New order of obtaining land: a new tool, but not a new strategy. Sale of land to state and municipal property Land Code Art 39.3 p 2

On June 23, 2014, Federal Law No. 171-FZ "On Amendments to the Land Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" was signed, which comes into force on March 1, 2015, with the exception of certain provisions. The law establishes the order of formation land plots and regulates the provision of land plots in state or municipal ownership. What does this law mean for you and me?

Introduction to the problematic

What determines the successful survival of a people and their statehood? Population growth, an increase in its cultural level, which is expressed in an increase in the efficiency of management of vital processes, its sufficient material support, through 1) the growth of industry (since it provides the population with consumer goods), 2) an increase in the rate of construction (housing and the same industry), 3) productivity growth Agriculture(because no industry is needed, and no space is available if the population has nothing to eat).

All of these are infrastructure objects. They are not suspended in the air, they are all erected on the ground. Houses and engineering networks for them must be built quickly and at the lowest cost. Instead of wasting years on paperwork around vacant lot rights. Industry must be built quickly, without risking that the erected buildings will be taken away, referring to incorrectly designed land. Everything from the ground. All questions run into the ground. Therefore, the land issue is always relevant. Does it solve new law?

From March 1, 2015 in Russia will enter into force new order formation and provision of land from state and municipal property to individuals and legal entities. Due to the fact that the earth is always the basis of any economic activity both agricultural and industrial, as well as the fact that now in Russia the majority of the land is in state ownership, the specified Federal Law No. 171-FZ is of key importance.

The nuances in this matter are contained in the words "is in state ownership." That is, in order to do something on it, you need to get it from the state - in most cases. But how do you get it? This question has remained open until now.

To get land from the state, you need to have the right to do so prescribed by law. Otherwise, the official, not finding the appropriate norm, directly indicating his obligation to do something, will not do anything. Further, if you have such a right, but the procedure for granting you land is not spelled out, the result will be the same.

But even if you have the right, and the procedure is spelled out, this mechanism will still not work, because it does not mean that how determine, form the land plot that you want to receive and which the official must provide you with. Until now, the existing procedure for the provision of land rested on such a problem.

The fact is that in accordance with this legislation, land can enter into economic circulation only as a land plot, that is, as an object that:

Has clear boundaries (formed),

Has a cadastral number (put on state registration (GKN)),

Has a legal status - rights are registered to it (registered with State Register rights (EGRP).

At the moment, most of the lands in "state ownership" do not exist, they seem to be in the "keep in mind" status. This is expressed in white spots on the cadastral map of Rosreestr.

Moreover, the specific definition land plot as an object of economic turnover did not exist.

The new law tries to address these problems:

Clarifies the concept of "land plot",

The procedure for the formation of land plots is established,

The procedure is established for the acquisition of land plots by persons,

Corrective norms are being introduced in a number of other laws related to land relations.

Key provisions of the new order

1. The features of a land plot as an object of economic turnover and the procedure for its formation have been determined.

V legal practice(and not only in it) almost everything depends on the definition of the term used by the law. At first, this may seem like only a narrowly legal issue that has no relation to real activity, to the essence of the problem, but this is not so. It is impossible to control the indefinite and discuss the indefinite, just as it is impossible for two individuals to discuss the word "onion" without deciding what they both mean by this word - a plant or a weapon. Legislators on the third try (at first there was no definition of the land plot at all), finally, they demonstrated elements of a scientific approach, and to begin with, they determined in terms, which promises to resolve many issues that now arise in the courts.

"A land plot as an object of ownership and other rights to land provided for ... (by law) is an immovable thing, which is a part of the earth's surface and has characteristics that make it possible to define it as an individually defined thing" (clause 3 of article 6 of the Land Code of the Russian Federation (RF LC)).

2. The procedure for the formation of the land plot has been determined.

The legislator indicated a complete and closed list of documents on the basis of which land plots can be formed, putting an end to the confusion generated by the contradiction of several laws regulating land relations, as indicated in the explanatory note to the bill. In particular, these were the contradictions between the Land, Forest, Urban Planning Codes and the law on horticultural associations of citizens (Article 11.3 of the RF Labor Code):

“The formation of land plots from land or land plots in state or municipal ownership is carried out in accordance with one of the following documents:

1) a project for land surveying, approved in accordance with the Urban Planningthe codeRF;

2) project documentation on the location, boundaries, area and other quantitative and quality characteristics forest areas;

3) the approved layout of the land plot or land plots on the cadastral plan of the territory "(only if there is no land survey project) .

In addition, it is indicated when it is possible to form a land plot only if there is a land-surveying project:

1) from a land plot provided for the integrated development of the territory (i.e. complex development);

2) from a land plot provided non-profit organization created by citizens for horticulture, truck farming, dacha farming or for dacha farming to other legal entities;

3) within the boundaries of the territory in respect of which, in accordance with the legislation on urban planning, an agreement on its development has been concluded (that is, for example, in the case when it is necessary to demolish a quarter of dilapidated housing and build a new one in its place);

4) within the boundaries of an element of the planning structure built up with apartment buildings (that is, again, within the boundaries of a quarter);

5) for placement linear objects federal, regional or local importance (pipelines, power lines, etc.).

As you can see, everything is tied to the land-surveying project, and in particular such large-scale issues as complex development and the construction of linear structures are closed on it. What does it mean?

This means that the legislator has taken a step towards the concept of land management on the basis of integrated territorial planning documents and is moving away from the idea of ​​a “patchwork quilt”. This can be called a positive development. The fact is that the land survey project in accordance with The Urban Planning Code, is prepared on the basis of a planning project (or often, as a part of it), the meaning of which is a comprehensive rational placement of infrastructure facilities on a certain territory, designed to prevent the construction of "Shanghai", which is in no way provided with roads, engineering infrastructure or transport. In addition, the planning project is directly related to the purpose of land plots, their type of permitted use.

Total: first, planning the use of the territory, then - the provision of a land plot in accordance with the function defined for it, and not vice versa, as was the case with the painful fact of infill development.

Although for the sake of completeness, it should be noted that the mechanism for making changes to the planning project and to the document "above it" - the rules of land use and development, has not been canceled.

This means that a person in need of land needs one of these documents: either a land-surveying project (the procedure for its adoption is regulated by the Town Planning Code), or a land plot layout scheme (SZU). We are not considering forest areas yet, this is a completely separate issue.

An unresolved problem is visible here. The legislator transfers all the worries, including the costs of preparing the SZU (and in many cases, the land-surveying project, and, accordingly, the planning project) to the person in need of land. Article 11.10 of the LC c new edition abounds in the word "may" in relation to a person, which in Russian means "must do". The same applies to cases when the site is provided at an auction: a person runs the risk of registering a site at his own expense, but not winning this auction. The procedure for reimbursement of expenses is not provided. There is only one exception - on the territory of Moscow and St. Petersburg, the city must do it itself.

Total: the needy again draws up the documents himself, we see a standard situation for Russian legislation, when an attempt to do "everything as in the West" again acquires a unique "Russian" (just such, not Russian) flavor, which destroys the whole idea.

The bill was presented as an attempt to resolve the issue of simplifying the provision of land to infrastructure projects and individuals in the manner of models that exist in the West. Such a solution to the issue would reduce construction time, construction costs, and cut the field for corruption and delays. However, if we analyze the experience of Finland or Germany, then we can safely say that this attempt failed. In order not to inflate the article to the size of a dissertation and not describe the experience of the West, which, to give it its due even against the background of the "Decline of Europe", created very comfortable conditions for doing business, this experience can be described like this:

The person is determined with the place and amount of land,

Sends a request

State itself during clearly defined time frame forms a site, puts it on record. Trains all Required documents,

A person receives a plot in accordance with an approved procedure by a predetermined date and at a predetermined price.

Our face does everything by itself again. The phrase in the same article 11.10 that it should not carry out the approval of the prepared SZU does not greatly save the situation, this is clear to practicing specialists.

3. The cases and procedure for the provision of land plots have been determined in detail.

A. A closed list of documents-grounds for the transfer of rights to a land plot owned by the state or a municipality has been established (Article 39.1 of the Labor Code of the Russian Federation):

Decision of a public authority or body local government in the case of granting a land plot for ownership free of charge or for permanent (unlimited) use;

Purchase and sale agreement in case of granting a land plot in ownership for a fee;

Lease agreement in case of providing a land plot for lease;

Agreement for gratuitous use in case of granting a land plot for gratuitous use.

