Donetsk People's Republic
LAW
On state registration of real rights
On real estate
And their restrictions (encumbrances)
This Law defines the legal, economic, organizational foundations of the state registration of real rights to immovable property and their restrictions (burdensions), and is aimed at ensuring recognition and protection by the state of such rights, creating conditions for the functioning of the real estate market.
Chapter 1. General provisions
Article 1. Scope of application of the law
1. This Law regulates relations arising in connection with the implementation of the state registration of real rights to immovable property in the Donetsk People's Republic and their restrictions (encumbrances). State registration of rights to the object of unfinished construction and their restrictions (encumbrances) in cases established by law is carried out in the manner defined by this Law, taking into account the characteristics legal status such an object.
2. The action of this Law does not apply to the state registration of the rights to air and sea vessel, internal sailing vessel, space and other objects civil rightswhich applies to the legal regime of real estate.
Article 2. Major terms
1. For the purposes of this Law, the following main terms are used:
1) State Registration real rights Real estate and restrictions (support) (hereinafter referred to - state registration of rights) is the official recognition and confirmation of the state facts, changes, transition and termination of rights to immovable property, restrictions (encumbrances) of such rights by making an appropriate entry into the state register of real rights to real estate;
2) the state register of real rights to immovable property (hereinafter referred to as the State Register of Rights) is a unified state electronic information system containing information about real estate rights, their restrictions (encumbrances), as well as objects and subjects of such rights;
3) Real estate - land plots and all that is firmly connected with Earth, that is, objects, the movement of which without disproportionate damage is impossible, including buildings, structures, residential and non-residential premises, facilities of unfinished construction, enterprises as uniform property complexes ;
4) restrictions (encumbrances) - the presence of conditions established by law or authorized bodies in the procedure envisaged by law, prohibitions constrainting the copyright holder in the exercise of ownership of or other real rights to a specific object of real estate (servitude, mortgages, trust management, lease, agreements, property arrest and others).
Article 3. Principles of state registration of real rights
1. State registration of rights is mandatory. Information on real rights to immovable property and their restrictions (encumbrances) is subject to a state register of rights.
2. State registration of rights is the only proof of the existence of registered law. Registered right to real estate can only be challenged in court.
3. The real rights to immovable property and their restrictions (encumbrances) subject to state registration in accordance with this Law arise from that registration.
4. The real rights to immovable property arising before the entry into force of this Law and acquired by the method that do not contradict the legislation of the Donetsk People's Republic are recognized as valid and are not subject to mandatory state registration in the state registration bodies of real rights under such conditions:
1) if the state registration of real rights was carried out in accordance with the legislation, which operated at the time of their occurrence;
2) if at the time of the occurrence of real rights to real estate, legislation was operating, which did not provide for the mandatory registration of such rights.
Restrictions (encumbrances) of real rights to immovable property arising before the entry into force of this Law and registered in the manner prescribed by the legislation of the People's Republic of the People's Republic acting at the time of their occurrence are recognized as valid.
Restrictions (encumbrances) of real rights to real estate arising on the basis of rental agreements, pledge, servitude, rent and other registered in the manner prescribed by the legislation of the Donetsk People's Republic, acting at the time of their occurrence, are recognized as valid for persons who are aware of the presence of such restrictions (encumbrances), in particular, for the parties to contracts, on the basis of which they arose.
5. State registration of rights is public, is conducted by the state registration authority of real rights, which is obliged to provide information on registered real estate rights and their restrictions (encumbrances) in the manner prescribed by this Law. State registration of rights is carried out in order of order of receipt of applications.
6. Any transactions relative to immovable property (alienation, management, mortgage and other) are subject to ownership or other real right to such property are registered in accordance with the requirements of this Law.
7. State registration of ownership and other real rights rights to immovable property is carried out at the location of the real estate object within the territory on which the relevant state registration of real rights is valid. State registration of restrictions (encumbrances) of real rights to real estate is carried out regardless of the location of the real estate object.
Article 4. Rights and restrictions (encumbrances) that are subject to state registration
1. Mandatory state registration is subject to real rights and restrictions (encumbrances) on real estate, located in the territory of the Donetsk People's Republic and belonging to individuals and legal entities, the state in the person of authorities authorized to manage state property, foreign citizens and stateless persons, foreign legal entities , international organizations, foreign countries, as well as municipalities in the person of local governments, namely:
1) ownership of real estate;
2) ownership, right of use (servitude), right to use land plot for agricultural needs (Emphitevis), the right to build a land plot (superficiation), the right of economic management; The right to operational management, the right to continuous use and the right to lease (sublease) of the land plot, the right to use (hiring, renting, sublease, free use, loan) by building or other capital structures, their individual parts, mortgage, confidential property management;
3) other real rights in accordance with the law;
4) Tax deposit, the subject of which is real estate, and other limitations.
2. Real rights to real estate specified in paragraphs 2 and 3 of Part 1 of this article are derivatives and registered after the state registration of ownership of such property.
3. The ownership of the enterprise as a single property complex, residential building, building, construction (their individual parts) can be registered regardless of whether ownership of the land plot on which they are located, except if the owner of the land plot and A single property complex, a residential building, buildings, structures (their individual parts) located on it, is the same face.
