Limitation of encumbrance of the right to a land plot

General information about encumbrances

The legislation does not have a clear answer to what an encumbrance on a land plot is. This concept was contained in the already abolished Art. 1 . It followed from the law that encumbrances should be considered conditions and prohibitions that limit the right holder in the exercise of ownership and other proprietary rights to real estate: disposal, possession, use.

Although the normative act has lost force, the definition established by it is still relevant. Its analysis allows us to understand the essence of the phenomenon and characteristics:

1. An encumbrance is a restriction that restricts certain rights of the land owner.
2. It is intended to protect the subjective rights of third parties in whose favor it is established: creditor, tenant, mortgagee.
3. The encumbrance is not associated with the deprivation of the owner of his rights, since, as a rule, it is temporary.

To understand what an encumbrance on a garden plot means, it is important to understand what specific allotment we are talking about. The current legislation contains about a dozen restrictions. Each of them has a unique meaning: some are a measure of responsibility/coercion, others are a form of securing obligations, and others are property-obligatory legal relations of owners and third parties.

Moreover, all of them can arise only for a limited number of reasons.

Find out more about what an encumbrance on real estate is

Definition and legislation

Encumbrances on a land plot mean prohibitions and conditions imposed on it that limit its use. Moreover, these restrictions are often not removed with a change in the owner of the site and are tied to the land itself, and not to the owner.

The encumbrance of a site can be understood as:

• restriction of land in circulation (for example, having it as collateral for a mortgage loan);
• providing it for use by other persons (for example, easement);
• limited permitted use (for example, a ban on industrial development in environmental zones).

Article 11.8 of the Land Code describes the ways in which encumbrances may arise on a site:

• in clause 2, the right to unlimited and free use;
• in clause 4, the specifics of the lease agreement;
• clause 5 – methods for establishing the boundaries of easements.

Locally, the legal norms of the Land Code regarding encumbrances on land plots are supplemented by municipal legislative acts.

How do land encumbrances arise?

Imposition of an encumbrance on a land plot is possible only in cases specified by law. An analysis of the legislation allows us to identify three possible grounds:

• Agreement. According to it, the owner voluntarily limits his property rights or transfers them to another party, for example, under a lease agreement.
• Act of the authorized body. In cases established by law, state and other bodies can limit the property rights of owners: a court decision, a village council, a bailiff's decision.
• Law or by-law. State regulations and decisions of local governments establish some restrictions on the right to use land: a ban on construction on agricultural territories, etc.

Such grounds are firmly connected with the nature of the restrictions - a specific reason is provided for each type of encumbrance. For example, you cannot seize land by concluding an agreement, or encumber land with a lease by court decision.

Some forms of restrictions may arise for several reasons.

Results

Restrictions, whatever their nature, are always unpleasant. The law prohibits not paying taxes or violating obligations to financial organizations, and protects the rights of participants in economic relations. Therefore, the property is used as collateral, which includes land. Ignorance of the laws has never saved anyone from responsibility. It is necessary to fulfill the duties assumed, then the land will not be seized and sold to cover debts.

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Forms of encumbrances in the legislation of the Russian Federation

Civil legislation provides for the following types of encumbrances on land plots:

• land easement;
• mortgage agreement;
• land lease;
• concession agreement;
• seizure of land;
• trust agreement;
• notarial prohibition on alienation;
• restrictions on the use of land by law;
• restrictions on the use of protected zones.

Each of these types has its own characteristics, which are worth dwelling on in more detail.

Land easement

According to Art. 274 (Civil Code), encumbrance with an easement is the right to limited use of a neighboring (or other) land plot. It may occur among neighbors:

• to provide passage or passage;
• for repair and reconstruction of real estate or linear objects located on the site;
• in other cases when their needs cannot be provided in any other way.

If such circumstances arise, the person interested in the encumbrance enters into an agreement with the owner of the land on the conditions and terms of limited use. The owner has the right to demand monetary or other compensation.

If an agreement cannot be reached, an easement can be established in court, but for this, the interested party must prove the existence of compelling reasons.

Art. 39.23 (ZK) allows for the encumbrance of a plot of land that is in federal ownership. The reasons for this are the same - the implementation of the rights of the owner, as well as carrying out survey work, using subsoil, and so on.

If federal (municipal, regional) land is provided with the right of lifelong ownership, perpetual use or lease, then it is the citizen, and not the state, who must enter into an agreement or be a defendant in court.

The law, in accordance with Art. 23 of the Land Code also provides for a public easement, which is established by a decision of local or federal authorities in the state, municipal or public interests. It is imposed on the site, for example, for:

• providing access to a reservoir;
• placement of boundary signs or abstraction of water resources;
• haymaking, animal driving;
• arrangement of roads or utilities.