B. Methods for the transfer of rights to a land plot owned by the state or a municipality have been established:

Ownership for a fee: only at auctions in the form of auctions, with the exception of the listed cases (Art. 39.3 of the RF LC);

Ownership free of charge (Art. 39.5 of the RF Labor Code);

For rent (paid temporary use): only at auctions in the form of auctions, with the exception of the listed cases (Article 39.6 of the RF LC);

For gratuitous (temporary) use (Art. 39.10 of the RF Labor Code);

Permanent (indefinite) use (Art. 39.9 of the RF Labor Code).

B. The order is established:

Holding auctions (Articles 39.11 - 39.13 of the RF Labor Code);

Provision of a plot without bidding (Articles 39.14 - 39.17 of the RF Labor Code);

Provision of storage facilities to citizens for individual housing construction, private household plots, gardening, truck farming, dacha farming and farming (Article 39.18 of the RF Labor Code);

Providing memory to citizens free of charge (Article 39.19 of the RF Labor Code);

Provision of memory storage under buildings and structures (Article 39.20 of the RF Labor Code).

D. A procedure has been established for the use of a land plot without transfer of rights - through servitude or without it.

KEY FINDINGS

Any law is a program, an algorithm of actions. This is an established and legalized order, a sequence of actions that must be done in certain cases. This is an indication of how to proceed in certain cases. Accordingly, when analyzing the law, one must proceed from what goals the legislator pursues, and on this basis draw a conclusion about how well he succeeded in achieving these goals. It should be borne in mind that there are declared, publicized, and real goals that are not publicized, but which are fully reflected in the text of the law. Which in the future may be considered a mistake, an oversight of the legislator, but which are not.

Proceeding from this, without going into the nuances of the wording and loopholes in the text of the law, let us summarize what governing influence the new law will have on land relations.

1. Clarity. Of course, finally, this problem has been solved, and the confusion and contradiction is over. A clear procedure has been established in all cases, which, again, are clearly foreseen and formulated. However, making a great car does not yet solve the problem of where it will go.

2. All according to plan. The formation and provision of land plots is completely limited to territorial planning documents, which creates an environment for the rational and harmonious development of territories.

3. It is easier to build in a complex manner. Elimination of problems with the formation of land plots in cases of complex development and development of built-up areas. Until now, builders have spent up to a third of the time and half of the budget on solving the land issue, without engaging in their direct function. A significant gap was that the participants in the construction process were forced to hold an auction for the provision of a land plot even when it was completely impractical, as a result, the construction was significantly enriched with risks and became more expensive. The same with the development of subsoil: having won the right to develop a subsoil plot, it was also necessary to win the right to use the land above this plot. It turned out to be absurd. Now all such nuances are outlined and spelled out in the section of exceptions as cases of providing land without bidding.

4. Easier to build linear structures... Standards have been established that resolve many issues on land, regarding the construction of engineering infrastructure - roads, pipelines, communication lines. For their construction, it is no longer necessary to form awkward serpentine land plots to meet the requirements of the City Planning Code. Now, for this, it is enough to establish an easement, which is registered with the State Property Committee. For repairs, it is enough just to obtain a permit issued by government agency... By the way, it is now enough for holding engineering surveys for construction instead of the need to rent land for this, which significantly reduces the organizational and financial costs of construction.

5. It is easier to arrange land for summer residents... It is to issue, not get it for free. Relief is expressed exclusively in organizational form- a more clearly spelled out procedure for registering land and granting it ownership. The vast majority of citizens will not be able to get land for free. This procedure applies to gardeners, truck farmers, summer residents, personal subsidiary plots, individual housing construction, and farmers. All these are different statuses of the land user and they are regulated by different special laws.

6. For specialists and large families - free of charge. There are cases of free provision of land to certain categories of specialists (these categories are still to be established) and large families (the criteria for the provision are also not specified). It should be noted that the provision on "land for large families" was adopted a long time ago, but it was completely sabotaged by all governors of the constituent entities of the Federation without exception. To be honest, this case allows each of them to be accused, at least, of obstructing the solution of the demographic issue. The fact is that the federal law was (and is now in this part) of a purely declarative nature. He announces such an opportunity to provide land to families with many children, leaving it at the mercy of the regions to create and implement a mechanism for its implementation. It is clear that this is disadvantageous to all those who think exclusively in terms of profit. Accordingly, this mechanism was not implemented, and it raises strong doubts that it will be implemented in this case as well.

Any assignment that does not have a goal, specific deadlines, a specific formulation of the result and a specific person in charge is an imitation of work.

7. Not everyone can buy. In principle, the law assumes that anyone can buy or lease any vacant land from the state at an auction. However, a detailed analysis of the law and, in particular, paragraph 8 of Art. 39.11 shows that there is a gigantic list of obstacles that completely overlaps the idea of ​​a free sale of land (which was contained in the one we wrote about earlier) and which provides the state with full control over the issues of land allocation:

- the interested person must form and register the desired plot on his own and at his own expense, without guarantees to purchase it at an auction;

- the site must comply with many conditions of territorial planning, which are very difficult to comply with;

- a number of possibilities are provided for refusing to sell land by the state. For example, the presence of an already submitted application for preliminary approval in the provision of a plot. Such an application can be easily submitted by anyone, including “their organization”. As a result, the foundation will delay the moment of parting with the earth for as long as necessary;

- the sale of a building plot is generally prohibited, except for specifically specified cases;

- Until 01.01.2020, the state may refuse to provide a site, including on grounds approved by the law of a constituent entity of the Federation, that is, for whatever the region wants (clauses 29-31, article 34 of FZ-171).

All this allows us to conclude that the state has abandoned the idea of ​​a total sale of land and its uncontrolled unsystematic use. .

In this case, it becomes clear that the consideration of the draft law on the abolition of land categories has been delayed. If it is adopted in the form proposed by the Government, the whole meaning of this already adopted law is lost, because the principle of systematic use of territories will be eliminated.

Having analyzed the law, now you should return to the issues identified at the beginning of this article and understand whether the new law helps in solving them. It should be borne in mind that this law regulates only one of the aspects of resolving these issues. It is quite clear that the right to land alone cannot solve either the food problem, or the demographic problem, or the problem of industry. For production, in addition to land, financial resources, labor, and, most importantly, sales markets are needed. However, the land issue is one of the reasons for solving the problems of the country's survival.

Total:

- a significant relief was made to builders in terms of organizational measures related to the registration of land rights,

- made some relief to farmers, summer residents, gardeners and gardeners ONLY in terms of organizational measures,

- the issue of free access of the population to land for housing construction remains open, with the exception of a still undefined circle of specialists.

There is a struggle on the last issue. This struggle illustrates well the multidimensionality and interconnection of all spheres of the economy. On the one hand, we have a bill recently submitted by the Communist Party of the Russian Federation on family estates, which is designed to provide every Russian with land free of charge. This is the second attempt after the Liberal Democratic Party. On the other hand, the government is preparing a significant increase in taxes and depriving housewives of the right to free health insurance. How does this relate to the ground? This is connected in such a way that it completely closes the question of land for large families, for large families are three or more children. And until that moment, in order to give birth to a third, you still have to live with the two elders. In conditions where both parents are working and housewives are deprived of support, this is impossible. Thus, according to the totality of signs - the law on the abolition of categories, the law on tax increases, we are dealing with direct subversive activities of the Government, in particular, its economic block, activities aimed at reducing the growth of the population of our country and undermining its economy.

We are dealing with a confrontation of ideas, groupings in the structures of state power, which is expressed in an inconsistent, ragged, conceptually and managerially indefinite legislative process.

We are dealing with traffic on the streets of India, and not a well-ordered order of tank columns, confidently moving forward. There is movement, but the supersystems, of which the Russian state is an example, can never exist under the conditions of Brownian motion.

The new law clarified the technology, but did not correct the essence of the problem: production, which is a socially significant phenomenon, is in the hands of private individuals and serves to please private interests, the harmfulness of the confrontation of which for the well-being of society is unsuccessfully tried by the state of the "Washington Consensus" to cover up with cosmetics.

Such laws are a clear confirmation of the conclusion of the classics of socialist ideology (if translated into Russian about the good for the whole society, as opposed to the capitalist idea of ​​the good only for capital) that in conditions of competitive confrontation, you can never fully use the resource of the system to achieve the good of the entire system ...