Article 5. Real estate objects in respect of which state registration is held
Adopted by Russian Federation The real estate registration system and transactions with it is one of the most important conditions for effective real estate management, not only as a physical object of possession and use, but also as an object of law (through the empowerment). The level and quality of this system largely determines the degree of protection of the rights and legitimate interests of citizens and organizations, as well as the filling of the budget of the state and its subjects at the expense of taxation. It is the registration that gives people the title of the owner - legal right For real estate, which regulates the rights of its owner, and his duties. The procedure for state registration is a combination of norms regulating the relationship between the state represented by the registering authority and the person contacting the registration of the object belonging to him and the rights to it.
All objects subject to state registration and accounting are possible on the basis of the Civil Code of the Civil Code (Article 131, 216, 265, 268, 294, 296) and Art. 4 of the Law on State Registration of Rights to Real Estate Common to Five Groups:
Property rights;
- real rights;
- limitations of rights;
- real estate transactions;
- Physical objects themselves subject to special registration or accounting.
Article 131 of the Civil Code of the Russian Federation links the moment of real estate rights with the moment of state registration of real estate in the USRP. Registration is subject to all real estate rights and obligational rights in cases provided for by law.
The task of state registration is to protect the rights of owners and guarantee the accuracy of real estate information. State registration should be carried out on a single system of records for each object in the Unified State Register of Rights (USRP). Such registration cannot be challenged in court and, therefore, is a unified proof of the existence of registered law for all interested parties. This information is public.
In all other cases (except for privatization transactions made before the entry into force of the Law on Registration of Real Estate), the lack of registration entails the negligence of the transaction.
State registration is subject to the right of all forms of ownership, including state, municipal, private, common, etc.
The real rights of persons who are not owners provide a smaller volume of their owners. Real rights are the right of economic management by property, the right of life-inherited ownership of the land plot, the right of constant use of the land plot, etc. In their legal nature, they are absolute, the subjects of such rights can carry them out independently, without facilitating third parties. Even in the case of the transition of property rights to another person, the real rights of persons who are not owners are not stopped, and they can continue to implement their own emphasis on the property provided for by the relevant articles of the Civil Code of the Russian Federation. But any real right, regulated by the Civil Code of the Russian Federation, must be registered.
The third group of registration objects constitute restrictions (encumbrances) of real estate rights: servitude, mortgage, trust management and rental, having a different legal nature. A servitude is a limited real right, mortgage - a way to provide obligations, and rental and trust management - contractual obligations. Attention should be paid to the apparent inconsistency of the provisions of the Civil Code of the Russian Federation, where it is said about the registration of the rental agreements, and the law on the registration of rights to real estate, where it is meant to register the rights of the lease of real estate. Since the right to lease is embodied in the lease agreement, it should be registered precisely the contract as an objective expression of the rental right.
The rights and obligations of the landlord and the tenant arising from the lease agreement are obligatory, and in the Civil Code of the Russian Federation they should not register.
State registration of real estate transfer to trust management is carried out in the same manner as the transition of ownership. Any rights to real estate associated with order to them on trust management or guardianship should be registered only on the basis of documents defining such relations, including on the basis of contracts or court decision.
The fourth group of registration objects - actions (transactions), causing or can cause occurrence or termination, change or limit, transition or transfer of property rights to real estate. Each such real estate deal must be notarized and registered in the State Border, which carries out the state registration of real estate transactions. Registration of real estate transactions is actually a three-step. This departmental registration, a notarized certificate of the transaction and registration in the institution for registration of property rights or in the relevant bureau or institution for registration of real estate transactions.
Ownership and other items arise not only from contracts for sale, exchanges, donations, but also in the construction of an object, its reconstruction, sale with open trading in the executive work. According to the Civil Code of the Russian Federation and Art. The 25 Real Estate Requirements Act, newly created real estate objects are subject to state registration.
In addition to state registration, a special registration or accounting of certain types of real estate, as well as cadastral and technical accounting (inventory) of real estate objects, i.e. Description and individualization of land, buildings and other objects.
Subjects of state registration are the rights of rights to real estate.
In countries with a developed market economy, the transfer of property rights is an agreement between the buyer and the seller about the transfer of property. The transfer of property rights to property occurs if there is an entry in the registry or cadastre. The agreement must be declared in the cadastral management or in the notary in the presence of both parties. For land plots entry in the cadastre is distinctive feature Transfer of ownership.
State registration of rights to real estate and transactions with it in Russia is carried out by newly created institutions of justice to register rights - independent legal entities, accountable and controlled by the Ministry of Justice of the Russian Federation. Create institutions of justice to register the rights of the subjects of the Federation. But the appointment and exemption from the post of the registrar himself enters the function of the authorized federal executive body - the Ministry of Justice of Russia. Relationships on the registration of rights to real estate and transactions with it are regulated only by acts of federal legislation. The authorities of the constituent entities of the Russian Federation can take regulations Only about the phased creation of institutions for the registration of rights.
State registration of rights is carried out at the location of real estate within the Registration District, which has an institution of justice. The basis for registration is the acts of authorities, certificates of inheritance, contracts and other transactions, as well as the prescription prescription.
The list of necessary documents for registration established by the Law on Registration of Rights to Real Estate includes: The right-pointing documents (Real estate agreements, acts and certificates of the privatization of residential premises, the certificate of the right to inheritance that entered into force court decisions and other documents). The plan of the land plot and (or) the plan of the object of real estate is attached, indicating its cadastral number, the applicant's identity card, etc.
