What is a whole property complex. Property Complex
The main part of civil legal relations is of a property nature, having one or another property as an object of turnover. The property itself is a set of things belonging to the subject of civil law, property rights and obligations.
At the same time, the division of things into movable and immovable has a very important legal significance (Article 130 of the Civil Code of the Russian Federation). A special kind of real estate are complexes of interconnected immovable and movable things used for general purpose as a whole. Property Complex is not a random set of individual types of property, but a certain set of property located in the system, which is used for a general (single) purpose.
In view of the fact that property complexes are intended to be used for a general purpose, they can be classified as complex things. Such things form a single whole (Article 134 of the Civil Code of the Russian Federation).
Although the property complex in this case determines a more capacious phenomenon than a complex thing (the latter consists of real, cash things, and the property complex is formed not only by things, but also by other property), in this case general consequences when making transactions with property complexes, as well as transactions with complex things, where the effect of a transaction with such a thing extends to all its components. That is, we can conclude that the enterprise is a special kind of complex thing.
AT civil circulation There are two types of property complexes: enterprise and condominium. Let's consider them in more detail.
Company. The definition of an enterprise as an object of civil circulation is given in the Civil Code of the Russian Federation:
“An enterprise as an object of rights is recognized as a property complex used for the implementation entrepreneurial activity.
The enterprise as a whole as a property complex is recognized as real estate ”(Article 132 of the Civil Code of the Russian Federation).
An enterprise as an object of property rights, as an object of civil circulation, is not just an abstract set of “things” or a combination of them. An enterprise is, first of all, a property complex, which includes, along with real estate (primarily land plots and their parts, buildings, structures) and movables (equipment, inventory, raw materials, finished products), obligations of claim and use, debts (obligations) , as well as some exclusive rights - to designations that individualize the enterprise, its products, works and services (company name, trademarks, service marks), other exclusive rights . For example, in states with an established legal order and traditions, enterprises often include the so-called "clientella", the right to renew the rental of real estate, chances, etc., that is, stable economic ties with consumers of their products or services, which can often be of decisive importance in a competitive market economy.
In some cases, the clientele is separated from the chances, i.e. the company's ability to have customers in the future. Chances are defined as the prospects of the enterprise estimated in monetary terms.
In the economy, the concepts are often used - "a place in the market", "struggle for a place in the market", which, first of all, constitutes established relationships, regular customers, for which there is sometimes an uncompromising struggle (and a constant one). Named intangible elements can be combined general concept good will.
Only the property complex that is used for entrepreneurial activities is recognized as an enterprise.
This complex, in principle, includes the entire set of property intended for the activities of the enterprise.
Entrepreneurial is an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.
One should also agree with the opinion of V. N. Tabashnikov that “a property complex used without the purpose of making a profit does not form an enterprise. So, for example, a medical complex used by a polyclinic ( government agency) to provide medical care citizens within the framework of compulsory health insurance cannot be recognized as an enterprise. The same medical center used by a commercial organization for profit is already a business.”
It should also be noted that the term "enterprise" itself is quite often used to refer not only to the objects of law (that is, to the property complex), but also to some types of legal entities, which are subjects of civil law circulation.Thus, the Civil Code recognizes state, municipal, as well as state-owned enterprises as one of the types of legal entities.(Articles 113-115 of the Civil Code of the Russian Federation). At the same time, the same term is used to refer to a certain type of object of law. It is in this sense that we are talking about an enterprise in Article 132 of the Civil Code of the Russian Federation.
The enterprise is, in essence, a kind of production unit, endowed with civil legal capacity and operating in the market. This happens primarily because our state is not always able to use the well-known organizational and legal forms of legal entities (for example, the form joint-stock companies) to organize the management of publicly owned property. It was as a result of this that a rather artificial legal structure of the enterprise as a subject of law appeared.
In view of the fact that any rights, including those included in the list just mentioned, can belong only to those whom the legislator considers as a subject, it is quite obvious that, first of all, they mean enterprises recognized as legal entities, that is, state and municipal, as well as state-owned unitary enterprises.
Moreover, this education is an enterprise that is not included organically and fully in economic system, in its civil circulation. Of course, the Civil Code of the Russian Federation provides for the adoption of the Federal Law “On State and Municipal Unitary Enterprises”, which will contain norms regulating the activities of enterprises as legal entities, including those related to the allocation of property to these entities, with an increase in management efficiency, responsibility, etc.
It should also be noted that the state has now taken the path of reducing the number of state unitary enterprises.
For example, in the Republic of Tatarstan at the beginning of 2001 there were about a thousand state unitary enterprises. But, in the next few years, according to the plans of the Republican Ministry for Land and Property Relations, there should be no more than twenty of them.
The enterprise itself is, in its essence, an object of rights to property complexes fixed on the balance sheet of the respective legal entities, but at the same time they continue to be objects of the property rights of their founders. Consequently, an enterprise, as a directly property complex (and as an object of turnover), under no circumstances can become the subject of property rights, that is, the owner of itself. From this we can conclude that the opinion about the possibility of ownership of "work collectives", "ownership rights of workers" and "their collective ownership" of any part of the property of the enterprise is without any basis. All this property remains the property of the founder .
All other "enterprises", that is, enterprises that constitute the object of the rights of other owners, can also be a complex of various types of property. In this case, together with a set of things, only those rights and obligations that belonged to the owner of the enterprise, and only those that are among the alienated, can be transferred to the acquirer. For example, when selling an enterprise, the licenses that previously belonged to the seller do not pass to the new owner.
Within the framework of civil law regulation, it is very important to clearly and uniformly follow the interpretations of the concept of an enterprise as a special subject of law and an object of law. The confusion of these concepts can be very sad.
The arbitration court considered the case on the claim of a limited liability company (LLC) against a joint-stock company (JSC) on the application of the consequences of the invalidity of a void transaction. A contract for the sale and purchase of an enterprise - a shopping complex was concluded between LLC and JSC. According to the plaintiff - the seller under the sale and purchase agreement - the said transaction is void due to the fact that the conclusion of the agreement on the sale of all the property of the LLC without simultaneously making a decision on the liquidation of the LLC violated the provisionsitem 1 of article 48 Civil Code of the Russian Federation, establishing as a mandatory feature of a legal entity the presence of separate property that ensures its statutory activities. The court, refusing to satisfy the claims, rightly noted that the presence of property by the LLC on the basis of ownership is not a sign of a legal entity, and the property of a legal entity is not limited to real objects, but includes cash located on the accounts of a legal entity. Thus, the specified claim could appear only as a result of a misunderstanding of how the subject of law (legal entity) and the enterprise (property complex) are connected.
The interpretation of the enterprise as an object of rights also prevails in foreign civil and commercial law. In a number of countries on the continental legal system when defining an enterprise, the concept of a "special legal community" is used, which consists of the entire property of the enterprise (Italy), or of most of it (Belgium, France). In Belgium and France, this community does not include real estate and company liabilities, which have a special legal regime. In Germany, an enterprise recognizes the totality of property, including real estate, debts and claims. In the United States Uniform Commercial Code (Section 6)
regulates in a special way the "complex sale" procedure, in which the enterprise includes its assets in the form of equipment, materials, goods, other tangible and intangible movable property.
