УДК 349.41

О НЕКОТОРЫХ ТЕКУЩИХ ПРОБЛЕМАХ В ЗЕМЕЛЬНОМ ЗАКОНОДАТЕЛЬСТВЕ

Липски Станислав Анджеевич
Государственный университет по землеустройству
зав. кафедрой земельного права Государственного университета по землеустройству, доктор экономических наук, доцент

Аннотация
Принятие в 2001 году Земельного кодекса Российской Федерации позволило решить большую часть правовых проблем в земельной сфере, которые накопились в 90-е. Но земельные отношения и земельное законодательство продолжают развиваться. На сегодняшний день, появляются новые проблемы в земельном законодательстве. Они связаны, в первую очередь, с его высоким динамизмом, с переоформлением прав на землю, с земельными долями, с заменой института категорий земель на территориальное зонирование, с изменениями нормативной правовой базы землеустройства и кадастра, что привело к значительному снижению роли землеустройства. Законодателю при решении этих всех этих вопросов следует учитывать причины их возникновения.

ABOUT ANY CURRENT PROBLEMS IN THE LAND LEGISLATION

Lipski Stanislav Andzheevich
State University of land use planning
Head of the chair of the land law, State University of land use planning, doctor of economic sciences, docent

Abstract
The adoption in 2001 of the Land code of the Russian Federation has allowed to solve a large part of the legal problems in land sphere that have accumulated in the 90-s. But land relations and land legislation are developing. To date, new problems are appearing in the land legislation. They connected, first and foremost, with the instability of the land legislation, with the re-registration of land rights, with the land shares, with the issue about the replacement of the institute categories of land on the territory zoning, with the changing in the legal framework of the land use planning and cadaster, which led to a significant lowering of the role of the land use planning. The legislator for the settlement of these problems should take into account the reasons of their occurrence.

Keywords: cadaster, categories of land, land legislation, land shares, land use planning, Reforms, rights of land


Рубрика: Право

Библиографическая ссылка на статью:
Липски С.А. About any current problems in the land legislation // Гуманитарные научные исследования. 2015. № 1. Ч. 1 [Электронный ресурс]. URL: http://human.snauka.ru/2015/01/9414 (дата обращения: 29.09.2017).

Introduction

The land legislation is one of the key industries in the domestic legal system. It regulates the use and protection of land as the most important unique natural resource. This resource has the ability to fertility; it is the spatial basis for any business activity. Also the land legislation regulates to a certain extent the issues of the civil turnover of this resource.

As a result of comprehensive socio-economic reforms of the early 90-s, a significant part of the land, formerly in the exclusive property of the state, was privatized. Now the land plots are involving in civil turnover. All this led to the formation in our country of a completely new type of land relations. They demanded a radical update of the land legislation.

Over the 90-s the issues of private land ownership, conditions for granting land plots to citizens and legal persons, land market and its infrastructure caused controversy in academic and professional environment. As a result, although the land legislation, significantly updated in the beginning of 90-s, later (in the middle and the second half of the decade) it is practically not developed.

The adoption in 2001 of the Land code of the Russian Federation (the “Land code”) [20], has allowed to solve a large part of the legal problems of land sphere that have accumulated in the 90-s. It defined for medium-term perspective the legal regime of use, protection and turnover of land.

At the same time the land relations are continuing to develop dynamically after the adoption of the code, as well as a number of other important legislative acts, developed its provisions. As a result, to date, a number of problems had accumulated in the land law.

Methodology and materials

The author collected and analysed the materials on this topic during all period of land reform in modern Russia (he began this in late 80-s). Author used abstract-logical, comparative-legal, formal-legal and historical methods. The materials for this research were normative legal acts, official and other reports and works of other scientists. To a certain extent, the findings and results are based on the experience of the author (more than 20 years he was directly involved in preparing the relevant decisions and their correction).

I. Instability of the land legislation

The development of socio-economic reforms, the necessity of detail provisions, which previously was non-essential, require the constant updating of the legislation. It is an ongoing work.

But in recent years, the problem of deficiency of the federal land legislation, peculiar to the 90-s years, has been replaced by the problem of its lack of legal stability in the land sphere. So, the current land legislation is still very dynamic, although the active phase of the land reform has been completed. In recent years the legislator introduced a lot of amendments to the Land code. Key federal law in the land sphere that developed the code provisions or had resolved the issues that were not included in him for various reasons, are substantially modified or even cancelled.

So the Federal law «About differentiation of a state property on land» (2001) was invalidated in 2006 in connection with that provided them the procedure of separation was quite difficult.

The federal law [21] about turnover of agricultural land (2002), after just 3 years after the adoption has undergone significant changes in terms of the limitation of rights by the order of land shares and the removal of the state from regulation of the market of such shares. The quite principal amendments were made to this law later. In particular, according to the amendments of 2010 the unclaimed land shares can be attributed to the municipal property (read more about the changes to this law over the past 10 years [5] ).

The federal law «On state land cadaster» (2000) had determined the role and place of the land cadaster in a market economy. But in 2008 it lost force. At present, these issues are regulated by other Federal law «On state cadaster of real estate».