State registration should be made according to a single system of records for each real estate object in the USRP to immovable property and transactions with it, which is kept indefinitely. Registration of rights is made no later than a month from the date of submission of the application and documents necessary for registration.
Step 2. Registration
On the Authorization page, click the "Register" link. The "Registration of a new user" opens. Check the box confirming your consent with the rules for using the system. Press the button corresponding to the type of user: physical or entity. First, the system will ask for an inspection of the Inn or Errpow. In the form of registration, fill in the corresponding fields. Click the "Register" button. Do not forget to also put a "tick" in the field "I'm not a robot".
When registering in the office, an electronic box on mail server Mail.gov.ua is automatically created for you. It is to this box will receive documents ordered in the office. The name and password of the mailbox is a login and password of the account in the office.
Step 3. Authorization
Authorization is also possible by. To do this, select the "EDS Entry" tab. In the "Login" field, specify the account login. In the "Name of the ADSK" field, select the name of an authorized key certification center (ADSK) in which you received your electronic digital signature. In the "path to key" field, select the EDS key file. In the "Password to Key" field, enter the password to the key of your electronic digital signature. Click the "Login" button:
On the Authorization page, select the BANKID Login tab. Choose your bank. There will be a transition to the Internet banking page. Perform authorization in accordance with the requirements of your bank. After successful data verification, you will be automatically authorized in the office of electronic services.
Step 4. Binding the key electronic digital signature to account
The EDS key is required to search for information in case your account is registered on passports eating.
Please note that the user has the ability to tie only one electronic digital signature to the account. It is impossible to replace or delete the associated EDS key.
Register or log in to the office. Click on the user's selection in the page title. The profile editing page opens. Select the section "Electronic Digital Signature". In the "Select Name of the Name", select the name of an authorized key certification center (ADSC) in which you received your electronic digital signature. In the "Specify the Path to Key" field, select the EDS key file. In the "Password" field, enter the password for your EDS key. Click the "Count the EDS key" button.
The system compare the data specified in the account with the electronic digital signature data. If the check has passed successfully, the EDC key is tied to the account. The profile page will include information about electronic digital signature. You fulfill full access to the services of the electronic services and can use an electronic signature for authorization in the office.
If you want to replace the associated EDS key, it is not necessary to contact the administrator of the GP administrator in writing judicial systems"And provide required documentsconfirming your identity.
Step 5. Search for information in the registry
Search is possible at the object address, on the registration number, according to the cadastral number, on the donance of the owner.
Search at the facility real Estate:
Set the mark that matches the search option and click the Next button. In the window that opens, select a value in the "Region" field. In the "Address" field, start typing the name of the city and the street and select the desired version of the system prompts. Fill in other necessary address settings. For example, select "Building type" - "House" and enter its number; Select "Object Type" - "Apartment" and specify its number. When you click the "Find" button, you will search at the specified address.
If the property will be found at the specified address, there will be a transition to the confirmation page of the payer's details that are necessary to implement on-line payment. If the property is not found at the specified address, the user has the ability to return to the page with entering the address or on the page with the search options.
2. Search for the registration number of the object of real estate
Set a mark that match the search creator and click the Next button. In the window that opens, enter the registration number of the property.
If the real estate object will be found at the specified number, there will be a transition to the confirmation page on which on-line payment will be performed. If the real estate object is not found at the specified number, the user has the ability to return to the page with the introduction of the registration number or to the page with the search options.
3. Search by the cadastral number of the land
Set the mark that matches the search option and click the Next button. In the window that opens, enter the cadastral number of the land.
If a land plot will be found on the indicated, a transition to the confirmation page of the orevizites of the payer, which is necessary for the implementation of On-LineFalls will occur. If the land plot will not be found on the specified cadastral number, the user has the ability to return to the page with the introduction of the cadastral number or on the page with the search options.
4. Search according to individuals
Set the mark that matches the search option and click the Next button. In the window that opens, enter the search parameters: surname, name and patronymic of the person (FULL NAME), RFPP (individual tax number), series and document number. If you specified the individual code or series and document number, these FULL NAME is not necessary. You can enter only one of the parameters to search.
5. Search by legal entity
Set the mark that matches the search option and click the Next button. In the window that opens, enter the EDRPO code. The name of the enterprise is not necessary.
If information about the enterprise will be found on the specified parameters, there will be a transition to the confirmation page of the payer details that are necessary for the implementation of on-line payment. If the information is not found, you can return to the data entry page to search for an enterprise or to a page with search options.
Step 6. Payment
To pay in Online mode, check the information about the payer displayed on the screen. To pay for the service, click the "Pay" button. The payment system page opens. Check the flag confirming consent to the terms of the Contract for the transfer of funds in the implementation of Internet payments. Perform on-line payment by following specify the payment system.
Information help will be displayed on the screen, as well as sent to the email address of Mail.gov.ua.
If you decide to cancel payment, click the "New Request" button.
(Israfilov I. M.) ("Law", 2010, N 6)
State registration of limited real rights
I. M. Israfilov
Israfilov Israfil Mukailovich, Associate Professor of the Civil Law Department of the Moscow State Open University (Makhachkala).
In the article, the author substantiates the need for state registration of certain types of limited real rights in the Unified State Register of Rights to Real Estate. Examples of problems in law enforcement practice are given related to the lack of standards on the obligation of state registration of specific types of limited real rights rights.