At the same time, in some countries the enterprise is recognized as a subject of civil and commercial law. For example, in Liechtenstein, some countries of Latin America, an individual has the right to create a limited liability company, which can independently act as a subject of law in property circulation.
The subject of transactions can only be objects of rights, i.e. those material and spiritual benefits, about which the subjects enter into legal relations. An enterprise can be the subject of civil law transactions, acting only as an object of civil rights. It is in this sense, in my opinion, that the term “enterprise” should be used in the future in relation to Russian law.
An enterprise as a property complex is a complex thing. This classification of an enterprise as a complex thing assumes that the operation of the transaction, the subject of which is the enterprise, extends to all its constituent parts. This rule of law is dispositive, and therefore the agreement of the parties may provide otherwise: the exclusion of certain things that are usually part of a “complex thing” .
In other words, in the circulation of things, in particular property complexes, the object of law can be not only the enterprise as a whole, but also its part. At the same time, the essential condition of the transaction being made is the list of property included in this part. Also, under the concept of "enterprise" as a property complex, even such a part as, for example, a separate workshop falls. But not just as a real estate object, but with its equipment, personnel, sources of raw materials, components, etc. That is, in fact, being part of an existing enterprise (or, in other words, a part on the go).
Currently, transactions involving enterprises are made not only within the framework of privatization relations or in connection with the bankruptcy of debtors - owners of enterprises. Enterprises as property complexes can be the subject of many transactions (unilateral acts and agreements). Enterprises are sold, bought, leased, mortgaged, inherited. The procedure for concluding and executing these transactions, as well as their consequences, should be known to the participants in these relations, if only because mistakes made in the course of such transactions, due to the high cost of objects, can cause significant property losses for the parties.
It should be noted that the possibility of participation of an enterprise as an object of civil circulation today is more of a potential than a real one. This is due to the lack of practice among entrepreneurs of transactions with enterprises, and the complexity of the procedure for making transactions, in particular, at the stages of assessing an enterprise, processing a transaction and registering rights in transactions with an enterprise.
For example, in Moscow for the first year of the existence of justice bodies for state registration rights to real estate and transactions with it, there was only one transaction for the sale of the enterprise. Although during the same period the number of transactions with disparate industrial facilities was incomparably large.
That is, for the buyer today, interest is simply the real estate itself, and not its other assets and liabilities. In this case, the new owners prefer to break up the enterprise into parts (shops, warehouses, garages, etc.) and buy the same enterprise with these "lifeless" parts as just real estate.
This suggests that at present, in the current economic situation, sold enterprises are very rarely of interest as property complexes. Unfortunately.
Condominium. It is another type of property complexes.Condominium (new Latin condominium, from Latin con (cum) - together, at the same time and dominium - possession, power) in the understanding of civil law -common property. This is an “Association of owners in a single complex of real estate in the housing sector (homeowners), within the boundaries of which each of them, on the right of private, state, municipal or other form of ownership, owns residential (apartments, rooms) and (or) non-residential premises in residential buildings , including attached ones, as well as other real estate directly associated with a residential building, which is the common property of the homeowners and follows the fate of the homeowner's right to residential and (or) non-residential premises.
The concept of condominium in the civil law sense should not be confused with the conceptin public law, where condominium means co-ownership, i.e. joint exercise of supreme power over the same territory by two or more states.
It follows from the provisions of the Federal Law that a single complex of real estate is recognized as a condominium, including a land plot within the established boundaries and a residential building located in it, other real estate objects in which separate parts intended for residential and other purposes (premises) are located in a private or public property of a specific circle of owners, and the remaining parts (property) - in their common shared ownership .
The basis for the creation of condominiums may be: privatization of the housing stock in apartment buildings, reorganization of housing construction and housing cooperatives, creation of a condominium in a residential building under construction by their future homeowners, associations of homeowners in residential areas of low-rise buildings (land with permitted use for individual development). In these cases, private owners of individual apartments must jointly operate the property that has come into their common ownership: elevators, attics, basements, utility rooms, stairwells and stairs, roofs of houses, electrical, water, plumbing, engineering and other property. And, what is very important, the adjacent territory is a land plot (or parts thereof). All this property should not just be in the common property of the homeowners, but should be properly maintained, serviced and repaired at the right time.
A condominium, like an enterprise, being an object of civil circulation, cannot be considered in isolation from its owners - subjects of law. That is, it does not exist as a property complex in itself, but, first of all, is associated with its owners, specific entities that have real rights to it. In other words, the condominium does not belong to itself, but to those owners on whose initiative it was created.
The owners of a condominium may be, depending on the form of its management, in accordance with the federal law“On homeowners associations” dated June 15, 1996, No. 72-FZ (hereinafter the Law on Homeowners' associations):
– the homeowners themselves;
– customer service;
– homeowners association;
The management of a condominium by homeowners is directly limited by the law and is allowed only in cases expressly provided for in Article 21 of the HOA Law - when the condominium includes no more than four premises belonging to two, three or four different homeowners.
Customer service. In this case, the homeowners transfer the functions of managing the condominium to the authorized state or local government agency of the customer for housing and communal services.
Association of homeowners. Is a non-profit organizationuniting owners of housing in a condominium to jointly ensure the operation of a real estate complex. This occurs in cases where the homeowners themselves, for whatever reason, are unwilling or unable to deal with the management of the condominium.
In view of the fact that when managing a condominium by the customer service, the functions of an economic entity are transferred to state or municipal bodies, and management directly by homeowners is only a special case with a small number of participants, the subject of consideration of relations in the formation of condominiums in this work will be mainly focused on homeowners associations. .
It should be noted that until recently the concept of a homeowners association was identified with the concept of a condominium. In particular, the current legislation of Russia in the early nineties provided for the concept of housing stock in collective ownership: a fund that is in common joint or common shared ownership of various subjects of private, state, municipal property, property of public associations.
This classification of the housing stock did not comply with the new civil legislation.
The resulting confusion of these concepts in the definitions was corrected by the Decree of the President Russian Federation dated December 23, 1993 N 2275, which approved the Temporary Regulations on the condominium. It gave the concept of "condominium" as an association of owners in a single complex of real estate in the housing sector.
At the same time, the Provision separately fixed the concept of “partnership” of homeowners, i.e. owners of premises. Thus, the concepts of "partnership" and "condominium" were distinguished.
And yet, the Decree could not for a long time replace the legislative norm, designed to give an unambiguous interpretation of the term "condominium". The contradiction between the Law on Associations and the Law on the Fundamentals in terms of the definition of a homeowners' association was resolved with the adoption of the Federal Law "On Homeowners' Associations" of April 21, 1997, which amended and supplemented the Law on Fundamentals.
