Is mandatory state registration of a decision on the forthcoming...

Is a mandatory state registration of a decision on the forthcoming removal of land for state or municipal needs?

The answer to this question allows us to formulate a review of the materials of the following case.

By the Decree of the Government of the Sverdlovsk Region of February 28, 2006, No. 159-PP "On seizure by buying out land plots, living quarters and other real property from landowners located on the land plots being withdrawn for state needs of the Sverdlovsk region, roads Yekaterinburg - Tyumen on the section km 42 - km 63, 1 stage of construction, 1 launch complex km 42 - km 46 (bypass Beloyarskiy settlement) in the Sverdlovsk region in order to build a highway, a decision was made to seize the land, including a part of the land plot located in Boyarka village, Zarechny town, on the street. March 8, XX (line 23 of the annex to the resolution).

Based on Art. 4 of the Law on Registration of Rights to Real Estate, Art. 55 US LC The Ministry of State Property Management of the Sverdlovsk Region applied to the Office of the Federal Registration Service for the Sverdlovsk Region (hereinafter - UFSF for the Sverdlovsk Region) with a request to register the abovementioned resolution of the Sverdlovsk Region Government as encumbrance on the said land plot.

Communication No. 26/008/2008-227 of the Federal Security Service of the Sverdlovsk region on 16.04.2008 denied state registration, while the refusal is motivated by the lack of state registration of the right to a land plot, the state registration of the encumbrance to which the applicant applied, which, in the opinion registration authority is an obstacle to state registration. Disagreeing with the refusal to register this decision as encumbrance of rights to a land plot, the Ministry of State Property Management of the Sverdlovsk Region applied to the court.

Having assessed the factual circumstances, having examined the evidence available in the case materials, having heard the explanations of the representatives of the persons participating in the case, the court considers that the claims are subject to satisfaction on the basis of the following. According to paragraph 1 of Art. 279 CC US land can be withdrawn from the owner for state or municipal needs by redemption. In accordance with paragraph 4 of Art. 279 of the US Civil Code, a decision of a federal executive body, an executive body of a United States entity or a local government body to seize a land plot for state or municipal needs is subject to state registration in the body that registers the rights to the land plot.

Clause 1 of Art. 4 of the Law on Registration of Rights to Immovable Property established that restrictions (encumbrances) of rights to immovable property arising on the basis of a contract or an act of a government authority or an act of a local government body are subject to state registration in cases provided for by law.

Under the restriction (encumbrance) in accordance with para. 4 tbsp. 1 of the Law on Registration of Rights to Immovable Property is understood as the existence of conditions established by law or by authorized bodies in the prescribed manner, prohibitions that restrict the right holder in the exercise of the right of ownership or other real rights to a particular real property object. On the basis of paragraph 2 of Art. 13 of the Law on Registration of Rights to Immovable Property, state registration of the restriction (encumbrance) of rights established in accordance with the law in the public interest by state authorities and local self-government bodies is carried out on the initiative of these bodies with mandatory notification of the owner of the real estate object. >

Thus, the decision to seize land for state and municipal needs as encumbrance is subject to state registration in the Unified State Register as a limitation (encumbrance) of rights to real estate. In addition, the very possibility of withdrawing a site does not require prior approval from the person who will be seized property. The court does not accept the interested person's argument that state registration can not be conducted due to the absence of a record of rights to the seized lot in the EGRP, as well as the failure to submit documents for the registration of the previous right, based on the following.

In accordance with paragraph 1 of Art. 6 of the Law on Registration of Rights to Immovable Property rights to immovable property that arose before the entry into force of the said Law are recognized as valid in the absence of their state registration introduced by the said Law. State registration of such rights is carried out at the request of their owners. Thus, the state registration of rights to real estate that arose before the entry into force of this law is possible only on the basis of the will of the right holder. The seizure of the land plot for state and municipal needs is carried out in the public interest, and the exercise of such authority can not be made dependent on the will of the rightholders of land plots. Consequently, the decision on seizure can be taken, and state registration is carried out contrary to the desire of the owner of the right to land.

Based on the foregoing, the court considers that all conditions for state registration of the resolution of the Government of the Sverdlovsk region of February 28, 2006 No. 159-PP as encumbrance of rights to the land plot were met and there were no grounds for refusing state registration, and consequently, the actions of the FRS on the Sverdlovsk region on refusal to state registration of the resolution of the Government of the Sverdlovsk region of February 28, 2006 No. 159-PP do not comply with the requirements of the law.

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