2.1 Systematization of the grounds and methods of acquiring property rights..

For the emergence of property rights, as well as other legal relations, it is necessary to have certain legal facts, which in Russian civil law are called grounds for acquiring property rights. Traditionally, they are usually divided into primary and derivative. However, when determining the basis for classifying relevant legal facts, different sources give preference to different criteria.

Thus, a number of scientists* believe that the presence of will previous owner. In their opinion, primary grounds include those in which the right of ownership lawfully arises in a person regardless of the will of the previous owner, and derivatives are those in which such a will is present.

Others believe that the correct criterion is the presence succession*, and the initial ones include legal facts that are not based on succession, and the derivatives, accordingly, are those that are based on legal succession. They indicate that the criterion will does not in all cases withstand practical testing. For example, an heir who has the right to an obligatory share (the so-called necessary heir), receives this share against the will of the previous owner - the testator - although such a method of acquisition as inheritance, without a doubt, refers to derivative methods of acquiring property rights.

The point of view of the latter is closer to me, since the doctrinal interpretation of the law, for which civil law actually exists, should be based on internally consistent premises that do not lead to paradoxical conclusions. At the same time, the best way, from my point of view, to solve this problem is to follow the internal logic of such a law, and in this case it is known that the legislator in all cases has certain legal consequences with the presence or absence of legal succession, which cannot be said about the will. That is, it is rather the criterion that has practical significance for major law succession, that’s why I chose him to study the grounds for acquiring property rights.

This is all the more relevant since various – and often multidirectional – processes are actively taking place at the moment. Privatization, in which state and municipal property becomes the property of citizens and organizations, social and cultural facilities and other property complexes, on the contrary, become state and municipal property. All this property is burdened with numerous obligations of the most diverse nature, and is often equipped with various powers, often very attractive to the owner. And the adoption of legally significant acts, as a rule, is closely related to the presence or absence of legal succession.

Therefore, further we will consider the grounds for acquiring property rights, classified into initial and derivative precisely according to the criterion succession. Based on this criterion, the initial grounds include:

acquisition of ownership of a newly manufactured item (clause 1 of Article 218 of the Civil Code)

processing (Article 220 of the Civil Code)

conversion into ownership of publicly available things (Article 221 of the Civil Code)

acquisition of ownership rights to ownerless property (clause 3 of Article 218; Articles 225, 226; ownerless due to the application of clause 2 of Article 235, Article 236 of the Civil Code)

appropriation of treasure (Article 233 of the Civil Code)

due to the onset of the acquisition limitation period (Article 234 of the Civil Code)

for unauthorized construction due to the application of clause 3 of Article 222 of the Civil Code

stray animals (Article 230-232 of the Civil Code)

there is also reason to consider acquisition from an unauthorized owner to be the original method of acquiring ownership.

Derivative acquisition methods include:

acquisition of property rights under a contract

acquisition of property rights by inheritance

nationalization (Article 239, Article 306 of the Civil Code)

privatization (Article 217, Part 2, Clause 2, Article 235 of the Civil Code)

acquisition of ownership of property legal entity due to its reorganization or liquidation (clause 7 of article 63, paragraph 3 of clause 2 of article 218 of the Civil Code)

foreclosure on the owner's property for his obligations (subparagraph 1, paragraph 2, article 235, article 238 of the Civil Code)

circulation of property in favor of the state in the interests of society (requisition) or as confiscation, that is, in the form of a sanction for an offense committed (Articles 242, 243 of the Civil Code)

redemption of real estate in connection with the seizure of the land plot on which it is located (Article 239 of the Civil Code)

redemption of uneconomically maintained property (Articles 240,293 of the Civil Code)

purchase of domestic animals due to their improper treatment (Article 241 of the Civil Code)

acquisition as a result of termination of ownership of the property of a person to whom it cannot belong (subparagraph 2, paragraph 2, Article 235, Article 238 of the Civil Code).

It should be noted that some methods of acquisition can, depending on specific circumstances, act as initial or derivative, an example of which is the acquisition of ownership of products, fruits, income received from the use of certain property.

The study of each of the grounds for acquiring property rights as a whole can form the topic of a separate full-fledged scientific work. Next, various grounds for acquiring ownership rights to real estate will be considered.

The legislator includes real estate (immovable things, real estate) as land plots, subsoil plots, isolated water bodies and everything that is firmly connected to the land, that is, objects the movement of which is impossible without disproportionate damage to their purpose, including forests, perennial plantings, buildings, structures (Article 131 of the Civil Code), as well as aircraft and sea vessels, long-distance vessels, and space objects subject to state registration. The law may include other property as real estate. An important feature of the right of ownership of real estate is the mandatory state registration of all legal facts related to the emergence, transition and termination of such a right (clause 2 of Article 131 of the Civil Code), and in some cases provided for by law, in addition, special registration. The main legal act regulating registration procedures is the Law of the Russian Federation “On State Registration of Real Estate Transactions”.

2.2 Initial reasons for purchasereal estate.

Ownership for newly created real estate property is acquired by the person who manufactured or created it for himself in compliance with the law and other legal acts (clause 1 of Article 218 of the Civil Code). At the same time, the legislator, specifically for real estate, strictly connects the moment of acquisition of ownership of such property with the moment of its state registration (Article 219 of the Civil Code).

Separately, the legislator considers the situation of acquiring property rights for unauthorized construction, that is, in violation of the principle of compliance with the law and other legal acts. Article 222 of the Civil Code defines unauthorized construction as a residential building, other structure, structure or other real estate created on a land plot not allocated for these purposes in the manner established by law and other legal acts, or created without obtaining the necessary permits or with significant violation of urban planning norms and rules. At the same time, unauthorized construction itself does not allow the owner to acquire ownership rights to unauthorized created real estate and dispose of such property, which the law additionally indicates. That is, incidents are possible in which the right of ownership initially does not arise on any side. Therefore, an unauthorized building is subject to demolition by the person who carried it out or at his expense, except for the cases provided for in paragraph 3 of Article 222 of the Civil Code, for which purposes the unauthorized developer is given an order to demolish all or part of the unauthorized construction and put the relevant territory in order, indicating the deadlines, in which the developer is obliged to take appropriate actions.

However, subject to compliance with the conditions established by law, the right of ownership of such a building may be recognized by the court for a person who has carried out unauthorized development on a plot of land that does not belong to him or for a person in whose ownership, lifelong inheritable possession, whose permanent perpetual use such a plot is located.

The right of ownership of an unauthorized developer can be recognized only on the condition that the land plot located under the relevant building will be provided to this person in the prescribed manner for the erected building, and for the title owner of the plot - with the obligatory establishment of the amount in which such owner is obliged to reimburse the developer for expenses related to the implementation of development. And none of these persons can be recognized as the owner of the relevant property if the preservation of the building violates the rights and interests protected by law of other persons or creates a threat to the life and health of citizens.

A significant initial basis for acquiring ownership rights to real estate is mismanagement such property. Ownerless According to the rules of Article 225 of the Civil Code, property is recognized that does not have an owner, or whose owner is unknown, or has renounced the right of ownership in accordance with Article 236 of the Civil Code. It should also be noted that in the latter case, such an owner is not deprived of rights and is not released from obligations in relation to the relevant property until the acquisition of ownership rights to it by another person.

The basis and procedure for acquiring ownership of ownerless real estate are redefined in paragraph 2, paragraph 2, Article 25 of the Civil Code. This rule of law contains a description of the general procedure for registration and assignment of ownership of the relevant property, as well as a closed list of other options for determining the fate of the specified property.

At the request of the local government body, on whose territory immovable things are found or declared ownerless, by the bodies that register rights to real estate, such things are taken into account and, after a year from the specified day, the body authorized to manage the specified property receives the right to apply to court with a requirement to recognize the right of municipal ownership of this thing. If, before the court recognized the property as municipal property, its former title owner appeared, such a thing may be again taken into possession, use and disposal by him or acquired into ownership by virtue of acquisitive prescription.

Acquisitive prescription(Article 234 of the Civil Code) is also one of the initial grounds for acquiring ownership rights to real estate. In this case, as well as on other grounds, the right of ownership of real estate arises from the person who acquired this property by virtue of acquisitive prescription from the moment of state registration of the relevant legal fact.

To acquire ownership of real estate by virtue of acquisitive prescription, it is necessary that a person who is not the owner of the property conscientiously, openly and continuously owns the property as his own for fifteen years. Very important for the application of this basis for the acquisition of property rights is the legally correct determination of the statute of limitations for possession, the rules of which are directly listed in paragraphs 3 and 4 of Art. 234 Civil Code. Thus, a person referring to the prescription of possession can add to the time of his possession the entire time during which this property was owned by the one whose legal successor this person is. At the same time, the period of acquisitive limitation begins only from the time when the limitation period expires on a vindication claim or on a claim by an owner who is not the owner (Article 1–5 of the Civil Code of the Russian Federation).

Further, a prerequisite for acquisitive prescription is the ownership of property as one’s own, that is, without taking into account the fact that it has an owner. Otherwise, gender doubt and two other mandatory requisites of acquisitive prescription are raised - openness and good faith of ownership of real estate

Conscientious ownership of property means that while actually owning such property, the owner does not know and should not know about his lack of ownership rights, while the absence of a right establishing document (for example, a home ownership passport) does not in itself prove the owner’s bad faith.

A person owns property openly when his possession is visible and not hidden from any interested or uninterested third parties. A mandatory requisite of possession by prescription is its continuity. If the owner takes actions indicating his recognition of the obligation to return the thing to the owner, or an authorized person has filed a claim against him for the return of property, then the period of acquisitive limitation is interrupted. Moreover, if other details of acquisitive prescription are present even after the end of the specified circumstances, the prescription of possession begins to run again. It should be borne in mind that the time that has elapsed before the break is not counted towards the statute of limitations, although, if a third party unlawfully deprives a long-term owner of possession of property, such owner has the right, as established by law, to restore the violated possession. And the period of acquisitive limitation continues as if there had been no violation of possession, that is, continuously. And the last thing, important specifically for the modern period of time, is a remark about acquisitive prescription as the basis for acquiring ownership of real estate. Rules of the law on acquisitive prescription Art. 11 of the Law of the Russian Federation on the introduction into force of Part One of the Civil Code of the Russian Federation was given retroactive force, that is, acquisitive prescription also applies to the case when ownership of property began before January 1, 1995 and continues at the time Part One of the Code comes into force.

2.3 Pderivatives grounds for purchasingownership rights toreal estate.

The most common and regular way of acquiring rights to real estate is acquisition of property under a contract. To acquire ownership rights on this basis, it is necessary that an agreement be concluded between the acquirer and the alienator of the property in a simple form, and in cases directly provided for by law, in a qualified written form. In this case, we can talk about a contract for the purchase and sale of real estate (paragraph 7 of Chapter 37 of the Civil Code of the Russian Federation), the form of which is established, under penalty of invalidity, as written by drawing up one document by the parties (Article 550 of the Civil Code). At the same time, the legislator especially emphasizes and provides special protection for the obligation of the parties to register the transfer of ownership of real estate under a real estate sale agreement. In cases where the law requires mandatory notarization of the relevant agreement, the acquirer’s right of ownership also accrues after state registration of this legal fact.

