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This chapter will cover the following topics:
Within the topic of the concept of ownership rights to land plots, definitions of ownership rights are considered. We will examine the relationship between such categories as ownership and ownership rights. We will consider the definition of ownership rights in Russian legislation and foreign legal systems, examining 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. We will examine approaches to ownership in legal and economic literature, considering the relationship between ownership as a legal and economic category. We will consider the general definition of ownership rights and the specifics of ownership rights to land plots. Specifics of applying property law norms regarding ownership in relation to land plots.
The content of property rights in land plots is considered through so-called "triad of entitlements". However, how appropriate is this approach? Is it a universal legal principle or a feature of the Russian legal system? We will answer these and many other questions in the corresponding paragraph 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 legal category come into Russian legislation? It is important to consider this category in the historical context.
In the paragraph devoted to ownership of land by individuals and legal entities, we will mainly examine provisions of Russian legislation that regulate the relevant relationships. We will look at similarities and differences between the property rights of individuals and legal entities on 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; these topics deserve separate examination.
The local self-government bodies play an important role, as they have broad powers in the area of land resource management. These issues are also addressed in a separate paragraph of this chapter – municipal ownership of land.
It is also impossible to overlook the grounds for acquiring rights to land, which form the basis of the property land turnover. We will examine the relationship between legal provisions established 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. In what ways are land and property relations similar and different.
Special consideration deserves the issues of marketability and restrictions on the marketability of land plots. These topics largely demonstrate the complexity of the legal regime of land plots, which appears to be comprehensive and multi-faceted.
In the act of a person placing their will into an object lies the concept of ownership; everything else is merely its realization. The internal act of my will, which states that something is mine, must be recognized by others. If I make an object mine, I impart this predicate to it, which must manifest externally, and not remain solely within my inner will. Among children, it often happens that they protest against others' possession of an object, claiming they wanted it earlier; however, for adults, this subjective desire is insufficient, since the form of subjectivity must be removed and must achieve objectivity1.
Property rights – a category primarily economic, property-related, private law, and civil law. For this reason, it is necessary to first consider the general (civil law) definition of the concept of property rights. G.F. Shershenevich, a classic of pre-revolutionary Russian legal thought, defined property rights as unlimited and exclusive domination by a person over a thing2. The given definition fully corresponds to modern realities with the only addition that such domination must be exercised within the limits of the legal regime established for the relevant thing.
The legal regime in literature is understood as the order of possible and required behavior towards an object established by legal norms. Land has a complex and differentiated legal regime, including a large number of restrictions. For example, the legal regime of land provides for the use of land in accordance with its designated purpose and permitted usage. Thus, unlimited and exclusive domination of a person over an object should not lead to the degradation of land (which is considered a violation, the commission of which entails legal consequences in the form of legal liability).
Ownership rights to a land plot represent the most complete domination of a person over such a plot in accordance with its legal regime.
Modern civil legislation defines the content of property rights through so-called "triad of entitlements." According to paragraph 1 of Article 209 of the Civil Code of the Russian Federation, the owner has the rights of possession, use, and disposal of their property. "Possession is factual domination over a thing. Use consists in deriving benefits from the thing that determine its economic value. Disposal provides the possibility of performing various remunerated and non-remunerated transactions with this very thing as their object."3.
The consideration of the content of property rights through the triad of powers 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 prohibited by law or the rights of third parties, to dispose of the thing at his own discretion and to prevent interference by other persons"4. According to Article 544 of the Napoleonic Code, "Property is the right to use and dispose of things in the most absolute manner, provided that a person does not use them in ways prohibited by laws or decrees"5. Thus, the content of property rights in the Napoleonic Code includes both use and disposal, whereas in the German Civil Code it includes only disposal.
In common law jurisdictions, the so-called "bundle of rights" doctrine has become widely accepted, according to which "Ownership is not a single absolute right, but a collection of rights. The various rights that make up ownership can be distributed among individuals and society: some are public, others are private, some are specific, and others are indeterminate"6. According to A. Honore, property rights include 11 elements: 1) the right of possession; 2) the right of use; 3) the right of management; 4) the right to income; 5) the right of disposition; 6) the right to security; 7) the right to inherit; 8) the absence of a time limit; 9) prohibition of harmful use; 10) liability in the form of compensation; 11) residual character7.