Keywords: civil law; housing legislation; limited real law; types of real rights; State registration.
The State Registration Of Limited Rights Of Property I. M. Israfilov
In Mentioned Article by Author Argues The SubciFic Types of Limited Rights of Property in Integrated State Register of Rights on Immovable Property. Examples of Problems Have Been Given in Practice, Which Are Related with Absence of Norms About the information of the State Registration in Some Some Somet of Property.
Key Words: Civil Law; Housing Legislation; Limited Rights of Property; Types of Rights of Property; State Registration.
Legal regulation of issues of state registration of real rights to real estate objects is made as in the norms Civil Code The Russian Federation and in a special FZ dated July 21, 1997 "On the state registration of rights to real estate and transactions with it."
In art. 131 GK refers to the mandatory state registration in addition to the right of ownership and such limited real rights, as the right of economic management, the right of operational management, the right of life inherited ownership, the right of constant use, mortgage and servitude. At the same time, it is emphasized that the above list of real rights, the state registration of which is necessary, inexperienced, as it is possible to state registration and other things in cases provided for in the HC itself or other laws. In art. 131 GK The legislator repeats the list of limited real rights given in Art. 216 GK, only adding it to such a real right as mortgage. But in Art. 216 Also not a complete list of specific limited real rights, as the legislator indicates that the "in particular" of certain types of items are listed, thereby allowing the presence and other real rights that can already be determined by characteristic of such rights. And in the federal law on state registration of rights to immovable property is not called specific types of items subject to state registration. In art. 4 of the law contains only a general requirement of the obligation of state registration of real rights as a whole with reference to Art. 131 GK, i.e., this special law also did not bring any clarity in this question. Some complexity here also creates that the state registration is subject to not only the emergence, transition and termination of real rights, but also their restrictions (encumbrances), which carry the real content. In any case, Art. 1 of the Law on State Registration of Rights to Real Estate speaks of such restrictions of real rights, as a servitude, mortgage, trust management of property and lease, the real-party nature of which today many lawyers are in doubt. It should be noted that the list of limited real rights is not exhausted contained in Art. 216 GK and, if we proceed from the characteristic signs of these rights and the position of the legislator, you can also count with a dozen of such rights, although in the norms of civil legislation it is not said about them. But but on some of the real rights, it is said in the norms of housing legislation and already completely definitely. The absence of a single approach to determine the concept of limited real rights and their species led to the legal problem already related to the state registration of these rights, which many specialists say<1>. ——————————— <1> See, for example: Grishaev S. P. State Registration of Related Rights // Magazine russian law. 2006. N 10. P. 89.
On the state registration of such limited real rights, as the right of economic management and the right of operational management, is stated in Art. 131 GK, and no features regarding their state registration in the norms of the GC, nor in the norms of a special law. The emergence, transition and termination of these things are subject to registration in the Unified State Register in the same way as the ownership shallow. Regarding such limited real rights, as the right of life-inherited ownership of the land plot and the right of permanent (perpetual) use, it should be noted that in addition to the general requirement of Art. 131 GK for the obligation of state registration of these rights is also indicated in Art. 25 Land Code. ZK also speaks about the need for mandatory state registration of land servits, both private and public. The law on state registration of rights to real estate does not contain any features regarding the registration of servitude, but it must be borne in mind that simultaneously with the state registration of the servitude as a real right to conduct more registration and restrictions on land ownership as a result of the establishment of a servitude<2>. The question of the relationship between the registration of servitude of the real law and the restrictions on the right of ownership (or other real estate rights) as a result of the establishment of a servitude remains incomprehensible. Indeed, the restriction of ownership is directly related to limited real law and is concluded due to this. These are the "two sides" of one action, and, it seems more important - the establishment, and, accordingly, the state registration of the most real law, and the registration of restrictions (encumbrances) is only a consequence of the previous action, and in our opinion, stateing The value that does not entail any legal consequences. -----------<2> See paragraph 17 of the methodological recommendations on the procedure for state registration of servitude on land approved by the Order of the Ministry of Justice of the Russian Federation of July 26, 2004 N 132.
To the emergence of limited real rights, state registration of the establishment of the right is legally significant, and therefore it is not necessary to replace it with the registration of a contract or other agreement, on the basis of which the right arose that they often tried to do. However, the specified actions are completely different in the legal plan, and, it seems, it is necessary to agree with the opinion of those authors who see the difference in these situations and agree with the need to register only the most limited real law, and not a contract (agreement), which it has been established, If the contract registration is also specifically provided by law<3>. ——————————— <3> See: Kim D. Ch. Problems of the theory and practice of applying a private servitude // Journal of Russian Law. 2007. N 6. P. 138.