Very common methods of acquiring real estate are inheritance citizens by law or by will, as well as similar acquisition of ownership rights to the property of a legal entity during its reorganization or liquidation. When a legal entity is reorganized to the successor organizations of such a legal entity, the ownership of the property belonging to it is transferred in appropriate amounts in accordance with transfer acts and the separation balance sheet (paragraph 3, paragraph 2, article 218, articles 58, 59 of the Civil Code of the Russian Federation). In the case of liquidation of a legal entity, that is, its termination without the transfer of rights and obligations to successors, the situation is much more complicated. The solution to the issue of the legal acquirer of the property of a liquidated organization depends on whether the participants of this legal entity retain any rights to its property and, if so, what and to what extent. By default of the law and constituent documents, the property remaining after satisfaction of the claims of the creditors of a legal entity is transferred to its founders (participants) who have real or liability rights to this property (clause 7 of Article 63 of the Civil Code). However, if we are talking about a public association or a charitable foundation, then according to the law, and in other cases it can be determined by the constituent documents, the remainder of the property upon liquidation is directed to solving certain, for example, socially significant tasks. The basis for its liquidation also plays a significant role in determining the future fate of the property of a legal entity.

Agreement on the transfer of real estate from state and municipal to private ownership – privatization agreement(Article 217 of the Civil Code) - should also be classified as this type of basis for acquiring property rights. This basis for acquiring ownership rights to real estate is especially relevant in recent years and causes, perhaps, the largest number of extremely difficult legal disputes to resolve. The main reason for the difficulties in resolving disputes about the fate of real estate related to the privatization of state and municipal property is, in my opinion, the blanket nature specified by the norm of the Civil Code and, accordingly, the regulation of these relations and processes by a large number of normative (and even non-normative) acts, published by various persons. The competence of such persons, who decide the most important legally significant issues outside the legislative process and outside the general context of the development of legal doctrine, to issue relevant normative legal acts in many cases began to be verified only in the course of trials related to the practice of applying these acts. And they did not always pass such a test with dignity. In other words, this basis for acquiring property rights is not sufficiently regulated by law, which is confirmed below when considering the relevant cases.

In case of forced foreclosure on the property of the owner for his obligations At first glance, there is no direct connection between the termination of the property right of one person and its emergence in another. However, the law provides for the termination of the right of ownership of such property from the alienator only from the moment the right of ownership to such property arises from its acquirer. The acquisition of ownership rights to real estate on the grounds under consideration is carried out, as a rule, in court and is subject to a significant number of restrictions. As a general rule, real estate is a vital type of property for citizens and critically necessary for the functioning of commercial organizations, part of their property complex. In this regard, foreclosures on the debtor's real estate are applied last, in a complicated manner, and in some cases are directly prohibited.

In the near future, it seems that such derivative methods of acquiring property by the state as nationalization, requisition and confiscation- tap on my tongue. In accordance with Art. 35 of the Constitution of the Russian Federation, civil legislation establishes that nationalization, that is, the conversion of privately owned property into state ownership, is carried out on the basis of the law with the state compensating the former owner of the nationalized property for its actual value and other losses in accordance with Art. 36 Civil Code. It should be noted that the law on nationalization can be challenged only if it does not comply with the Constitution of the Russian Federation and only in the Constitutional Court of the Russian Federation, that is, it is not subject to challenge in civil proceedings, but the court can resolve disputes about compensation for losses and the amount of such compensation in accordance from Article 36 of the Civil Code.

Paid seizure of property from the owner in the interests of society by decision of state bodies is carried out in the manner and under the conditions established by law and is called requisition. Requisition is applied in cases of natural disasters, accidents, epidemics, epizootics, and other circumstances of an emergency nature, therefore confiscated and preserved requisitioned property can be claimed by the owner in court (Article 242 of the Civil Code).

In cases expressly provided for by law, property may be confiscated from the owner free of charge by a court decision in the form of a sanction for committing a crime or other offense. By a court decision or in accordance with the law, in an administrative manner (Article 243 of the Civil Code). In this case, the state acquires the confiscated property by virtue of confiscation, In this case, the decision on confiscation made administratively can be appealed to the court. A peculiarity of confiscations is that encumbrances of ownership of the specified property are transferred to the state only partially, and their execution is subject to a number of restrictions, including quantitative ones.

Characteristic only for the acquisition of rights to real estate is such a basis as the redemption of real estate in connection with the seizure of the site on which it is located. Article 239 of the Civil Code defines cases when it is permissible to confiscate from the owner or sell at public auction in the manner provided for in Art. 279-282, 284-286 Civil Code. A mandatory condition for the application of this basis is that the state body or local government body that has filed the corresponding demand with the court has evidence that the use of the land plot for state or municipal needs for the purposes for which it is seized is impossible without termination of the title owner's ownership of this movable property or evidence of ownerless use of the corresponding land plot.. The seizure procedure is as follows. The decision to seize a land plot, and, therefore, to buy out the real estate located on it, is subject to state registration. The title owner of the said property must be immediately notified of the registration, indicating its date, but no later than one year before the date of the upcoming redemption. Before the expiration of a year from the date of notification to the owner, repurchase is possible only with the consent of the owner. In cases where the owner does not agree with the decision on redemption or with the proposed terms of redemption, the state body or local government body that made the decision that the new owner may acquire property rights has the right to file a claim for redemption in court within two years from the date of sending the owner a notice of ransom. In relation to mismanaged contents of property, the right of ownership is acquired in the manner prescribed by Article 240 (for cultural property), 293 (for residential premises) and in other cases provided for by law. The specified property has an owner who is known, but treats it mismanagement, that is, allows it to be damaged and destroyed, loses other consumer qualities, or creates a threat to the rights and legally protected interests of third parties (such as, for example , negligent owner of the hydroelectric dam).

First of all, it is necessary to clarify what the term “thing” means in the civil legal sense, since our everyday ideas about things and the legal characteristics of this concept do not always coincide.

The law classifies as things not only inanimate objects (cars, items of clothing and household items, etc.), but also living beings - wild and domestic animals. Invisible and not always tangible substances, such as gas, thermal, electrical and nuclear energy, are also objects of civil circulation.

A thing becomes an object of law due to its most important feature - the presence of properties capable of satisfying human needs. For this reason things beneficial features which are unknown or not studied at this stage of development of human civilization, or are inaccessible (for example, cosmic bodies) cannot be objects of civil rights, which means that it is impossible to acquire rights for these objects.

Russian civil legislation classifies an extremely wide range of objects as things. It also includes cash and non-cash cash, documentary and uncertificated securities, property rights (Article 128 of the Civil Code). All of the above is covered by the concept of “property”, so you need to remember that the concepts of thing and property in the civil law of the Russian Federation are synonymous.

Not all things can be freely acquired and alienated, i.e. participate in civil circulation. Based on their negotiability, things are divided into unlimited circulation (can be objects of any transactions), limited in circulation (to acquire ownership of such things you need to obtain a special permit: weapons, drugs, poisons, etc.) and withdrawn from circulation that cannot be the subject of transactions (rivers, seas, roads, some public buildings, etc.).

Therefore, when acquiring or alienating a thing, you must first determine its negotiability.

It is known that some human rights arise from birth and end with death (the right to life, health). The right of ownership does not apply to such rights; it is acquired by citizens and legal entities on the grounds established by law.

The law (Article 218 of the Civil Code) names several grounds (methods) for acquiring property rights.

Paragraph 1 of the first named article of the code deals with the acquisition of ownership of a new thing that a person has manufactured or created for himself. The owner of such a thing becomes the person who created it.

A new movable thing can be created by recycling an old thing. The right of ownership to such a thing arises from the person who owns the processed materials. If the recycler is not the owner of the materials, then the owner of the materials becomes the owner of the new item.

There is an exception to this rule that applies depending on the cost of processing. If this cost significantly exceeds the cost of the materials, then the ownership of the new item is acquired by the processor who processed the item for himself. In this case, the processor must reimburse the owner of the materials for their cost. And, conversely, the owner of materials who acquired the right to a new (processed) thing is obliged to reimburse the cost of processing to the person who carried it out. The law allows these rules to be changed by an agreement concluded between the owner of the materials and the processor (clause 2 of Article 220 of the Civil Code).

The above rules do not apply when it comes to.

To create real estate as a new thing, it is necessary to have a land plot allocated for these purposes, first obtain a construction permit and carry it out in compliance with urban planning norms and rules. If this is ignored, the constructed real estate (a residential building, other building or structure) is recognized as an unauthorized construction.

The law does not recognize the right of ownership of an unauthorized construction to the person who carried it out (clause 2 of Article 222 of the Civil Code). Accordingly, it is illegal to dispose of unauthorized construction. It cannot be sold, given as a gift, rented out, or other transactions can be made with unauthorized construction. Moreover, the law obliges the person who carried out the unauthorized construction to demolish it at his own expense.

And yet, for negligent developers, a chance is provided to retain the right to build or reimburse its cost. To do this, you need to apply to the court for recognition of ownership of the building. The court's decision will largely depend on who has the ownership rights, lifelong inheritable ownership or permanent (perpetual) ownership of the land plot on which the construction was carried out - the developer himself or another person.

If the owner of the right to a land plot and the unauthorized developer are the same person, then most likely the court will recognize his right of ownership, provided that the construction does not violate the rights of other persons and does not pose a threat to the life and health of citizens.

If the unauthorized developer and the owner of the land plot are different persons, then a claim for recognition of ownership rights can be filed by the owner of the land plot. If the court recognizes his ownership of the building, the court obliges him to reimburse the developer for construction costs in an amount determined by the court.

As you can see, there are a lot of risks and hassles with unauthorized construction. To avoid them, the developer needs to follow the established rules when constructing real estate, and the buyer of real estate, before giving money to the seller, needs to find out whether the property is an unauthorized construction.

If the property already has an owner, then the right to such property can be acquired by another person on the basis of a civil legal transaction: purchase and sale, exchange, gift, etc. This is the most common way of acquiring ownership of things. Each of us makes such transactions every day, buying, for example, food in a store.

Ownership of the property of a deceased person passes to other persons in accordance with or.

Reorganization of a legal entity also entails the transfer of ownership of its property to its legal successors - legal entities.

The basis for the acquisition of ownership of real estate by a member of a consumer cooperative is the full payment of the share contribution for the garage, apartment or other premises provided by the cooperative (clause 4 of Article 218 of the Civil Code).

Above we talked about the methods (grounds) for acquiring property. Now we will try to answer the question from what moment a thing becomes the property of a particular person.

According to the general rule established by Article 223 of the Civil Code, the ownership right of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or contract. The law recognizes the transfer of a thing as its delivery to the acquirer. The law recognizes the actual receipt of a thing into the possession of the acquirer as the moment of its delivery, and therefore the moment of transfer of ownership of the thing to the acquirer.

Meanwhile, the law allows the parties to the contract to determine other conditions for the transfer of ownership of the thing (for example, from the moment the buyer pays its price in full).

The rules of Article 223 of the Civil Code concern mainly movable things.

In cases where the transfer of ownership of a thing is subject to state registration (and this applies to immovable things), the acquirer's right of ownership of the thing arises from the moment of such registration, unless otherwise provided by law. Thus, a member of a consumer cooperative acquires ownership of real estate not from the moment of its state registration, but from the moment the member of the cooperative pays the full share contribution. The need for state registration of ownership of real estate will arise for a member of the cooperative only when he decides to make a transaction with it (sell, donate, etc.).

The purchase and sale agreement for a real estate property is concluded in writing and is subject to mandatory state registration.

When concluding a purchase and sale agreement for this transaction the seller has the right to demand:

• payment of the price agreed upon in the contract;
• payment of the price of the object and interest (based on the discount rate of bank interest at the seller’s place of residence), if the buyer does not pay for the object on time;
• payment for the property or refusal to execute the purchase and sale agreement if the buyer refuses to accept and pay for the property.

