Ownership rights over land plots

General Provisions

This chapter will cover the following topics:

• the concept of property rights in land plots;
• content of property rights in land plots;
• forms of ownership;
• ownership of land by citizens and legal entities;
• state ownership of land;
• federal ownership of land (ownership of land by the Russian Federation);
• ownership of land by subjects of the Russian Federation;
• [municipal ownership of land](/enc/26017/ "Definition of the concept 'Municipal Ownership of Land"

"land" in the legal encyclopedia");

• grounds for the emergence of rights to land;
• land plot as an object of property rights;
• grounds for the emergence and procedures for exercising property rights;
• transferability of land plots;
• limitations on the transferability of land plots.

Within the topic of the concept of property rights in land plots, definitions of property rights are considered. Consider the relationship between such categories as ownership and property rights. Examine the definition of property rights in Russian legislation and foreign legal systems, considering similarities and differences. It is important to note that we do not limit ourselves exclusively to commenting on legal provisions, but also consider definitions proposed in philosophical literature. Consider approaches to ownership in juridical and economic literature, examine the relationship between ownership as a legal and

economic categories. Let us consider the general definition of property rights and the characteristics of property rights on land plots. Characteristics of applying legal norms on property with regard to land plots.

Content of Property Rights on land plots is considered through so-called «triad of rights». However, how appropriate is such approach? Is it a universal legal principle or a feature of the Russian legal system? We will answer these and many other questions together in the corresponding section of this work.

Similar questions arise when considering such a legal category as forms of ownership. Is this an exclusively Russian invention or can we find similar institutions in foreign legal systems? How did this corresponding legal category enter Russian legislation? It is important to consider the corresponding category in the historical context.

In the paragraph devoted to ownership of land by citizens and legal entities, we will primarily examine the provisions of Russian legislation that regulate the relevant relationships. We will examine the similarities and differences in the property rights of citizens and legal entities over land plots.

A separate consideration is warranted for issues related to state ownership of land. It is important to understand that state ownership of land includes federal ownership and ownership by subjects of the Russian Federation, the relevant topics warrant separate consideration.

Local self-government bodies have significant importance, possessing broad powers in the management of land resources. These issues are also addressed in a separate section of this chapter – municipal ownership of land.

It is impossible to overlook the grounds for the emergence of land rights, which form the basis of property land turnover. We will consider the relationship of legal provisions defined by the Constitution of the Russian Federation, the Civil Code of the Russian Federation, the Land Code of the Russian Federation, and other laws and normative legal acts.

Let us consider a land plot as an object of property rights. What are the characteristics of a land plot compared to other objects of property relations. What are the similarities and differences between land and property relations.

Separate consideration deserves the issues of alienability and restrictions on alienability of land plots. Data on this topic largely demonstrate the complexity of the legal regime of land plots, which appears to be comprehensive and multi-faceted.

The Concept of Ownership Rights to Land Plots

In the fact that person places their will into a thing lies the concept of ownership, everything else is merely its implementation. The internal act of my will, which states that something is mine, must be recognized by others. If I make a thing mine, I impart to it this predicate, which must manifest externally, not remain solely within my internal will. Among children, it often happens that they protest against others' possession of a thing, claiming they wanted it earlier, but for adults, this volition is insufficient, since the form

Subjectivity should be removed and should achieve objectivity¹.

Ownership – a category primarily economic, property-related, private-law, civil law. Accordingly, this reason should be considered first the general (civil law) definition of the concept of ownership. A classic of pre-revolutionary Russian legal thought G.F. Shershenevich defined ownership as unlimited and exclusive dominion of a person over a thing². The given definition fully corresponds to modern realities with the sole addition that such dominion

must be carried out within the scope of the legal regime established for the corresponding thing.

encyclopedias") of land in accordance with its designated purpose and permitted use. Thus, unlimited and exclusive dominion of persons over property should not lead to the spoilage of land (which is considered an offense, commission of which entails legal consequences in the form of legal liability).

The right of ownership over a land plot represents the most complete dominion persons over such a plot in accordance with its legal regime.

Content of the right of ownership over land plots

Modern civil legislation defines the content of property rights through what is known as the «triad of rights». According to paragraph 1 of Article 209 of the Russian Federation Civil Code (GK RF), the owner is entitled to the rights of possession, use, and disposal of their property. «Possession refers to actual control over a thing. Use consists in deriving benefits from a thing that determine its economic value. Disposal grants the possibility of entering into various remunerative and non-remunerative transactions with this very thing as their object»

Considering the content of property rights through the triad of rights cannot be regarded as a universal (widely accepted) approach. For example, according to § 903 of the German Civil Code, «The owner of a thing has the right, unless otherwise prohibited by law or the rights of third parties, to dispose of the thing at his discretion and not to allow interference by other persons»⁴. According to Article 544 of the Napoleonic Code, *«Ownership is the right to use and dispose of property absolutely, provided that a person does not use them in ways prohibited by laws or

resolutions»*⁵. Thus, the Civil Code of Napoleon includes the content of property rights as use and disposal, whereas the Civil Code of the Russian Federation – only disposal.