Such a limited real right as mortgage (the key to real estate) is subject to mandatory state registration on the basis of Art. 131 GK, st. 29 of the Law on State Registration of Rights to Real Estate and Art. 19 FZ dated July 16, 1998 "On mortgage (property pledge)". But the peculiarity of state registration in this case is that such a real right, as a mortgage, arises not only on the basis of the contract, but also by the law. According to Art. 77 The mortgage law of residential premises, built (purchased) at the expense of credit funds or means of a target loan, are considered to be pledged from the moment of state registration of the ownership of the borrower to a house or apartment. According to Art. 20 of the mortgage law. State registration of the mortgage by virtue of the law, in contrast to the registration of this right on the basis of the contract, is carried out simultaneously with the registration of the ownership of the person, whose right is burdened by mortgage, unless otherwise established by federal law. But one problem in these cases still arises: from the contract or an act of commissioning the newly erected housing, on the basis of which the ownership is registered, it is rather difficult to understand what funds are acquired or built a house or apartment, which creates problems on Practice<4>. In order to legally resolve this problem, it seems to us that for cases of loans or other targets for the acquisition or construction of housing, it is necessary to establish a requirement for the obligatory inclusion in the contract or the act of commissioning the condition on financing with the emergence of mortgage obligations of the recipient's cash. In this case, the consolidation of this condition will be a sufficient basis for the state mortgage registration on the basis of the law. The condition for the financing of acquisition or construction here will play a purely informational role in contrast to the mortgage agreement, which is of legal importance for the occurrence of mortgage legal relations and state registration of the mortgage as a statement of the pledgee<5>. ——————————— <4> See paragraph 9 review of the practice of consideration by the courts of disputes related to the agreement on mortgage // Information Letter of the Presidium of the Higher Arbitration Court RF of January 28, 2005<5> See this more details: Israfilov I.M. Features of the pledge of residential buildings and apartments // Household and Law. 1996. N 11. P. 136 - 140.
Regarding state registration of the right to use the residential premises in the GC and the Law on State Registration of Rights to Real Estate, there are no norms. In h. 3 tbsp. 33 LCs refers to the right of persons who enjoy residential premises on the basis of a testamental refusal, to demand the state registration of its right in the Unified Registry. It should be noted that the same right is due to the provisions of Art. 34 LCD belongs to the user with a residential premises on the basis of a lifetime agreement with dependency, as in the norms of the GC and the Law on State Registration of Rights to Real Estate, nothing says. True, in Art. 584 GK is said about the state registration of the extent of the life sentence itself with dependency as a species of the rental contract, but this does not affect the state registration of the right as a limited real law, as stated in Art. 34 LCD, and the first, in our opinion, there is no way to replace the second. It should be noted that in civil law (paragraph 2 of Art. 609 GK) also provides for state registration and all other agreements on the provision of real estate in temporary use on the right of lease, but such registration should not replace the state registration of real rights. If simultaneously provides registration and contract and real law, then the registration is also subject to registration. But the Law on State Registration of Rights to Real Estate Nevertheless, another position is reflected in relation to the registration of the right of the tenant and the lease agreement. So, in paragraph 1 of Art. 26 The state registration of a real estate lease agreement in the sense of a species of obligation. Clause 3 of the same article suggests the state registration of the rental agreement of the premises already as the burden of the landlord's rights, and, as it seems, in the latter case, registration itself is as such more complimentary to the state registration of the property of the tenant for the premises received for use, since in Art. 1 of the Law on State Registration of Rights to Immovable Property about the burden is stated as about the constraints of the copyright holder in the exercise of their rights, which by and large is the main sign of limited real law. In this regard, it seems that it is necessary to make appropriate changes to the legislation and consolidate a separate state registration and a lease agreement of real estate and property rights of the tenant as a real estate user. By analogy with a real estate lease, you should, in our opinion, to enter and with the gratuitous use of real estate, as in existing legislation There are no legal norms regarding the registration of the proportions of loans<6>. Although at certain stages in legislation at the level of regulations were established requirements for state registration of individual types of contracts for free use of real estate<7>. ——————————— <6> For an analogy of lease agreements and loans, see: Israfilov I. Frequent use of real estate // Leisure. 2000. N 12. P. 41 - 43.<7> See paragraph 6 of the provisions on providing sections of the Forest Foundation in gratuitous use, approved by the Decree of the Government of the Russian Federation of February 18, 1998 (now lost strength).
There is no civil legislation and special standards regarding the state registration of contracts for hiring residential premises and the real rights of tenants of residential premises and their families. It seems that the specified contract more than others requires an increased attention from the point of view of the need for its state registration. There is also the same uncertainty about the material right to accommodate family members of the owner of the residential premises. Although his legal assessment is almost similar to the assessment of the right to reside on the basis of a testamental refusal, the legislator, unlike the latter, still did not provide for the need for state registration with regard to the rights of family members of the owner of the residential premises. In legal literature, the need for state registration of a limited real name of family members of the owner for accommodation in the residential premises of the latter was repeatedly substantiated<8>. ——————————— <8> See, for example: Israfilov I.M. Legal nature of real rights to residential premises // Household and Law. 1999. N 2. P. 94; Schensnikova L. V. Target law: Tutorial. Perm: Publishing House of the Perm University, 2001. P. 232; Kachalova I. V. The right of ownership and other real rights of citizens to residential premises: author. dis. ... Cand. jurid science M., 2006. P. 8 and others.
Opinions were also expressed that such registration of the rights of these residents of the housing will cause significant problems in practice that will be in the difficulty of determining the subjects of this right, as well as grounds for such registration.<9>. S. Grishaev in this regard is in doubt about the possibility of determining members of the family owner of residential premises<10>. But in the first and in the second case, the problem is not so complicated, since, first of all, a new LCD adopted, in part 1 of Art. 31 which is clearly defined a circle of family members of the owner of the residential premises, and, secondly, the recognition of others by members of the family of the owner is now possible only if they are allowed to establish them in a residential premises as family members. Accordingly, for the recognition of persons by members of the owner's family, it is now necessary and enough for their unfinished premises in such quality, and, in our opinion, the proof can serve as an agreement concluded with the establishment between the owner of the residential premises and the person who is heated as a member of his family. This problem today is no longer so large-scale as it was under the action of the Housing Code of the RSFSR 1983, which provided for the possibility of recognizing a member of the family on the basis of the management of general farm and joint residence. -----------<9> Piskunova M. G. Features of the occurrence of real estate rights and problems of state registration // State registration of real estate rights: Registration Rights / OTV. ed. A. R. Kirsanova. M.: Axis, 2003. P. 54.<10> Grishaev S. P. State Registration of Related Rights // Journal of Russian Law. 2006. N 10. P. 90.