The departure from the interpretation of a condominium as a partnership has led to the fact that a condominium is now considered a single complex of real estate, in which individual premises are in private, state, municipal or other form of ownership.
A homeowners association is a special type of non-profit organization. The identification of a condominium with consumer cooperatives should also be attributed to the category of delusions, which, of course, is completely unfounded. However, homeowners' associations can also arise on the basis of housing and housing cooperatives in which at least one participant has paid his share in full.
As already mentioned in the introduction to this work, the creation of homeowners' associations was the result of mass privatization of the housing stock in the Russian Federation. That is, the transfer of housing facilities from state and municipal ownership to the ownership of citizens and legal entities. At the same time, due to the voluntariness of housing privatization, the part of the apartments where the owners did not want to privatize them, the former ones, including public owners, have been preserved.
The partnership is organized by at least two homeowners, which can be not only citizens, but also other owners of residential premises - legal entities and public legal entities. In addition, by decision of these public legal entities, their unitary enterprises or institutions may also become members of the partnership.
The most typical example of a condominium today is an apartment building in which the apartments are owned by different owners.
Sukhanov E. A. // Textbook of Civil Law, Volume I "Beck", M., 1998 S. 306
Kulagin M.I. State-monopoly capitalism and legal entity // Selected Works: Collection. M., 1997. P.32 Tikhomirov M. Yu. // Civil law. Dictionary reference. M. 1996. S. 250
Isakov V. B. // Commentary on the Law “On the Fundamentals of Federal Housing Policy”, M. 1999. From 50
Isakov V. B. // Commentary on the Law “On the Fundamentals of Federal Housing Policy”, M. 1999. From 50
Property Complex
"... a property complex is a set of objects of movable and immovable property that form a single whole and involve their use for a common technological and (or) production purpose;..."
Source:
Order of Russian Railways dated November 7, 2008 N 150 "On the procedure for disposing of real estate of Russian Railways" (together with the "Regulations on the procedure for disposing of real estate of Russian Railways")
"... A property complex (IC) is a set of real estate objects and internal and external production equipment used in the technological process, located within a certain land plot. Upon completion of the technical inventory and description of the property complex, a Technical Passport of the property complex is drawn up. In addition, at the request of the copyright holder or a person authorized by him, technical inventory organizations issue Extracts from the technical passport of the property complex ... "
Source:
Order of the Gosstroy of the Russian Federation of December 29, 2000 N 308 "On approval of the procedure for compiling a set of documents for the technical inventory of property complexes that make up the gas supply system of the Russian Federation, as well as other real estate objects owned by OAO Gazprom and its subsidiaries"
Official terminology. Akademik.ru. 2012 .
See what the "Property Complex" is in other dictionaries:
Includes all types of property of the insurance company, including the insurance portfolio of the debtor of the insurance company. For the purposes of this article, the insurance portfolio of an insurance company includes insurance contracts, the validity period of which is not ... Official terminology
State registration of rights to an enterprise as a property complex and transactions with it- state registration of rights to land plots and real estate objects that are part of the enterprise as a property complex, and transactions with them are carried out in the institution of justice for registration of rights at the location of the data ... ... encyclopedic Dictionary- directory of the head of the enterprise
Land and property complex- a set of real estate objects united by one common territory. See also: Real estate Financial Dictionary Finam ... Financial vocabulary
COMPANY- a property complex used for entrepreneurial activities (clause 1, article 132 of the Civil Code of the Russian Federation). In the mentioned article, the concept of P. is used in the sense of an object of rights, and it should be distinguished from a unitary enterprise as a commercial one ... ... Law Encyclopedia
MUTUAL INVESTMENT FUND- a property complex without creating a legal entity, the trust management of whose property is carried out by the management company in order to increase the property of the corresponding P.i.f. As investors P. and. f. physical and ... ... Encyclopedic Dictionary of Economics and Law
Toll collection point (station)- a property complex, including buildings, structures, sites, special equipment and designed to control entry and / or exit from a toll road (road facility), collect tolls or issue an entry ticket ... ... Construction dictionary
mutual investment fund- a property complex without creating a legal entity, the trust management of whose property is carried out by the management company in order to increase the property of the corresponding P.i.f. Individuals and ... ... can act as its investors. Big Law Dictionary
UNIT TRUST- a property complex without forming a legal entity, the property of which is managed by a management company in order to increase the fund's property. Property of P.f. is formed at the expense of the contributions of investors concluding with the manager ... ... Foreign economic explanatory dictionary
Hotel- a property complex (building, part of a building, equipment and other property) intended for the provision of services. The rules approved by the Decree of the Government of the Russian Federation of 04.25.97 N 490, clause 2 ... Dictionary of legal concepts
economic object- a property complex used for the implementation economic activity and including buildings, structures, structures, equipment, inventory and other property. (Art. 1 of the Law of the Republic of Belarus On Waste) ... Law of Belarus: Concepts, terms, definitions
Books
- The household complex of the princes Abamelek-Lazarev in the second half of the 19th - early 20th centuries. , A. S. Gruzinov. A. S. Gruzinov's monograph is devoted to the history of noble entrepreneurship in the period of industrial modernization of the Russian economy. The object of the study is a property complex… Buy for 920 UAH (Ukraine only)
- An enterprise as a property complex (object of law) under the law of Russia and Germany, Andrey Vladimirovich Gribanov. 600 pages. The book is the first comprehensive study of the concept of an enterprise of an object of legal relations (an object of rights ...
A special kind of real estate are complexes of interconnected immovable and movable things used for general purpose as a whole. These include businesses and condominiums.
The term "enterprise" is used in our legislation to refer to certain types of legal entities - subjects of civil law. However, in normal property circulation enterprises are objects, not subjects of law (for more details, see paragraph 1 § 5, chapter 8 of this volume of the textbook).
As an object of civil circulation, an enterprise is not a single thing and not a simple set of things, but a whole property complex, which includes, along with real estate (land plots, buildings, structures) and movables (equipment, inventory, raw materials, finished products), liability rights requirements and use and debts (obliged property), as well as some exclusive rights (for a trade name, trademark, etc.) (Article 132 of the Civil Code).
In developed legal orders, enterprises also include "clientella"(goodwill), i.e. stable economic relations with consumers of products or services, which are very important in a competitive market economy. That's why operating enterprise (enterprise "on the go","business") is usually worth more than the simple cumulative "book" value of its cash
Civil legal relationship
Chapter 11 § 2 (4)
property or net assets. The presence of "clientella" is a very important feature of the enterprise as a property complex.
Of course, the subject of the relevant rights and obligations is a legal entity (or other owner), and not property. Therefore, the law means under the enterprise as an object, first of all, the property of unitary enterprises. However, both a part of an enterprise (for example, the property of a workshop) and a production unit that does not have civil personality(for example, a small shop, cafe, hotel, studio or other "enterprise" of the service sector). In cases of sale, lease, pledge or other transactions with such property complexes, their owner (which, in particular, can be both a commercial organization and an individual entrepreneur), in accordance with the terms of the contract, transfers to the acquirer or other counterparty not only immovable and movable things, but and related to them their rights, obligations and even "clientella" (cf. paragraph 2 of article 132 and articles 559, 656 of the Civil Code).