Wherein the seller is obliged:

• transfer the property free of any encumbrances, unless the buyer agrees to accept the property encumbered by these rights;
• in case of seizure of an object from the buyer by third parties, compensate the buyer for losses unless he proves that he knew or should have known about the existence of the grounds that served as the reason for the seizure;
• to intervene on the buyer’s side in the event of a claim for seizure of the property by a third party;
• transfer the object to the buyer in the form provided for in the purchase and sale agreement.

The buyer has the right to demand:

• transfer of the property sold to him;
• reducing the price of the object or terminating the purchase and sale agreement if the object has encumbrances;

When transferring an object that does not correspond to the form it had when concluding the purchase and sale agreement:

• a proportionate reduction in the transaction price,
• free elimination of deficiencies within a certain (reasonable) period,
• reimbursement of their expenses to eliminate these shortcomings,
• return of the paid price of the object in case of refusal to fulfill the contract;
• replacement of the property in accordance with the type (and quality) provided for in the purchase and sale agreement;
• submit claims related to defects in the property if they are discovered within a reasonable time, but within two years, unless otherwise provided by law or contract.

Wherein the buyer is obliged:

• accept the property transferred to him;
• pay for the object immediately before or after the transfer of the object, unless otherwise provided by agreement, law, or other legal act;
• pay for the property at the price stipulated in the purchase and sale agreement.

• individual transactions (with the participation of an intermediary);
• public auction.

Bidding for the sale of ownership rights or lease rights to real estate is carried out in the form of an auction or competition.

- a public way of selling an object to the buyer who offered the maximum price without imposing any obligations on him. Based on the application form, there are open and closed auctions.

- a method of sale that involves the buyer offering the maximum price, subject to his fulfilling certain obligations in relation to the object - social (with the implementation of socially significant programs) or investment (with the implementation of investment programs).

Tender— a competitive form of contract bidding, at which the sale of the right to conclude a contract for the implementation of a project is carried out.

Barter and exchange

Mena- a transaction in which each party undertakes to transfer ownership of one object to the other party in exchange for another. The subjects of the transaction can be both citizens and legal entities.

If during a transaction it turns out that, in accordance with the exchange agreement, the objects of exchange are recognized as unequal, then the party whose price of the object is lower must pay the difference in prices.

If the terms for the transfer of real estate do not coincide, then the rules on counter-fulfillment of obligations apply.

Ownership in this transaction passes to the parties simultaneously after both parties fulfill their obligations to transfer the real estate.

Exchange- deal:

• between tenants-users of premises with the receipt of relevant documents (the exchange of the right of use for an equivalent right of use is ensured);
• between the tenant of the premises (who only has the right to use) and the owner (the exchange of the right of use for the right of ownership is ensured).

Gift and inheritance

Donation- a transaction in which the donor transfers free of charge or undertakes to transfer to the donee:

• ownership of real estate;
• a property right (claim) to oneself or to a third party either releases or undertakes to release the donee from property obligations.

The subjects of the transaction can be either citizens or legal entities.

There are restrictions on the donation transaction:

• if the property is in common joint ownership, then donation is possible only with the consent of all its participants;
• for legal entities, if the property is owned by the right of economic management or operational management, donation is possible only with the consent of the owner of the property.

In a gift transaction, the donee has the right to refuse it at any time before the property is transferred to him.

Inheritance

Inheritance ensures the transfer of ownership of property after the death of the subject to his heir by will or, in the absence of a will, by law.

Rent

Rent- a transaction in which the annuity recipient, the owner of a real estate object, transfers ownership of the object to the rent payer, who, in turn, undertakes, in exchange for the received object, to periodically pay the annuity recipient a certain amount of money or provide funds for its maintenance in another form. Wherein the annuitant is deprived of ownership rights on the property and acquires the right to pledge it.

Agreement this transaction is made in writing and must be notarized and registered.

Rent encumbers the land plot, enterprise, building, structure or other real estate transferred for its payment. In the event of alienation of such property by the rent payer, its obligations under the rent agreement are transferred to the acquirer of the property.

A person who has transferred real estate encumbered with rent into the ownership of another person bears subsidiary liability with him for the claims of the rent recipient arising in connection with a violation of the rent agreement.

Rent has several subtypes:

• permanent annuity;
• life annuity;
• lifelong maintenance with dependents.

Constant annuity is paid indefinitely in cash or by providing things, performing work (rendering services) corresponding in value to the monetary amount of rent, at the end of the quarter (unless otherwise established by the contract). Permanent rent for a property can be purchased either at the request of the rent payer or at the request of the rent recipient.

Life annuity is paid during the life of the annuitant. The monetary amount cannot be less than one minimum wage. This rent is usually paid monthly (unless otherwise specified in the contract).

Lifetime maintenance with dependents is fixed by an agreement, which determines the cost of the entire amount of maintenance with dependents (which cannot be less than two minimum wages per month). In this case, the maintenance can be replaced by periodic payments in money.

Rent and hire

Rent

Rent- a transaction in which the lessor (the owner of the property or a person authorized to do so by law or the owner) undertakes to provide the tenant with a property for a rent for temporary possession and use or only for temporary use of this property. The written form of the lease agreement and its registration are required.

If it happens that the property is transferred into the ownership of another person (that is, the owner sells or exchanges it, or donates it, or enters into a rental agreement), then the lease agreement does not change with the new owner and is not terminated (if the tenant does not want it).

When concluding a lease agreement for this transaction the lessor has the right to demand:

• timely payment of rent;
• termination of the lease agreement if the tenant uses the object not in accordance with its purpose or the terms of the agreement.

The lessor is obliged:

• provide the leased property in a timely manner and in a condition consistent with its purpose and the terms of the lease agreement;
• be responsible for shortcomings of the leased property that prevent its use;

The tenant has the right:

• reclaim the leased property;
• if deficiencies are discovered in the leased property: demand their elimination, or a reduction in rent, or reimbursement of expenses for their elimination, or termination of the lease agreement;

• demand a reduction in rent or termination of the contract if unspecified rights of third parties to the leased property arise;

• with the consent of the lessor: sublease the property; transfer rental rights to another person; pledge rental rights or contribute to the authorized capital of business companies and partnerships;

• have priority when concluding a lease for a new term.

The tenant is obliged:

• pay rent on time;
• use the leased property in accordance with its purpose and the terms of the contract.

The right to the part of the land plot that is occupied by real estate and necessary for its use is transferred simultaneously with the transfer of lease rights to the real estate.

Hiring

Renting residential premises- an operation in which one party - the owner of the residential premises or a person authorized by him (the lessor) - undertakes to provide the other party (the tenant) with residential premises for a fee for possession and use for living in it.

Legal entities may be provided with possession and (or) use of residential premises on the basis of a lease or other agreement. A legal entity may use residential premises only for the residence of citizens.

IN social hiring isolated residential premises of a standardized size are provided from state and municipal funds for indefinite residence, subject to payment of part of the utilities. Residential premises are provided for commercial rental from state and municipal funds without standardization of size for a negotiated commercial fee for a period of up to 5 years.

If we move from sociology closer to the problems of legal technology, it should be noted that land law is undoubtedly the most complex area of ​​traditional property law due to a number of reasons of an economic nature, which we have combined into the category of factors external to the norm rather than exceptions to the rule in real estate transactions. No human society can be considered organized if it is not able to guarantee the exclusive rights of an individual or group of individuals to certain economic...

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introduction

Various legal systems are indeed united in the fact that land is a particularly important object of property relations. Although the thesis that land constitutes the most important part of material values ​​in modern society a significant share of total wealth today is represented by share capital and other forms of movable property nevertheless, the fact remains immutable that the rules governing land relations can well be considered as the paradigm of modern property law.

In fact, the current state of many areas of private law was the result of an evolution that followed revolutionary changes in the sphere of land ownership relations, which were characterized by the dismantling of the feudal organization of society. The system of free land ownership is one of the fundamental institutions of a market economy based on the competition of individuals, as opposed to a feudal-type economy in which it is not the market, but the social hierarchy that rules society.

If we move from sociology closer to the problems of legal technology, it should be noted that land law is undoubtedly the most complex area of ​​traditional property law due to a number of reasons of an economic nature, which we have combined into the category of factors external to the norm, rather than exceptions to the rule in real estate transactions.

Purpose of the work: research of the civil legal regime of real estate.

Tasks:

1. consider the essence of real estate;
2. consider the features of the right to real estate in Russia;
3. explore ways to acquire real estate.

Chapter 1. The essence of real estate

Of course, the concept of real estate in various legal systems includes, in addition to land, many other items (for example, buildings and other permanent real estate accessories are almost universally included in this category). It is important, therefore, to try to trace motives other than chance in historical development typologies (differing from one legal system to another), which determine the choice for certain objects of the same legal regime as for land, despite the fact that they are clearly different from the latter. Before proceeding to the corresponding analysis of the problem, let us briefly dwell on the earth itself.

Throughout the Western legal tradition, land is part of what can be owned as real property. Of course, as mentioned above, the common law concept of “real property” does not fully correspond to the concept of real estate. However, in the history of the common law, most of the land stock was protected by a real claim (hence real property), and even those few areas of England where land was not freely owned (and from the point of view of legal technology, copyhold could not be protected by real property) lawsuit), soon also fell under the legal regime of real property. If the action of a real claim was specifically aimed at restoring land property, then a personal claim only allowed for a claim for damages 1 .

The historical emergence and development of many legal norms is determined by relations regarding land. The earth is truly a psychological phenomenon that sanctifies the ideals of stillness, permanence and lack of risk. The earth absorbs the economic achievements of human evolution, and, with the exception of revolutionary situations that arise from time to time, this process of stratification of material values ​​in the long term cannot have a negative vector. Even taking into account the bitter and truthful remark of the great Lord Keynes (“In the end we all die”), the risk-averse investor will nevertheless strive to acquire land ownership, since even after death the choice he makes will work to increase the well-being of his offspring (do you catch the generic analogy with the African constitutional structure of property?).

As follows from the theory and practice of economic science, the actions of most subjects of market relations are guided by the desire to avoid risk. Hence the importance of land as an object of legal organization of society is obvious. In real life, the minimum necessary prerequisite for land to maintain its attractiveness as an object of safe investment is the presence of stable, albeit rudimentary, legal institutions. No human society can be considered organized if it is not able to guarantee the exclusive rights of an individual or group of individuals to certain economic goods derived from the land. Anyone who had the misfortune of investing their money in the purchase of housing in Mogadishu, Sarajevo or Beirut immediately before the outbreak of political unrest in those parts can tragically confirm the truth of the above.

The earth, in the long term, is subject to endless and gradual transformation. This is easily revealed by a careful study of land relations in cities and is no less true for land in rural areas. The rural landscape of modern England, for example, despite all its apparent naturalness, is nevertheless the product of continuous physical influence over generations. 2 .

Why is the legal regime of land everywhere strictly connected with the legal regime of those objects that have a stable connection with the land. In fact, communist (as well as colonial) regimes, excluding land from the circle of property relations, but at the same time allowing the existence property rights on buildings erected on land, thereby making a legal decision that contradicted intuitive logic and was dictated solely by considerations of a symbolic nature. The residual powers of the state over land are structurally necessary for societies with a modern organization and stem from the very need for a relatively stable political organization that would streamline the system of legal property relations. However, modern legal systems have come to the need to ensure that the exercise of such powers by the state does not come at the expense of such a critical institutional characteristic as guarantees of respect for property rights. Guarantees certainly do not mean sacred immunity. However, to attract investment and market development, security of property rights is important both in terms of land ownership and its permanent appurtenances, which can be seen as investments that constantly modify the land. Thus, there are no sufficient grounds for separating the legal regimes of both types of real estate.