As for the right of a trust manager for real estate transferred to his department, the legislator also established the requirement for the need for state registration of real estate transfer to confidential administration as encumbrances of ownership, and not registration of the contract itself. Since the registration is not subject to registration, but the burden of ownership, which is, in fact, as we have already been noted, the real law of the trust manager, it is difficult to agree with the opinion expressed in legal literature that when registering real law in this case cannot to be issued certificate of registration<11>. The substantiation of this opinion by the fact that the rules for conducting a unified state register of rights to immovable property and transactions with it, approved by the Decree of the Government of the Russian Federation of February 18, 1998, is not provided for the issuance of a certificate of state registration, indicating the period of its action, is not, in our opinion sufficient. These rules really do not provide for the issuance of a certificate. But they specifically settled the procedure for registering the termination of rights and burden as a whole, and therefore completely unnecessarily establishing the deadlines of the registered rights. And sometimes it is easy and impossible to set the deadlines in advance, and the corresponding entry into the registry can be made only after the termination of the rights for one way or another. -----------<11> Mikheeva L. Yu. State registration of real estate transfer to trust management // Justice. 2006. N 2. P. 59 - 60.
It seems that the need for state registration of limited real rights in all these cases in the Unified Registry was also dictated by the fact that any participant in civil turnover is entitled to have the necessary information about all real rights rights that it is going to acquire in property or receive in use, before How to make an appropriate civil transaction.
Lescape bibliographic list
1. Grishaev S. P. State registration of real rights // Journal of Russian law. 2006. N 10. P. 89 - 90. 2. Israfilov I.M. Features of the pledge of residential buildings and apartments // Household and Law. 1996. N 11. P. 136 - 140. 3. Israfilov I. Frequent use of real estate // Leisure. 2000. N 12. P. 41 - 43. 4. Israfilov I.M. Legal nature of real rights to residential premises // Household and Law. 1999. N 2. P. 94. 5. Kachalova I. V. The right of ownership and other things of citizens to residential premises: author. dis. ... Cand. jurid science M., 2006. P. 8. 6. Kim D. Ch. Problems of the theory and practice of the use of a private servitude // Journal of Russian Law. 2007. N 6. S. 138. 7. Mikheeva L. Yu. State registration of real estate transfer to trust management // Justice. 2006. N 2. P. 59 - 60. 8. Piskunova M. G. Features of the occurrence of real estate rights and problems of state registration // State registration of real estate rights: Registration Rights / OTV. ed. Kirsanova A. R. M.: Axis, 2003. P. 54. 9. Schensnikova L. V. Target law: Tutorial. Perm: Publishing House of the Perm University, 2001. P. 232.
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Grishaev Sergey Pavlovich - Associate Professor of the Department of Civil and Family Law MGU, Candidate of Legal Sciences.
An integral part of the special legal regime of real estate is the mandatory state registration of rights to it (transactions with it and imported real estate). The purpose of such registration is to establish a solid real estate turnover system. World experience shows that to protect the rights of private owners for real estate, it is necessary to create a formal registration system, which would guarantee the reliability and publicity of civil turnover, would be available to all participants in civilian relations and contain objective information about real estate. The development of market relations based on the right of ownership in Russia led to the need to create a new legal regulation system in real estate and, above all, a new system of state registration of rights to real estate and transactions with it.
State registration of rights to immovable property and transactions with it is an element of public-legal regulation in private-planning relations. However, the first fulfills the secondary role in relation to the latter. The purpose of such regulation is to ensure stability in civil relations. The requirement to reflect changes in the relevant situation of participants in the Unified State Register is the implementation of the principle of publicity in the turnover of real estate. The word "state" means that registration should be carried out by specially authorized federal government agencies. Such authorities are currently the federal registration service and its structural units.
The idea of \u200b\u200bpublicity is generated by the tough need of practice to prevent cases of unscrupulous re-alienation of the same thing, eliminate numerous and prolonged disputes about real estate. Registration of rights and their restrictions (encumbrances) in the Unified State Register provides high degree The clarity of legal relations and guarantees the reliability of the acquired rights to real estate. Objective immobility of real estate allows in one place to record the rights to immovable things located on another territory. The registered information makes it possible to establish a copyright holder and thereby ensure the confidence of third parties entering into legal relations about real estate, in the fact that the other party in the legal relationship is the right holder. To prove the existence of its right to real estate, the copyright holder is enough to submit a registered law document.
Thus, the need for the formation of a unified registration system for all types of real estate and committed on this property of transactions was primarily dictated primarily by increasing the importance of real estate transactions in civil circulation, as well as the need for certainty of the legal status of individual real estate objects, establishing a single order. conducting state registration, unambiguities of interpretation of the rules of its implementation by the constituent entities of the Russian Federation and the authorities local governments, increase the protection of the rights and interests of civil turnover participants.