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. The author justified his position by stating that property rights are not limited to these three entitlements. Moreover, an owner may be deprived of all three entitlements yet retain property rights. Acknowledging this, the author rightly warned against underestimating the role of these entitlements in the exercise of property rights, in the realization of those socio-economic relations which find their legal expression in property rights8.
Land and other natural resources9 may be in private, state, municipal, and other forms of ownership (paragraph 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 dividing state ownership of land into ownership by the Russian Federation, ownership by subjects of the Russian Federation, and ownership by municipal formations, according to which the legal basis and procedure for such division are established by federal laws (subparagraph 9 of paragraph 1 of Article 1 of the Land Code of the Russian Federation).
The norm provided specifies an open list of forms of ownership, some of which are explicitly mentioned: private, state, and municipal. As separate forms of ownership, the commented article refers to subjects of private property rights in 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 of the Russian Federation) and municipal formations (through local self-government bodies). Other forms of ownership are not specified in legislation.
Land ownership is regulated by Chapter III of the Land Code of the Russian Federation. Within this chapter, provisions are provided regarding:
• land ownership by citizens and legal entities (Article 15 of the Land Code of the Russian Federation);
• state ownership of land (Article 16 of the Land Code of the Russian Federation);
• federal ownership of land by the Russian Federation (Article 17 of the Land Code of the Russian Federation);
• land ownership by subjects of the Russian Federation (Article 18 of the Land Code of the Russian Federation);
• municipal ownership of land (Article 19 of the Land Code of the Russian Federation).
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 that are in state or municipal ownership may be transferred into ownership by citizens and legal entities, except for land plots which, according to 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 may not own land plots located on border territories, the 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 accordance with federal laws (paragraph 3 of article 15 of the Land Code of the Russian Federation).
State-owned land includes land not owned by citizens, legal entities or municipal formations (paragraph 1 of article 16 of the Land Code of the Russian Federation).
The division of state ownership of land into ownership of the Russian Federation (federal ownership), ownership of subjects of the Russian Federation and ownership of municipal formations (municipal ownership) is carried out in accordance with this Code and federal laws (paragraph 2 of article 16 of the Land Code of the Russian Federation).
According to Article 17 of the Land Code of the Russian Federation, land plots are in federal ownership:
• which have been recognized as such by federal laws;
• on which the right of ownership of the Russian Federation arose during the delimitation of state ownership of land;
• which have been acquired by the Russian Federation on grounds provided for by civil legislation.
According to paragraph 1 of Article 18 of the Land Code of the Russian Federation, land plots are in the ownership of subjects of the Russian Federation:
• which have been recognized as such by federal laws;
• on which the right of ownership of subjects of the Russian Federation arose during the delimitation of state ownership of land;
• which have been acquired by subjects of the Russian Federation on grounds provided for by civil legislation;
• which have been transferred free of charge to the subjects of the Russian Federation from federal ownership.
In the subjects of the Russian Federation - the cities of federal significance Moscow, Saint Petersburg, and Sevastopol, a land plot, from which the owner has renounced ownership rights, becomes the property of the respective subject of the Russian Federation - the city of federal significance Moscow, the subject of the Russian Federation - the city of federal significance Saint Petersburg, or the subject of the Russian Federation - the city of federal significance Sevastopol, as of the date of state registration of the termination of ownership rights to it, unless laws of the aforementioned subjects of the Russian Federation provide otherwise that such land plot is the property of municipal formations located on the territories of the aforementioned subjects of the Russian Federation (paragraph 3 of article 18 of the Land Code of the Russian Federation).
According to paragraph 1 of article 19 of the Land Code of the Russian Federation, municipal ownership includes land plots:
• which are recognized as such by federal laws and laws of the subjects of the Russian Federation adopted in accordance with them;
• on which the right of municipal ownership arose during the delimitation of state ownership of land;
• which have been acquired on the grounds established by civil legislation;
• which have been transferred to municipal ownership from federal ownership without charge.
If otherwise not provided for by other federal laws, a land plot, from which the owner has renounced ownership rights, becomes the property of the municipal district, urban district, city or rural settlement as of the date of state registration of the termination of ownership rights on it, or in the case of such a land plot being located on an inter-municipal territory, the property of the municipal district where the land plot is located (paragraph 1.1 of article 19 of the Land Code of the Russian Federation).
Lands owned by the subjects of the Russian Federation may be transferred free of charge to municipal ownership for their development, including outside the boundaries of municipal formations (paragraph 3 of Article 19 of the Land Code of the Russian Federation).