How to get a land plot for rent without bidding?

Are you going to purchase a land plot for rent without bidding? First of all, familiarize yourself with the current legislation governing the grounds and procedure for the provision of state or municipal land plots for the use of citizens and organizations.

Federal Laws No. 171-F3 dated 23.06.2014, No. 224-F3 dated 21.07.2014, No. 487-F3 dated 29.12.2014 amendments were made to the Land Code of the Russian Federation, which significantly change the procedure for disposing of land plots. The main part of these amendments entered into force on 03/01/2015.

This analytical material discusses the main issues of providing state-owned land plots for rent without bidding after 03/01/2015.

Legal Center DVA M is ready to help you realize your the right to lease land plots in state or municipal ownership and provide full legal support, including on issues:

• Preparation of legal opinions
• Representative offices in authorized bodies
• Representation of interests in court
• Interaction with designers and experts
• Comprehensive legal support for construction and investment projects

1. Grounds for granting state or municipal land plots without an auction

1.1. The version of the Land Code of the Russian Federation, in effect until 03/01/2015, provided for a fairly wide list of grounds under which land plots in state or municipal ownership could be leased out without bidding. In essence, land plots for housing construction were to be provided exclusively through tenders. Other types of permitted use left the possibility of leasing land plots without tendering, subject to a number of conditions (in particular, provided that the planned provision of a land plot was published in advance).

After 03/01/2015, this procedure has undergone significant changes.

In accordance with Part 1 of Art. 39.6 of the Land Code of the Russian Federation (effective from 01.03.2015) lease agreements for land plots in state or municipal ownership are concluded at auctions held exclusively in the form of an auction, except for cases where directly provided for in paragraph 2 of this article.

In addition, by virtue of paragraph 7 of Art. 39.11 of the Land Code of the Russian Federation, in the event that, in accordance with the main type of permitted use of a land plot, the construction of buildings and structures is envisaged, the provision of such a land plot is carried out by holding an auction for the right to conclude a land plot lease agreement, except in cases of an auction for the sale of a land plot or an auction for the right to conclude a lease agreement for a land plot in accordance with Article 39.18 of the Code (see clause 3 of this Statement).

Thus, on general rule, any provision of land plots for lease must be carried out at an auction, except for cases expressly provided for by the Land Code of the Russian Federation.

1.2. Part 2 of Article 39.6 of the Land Code of the Russian Federation establishes 34 grounds for concluding a lease agreement for a land plot without bidding.

Of them practical significance for a local self-government body have the following grounds:

1) the provision of land plots to legal entities for the placement of facilities intended to provide electricity, heat, gas and water supply, water disposal, communications, oil pipelines, objects of federal or local significance (subparagraph 4 of part 2 of article 39.6 of the Land Code of the Russian Federation) ... From this point it follows that the provision of land plots for the construction of boiler houses, sewage pumping stations, electrical facilities is carried out without an auction;

2) the provision of a land plot on which buildings, structures are located, to the owners of buildings, structures, premises in them and (or) persons to whom these objects are provided on the basis of the right of economic management or operational management (subparagraph 9 of part 2 of article 39.6 of the Land Code ). This basis is analogous to the previously existing Art. 36 of the Land Code of the Russian Federation, which determined the exclusive right of owners of buildings, structures and structures located on a land plot to acquire them at their discretion for rent or ownership;

3) the provision of the land plot on which the objects of construction in progress are located, once for the completion of their construction to the owners of the objects of construction in progress in the cases provided for in paragraph 5 of Art. 39.6 of the Land Code of the Russian Federation. This basis is considered in more detail in clause 2.2 of this Help;

4) provision of a land plot for lease in the order of re-registration of the right of permanent (indefinite) use (subparagraph 11, part 2, article 39.6 of the Land Code of the Russian Federation);

5) provision of a land plot in exchange for a plot provided to a citizen or legal entity on a leasehold basis and seized for state or municipal needs (subparagraph 16, part 2 of article 39.6 of the Land Code of the Russian Federation). The version of the Land Code of the Russian Federation, which comes into force on 01.03.2015, allows the seizure of land plots encumbered by lease for state or municipal needs with the provision of a plot instead of the seized one. In this case, as follows from the analyzed provisions of the law, the provision of a land plot instead of the withdrawn one is carried out without bidding;

6) the provision of a land plot to a person who has the right to acquire ownership of a land plot in state or municipal ownership, without holding an auction, including free of charge, if such a land plot is reserved for state or municipal needs or is limited in circulation (subpara. 18, part 2, article 39.6 of the Land Code of the Russian Federation). The grounds for granting ownership of a land plot without bidding are enshrined in Art. 39.3 of the Land Code of the Russian Federation. If there are grounds for granting a plot of ownership without bidding, but the plot is limited in circulation or reserved for state or municipal needs, this conflict is resolved by concluding a lease agreement for this plot with an authorized person without bidding;

7) a land plot to a citizen for haymaking, grazing farm animals, gardening or a land plot located outside the borders settlement, to a citizen for running a personal subsidiary farm (subclause 19, part 2, article 39.6 of the Land Code of the Russian Federation). It is important to note that the provision of a plot for the purpose of gardening, as well as a plot for private household plots outside the boundaries of the settlement, carried out without bidding. The procedure for providing these plots is analyzed in clause 2.3 of this Certificate. Please note that the provision of land plots for maintaining personal subsidiary plots within the boundaries of settlements is carried out in accordance with the procedure regulated by Art. 39.18 of the Land Code of the Russian Federation (see clause 3 of this Certificate);

8) provision of a land plot necessary for carrying out work related to the use of subsoil to a subsoil user (subparagraph 20, part 2, article 39.6 of the Land Code of the Russian Federation);

9) provision of the land plot necessary for the implementation of the activities provided for by the concession agreement to the person with whom the concession agreement was concluded (subparagraph 23, part 2 of article 39.6 of the Land Code of the Russian Federation);

10) the provision of a land plot formed from a land plot in state or municipal ownership, including provided for the integrated development of the territory, to a person with whom a lease agreement for such a land plot was concluded (subparagraph 5 of part 2 of article 39.6 of the Land Code RF);

11) provision of a land plot intended for agricultural production to a lessee who has properly used such a land plot, provided that an application for concluding a new lease agreement for such a land plot is submitted by this lessee before the expiration date of a previously concluded lease agreement for such a land plot (Subclause 31, Part 2, Article 39.6 of the Land Code of the Russian Federation);

12) provision of a land plot to a lessee, if this lessee has the right to conclude a new lease agreement for such a land plot without bidding (sub. 32, part 2, article 39.6 of the Land Code of the Russian Federation). A detailed analysis of the procedure and grounds for concluding a new land lease agreement without bidding is given in clause 2.1. of this Help.

The procedure for concluding lease agreements in cases that do not require an auction is enshrined in Art. 39.14-39.17 of the Land Code of the Russian Federation and analyzed in clause 2 of this Help.

2. The procedure for concluding a lease agreement without bidding

The procedure for concluding a lease agreement without holding an auction depends on the grounds on which a potential tenant has the right to conclude such an agreement.

In order to determine the procedure for concluding a lease agreement without bidding, all grounds for concluding agreements can be conditionally divided into three groups:

1) concluding a lease agreement with a person entitled to conclude a new lease agreement without holding an auction (the grounds specified in subparagraphs 31 and 32, part 2 of article 39.6 of the Land Code of the Russian Federation);

2) the conclusion of a lease agreement for a land plot on which objects of construction in progress are located, once to complete their construction to the owners of objects of construction in progress (the basis provided for in clause 5 of article 39.6 of the Land Code of the Russian Federation);

3) conclusion of a lease agreement for a land plot without bidding on other grounds provided for by the Land Code of the Russian Federation.

Below is a detailed analysis of the procedure for concluding lease agreements without bidding for each of the above grounds.

Legal Center DVA M renders legal services on the provision of land plots for lease or ownership, including:

• conducts legal expertise availability grounds for granting plots without bidding;
• provides legal support procedures for registration of rights to land plots from the stage of formation of a land plot to its provision in ownership (lease);
• carries out legal support participation of customers in holding land auctions and challenging their results;
• provides services for representation of interests in courts on disputes arising from the registration of rights to land plots without bidding.