The more land is transformed, the more complex it becomes as an object of law, and this increased complexity is reflected in the legal regime of income that can be received from the transformation of land. In fact, if in relation to agricultural land the only legal problem is the delimitation of land boundaries, then in the case of transferring a plot of land for the construction of a skyscraper, which will house a hotel, shopping malls and offices, the complexity of its legal regime increases incredibly. It may be necessary to resolve parking issues Vehicle, determining the start and end times of work of state and municipal institutions, shared financing of security services, heat supply and other services among various owner-users. For this reason, by the way, in the first decades of the 20th century. most Western legal systems have been forced to legislate– whether in the form of special laws or directly as direct amendments to codes– aimed at resolving the increased complexity of relations regarding real estate in connection with the widespread introduction of apartment buildings into the practice of housing construction.

If we want to express this idea using the conceptual apparatus of economic science, it turns out that with the complication of the conditions for using this type of resource, there is not only an increase in problems associated with the action of external factors: the picture also changes under the influence of massive investments and large savings. The external factor also begins to act when the connection of one or another type of activity with the land is purely random. It is enough to give as an example the economic and legal aspect of organizing a circus tent performance in the city. There are well-known differences between the latter and, say, a stadium. If we have in mind only a one-time investment of capital, it would be incorrect to consider the circus as a structure that constantly modifies the qualities of the earth. It is therefore not difficult to notice that the stadium really belongs to the category of real estate, since only the stratification of land use leads to a change in the economic value of the land.

Although modern technology and indeed could allow the Kremlin to be moved to Japan, the fact remains that the economic costs required to do so would be quite exceptional, due simply to the nature of the Kremlin as an object of constant transformation of the land in the center of Moscow. The same factor of exceptional costs does not apply to enterprises that are impressive in their spatial and mass characteristics, such as drilling a tunnel under the English Channel or building up a military group in South-West Asia before the start of Operation Desert Storm. What is important in this case is that it is inappropriate for the legal system to separate the legal regime of the Kremlin and Red Square, on which the Kremlin buildings are located 3 .

The German civil code fully reflects the results of these structural observations in the typology it adopted. For example, § 93, 94 and 95 of the State Civil Code are devoted to the definition of real estate. According to § 93, for example, parts of a thing that cannot be separated from it without violating the integrity of the thing itself (essential components) cannot be the subject of any rights other than those that apply to the thing itself. According to § 94, the essential components of the land are things that have a long-term and strong connection with it, in particular, buildings or fruits of the land, insofar as they are connected with the land (in our example– Kremlin or stadium). Finally, according to § 95, those things that are connected with the earth only temporarily (in our case– circus tent) cannot be considered components of the earth 4 .

Italian law is an example of such a typology, which, although little better than German law, creates serious problems of interpretation, since it does not reflect the economic realities of the transactions it is intended to regulate. The Italian Civil Code tried to do without the abstract concept of “essential components”, proposing instead a simple list of things classified as real estate. Thus, Italian law breaks with tradition and classifies both the Kremlin and the circus tent into the same category! The mentioned list continues in the second part of the article and also includes mills, baths, and all objects that are afloat, but are constantly connected to the shore. According to Italian law, the latter category of objects, while not immovable by nature, is immovable by its purpose and should therefore be subject to the legal regime of immovable property 5 .

The cited article of the Italian code is interesting in that it demonstrates how the abstract thinking of civil lawyers leads to the erection of abstractions even in those areas where there have been direct attempts to get rid of some of them. In fact, lawyers distinguish between property that is “immovable by nature,” such as land or buildings, and property that is “immovable by nature,” such as moored floating objects (and this question is often included in first-year law school exams). or a circus tent). Of course, classifying floating objects and a circus tent as real estate, despite the fact that the costs of separating them from the land are very insignificant, makes no sense from an economic point of view and raises questions about the purpose of such a typological division. In reality, this only serves to have the opportunity to “fail” a first-year student in the exam due to the loss of centralism in the demarcation of movable and immovable property that is justified from the point of view of common sense and economics.

Chapter 2. Right to real estate in Russia

Current Russian legislation allows for the possibility of land plots being owned by citizens who have received them for individual housing construction, for gardening or running personal subsidiary and dacha farming, for running a peasant (farm) farm. In addition, citizens who have acquired ownership of buildings, structures or other real estate in rural settlements and agricultural lands (for example, having acquired a house in a rural area by purchase or inheritance) have the right to acquire ownership of the land plots on which such objects are located. Legal acts on privatization allow citizens to acquire land plots under privatized enterprises, as well as other real estate objects in their ownership. It is also allowed to acquire ownership of land plots intended for development in urban and rural settlements. Citizens as private land owners have the right to exercise their powers freely, if this does not cause damage to the environment and does not violate the rights and legitimate interests of other persons (clause 3 of Article 209 of the Civil Code), for example, neighboring land users 6 .

Joint-stock and other business companies and partnerships as participants in the process of privatization of state and municipal property (buyers) may be the owners of the land plots on which the privatized objects are located. Private owners of land can also be agricultural production cooperatives created in the form of agricultural or fishing artels (collective farms) and which received the land plots of their members into their mutual fund, and non-profit organizations, including public associations and trade unions. Finally, any legal entities that have become the owners of buildings, structures or other real estate in rural settlements and agricultural lands have the right to acquire ownership of the land plots on which these real estate objects are located, as well as become the owners of land plots intended for development in urban and rural settlements 7 .

Due to the special social significance, the turnover of land plots is legally limited (clause 3 of Article 129 of the Civil Code) in the public interest, as well as the content of the rights of any land user or nature user, including owners. After all, the number and composition of such objects are objectively limited due to obvious natural reasons, and their use therefore always somehow affects the interests of society as a whole. Thus, the owner of a land plot must take into account environmental (ecological) requirements and prohibitions, the strictly intended purpose of these objects (for residential or industrial (industrial) development, for recreation, for agricultural production, etc.), legal requirements for their rational use . Failure to comply with these requirements should entail adverse consequences for the owner, up to and including confiscation of the land plot 8 .

The question of which lands and to what extent can be objects of private property is decided by land, and not civil legislation. It also determines the maximum size of land provided to a private owner. The fact that land legislation is referred by the Constitution to the joint jurisdiction of the Russian Federation and its constituent entities (clause “k” of Part 1 of Article 72) makes it possible to take into account all the necessary regional features. Exclusive federal competence in the field of civil legislation (clause “o” of Article 71), for its part, ensures the unity of the market and regulation of property turnover of land plots. At the same time, any transactions with them as real estate objects are subject to state registration (Article 131 of the Civil Code), which excludes uncontrolled circulation of land 9 .

In accordance with paragraph 2 of Article 214 of the Civil Code, land and other Natural resources, not owned by citizens, legal entities or municipalities, are state property. Thus, these natural objects cannot become ownerless, because a legal presumption (assumption) has been established that they are in state ownership. These types of property can be the object of private and even municipal property only to the extent that this is directly permitted by the state. The law specifically stipulates that publicly owned land and other natural resources may become the object of recovery by creditors of the relevant public legal entity only in cases expressly provided for by a special law. In its absence, such objects are essentially protected from recovery by creditors, which is intended to preserve public ownership of land 10 .

In general, the law includes land plots, subsoil plots and all things firmly connected with the land as real estate, i.e. inseparable from it without disproportionate damage to their economic purpose (residential buildings and other buildings and structures, perennial plantings and forests, isolated water bodies, etc.). The law may include other property that is essentially similar to immovable property. Thus, housing legislation classifies as real estate apartments and other residential premises in residential buildings and other buildings suitable for permanent and temporary residence.

Since such objects are inseparable from their location, and transactions with them can be made in another place, purchasers and other participants in the turnover need to know exactly the legal status of a particular object (for example, whether this house or land plot is pledged, whether anyone has - the right to use it, etc.), since this affects the price and other terms of transactions. You can find out all this from the results of special state registration of rights to real estate and transactions with it, which is provided for by law (Article 131 of the Civil Code) 11 .

Such registration is a legal act of recognition and confirmation by the state (public authority) of the emergence, limitation (encumbrance), transfer or termination of rights to real estate and serves as the only evidence of the existence of registered rights. These rights can only be challenged in court. Property rights, as well as lease and trust management and transactions with land plots, subsoil plots or isolated water bodies, forests and perennial plantings, buildings, structures, residential premises, enterprises and condominiums as property complexes. Registration is carried out by justice institutions for registration of rights to real estate in the Unified State Register and is certified by the issuance of a certificate of state registration of rights to real estate. The information contained in the Unified State Register of Real Estate Rights is open in nature and can be provided to any person regarding any property. Refusal of state registration can be appealed in court. Thus, as a general rule, immovable property includes things that are firmly connected to the land not only physically, but also legally, since their use for their intended purpose is impossible in the absence of any rights to the corresponding land plot.

State registration of rights to real estate that has civil legal significance should not be confused with cadastral and other technical accounting (inventory) of certain types of real estate that have fiscal or other public legal significance. Such registration or accounting is carried out along with the state registration of rights to real estate (clause 2 of Article 131 of the Civil Code), however, they do not have legal significance and do not affect the validity of completed transactions 12 .

State registration of real estate and transactions with them is the main feature of their legal regime. This feature is caused primarily by legal reasons, and not just by the natural properties of these objects of circulation. In this regard, the law extends the real estate regime to certain objects that are “movable” in the natural-physical sense, for example, to aircraft and sea vessels and space objects (they are subject to state registration in special registers in accordance with special rules).

The current civil law in most cases does not require a notarized form of real estate transactions along with their state registration, since this would unnecessarily complicate the procedure for their completion and lead to unjustified additional costs for participants. At the same time, in many situations it also provides for other features of the legal regime of real estate in comparison with movable things (for example, when foreclosure on mortgaged property, when determining the scope of powers of unitary enterprises over the property of the public owner assigned to them, etc.).

Things that, although of significant value, are not connected to land and are not recognized as real estate by law, do not belong to real estate (and, therefore, do not require registration of their legal status). For example, when selling a “house for demolition,” the object of the transaction is not actually the house, but the collection of building materials from which it consists and which in itself has no connection with the land. All this– movable things. As the law indicates, any things that are not classified as real estate are considered movable (clause 2 of Article 130 of the Civil Code).

Some types of real estate, for example, residential buildings and apartments, have a special legal regime determined by their strictly intended purpose. This approach of the law is due to the continuing shortage of housing and its special social significance. Residential premises are intended exclusively for the residence of citizens, and the exercise of the owner’s rights to own, use and dispose of such real estate objects must be carried out in accordance with the intended purpose of these things (Article 288 of the Civil Code). Thus, it is not allowed to rent out residential premises for various offices, offices, warehouses, place industrial, handicraft and other industries in them, as well as their sale or other alienation for these purposes without first transferring these premises to the category of non-residential, i.e. without changing their intended purpose (which, in turn, requires appropriate re-registration with the authorities responsible for registering this type of real estate). Citizen– The owner of a residential building, privatized apartment or other residential premises has the right to use them for personal residence and residence of members of his family, as well as to alienate these things and rent them out for temporary use to other persons only for similar purposes 13 .