Implemented legal regulation State registration of rights to real estate and transactions with it within the framework of the competence established in the legislation. In particular, this competence includes the publication of regulatory acts and committing certain actions legal nature by specially created government agencies.
In some cases, the same bodies are carried out both technical registration and registration of real estate rights. We are talking about the so-called conditional or legal real estate (sea, aircraft, etc.). So, according to paragraph 2 of Art. 33 KTM RF title and other real rights to maritime courts, as well as restrictions (encumbrances) of them are subject to registration in the State Ship Register or Ship Book. In the State Ship Register or Ship Book at the same time, courts are registered as vehicle.
With the moment of state registration, the emergence, transition and termination of real estate rights are associated. Thus, state registration is not technical, but legal significance. With the alienation of real estate, state registration determines the moment with which the acquirer has the right of ownership. In other words, it is from now on that since this is the new owner can carry out the right of possession, use, orders of real estate. From that moment on, the owner has a risk of random death or damage to immovable property, regardless of when the actual transfer of property was carried out. At the same time, the execution of the contract of alienation of immovable property, including the transfer of real estate by the alienteer and the adoption of real estate by the acquirer can be carried out both before the state registration of the transition of rights and after.
It should be noted that the requirement of state registration of the transfer of ownership of immovable property in itself does not deprive the parties of a specific deal of right to specify such a transition to the implementation of certain conditions (for example, the transfer of real estate object from the seller to the buyer recorded in the act of receiving and transmission conditions or the conditions for prior payment Property to be transmitted). If these conditions were not fulfilled, the seller's refusal from registration should be considered legitimate.
The fact that with the moment of state registration is associated with the occurrence of ownership of the acquirer, entails, according to G.A. Lobanova, a number of legal problems that are reduced to the following. As a general rule, the real estate acquirer until the state registration of the transfer of rights to it does not pay all this property (as a rule, an advance payment is made). After state registration, he becomes the owner, and he has no need to pay it completely. If he does it, then essentially we are talking about a donation that is prohibited in relations between commercial organizations<*>. With such an opinion it is difficult to agree. The fact that the acquirement has the right of ownership, in itself does not cancel the obligations to fulfill the contract and pay the remaining part of the amount.
<*> See: Lobanov G.A. Registration paradox // Comment by judicial practice.
As a general rule, the seller's commitment to transfer real estate to the Buyer is considered to be fulfilled after presenting this property to the Buyer and signing the relevant transmission document. In this regard, there is a temporary gap between the transition of ownership of the buyer (this moment is determined by the moment of registration) and the actual transfer of property that can be carried out after the state registration of the transition of ownership. Thus, a situation is possible when the risk of random death or damage to real estate will carry the owner (who has already had the right to ownership due to the state registration of the transfer of property rights), although the alienator has already legally lost the ownership of real estate, but did not transfer it to the new acquirer.
The legal regime of real estate is based on the need to ensure special sustainability of rights to this property, establish a special order of order by them. Therefore, in accordance with Art. 131 CI RF property rights and other real rights to immovable things, restrictions on these rights, their emergence, the transition and termination are subject to state registration in the Unified State Register.
State registration is carried out in accordance with the Federal Law of July 21, 1997 N 122-FZ (ed. Of July 18, 2006) "On State Registration of Rights to Real Estate and Transactions with Him"<*> (hereinafter - the Law on State Registration) by the Real estate entity records system. As follows from the specified definition (in its literal interpretation), the state registration of rights to immovable property and transactions with it does not have a guarantee, but only recognizes and confirms already existing rights. This should be noted as a lack of formulation of Art. 131 of the Civil Code, since it contradicts paragraph 2 of Art. 8 of the Civil Code of the Russian Federation, according to which the rights to property subject to state registration, arise from the moment of registration of rights to it, unless otherwise established by law.
<*> See: NW RF. 1997. N 30. Art. 3594.
The term "State Registration" itself can be understood in two values: first, as a technical term meaning a record in a single state register of rights (USRP); Secondly, as a set of actions carried out by state registration authorities within their credentials.
Recording to the USRP itself is not the basis for the emergence, changes or termination of civil rights and responsibilities. In essence, this entry is a special legal fact that, together with other legal facts, entails the emergence, change, termination of civil rights to real estate. Such grounds are always transactions or other legal facts. It is more likely to be viewed as part of a complex legal composition, as a result of which the ownership of or other real right to real estate arises. At the same time, it does not affect the specific rights and obligations of the parties under the contract. Therefore, it is hardly possible to agree with the opinion that legislation should be supplemented with an indication that state registration is the basis of the emergence, restrictions (encumbrances), transition and termination of rights to immovable property, unless otherwise established by law<*>.
<*> See: Emeelkina I.A. Related rights to residential and non-residential premises. M., 2004. P. 96.
The EDRP record also performs the evidentiary function that it is evidence of the belonging of a particular real estate object to a particular person, and when there are contradictions between the contents of the entry in the USRP and the content of the guidelines, the preference should be given entries to the USRP.
In legal literature, state registration of rights to immovable property was determined, in particular, as a reflection in the registry for an unlimited range of persons reliable and exhaustive information about legal mode real estate, change or termination<*>. However, such a definition, as properly noted, emphasizes only one function of state registration - information<**>.