In common law jurisdictions, the so-called "bundle of rights" doctrine (the doctrine of "a bundle of rights" or a set of rights) has gained wide application according to which «Ownership is not a single absolute right, but a set of rights. The various rights that compose it may be distributed among individuals and society: some are public, others are private, some are definite, while others are indefinite»⁶. According to A. Honore, property rights include 11 elements: 1) the right of possession; 2) the right to [use](/enc/32013/ "Definition

the concept of "Use" in the legal encyclopedia"); 3) right to manage; 4) right to income; 5) right to dispose; 6) right to safety; 7) right to transfer by inheritance; 8) absence of time limit; 9) prohibition on harmful use; 10) liability in the form of disciplinary action; 11) residual nature⁷.

Academician A.V. Venedikov negatively answered the question regarding the possibility of considering property rights as a sum of three entitlements of the owner: use, possession, and disposal. Author argued his position by stating that property rights are not limited to these three entitlements. Moreover, an owner may be deprived of all three entitlements while retaining property rights. Acknowledging this, author rightly warned against underestimating the role of these entitlements in the exercise of property rights, in the matter

the implementation of those socio-economic relations which find their legal expression in property rights⁸.

Forms of ownership

Land and other natural resources⁹ may be owned in private, state, municipal, and other forms of ownership (Part 2 of Article 1 of the Constitution of the Russian Federation). Based on this provision of the Constitution of the Russian Federation, the land legislation of the Russian Federation provides for the principle of demarcation of state ownership of land into ownership of the Russian Federation, ownership of the subjects of the Russian Federation, and ownership of municipal formations, according to which the legal foundations and procedures for such demarcation

are established by federal laws (subparagraph 9 of paragraph 1 of article 1 of the Land Code of the Russian Federation).

In the cited provision, an open list of forms of ownership is specified, some of which are explicitly mentioned: private, state, and municipal. As separate forms of ownership, the commented article lists subjects of private property rights over land and other natural resources, which may be the state (through the organs of state authority of the Russian Federation and the organs of state authority of the subjects

The Russian Federation) and municipal entities (in the person of local self-government bodies). Other forms of ownership are not specified in legislation.

Ownership of land is regulated by Chapter III of the Land Code of the Russian Federation (ZK RF). Within the scope of this chapter, provisions are provided regarding:

• ownership of land by citizens and legal entities (Article 15 ZK RF);

• state ownership of land (Article 16 ZK RF);

• ownership of land by the Russian Federation (federal ownership) (Article 17 ZK RF);

• ownership of land by subjects of the Russian Federation (Article 18 of the Land Code of the Russian Federation);

• municipal land ownership (Article 19 of the Land Code of the Russian Federation).

Land Ownership by Citizens and Legal Entities

According to paragraph 1 of Article 15 of the Land Code of the Russian Federation, land plots owned by citizens and legal entities (private ownership) are those acquired by citizens and legal entities on grounds provided for by the legislation of the Russian Federation.

Citizens and legal entities have the right to equal access to acquiring land plots in ownership. Land plots owned by the state or municipal authorities may be transferred into ownership of citizens and legal entities, except for land plots that, in accordance with the Land Code of the Russian Federation and federal laws, cannot be in private ownership (paragraph 2 of article 15 of the Land Code of the Russian Federation).

Foreign citizens, stateless persons and foreign legal entities cannot own land plots on border territories, list of which is established by the President of the Russian Federation in accordance with federal legislation on the State Border of the Russian Federation, and on other specially designated territories of the Russian Federation in

in accordance with federal laws (paragraph 3 of Article 15 of the Land Code of the Russian Federation).

State ownership of land

State ownership includes [lands](/enc/9280/ "Definition of the term 'Lands' in the legal encyclopedia) not owned by citizens, legal entities or municipal formations (paragraph 1 of Article 16 of the Land Code of the Russian Federation).

The demarcation of state ownership of land into federal state ownership (ownership of the Russian Federation), ownership of subjects of the Russian Federation, and municipal ownership (municipal property) is carried out in accordance with this Code and federal laws (paragraph 2 Article 16 of the Land Code of the Russian Federation).