According to paragraph 5 of Article 19 of the Land Code of the Russian Federation, land plots owned by the subjects of the Russian Federation may be transferred free of charge to municipal ownership for their allocation to certain categories of citizens and (or) non-commercial organizations established by citizens in accordance with subpoints 6 and 7 of Article 39.5 of the Land Code of the Russian Federation.
Land plots owned by one municipal formation may be transferred free of charge to the municipal ownership of another municipal formation for their allocation to certain categories of citizens and (or) non-commercial organizations established by citizens in accordance with subpoints 6 and 7 of Article 39.5 of this Code.
Land plots owned by subjects of the Russian Federation or municipal property may be transferred free of charge to the ownership of subjects of the Russian Federation - cities of federal significance, Moscow, Saint Petersburg, and Sevastopol, for their provision to certain categories of citizens in accordance with sub-item 6 of paragraph 39.5 of this Code, as well as to certain categories of citizens and (or) non-commercial organizations established by citizens, in cases where the grounds for the free allocation of land plots to these persons are provided by this Code or other federal laws.
The grounds for the emergence of rights to land are regulated by Article 25 of the Land Code of the Russian Federation. Rights to land plots provided for in Chapters III10 and IV11 of the Land Code of the Russian Federation arise on the 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 of Article 25 of the Land Code of the Russian Federation).
State registration of transactions with land plots is mandatory in cases specified in federal laws (paragraph 2 of Article 25 of the Land Code of the Russian Federation).
Land plots that were nationalized before January 1, 1991, in accordance with the legislation in force at the time of nationalization of the land plots are not subject to return, compensation or reimbursement (paragraph 3 of Article 25 of the Land Code of the Russian Federation).
Objects of land relations (in accordance with paragraph 1 of article 6 of the Land Code of the Russian Federation) are: 1) land as a natural object and natural resource; 2) land plots; 3) parts of land plots.
A land plot, as an object of ownership and other rights provided for by the Land Code of the Russian Federation on land, is an immovable thing, which is a part of the earth's surface and has characteristics allowing it to be identified as an individually defined thing. 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).
Immovable things (immovable property, real estate) include land plots, subsoil plots and everything that is firmly connected to the earth, i.e., objects whose movement without disproportionate damage to their purpose is impossible, including buildings, structures, and unfinished construction objects (paragraph 1 of article 130 of the Civil Code of the Russian Federation).
The grounds for the emergence and the procedure for exercising ownership and other real rights are determined by civil legislation (paragraph 1 of Article 2 of the Civil Code of the Russian Federation). 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); ownership, use, and disposal of land and other natural resources are carried out freely by their owners, provided that this does not cause damage to the environment or violate the rights and legitimate interests of other persons (part 2); conditions and procedures for using land are determined on the basis of federal law (part 3).
Provisions regarding ownership and other real rights in respect of land are set out in Chapter 17 of the Civil Code of the Russian Federation.
Persons owning a land plot have the right to sell it, give it as a gift, 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 of Article 260 of the Civil Code of the Russian Federation).
On the basis of the law and in the order established by it, lands of agricultural and other designated purposes are determined, the use of which for other purposes is not allowed or restricted. The use of a land plot belonging to such lands may be carried out within the limits defined by its designated purpose (paragraph 2 of article 260 of the Civil Code of the Russian Federation).
Marketability of civil rights objects is determined by Article 129 of the Civil Code of the Russian Federation. Objects of civil rights may be freely transferred or pass from one person to another in the order of universal succession (inheritance, reorganization of a legal entity) or otherwise, unless they are restricted in circulation (paragraph 1 of article 129 of the Civil Code of the Russian Federation).
By law or in a manner prescribed by law, restrictions on the transferability of civil rights objects may be introduced, in particular, certain types of civil rights objects that may belong only to specific participants in circulation or with which transactions may be concluded upon special authorization may be provided for (paragraph 2 of Article 129 of the Civil Code of the Russian Federation).
Land and other natural resources may be transferred or pass from one person to another, or by other means, to the extent that their transfer is permitted by laws on land and other natural resources (paragraph 3 of Article 129 of the Civil Code of the Russian Federation).
Restrictions on the transferability of land plots are defined in Article 27 of the Land Code of the Russian Federation. According to this article, the 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 that are classified as land withdrawn from circulation cannot be transferred into private ownership or serve as objects of transactions provided for by civil legislation. Land plots classified as land restricted in circulation are not transferred into private ownership, except in cases established by federal laws (paragraph 2 of Article 27 of the Land Code of the Russian Federation).