2.1. Conclusion without bidding a lease agreement for a new term.

In accordance with Part 15 of Art. 39.8 of the Land Code of the Russian Federation, the lessee of a land plot that is in state or municipal ownership, as a general rule, does not have preemptive right to conclude a lease agreement for such a land plot for a new term without bidding.

However, there are a number of exceptions to this rule.

The following persons are entitled to conclude a lease agreement for a new term without bidding:

2.1.1. Tenants of a land plot intended for agricultural production, who properly used the land plot during the term of the previous lease agreement (sub. 31, part 2 of article 39.6 of the Land Code of the Russian Federation, paragraph 5 of article 9 of the Federal Law "On the turnover of agricultural land "). In this case, the basis for concluding a lease agreement for a new term is the lessee's application submitted to the lessor prior to the conclusion of the validity period of the previous lease agreement. The law does not require any other documents.

2.1.2. Land tenants if:

The land plot was provided to a citizen or legal entity for lease without bidding (subparagraph 1, part 3, article 39.6 of the Land Code of the Russian Federation). This basis does not apply to cases when the conclusion of the contract without holding an auction was carried out due to the fact that the initial provision of the land plot was planned on the basis of an auction, but these auctions were declared invalid due to the presence of one application (clauses 13, 14, 20 Art. 39.12 of the Land Code of the Russian Federation). In this case, the initial provision of a land plot for lease is recognized as a provision by auction and the right to conclude a new lease agreement without holding an auction does not arise for such a lessee;

The land plot was provided to the citizen at an auction for gardening or dacha farming (subparagraph 2, part 3, article 39.6 of the Land Code of the Russian Federation). It follows from this provision that even if the initial provision of a plot to citizens for gardening or dacha farming was carried out at an auction, the subsequent provision of such a plot for lease for a new period is possible without holding an auction.

2.1.3 The provision of a land plot for a new period without holding an auction on the grounds specified in clause 2.1.2 of this Certificate is allowed only if there is a simultaneous combination of all the following conditions defined by part 4 of Art. 39.6 of the Land Code of the Russian Federation:

1) an application for concluding a new lease agreement for such a land plot was submitted by this citizen or by this legal entity until the expiration date of the previously concluded land lease agreement;

2) no other person has the exclusive right to acquire such a land plot in the cases provided for by this Code and other federal laws. For example, on this site there are no buildings, structures or structures belonging to the right of ownership or the right of economic management to another person;

3) a previously concluded lease agreement for such a land plot was not terminated with this citizen or this legal entity on the grounds provided for in paragraphs 1 and 2 of Article 46 of the Land Code of the Russian Federation;

4) at the time of concluding a new lease agreement for such a land plot, there are grounds provided for by subparagraphs 1-30 of paragraph 2 of Article 39.6 of the Land Code of the Russian Federation for providing, without bidding, a land plot, the lease agreement for which was concluded without bidding. This condition is fundamental and means that the initial provision of a land plot for lease without tendering does not give the right to conclude a lease agreement for a new period without tendering, if at the time of concluding a new contract such a land plot (based on its category and type of permitted use) must be provided at an auction (for example, the type of permitted use of the site has been changed for purposes related to construction).

To conclude a lease agreement for a new term on the grounds specified in clause 2.1.2. of this Certificate, interested tenants provide the tenant with an application for concluding a new lease agreement. Verification of the presence / absence of other criteria necessary for concluding a new lease agreement without bidding is the responsibility of the lessor.

2.2. Conclusion without bidding a lease agreement for the completion of an object of construction in progress.

The new edition of the Land Code of the Russian Federation significantly changes legal regulation the regime of land use of plots occupied by objects of construction in progress located on leased plots, the lease term of which has expired.

As noted earlier, as a general rule, a person to whom a land plot was provided for construction purposes does not have a preemptive right to provide this plot under a lease agreement for a new term without holding an auction (part 15 of article 39.8 of the Land Code of the Russian Federation).

In accordance with Part 5 of Art. 39.6 of the Land Code of the Russian Federation if an object of construction in progress is located on a land plot, the lease agreement of which has expired, the body authorized to dispose of this land plot, within six months from the date of expiration of the lease agreement, has the right to bring a claim to the court to seize the object of unfinished construction and selling it at a public auction.

The rules for holding public auctions for the sale of construction in progress are determined by Article 239.1 of the Civil Code of the Russian Federation and the Decree of the Government of the Russian Federation of December 3, 2014 No. 1299.

A person who has bought an object of construction in progress at a public auction has the right to conclude a lease of this land plot once without holding an auction to complete the construction of the object.

In this case, the lease agreement is concluded for a period exceeding twice the period established by the authorized Government Russian Federation by the federal executive body as the period required for the implementation of engineering surveys, the implementation of architectural and construction design and the construction of buildings, structures (part 9 of article 39.8 of the Land Code of the Russian Federation).

If, within six months from the end of the term of the lease agreement for the land plot on which the unfinished construction object is located, the authorized body did not apply to the court with a claim to withdraw this object and sell it from public auction, or if the object was not sold from the auction due to the absence of persons who participated in the auction, the owner of the object of construction in progress has the right to apply to the authorized body with an application to conclude a lease agreement for this land plot with him without bidding for the purpose of completing the construction of the object located on it.

In this case, the lease agreement is concluded for a period of up to three years (subclause 6, part 8, article 39.8 of the Land Code of the Russian Federation).

It should be noted that the legal regimes described above apply to legal relations that arose after 03/01/2015.

In accordance with paragraph 21 of Art. 3 of the Federal Law "On the Enactment of the Land Code of the Russian Federation" in the event that an unfinished construction object is located on a land plot that is in state or municipal ownership, and the ownership of the specified object is registered before March 1, 2015 or such a land plot is provided before 1 March 2015 for lease, the owner of the specified object has the right to purchase such a land plot for lease for a period of three years once to complete its construction without bidding in accordance with the procedure.

At the same time, the provision of a site without bidding in accordance with the considered paragraph of the Law is possible only once.

2.3. The procedure for concluding a lease agreement without holding an auction in other cases.

2.3.1. Providing a formed site without bidding.

The procedure for concluding lease agreements for land plots in cases not considered in paragraphs. 2.1 and 2.2. of this Certificate, regulated by Art. Article 39.14-39.17 of the Land Code of the Russian Federation.

The procedure for concluding a lease agreement depends on whether the requested land plot has been formed or not. If the land plot is formed and is registered in the cadastral register, then for the provision of the land plot for lease - if there are established grounds for that - the interested person sends to the body authorized to dispose of the land plot, an application for the provision of the land plot (part 1 of Art. RF Code).

In the application, among other things, information about the applicant, the cadastral number of the plot, the basis for the provision of the land plot for lease without an auction are indicated.

It is important to note that if the Land Code of the Russian Federation allows the granting of a land plot to a person for ownership or lease without tendering, the type of right on which such a land plot is granted is chosen by the applicant (part 6 of article 39.14 of the Land Code of the Russian Federation).

An application for the provision of a land plot without bidding must be considered by the authorized body within thirty days (part 5 of article 39.17 of the Land Code of the Russian Federation), during which the authorized body prepares a draft lease agreement and sends it to the applicant (if the boundaries of the land plot do not need clarification ) or refuses to provide a land plot on the grounds, the closed list of which is indicated in Art. 39.16 of the Land Code of the Russian Federation (see clause 2.3.3 of this Certificate).

The version of the Land Code of the Russian Federation, which comes into force on 01.03.2015, does not provide for the need to publish information on the planned provision of a land plot without bidding. The only exception is the provision of land plots to citizens for individual housing construction, maintaining personal subsidiary plots within the boundaries of the settlement, gardening, dacha farming to citizens and peasant (farm) economy for the implementation of its activities by the peasant (farm) economy (Article 39.18 of the Land Code of the Russian Federation, see p. 3 of this Help).

In accordance with Part 4 of Art. 39.17 of the Land Code of the Russian Federation, applications for the provision of a land plot are considered in the order in which they are received. This means that in case of competition of bids for the same plot, which can be leased out without bidding (for example, for running a personal subsidiary farm outside the settlement), the lease agreement is concluded with the person who first submitted the application without holding an auction. ...

2.3.2. Providing an unformed site without bidding.

If the land plot, which can be provided without bidding, has not been formed, the procedure for its provision described in clause 2.3.1. this Certificate must be preceded by a preliminary approval procedure for the provision of a land plot (part 1 of article 39.14 of the Land Code of the Russian Federation).