Federal State Ownership of Land

According to Article 17 of the Land Code of the Russian Federation, land plots are in federal state ownership:

• which are recognized as such by federal laws;

• ownership rights of the Russian Federation which arose during the delimitation of state-owned land;

• which have been acquired by the Russian Federation on grounds provided for by civil legislation.

Ownership of land by subjects of the Russian Federation

According to paragraph 1 Article 18 of the Land Code of the Russian Federation, land plots are owned by the subjects of the Russian Federation:

• which have been recognized as such by federal laws;

• ownership rights of the subjects of the Russian Federation which arose during the delimitation of state-owned land;

• which have been acquired by the subjects of the Russian Federation on the grounds provided for by civil legislation;

• which have been transferred without compensation to the subjects of the Russian Federation from federal ownership.

In the subjects of the Russian Federation - federal cities Moscow, St. Petersburg, Sevastopol, a land plot from which the owner has renounced ownership rights becomes the property of the respective subject of the Russian Federation - the federal city of Moscow, the subject of the Russian Federation - the federal city of St. Petersburg, the subject of the Russian Federation - the federal city of Sevastopol, as of the date of state registration of termination of ownership rights to it, unless the laws of the aforementioned subjects of the Russian Federation stipulate otherwise that such a land plot is owned by...

municipal entities located on the territories of the specified subjects of the Russian Federation (paragraph 3 Article 18 of the Land Code of the Russian Federation (ZK RF)).

Municipal Property in Land

According to paragraph 1 Article 19 of the Land Code of the Russian Federation, municipal property includes land plots:

• which are recognized as such by federal laws and laws adopted by the subjects of the Russian Federation in accordance with them;

• municipal ownership rights arising from the delimitation of state ownership in land;

• which are acquired on the grounds established by civil legislation;

• which are transferred without charge to municipal ownership from federal ownership.

If otherwise not provided by other federal laws, the land plot, from which the owner has renounced their right of ownership, becomes the property of the municipal district, city district, urban or rural settlement, or in the case of such a land plot being located on an inter-settlement territory the property of the municipal area where the land plot is located (paragraph 1.1 Article 19 of the Russian Land Code (ЗК РФ)) from the date of state registration of termination of ownership rights to it.

Ownership of municipal formations for their development may be transferred gratuitously lands, owned by subjects of the Russian Federation, including outside the boundaries of municipal formations (paragraph 3 Article 19 of the Land Code of the Russian Federation).

According to paragraph 5 Article 19 of the Land Code of the Russian Federation, land plots owned by subjects of the Russian Federation may be transferred gratuitously to municipal ownership for the purpose of their allocation to specific categories of citizens and/or non-commercial organizations established by citizens, in accordance with subpoints 6 and 7 Article 39.5 of the Land Code of the Russian Federation.

Land plots owned by the municipal property of one municipal entity may be transferred free of charge to the municipal property of another municipal entity for their provision to certain categories of citizens and (or) non-commercial organizations established by citizens, in accordance with subparagraphs 6 and 7 of Article 39.5 of this Code.

Land plots owned by subjects of the Russian Federation, municipal property, may be transferred free of charge to subjects of the Russian Federation - cities of federal significance Moscow, St. Petersburg, Sevastopol for their provision to certain categories of citizens in accordance with subitem 6 of article 39.5 of this Code, as well as to certain categories of citizens and (or) non-commercial organizations established by citizens, provided that grounds for free provision of land plots to these persons are stipulated by this Code or other federal laws.

Grounds for Acquiring Rights to Land

The grounds for acquiring rights to land are regulated by Article 25 of the Federal Law on Land. Rights to land plots provided for in Chapters III¹⁰ and IV¹¹ of the Federal Law on Land arise on grounds established by civil legislation, federal laws, and are subject to state registration in accordance with the Federal Law "On State Registration of Real Estate" (paragraph 1 Article 25 of the Federal Law on Land).

State registration of land transactions is mandatory in cases specified by federal laws (paragraph 2 Article 25 of the Federal Law on Land).

Land plots nationalized before January 1, 1991, in accordance with legislation in force at the time of their nationalization are not subject to return, and the cost of such land plots is not subject to reimbursement or compensation (paragraph 3 Article 25 of the Federal Law on Land).

Land Plot as an Object

Objects of land relations (in accordance with paragraph 1 Article 6 of the Land Code of the Russian Federation) are: 1) land as a natural object and a natural resource; 2) land plots; 3) parts of land plots.

A land plot, as an object of property rights and other rights provided for by the Land Code of the Russian Federation (ZK RF), is an immovable item representing a part of the earth's surface and possessing characteristics that allow it to be identified as an individually defined item. In cases and in accordance with procedures established by federal law, artificial land plots may be created (paragraph 3 of article 6 of the Land Code of the Russian Federation).

