Procedural features of land and property disputes

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Procedural features of land and property disputes

Vakhitova G.V.

Ufa University of Science and Technology (Ufa, Russia)

Evchenko L.A.

Аннотация: nowadays the direction of real estate is one of the most attractive for lawyers, because, as practice shows, there are not so many specialists who know the subtleties of consideration of such disputes in courts. For this reason, it is important for every lawyer, and even more for advocates, to understand the procedural peculiarities of land disputes.

Ключевые слова: real estate, land, property disputes.

It is known that there are many types of land disputes in legal literature:

- land disputes related to the violation or contestation of the rights of citizens or organizations to land, including the right to own, use and dispose of land (for example, such disputes may arise in connection with the fact that the person was mistaken about his actual right),

- land and property disputes related not only to the violation of land rights, but also to compensation for losses and damage caused by this violation,

- property disputes arising out of land relations (there is no dispute about the right to land, but property disputes regarding the use and disposal of land are considered, for example, a dispute about the amount of losses and their compensation in case of withdrawal of land for state needs).

Depending on the content of disagreements regarding the realisation of subjective rights and (or) performance of obligations by participants in land legal relations, land disputes are classified into:

- disputes on recognition of the right to a land,

- disputes about awarding performance of a certain action in favour of an interested participant of land legal relations or refraining from its performance,

- disputes on change or termination of land legal relations.

Depending on the procedure for consideration, land disputes are subdivided

into:

- disputes considered with mandatory compliance with the preliminary (prejudicial) out-of-court procedure,

- disputes considered directly in courts.

The judicial procedure for consideration of land disputes differs little from the procedure for consideration of other claims.

The rules for filing claims with various courts and considering cases in them are determined by the following regulatory acts:

- Civil Procedure Code,

- the Arbitration Procedure Code,

- the Code of Administrative Procedure of the Russian Federation.

Appeal to the court has declaratory nature and consists of filing a lawsuit, application, complaint containing the circumstances and grounds for the emergence of land disputes.

In addition, when preparing and filing a statement of claim, it is necessary to take into account the fact that a land plot as an object of law must be individualised by determining its size, boundaries and location. Thus, claims for recognition of rights to a land plot, the boundaries of which have not been determined and the process of land surveying has not been conducted, can't be accepted for consideration, since there is no subject of the dispute.

Such a land plot does not have an exact size, and its area may change during land surveying and not correspond to the area previously provided. Registration of title to such land plots by court decision is actually impossible, since their boundaries are subject to specification.

Thus, a land plot as a subject of a land dispute should always be individualised on the ground, represent a specifically defined thing, and in property turnover the main thing is always the land (land plot), and the belonging - objects located on it, including real estate [2, P. 51].

The study of judicial practice has shown that courts often mistakenly refuse to accept an application due to lack of jurisdiction. This fact demonstrates that the judicial system has difficulties with the jurisdiction of land disputes. They usually arise when delimiting the jurisdiction of courts of general jurisdiction and arbitration courts. real estate land property

Based on the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of 18 August 1992 № 12/12 «About some questions of jurisdiction put to courts and Arbitration Courts», for the correct determination of jurisdiction should be guided by the composition of the participants and the nature of the legal relationship [1].

Accordingly, disputes arising out of land legal relations where the parties are organizations or citizens engaged in entrepreneurial activity shall be considered by arbitration courts. Land disputes in which at least one party is executive authorities or public-law entities, in the case of their economic or entrepreneurial activities, are also subject to the jurisdiction of arbitration courts.

Analysing judicial practice, it can be seen that due to the peculiarities of land disputes, for a long time there was no unified approach to determining the jurisdiction of arbitration courts over disputes arising between local self-government bodies and regional state authorities regarding the ownership of rights to dispose of land located on the territory of a municipality. Some courts assumed that these disputes were not within the jurisdiction of arbitration courts due to the delimitation of competence between local self-government bodies and state authorities in the area of land legal relations. Others believed that economic interests of state authorities or local selfgovernment bodies were involved, which could only be resolved by an arbitration court.

This problem was partially resolved by the Scientific Advisory Council of the FAS Ural District. The Council pointed out the following: when challenging specific non-regulatory acts of local government bodies related to the right of the local government body in the sphere of its economic activity to transfer land plots for temporary free possession and use, the arisen dispute is subject to consideration in an arbitration court. Land dispute arising out of legal relations related to the exercise of the right to dispose of a particular land plot, quite reasonably was recognised as economic and, therefore, subject to the jurisdiction of the arbitration court.

It's worth noting that there are no special problems in determining the jurisdiction of disputes arising from land legal relations in arbitration courts, as the law clearly defines the competence of arbitration courts of various levels. Land disputes related to the implementation of economic or entrepreneurial activities are considered by the first instance of arbitration courts.

Thus, it can be stated that consideration of land disputes in courts has a number of procedural peculiarities. Accordingly, any lawyer, in our opinion, needs to take these features into account, since land disputes remain relevant at any time.

СПИСОК ЛИТЕРАТУРЫ:

1. Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of 18 August 1992 № 12/12 «About some questions of jurisdiction put to courts and Arbitration Courts» [Electronic resource] // Official website of the Supreme Court of the Russian Federation. URL: https://www.vsrf.ru/en/rulings_plenum/previous_years/ (date of reference: 12.05.2024);

2. Bariev A. G. Protsessual'nye osobennosti razresheniya zemel'nykh sporov v sudakh // Probely v rossiiskom zakonodatel'stve. 2018. №2 1. P. 50-54

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