By residential premises, housing legislation understands not only residential (including multi-apartment) houses and cottages (dachas) adapted for permanent residence, but also separate apartments and other residential premises (for example, separate isolated rooms in apartments) registered in this capacity in government agencies who carry out accounting of this kind of real estate (usually– territorial technical inventory bureaus– BTI), including office and departmental, as well as “specialized houses” and premises serving similar purposes– dormitories, shelter hotels, flexible houses (intended for the resettlement of citizens during major renovation houses), special homes for single elderly citizens, boarding homes for the disabled, veterans, etc.

The use of residential premises for other purposes, or the systematic violation by the owner of such premises of the rights and interests of neighbors, or the mismanagement of the owner’s housing may become the basis for a court to make a decision on the claim of a local government body to sell such residential premises at public auction, i.e. on the forced alienation of real estate belonging to the owner. The owner of the property must be previously warned by the local government about the need to eliminate the violations committed by him (including by establishing a proportionate, reasonable period for these purposes, including the necessary repairs of the destroyed premises). Only after this is he exposed to the risk of judicial seizure and forced sale of the property he owns (Article 293 of the Civil Code) 14 .

In addition, the law prohibits the owner of an apartment or other housing from alienating his share in the right to the common property of a residential building and performing other actions entailing the transfer of this share, separately from the right of ownership of housing (clause 2 of Article 290 of the Civil Code). In essence, this means that the corresponding share in the ownership of the specified common property always follows the fate of the ownership of housing, being inextricably linked with it.

The above also applies to residential buildings and other residential premises owned by legal entities, since in this case the strictly intended purpose of these objects and the resulting restrictions on their use are preserved (Article 288 of the Civil Code) 15 .

The law may establish state registration of transactions with certain types of movable things (clause 2 of Article 164 of the Civil Code), for example with some things limited in circulation. In this case, it has a legal-generating value and affects the validity of the relevant transactions (although it does not transform movable things into immovable things, since the latter must be recognized as such by law). It also should not be confused with the technical registration of certain movable things, for example, motor vehicles or small arms with the relevant internal affairs bodies. Such registration can only affect the exercise of civil rights (for example, prohibiting the operation of a car by an owner who is not registered in this capacity with the State Safety Inspectorate traffic), but not on their occurrence, change or termination (in particular, on the right of ownership of a car) 16 .

A special type of real estate are complexes of interconnected immovable and movable things used for a general purpose as a single whole. These include businesses and condominiums.

The term “enterprise” is used in our legislation to designate certain types of legal entities– subjects of civil law. However, in normal property circulation, “enterprises” are objects and not subjects of law. An enterprise as an object of civil circulation is not just a thing or a set of things, but an entire property complex, which includes, along with real estate (land plots, buildings, structures) and movable property (equipment, inventory, raw materials, finished products), obligatory rights of claim and use and debts (obligations), as well as some exclusive rights (to the company name, trademark etc.) (Article 132 of the Civil Code). In developed legal systems, enterprises also include the “clientella” ( goodwill ), i.e. stable economic ties with consumers of their products or services, which are very important in a competitive market economy. Therefore, a going concern (a business "on the go") is often worth more than the simple total "book" value of its cash assets or net assets 17 .

Of course, the subject of the corresponding rights and obligations is a legal entity (or other owner), and not property. Therefore, the law means by enterprise as an object, first of all, the property of unitary enterprises. However, both a part of an enterprise (for example, the property of a workshop) and a production unit that does not have civil legal personality (for example, a store, cafe, hotel, studio and other “enterprise” in the service sector) can become an object of civil circulation. In cases of sale, lease, pledge or other transactions with such property complexes, their owner (which, in particular, may be a business company or partnership or individual entrepreneur), in accordance with the terms of the agreement, transfers to the acquirer or other counterparty not only the real estate included in them and movable things, but also their rights, obligations and even “clientella” related to them (Articles 559 and 656 of the Civil Code) 18 .

Another type of property complex under Russian law is a condominium. Housing legislation recognizes a condominium as a complex of real estate, including a land plot and a residential building located on it, in which individual residential premises are in the private (or public) ownership of specific owners, and the remaining parts– in their common shared ownership. This situation usually arises during the privatization of housing in apartment buildings, when private owners of individual apartments must jointly operate the staircases and stairs, elevators, roofs and basements, electrical, plumbing and other equipment that serve the residential building as a whole, which are in their common ownership, as well as local area (land plot). A special feature of the legal regime of a condominium is the impossibility for the owner of a residential premises to alienate his share in the common property of the condominium separately from the right of ownership to the residential premises located in it, as well as vice versa.

Chapter 3. Methods of acquiring real estate

A person who has carried out the unauthorized construction of a property, as a general rule, does not acquire ownership of it, and this building itself does not become real estate, because it is not subject to state registration due to violations committed during its creation. We can only talk here about a set of building materials that their owner has the right to take away by demolishing such a building at his own expense (clause 2 of Article 222 of the Civil Code). The construction of a real estate property is considered unauthorized in the presence of any of the following violations: violation of the order of land allotment or its intended purpose; lack of necessary construction permits (at least one of them); significant violation of building codes and regulations (clause 1 of Article 222 of the Civil Code) 19 .

Rules on the consequences of unauthorized construction were previously widely used when developers violated not always justified restrictions on the size and nature of the buildings being built, which were established by previously existing legislation. However, the elimination of such restrictions did not at all lead to the possibility of constructing any objects at the discretion of their customers or developers. There is an obvious need to maintain the restrictions provided for in construction, environmental protection, land and other areas of administrative legislation established in the public interest.

Only as an exception is it possible to recognize the ownership of an unauthorized construction by the developer or by the owner or other title holder of the land plot on which such construction was carried out. The developer can become the owner of an unauthorized building as a real estate property if this does not violate the legitimate interests of other persons (for example, neighboring land users) and does not create a threat to the life and health of citizens (which is confirmed by the presence of the necessary permits from the fire department, sanitary inspection, architectural or construction control, etc.), and the person who carried out such construction duly registered the right to the corresponding land plot (clause 3 of Article 222 of the Civil Code). If the above conditions are met, the court may recognize the ownership of this building as belonging to the owner or other legal owner of the land plot on which it is built. In the latter case, the new owner is obliged to compensate the developer for the necessary construction costs 20 .

The law specifically covers the concept of “transfer” (Article 224 of the Civil Code). It recognizes not only the actual delivery of the thing to the acquirer or its delivery to the carrier, or the organization of communication for sending to the acquirer, but also the actual receipt of property into the possession of the acquirer or the person indicated by him (for example, delivery to his warehouse), as well as the transfer to him of a document of title to the thing . The actual possession of the thing by the acquirer at the time of concluding an agreement on its alienation (for example, when purchasing leased property) is equivalent to its transfer. In other words, in such a situation, the conclusion of an agreement on the alienation of a thing is recognized by law and its simultaneous actual transfer.

A special way of transferring property from public to private ownership is privatization, which is associated with the alienation of a large number of objects that were publicly owned due to the peculiarities of the organization of the previous, state-owned economy. It is a temporary, transitional measure to create the material base for the development of a market economy and the corresponding normal, rather than curtailed, property turnover. This, in particular, explains the absence of special rules on privatization in the Civil Code and in other general acts of civil legislation.

It should be borne in mind that transactions concluded during privatization for the acquisition of privatized property into private ownership are civil contracts (most often– purchase and sale agreements, and the acquisition of “uncertificated shares”– agreement on the assignment of rights of claim) and are subject to the general rules of civil law. The decision to privatize a specific object (real estate) should be considered as one of the forms of the public owner exercising his authority to dispose of his property. The procedure for exercising this power is established by special regulations about privatization.

In accordance with Article 217 of the Civil Code, the privatization procedure must be established by special laws, and general rules on the acquisition and termination of property rights are applied here only to the extent that the relevant relations are not regulated by these laws. The procedure for privatization determines only the procedure (methods) of privatization, but not its objects. The latter are established by the relevant public owners, guided by their interests and regulations. 21 .

The specificity of privatization is manifested in the peculiarities of the subject composition of the legal relations emerging here, their objects and content. Only the public owner, represented by the committee for managing the relevant (federal, other state, municipal) property, which makes a decision on the privatization of a specific object, and the fund of the corresponding property, which acts as a seller in civil law, can act as a seller (alienator) of privatized property. legal transaction for the alienation (sale) of specific property. Only citizens (including individual entrepreneurs, including farmers, or peasants); joint-stock and other business companies, in the authorized capital of which there is a share of participation of public legal entities (as well as public organizations and funds) does not exceed 25% (production cooperatives were expressly excluded from their number); foreign investors (which include both individuals and legal entities specified in Article 37 of the Law on Foreign Investments).

The objects of privatization can be, firstly, enterprises and other property complexes; secondly, buildings, structures, non-residential premises, unfinished construction projects; thirdly, land plots; fourthly, living quarters; fifthly, shares are open joint stock companies. Thus, we are talking about the alienation of publicly owned real estate or these shares. Movable property passes from public to private ownership as a result of ordinary purchase and sale transactions (for example, the supply of products of state and municipal unitary enterprises) or other civil law transactions for alienation, and not through privatization.

Privatization is carried out exclusively by the methods provided for by law. These include:

during the privatization of enterprises and other property complexes– 1) transformation of large state and municipal enterprises into open joint-stock companies with the subsequent sale of their shares, 2) sale by competition or auction of small property complexes or individual real estate objects, 3) repurchase of leased property; 4) making public property as a contribution to the authorized capital of business companies;

during the privatization of residential premises– their free transfer into the ownership of the citizens living in them;

during land privatization– paid or gratuitous transfer into the ownership of citizens or legal entities of land plots of the established size;

when privatizing shares of open joint stock companies– sale at specialized auctions or to employees of privatized enterprises, as well as sale of special securities certifying the right to purchase these shares (such as “option certificates”) 22 .

Thus, privatization can be defined as the alienation (transfer) of real estate, as well as shares from state or municipal property into private ownership of citizens or certain legal entities in the manner established by special legislation.

A type of privatization is the “commercialization” of state and municipal enterprises. It usually means the separation of the property of their structural divisions from the composition of such enterprises or their associations as a basis for the formation of new legal entities– independent business companies, including those created by employees of these divisions. Commercialization, i.e. creation of commercial organizations– business entities based on the property of trades, trusts, factories and other management structures considered “state enterprises”, was most widely used in the field of trade and consumer services even before the adoption of special legislation on privatization. It has become the main form of “small privatization”, i.e. privatization of small and some medium-sized enterprises.

We can talk about absolute (real-legal) protection not only of property rights and other real rights, but also of any legal (title) possession. Property protection of title owners, including subjects of obligations, and not just property rights to someone else’s property, constitutes the concept of possessory protection. The institution of possessory protection, necessary for developed civil circulation, in certain cases also protects bona fide (non-title, i.e. illegal) possession. Moreover, actual bona fide possession can become the basis for acquiring ownership rights by prescription of possession of someone else's (ownerless) property, including real estate. Moreover, before acquiring ownership of such property, the actual owner of the thing has the right to defend his possession by filing proprietary claims against any third parties encroaching on his possession (except for title owners who have the right to the thing by virtue of law or contract).

conclusion

So, we have looked at the structure of real estate. In general, the legal registration of land relations has become one of the most pressing problems of modern economic life in Russia. Land legal norms establish restrictions related to the maximum size of privately owned plots of land, ensuring their strictly intended purpose and the most rational use, determining the category of land and their accounting, and also provide for the consequences of their violation.