To real estate (real estate, immovable property) belong land plots, subsoil plots and everything that is firmly connected with the earth, i.e., objects whose movement without disproportionate harm to their purpose is impossible, including buildings, structures, and unfinished construction objects (paragraph 1 of Article 130 of the Russian Civil Code).

Grounds for the Emergence and Procedure for Exercising the Right of Ownership

The grounds for the emergence and procedures for exercising property rights and other real rights are determined by civil legislation (paragraph 1 of Article 2 of the Russian Civil Code). According to Article 36 of the Constitution of the Russian Federation, citizens and their associations have the right to own land in private ownership (part 1); possession, use, and disposal of land and other natural resources are carried out freely by their owners, provided that this does not cause harm to the environment or violate rights

and the legitimate interests of other persons (Part 2); the conditions and procedures for the use of land are determined based on the federal law (Part 3).

Provisions regarding property rights and other real rights on land are provided in Chapter 17 of the Civil Code of the Russian Federation.

Persons owning a land plot have the right to sell it, gift it, pledge it, or rent it out and dispose of it otherwise (Article 209) provided that the relevant lands are not excluded from circulation or restricted in circulation by law (paragraph 1 Article 260 of the Civil Code of the Russian Federation).

On the basis of the law and in the order established by it, agricultural and other designated lands are determined, the use of which for other purposes is not allowed or restricted. Use of a land plot belonging to such lands may be carried out within the limits defined by its designated purpose (point 2 Article 260 of the Civil Code of the Russian Federation).

Marketability of Land Plots

Transferability of civil rights objects is defined by Article 129 of the Russian Civil Code (GK RF). Civil rights objects may be freely alienated or transferred from one person to another through universal succession (inheritance, reorganization of a legal entity) or otherwise, provided they are not restricted in transferability (paragraph 1 Article 129 of the Russian Civil Code (GK RF)).

By law or in accordance with the procedure established by law, restrictions on the transferability of civil rights objects may be introduced. In particular, it may be provided for types of civil rights objects that may belong only to certain participants in circulation or the conclusion of transactions with which is allowed only upon special permission (paragraph 2 Article 129 of the Russian Civil Code).

Land and other natural resources may be alienated or transferred from one person to another or by other means to the extent that their circulation is permitted by laws on land and other natural resources (paragraph 3 Article 129 of the Russian Civil Code).

Restrictions on the Circulation Ability of Land Plots

Restrictions on the circulation capacity of land plots are defined in Article 27 of the Land Code of the Russian Federation. According to this article, circulation of land plots is carried out in accordance with civil legislation and the Land Code of the Russian Federation (paragraph 1 of Article 27 of the Land Code of the Russian Federation).

Land plots designated as land removed from circulation may not be transferred into private ownership, nor may they serve as objects of transactions provided for by civil legislation. Land plots designated as land with restricted circulation are not transferred into private ownership, except in cases established by federal laws (paragraph 2 Article 27 of the Russian Land Code).

The content of restrictions on land plot circulation is established by the Land Code of the Russian Federation (ZK RF), federal laws (paragraph 3 Article 27 ZK RF). According to paragraph 4 Article 27 ZK RF), land plots occupied by the following objects in federal ownership are excluded from circulation:

1. state natural reserves and national parks, unless otherwise provided for by the Land Code of the Russian Federation and Federal Law No. 33-FZ dated March 14, 1995 "On Particularly Protected Natural Territories";

2. buildings and structures where the Russian Federation Armed Forces, other military units, military formations and bodies (except cases established by federal laws) are stationed for permanent operations;

3. buildings and structures where military courts are located;

4. objects of organizations of the Federal Security Service;

5. objects of organizations of state protection bodies;

6. objects of atomic energy use, storage points for nuclear materials and radioactive substances;

7. objects in accordance with the types of activities for which closed administrative-territorial formations have been established;

8. objects of institutions and bodies of the Federal Service for Execution of Punishments;

9. military and civilian burial grounds;

10. engineering and technical structures, communication lines and facilities constructed in the interests of protecting and guarding the State Border of the Russian Federation.

