of June 8, 2007 No. 113
About approval of Methodical recommendations of procedure for state registration of the rights to the created, created, reconstructed real estate units
According to articles 3 and 10 of the Federal Law of July 21, 1997 "About state registration of the rights to real estate and transactions with it" I order to No. 122-FZ:
Approve the enclosed Methodical recommendations of procedure for state registration of the rights to the created, created, reconstructed real estate units.
Director
S. V. Vasilyev
Approved by the Order of Federal registration Service of the Russian Federation of June 8, 2007 No. 113
Methodical recommendations of procedure for state registration of the rights to the created, created, reconstructed real estate units (further - Recommendations) are developed on the basis and according to the Civil code of the Russian Federation * (1) (further the Code), the Town-planning code of the Russian Federation * (2) (further the Town-planning code), the Federal Law of July 21, 1997 N 122-FZ "About state registration of the rights to real estate and transactions with it" * (3) (further - the Law), the Rules of maintaining the Unified State Register of Rights on real estate and transactions with it approved by the order of the Government of the Russian Federation of February 18, 1998 N 219 "About approval of Rules of maintaining the Unified State Register of Rights on real estate and transactions with it" * (4) (further - Rules of maintaining EGRP), The federal program of step-by-step development of system of the state registration of the rights to real estate and transactions with it approved by the order of the Government of the Russian Federation of April 9, 2001 N 273 "About approval of the Federal program of step-by-step development of system of state registration of the rights to real estate and transactions with it" * (5), other regulatory legal acts of the Russian Federation.
Recommendations are submitted on rendering the practical help to Federal registration Service and its territorial authorities (further - the bodies performing state registration of the rights) when implementing state registration of the rights to the created, created, reconstructed real estate units.
State registration of the rights to the created, created, reconstructed real estate units is carried out according to the procedure, established by the Law, Rules of maintaining EGRP, other regulatory legal acts of the Russian Federation adopted according to the Law.
To the relations arising in case of state registration of the rights on the created, created, reconstructed real estate units, are applied also other regulatory legal acts published by the Ministry of Justice of the Russian Federation according to the procedure of realization of powers in the field of registration of the rights to real estate and transactions with it.
Provisions of Recommendations do not extend to the relations arising in case of state registration of the rights to the real estate units created with attraction of money of participants of shared-equity construction for construction of apartment houses and (or) other real estate objects which permissions for construction are got after entry into force of the Federal Law of December 30, 2004 N 214-FZ "About participation in shared-equity construction of apartment houses and other real estate objects and about modification of some legal acts of the Russian Federation" * (6).
1. The property right to the new thing made or created by person for itself with compliance with law and other legal acts is acquired by this person (Item 1 of article 218 of the Code).
2. The property acquired by the unitary enterprise or organization for the agreement or other bases arrives in economic maintaining or operational management of the company or organization according to the procedure, established by the Code, other laws and other legal acts for acquisition of property right (Item 2 of article 299 of the Code).
Considering provisions of Article 299 of the Civil code of the Russian Federation, in this case state registration of the right of economic maintaining (operational management) of the state companies (organizations) to the real estate units which are in state-owned property is recommended to be performed along with state registration of the right of the state-owned or municipal property to these objects.
3. If other is not provided by the law or the agreement, the owner of the parcel of land acquires the property right to the building, construction and other real estate built or created by it for itself on the site (Item 2 of article 263 of the Code) belonging to it.
4. The property right to buildings, constructions and other newly created real estate which is subject to state registration arises from the moment of such registration (article 219 of the Code).
5. The property right to the created real estate unit is registered based on the documents confirming the fact of its creation (Item 1 of article 25 of the Law).
6. When implementing state registration of the rights to the created, created or reconstructed real estate unit it is recommended to make sure that the real estate unit is not unauthorized construction. Person which performed unauthorized construction does not acquire on it the property right (Item 2 of article 222 of the Code).
Unauthorized construction is the apartment house, other structure, construction or other real estate created on the parcel of land which is not taken away for these purposes according to the procedure, established by the law and other legal acts, or created without obtaining on it necessary permissions or with fundamental breach of town-planning and construction regulations and rules (Item 1 of article 222 of the Code).