The essence of this procedure is as follows:

1) the person interested in granting the plot prepares the layout of the requested land plot, if the land plot is to be formed and the land survey project is not approved, within the boundaries of which such a plot is to be formed (subparagraph 1, part 1 of article 39.14 of the Land Code of the Russian Federation);

2) the interested person applies to the authorized body with an application for preliminary approval of the provision of a land plot.

The application, among other things, specifies the requisites of the applicant, the grounds for granting the requested plot without bidding, the type of right on which the plot is requested, information about the requested boundaries of the plot, determined by the location scheme prepared by the applicant, or the land survey project.

Accordingly, the application shall be accompanied by a plan for the location of the land plot and documents confirming the existence of grounds for granting the land plot without bidding.

An application for preliminary approval of the provision of a land plot is considered within 30 days.

The grounds for refusing to preliminary approve the provision of a land plot are grounds for refusing to approve the layout, specified in clause 16 of Art. 11.10 of the Land Code of the Russian Federation), as well as the existence of grounds excluding the provision of a plot without bidding in accordance with Art. 39.16 of the Land Code of the Russian Federation.

In other cases, the authorized body is obliged to agree on the provision of a land plot.

The decision on preliminary approval of the decision on the provision of the land plot is the basis for carrying out at the expense of the applicant cadastral works on its formation and cadastral registration (subparagraphs 4-5 of article 39.14 of the Land Code of the Russian Federation).

The decision on the preliminary approval of the provision of a land plot is valid for two years (part 14 of article 39.15 of the Land Code of the Russian Federation), during which the applicant has the right to ensure the registration of the site on cadastral registration and apply for the provision of a land plot.

After registering the land plot for cadastral registration, the applicant, in respect of whom a decision has been made to preliminary approve the provision of the land plot, applies to the authorized body with an application for the provision of the land plot to him in the manner previously discussed in clause 2.3.1. of this Help.

It should be noted that if several applications for preliminary approval of the provision of a land plot have been received in relation to one site, these applications are considered in the order of their receipt (part 4 of article 39.15 of the Land Code of the Russian Federation). In other words, when several orders are received for one site, the priority is given to the first received order without holding trades.

Once again, it should be noted that the procedure for prior approval described in this paragraph when providing a land plot to citizens for individual housing construction, maintaining personal subsidiary plots within the boundaries of a settlement, gardening, dacha farming to citizens and peasant (farm) economy for the implementation of a peasant (farm) economy its activities, is applied taking into account the specifics specified in Art. 39.18 of the Land Code (see clause 2.3.4. Of this Certificate).

2.3.3. Grounds for refusal to lease land plots without bidding.

An exhaustive list of grounds on which the authorized body has the right to refuse to provide a land plot for lease without bidding is given in Art. 39.16 of the Land Code of the Russian Federation.

The grounds for refusal given in this article can be divided into several conditional groups 1:

1) the applicant does not have the right to provide a land plot without holding an auction;

2) there are buildings, structures or structures on the plot that belong to other persons in real rights;

3) the site is encumbered with the rights of third parties (ownership, lease or permanent (unlimited) use rights). Accordingly, this basis does not apply if the lessee of the land plot or the holder of the right to permanent (unlimited) use have applied for the purchase of the land plot or its re-registration in lease in accordance with paragraphs. 9 and 10 h. 2 tbsp. 39.6 of the Land Code of the Russian Federation;

4) the plot is reserved for state or municipal needs if the applicant has applied for the granting of the land plot for ownership, permanent (indefinite) use or with an application for the provision of the land plot for rent, free use for a period exceeding the validity period of the reservation decision land plot, except for the case of providing a land plot for reservation purposes;

5) the site is located on the territory in respect of which an agreement on its integrated development or an agreement on the development of a built-up area has been concluded;

6) the plot is the subject of the announced auction, a decision has been made in relation to it on preliminary approval of the provision, or in relation to the plot, an application for holding an auction or on preliminary approval of its provision has been received;

7) the type of use of the site requested by the applicant does not correspond to the type of use of the site according to the cadastral registration data and territorial planning documents (except for the placement of linear objects in accordance with the approved project for the planning of the territory);

9) the boundaries of the land plot are subject to clarification in accordance with the Federal Law "On the State Real Estate Cadastre".

In the presence of those specified in Art. 39.16 of the Ground Code of the Grounds, the authorized body refuses to provide a land plot without holding a tender or in agreeing on the preliminary provision of a plot (if the requested plot has not been formed).

3. Specificity of providing land plots without tenders to citizens and peasant (farmer) households in some cases

Considered in clause 2.3. of this Certificate, the procedure for the provision of land plots for lease without bidding has its own specifics, applicable when providing land plots to citizens for individual housing construction, maintaining personal subsidiary plots within the boundaries of a settlement, gardening, dacha farming to citizens and peasant (farm) economy for the implementation of peasant (farm ) the economy of his activities.

In accordance with Art. 39.18 of the Land Code of the Russian Federation, in case of receipt of an application from a citizen or a peasant (farm) economy for preliminary approval of the provision of the above land plots, the authorized body, within a period not exceeding thirty days from the date of receipt of any of these applications, commits one of the following:

1) ensures the publication of a notice on the provision of a land plot for the specified purposes in a facility mass media used for the official publication of municipal regulatory legal acts, and on the website of the authorized body on the Internet.

2) refuses to preliminary agree on the provision of a land plot or to refuse to provide a land plot on the grounds specified in clause 6 of Art. 39.15 and Art. 39.16 of the Land Code of the Russian Federation (see clauses 2.3.2 and 2.3.3 of this Certificate)

The notice shall indicate:

1) information on the possibility of providing a land plot with an indication of the purposes of this provision;

2) information on the right of citizens or peasant (farmer) households, within thirty days respectively from the date of publication, declare their intention to participate in an auction for the sale of such a land plot or an auction for the right to conclude a lease agreement for such a land plot;

3) the address and method of filing statements of intention to participate in the auction and the timing of their submission;

4) address or other description of the location of the land plot;

5) the cadastral number and area of ​​the land plot in accordance with the data of the state real estate cadastre, unless the requested land plot is to be formed;

6) the area of ​​the land plot in accordance with the land survey project or with the layout of the land plot, if an application has been submitted for the provision of the land plot to be formed;

7) the details of the decision on the approval of the land survey project if the formation of the land plot is to be made in accordance with the approved land survey project, the reference number of the requested land plot, as well as the address of the website in the Internet information and telecommunications network where the approved project is located;

8) the address and time of reception of citizens to familiarize themselves with the layout of the land plot, in accordance with which the land plot is to be formed, if this diagram is presented on paper.

The decision to conclude a lease agreement for a land plot or to preliminarily agree on the provision of a land plot shall be made by the authorized body without holding an auction only if, after thirty days from the date of publication of the notification, applications from other citizens, peasant (farmer's) about their intention to participate in the auction, have not been received.

In this case, the authorized body makes a decision on preliminary approval of the provision of a land plot (if the plot has not been formed) or on concluding a lease agreement. In the first case, the lease agreement is concluded after the land plot is registered in the cadastral register and an application is received from the person in respect of whom the decision was made to preliminary agree on the provision of the land plot. The contract is concluded without holding an auction.

If, within thirty days from the date of publication of the notice, other applications are received from citizens and / or peasant (farmer) enterprises about their readiness to participate in the auction, the provision of the land plot is carried out exclusively at the auction.

Moreover, according to Part 7 of Art. 39.18 of the Land Code of the Russian Federation, in this case, holding an auction is an obligation, not a right of an authorized body.

The procedure for granting land plots at an auction is discussed in detail in a separate analytical note.

1 The list below systematizes the grounds for refusal established by the analyzed article, but is not exhaustive and does not cover all the exceptions and nuances provided for by this article.

1. Sale of land plots in state or municipal ownership shall be carried out at tenders held in the form of auctions, with the exception of the cases provided for by paragraph 2 of this article.