Possessory protection is thus aimed at maintaining the stability of property turnover and eliminating possible uncertainty in the legal regime of movable and immovable property. Its purpose is to protect the right of ownership as a power that is absolute in its legal nature (part of both real and obligatory rights). Therefore, it always has individually defined things as its object and is absolute in nature. Because of this, it cannot be used to protect obligatory (relative) rights, especially rights of claim (for example, to acquire the right to a bank deposit or to “book-entry securities”), as well as rights of use, the implementation of which does not require ownership of specific things. Therefore, possessory protection, even concerning ownership rights acquired under a contract, is nevertheless an institution of property law, not liability law, and the claims that constitute it are classified as property rights.

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   1. Civil law. Part 1. / Ed. A.P. Sergeeva. M.: Prospekt, 2015. 616 p.
      1. Civil law. / Ed. S.P. Grishaeva. M.: Yurist, 2015. 484 p.
         1. Ikonitskaya I.A. Land ownership in the Russian Federation. M.: Nauka, 2014. 226 p.
         2. Kazantsev V., Korshunov N. Revival of easement law in Russia. // Russian justice. 2015. No. 5. P.40-47.
         3. Kopylov A.V. Property rights to land M.: Statute, 2015. 256 p.
         4. Mattei U., Sukhanov E.A. Basic provisions of property rights. M.: Jurist, 2014. 384 p.
         5. Sklovsky K.I. Property in civil law. M.: Delo, 2014. 512 p.
         6. Sukhanov E.A. Ownership and other property rights. M.: Delo, 2015. 348 p.
         7. Shchennikova L.V. Property rights in Russian civil law. M.: BEK, 2014. 200 p.

1 Sukhanov E.A. Ownership and other property rights. M., 2015. P.126.

2 Kazantsev V., Korshunov N. Revival of easement law in Russia. // Russian justice. 2015. No.5. P.43.

4 Sukhanov E.A. Op. op. P.152.

5 Mattei U., Sukhanov E.A. Basic provisions of property rights. M., 2014. P.130.

7 Civil law. Part 1. / Ed. A.G. Kolpina. M., 2015. P.231.

9 Mattei U., Sukhanov E.A. Op. op. P.338.

10 Civil rights. / Ed. S.P. Grishaeva. M., 2015. P.60.

11 Sklovsky K.I. Property in civil law. M., 2014. P.162.

12 Civil law. Part 1. / Ed. A.P. Sergeeva. M., 2015. P.258.

13 Kopylov A.V. Property rights to land. M., 2015. P.71.

15 Ibid.

16 Mattei U., Sukhanov E.A. Op. op. P.343.

18 Mattei U., Sukhanov E.A. Op. op. P.344.

19 Shchennikova L.V. Property rights in Russian civil law. M., 2014. P.22.

20 Shchennikov L.V. Op. op. P.24.

21 Ikonnitskaya I.A. Land ownership in the Russian Federation. M., 2014. P.76.

22 Kopylov A.V. Op. op. P.84.

Legal aspects

In accordance with paragraph 1, paragraph 1, article 130 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), real estate is objects firmly connected to the land. It is impossible to move such objects without causing them disproportionate damage. This category of property includes land plots and subsoil plots, forests and perennial plantings, buildings and structures, non-residential and residential premises, unfinished construction projects, etc.

For example, a hangar belongs to real estate if it is a permanent structure or part of it (non-permanent buildings, such as panel houses, prefabricated frame structures, do not meet the criteria of real estate). But household premises on wheels or railway cars have no connection with the ground and can be easily moved without compromising their purpose.

There are exceptions to this rule. The Civil Code classifies the following as real estate:

Aircraft and ships;
- inland navigation vessels;
- space objects;
- enterprises, as property complexes in general.

When accounting for real estate, it is worth remembering that the rights to these objects and transactions with them are subject to mandatory state registration. What is the difference between the concepts of registration of rights and registration of transactions?

Registration of rights and transactions

Real estate often becomes the object of a wide variety of actions carried out by citizens and legal entities in order to establish, change or terminate civil rights and obligations. Such actions are called transactions. Transactions, in particular, include all civil contracts: purchase and sale, lease, rent, barter, donation, etc.

Rights arising on the basis of a real estate transaction are subject to state registration in cases and in the manner provided for by the legislation of the Russian Federation. According to clause 1 of Article 131 of the Civil Code of the Russian Federation, the following real rights (including their limitation, transfer and termination) are subject to registration in the Unified State Register of Rights to Real Estate (USRE):

Ownership;
- right of economic management;
- right of operational management;
- right of lifelong inheritable ownership;
- right of permanent use;
- mortgage;
- easements, etc.

Legislation may require registration of the transaction itself. Currently, this requirement remains in relation to contracts:

• rental of real estate - clause 2 of Article 609 of the Civil Code of the Russian Federation;
• rental of a building, structure (for a period of at least 1 year) - clause 2 of Article 651 of the Civil Code of the Russian Federation;
• lease of an enterprise - clause 3 of article 658 of the Civil Code of the Russian Federation;
• lease of a land plot (for a period of at least 1 year) - clause 2 of Article 26 of the Land Code of the Russian Federation;
• on mortgage - paragraph 1, clause 1, article 10 Federal Law dated July 16, 1998 No. 102-FZ “On mortgage (real estate pledge)”;
• participation in shared construction - clause 3 of Article 4 of the Federal Law of December 30, 2004 No. 214-FZ “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation.”

Based on the Federal Law of December 30, 2012 No. 302-FZ “On Amendments to Chapters 1, 2, 3 and 4 of Part One of the Civil Code of the Russian Federation,” from March 1, 2013, the rule on registration of real estate transactions does not apply to contracts:

• purchase and sale of a residential building, apartment (parts of a residential building, apartment) - clause 2 of Article 558 of the Civil Code of the Russian Federation;
• purchase and sale of an enterprise - clause 3 of Article 560 of the Civil Code of the Russian Federation;
• donation of real estate - clause 3 of article 574 of the Civil Code of the Russian Federation;
• alienation of real estate for payment of rent - Article 584 of the Civil Code of the Russian Federation;

The procedure for state registration is established by Federal Law No. 122-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with it” (hereinafter referred to as Law No. 122-FZ). For committing registration actions a state duty is charged, the amount of which is determined in accordance with clause 1 of Article 333.33 of the Tax Code of the Russian Federation. For example, the fee for registering rights to real estate for legal entities in 2015 is 22,000 rubles. (Clause 22, Clause 1, Article 333.33 of the Tax Code of the Russian Federation). Moreover, payment is made by the organization - the buyer, unless otherwise provided by the contract. According to clause 1 of Article 14 of Law No. 122-FZ, the state registration of rights is documented at the choice of the copyright holder:

Certificate of state registration of rights;
- an extract from the Unified State Register of Rights.

A registered transaction (agreement) is certified by a special registration inscription on the document, which expresses the content of the transaction.

Cadastral registration

Real estate is also subject to cadastral registration on the basis of Federal Law No. 221-FZ of July 24, 2007 “On the State Real Estate Cadastre” (hereinafter referred to as Law No. 221-FZ). Its list includes:

• land;
• building;
• structures;
• premises;
• objects of unfinished construction.

The provisions of Law No. 221-FZ do not apply to the following objects:

• subsoil areas;
• aircraft;
• sea ​​vessels;
• inland navigation vessels;
• space objects;
• enterprises as property complexes.

Russian legislation does not establish a direct obligation to register real estate in the cadastral register. However, in order to make any transaction (purchase, sale, lease) with real estate, you need to have ownership of the object, which must be officially registered. In turn, in order to obtain a certificate of state registration of ownership of real estate, you must first register the object in the state real estate cadastre (GNK). Thus, cadastral registration is a prerequisite for the participation of real estate in civil circulation. Cadastral registration rules apply to:

• land plots - from 01/01/2008;
• buildings, structures, premises, unfinished construction projects - from 01/01/2013

What is cadastral registration? This is a procedure for entering information about real estate into the state real estate cadastre (GKN) - a register of information about registered real estate on the territory of the Russian Federation. Cadastral registration has a number of main goals:

1. confirmation of the existence of an object;
2. confirmation of the termination of the existence of an object or information about it;
3. individualization of an object among other similar objects;
4. determination of the cadastral value of the object.

In accordance with Government Decree No. 457 dated June 1, 2009, the state real estate cadastre (GKN) is engaged in registering real estate and maintaining the state real estate cadastre. federal Service state registration, cadastre and cartography (Rosreestr). In the constituent entities of the Russian Federation, these functions are performed by the authorized body of Rosreestr - the cadastral chamber. You can also contact the multifunctional center (MFC) operating in the region.

Each property is assigned a state registration number (or cadastral number). It is unique and permanent.

There is no state fee for registering real estate in the cadastral register.

Contract of sale

The acquisition of real estate is carried out under a purchase and sale agreement. Relations between the parties arising on the basis of this agreement, regulated general provisions paragraph 1 of Chapter 30 of the Civil Code of the Russian Federation, as well as special rules of paragraph 7 “Sale of real estate” (Articles 549 - 558) and paragraph 8 “Sale of an enterprise” (Article 559 - 566) of Chapter 30 of the Civil Code of the Russian Federation.

According to Article 549 of the Civil Code of the Russian Federation, under a real estate purchase and sale agreement, the seller must transfer ownership of real estate to the buyer: land, building, structure, etc. The buyer, in turn, must accept this real estate, paying a certain amount of money (Article 454 Civil Code of the Russian Federation).

A contract for the purchase and sale of real estate is not subject to state registration and is considered concluded from the moment it is signed by both parties (clause 1 of Article 433 of the Civil Code of the Russian Federation).

The immovable property is transferred by the seller and accepted by the buyer under a signed transfer deed or other transfer document (Article 556 of the Civil Code of the Russian Federation). After this, the contract is considered fulfilled. However, the buyer will be able to dispose of the property received into possession only when he becomes its full owner, i.e. after state registration of the transfer of ownership in the Unified State Register. The seller also does not have the right to dispose of the real estate after its transfer and until the state registration of the transfer of ownership, since he is no longer its legal owner, and therefore does not have the opportunity to exercise his rights as the owner in relation to this property.

Big deal

Another important point that you need to know and remember when buying expensive real estate. If the value of the acquired property is:

• for an LLC - 25% or more of the value of the company’s property, unless the charter of the LLC establishes a higher percentage threshold for a major transaction (Clause 1, Article 46 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies” );
• for JSC - 25% or more of the book value of the company’s assets (paragraph 1, clause 1, article 78 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”);

then the transaction is considered major. Under these circumstances, the decision to enter into a major transaction must be made:

in LLC:

• general meeting of participants;
• board of directors - supervisory board, when the value of real estate is in the range from 25% to 50% of the value of the LLC’s property (if decision-making is within the competence of the board of directors);

in JSC:

• by the general meeting of shareholders, when the value of real estate is higher than 50% of the book value of the assets of the joint-stock company (the decision is made by ¾ votes);
• by the board of directors - by the supervisory board unanimously, when the value of real estate is from 25% to 50% of the book value of the assets of the joint-stock company.

Violations of legal requirements in relation to a major transaction may result in its invalidity.

Accounting

Actual costs for the acquisition of real estate subject to state registration are accumulated in “Investments in non-current assets”:

• subaccount 08-1 “Purchase of land”;
• subaccount 08-2 “Purchase of environmental management facilities.”
• subaccount 08-4 “Purchase of fixed assets”.

Debit 08-4 (08-1, 08-2) - Credit 60
- reflects the costs of purchasing real estate subject to state registration.