The property right to unauthorized construction can be acknowledged as court, and in the cases established by the law in other procedure established by the law, behind person, in property, the life inherited tenancy which permanent (termless) use there is parcel of land where construction is performed.
The property right to unauthorized construction cannot be acknowledged for the specified person if preserving construction violates the rights and interests of other persons protected by the law or creates threat of life and to health of citizens (Item 3 of article 222 of the Code).
7. The document certifying accomplishment of construction, reconstruction, capital repairs of capital construction project in full according to the construction license, compliance of the constructed, reconstructed, repaired capital construction project to the development plan for a land plot and the project documentation, permission to commissioning of the facility (part 1 of article 55 of the Town-planning code) is.
The form of permission to commissioning of the facility is established according to part 12 of article 55 of the Town-planning code the order of the Government of the Russian Federation of November 24, 2005 N 698 "About form of the construction license and form of permission to commissioning of the facility" * (7).
Permission to commissioning of the facility is issued by the body which issued the construction license (part 2 of article 55 of the Town-planning code).
Permission to commissioning of the facility is issued including based on documents of title on the parcel of land (the subitem 1 of part 3 of article 55 of the Town-planning code). With respect thereto it is recommended to check availability of the rights of the applicant to the parcel of land when conducting legal examination of the documents submitted on state registration of the rights to the created real estate unit. Submission of the title document on the specified parcel of land is not required if the applicant's right to this parcel of land is earlier registered in the procedure established by the Law.
8. If the parcel of land which is taken away for creation of the real estate unit belongs to the applicant on the property right, the property right of the applicant to object of construction in progress is registered based on the documents confirming the property right to this parcel of land, construction licenses, the project documentation and documents containing the description of object of construction in progress (Item 3 of article 25 of the Law).
9. If the parcel of land which is taken away for creation of the real estate unit belongs to the applicant on other right, than the property right, the property right of the applicant to object of construction in progress is registered based on the documents confirming right to use with this parcel of land, construction licenses, the project documentation and documents containing the description of object of construction in progress (item 4 of article 25 of the Law).
10. The project documentation represents the documentation containing materials in text form and in the form of cards (schemes) and determining architectural, functional and technological, constructive and technical concepts for ensuring construction, reconstruction of capital construction projects, their parts, capital repairs if in case of its carrying out constructive and other characteristics of reliability and safety of capital construction projects (part 2 of article 48 of the Town-planning code) are mentioned.
Implementation of preparation of the project documentation is not required in case of construction, reconstruction, capital repairs of objects of individual housing construction (separate apartment houses with the number of floors no more than three, one family intended for accommodation). The builder has on own initiative the right to provide preparation of the project documentation in relation to objects of individual housing construction (part 3 of article 48 of the Town-planning code).
11. The construction license represents the document confirming compliance of the project documentation to requirements of the development plan for a land plot and granting to the builder the right to perform construction, reconstruction of the capital construction projects, and also their capital repairs, except as specified, provided by the Town-planning code (part 1 of article 51 of the Town-planning code).
The bodies authorized on issue of the construction license are determined in parts 4 - the 6th article 51 of the Town-planning code.
Effective period of the construction license upon transition of the right to the parcel of land and capital construction projects remains (part 21 of article 51 of the Town-planning code).
12. Issue of the construction license is not required, including in cases:
1) garage constructions on the parcel of land provided to physical person for the purposes which are not connected with implementation of business activity, or construction on the parcel of land provided for conducting gardening, small-scale farming and construction;
2) constructions on the parcel of land of structures and constructions of auxiliary use;
3) changes of capital construction projects and (or) their parts if such changes do not affect constructive and other characteristics of their reliability and safety and do not exceed extreme parameters of the permitted construction, the reconstruction established by town-planning regulations;
4) other cases if according to the Town-planning code, the legislation of subjects of the Russian Federation on town-planning activities receipt of the construction license is not required (part 17 of article 51 of the Town-planning code).