<*> See: Svlov S. Registration of real estate rights: the concept and problem // Russian Justice. 1997. N 10. P. 31.
<**> See: Emeelkina I.A. Decree. cit. P. 95.
According to paragraph 1 of Art. 131 GK and paragraph 1 of Art. 4 of the Law on State Registration are subject to state registration only of real estate (absolute) rights to real estate (ownership and other real rights rights). It should be noted that the state registration of rights to maritime, aircraft, internal navigation vessels and space objects are carried out in special order (The law on state registration in this case is not applicable).
IN russian legislation Under it is understood primarily to the rights listed in paragraph 1 of Art. 216 of the Civil Code of the Russian Federation:
- ownership of real estate, including land;
- the right of economic management;
- the right to prompt property management;
- the right of permanent (indefinite) use by the land plot in state or municipal property;
- the right of lifelong inherited ownership of the land plot in state or municipal property;
- a servitude (servitude - the concept of multidimensional. For the owner of the real estate, in relation to the rights of which the servitude is established, the latter acts as encumbrance, and for the owner of the servitude, the latter is considered as a real law).
The law on state registration does not contain a specific list of real rights subject to state registration, limiting reference to Art. 130, 131, 132, 164 of the Civil Code of the Russian Federation, but the specified items also listed specific items subject to state registration. Thus, it is necessary to proceed from the fact that any real rights to real estate are subject to state registration. In art. 4 of the Law on State Registration states that state registration is subject to ownership and other real rights to real estate. The problem lies in the absence of a clear understanding, what rights are "other real rights".
The list of such rights is installed primarily in Art. 216 of the Civil Code of the Russian Federation, however, the use of the words "in particular" emphasizes that limited real rights are not exhausted by the list contained in paragraph 1 of Art. 216 of the Civil Code of the Russian Federation. As the real rights of persons who are not owners, first of all, it is necessary to recognize the right to use the right to use the family members of the owner living in the residential premises belonging to him (Article 292 of the Civil Code of the Russian Federation). The fact that this right is considered as a real, says ch. 18 CC of RF "Ownership and other real rights to residential premises." This chapter is only about the right of ownership and rights of family members of the owner on a residential premises. Consequently, the right members of the family owner on a residential premises and there is another real law. In the new Housing Code, the rights of a family member are devoted to Art. 31, which is also placed in section II "Ownership and other business rights to residential premises." Thus, the LCD RF also confirms the material nature of this right.
It should be noted that in practice, the state registration of this right does not occur. They explain this by the fact that "the requirement of state registration of the right to use the residential premises living in them by the family members of the owner would put the realization of the rights of these persons regulated by housing, family and hereditary legislation, depending on the state registration certificate. If they need to register to register with the Justice agencies. The problem of determining the subjects of this right and grounds for registration will inevitably rise.<*>.
<*> Piskunova M.G. Real estate rights subject to state registration // State registration of real estate rights / Ed. A.R. Kirsanova. M., 2003. P. 54.
With such an opinion, it can be agreed, since the recognition of a citizen by a member of the family of the owner of the residential premises can cause some difficulties. At the same time, in certain subjects of the Federation, the specified right was registered, which undoubtedly contradicted the law on state registration of rights to immovable property and transactions with it. Thus, by Decree of the Government of Moscow of October 6, 1998, N 767 approved the procedure for the registration of the rights of use by residential premises by members of the owner, which is made on the basis of a joint statement of the owner of the residential premises and members of his family.
The need for state registration of individual real estate rights is referred to in the LCD of the Russian Federation. So, according to it, paragraph 3 of Art. 33 Citizen living in the residential premises provided on the testamental failure, it is entitled to demand the state registration of the right to a residential premises arising from the testamental failure. According to paragraph 2 of Art. 1137 of the Civil Code of the Russian Federation on the heir to whom the residential building passes, an apartment or other residential premises, the testator may impose a duty to provide another person for the period of his life or a different period of use of this room or its certain part. Thus, the right to use a residential premises arising from the testamental refusal, the legislator considers as a real right to be subject to state registration.
Accordingly, a similar right (to demand state registration) is also a citizen living in a residential premises on the basis of the right arising from a life-life agreement with dependency in accordance with Art. 34 LCD RF, since the latter contains a reference to the rules provided for by Art. 33 LCD RF. The question of recognition of the right to use the residential premises on the basis of a lifelong content agreement with dependent law to be subject to state registration was finalized only in the new LCD RF. The fact that the recipient of the rent, who transferred a residential premises to ensure the obligations of the rental of rent, acquires the right of pledge to this room. In addition, the indicated right is to have the principle of following, because in the case of the alienation of the property transferred to the payment of rent, the obligations under the contract of rent are transferred to the property acquirer (clause 1 of Art. 586 of the Civil Code of the Russian Federation). It should also be borne in mind that the rights of the recipient of the rent as the title owner can be protected by means of real laws.
Finally, it should be stopped on the problem of state registration of those rights that the legislator directly does not call things, but in theory such rights are recognized as separate lawyers as aware<*>. This, in particular, is about the right of an institution for independent disposal of income and property obtained as a result of permitted economic activities and the right of pledge. Obviously, it is necessary to proceed from the fact that until the legislator does not clearly attribute these rights to it, the question of their state registration is rather theoretical than practical importance.
<*> See: Maslyaev A.I. The concept and types of real rights // Law. 2004. N 2. P. 6.