2. Without bidding, the sale is carried out:
1) land plots formed from a land plot leased for integrated development of the territory (with the exception of land plots formed from a land plot provided to a legal entity that has entered into an agreement on integrated development of a territory for the purpose of building economy class housing, leased for integrated development territory for the construction of such housing), to a person with whom, in accordance with the Urban Planning Code of the Russian Federation, an agreement on the integrated development of the territory has been concluded, unless otherwise provided by subparagraphs 2 and 4 of this paragraph; (Subparagraph as amended from March 1, 2015 Federal law dated July 21, 2014 N 224-FZ)
2) land plots formed from a land plot provided to a non-profit organization created by citizens for the integrated development of the territory for the purpose of individual housing construction (with the exception of land plots classified as property common use), members of this non-profit organization or, if provided by a decision general meeting members of this non-profit organization, this non-profit organization;
3) land plots formed from a land plot provided to a non-profit organization created by citizens for gardening, truck farming, dacha farming (with the exception of land plots classified as common property) to members of this non-profit organization;
4) land plots formed as a result of the division of a land plot provided to a non-profit organization created by citizens for the integrated development of the territory for the purpose of individual housing construction and related to common property, to this non-profit organization;
5) land plots formed as a result of the division of a land plot provided to a legal entity for running a dacha economy and related to common property, to the specified legal entity;
6) land plots on which buildings, structures are located, to the owners of such buildings, structures or premises in them in the cases provided for in Article 39.20 of this Code;
7) land plots in permanent (unlimited) use of legal entities, to the specified legal entities, with the exception of the persons specified in paragraph 2 of Article 39.9 of this Code;
8) land plots for a peasant (farmer) enterprise or an agricultural organization in the cases established by the Federal Law "On the turnover of agricultural land";
9) land plots intended for agricultural production and leased to a citizen or a legal entity, this citizen or this legal entity after three years from the date of the conclusion of a lease agreement with this citizen or this legal entity or the transfer of rights and obligations under a land lease agreement a plot to this citizen or this legal entity, subject to the proper use of such a land plot, if this citizen or this legal entity has submitted an application for concluding a sale and purchase agreement for such a land plot without bidding before the expiration date of the said land plot lease agreement;
10) land plots to citizens for individual housing construction, running a personal subsidiary farm within the boundaries of a settlement, gardening, dacha farming, citizens or peasant (farmer) households for the implementation of its activities by a peasant (farm) economy in accordance with Article 39.18 of this Code;
11) land plots to citizens in accordance with the Federal Law "On the specifics of providing citizens with land plots in state or municipal ownership and located in the territories of the constituent entities of the Russian Federation that are part of the Far Eastern Federal District, and on amending certain legislative acts of the Russian Federation" . (The subparagraph is additionally included from May 2, 2016 by the Federal Law of May 1, 2016 N 119-FZ)
3. If the only application for participation in an auction for the sale of a land plot in state or municipal ownership is submitted by a person who meets the requirements for auction participants specified in the notice of the auction and whose application for participation in the auction complies with those specified in the notice of the auction conditions of the auction, or if only one applicant is recognized sole participant only one participant took part in the auction or in the auction, the sale of such a land plot is carried out to the specified person.

Commentary on Article 39.3 of the RF Labor Code

The commented article establishes cases of sale of land plots that are in state or municipal ownership, at auction and without holding an auction. This article deals only with cases of paid transfer of ownership of land plots on the basis of purchase and sale agreements; cases of free provision of land plots in ownership are regulated by Art. 39.5 of the RF Labor Code.

So, as a general rule, the sale of land plots is carried out at tenders held in the form of an auction. The procedure for organizing and holding an auction is regulated by Art. 39.11 and 39.12 of the RF LC.

It should be noted that the previously effective Art. 30 of the RF LC also stipulated that the provision of land plots for construction into ownership without prior approval of the location of objects is carried out exclusively at tenders (tenders, auctions) (clause 2 of article 30 of the RF LC). At the same time, the land legislation provided for a number of exceptions to this rule, which were also reflected in the commented article.

It should be noted that, in contrast to the previously existing procedure, the rule on the sale of land plots in state or municipal ownership also applies at the auction to land plots, the type of permitted use of which does not provide for the possibility of construction (Article 34 of the RF Labor Code provided for the possibility of selling land plots for purposes not related to construction without bidding).

The second significant point is that the commented article establishes a clear list of cases when the sale of land plots is carried out without bidding. In this case, the following groups of such cases can be distinguished.

1. Sale to a citizen or legal entity (its members) of land plots formed from a land plot previously provided to such a citizen or legal entity (subparagraphs 1-5, paragraph 2 of the commented article).

The presence of these cases is due to the fact that there is already a copyright holder of the original land plot, whose rights often arise as a result of the conclusion of a lease agreement based on the results of an auction.

So, first of all, without bidding, the sale of land plots formed from a land plot leased for the integrated development of the territory is carried out to a person with whom, in accordance with the Urban Planning Code of the Russian Federation, an agreement on the integrated development of the territory has been concluded (clause 1).

It should be noted that the institution of integrated development of a land plot is not completely new to Russian legislation. So, according to Art. 30.2 of the Labor Code of the Russian Federation (in force before the entry into force of Law N 171-FZ), a land plot in state or municipal ownership could be leased for its comprehensive development for housing construction. At the same time, this institution has undergone significant changes.

First, the legislator divided the previously existing lease agreement for a land plot for its integrated development for the purpose of housing construction into two interrelated agreements. This is a lease agreement for a land plot, the procedure for concluding which is regulated by the RF LC, and an agreement on the integrated development of the territory. At the same time, the content of the agreement on the integrated development of the territory, the rights and obligations of the parties, the procedure for terminating this agreement are regulated by the Urban Planning Code of the Russian Federation (Article 46.4). Such a division should be recognized as justified, since the inclusion of all conditions directly related to the integrated development of the territory (development of documentation for the planning of the territory, construction, landscaping), on the one hand, does not correspond to the subject of the land lease agreement, on the other hand, the consequences of formation from the original land plot are not clear. a plot in respect of which a lease agreement for integrated development has been concluded, other land plots, since, in fact, the subject of the lease agreement is changing and a new agreement is required.

Secondly, given that, in general, the idea of ​​integrated development of the territory has shown its effectiveness, since it allows the development of land plots of significant size, Law No. 171-FZ provides for the extension of the institution of integrated development of the territory to cases of any construction, not just housing.

Thirdly, the possibility of terminating the contract for the complex development of the territory by agreement of the parties is excluded - only by a court decision, and the terms of such an agreement have been clarified, the need to develop schedules for the development of the territory with detailed regulation of each event has been introduced, which is aimed at more efficient development of land plots.

It should be noted that not all land plots formed from a land plot in respect of which an agreement on integrated development of the territory has been concluded are subject to sale to the person with whom the relevant agreement has been concluded. So, if by an agreement on the integrated development of a territory the obligation to create infrastructure facilities is assigned to state authorities or local authorities, then land plots intended for the placement of such objects, as well as land plots related to common areas, cannot be a subject of purchase and sale. (for more details, see the commentary to Art. 39.16 of the RF LC).

There are a number of exceptions from the general rule stipulated by subparagraph 1 of clause 2 of the commented article on the provision of formed land plots directly to the person with whom an agreement on the integrated development of the territory has been concluded. The first refers to land plots formed from a land plot provided to a non-profit organization created by citizens for the integrated development of the territory for the purpose of individual housing construction. In this case, the formed land plots directly intended for individual housing construction are provided to citizens - members of this non-profit organization or, if it is provided for by the decision of the general meeting of members of this non-profit organization, the same non-profit organization, and the plots related to common property - to a non-profit organization. organization as a legal entity (subparagraphs 2, 4).

The second exception applies to land plots formed from a land plot provided to a legal entity that has entered into an agreement on the integrated development of the territory for the construction of economy class housing. Such land plots are not subject to sale at all, but can only be the subject of a lease agreement. This is due to the specifics of agreements on the integrated development of the territory for the construction of economy class housing (for more details, see the commentary to Art. 39.6 of the RF LC). In the future, such land plots can be sold to the owners of the real estate objects built on them on the basis provided for in subparagraph 6 of clause 2 of the commented article.

Subparagraphs 3 and 5 regulate the issues of granting land plots formed from land plots provided to non-profit organizations created by citizens for gardening, truck farming, dacha farming. In this case, the formed land plots, directly intended for gardening, truck farming, dacha farming, are provided to citizens - members of a non-profit organization. This is due to the fact that in this case, the original land plot is provided to a non-profit organization to meet the needs of specific citizens, moreover, for gardening and horticulture, the area of ​​the land plot is calculated based on the number of the association (Article 39.10 of the RF LC). A land plot formed from a land plot provided to a non-profit organization of citizens for running a dacha economy and related to common property is provided to a non-profit organization as a legal entity. It is important to note that land plots formed from a land plot provided to a non-profit organization of citizens for gardening or truck farming, and related to common property, are provided to a non-profit organization free of charge (Article 39.5 of the RF LC).

