The current needs of the public turnover of real estate, as well as the interest of its participants today necessitate the consolidation of fundamentally new complex real estate at the legislative level. It is worth noting that the most striking examples of real estate of the presented nature are the enterprise and a single real estate complex.
General Provisions
The above terms have many distinctive characteristics that determine the specifics of control over public relations, the objects of which are. That is why a clear distinction between the concepts of an enterprise and a single immovable complex is of crucial importance both in theory and in practice. It involves not only the separation of the relevant civil law objects from each other, but also the competent application of the necessary civil law regulation.
It is important to add that the introduction into the current Civil Code of a fundamentally new object of property rights of nature, a single immovable complex, is currently called upon to make the relevant registration procedure substantially easier, as well as to increase the efficiency of the operation of infrastructure facilities of an integrated plan.
A single immovable complex is a category whose practical relevance largely depends on the further harmonization of those provisions of the current legislation that correspond to it.
The concept of ENC
Further, it is advisable to consider the interpretation of the concept under study in accordance with article 133.1 of the Civil Code in force on the territory of the Russian Federation. So, the concept of a single immovable complex involves a combination of buildings, interconnected by a specific purpose, structures and other things that are inextricably linked both technologically and physically. Linear objects should also be included here, among which are power lines, railways, pipelines and so on.
It is necessary to add that this complex of structures can also be located on one plot of land when the right to own a combination of these objects as one real estate is registered in a single register of state rights to real estate. Due to the direct indication of the relevant article of the Civil Code of the Russian Federation in the absence of the registration procedure, the broadcast complex cannot be considered an ESC. A single immovable complex is a category that takes part in the turnover as a single object. Currently, the rules of indivisible things are used in relation to him.
Other provisions of the article of the Civil Code of the Russian Federation
In accordance with article 133.1 of the civil legislation in force on the territory of the Russian Federation, parts of one single immovable complex as an object of civil rights can be located on different land plots. That is why the refusal of the structure that carries out state registration of rights to real estate to register a single complex of immovable nature only because the corresponding real estate objects are not located on one plot of land, is not in accordance with the relevant provisions of Article 133.1 of the Civil Code of the Russian Federation.
It should be noted that in the framework of the ongoing reform of the civil legislation in force on the territory of the Russian Federation on October 1, 2013, those amendments entered into force by the Federal Law No. 142.These changes relate to the concept and composition of a single immovable complex, as well as other civil objects. It was then that a fundamentally new variety of immovable property complexes was introduced, which is discussed in this article. In addition, a number of refinements were made to the offsetting plan regarding the concept of an indivisible thing.
Legal design
At present, a single immovable complex is an immovable that takes part in the turnover as a single object. It is important to note that special rules on things of the indivisible type apply to the ESC. Inclusion of the studied concept in the current civil legislation presupposes the consolidation of the legal status and, therefore, simplification of the procedure related to registration, as well as an increase in the efficiency of the use of complex objects of infrastructure plan (including linear ones) in civil circulation.
Until recently, when identifying the status of such facilities, there were no difficulties only with regard to communication facilities of linear cable type, which are a vivid example of a single immovable complex and relate to immovable property complexes due to a direct indication of the current legislation. Thus, the first paragraph of the eighth article of the Federal Law “On Communications” dated 07.07.2003 No. 126 provides that communication facilities that are firmly connected to the ground, provided they cannot be moved without disproportionate harm, including the construction of a communication line-cable plan, are included in real estate category.
In other cases, due to the lack of specially created legislation, the status of the objects mentioned above is often determined by the judicial authorities on the basis of analysis of both technical and other features of specific objects. In this case, regulatory legal acts that govern the procedure for their operation are taken into account. In the absence of proper regulation, in judicial practice today there are different approaches to identifying the legal status of such objects.
Legal Aspect: Conclusion
Given the above information, the legal construction of a single immovable complex as an object of civil rights can probably be of interest to owners of both complex industrial enterprises and infrastructure objects of a complex plan when the design and subsequent circulation of these assets is considered as a single object. Nevertheless, the feasibility, effectiveness and relevance in practice of such structures will depend primarily on the harmonization and development of the provisions of the current legislation of a corresponding nature with regard to the regulation of urban and land relations.
This also includes cadastral registration of unified immovable complexes, as well as registration of relevant rights. Thus, it is advisable to conclude that the concept of recognition of an enterprise as a single property complex by real estate, provided for by the current civil legislation, has not found wide application at present. This also includes the reason for the practical difficulties arising from the registration of enterprises as single objects.
ENK and enterprise
It is important to note that initially for quite a long time there was a discussion regarding the idea of excluding the concept of enterprise from civil law and leaving only the possibility of registering a single real estate complex. By the way, the “single property complex” is one of the names that was then proposed. Nevertheless, the final version of Federal legislative act No. 142 retained the name "enterprise".
