In practice, there are often situations in which two or more families live on the same allotment of land. In order to exclude the risk of land self-seizure, as well as to prevent disputes and conflicts with neighbors, there is a definition of the procedure for using the land plot.
Borders and Land Surveying
It seems that avoiding problems when using the allotment of land is easy. It is only necessary to divide it, for example, into two parts. However, in practice the situation is much more serious. Doubts begin with which part of the site to use. The process is complicated by the presence of a common house, as well as separate auxiliary rooms, such as a barn, garage and others.
How is the determination of the use of the land? You should start by strengthening the external borders that are established as a result of land surveying and registration by cadastre. For this, the boundaries must have coordinates made during the geodetic survey and the preparation of the boundary plan.
Thus, the determination of the procedure for using the land is carried out in the presence of a cadastral passport in which the corresponding borders are fixed. Only in this case is it possible to carry out internal distribution. Also, through the process of land surveying, the exact area is determined, which depends on the land title documents and the actual use (due to the fact that the legislation allows the increase in the area of the site within the framework of existing norms). If there is no cadastral passport, then it must be done. Owners pay these expenses together.
Expertise
Providing the necessary package of documents to the expert organization, the experts need to pose understandable questions to which unequivocal answers can be obtained. Questions are formulated in a logical sequence. Start with those of them, the answer to which affects the decision of others. These issues may include the following:
- What is the actual area of land allotted?
- Do the actual boundaries correspond to those established by the State Real Estate Cadastre?
- What are the options for using the allotment of land ideally and taking into account the established order?
- If it is impossible to isolate the share of the owners in kind, what are the options that are as close as possible to the ideal shares in the ownership right?
- What is the amount of compensation when transferring part of the property to the co-owner?
- Is there a need to transfer buildings, plantings, and if so, how much work is required, what is their cost to determine the use of the appropriate options, taking into account all communications?
Title Documents
Before you begin to determine the procedure for using the land, you must also make sure that the registration of ownership rights is proper. Data on this should be entered in the Unified Register of Real Estate Rights. A document confirming this right is a certificate of ownership or an extract from the registry (depending on the registration period). Rights are formed on the basis of:
- The current order of use.
- By the right of shared ownership.
Based on shares
In h. 2 Article. 247 of the Civil Code of the Russian Federation says that a participant in shared ownership is entitled to provide his share in the possession or use of other persons. The exercise of their right in relation to common real estate begins with determining the size of the share.For example, if the size of the plot is 40 acres, then when owning ½ share, the co-owner has the right to 20 acres.
An agreement on determining the procedure for using a land plot will be incomplete if you do not establish the boundaries of the land that all owners will use. For this purpose, a land survey is carried out by a cadastral engineer (if there are no disputes on this issue).
If there is a dispute, this specialist will also be required to draw up the document, which is necessary in court. The expert organization needs to explain the reasons for the examination, so that the expert offers several options. Despite the fact that this activity is carried out without a license, it is better to contact a government agency, since the courts give preference to them.
A lawsuit to determine the procedure for using the land is considered at the same time as the section of the house or after this process. This is explained by the fact that it is impossible to calculate the area of land under the house that this or that owner uses.
Before entrusting this process, it is worth visiting various organizations and finding out prices, as well as a list of services provided by specialists. Choosing an expert, you need to clarify all the details of the work, a list of necessary documents and other information. It is best that all the co-owners be present when resolving this issue.
Building Agreement
The decision on determining the use of the land always includes the use of the house for living and household buildings. If the owners agree on this issue, then an agreement is concluded. It does not need to be registered or certified by a notary. But the document must be in writing.
Going to court
They are sent to the judicial authority only if peace has not been achieved in the negotiation process. In this case, they are guided by the norms of the Civil Procedure Code of the Russian Federation. A lawsuit to determine the procedure for using the land shall be filed with the magistrate's court at its location. Judge contacts can be found in the RF automated system “Justice”. There you only need to indicate the address of the allotment of land, so that the system shows the necessary contacts for filing a claim.
The requirements on what the application should be are spelled out in Art. 131 Code of Civil Procedure of the Russian Federation, and a list of necessary documents is contained in Art. 132 Code of Civil Procedure of the Russian Federation. All data is overwritten from an expert opinion or survey plan.