The copyright holder has the right to demand proportionate financial compensation for this use. If such requirements are not put forward, a public easement is established free of charge.

Mortgage agreement

Mortgage, according to paragraph. 2 clause 4 art. 334 of the Civil Code, is nothing more than a pledge of real estate. By concluding a mortgage agreement on a land plot with someone, the individual, in essence, provides it as a guarantee of repayment of the loan. If financial obligations are not fulfilled, the creditor has the right to satisfy the claims at the expense of the pledged property: the debtor's land will be transferred to him.

To ensure the rights of the mortgagee, a mortgage encumbers the pledged property. From the moment of its registration, the owner is deprived of the right to freely dispose of the property. He can sell, donate or otherwise dispose of the plot only after the mortgage has been repaid or in agreement with the lender.

According to Art. 63, it is not allowed to pledge land plots that:

1. Are in state and municipal ownership (with some exceptions);
2. They are smaller in size than the standard established for sites for various purposes.

Land lease agreement

If a citizen has leased his land from the tenant, in accordance with Art. 606 of the Civil Code, the right of temporary use and/or ownership of land arises. The property rights of the owner are temporarily terminated.

This does not mean that subjective rights to the land of third parties no longer apply: previously established easements, pledges, and so on.

Lease encumbrance, that is, temporary restriction of the owner in use and possession, in accordance with clause 2 of Art. 609 of the Civil Code, arises from the moment of state registration of the contract. However, Art. 26 of the Land Code allows you to register only agreements with a validity period of more than 1 year.

In practice, the lease encumbers the land only if it lasts longer than 12 months.

The transfer of ownership of land does not terminate the rights of the tenant. Even if the owner of the plot has changed, he cannot terminate the lease agreement before its expiration without good reason.

Concession agreement

Concession is a rare form of encumbrance. In fact, this is a type of lease, which, according to Art. 11, has a targeted nature.

A concession agreement is concluded with the concessionaire for the use of land for commercial purposes specified in the agreement, such as mining or commercial construction.

A land concession requires the mandatory conclusion of a lease agreement within 2 months from the date of its occurrence. It is this document, and not the concession agreement, that creates an encumbrance on the site.

Seizure of a land plot

Seizure is also a common form of land encumbrance. It is imposed only by decision of the authorized state body:

1. As determined by the court, as a measure to secure a claim (Article 140).
2. By order of the bailiff in order to ensure the execution of a court decision containing a demand for property recovery (Article 80).

The arrest is usually associated with the debts of the owner. Depending on the amount of debt, the land can be seized, described and even sold at auction.

The presence of a seizure implies a ban on the disposal of land. The owner is prohibited from alienating the plot in favor of third parties.

This is an absolute prohibition - until the seizure is lifted, the copyright holder will under no circumstances be able to:

• dispose of land;
• create new land plots;
• divide the land into several plots;
• otherwise re-register them.

If the property is not confiscated, the seizure does not prohibit the owner from freely continuing to use it.

Find out how it is carried out and what consequences the seizure of the debtor's land plot by bailiffs has.

Trust management agreement

Trust management (TD) of land is also a burden. It arises on the basis of an agreement between the owner and the manager. The document, according to Art. 1017 of the Civil Code, subject to state registration.

The person entrusted with management acts on behalf of the owner or other beneficiary. Within the framework of his powers, the manager has the right to carry out any transactions and other legal actions if they meet the interests of the copyright holder.

The essence of the property rights as an encumbrance on the real rights of the land owner causes a lot of controversy among lawyers. Although the management company is subject to state registration, the law does not indicate that the owner is deprived of administrative and other property rights - he only vests them with another person (the manager). Consequently, the liability cannot be considered a classic encumbrance.

Land in tax lien

A tax lien is a specific form of encumbrance that arises in relation to land plots of taxpayers applying for an installment plan or deferment of tax payments (clause 12 of the Procedure, approved by Order of the Federal Tax Service No. ММВ-7-8 / [email protected] dated 12/06/16) .

A person wishing to receive an installment plan/deferment applies to the tax authority with an application for a pledge.

After this, an agreement on tax lien of the land is concluded between the Federal Tax Service and the applicant. According to Art. 73, the document is drawn up according to the general rules for concluding a pledge (mortgage) agreement.

The land plot becomes a guarantee of securing tax obligations. Without the knowledge of the Federal Tax Service, the owner will not be able to dispose of the land.

In case of failure to pay the tax within the stipulated time frame, the collateral is foreclosed on.

Notarial prohibition on alienation

According to Art. 76, notaries have the right to impose a ban on the sale, donation, exchange of property, including land. As practice shows, this often happens on the basis of agreements between financial organizations and individuals, for example, when providing large cash loans.

