value. This difference will be due to the objectivity and thoroughness of the study.

Thus, a well-conducted examination of the calculation-justification of the area of ​​the land plot makes it possible to objectively prove that in order to operate real estate, the owner needs a land plot of the nominal size that was requested.