Debit 08-4 (08-1, 08-2) - Credit 60, 70, 69, 71, 76, …
- additional costs associated with the acquisition of real estate subject to state registration (information and consulting services, intermediary services, etc.) are reflected.

In order to register an object on, you do not need to wait for the submission of documents for state registration of ownership of this property. An organization has the right to transfer an asset to fixed assets if its initial cost has been formed (taking into account the conditions of clause 4 of PBU 6/01). This is indicated by paragraph 52 of the Guidelines for accounting of fixed assets, approved by Order of the Ministry of Finance of the Russian Federation dated October 13, 2003 No. 91n (hereinafter referred to as Guidelines for accounting of fixed assets No. 91n) as amended by Order of the Ministry of Finance dated December 24, 2010 No. 186n ( effective from January 1, 2011).

Reference. According to the previous edition of clause 52 of the Methodological Guidelines for Accounting for Fixed Assets No. 91n, a real estate object was accounted for as a fixed asset if (1) its initial cost was formed; (2) the primary documents for acceptance and transfer have been completed; (3) the facility was actually in use; (4) documents were submitted for state registration.

Norm clause 52 of the Methodological Guidelines for Accounting for Fixed Assets No. 91n also clarifies that real estate objects that are not registered in the generally established manner are accounted for in a separate subaccount of account 01 (03). At the same time, entries are made in accounting.

Debit 01 (03), subaccount “Immovable objects that have not passed state registration” - Credit 08-4 (08-1, 08-2)
- real estate that has not passed state registration is taken into account in a separate subaccount of the fixed assets accounting account.

After registration of ownership rights, the immovable object is transferred to fixed assets, the rights to which are registered:

Debit 01 (03), subaccount “Immovable objects that have passed state registration” - Credit 01 (03), subaccount “Immovable objects that have not passed state registration”
- real estate was transferred to fixed assets (income investments in material values), which have passed state registration.

Accounting for state duties

How?

In accounting, the costs of state registration of the transfer of ownership of a real estate property must be included in its initial cost. The basis for this is clause 8 of PBU 6/01. Usually, problems with taking into account the costs of paying state fees and other expenses do not arise when they are incurred during the formation process initial cost asset. In this case, the organization will reflect them in accounting as follows.

Debit 68 - Credit 51

Debit 08-4 (08-1, 08-2) - Credit 68
- the state fee for registering rights to real estate is taken into account in the initial cost of the fixed asset.

Debit 08-4 (08-1, 08-2) - Credit 60.76
- other costs associated with registering rights to real estate are taken into account in the initial cost of the fixed asset (paperwork, notary services, etc.).

However, the state duty is taken into account differently in a situation where the object is already included in fixed assets. The fact is that clause 14 of PBU 6/01 contains a closed list of grounds for changing the initial cost of a fixed asset:

Completion;
- retrofitting;
- reconstruction;
- modernization;
- partial liquidation;
- revaluation.

Therefore, state registration costs incurred after an independent inventory item has been formed cannot increase its cost. Such expenses must be taken into account as other expenses on account 91 “Other income and expenses”, subaccount 2 “Other expenses”.

Debit 68 - Credit 51
- funds were transferred from the current account to pay the state fee for registering rights to real estate.

Debit 91-2 - Credit 68
- the costs of paying the state fee for registering rights to real estate, incurred after the object was accepted for accounting as a fixed asset, are taken into account.

Debit 91-2 - Credit 60.76
- other expenses for state registration of rights to real estate incurred after the object was accepted for accounting as a fixed asset (paperwork, notary services, etc.) are taken into account.

When?

Expenses for state registration of rights to real estate are recognized in accounting when three conditions of clause 16 of PBU 10/99 are met:

1. the expense is carried out in accordance with the terms of the contract (legal requirements, business custom);
2. the amount of expenditure can be determined;
3. there is confidence that when performing a specific transaction there will be a decrease in the economic benefits of the organization.

Moreover, each fact of economic life must be documented in a primary document (Part 1, Article 9 of Federal Law No. 402-FZ dated December 6, 2011 “On Accounting” (hereinafter referred to as Law No. 402-FZ)).

For example, state duty:

1. charged as required by law;
2. its size is determined by the norms of the Tax Code;
3. As a result of paying a fee, the economic benefits of the organization are reduced (?).

Particular attention should be paid to this last condition. Is the moment of payment the date when the expense should be accrued?

Based on clause 5.2, clause 1, Article 333.18 of the Tax Code of the Russian Federation, the state fee for registering rights to real estate is transferred to the Federal budget:

• before submitting an application for registration;
• after submitting an application for registration, but before its consideration, if the application is submitted electronically.

By paying the state fee, the organization can refuse to perform legally significant actions. Then, according to paragraph 4, paragraph 1, Article 333.40 of the Tax Code of the Russian Federation, funds must be returned. Consequently, the transfer of duties to the budget is not a sufficient basis for recognizing an expense in accounting. The date for accrual should be considered the day of submission of documents for registration. It is then that the third necessary condition is met: a decrease in economic benefits. Once registration actions have begun, the organization can no longer refuse to complete them and demand a refund of the paid fee. The fact of receipt of documents for state registration is confirmed by a receipt that the registration authority issues to the applicant (Clause 6, Article 16 of Law No. 122-FZ).

VAT accounting procedure

The amount of “input” VAT presented by the seller to the buyer of real estate is accepted for deduction after the fixed asset is accepted for registration, subject to tax legislation (Article 171, Article 172).

According to paragraph 17, paragraph 2, Article 149 of the Tax Code of the Russian Federation, state duty and other types of duties and fees are not subject to VAT.

Tables 1 - Accounting entries for accounting for the acquisition of fixed assets subject to state registration

Example 1.

In mid-May, My Food LLC acquired premises for a food warehouse under a purchase and sale agreement for RUB 4,720,000, including VAT (18%) - RUB 720,000. Since the object is fully suitable for its intended use, the organization transferred it to fixed assets and put it into operation.

Documents for registration of rights to real estate were submitted to the registration authority in early June. The state duty for a legal entity was 22,000 rubles. In July, ownership of the premises was registered.

Reference data:

1. The company applies the general taxation system (OSNO).
2. in accordance with the working chart of accounts approved in accounting policy LLC "My Food" for accounting purposes, immovable fixed assets are accounted for in the following subaccounts.

Working chart of accounts of My Food LLC

Solution.

The following entries will be made in accounting.

In accordance with clause 21 of PBU 6/01, the organization will begin to depreciate the warehouse space in July.

End of example

Income tax

For profit tax purposes, real estate acquired by an organization for the purpose of operating economic activity, are taken into account as part of depreciable property, provided they meet the criteria paragraph 1, clause 1, article 256 of the Tax Code of the Russian Federation .

Fixed assets are accepted for tax accounting at their original cost, which is determined in the manner established by clause 1 of Article 257 of the Tax Code of the Russian Federation. This cost is subsequently expensed through depreciation. According to clause 4 of Article 259 of the Tax Code of the Russian Federation for objects of depreciable property, the rights to which are subject to state registration, depreciation is accrued in the generally established manner, as for any other fixed assets: from the 1st day of the month following the month the object was put into operation. In this case, the organization does not need to wait for the date of state registration of ownership of real estate or document the fact of submitting documents to the registration authority.

Reference. The rules of paragraph 4 of Article 259 do not apply to fixed assets that the organization began using before 2013. The previously valid norm of paragraph 11 of Art. 258 of the Tax Code of the Russian Federation did not give organizations the opportunity to depreciate objects subject to state registration before the deadline for documented submission of documents for registration of property rights. From January 1, 2013, this norm ceased to apply due to the entry into force of Federal Law No. 206-FZ of November 29, 2012.

But not all real estate is subject to depreciation. According to clause 2 of Article 256 of the Tax Code of the Russian Federation, the exception is land plots and other natural resources (subsoil, water, etc.), unfinished capital construction projects, etc. Some fixed assets are completely excluded from depreciable property (clause 3 of Art. .256 Tax Code of the Russian Federation).

Depreciation bonus

Based on clause 9 of Article 258 of the Tax Code of the Russian Federation, an organization has the right to reduce the initial cost of a fixed asset by a depreciation bonus, the amount of which may be:

• no more than 10% of the original cost of an object belonging to depreciation groups 1, 2, 8-10;
• no more than 30% of the original cost of an object belonging to 3-7 depreciation groups.

The decision to use bonus depreciation and its amount must be fixed in the accounting policy for tax purposes.

The depreciation bonus is taken into account as part of the indirect expenses of the reporting (tax) period in which the fixed asset begins to depreciate (paragraph 2, paragraph 3, article 272 of the Tax Code of the Russian Federation). Taking into account the provisions of clause 4 of Article 259 of the Tax Code of the Russian Federation, write-off occurs in the month following the month the real estate was put into operation. In this case, the object itself, after commissioning, is accepted into the depreciation group at its original cost minus the premium amount.

If the fixed asset in respect of which the depreciation bonus was applied was sold within 5 years from the date of its commissioning to a related party, then the bonus is subject to restoration in the reporting (tax) period of the sale transaction (paragraph 3 p. 9, Article 258 of the Tax Code of the Russian Federation).

Reference. Until January 1, 2013, the norm of paragraph 3, clause 9, article 258 of the Tax Code of the Russian Federation did not contain an indication of the specific category of persons to whom the property was sold.

Another important point. The depreciation bonus applies only to depreciable fixed assets, i.e., to those objects that are subject to depreciation in tax accounting. Thus, part of the cost of a land plot cannot be written off as expenses in the form of a depreciation bonus, since in accordance with clause 2 of Article 256 of the Tax Code of the Russian Federation, land is not depreciated.

Accounting legislation does not provide for bonus depreciation. Therefore, its use for tax purposes will necessarily lead to differences between the amounts of depreciation accrued in accounting and tax accounting.

Purchase of a building and land plot underneath it

When purchasing real estate, an organization may encounter some difficulties in determining its initial cost. For example, in practice, a situation may arise when the contract for the purchase of a building (structure, structure, etc.) and the land plot under it indicates a single price. The norm of clause 2 of Article 555 of the Civil Code of the Russian Federation specifies that in such cases the established price of a building or other real estate includes the price of the land plot on which the object is located (unless otherwise provided by law or contract). In addition, the law does not oblige the parties to a transaction when buying and selling several real estate properties to indicate the price separately for each of them.

However, it will not be possible to accept the building and the land plot for registration as a single one. This conclusion follows from paragraph 2 of clause 6 of PBU 6/01, its legitimacy is confirmed by the Ministry of Finance of Russia in letter dated May 19, 2003 No. 04-02-05/3/50. The fact is that a building has a limited useful life, and for land it is not established at all. (In addition, in accordance with paragraph 1, paragraph 4, Article 374 of the Tax Code of the Russian Federation, a land plot is not subject to property tax. If the value of the land is not allocated, then the inspectors will most likely require that the contract amount be taken into account in full when calculating tax base.) This means that these immovable objects must be taken into account separately. This raises the question, what part of the cost should be attributed to the building, and what part to the land plot?