As a property complex, an enterprise does not necessarily include real estate objects (land plots, buildings, structures). It is real estate not by its nature, but by virtue of a special provision of the law. The peculiarity of its legal regime lies not only in the need for state registration of transactions with this property, but also in the fact that it is a property complex, consisting of both things and rights, obligations and other intangible objects, the total value of which determines the value of this object of property turnover, and predetermines the expediency of making transactions with it precisely as with a property complex, and not as with a simple set of things and other objects.
Another type of property complexes is condominium(from lat. con - common, joint and dominium - property, i.e. common property).
A condominium is a complex of real estate, including a land plot and a residential building located on it, in which individual residential premises are privately (or also publicly) owned by specific owners,
and the remaining parts - in their common shared ownership (Art. 289 and 290 of the Civil Code, part 8 of Art. 1 of the Law on the Fundamentals of Federal Housing Policy) 1 .
This situation usually develops during the privatization of housing in multi-apartment buildings, when private owners of individual apartments must jointly operate the landings and stairs in their common property, elevators, roofs and basements, electrical, plumbing and other equipment serving the residential building as a whole, as well as adjoining territory (land). A feature of the legal regime of a condominium is the impossibility for the owner of a dwelling to alienate his share in the common property of the condominium separately from the ownership of the dwelling (clause 2, article 290 of the Civil Code, clause 3, article 8 of the Law on Associations of Homeowners), as well as , and vice versa. Thus, the ownership of an apartment (other housing) is inextricably linked with a share in the ownership of the condominium property (common property of the house).
Condominiums have become a way to solve the question of ownership common parts and equipment of multi-apartment residential buildings, during the privatization of which individual apartments and even living rooms began to be considered by law as independent objects of law property. By itself, this solution cannot be considered the most successful, because such apartments and rooms are not intended for independent operation, being intimately connected with each other and with other parts of the house. Ignoring this connection led to the need to establish a special legal regime for the common parts and equipment of residential buildings (declared to be the object of common shared ownership of all owners of premises) and the creation of special legal entities for their operation - homeowners associations.
At the same time, the house itself (the building as a whole) ceased to be a single piece of real estate. Moreover, the common parts of the house, in fact, ceased to be independent things, since they are deprived of their transferability without connection with the living quarters they serve. At the same time, in practice, the owners-tenants do not experience serious
1 See also: Part 5 of Art. 1 and Art. 5 of the Federal Law of June 15, 1996 No. 72-FZ “On Homeowners Associations” // SZ RF. 1996. No. 25. Art. 2963; 2002. No. 1 (part I). Art. 2; No. 12. Art. 1093.
Civil legal relationship
Objects of civil legal relations
Chapter 11 § 2 (4)
interest in maintaining in good condition common areas (stairs and landings, elevators, etc.), concentrating all efforts on the operation of only "one's own cell" (apartment or room) 1 .
More effective, as the experience of some developed legal orders shows, would be the recognition of an apartment building legally indivisible thing and thus - the object of shared ownership of the tenants. In this case, the latter receive for use (or on a limited property right) the apartments that fall to their shares and in the same share bear all the necessary expenses for maintaining the house in proper condition 2 . Then the situation is simplified and the need to create both condominiums and homeowners associations is eliminated, and tenants receive a direct interest in the proper maintenance of the entire house, and not just “their” apartment. Unfortunately, domestic legislation has taken a different path in this matter, giving rise to rather complex legal and practical issues 3 .
Sometimes the idea is also put forward of recognizing a land plot and a building (buildings, structures, etc.) as a “single object” (property complex) in order to ensure
1 Meanwhile, if any of them, for any reason, does not have a share
in the ownership of the common property of the house (for example, the entrance and stairs), then
simply will not be able to properly use the living quarters belonging to him.
The very possibility of such a paradoxical situation testifies to the shortcomings
condominium structures. For non-residential (for example, office) premises, where
requirement for the obligatory creation of a condominium and a commodity operating it
there are no owners in the law, such situations in a number of cases, to
Unfortunately, they have become a reality. All this testifies in favor of recognition as an object
real estate of the house (building) as a whole, and not the individual residential and
(or) non-residential premises.
2 In Austrian law, this approach is called “housing property”. See for example: Koziol L., Weher R. Grundriss des burgerlichen Rechts. bd. I. Allgemeiner Teil, Sachenrecht, Familienrecht. 11. Aufl. Vienna, 2000. S. 264-268.
3 This path, associated with the recognition of individual ownership of a part
residential building (floor, apartment, room) and common property - into "common parts of a single building", also known in European countries as "storey property" (Venedikov P. New real right. Second ed. Sofia, 1999. S. 116-117"; Dabovich-Anastasovska J. Floor Collection in honor of Asen Grupcha. CKonje, 2001). Its main drawback is precisely the establishment of a different legal regime for closely related accessories and the main thing, in which a single property object of a legal nature ceases to exist. (Schreiber K. Sachenrecht. 3. Aufl. Stuttgart, 2000. S. 82-83).
the unity of their legal destiny. This approach is based on an erroneous understanding of the classical principle of “superficies solo cedit” (everything on a land plot belongs to the owner of this plot), which in Roman law ensured the unity of the owner’s rights to various objects although they are closely related to each other as the main thing (land) and its belonging (house) (for this division of things, see below). In addition, its recognition would unreasonably prevent the construction and use of buildings located on foreign land (granted on a limited property right, rented, etc.) 1 .
However, there is a need to recognize as a special property technological property complexes(gas pipelines with compressor stations and similar equipment, oil and other raw materials processing plants, etc.). This complex differs from the enterprise in that it includes only things, but not rights and obligations. At the same time, the things that make it up are heterogeneous (real estate - a land plot, buildings, structures; movables - equipment, etc.), but are combined single business purpose which makes it expedient to use it as a single object of property turnover 2 .
As property complexes, the law also considers mutual funds(mutual investment funds), which are in trust management of joint-stock companies (management companies) specially created for this purpose 3 . These funds represent
1 Read more about the controversial approach of Russian legislation to
For a solution to this issue, see: Kozyr O.M., Makovskaya A.A."One destiny" of the land
plot and other real estate objects located on it (reality
and prospects) // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2003. No. 2. S. 96-100 and eat. It should be noted that the rejection of the principle of "superficies solo cedit" also took place in a number of Eastern European, in particular, the Balkan countries, which at one time adopted the socialist path of development (although they did not completely abandon private ownership of land). With the abandonment of this path, the principle of "legal unity of real estate" was legally restored (see, for example: Havela N. Novoto hrvatsko svarno right // Collection in honor of Asen Grupcha. CKonje, 2001, p. 32).