13. According to Item 1 of article 25.3 of the Law the bases for state registration of the property right to the created or created real estate unit if for construction, reconstruction of such real estate unit in accordance with the legislation of the Russian Federation does not need the construction license, and also for state registration of the property right of the citizen to the object of individual housing construction created or created on the parcel of land intended for individual housing construction, or created or created on the parcel of land located in border of the settlement and intended for maintaining personal subsidiary farm (on the home parcel of land), are:
the documents confirming the fact of creation of such real estate unit and containing its description;
the title document on the parcel of land on which such real estate unit is located.
Submission of the title document on the specified parcel of land is not required if the applicant's right to this parcel of land is earlier registered in the procedure established by the Law.
14. According to Item 2 of article 25.3 of the Law the annex to the documents represented according to Item 1 of article 25.3 of the Law is the cadastral plan of the parcel of land on which the respective created or created real estate unit is located.
Submission of the cadastral plan of the parcel of land is not required if:
the right to the specified parcel of land is earlier registered in the procedure established by the Law;
the specified parcel of land is intended for maintaining small-scale farming and construction or gardening and if the conclusion of board of the corresponding gardening or country non-commercial consolidation, confirmatory is provided that the created or created real estate unit is located within borders of the specified parcel of land;
the construction corresponding to reconstruction of the created or created real estate unit does not require in accordance with the legislation of the Russian Federation issue of the construction license or the specified parcel of land is intended for maintaining personal subsidiary farm and if the conclusion of local government body of the respective settlement or city district, confirmatory is provided that the created or created real estate unit is located within borders of the specified parcel of land.
15. According to Item 3 of article 25.3 of the Law the document confirming the fact of creation of the real estate unit on the parcel of land intended for maintaining small-scale farming and construction or gardening or the fact of creation of garage or other real estate unit (if for construction, reconstruction of such real estate unit is not required in accordance with the legislation of the Russian Federation issue of the construction license) and containing the description of such real estate unit, is the declaration on such real estate unit.
The form of the declaration on the real estate unit is approved by the order of the Ministry of Economic Development and Trade of the Russian Federation of August 15, 2006 N 232 "About approval of form of the declaration on the real estate unit" * (8).
Submission of the plan of the real estate unit specified in Item 3 of article 25.3 of the Law certified by the relevant organization (body) for accounting of real estate units is not required.
16. The documents confirming the fact of creation of object of individual housing construction on the parcel of land intended for individual housing construction, or the fact of creation of object of individual housing construction on the parcel of land located within the settlement and intended for maintaining personal subsidiary farm (on the home parcel of land), and, technical data sheet of such object of individual housing construction and permission of local government body to input of such object of individual housing construction in operation are containing the description of such object of individual housing construction or if such object of individual housing construction is object of construction in progress, the construction license. Till January 1, 2010 technical data sheet of object of individual housing construction is the single document confirming the fact of creation of such object of individual housing construction on the specified parcel of land and containing its description (item 4 of article 25.3 of the Law).
17. Reclamation at the applicant of additional documents for state registration of the property right of the citizen to the real estate unit specified in Item 1 of article 25.3 of the Law is not allowed (Item 5 of article 25.3 of the Law).
18. The real estate object can be created by several persons. In this case the created real estate unit arrives in common ownership if the law does not provide formation of joint property.
According to Item 1 of article 18 of the Law the documents establishing availability, origin, the termination, transition, restriction (encumbrance) of the rights to real estate and represented on state registration of the rights shall conform to the requirements established by the legislation of the Russian Federation and reflect information necessary for state registration of the rights to real estate in the Unified State Register of Rights on real estate and transactions with it (further - EGRP). In this connection when conducting legal examination of the documents submitted on state registration of the rights, the state registrar is recommended to check availability in the construction license, permission to commissioning, and also in other documents necessary for state registration of the rights, the information about all participants of common property for the created or created real estate object.
If shares of participants of equity property cannot be determined based on the law and are not established by the agreement of all her participants, shares are considered equal (Item 1 of article 245 of the Code).
By the agreement of all participants of equity property the procedure for determination and change of their shares depending on contribution of each of them to education and increment of common property (Item 2 of article 245 of the Code) can be established.