The agreement must necessarily contain a condition depriving the borrower of the right to alienate the land.

However, this position is not clear-cut. For example, Letter of the Federal Tax Service No. 864/06-12 dated May 28, 2008 confirms that the legislation does not indicate the performance of this notarial act. At the same time Art. Article 76 of the Fundamentals allows a ban to be imposed only on the grounds and conditions provided for by law.

Thus, the legality of the notarial prohibition on alienation is questionable.

Restrictions in special areas

In order to protect the environment, ensure the safety of cultural heritage sites, and the safe operation of real estate, zones with special conditions for the use of territories may be established.

In Art. 105 ZK lists the zones:

• protection of cultural heritage sites;
• railway protection;
• sanitary protective;
• flooding and flooding;
• coastal protective strips;
• specially protected natural areas;
• protected military facilities and more than 20 other types.

The decision to establish a zone is made in a special manner by a special commission. This is recorded in the real estate register and entails certain restrictive consequences for the owners. For example, if a military unit has placed an encumbrance on a land plot, defining it as the territory of a protected object, in accordance with Art. 107 of the Land Code, the owner can no longer:

• carry out construction on it;
• use buildings and structures;
• otherwise use the land, except for the actions permitted by the decision to establish a special zone.

Areas where power lines, gas and water supply lines are located

Areas where power lines, gas and pipelines are installed are also security zones. The extent of restrictions imposed on owners depends on certain features.

For example, the encumbrance of a land plot for power lines is provided for by the Rules, approved. . According to them, in such a protected zone it is prohibited:

• build and demolish any buildings;
• engage in agricultural activities;
• plant plants and trees;
• store feed and materials;
• hold sports competitions and so on (in the case of high-voltage power lines).

Any activities in the security zone are permitted only with written permission. The owners themselves are not limited in their administrative rights - they freely sell, donate and otherwise dispose of the land.

An area encumbered by a gas or oil pipeline is also limited in use, in accordance with the Rules, approved. Resolution of Gostekhnadzor No. 9 dated April 24, 1992. Without special permission, agricultural work can be carried out on it.

Special permission is required for:

• construction;
• planting trees and shrubs;
• passage structures;
• keeping livestock;
• arrangement of transport parking;
• carrying out other types of activities.

Taking actions that threaten the integrity of the pipeline (lighting a fire, opening hatches, moving special signs) is strictly prohibited.

Ordinary main water pipelines are also subject to the establishment of a security zone. As a rule, a zone within a radius of 5 meters from such a highway is considered a security zone. In this place, unauthorized tree planting, construction, garbage dumping, road construction, and so on are prohibited.

The right to permanent, unlimited use of the site

The right of permanent unlimited use of the site can only be used by:

• government agencies;
• municipal institutions;
• state-owned enterprises;
• state and municipal authorities.

Other subjects of land law cannot take advantage of this type of perpetual legal relationship. If before the entry into force of the new Land Code of the Russian Federation, such a right was reserved for individuals, it continues to operate as an exception.

It is worth noting that a site provided for such an indefinite type of permanent use must necessarily have clearly established boundaries that are documented. Each owner of such a plot has the full right to dispose of it at will, depending on the category of land. In particular, he can build a residential building on it or conduct agriculture.

The exact area and size of the plot are not specified at the legislative level.

Registration of restrictions

Registration of an encumbrance on land in Rosreestr is a mandatory condition for its validity. Registration requirements are established by law in relation to contracts or decisions on the basis of which such restrictions arise.

Based on the results of registration, information about imposed encumbrances is entered into the Unified State Register of Real Estate (USRN). This is the only source where anyone can view encumbrances on a land plot.

The registration procedure is provided for by the regulations. The procedure depends on the type of restrictions. For example, if it is a mortgage or lease, the agreement and the encumbrance under it are registered by one of the parties. If there is an arrest, information about it, in the manner of interdepartmental cooperation, is transferred to Rosreestr by the officials who imposed it.

What is the difference between an onerous burden and a restrictive requirement?

When an encumbrance is placed on an object, the owner is obliged to comply with the rules for exploitation of the land plot, regarding:

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• guarded borders near gas pipelines and power lines;
• construction near a reservoir.

The owner of such a plot is prohibited from building in the zone that passes through his territory. It is impossible to carry out transactions with land if debt obligations to banks serve as an obstacle. This means that you need to ask the lender for permission until full payment has been made. In the event of debt formation and refusal to return funds, the credit institution may sell the plot to pay off the arrears.

Restriction should be understood as reduced ownership rights . A citizen is the owner of the plot, but cannot dispose of it in full. The basis is the legislative acts of the Land Code of the Russian Federation:

• Art. 105 – gives an idea of ​​the types of protective zones;
• Art. 56 – limits the rights to use territories where flora, fauna, cultural or natural monuments are located.