2 The concept of development of civil legislation on real estate.
S. 8, 29-30.
3 Part 2 Art. 1 and para. 1 p. 1 art. 10 of the Federal Law of November 29, 2001 No. 156-FZ "On Investment Funds" (SZ RF. 2001. No. 49. Art. 4562). It must be emphasized that all legal constructions related to mutual funds are completely borrowed by our legislator from American law, which explains all the features of their legal regime.
Civil legal relationship
Objects of civil legal relations
Chapter 11 § 2 (5)
is a property (mainly in the form of cash), which is in common ownership of the persons who have established trust management of it and received securities from the management company - investment shares. The owners of such securities have the right to require the management company to "repay shares" (i.e., terminate the agreement and the corresponding payments) either at any time ("open" PIF), or within the period established by the agreement ("interval" PIF), or only after the expiration of the contract ("closed" mutual fund). Only in closed mutual funds owners of "shares" can contribute not only cash, but also other property, due to which only these mutual funds can be considered property complexes in the strict sense of the word. In addition, unlike ordinary co-owners, the owners of "shares" are not entitled to demand the division of mutual funds, the separation of their share from them or the primary acquisition of "shares" of other participants.
Thus, a mutual investment fund as a property complex is distinguished by the fact that its co-owners - the share owners of this property - necessarily transfer it to trust management of a special commercial organization receiving special securities in return. As a single complex, this property appears only in the form object of the trust management agreement, concluded by its co-owners with the management company.
See: Italian Civil Code of 1942 with subsequent amendments and additions // Giordio di Nova. Codice civile e leggi collegate. Ed / Zanichelli S.p.A. Bologna, 1994/1995; Gazzeta ufficile, 5 agoto 1985, No. 183.
See: Gavrilenko V.G., Yadevich N.I. Objects of civil rights. M., 2006. S. 8 - 9; Kolbasin D.A. Civil law of the Republic of Belarus. Minsk, 2004. S. 114 - 115.
See: Kozyr O.M. Real Estate in the New Civil Code of Russia // Civil Code of Russia. Problems. Theory. Practice / Resp. ed. A.L. Makovsky. Moscow, 1998. S. 271 - 297.
In paragraph 3 of Art. 7 of the Law of the RSFSR "On Property in the RSFSR" the concept of "real estate" was only mentioned in relation to the institution of acquisitive prescription. His wording was not very clear. Part 1 of paragraph 4 of Article 2 of the Law contained a list of objects of ownership, among which were named enterprises, property complexes, buildings, structures, land plots. Law of the RSFSR "On Property in the RSFSR" dated December 24, 1990 N 443-1 (as amended on June 24, 1992) // Bulletin of the Congress of People's Deputies and the Supreme Soviet of the RSFSR (hereinafter - Bulletin of the SND and the RSFSR Supreme Council). 1990. N 30. Art. 1244 (1992. N 34. St. 1966).
The fundamentals of civil legislation of the USSR and the republics, adopted by the Supreme Soviet of the USSR on May 31, 1991, already contained norms dividing property into immovable and movable. Article 4 of the Fundamentals reproduced the quite classical division of property into movable and immovable. At the same time, they did not provide for any specifics in the legal regime of real estate // Vedomosti SND i VR SSR. 1991. N 26. Art. 733.
See: information letter of the Supreme Arbitration Court dated 01.06.2000 N 53 "On State Registration of Lease Agreements for Non-Residential Premises" // Bulletin of the Supreme Arbitration Court. - 2001. - No. 1. S. 12.
See: Dorozhinskaya E.A. Legal regulation of real estate transactions / Dissert. for the competition Candidate degree in law Sciences. Moscow, 2000, p. 43; Falileev P.A. Legal problems of the mortgage of sea vessels // Pledge and mortgage in Russian and foreign law (materials of the international scientific conference). - M., 2003. S. 27.
See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 1, 1999 N 8224/98 // Sarbash S.V. Arbitration practice in civil cases: A concise index on the text of the Civil Code. M.: Statut, 2000. S. 143.
Decree of the Federal Antimonopoly Service of the North-Western District of November 20, 2001 N A44-1242 / 01-C14-K. The approach defined in this resolution gave grounds for the judgment to be formulated in the literature that "asphalt pavement is not a thing at all, but rather a property of a land plot." See: Shcherbakov N. Property or thing? // Ezh-Lawyer. 2005. N 17. S. 2.
Decree of the Federal Antimonopoly Service of the North-Western District of March 23, 2003 N A56-20324 / 02; Decree of the FAS of the Moscow District of October 23, 2003 N KG-A40 / 7958-03; Decree of the Federal Antimonopoly Service of the West Siberian District of July 5, 2004 N F04 / 3668-819 / A46-2004.
V.A. drew attention to this circumstance. Belov. See: Belov V.A. Is it always necessary to register a real estate transaction? // Legislation. 1999. N 7. S. 24 - 25.
Academician A.V. Venediktov understood the legal regime of property as special rules on the procedure for the formation and use of property. See: Venediktov A.V. State socialist property. M., 2004. S. 381.
Note that the concept of a land plot, given in Art. 6 of the Land Code of the Russian Federation of October 25, 2001 N 136-FZ, narrower: part of the earth's surface (including the soil layer), the boundaries of which are described and certified in the prescribed manner (although the legislator stipulates that he is considering a land plot in this case as an object of land relations).
For example, in pre-revolutionary Russian legislation monetary capital in some cases was equated to real estate ((Law of April 16, 1817 // Complete Collection Laws, Law N 26791, Ch. II, § 17). Cit. by: Kasso L.A. Decree. op. C. 3.).
Suffice it to point to two cases in which seemingly simple questions were resolved: in one case, is a stationary industrial refrigerator an object of real estate (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 12, 1999 N 2061/99 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2000. No. 1); in another case, what is the status of door blocks installed in a residential building - the status of independent objects of ownership or the status of a piece of real estate (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 26, 1999 N 3655/99 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2000. N 1). In both cases, different judicial instances resolved these incidents in different ways.
See: Sukhanov E.A. Ownership and other real rights. Ways to protect them (Comments to the new Civil Code of the Russian Federation). M.: Center for business information of the weekly "Economics and Life", 1996. S. 45; Kozyr O.M. Real estate in the new Civil Code of Russia. S. 276; Krotov M.V. Issues of State Registration of Rights to Sea Vessels // Legal Practice: Information Bulletin of the Law Center of the Special Law Faculty of St. Petersburg State University. 1999. No. 4 (19). S. 103; Senchishev V.I. State registration of rights to real estate and transactions with it // Journal of Russian law. 1999. N 12. S. 118; Kuzmina I.D. Transactions with buildings and structures // Actual problems of legal science and practice: Sat. scientific works. Kemerovo, 1999, p. 152.
See: Haskelberg B.L., Rovny V.V. Individual and generic in civil law. Irkutsk, 2005, pp. 40 - 41; Boltanova E.S. The concept and legal regime of real estate // Yearbook of Russian law. 1999. M.: Norma, 2000. S. 264; Boltanova E.S. Real estate transactions: Purchase and sale, donation, inheritance, taxation. M., 2007. S. 57; Stepanov S.A. Real estate in civil law. M., 2006. S. 29.