19. During creation of the divisible real estate unit by several persons between them according to Item 1 of article 252 of the Code the agreement on the Section of the created real estate unit with emergence of the property right of each person to part (rooms) of the created real estate unit can be reached. In this case the basis for state registration of the property right to part of the created real estate unit in addition to the documents specified regarding 1 article 55 of the Town-planning code, Items 3, 4 articles 25 of the Law, Items 1, of 3, 4 articles 25.3 of the Law will be also the agreement on the Section of the created real estate unit.
20. If on the parcel of land which is in equity property the real estate unit created or created by one of participants of equity property when conducting legal examination of documents is located to the state registrar it is recommended to check, according to Item 1 of Article 247 and Item 1 of article 263 of the Code, lack of objections of other participants of equity property against emergence of the property right at the participant of equity property who directly performed construction, and the consent of other participants of equity property to use thus of the parcel of land.
21. Reconstruction - change of parameters of capital construction projects, their parts (height, the number of floors (daleeetazhnost), the areas, indicators of production capacity, amount) and qualities of engineering facilities (part 14 of article 1 of the Town-planning code).
22. Reconstruction of the real estate unit which is in common property is possible only with the consent of all owners of capital construction project (the subitem 6 of part 7 of article 51 of the Town-planning code).
23. The participant of equity property who performed at own expense with observance of established procedure of use of common property inseparable improvements of this property has the right to the corresponding increase in the share in the right to common property (Item 3 of article 245 of the Code).
If as a result of the carried-out reconstruction the sizes of shares of participants of equity property when implementing state registration of the right to the reconstructed real estate unit which is in equity property change it is recommended to request the agreement of participants of equity property on redistribution of the sizes of shares or the relevant decision of court.
24. If as a result of reconstruction of the real estate unit external borders of the real estate unit, purpose of object, amount of the performed installation and construction works (readiness percent) for objects of construction in progress do not change, changes are made to the Section EGRP opened on the respective real estate unit according to Item 67 of Rules of maintaining EGRP.
25. In other cases of reconstruction of the real estate unit for state registration of the rights to the reconstructed real estate unit it is recommended to open the new Section EGRP, at the same time the Section EGRP connected with earlier existing real estate unit, it is closed according to Item 36 of Rules of maintaining EGRP.
In the column "Previous Cadastral (Conditional) Number" of the new Section EGRP opened on the reconstructed real estate unit data on cadastral (conditional) number of earlier existing real estate unit according to Item 26 of Rules of maintaining EGRP are entered.
In the column "Subsequent Cadastral (Conditional) Number" of the Section EGRP on earlier existing real estate unit data on cadastral (conditional) number of the reconstructed real estate unit according to Item 27 of Rules of maintaining EGRP are entered.
26. According to Item 44 of Rules of maintaining EGRP urgent records of special parts of subsection III of the Section EGRP on earlier existing object are transferred to special parts of subsection III of the Section EGRP opened on the reconstructed real estate unit. In sheets of special parts of subsection III of the Section EGRP opened on the reconstructed real estate unit filling of these sheets is dated. In the column "Number of Registration" number of state registration of restriction (encumbrance) of the right to earlier existing object is specified, and date of its state registration is brought in the column "Special Marks of the Registrar" after the words "Registration date". In the column in which the real estate unit or content of restriction (encumbrance) of the right is described data on earlier existing real estate unit according to Items 28 - 35 of Rules of maintaining EGRP, and also its cadastral (conditional) number are specified.
Considering provisions of part 2 of Article 115 of the Code of penal procedure of the Russian Federation * (9) (further - the Code of Criminal Procedure), Item 2 of article 51 of the Federal Law of July 21, 1997 N 119-FZ "About enforcement proceeding" * (10) (further - the Law "About Enforcement Proceeding") according to which in case of property attachment the owner of property is forbidden to dispose of it, in case of availability in the subsection III-5 of the Section EGRP opened on the reconstructed real estate unit, records about the registered arrest it is not recommended to perform state registration of the right to the reconstructed real estate unit.
27. When implementing state registration of the rights in case of commissioning of object of construction in progress, the right to which was registered in EGRP, the Section EGRP connected with object of the construction in progress put into operation earlier, it is closed according to Item 36 of Rules of maintaining EGRP. On the real estate unit put into operation the new Section EGRP opens.