In deciding the matter, the court takes into account the actual procedure for using real estate, which may not coincide with the shares in the same way as the co-owner’s need for real estate and the possibility of using it jointly. The final document on what will be the determination of the procedure for using the land plot is a court decision. In accordance with it, the respective rights are transferred to the co-owners.
What else do you need to know about determining the procedure for using a land plot?
Statement of claim
In court, you need to justify property rights with an appropriate evidence base. It is on this basis that the court will make a decision. The statement of claim on the determination of the use of the land should be made in strict accordance with the requirements of the law. It contains the following information:
- Details of the court.
- Information about the parties involved in the process, as well as interested parties, if any.
- Subject of the dispute (limits of the rights of participants).
- A descriptive part in which, in a dry, non-emotional language, legal events are indicated about a violation of the procedure for using the allotment of land or the inability to determine such an order.
- Claim.
- List of documents confirming the existence of rights that are attached to the statement of claim.
The determination of the procedure for using the land is considered by the court on a paid basis.Therefore, a claim with a paid state duty should be attached to the claim. In addition, copies must be made for the persons involved in the case. The court will forward them to all parties and interested parties.
Shares on the building
In par. 2 hours 1 tbsp. 35 of the RF Labor Code states that the transfer of ownership of a building is determined when accounting for shares in the building. Since the size of the allotment depends on the share, special attention should be paid to this issue. In the Civil Code, Art. 245.
In many cases, when living in a house of several families, people try to allocate rooms for themselves so as not to intersect with each other. Implementing this is not difficult, especially if you make a separate entrance. The result is a minimum of two apartments. These moments must be reflected in the data sheet in the BTI.
After this, you need to fix the share in the property, based on the occupied area. The following rule is used. The total area of the house, which is heated, is taken and divided by the area of a separate part. The result is a share in the total ownership of the house. To eliminate errors, it is better to contact the experts and conduct an appropriate examination.
Agreement or court
New shares in shared ownership are fixed in accordance with the law. In this case, an agreement is concluded, which must first be certified by a notary, and then by state registration. If there are disputes, a statement of claim is submitted to the judicial authority to determine the procedure for using the land plot.
Judicial practice is based on the shares of the allotment of land that existed initially even before the construction of the house. Thus, new extensions to their part of the house will not allow the co-owner to change the shares of the plot. Many litigations begin because of ignorance or misunderstanding of this issue. Knowing the shares on the house, it is possible to carry out land management expertise and choose two or more suitable options, taking into account the available shares.
Prevailing order
The transfer of ownership of the building is also carried out on the basis of the established procedure for using the allotment of land. In this case, the share of the house is not taken into account due to the fact that the use of the land has developed over a long period of time and has not changed. However, even future owners will not be able to challenge this order.
However, in this situation, it is also necessary to observe the conditions for surveying the allotment of land, have a cadastral document and determine the procedure for using the house. When conducting land management expertise, the specialist is tasked with the possibility of determining the use of land, according to the existing order and norms of the construction-technical type. Moreover, an expert can offer even one option. Subsequently, the procedure is carried out by concluding an agreement. If this fails, the court decides the determination of the procedure for using the land plot.
The difference from the section
Establishing the procedure for using the allotment of land does not depend on its area and the number of owners, while in the division these indicators are important. If the court refuses to section the site, this decision is not grounds for the inability to determine the procedure for its use. Despite the fact that both cases are similar, the procedures differ both in content and in consequences.
In one and the other case, a certain part of the allotment of land is transferred to the co-owners. But when establishing the procedure for use, the plot remains not divided, common property is preserved. Upon division, new plots of land are formed, and the former ceases to exist.
Conclusion
In order to achieve the desired result and at the same time comply with all established rules, this issue requires serious attention. In some cases, it can be solved without the involvement of specialists. But sometimes the help of lawyers is necessary. This will eliminate possible risks and other problems in the case.For example, only a specialist with knowledge in this narrow direction can correctly compose a statement on determining the procedure for using a land plot to take into account all the necessary data. To draw up a boundary plan, an appropriate expert is required. And if there is no agreement between the parties, it is best to contact a lawyer who will represent the interests of one of the parties in court.