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For more details on a differentiated approach to regulating relations related to the provision of land plots created by citizens to non-profit organizations and their members for gardening, truck farming, dacha farming, see the commentary to Art. 39.10, 39.11 ZK RF.

2. The next case of the sale of a land plot without bidding follows from the stipulated subparagraph 5 of clause 1 of Art. 1 of the Labor Code of the Russian Federation of the principle of the unity of the fate of land plots and objects firmly connected with it and provides for the sale of land plots on which buildings, structures are located, to the owners of such buildings, structures or premises in them (subparagraph 6 of clause 2 of the commented article). It should be noted that the sale of land plots on this basis is possible only if all buildings, structures or premises in them are privately owned, and all owners (participants in shared ownership) of such buildings, structures, premises in them apply for the provision of ownership of the land plot (Art. 39.20 of the RF Labor Code).

This group of grounds can also include the case provided for in paragraph 20 of Art. 3 of Law N 137-FZ, according to which citizens and legal entities whose ownership right to perennial plantations is registered in accordance with Federal Law of July 21, 1997 N 122-FZ "On state registration of rights to real estate and transactions with it" until the day the entry into force of the Federal Law of December 4, 2006 N 201-FZ "On the Enactment of the Forest Code of the Russian Federation", they acquire land plots that are in state or municipal ownership and on which these perennial plantations are located, without bidding for ownership or lease at the choice of these citizens and legal entities in accordance with the rules established by Chapter 5.1 of the Land Code of the Russian Federation.

3. The third group of grounds for the provision of land plots under contracts of purchase and sale without bidding is the sale of land plots that are in permanent (unlimited) use by legal entities to the specified legal entities, with the exception of the persons specified in clause 2 of Art. 39.9 of this Code (subparagraph 7 of clause 2 of the commented article). In fact, we are talking about the re-registration of the right to permanent (unlimited) use of a land plot, the obligation of which arises from paragraph 2 of Art. 3 of Law N 137-FZ. In the commented subparagraph, we are talking only about legal entities, since with regard to citizens, a procedure is provided for re-registering the right of permanent (unlimited) use of a land plot for ownership in accordance with paragraph 9.1 of Art. 3 of Law N 137-FZ.

Analyzing this group of grounds, it should be noted that clause 3.2 of Art. 3 of Law N 137-FZ provides for the possibility of the tenant acquiring ownership of a land plot that is provided from agricultural land or land of a settlement and is intended for agricultural production and on which there are no buildings or structures, also if the tenant's right to lease arose in as a result of re-registration of the right of permanent (indefinite) use or the right of life-long inheritable possession of such a land plot for the right to lease.

4. Next group cases of sale of land plots without bidding follows from the Federal Law of July 24, 2002 N 101-FZ "On the turnover of agricultural land". This includes cases of granting land plots to a peasant (farm) enterprise or agricultural organization in the cases established by Law N 101-FZ (subparagraph 8, clause 2). So, according to clause 5.1 of Art. 10 of Law N 101-FZ, a land plot that is in municipal ownership and allocated on account of land shares that are in municipal ownership is transferred to an agricultural organization or a peasant (farmer) enterprise using such a land plot in ownership or lease without bidding if the agricultural an organization or a peasant (farm) economy applied to a local government body with an application for the conclusion of a sale and purchase agreement or a lease agreement for such a land plot within 6 months from the date of state registration of the municipal ownership of such a land plot.

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SZ RF. 2002. N 30. Art. 3018; 2003. N 28. Art. 2882; 2004. N 41. Art. 3993; No. 52. Art. 5276; 2005. N 30. Art. 3098; 2008. No. 20. Art. 2251; 49. Art 5748; 2009. N 19. Art. 2283; 2011. N 1. Art. 32, 47; 2012. N 26. Art. 3446; No. 27. Art. 3587; 2013. N 23. Art. 2866; 49. Art. 6328; N 52. Art. 7011.

Sub-clause 9 of clause 2 of the commented article provides for the possibility of acquiring, without bidding, land plots intended for agricultural production and leased to a citizen or legal entity. At the same time, for the acquisition of a land plot on this basis, a number of conditions must be met. Thus, only the lessee of such a land plot has the opportunity to acquire a land plot in ownership. This opportunity arises only after 3 years have passed since the conclusion of a lease agreement with this citizen or this legal entity, or the transfer of rights and obligations under the land lease agreement to this citizen or this legal entity. The site must be used appropriately. In addition, an application for concluding a sale and purchase agreement for such a land plot without holding an auction must be submitted before the expiration date of the said land plot lease agreement. The latter condition is due to the fact that a different approach leads to the uncertainty of the issue of payment for the use of a land plot in the period from the date of termination of the lease agreement until the emergence of private ownership of the land plot.

It should be noted that this basis for the acquisition of ownership of the land plot was transferred from clause 4 of Art. 10 of Law N 101-FZ. At the same time, this basis has undergone changes. So, in addition to the above conditions, it was established that the possibility of acquiring ownership extends not only to land plots from agricultural land, but also to all land plots intended for agricultural production (regardless of the category of land). This approach seems to be correct, since the mere assignment of a land plot to a particular category does not guarantee its use in accordance with a certain permitted use. On the other hand, different legal regulation in relation to land plots of one type of permitted use only on the basis of their assignment to different categories seems insufficiently justified, especially considering that the legislator has provided for the possibility of establishing different types permitted use within one category of land and the ability of the authorized bodies to change the category of land without the consent of the owner of the land plot (for example, by changing the border of the settlement).

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Moreover, in accordance with paragraph 1 of Art. 4 of the Federal Law of December 29, 2006 N 264-FZ "On the development of agriculture" (SZ RF. 2007. N 1 (part 1). Art. 27) agricultural production is a set of types economic activity for the cultivation, production and processing of agricultural products, raw materials and food, respectively, including the provision of relevant services.

5. Clause 2 of the commented article also provides for the possibility of selling land plots without tendering to citizens for individual housing construction, maintaining personal subsidiary plots within the boundaries of a settlement, gardening, dacha farming, to citizens or peasant (farmer) households for the implementation of a peasant (farm) economy. activities. Moreover, such a sale is possible only in the case provided for in Art. 39.18 of the Labor Code of the Russian Federation, - subject to prior notification of the possibility of acquiring a land plot for the specified purposes and the absence of other persons interested in acquiring such a land plot.

Thus, in contrast to the previously valid norms of the RF LC, the commented article establishes an exhaustive list of cases in which it is allowed to sell state or municipal property land plots without bidding.

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The presence of a number of additional cases in Law N 137-FZ does not contradict this conclusion, since the cases provided for by it are temporary in nature and, due to legal and codification requirements, cannot be included in the main text of the RF LC.

It should also be noted that in all cases provided for in paragraph 2 of the commented article, it is also possible to conclude a lease agreement for a land plot without bidding (paragraph 2 of article 39.6 of the RF LC). In this regard, it is important to note that if, in accordance with the RF Labor Code, it is allowed to provide a land plot to a person for ownership or lease without tendering, the type of right on which such a land plot is granted is chosen by the applicant (clause 6 of Article 39.14 ZK RF).

Clause 3 also establishes a rule that is new for the RF LC, according to which, if the auction is declared invalid and there are persons who meet the terms of the auction, the land plot sale and purchase agreement is concluded with these persons (for more details, see the commentary to Art. 39.12 of the RF LC).

Consultations and comments of lawyers under Article 39.3 of the Labor Code of the Russian Federation

If you still have questions about Article 39.3 of the RF Labor Code and you want to be sure of the relevance of the information provided, you can consult the lawyers of our website.

You can ask a question by phone or on the website. Initial consultations are held free of charge from 9:00 to 21:00 daily Moscow time. Questions received from 21:00 to 9:00 will be processed the next day.

1. Sale of land plots in state or municipal ownership shall be carried out at auctions held in the form of auctions, with the exception of the cases provided for by paragraph of this article.