Sukhanov E.A. Ownership and other real rights. P. 45. The same position is held by O.M. Kozyr, who believes that real estate is such property, "on which the right of ownership and other rights can be established. And for the emergence of such rights, appropriate state registration is required." See: Kozyr O.M. Real estate in the new Civil Code of Russia. M., 1998. S. 276.
Braginsky M.I., Vitryansky V.V., Zvekov V.P. et al. Commentary on Part One of the Civil Code of the Russian Federation for Entrepreneurs. M., 1996 (author of the commentary - E.A. Sukhanov).
Boltanova E.S. Concept and legal regime real estate. M., 2007. S. 264; Boltanova E.S. Real estate transactions. M., 2005. S. 57.
More G.F. Shershenevich reproached the legislator for "not maintaining strict terminology and using the word property instead of a thing, and instead of property he speaks of property or an estate." See: Shershenevich G.F. Textbook of Russian civil law. M., 2002. S. 95.
Smyshlyaev D.V. Features of the legal status of the object of construction in progress // Actual problems of civil law / Ed. S.S. Alekseev. M.: Statute, 2000. S. 77.
Article-by-article comment / Under the general. ed. P.V. Krasheninnikov. P. 51 (the author of the commentary is M.I. Braginsky). – M., 2006. P.171.
Krotov M.V. Issues of State Registration of Rights to Sea Vessels // Legal Practice: Information Bulletin of the Law Center of the Special Law Faculty of St. Petersburg State University. 2006. No. 4 (19). P. 104. O.M. Kozyr also writes that "it would be wrong to say that the consequences of recognizing, for example, courts as real estate automatically lead to the application of the corresponding regime to them in full." See: Kozyr O.M. The concept of real estate in civil law. Real estate transactions // Law. 1999. N 4. S. 22.
Volkov G.A., Golichenkov A.K., Kozyr O.M. Commentary on the Land Code of the Russian Federation / Ed. A.K. Golichenkov. Moscow: BEK, 2005. P. 21 (commentary by A.K. Golichenkov).
Economy and finance of real estate / Ed. Yu.V. Pashkus. M., 2004. P. 9 (the author of the chapter is Yu.V. Pashkus).
Zavyalov A.A. Some issues of registration of rights to real estate objects // Legal regulation of the real estate market. 2005. No. 4 (5). pp. 56 - 57.
Thus, the author points out that "cases when an enterprise as a property complex is the object of state registration are quite rare, especially for enterprises that are part of a single gas supply system, the property composition of which is quite stable ... Industrial and technological complexes as real estate can represent is a complex thing or a single object, the technological elements of which individually can be movable things, but, forming a certain aggregate, movable and immovable elements form a real estate object ... The specific composition of the production and technological complex is determined by the project documentation ... The basis for such a legal position is the recognition as title documents of duly approved acts of commissioning of a gas industry facility, according to which a set of buildings (structures) and equipment installed in them are put into operation, allowing the operation of named object according to its purpose" (Zavialov A.A. Decree. op. S. 57).
Resolution of the Federal Arbitration Court of the North-Western District of March 3, 2003 N A26-2277 / 02-02-04 / 88.
See, for example: Civil Code of the Russian Federation. Part one. Scientific and practical commentary. M., 1996. S. 229.
Lebedev K. Concept, composition and legal regime of accounts payable // Economy and law. 2007. N 11. P.31
Failure to include all elements of the property complex in the subject matter of a particular civil law transaction inevitably leads to its legal "destruction", the loss of one (even minor) link of the property complex changes the subject of the contract and, therefore, leads to the stratification of a single agreement into a number of transactions combined into one document and, in extreme cases, to the invalidity of the contract.
It seems that limiting the scope of the concept of the property complex exclusively by enterprises is a certain shortcoming of the legislator, "V.A. Lapach believes (V.A. Lapach. System of objects of civil rights: Theory and judicial practice. M., 2004. P. 365).
The foregoing can be illustrated by the example of bearing plants. In the USSR, the number of bearing factories numbered in the hundreds. Moreover, such enterprises were distinguished by a clear specialization - they produced bearings of a certain type. Assembly plants were equipped with bearings from dozens of suppliers, sometimes located in extremely remote geographical "points" of the country. After the rejection of the planned economy and the collapse of the USSR, most of these enterprises were forced to partially or completely re-profil. See, for example: State Property Management: Textbook / Ed. Dr. Econ. Sciences V.I. Koshkina, Ph.D. economy Sciences V.M. Shupyro. M.: INFRA-M, 2007. S. 60.
Dozortsev V.A. Principal features of property rights in the Civil Code // Legal World. 1997. N 9. S. 33.
If large property blocks - housing, houses and palaces of culture, medical and children's institutions (polyclinics, preschool institutions, country health camps, etc.) - ultimately, in most cases, they received legal independence or were transferred (alas, not always ) into municipal ownership, then some other separate property that is on the balance sheet of enterprises - subjects of law (but not related to the main production activity), followed in its composition to another owner, for example, the property of the so-called "Lenin" rooms, visual and propaganda items and means of their manufacture, etc.
Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 30, 2002 N 6245/01 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2002. No. 5.
The alienation of a production site that has ceased its activities and does not have personnel cannot be attributed to the alienation of a part of the enterprise. A transaction with such a division will be limited to the transfer of rights only to specific property - movable and immovable things.
Romanov O.E. Theoretical and practical aspects of the composition of the enterprise as a property complex // Actual problems of civil law. M., 2003. Issue. 6. S. 205.
See: Fleishits E.A. Commercial and industrial enterprise in Western European and RSFSR law. M., 2004. S. 19.
See: Tabashnikov V.N. Enterprise as an object of civil rights // Legislation. 1998. N 9. P.85
Gribanov A. Enterprise: problems of doctrine and legislation // Economy and law. 2000. N 5. S. 41.
Romanov O.E. Theoretical and practical aspects of the composition of the enterprise as a property complex // Actual problems of civil law. M., 2003. Issue. 6. S. 214.
See: On the tax on property of enterprises: Law of the Russian Federation of December 13, 1991 N 2030-1. Art. 5 // Gazette of the Congress of People's Deputies of the RSFSR. 1992. N 12. Art. 599.
See: Romanov O.E. Theoretical and practical aspects of the composition of the enterprise as a property complex // Actual problems of civil law. M., 2003. Issue. 6. S. 230.
See: Eliseev I.V. Enterprise sale agreement // Civil law: Textbook. Part II / Ed. A.P. Sergeeva, Yu.K. Tolstoy. S. 103.
Stepanov S.A. Stepanov S.A. Property complexes in Russian civil law. M., 2002. S. 25.
See: Sukhanov E.A. Contract of trust management of property // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2000. N 1. S. 81.