It must be borne in mind: both legal constructions presented indicate that they can include both movable and immovable things, which are generally recognized as immovable property complexes due to a direct indication of the current legislation. At the same time, the “enterprise” and the “single immovable complex” are constructions that have a number of differences, which include the following:
- At the legislative level, a single complex of real estate refers strictly to things of an indivisible nature. An enterprise can take part in commercial turnover both as a single object and in parts.
- The composition of a single complex of real estate includes only things, but not the rights and obligations of a property nature, as well as exclusive rights. With regard to the enterprise, the opposite is true.
- If they talked about the enterprise, then the current legislation established the procedure for the implementation of certain types of transactions. The legal status of a single complex of real estate is regulated only through provisions of a general nature.
- A sign of a single immovable complex is not its use in order to implement entrepreneurial activity. With regard to the enterprise, everything is different.
Despite the fact that there are obvious differences between an enterprise and a single complex of real estate, today it is quite difficult to assess how these concepts will relate to each other in terms of registration of rights, accounting and taxation. In addition, the state cadastral registration of a single real estate complex is carried out in a completely different way than the accounting of an enterprise.
Application and signs of ENC
Further, it is advisable to consider the signs and prospects of using a single real estate complex in civil circulation. As it turned out, Federal Law No. 142 defines only general provisions regarding the legal status of the category in question. However, the lack of legal regulation regarding the rules and the procedure for using a single complex of real estate in civil circulation can significantly reduce the practical attractiveness of this design for business entities. It is advisable to study some aspects that require close attention from the point of view of future prospects for using the legal structure of a single complex of real estate in civil circulation.
Firstly, it is registration of rights and cadastral registration of a single complex of real estate. Today, the current legislation does not provide for consistent and special rules regarding the state registration of rights to a given real estate property or the procedure for registering a structure with cadastral records.
Secondly, the exercise by the owner of a single complex of real estate exclusive rights related to the lease or privatization of a plot under the ESC. Article 36 of the current land legislation provides information that today there is an exclusive right of owners of buildings, buildings, structures to privatize land or to acquire the right to lease land on which these structures, buildings and buildings are located.
It is worth noting that none of the currently known types of a single real estate complex is mentioned in this article, however, it can be concluded that the co-owner of the ENC should be vested with the exclusive right indicated above with respect to the land for a single real estate complex.
ENK Section
As noted above, it is customary to apply rules on things of an indivisible nature to a single complex of real estate. The concept of an indivisible plan thing was changed by the current Federal Law No. 142, probably to take into account the characteristics of the ESC as a fundamentally new variety of real estate complexes.
It is worth noting that previously those things were considered indivisible, the division of which in principle is impossible, if their purpose is not changed. It is important to add that the peculiarities of allocating a part of the right to own an indivisible thing are established by the relevant standards of civil law in force in the Russian Federation in the field of division of property complexes that are in shared ownership. From October 1, 2013, it is necessary to know that under the indivisible one should understand a thing whose section is impossible if it is not damaged, not violated or changed in purpose. Such a thing appears in civil circulation as a single object of property rights. At the same time, the relevant normative specifies that the object that has the components can also be considered indivisible.
In addition, in the law under consideration it is determined that the replacement of one component of an thing of an indivisible nature with another does not entail the appearance of another thing, if at the same time the original, basic properties of this object are preserved. Therefore, when drawing up the technical plan of a single immovable complex, it is necessary to take this fact into account and be guided by the base in terms of components.
It is worth noting that the collection of things of an indivisible nature can be reversed only in general terms, if a judicial act or law does not establish the possibility of separating one or another component from the thing, including for its implementation as a separate product. Relations related to shares in the right to own an indivisible thing are regulated through Article 1168 and Chapter 16 of the Civil Code in force in the Russian Federation. Thus, in the case of applying the design of a single complex of real estate, an economic entity must take into account the features listed above related to the rules and procedures for the alienation of the ESC, as well as to the procedure for foreclosing it, the order and rules for disposing of the structure when it is in common ownership.
Tax aspect
In accordance with the general rule, the taxable objects for organizations of the Russian Federation are real estate and movable property, which are recorded on the balance sheet as objects of fixed assets (fixed assets) in the manner established for accounting. In this case, the taxable item is not movable property tax on property complexes, which is registered as fixed assets from 01.01.2013. A single complex of real estate is somehow taxed on property, falls into the corresponding category of objects.
Conclusion
It is important to note that today, due to the novelty of the considered legal structure, it is difficult to imagine which approach in terms of calculating tax payments on property complexes can be used by tax authorities when a company decides to register a complex of individual objects as a single aggregate of real estate.
In order to optimize the tax issue, some movable items will not be part of the ESC. Among them, for example, are individual objects of the inventory type. So, they are accounted for as separate components of fixed assets; can be used outside the property; involve the exclusion of damage to property complexes during dismantling. It is believed that the functional purpose of these objects does not act as an integral component of the functioning of real estate as a whole.