The content of restrictions on the circulation of land plots is established by the Land Code of the Russian Federation and federal laws (paragraph 3 of Article 27 of the Land Code of the Russian Federation). According to paragraph 4 of Article 27 of the Land Code of the Russian Federation, land plots occupied by objects located in federal ownership are withdrawn 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 Armed Forces of the Russian Federation, other troops, military formations, and bodies are permanently stationed, except in cases established by federal laws;
3) buildings and structures housing military courts;
4) objects of federal security service organizations;
5) objects of state protection agency organizations;
6) nuclear energy facilities, storage points for nuclear materials and radioactive substances;
7) objects in accordance with the types of activities which closed administrative-territorial formations have been established;
8) objects of institutions and bodies of the Federal Penitentiary Service;
9) military and civilian cemeteries;
10) engineering and technical structures, communication lines and communications constructed in the interests of protection and security of 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 municipality 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 for 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 land fund;
3) within which water bodies 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 World Heritage List, historic and cultural reserves, archaeological heritage objects, museum-reserves;
5) allocated for defense and security, defense industry, customs needs and not specified in paragraph 4 of article 27 of the Land Code of the Russian Federation;
6) not specified in paragraph 4 of article 27 of the Land Code of the Russian Federation within the boundaries of closed administrative-territorial formations;
7) intended for construction, reconstruction and (or) operation (hereinafter also referred to as placement) of marine transport objects, inland waterway transport objects, air transport objects, navigation support facilities for air traffic and shipping, infrastructure objects of general use railway transport, as well as federal, regional, intermunicipal or local significance highways;
9) occupied by space infrastructure objects;
10) located under hydraulic engineering structures;
11) allocated for the production of toxic substances and narcotic drugs;
12) contaminated with hazardous waste, radioactive substances, subjected to biogenic contamination, other degraded land;
13) located within the boundaries of lands reserved for state or municipal needs;
14) in the first zone of sanitary protection areas of sources of drinking and household water supply.
The circulation of agricultural land is regulated by the Federal Law "On the Circulation of Agricultural Land". The formation of land plots from agricultural land is regulated by the Land Code of the Russian Federation and the Federal Law "On the Circulation of Agricultural Land" (paragraph 6 of Article 27 of the Land Code of the Russian Federation).
Paragraph 6 of Article 27 of the Land Code of the Russian Federation does not apply to garden or allotment land plots, land plots designated for the operation of a personal subsidiary plot, garage construction (including individual garage construction), as well as land plots on which there are objects of real estate (paragraph 7 of Article 27 of the Land Code of the Russian Federation).
Privatization of land plots within the shore zone established in accordance with the Water Code of the Russian Federation, as well as land plots on which ponds, flooded quarries are located, within the boundaries of territories of public use is prohibited (paragraph 8 of Article 27 of the Land Code of the Russian Federation).
2017. P. 236-237.
1961.
Hegel G. W. F. Philosophy of Right. Translated from German: Ed. and comp. D.A. Kerimov, V.S.M.: Thought, 1990. P. 109. ↩
According to the most common definition, coinciding with the everyday understanding of property rights, these consist of unlimited and exclusive domination by a person over a thing // Shershenevich G.F. Selected Works. Vol. 5: Textbook of Russian Civil Law. Moscow: Statut, ↩
Shershenevich G. F. Selected Works. Vol. 5: Textbook of Russian Civil Law. Moscow: Statut, 2017. P. 238. ↩
"The owner of a thing may, unless the law or rights of third parties oppose, 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 ↩
Property is the right to enjoy and dispose of things in the most absolute manner, provided that they are not used in a way prohibited by laws or regulations // https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006428859. ↩
"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 ↩
Onore A. Ownership. ↩
Venedikov A. V. State Socialist Ownership. Moscow: Publishing House of the Academy of Sciences of the USSR, 1948. ↩
The list of natural resources is provided in Article 1 of the Federal Law of January 10, 2002 No. 7-FZ "On Environmental Protection" as components of the natural environment, which include: land, subsoil, soil, surface and groundwater, atmospheric air, flora and fauna, other organisms, as well as the ozone layer of the atmosphere and near-Earth space, which together provide favorable conditions for life on Earth. ↩
Ownership of land. ↩
Limited use of land plots belonging to others (servitude, public servitude), lease of land plots, gratuitous use of land plots. ↩
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