Today, the real estate market is highly valued suburban areas for housing. In this regard, the transfer of agricultural land into another category for the purpose of subsequent development is of particular relevance.
Why developers are interested in agricultural land
Russian citizens want (at least those who can afford it) to own country houses built on their own land plots, so that on weekends and during vacations they can relax there from the polluted air, noise and bustle of big cities, and many are not averse to live them.
Like mushrooms after rain in the last decade, elite cottage villages built on former agricultural lands have been growing around large industrial centers, and previously developers had to transfer agricultural land to another category. As a rule, this is the territory of settlements, allowing residential development.
From their point of view, this is quite logical. And on what land is still being built? After all, the share of lands of settlements in the total land fund of Russia is only about 1%, and the possibilities to use them for construction are almost exhausted. So developers turn their keen eyes to the vast Russian fields, biting off new pieces from them, initiating the transfer of agricultural land plots to another category.
What threatens Russia with the development of agricultural land
It would seem that there are plenty of such sites in Russia - over 400 million hectares. However, throughout the post-Soviet period, there was a steady tendency toward a decrease in their area. In 2012 alone, the area of the main resource from the composition of these lands, namely agricultural land, decreased by 315.7 thousand hectares, and their area in Russia is only 195 million hectares. And the main reason for its reduction is precisely the transfer of agricultural land to another category. The year 2014 could put an end to this practice, when State Duma deputies from A Just Russia submitted a corresponding bill for consideration. So far, it has not been adopted, but individual regions are already taking measures on their own.
So, in the current year, a ban was introduced on the transfer of agricultural land to another category in the Moscow Region for use for multi-story construction. Regional authorities hope that this measure will create additional incentives for owners to use their land for its intended purpose.
Agricultural land (according to the RF Land Code)
According to the RF Labor Code, such plots are always located outside the settlements and provided, and are also intended for farming.
As mentioned above, a little less than half the area of all agricultural land is occupied by farmland - this is arable land, meadows for haying, pastures, orchards, vegetable gardens, vineyards, etc. Hunting farms also belong to this.
The second half of the total area of all agricultural sites (or slightly more than half) is located under roads passing inside agricultural enterprises, various utilities, forest belts, ponds for land reclamation and fish farming, as well as various outbuildings.
Obviously, half of the agricultural land of developers not interested in land is of little interest to them - after all, these territories are already built up with something or are occupied by some linear structures. For residential development, the only possible way is to transfer plots from farmland to another category.
Types of permitted use of farmland
What opportunities does Russian law provide for the implementation of this procedure? The LC RF states that the legal regime of any land is determined by two of their main characteristics:
- belonging to one or another category;
- permitted use, which is established during the zoning of territories.
This is where the first snag lurks. If there is no doubt about the belonging of farmland to the category of agricultural land (category 1 according to the RF Land Code), there is no complete clarity regarding their permitted use.
Indeed, to date, the only type of territorial survey actually carried out in the Russian Federation is urban planning zoning. For farmland, it is not maintained, and VRI plots from their composition is not established.
True, according to some experts in the field of land legislation, the list of types of their use given in Article 78 of the RF Labor Code may be accepted as the VRI of farmland plots. In addition, Federal Law No. 101 “On the Turnover of Agricultural Land” identifies plots from their composition, the legal regime of which is regulated exclusively by the RF LC, and intended for such purposes:
- under IZHS;
- under garages;
- for LPS;
- for cottages;
- under gardens and kitchen gardens;
- under pasture;
- under various outbuildings.
So, the Town Planning Code (GRK RF) allows the inclusion in the composition of settlements as farmland, as well as cottage and garden areas. And this just means the transfer of agricultural land to another category.
Is it possible to build up farmland without including them within the boundaries of settlements?
As you know, each municipality in Russia must adopt its own Land Use and Development Rules (LAR), which are required to include urban planning regulations. They indicate lists of VRI for land plots and capital construction projects within each territorial zone. The effect of such regulations on farmland as part of agricultural land does not apply, territorial zoning is not carried out, and VRI plots from farmland are not established, which means that they cannot be changed.
This excludes the development of agricultural plots beyond the borders of settlements. Until a separate legislation on territorial zoning outside cities, villages, urban settlements, etc., has been adopted, farmland is protected from being removed from agricultural circulation through development.