According to paragraph 5 of Article 27 of the Land Code of the Russian Federation, the following land plots owned by the state or municipal property are restricted in circulation:

1. within specially protected natural territories not mentioned in paragraph 4 of Article 27 of the Land Code of the Russian Federation, unless otherwise provided by the Land Code of the Russian Federation and the legislation of the Russian Federation on specially protected natural territories;

2. from the composition of forest fund lands;

3. within which water objects owned by the state or municipal property are located;

4. occupied by particularly valuable objects of cultural heritage of the peoples of the Russian Federation, objects included in the List of World Heritage, historico-cultural reserves, archaeological heritage objects, museum-reserves;

5. allocated for defense and security purposes, defense industry, customs needs and not specified in paragraph 4 Article 27 of the Russian Land Code;

6. not specified in paragraph 4 Article 27 of the Russian Land Code within the boundaries of closed administrative-territorial formations;

7. intended for construction, reconstruction and (or) operation (hereinafter also referred to as placement) of maritime transport objects, inland waterway transport objects, air transport objects, navigational facilities for air traffic and navigation, infrastructure facilities of general use railway transport, as well as federal, regional, inter-municipal or local significance highways;

8. occupied by space infrastructure objects;

9. located under hydraulic engineering structures;

10. provided for the production of toxic substances, narcotic drugs;

11. contaminated with hazardous waste, radioactive materials, subjected to biogenic contamination, other land that has undergone degradation;

12. located within the boundaries of lands reserved for state or municipal needs;

13. in the first zone of sanitary protection areas of sources of drinking and household water supply.

Turnover of agricultural land is regulated by the Federal Law "On the Turnover of Agricultural Land". Formation of land plots from agricultural land is regulated by the Land Code of the Russian Federation (ZK RF) and the Federal Law "On the Turnover of Agricultural Land" (paragraph 6 Article 27 of the Land Code of the Russian Federation).

Paragraph 6 Article 27 of the Land Code of the Russian Federation does not apply to orchard or vegetable garden land plots, land plots designated for personal subsidiary farming, garage construction (including individual garage construction), as well as land plots where objects of real property are located (Paragraph 7 Article 27 of the Land Code of the Russian Federation).

It is prohibited to privatize land plots within the coastal zone established in accordance with the Water Code of the Russian Federation, as well as land plots where there are ponds, flooded quarries, within the boundaries of areas of public use (paragraph 8 article 27 of the Land Code of the Russian Federation).

1. Hegel G. W. F. Philosophy of Law. Transl. from German: Ed. and comp. by D.A. Kerimov and V.S. Nersesyants. Moscow: Myśl, 1990. P. 109. ↩
2. According to the most common definition, coinciding with the everyday understanding of property rights, the latter constitutes unlimited and exclusive dominance of a person over a thing // Shershenevich G.F. Selected Works. Vol. 5: Textbook of Russian Civil Law. Moscow: Statute, 2017. P. 236-237. ↩
3. Shershenevich G.F. Selected Works. Vol. 5: Textbook of Russian

civil law. M.: Statute, 2017. P. 238. ↩
4. «The owner of a thing may, provided that the law or the rights of third parties do not stand in the way, deal with the thing as he pleases and exclude others from any influence. The owner of an animal must observe the special provisions for the protection of animals when exercising his powers» // https://www.gesetze-im-internet.de/bgb/__903.html ↩
5. «La propriété est le droit de jouir et disposer des choses de la manière la plus absolue, pourvu qu'on n'en fasse pas un usage prohibé par les lois ou par les règlements» // https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006428859 ↩
6. «Property is, therefore, not a single absolute right, but a bundle of rights. The different rights which compose it may be distributed among individuals and society — some are public and some private, some definite, and there is one that is indefinite» // The distribution of wealth John Rogers Commons. New York, Macmillan,

1893. P. 92 https://archive.org/details/distributionofw00comm/page/92/mode/2up ↩
1894. Onore A. Ownership // Oxford Essays in Jurisprudence / ed. by A.W. Guest. Oxford, 1961. P. 112–128. https://dullbonline.wordpress.com/2020/08/19/a-m-honore-ownership-in-a-g-guest-ed-oxford-essays-in-jurisprudence-oxford-university-press-1961/ ↩
1895. Venedikov A.V. State Socialist Ownership // Moscow: Publisher of the Academy of Sciences of the USSR, 1948. P. 15. https://archive.org/details/gosudarstvennaia_sotcialisticheskaia_sobstvennost/page/n13/mode/2up ↩
1896. List of natural resources is provided in Article 1 of the Federal Law No. 7-FZ of January 10, 2002 "On Environmental Protection" as components of the natural

mediums, which include: land, subsoil, soil, surface and groundwater, atmospheric air, flora, fauna and other organisms, as well as the ozone layer of the atmosphere and near-Earth space,

providing collectively favorable conditions for the existence of life on Earth. ↩
10. Ownership of land. ↩
11. Limited use of other land parcels (servitude, public servitude), lease of land parcels, use of land parcels without charge. ↩