L.I. Korchevskaya, when considering the issue of dividing the peasant (farm) economy during inheritance, indicates that it belongs to the enterprise. However, in the sense in which the term "enterprise" is used, a generalizing category is meant to define business entities, as well as legal entities of various organizational and legal forms (see Korchevskaya L.I. Objects of hereditary succession in the context of economic transformations: Abstract of the thesis. ... candidate of legal sciences, Moscow, 2007, p. 22).
According to Art. 257 of the Civil Code of the Russian Federation and Art. 6 of the Federal Law of June 11, 2003 N 74-FZ "On Peasant (Farm) Economy" (SZ RF. 2003. N 24. Art. 2249), the property of a farm may include a land plot, plantations, economic and other buildings, reclamation and other structures, productive and working livestock, poultry, agricultural and other machinery and equipment, vehicles, inventory and other property necessary for the implementation of the activities of the farm.
In accordance with Art. 259 of the Civil Code of the Russian Federation, members of a peasant (farm) economy can create an economic partnership or a production cooperative on the basis of the property of the economy.
See: Ustyukova V.V. Formation legal status peasant (farm) economy // Reforming agricultural enterprises: Legal problems. Moscow: Institute of State and Law of the Russian Academy of Sciences, 2006, pp. 78 - 79; Korchevskaya L.I. Inheritance in a peasant (farm) economy // Jurisprudence. 2003. N 1. S. 41.
See: Sukhanov E.A. Simple partnership // Commentary on the second part of the Civil Code of the Russian Federation. M.: Fund "Legal Culture"; Gardarika, 1996, p. 334.
See, for example: Civil Law: Textbook. In 2 vols. T. 1 / Resp. ed. E.A. Sukhanov. 2nd ed., revised. and additional M.: BEK, 2007. S. 309.
Civil Code of the Russian Federation. Part 1. Scientific and practical commentary / Ed. ed. THOSE. Abova, A.Yu. Kabalkin, V.P. Mozolin. M.: BEK, 2006. S. 230.
Kireev V.V. Application of the norms of contract law when making transactions with enterprises // Problems of application of the norms of law: Protection of private, public interests / Ed. IN AND. Popov. Chelyabinsk, 2003, p. 60.
October 22, 2013 - 4:06am | administrator
On October 1, 2013, the so-called third block of amendments to the Civil Code of the Russian Federation came into force, namely the Federal Law of July 2, 2013 No. 142-FZ “On Amendments to Subsection 3 of Section I of Part One of the Civil Code of the Russian Federation”. Now a new object of real rights will appear in civil circulation - a single immovable complex. The problem is that Rosreestr quite often refused to register property rights to such non-standard, but quite common objects, as linear ones. Such objects do not belong to traditional buildings, structures and structures, and for the most part they include not only real estate, but also movable property (for example, heating systems, sewerage, power lines, communications, etc.). Judicial practice on this issue was also not uniform - arbitration courts qualified such objects in different ways and did not always classify them as real estate. The appearance of a new article in the Civil Code of the Russian Federation is intended to solve this problem.
A single immovable complex includes both immovable and movable things
In the Civil Code of the Russian Federation, a separate article is devoted to a single immovable object. 133.1. So, a single immovable complex is an immovable thing that participates in circulation as a single object.
QUOTE:“An immovable thing participating in turnover as a single object may be a single immovable complex - a set of buildings, structures and other things united by a single purpose, inextricably linked physically or technologically, including linear objects (railways, power lines, pipelines and others) , or located on the same land plot, if in a single state register rights to real estate, the right of ownership to the totality of these objects as a whole is registered as one immovable thing ”(Article 133.1 of the Civil Code of the Russian Federation).
The unified immovable complex is a new legal construction, which includes, in addition to the actual immovable things, also movable things (other things). Meanwhile, the law does not directly indicate which movable things can be part of a single immovable complex. The rules on indivisible things apply to unified immovable complexes.
It is logical to assume that, for example, production complexes may include production equipment, boilers, cables, pipelines, that is, things that are movable in themselves, but in this case having a physical connection with real estate and jointly intended for production activities. At the same time, the possibility of including in the composition of a single real estate complex, for example, inventory or other things that, although used in production activities, are not physically connected to the general system and can be withdrawn at any time without prejudice to it, raises doubts.
The concept of a single property complex, unlike an enterprise, does not include exclusive rights, debts and rights of claim. main reason in that such rights are associated with the subject - the owner of the rights to the enterprise, and not with the immovable complex as an object of civil legal relations.
In general, there are several conditions for recognizing the totality of things as a single immovable complex.
First, all objects must have a single purpose, for example, be intended for production activities. In other words, this is not a random set of individual types of property, but a certain set of property located in the system.
Secondly, all objects must either be located on the same land plot, or be inextricably linked physically or technologically. In this case, they can be located on several land plots.
Thirdly, the right of ownership to the totality of these things as one immovable thing must be registered in the unified state register of rights to real estate and transactions with it (hereinafter - USRR).
Thus, in order to recognize the totality of things as a single immovable complex, both their actual and legal association is necessary.
The actual association involves such an interconnection of several movable and immovable things that allows them to be used to achieve a specific goal, which is impossible if they are used separately.
At the same time, it is also necessary to formal association, that is, registration of ownership of them as a single object.
A land plot is not an obligatory element of a single real estate complex
On the need to single out a single complex object that unites movable
and immovable things, it has been said for a long time. In particular, the Concept for the Development of the Civil Legislation of the Russian Federation provided for the need to include in the Civil Code of the Russian Federation a technological property complex as a new object of civil rights, which was also supposed to replace the enterprise as a property complex. In the Concept, the technological property complex was assumed to be a complex or composite thing (clause 3.7.3 section 4). The following were named as necessary features of such an object: 1) the union of various objects of movable and immovable property with a single economic purpose; 2) the presence in its composition of a land plot (rights to a land plot), on which real estate objects (objects) included in the property complex are located.
Initially, draft law No. 47538 6 “On Amendments to Parts One, Two, Three and Four of the Civil Code of the Russian Federation, as well as to Certain Legislative Acts of the Russian Federation” (hereinafter referred to as the draft law) provided for the introduction into civil circulation of an object named as a single property complex. Also, initially it was not supposed to devote a separate article to it, but to place the provisions on a single property complex in paragraph 2 of Art. 130 of the Civil Code of the Russian Federation. However, despite the fact that the definition of this concept contained in Art. 133.1 of the Civil Code of the Russian Federation, almost verbatim repeats the definition given in the bill, there are several differences between them.
In the text of the bill, a single property complex was understood as a set of buildings, structures and other similar objects united by a single purpose. In the final version, similar objects were replaced with other things. The last wording seems to be more successful, since it is not clear what the bill meant by objects similar to buildings and structures, in particular, whether movable things can be attributed to them.
In addition, the draft law did not directly require the state registration of ownership of a single property complex as one immovable thing.
At the same time, it was supposed to reflect in the USRR such a combination of several things into one immovable thing, which actually meant the same thing.