Consequently, it is possible to establish the VRI of agricultural plots outside the settlement providing for their development only by transferring the agricultural land to another category.
For what purposes it is permissible to transfer farmland to another category
The list of exceptional cases in which such a transfer is allowed is given in special Federal Law No. 172 on the procedure for performing this procedure.
According to this law, the transfer of agricultural land to another category is carried out in the following cases:
- during their conservation;
- when creating reserves, wildlife sanctuaries, resorts, natural parks, including dendrological, botanical gardens, etc.
- when establishing or changing the boundaries of settlements;
- when placing industrial facilities on agricultural land, the cadastral value of which is less than its average level in the municipality;
- if agricultural plots unsuitable for agricultural production are included in the composition of forests or ponds, as well as land in reserve;
- when linear objects are built on them;
- in the fulfillment by the Russian Federation of its external obligations, as well as in the construction of defense facilities on these lands;
- at the beginning of mining in these areas of minerals;
- when placing various objects on them to meet the needs of citizens (social, cultural, etc.).
The transfer of agricultural land to another category is prohibited for farmland, which are of particular value and productivity. They include experimental fields of agricultural research institutes and universities, as well as plots with a cadastral value significantly exceeding its average level in a municipality. An exception to this rule may be the cases described in paragraphs 3, 6, 7 and 8 of the above list.
By the way, starting in February last year, questionable, from the point of view of legality, the transfer of agricultural land to another category (meaning in 2014) is also fraught with a significantly increased fine for the misuse of such plots. The amount of penalties is in the range of 200-500 thousand rubles, depending on their cadastral value.
How does the transfer of land to another category begin
The first step is to submit the appropriate application to the authorized body of executive state power. The aforementioned application shall indicate:
- cadastral number;
- available and desired land category;
- what is the reason for the transfer;
- form of land rights.
The transfer of agricultural land to another category is carried out by the state authority of the constituent entity of the Russian Federation (except for plots of federal property) or by the Government of the Russian Federation (in relation to federal lands).
Additional documents for translation
Additionally, you will need:
- extract from the state cadastre for the site or its cadastral passport;
- copies of personal documents of the applicant;
- extract from the Unified State Register;
- the conclusion of state eco-examination (if necessary);
- consent of the copyright holder, if requested by the land user.
Copies of personal documents and the consent of the copyright holder are submitted by the petitioner to the authorized body of state power along with the petition. The remaining documents are not required to be submitted, because an authorized state agency can request them independently. However, to expedite the procedure, it is better to take care of their availability and leave it to yourself.
Terms for considering a transfer application
The Government of the Russian Federation considers it within three months, and the subjects of the Russian Federation are obliged to consider the document within two months from the date of its receipt.
As a result, either an act with a positive decision or an act with a refusal of such a transfer is adopted.
In any case, the document is sent to the applicant within two weeks from the date of its adoption.
The act shall indicate:
- what is the reason for the adopted change;
- parameters, description and cadastral numbers of plots;
- source and destination categories.
How can the adoption of an act of refusal of transfer be justified
Transfer of agricultural land to another category is not allowed if:
- it is restricted or prohibited by federal law;
- state eco-examination gave a negative opinion during its implementation;
- the intended purpose of the land does not comply with the approved plans for the further use of the territory.
Amendments to the state real estate cadastre and to the Unified State Register when transferring land to another category
The authorized body of state power, which adopted the act on the transfer of land, sends a copy (up to 5 days from the date of its adoption) to Rosreestr. The latter makes changes to the state cadastre and the Unified State Register of Enterprises within 7 days and notifies all interested parties about this. The transfer of land is deemed to have entered into force from the date of its registration in the state cadastre (due to a change in its category).
Documents confirming the rights to land, when changing the category of land are not reissued.
Transfer to the lands of settlements
As mentioned above, agricultural plots can be included in settlements with the assignment of a different category to them - “land of settlements”. Once inside their borders, they find themselves in the composition of a specific territorial zone, which is subject to urban planning regulations, including the establishment of VRI, providing for their development.The procedure for such inclusion with the simultaneous establishment (or change) of VRI can be performed in accordance with Art. 41 of the Federal Law "On the entry into force of the Civil Code of the Russian Federation."