Reference! Clause 6 of Article 56 of the Land Code of the Russian Federation approves the procedure for registering restrictions and encumbrances based on documentary evidence of contracts, decisions, and grounds due to which such legal phenomena arose.

Verification of encumbrances

There are several ways to find out if there is an encumbrance on a land plot. All of them require obtaining information from the Unified State Register of Real Estate. Since it is a public source, information from it is publicly available.

The safest thing to do is contact the nearest branch of Rosreestr and order an extract from the register. To do this, you need to know the address of the plot, its area and the name of the legal owner of the land. In the same way, you can request a document through the MFC or send a request by mail.

The easiest way is to check the encumbrance of a land plot online. You can request information from the Unified State Register of Real Estate in the form of an electronic or paper document using the Rosreestr website.

An electronic document will cost less than a paper one - the state fee for providing an extract is 300 and 750 rubles, respectively. The fee must be paid in advance.

Please note that it will not be possible to register a plot for encumbrance using the cadastral number. Such information is not posted there.

Removal of encumbrance

The exclusion of information about restrictions imposed on a site from the real estate register occurs in a strictly prescribed manner by law. There are many reasons for this: how to remove an encumbrance from a land plot depends on the type of restriction imposed.

The reasons include:

• expiration of the lease agreement, easement or non-compliance with the terms of the agreement;
• fulfillment of obligations and repayment of the mortgage in the event of a mortgage or a notarial prohibition of alienation of property;
• decision of a public authority when encumbering special zones;
• termination of enforcement proceedings or fulfillment of an obligation under a writ of execution, and so on.

In addition, the removal of encumbrances from a land plot in Rosreestr is possible by court decision. For example, if the arrest by a bailiff was imposed illegally, the debtor has the right to appeal the actions of the official.

To appeal, you need to file a lawsuit with the district court, in which you should describe the situation in detail and indicate which actions of the bailiff violated the law. If they are found unlawful, the court will order the arrest to be lifted.

Look at what an example of a statement of claim for the removal of an encumbrance on a land plot in the form of an arrest looks like.

If the restriction arises legally, according to the contract, the procedure for removing the encumbrance occurs in the same way as its imposition: the parties contact Rosreestr and submit an application to cancel the entry.

Prohibition on alienation of property and special zones

There are certain zones near which a plot of land can be located. Then a restriction will be imposed on such a site. It all depends on the type of zone near which the owner’s land is located.

The following types of zones are distinguished:

1. Protected zone - on its territory there are reservoirs, recreational facilities and various water sources. The zone is guarded by a sanitary-epidemiological station and protects these reservoirs. The zone may also contain various hydrological stations, useful springs, and industrial facilities.
2. Sanitary protection – the zone area contains hazardous objects that bring negative consequences to residential areas. These are objects that emit high vibration or increased noise levels. As well as facilities for increased chemical production.

Land plots that are located near special zones may be included in the category of special land encumbrance. It is due to the fact that there may be sources of water near the plot of land that you like, both closed and open. This also includes water intake, treatment facilities, drainage systems, etc.

Special regime zones are under special protection and have a special regulatory regime. This same type of zone defines lands that are located around valuable natural or cultural objects, power lines, etc.

Sanitary-protected zones are located around and near objects that can emit increased vibration, noise, odors, etc. Such zones are created to limit and separate unfavorable or even dangerous territories from others.

It is obvious that construction and people cannot live permanently in such areas. This is the burden of the land.

In addition, the encumbrance may be due to the fact that the owner of the site may become a party to legal proceedings that are not necessarily related to the site itself. However, by a court decision, financial obligations are sometimes imposed on the owner, which may extend to the site. In addition, the court may issue a temporary ban on the alienation of land.

Sale of land with encumbrances

The answer to the question whether it is possible to sell a plot with an encumbrance depends on its type. In fact, the only restriction that categorically prohibits a purchase and sale transaction is arrest. Until it is removed, it is impossible to alienate the property.

The rest of the encumbrances one way or another allow for purchase and sale, but with some features:

• alienation of a plot under a mortgage, pledge or prohibition on alienation is possible only with the consent of the mortgagee/creditor;
• the sale of land with an encumbrance in the form of a lease or easement does not terminate them. The right to use the land is retained by third parties to the same extent even after the transfer of ownership to the buyer;
• Land classified as special zones may be sold without obtaining permission.

The purchase and sale procedure itself does not provide for any significant features. Everything happens according to the standard scheme: concluding an agreement → signing a transfer deed → registering the transfer of rights.

The only important condition is to notify the buyer of the presence of restrictions and indicate them in the documents.

A typical contract for the purchase and sale of a land plot with an encumbrance can be viewed below.