In 2008 a number of important provisions related to the territorial land use planning was expelled from the federal law «About land use planning» [23]. It is very debatable. In addition the land plots ceased to be the object of land use planning though they were such object throughout the long history.

Finally the federal law [25] «About transfer of lands or land plots from one category to another» (2004) which still has not undergone radical changes probably will be cancelled in connection with actively discussed issue about the refusal from Institute category of land.

Also the specificity of the current moment is that the last 2-3 years actively considered the problem of updating of the civil legislation, which is quite closely intertwined with the land legislation [1, 18]. The radical reform of the civil legislation, if it would implemented in full, probably, it would entail a cardinal renewal and the whole system of normative legal acts regulating land relations. However, the revision of the system of rights of real estate (for example, the appearance of such titles as the right of permanent land tenure, the right to development, the right to personal use real estate) and the other norms associated with land issues, apparently, in the nearest future will not occur. But this does not mean that such innovations are excluded in the medium term.

II. Re-registration of rights to land

Now the system of land rights includes: 1) the old land rights, preserved since the Soviet times (permanent (unlimited) use), 2) new rights which have arisen in the course of reforms and complying with the market land relations (private property, rentals), 3) transitional form, characteristic of the most active periods of the land reform (lifetime inheritable possession) [12, 15].

Moreover, in the 90-s it was assumed that these rights remain a long-term perspective (so the part one of the Civil code of the Russian Federation [19] adopted in 1994 by has not provided any time limitations for all these rights). But according to the Land code (2001) the granting of land by right of lifelong inherited possession and by the right of permanent (perpetual) use stopped. Persons who have land on such rights must re-register their rights on the right of private property or rentals. An exception is made only for very limited circle of legal entities – state and municipal institutions, state enterprises, centres of historical heritage of the presidents of the Russian Federation, stopped his powers, bodies of state power and bodies of local self-government, as well as the state Academy of sciences and sciences establishments created such academies.

Any term of such re-register for the citizens is not installed. The deadline for re-legalization of the right of permanent (perpetual) use of land for legal entities was first installed in 2004, but then he has been repeatedly extended. However, in 2012 this deadline has arrived. Furthermore such a term for land plots, where are the linear objects (communication lines, pipelines, roads etc.), will come only in 2015.

To influence on legal persons which evading from the re-registration, from 2013, the legislation was installed administrative liability (the fine of from 20 to 100 thousand rubles) in case of violation by them of the term and the procedure re-registration right of permanent (perpetual) use of land for the right of land lease or the acquisition such land plots in property.

However, it is still unclear how effective will be these penalties (possibly pay the penalty would be easier)? Also up to the present time the question of renewal or non-renewal of the term of the re-registration for land plots, where are the linear objects, is not solved.

In addition, on the one hand, a certain simplification of land-property relations and the eviction forms of the transition period, indeed, are justified. It is helping to create conditions to facilitate business. On the other hand, it is unclear, what is the public danger of the delay with re-registration of previously accrued rights? Moreover, for almost 10 years the state itself repeatedly postponed this deadline. Simplifies whether it the conditions for business in the country? 

III. Unclaimed land shares

Perhaps, currently, land shares are the most difficult problem in the agricultural land use. The mass privatization of agricultural lands was held in 1992-1993. But the problem, arisen in these period (land shares), was not resolved until now. To date, nearly a quarter owners of land share all have not yet taken any action by management of the land, inherited by them in the property. There are unclaimed land shares.

In the period 2006-2009 scientists and experts had actively discussed the possibility to apply to the shares the procedure provided to an escheated property. However, this proved to be difficult. So, the decedent’s estate is considered escheat only if there are no heirs, or they have no right to inherit, or they debarred from the inheritance, or they refused from the inheritance or none of the heirs has not received the inheritance.

At first glance, the situation with land shares is exactly the failure of the inheritance. So, relatives, who are the heirs of deceased citizens-owners of land shares, are living in the city, they did not contact with anyone about land shares, etc.

Meanwhile, their passivity is not enough for uniquely classifying the relevant land shares as escheated property. Because, until proven otherwise, legislation considers that the heir has accepted an inheritance. He could take possession the other property of the testator. He could make measures for the conservation it, for the payment of its content or to obtain from third parties cash owed to the testator, etc. All these actions demonstrate about the actual acceptance of the inheritance.

Thus there is a high probability that such acts may be committed only with respect to the other property of the testator, and not of land shares. But, as you know, the estate passes to the heirs in the order of universal legal succession as a whole. Therefore, the adoption of the heir though of least part of the inheritance means the acceptance of the whole inheritance due to him.

In this regard, the legislator decided to go another way. He recognized such shares unclaimed. Norms, which entered into force in 2011, should induce the owners of unclaimed land shares to take legal action with their shares. As result a portion of such shares will cease to be unclaimed. But the land shares, which will remain unclaimed, will be seized in the municipal ownership with using the court’s procedures. At the same time, the significance of the solution to the problem of unclaimed land shares through transfer their in the municipal property should not be exaggerated (read more – [11, 15] ). 