The current legislation does not give a clear answer to the question posed, there are practically no official explanations from officials, and judicial practice has not yet developed. There are several ways to solve the problem:

1. conclude an additional agreement to the purchase and sale agreement, which indicates the cost of each real estate item. Although this solution is the most acceptable, it is not always possible;
2. expertly: using independent assessment data, proportionally divide the total cost between real estate objects. But it is worth noting that the use of this method does not exclude the possibility of disputes with tax authorities;
3. distribute the costs of acquiring several real estate properties on the basis of a base chosen and justified by the organization (for example, in proportion to the cadastral value of the building and land plot). This opinion was expressed by representatives of the Russian Ministry of Finance in a letter dated June 28, 2013 No. 03-05-05-01/24812. Moreover, the option of calculating the cost of the building by subtracting the estimated value of the land from the total amount, proposed by the author of the letter, did not find support from the financial department.

An organization must remember that when choosing one or another procedure for dividing the total cost between several real estate objects, it takes a certain risk. What is it connected with? The norm of clause 7 of PBU 1/2008 allows you to develop accounting methods if they are not established by law. But in tax code does not provide such an opportunity, since tax rules must be the same and understandable for all taxpayers. Therefore, any developed method of tax accounting that is not enshrined in law may cause claims from inspectors.

Additional costs incurred when purchasing fixed assets that require registration of rights are distributed among the objects in the appropriate proportion.

Tax accounting of state duty

How?

Also, as in accounting, the procedure for tax accounting of expenses associated with state registration of rights to real estate depends on the moment of their occurrence:

1. before putting the facility into operation;
2. after the facility is put into operation.

In the first case, expenses must be taken into account when determining the initial cost of a fixed asset. This point of view is shared by the Ministry of Finance of Russia (letters: dated 03/04/2010 No. 03-03-06/1/113, dated 05/19/2009 No. 03-05-05-01/26, dated 05/18/2009 No. 03-05-05-01/26, dated 03/27/2009 No. 03-03-06/1/195, etc.). He substantiates his position by the norm of clause 1 of Article 257 of the Tax Code of the Russian Federation. According to this rule, when purchasing a real estate property, its initial cost consists of the costs of acquisition, delivery and bringing it to a usable condition. At the same time, only VAT and excise taxes are not included in the amount, and state duty is not included in this list.

In the second case, expenses are written off at a time as other expenses associated with production and sales (clause 40, clause 1, article 264 of the Tax Code of the Russian Federation). The argument in favor of this accounting procedure is that when a fixed asset object is put into operation, its initial value has already been formed and is not subject to change, with the exception of the grounds listed in paragraph 1 of paragraph 2 of Article 257 of the Tax Code of the Russian Federation, namely:

• completions;
• retrofitting;
• reconstruction;
• modernization;
• technical re-equipment;
• partial liquidation;
• other similar grounds.

Registration of rights to real estate is not one of these grounds. Consequently, in the situation under consideration, state duty costs cannot increase the initial cost of the fixed asset. The validity of these conclusions is confirmed by the Ministry of Finance of Russia in its letter dated 02/11/2011 No. 03-03-06/1/89.

In addition to the above-described procedure for accounting for the costs of state registration of rights to real estate, there is an alternative approach. According to it, the state duty should be included in other expenses, regardless of when it was accrued: before or after the commissioning of the fixed asset. The arguments given here are as follows:

The state fee is charged for registering the transfer of ownership of an already acquired object;
- the fact of payment of the state duty does not affect the suitability of the object for use.

This means that the state duty is an independent type of expense that is not associated with the acquisition, delivery and bringing of the fixed asset to a suitable operational condition.

In addition, in accordance with Article 13 of the Tax Code of the Russian Federation, state duty refers to federal fees. Therefore, on the basis of paragraph 1 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation, the organization has the right to take such costs into account as part of other expenses.

Previously, this position was supported by the Ministry of Finance of Russia (letters: dated October 19, 2007, No. 03-03-06/1/725, dated February 16, 2006, No. 03-03-04/1/116, dated March 2, 2006. No. 03-03-04/1/165, dated March 30, 2005 No. 03-03-01-04/1/137). However, later explanations from financiers on the issue of accounting for state duties before the object is put into operation contain conclusions that such expenses participate in the formation of the initial cost of the fixed asset.

Due to the ambiguity of existing opinions, an organization, guided by the norm of paragraph 4 of Article 252 of the Tax Code of the Russian Federation, can independently determine the group of expenses to which the costs of state registration of ownership of real estate will be attributed. The chosen accounting option must be fixed in the accounting policy for tax purposes (paragraph 5 of Article 313 of the Tax Code of the Russian Federation).

When?

In order to take into account the state fee for registering rights to real estate for profit tax purposes, 3 main principles for recognizing expenses, which are formulated in paragraph 1 of Article 252 of the Tax Code of the Russian Federation, must be observed:

1. the expense must be justified;
2. the expense must be documented;
3. the expense must be related to an activity that is aimed at generating income.

If all of the above conditions are met, then an expense is accrued in tax accounting. But when exactly does this need to be done: when paying a state fee or submitting documents for registration?

From clause 5.2, clause 1, Article 333.18 of the Tax Code of the Russian Federation, it is known that settlements with the budget for carrying out legally significant actions are made:

• before submitting an application for registration;
• after submitting an application for registration, but before its consideration (when the application is submitted electronically).

If we calculate the expense on the day of payment, it turns out that we are ahead of the event with which the transfer of state duty is associated. Registration actions have not yet begun and may not even take place (at the initiative of the applicant). In the latter case, the organization has the right to return the transferred funds (clause 4, clause 1, Article 333.40 of the Tax Code of the Russian Federation), and then the recorded expense will be unfounded. Therefore, it is methodologically correct to recognize expenses on the date of submission of documents to the registration authority. Once the documents are accepted, the organization can no longer refuse to perform legally significant actions for which the state fee was paid.

Example 2.

At the beginning of August, Metal Rolling Plant JSC acquired an industrial building under a purchase and sale agreement for RUB 35,400,000, including VAT (18%) - RUB 5,400,000. and the land plot under it for 20,000,000 rubles, excluding VAT (according to paragraph 6, paragraph 2, article 146 of the Tax Code of the Russian Federation).

The real estate company "Partner" provided a service for the acquisition of real estate worth 354,000 rubles, including VAT (18%) - 54,000 rubles.

At the end of the same month, the organization accepted assets fully prepared for use into fixed assets and put them into operation. In accordance with the order of the manager, useful life industrial building was 30 years and 6 months or 366 months (10 depreciation group). Since land is not subject to depreciation (paragraph 5, paragraph 17 of PBU 6/01, paragraph 2 of Article 256 of the Tax Code of the Russian Federation), its useful life is not established.

At the beginning of September, documents were submitted for state registration of ownership rights to real estate. Previously, the organization transferred the state fee for registration actions to the budget in the amount of 22,000 rubles. for each object.

In early October, ownership of the building and land was registered.

Reference data:

1) the company is at common system taxation (OSNO);
2) in accordance with the accounting policy of Metal Rolling Plant JSC for accounting and tax accounting purposes:
- depreciation for all fixed assets is calculated using the straight-line method;
- useful life is determined according to the Classification of fixed assets included in depreciation groups (approved by Decree of the Government of the Russian Federation dated January 1, 2002 No. 1);
- additional costs associated with the receipt of several real estate objects are distributed in proportion to the purchase price of these objects according to the contract (excluding VAT);
3) in accordance with the accounting policy of Metal Rolling Plant JSC for tax accounting purposes
- a depreciation bonus is applied to depreciable fixed assets. (For objects of depreciation group 10, the premium is 10% of the original cost);
- expenses for real estate services are included in the initial cost of the fixed asset;
4) in accordance with the working chart of accounts approved in the accounting policy of Metal Rolling Plant JSC for accounting purposes, immovable fixed assets are accounted for in the following subaccounts.

Working chart of accounts of Metal Rolling Plant JSC

Solution.

In accounting, the organization must create 2 independent inventory objects: an industrial building and a land plot. Moreover, the costs of real estate services that are associated with the acquisition of these real estate assets must be distributed.

1. The cost of services that will be included in the initial cost of the industrial building.
. Calculation: Cost of realtor services x Price of the building excluding VAT / (Price of the building excluding VAT + Price of the land plot) = 300,000 rubles. x 30,000,000 rub. / (30,000,000 rub. + 20,000,000 rub.) = 180,000 rub.;

2. The cost of services, which will be included in the initial cost of the land plot.
. Calculation: Cost of realtor services x Price of the land plot / (Price of the building excluding VAT + Price of the land plot) = 300,000 rubles. x 20,000,000 rub. / (30,000,000 rub. + 20,000,000 rub.) = 120,000 rub.

The organization will reflect the acquisition of real estate in its accounting records using the following entries.

From the 1st day of the next month (September), the JSC accountant will begin to calculate depreciation on the production building in accounting and tax accounting. (A land plot is not recognized as a depreciable object.) However, when calculating depreciation charges for profit tax purposes, you need to take into account the depreciation bonus (10%).

Calculation of depreciation (A) using the linear method:

• In accounting:

1. Agod = Initial cost x Depreciation rate (year) = RUB 30,180,000. x 100% / 30.5 g = 989,508.20 rub.
2. Ames = Agod / 12 months. = 983,606.56 rub. / 12 months = 82,459.02 rub.

• In tax accounting:

1. Ames = (Initial cost - Depreciation premium) / Useful life (months) = (RUB 30,180,000 - RUB 30,000,000 x 10%) / 366 months. = 74,262.29 rub.

The calculation shows that the amounts of depreciation deductions that are written off in accounting and tax accounting are not the same. This is due to the fact that for profit tax purposes, an organization can include 3,000,000 rubles in expenses. from the initial cost of the object in the form of a premium already in the 1st month of depreciation, while this cannot be done in accounting. Thus, the total amount of expenses that the organization will be able to take into account in September will be:

• in accounting - 82,459.02 rubles;
• in tax accounting - RUB 3,074,262.29. (= 3,000,000 rub. + 74,262.29 rub.), which is 2,991,803.27 rub. (=3,074,262.29 rubles - 82,459.02 rubles) more than in accounting.

The resulting taxable temporary difference in the amount of RUB 2,991,803.27. forms a deferred tax liability (DTL):

• IT = Taxable temporary difference x 20% (income tax rate) = RUB 2,991,803.27. x 18% = RUB 598,360.65

In September (the month of the start of depreciation on fixed assets), the organization will accrue IT in accounting. The accounting entries will be as follows.

Next month (October) depreciation in accounting will be charged at 8,196.73 rubles. (= RUB 82,459.02 - RUB 74,262.29) more than for tax purposes. This amount will partially reduce the taxable temporary difference that arose in September and, as a result, will pay off the accrued IT in the corresponding amount: RUB 8,196.73. x 20% = 1,639.35 rub.

Accounting entries for the calculation of depreciation on the industrial building and the repayment of it, similar to entries No. 3 and No. 4 of the month of October, must be made in accounting monthly for the remaining useful life until the cost of the fixed asset is completely written off or removed from the register.

End of example

Document flow

In accordance with clause 1 of Article 556 of the Civil Code of the Russian Federation, the fact of transfer of a real estate property is documented:

• deed of transfer;
• another transfer document.

Based on clause 81 of the Methodological Guidelines for Accounting of Fixed Assets No. 91n, the object is transferred by one party to the ownership of the other party under the acceptance and transfer certificate of fixed assets. The unified form of this primary document OS-1a was developed by the State Statistics Committee of Russia (Resolution No. 7 of January 21, 2003). The act is filled out and signed by both parties to the transaction, the seller and the buyer.

It is also worth noting that Part 4 of Article 9 of Law No. 402-FZ does not prohibit organizations from using their own forms to complete accounting transactions. In this case, the primary document must contain all the mandatory details provided for in Part 2 of Article 9 of Law No. 402-FZ.