In the column "Previous Cadastral (Conditional) Number" of the new Section EGRP opened on the real estate unit put into operation data on cadastral (conditional) number of object of construction in progress according to Item 26 of Rules of maintaining EGRP are entered.
In the column "Subsequent Cadastral (Conditional) Number" of the Section EGRP on object of construction in progress data on cadastral (conditional) number of the real estate unit put into operation according to Item 27 of Rules of maintaining EGRP are entered.
28. According to Item 44 of Rules of maintaining EGRP urgent records of special parts of subsection III of the Section EGRP on object of construction in progress are transferred to special parts of subsection III of the Section EGRP opened on the real estate unit put into operation. In sheets of special parts of subsection III of the Section EGRP opened on the real estate unit put into operation filling of these sheets is dated. In the column "Number of Registration" number of state registration of restriction (encumbrance) of the right to object of construction in progress is specified, and date of its state registration is brought in the column "Special Marks of the Registrar" after the words "Registration date". In the column in which the real estate unit or content of restriction (encumbrance) of the right is described data on earlier existing real estate unit according to Items 28 - 35 of Rules of maintaining EGRP, and also its cadastral (conditional) number are specified.
Considering provisions of part 2 of article 115 Code of Criminal Procedure, Item 2 of article 51 of the Law "About Enforcement Proceeding" according to which in case of property attachment the owner of property is forbidden to dispose of it, in case of availability in the subsection III-5 of the Section EGRP opened on object of construction in progress, record about the registered arrest it is not recommended to perform state registration of the right to the real estate unit put into operation.
29. In case of scope change of the performed installation and construction works (readiness percent) for objects of construction in progress changes according to Item 67 of Rules of maintaining EGRP are made to the section EGRP on object of construction in progress.
______________________________
* (1) Russian Federation Code. 1994. No. 32. Art. 3301; 1996. No. 5. Art. 410; 2001. No. 49. Art. 4552.
* (2) Russian Federation Code. 2005. No. 1 (h 1). Art. 16.
* (3) Russian Federation Code. 1997. No. 30. Art. 3594; 2001. No. 11. Art. 997; No. 16. Art. 1533; 2002. No. 15. Art. 1377; 2003. No. 24. Art. 2244; 2004. No. 30. Art. 3081; No. 27. Art. 2711; No. 35. Art. 3607; No. 45. Art. 4377; 2005. No. 1 (h 1). Art. 15; St. 22; St. 40; St. 43; No. 50. Art. 5244; 2006. No. 1. Art. 17; No. 17 (h 1). Art. 1782; No. 23. Art. 2380; No. 27. Art. 2881; No. 30. Art. 3287; No. 50. Art. 5279; No. 52 (h 1). Art. 5498.
* (4) Russian Federation Code. 1998. No. 8. Art. 963; 1999. No. 52. Art. 6416; 2002. No. 41. Art. 3983; 2003. No. 37. Art. 3584; 2004. No. 47. Art. 4652; 2006. No. 48. Art. 5038.
* (5) Russian Federation Code. 2001. No. 16. Art. 1602.
* (6) Russian Federation Code. 2005. No. 1 (h 1). Art. 40; 2006. No. 30. Art. 3287; No. 43. Art. 4412.
* (7) Russian Federation Code. 2005. No. 48. Art. 5047.
* (8) No. 8181 Is registered by the Ministry of Justice of the Russian Federation on August 30, 2006. Russian newspaper. 2006. 31 Aug.
* (9) Russian Federation Code. 2001. No. 52 (h 1). Art. 4921.
* (10) Russian Federation Code. 1997. No. 30. Art. 3591; 2002. No. 52 (h 1). Art. 5132; 2003. No. 2. Art. 160; No. 50. Art. 4847; No. 52 (h 1). Art. 5038; 2004. No. 10. Art. 837; No. 27. Art. 2711; No.
35. Art. 3607; 2005. No. 42. Art. 4213; 2006. No. 1. Art. 8; No. 45. Art. 4627.
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