IV. Possible refusal from land categories

The division of lands for the intended purpose on the category is one of the key principles of modern Russian land legislation. According to this principle, the legal regime of land is determined on the basis of their belonging to a certain category [4, 16].

The land code provides seven categories of land:

1. Lands of agricultural purpose.

2. Lands of settlements.

3. Lands of industry, energy, transport, communication, broadcasting, television, computer science, lands to space activity, lands of defense, security and other special purpose.

4. Lands of specially protected territories and objects.

5. Lands of the forest fund.

6. Lands of the water fund.

7. Lands of stockpile.

However, the division of the land Fund of the categories which was formed in the Soviet period is not fully corresponds to the current features of the development of land relations. It is not sufficiently differentiating the kinds permitted use of land plots. Also the existing categories and the procedure of their changes do not provide the reliable protection from the transfer of agricultural land for construction. In addition the institute of land categories differs by its procedure from mechanism which installed the town planning legislation for cases establishing and changing of the permitted use of lands.

Also note that modern land categories were formed in conditions of exclusivity of state ownership of land. In that period they not only identified the legal regime of the land, but also largely been focused on the purpose of the calculation of the land as a state resource.

In this regard, the past two years actively discussed a question about the abolition of the Institute of land categories. In particular, the principles of state policy of use of the land fund of the Russian Federation in 2012 – 2017 provide an exception from the land legislation the principle of division of land for the intended purpose on the category.

As a primary mechanism, which should replace land categories, is proposed a zoning. In the context of this issue is also considered a proposal for the introduction along with the existing terms of the using territory (the town-planning, forestry) also the agricultural terms, which will define the main rules and conditions the using of agricultural lands.

The process of transition from categories to zoning will require a relatively long period of time. It is connected with necessity of development and approval of norms for the use of the territory, with the establishment borders of especially valuable lands, with the addressing issues of changes in the cadastral value of land plots (now appraisers is used of different methodology for plots by various categories). Accordingly, the transition to the new system will require an interim period of 3-4 years.

During this period, on the one hand, the current rules of the change of the target purpose of land plots should continue act. On the other hand, the Federal, regional and municipal authorities must have sufficient legal grounds to take regulatory decisions necessary for the transition to the system of zoning (read more – [6] ). 

V. Legal regulation of land use planning and cadaster

Land use planning and land cadaster always been a key tool of implementation of the state land policy. So, “Piscovye land surveying” was cementing the lands together with serfs for landlords. The Stolypin’s reform destroyed the peasant community. This reform had included measures by land use planning. In Soviet period, the nationalization of land and the collectivization of the peasantry were also linked with the land use planning and the activity on land accounting. The land use planning obtained the highest rise in the Soviet period, when it had the greatest influence on the land users and the organization of the territory [17].

During the land reform of the 90-s, the role of land use planning was very important. These were the works on transfer lands to the rural Soviets of people’s deputies, the formation of a special land fund and the other measures related to the agrarian and land reforms.

But for the last 5-6 years, the legal regulation of land use planning and the united cadaster of real estate (land cadaster became his integral part) has considerably changed. The procedure of accounting of the real estate objects and their preparation for such accounting are unified with regard to the principle of land legislation about the unity of the fate of a land plot and located thereon immovable objects [3, 13]. Now all the work on formation of land plots and the establishment of their borders have moved on from the composition of the land use planning to cadastral activity, which is carried out by cadastral engineers [9].

Currently, however, the role of land use planning may be strengthened with regard to the implementation of food security Doctrine of the Russian Federation. This Doctrine provides for the more rational use of agricultural lands, the increase of soil fertility, the expansion of sowing of agricultural crops at the expense of unused arable land. Therefore, the development of the agriculture sector, the attraction in it investment must enhance the relevance of the on-farm land use planning, the various inventory of land and the works by assessment of the quality of land [8].

In addition, we have already noted that simultaneously with the refusal of the Institute land categories discussed the question about the introduction special agricultural terms. The development of such regulations should become a part of the land use planning. The existing legislation determined that the land use planning includes the measures of planning and organization of rational land use. These measures in respect of land plots, which are in the borders of agricultural areas, perform expedient in the context of the development of such agricultural terms. 

Discussion

This article generalizes and systematizes the results published by its author in various scientific editions [6, 7, 10 and other). The responses on them received from a number scientists and specialists. 

Conclusion

The prospects of the land law are predetermined by that any legislation is changing with the development of the processes occurring in the economy and social spheres, as well as in other sectors of legislation which close to him. The rapid stage of development of our society (90-s years) led to the formation of the present very specific land legislation. Now it includes both a separate norms and institutions, characteristic of the Soviet period, and new rules oriented of the market relations.

The legislator for the settlement of the problems, which highlighted above, should take into account the reasons of their occurrence. This settlement should to correspond to the general orientation of socio-economic development of the country, to be linked with the reforms of the related legal sectors. Also it must to eliminate the available individual inconsistencies in the land legislation. 


References
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