2. Without bidding, the sale is carried out:

1) land plots formed from a land plot leased for the integrated development of the territory to a person with whom, in accordance with the Town Planning Code of the Russian Federation, an agreement on the integrated development of the territory has been concluded, unless otherwise provided by subparagraphs 2 and 4 of this paragraph;

1.1) land plots formed from a land plot provided under a lease agreement or a gratuitous use agreement for the purpose of integrated development of the territory, concluded in accordance with Federal Law No. 161-FZ of July 24, 2008 "On Assistance in the Development of Housing Construction";

2) land plots formed from a land plot provided to a non-profit organization created by citizens for the integrated development of the territory for the purpose of individual housing construction (with the exception of land plots classified as common property), members of this non-profit organization or, if this is provided for by a decision of the general meetings of the members of this non-profit organization, this non-profit organization;

3) land plots formed from a land plot provided to a horticultural or horticultural non-profit partnership, with the exception of general purpose land plots, to members of such a partnership;

4) land plots formed as a result of the division of a land plot provided to a non-profit organization created by citizens for the integrated development of the territory for the purpose of individual housing construction and related to common property, to this non-profit organization;

6) land plots on which buildings, structures are located, to the owners of such buildings, structures or premises in them in the cases provided for by this Code;

7) land plots in permanent (indefinite) use of legal entities, to the specified legal entities, with the exception of the persons specified in paragraph 2 of this Code;

8) land plots for a peasant (farmer) enterprise or an agricultural organization in the cases established by the Federal Law "On the turnover of agricultural land";

9) land plots intended for agricultural production and leased to a citizen or a legal entity, this citizen or this legal entity after three years from the date of the conclusion of a lease agreement with this citizen or this legal entity or the transfer of rights and obligations under a land lease agreement plot to this citizen or this legal entity, provided that the authorized body does not have information on violations of the legislation of the Russian Federation revealed within the framework of state land supervision and unresolved violations of the legislation of the Russian Federation when using such a land plot if this citizen or this legal entity has an application for concluding a sale and purchase agreement for such the land plot was submitted without bidding before the expiration date of the said land plot lease agreement;

10) land plots to citizens for individual housing construction, maintaining personal subsidiary plots within the boundaries of a settlement, gardening, citizens or peasant (farmer) households for the implementation of its activities by a peasant (farm) economy in accordance with this Code;

11) land plots to citizens in accordance with the Federal Law "On the specifics of providing citizens with land plots in state or municipal ownership and located in the territories of the constituent entities of the Russian Federation that are part of the Far Eastern Federal District, and on amending certain legislative acts of the Russian Federation" ...

3. If the only application for participation in an auction for the sale of a land plot in state or municipal ownership is submitted by a person who meets the requirements for auction participants specified in the notice of the auction and whose application for participation in the auction complies with those specified in the notice of the auction the terms of the auction, or if only one applicant is recognized as the only participant in the auction or only one participant took part in the auction, the sale of such a land plot is carried out to the specified person.

• Grounds for the emergence of rights to land plots provided from lands that are in state or municipal ownership

  2. Sale of land plots in state or municipal ownership, in accordance with the main type of permitted use of which the construction of buildings, structures is provided, is not allowed, except for the cases specified in paragraph 2 of Article 39.3 of the RF LC, as well as in cases of holding auctions for the sale of such land plots in accordance with Article 39.18 of the RF Labor Code.

• The procedure for granting ownership, lease, permanent (unlimited) use, gratuitous use of a land plot in state or municipal ownership, without holding an auction

  5. In the cases stipulated by subparagraph 7 of paragraph 2 of Article 39.3, subparagraph 11 of paragraph 2 of Article 39.6 of the RF LC, an application for granting a land plot for ownership or lease must be submitted simultaneously with an application for termination of the right to permanent (unlimited) use of such a land plot.

Registration of land for lease without bidding

Your question:

I want to apply for a lease of a land plot that is adjacent to my plot, which belongs to me on the basis of private property rights.
In the application I would like to indicate: ... I ask you to lease a land plot in accordance with paragraphs. 19 clause 2 of article 39.6 of Z.K. without bidding for gardening in accordance with the classifier of the permitted use of land plots according to code 2.2 (name of the type of permitted use of a land plot - a personal plot of a personal subsidiary farm, a description of the type of permitted use of a land plot - production of agricultural products) ...
Is such a statement legal?
Can I be refused?
What are the reasons for refusal?

Lawyer's answer:
Hello, Natalia!
As far as I understand, you want to receive a land plot for further purposes?
Article 39.6. Cases of provision of land plots, which are in state or city ownership, for rent at auction and without holding an auction
[Land Code of the Russian Federation] [Chapter V.1] [Article 39.6]
2. The contract for the lease of a land plot located in a state or city affiliation shall be concluded without holding an auction in the event of the provision of:
19) a land plot to a citizen for haymaking, grazing farm animals, gardening or a land plot located outside the boundaries of a populated settlement, to a citizen for running a personal subsidiary farm;
Is such a statement legal?
Natalya You can get a sample application directly from the Administration of the city. Khimki
Can I be refused?
Natalia
The probable grounds for refusal are indicated in article 39.16. Grounds for refusing to provide a land plot located in the state or city, without bidding (http: // www.

On the provision of a land plot for rent without bidding

Your question: land code article 39 6

According to my application, the formation of a land plot was initiated by developing a plot planning project, all the costs of conducting engineering and geodetic surveys and a planning project were incurred by me, further registration is also planned at my expense. Can I demand the conclusion of a lease agreement for this site without holding an auction in accordance with any of the clauses of Article 39.6 of the RF Labor Code (for example, clauses 6).
From clause 15, of course, everything is clear, but there are risks, is it possible to demand on the basis that everything was done at your own expense without this procedure.

Lawyer's answer:
In the event that a land plot was provided to you for running a personal subsidiary farm, gardening, dacha farming (subparagraph 15 of paragraph 2 of article 39.6 of the RF LC), for gardening or a land plot located outside the boundaries of a populated point for maintaining personal subsidiary farming ( clauses 19, clause 2 of Art. 39.6 of the RF LC), you have the right to conclude a new lease contract without bidding if the aggregate criterion provided for in clause 4 of Art. 39.6: 1) an application for concluding a new lease contract for such a land plot is submitted before the expiry date of the previously concluded land plot lease contract;
2) the exclusive right to acquire such a land plot in cases other person does not have;
3) the previously concluded lease contract for such a land plot was not terminated on the grounds provided for in Clauses 1 and 2 of Article 46 of the RF Labor Code;
4) at the time of concluding a new lease contract for such a land plot, there are those provided for in subparagraphs 1 - 30 pt 2 of Art. 39.6 of the RF Labor Code of the Russian Federation grounds for providing, without bidding, a land plot, the lease contract of which was concluded without bidding (in your case, cl.
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Interpretation of clause of article 39.10 of the RF LC, clause 6

Your question: land code article 39 6

39.10 of the Labor Code of the Russian Federation, clause 6, how can any citizen correctly interpret this article?
I cannot understand what it means to be a subject determined by the law. it municipalities determined by law or what.

Lawyer's answer:
According to subparagraph 6 of paragraph 2 of Article 39.10 of the Earth Code of the Russian Federation, land plots located in the state or city may be provided in
free use, including for a citizen for personal
housing construction, personal subsidiary plots, or incarnations
peasant (farm) economy of its activities in urban
formations determined by the law of a constituent entity of the Russian Federation, for a period not
more than 6 years.
In other words, in this case, the legislator foresaw the broad possibilities of the constituent entities of the Russian Federation to determine the corresponding urban formations, based on
socio-economic and demographic situation in a certain region, in
which proper land plots can be provided in
free use.
I hope the answer was useful to you!
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Extension / conclusion of a lease agreement for a land plot without bidding

Your question:

Hello! help find a way out the situation is as follows:
there was a lease agreement for s / y for planting vegetables without the right to cap. construction,
the contract has ended. The conclusion of a new agreement is impossible without holding an auction in clause 2 of Article 39.6 of the RF LC. is it possible to conclude such an agreement without bidding for a new term.
According to the terms of the contract, it is terminated upon the expiration of the specified period.

Lawyer's answer:
Hello Love. Unfortunately, according to part 15 of article 39.8. Of the Land Code of the Russian Federation, the tenant of a land plot located in a state or city property does not have a pre-emptive right to conclude a lease contract for such a land plot for a new term without holding a tender.
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