It should also be noted that, despite the introduction of the concept of a single real estate complex, the enterprise as a property complex (Article 132 of the Civil Code of the Russian Federation) has also been preserved as an object of civil rights.
QUOTE:“An enterprise as an object of rights is recognized as a property complex used for entrepreneurial activities. The enterprise as a whole as a property complex is recognized as real estate ”(clause 1 of article 132 of the Civil Code of the Russian Federation).
Thus, there was no replacement of one object by another, as it was supposed to be done according to the Concept. At the same time, there is an obvious similarity between these structures and in this moment it is not clear how these properties will be related.
The inconsistency of the legislator is also traced in the question of the role of the land plot in the formation of a single complex. Thus, the Concept called a land plot as an obligatory element of such an object. However, from Art. 133.1 of the Civil Code of the Russian Federation does not directly follow that a land plot is always an obligatory element of a single immovable complex.
Consequently, we can observe a departure from the gradual introduction into the legislation of the principle of a single thing, according to which the land plot is the basic element, and everything that is located on it is its accessories or improvements.
The design of a single real estate complex will simplify the turnover of complex objects
Changes in the Civil Code of the Russian Federation regarding the introduction of a single real estate complex into civil circulation are aimed at solving several problems.
First, the problem of the mode of so-called linear objects (railways, power lines, pipelines) has been solved. Previously, their classification as immovable things caused certain difficulties, since they include many things, both immovable and movable, for example, transmission lines, equipment, various systems. The situation was further complicated by the fact that the legislation did not establish a clear list of linear facilities. Only a few industry acts contain an indication of certain types of linear objects, and also establish some criteria for their determination. In particular, according to the Federal Law of December 21, 2004 No. 172-FZ “On the transfer of land or land plots from one category to another”, they mean roads, power lines, communication lines, oil, gas and other pipelines, railway lines and other similar structures (clause 6, part 1, article 7).
Federal Law No. 126-FZ of July 7, 2003 “On Communications” classifies line-cable communication facilities as real estate (clause 1, article 8). The term "linear cable structures" is defined in the law as a set of heterogeneous immovable things that technologically form a single whole. At the same time, they must be connected by physical circuits (cables) that simultaneously have the following features:
Availability of functional and technological interconnectedness;
Their purpose is to be used for a general purpose for placing a communication cable;
Existence of length (length).
The Town Planning Code of the Russian Federation understands such objects as power lines (including linear cable structures), communication lines, pipelines, roads, railway lines, etc. (Article 1, Clause 11).
Federal Law No. 122-FZ of July 21, 1997 “On State Registration of Rights to Real Estate and Transactions with It” (hereinafter - Law No. 122-FZ) establishes the only criterion for determining a linear object - a complex or indivisible thing (clause 1 of Art. 9).
In practice, when applying to the authorized body for registration of ownership of a newly erected linear facility, applicants often received a refusal and were forced to apply to the arbitration court with an application to recognize such a refusal as illegal.
PRACTICE. The company applied to Rosreestr with an application for state registration of ownership of the antenna structures of the PKU sites. Rosreestr refused state registration of ownership of these structures, citing the fact that the submitted cadastral passport does not allow defining the antenna structures of the PKU sites indicated in it as a single set of immovable things that technologically form a single whole, connected by physical circuits (cables). The company challenged Rosreestr's refusal in court. The Arbitration Court satisfied the applicant's claim, stating that the disputed structure and all its components are involved in a single technological process, functionally and technologically interconnected. In addition, the court held that the use constituent parts buildings separately while maintaining the overall function performed is impossible (decree of the Federal Antimonopoly Service of the Moscow District of December 25, 2012 in case No. A40-6408/11-145-72).
In another case, the arbitration court found it illegal to refuse state registration of rights to a cable line. The court concluded that this structure is a complex thing, firmly connected to the ground, which makes it impossible to move it without disproportionate damage to its purpose (decision of the Fifth Arbitration Court of Appeal dated 04.06.2012 in case No. A51-13589/2011).
Secondly, the changes under consideration will unequivocally simplify the turnover of energy facilities, utilities, transport, communications and other infrastructure facilities. Currently, the rights to such objects are formalized through state registration of rights to individual real estate objects that are part of them. This approach is largely supported by the courts.
Thirdly, the possibility of recognizing several movable and immovable things as a single complex thing has great importance when acquiring land rights
in accordance with Art. 36 of the Land Code of the Russian Federation, for example, when justifying the size of the provided land plot. Previously, the owners of such objects had to prove in court that the totality of heterogeneous elements, including movable ones, united by a common functional purpose, is a single complex, the operation of which requires the entire land plot, and not just its part occupied by real estate.
PRACTICE. The company applied to the arbitration court with an application to recognize as illegal the inaction on the part of the Federal Property Management Agency. The fact is that the management did not accept the established Art. 36 of the Land Code of the Russian Federation, the term is the decision to provide the company with a land plot occupied by real estate objects owned by the company. The Federal Property Management Agency believed that the company did not submit documents substantiating the need to provide real estate for operation with total area 44,473 sq. m of land with an area of 107,932 sq. The court sided with the applicant and satisfied the demands of society, arguing that, in addition to buildings and structures, power lines, communication lines, pipelines, roads, driveways, platforms and sidewalks were located on the specified land plot, the territory of the plant was fenced along the perimeter. The court came to the conclusion that the named property is a single property complex necessary for the operation of the plant (decree of the Federal Antimonopoly Service of the North-Western District of August 27, 2012 in case No. A52 -3960/2011).
In another case, the company was denied ownership of a land plot under the complex of buildings and structures of the market (administrative and shopping center, containers, cafes, stalls for trade, a toilet, a market fence and an asphalt parking lot). The Federal Property Management Agency referred to the company's lack of a unified certificate of state registration of ownership of the said property as a single property complex. The court declared such a refusal illegal (decree of the Federal Antimonopoly Service of the West Siberian District of August 24, 2006 in case No. A70-1028 / 9-2005).
In one of the cases, the Presidium of the Supreme Arbitration Court of the Russian Federation also indicated that a structure can be a single object, consisting of heterogeneous elements (real estate and others), united by a common functional purpose. At the same time, registration of ownership of individual real estate objects does not affect its use as a single object and does not prevent the privatization of a land plot under the entire territory. In this case, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that such facilities include stadiums, which include specially equipped areas for various types sports and their supporting infrastructure, including real estate and other elements (decision dated 10/20/2010 in case No. A56-50083/2008).
Another advantage of legalizing the term "single immovable complex" is that when several movable and immovable things are combined into a single property complex, it becomes impossible to recognize the ownership of one of them by a third party.
PRACTICE. The company filed a claim to recognize the ownership of the buildings included in a single complex as independent real estate objects, citing the fact that it had built them on its own. The court refused to satisfy the stated requirements, including due to the fact that the buildings and structures erected by the plaintiff have
economic auxiliary character, intended for qualitative improvement functional characteristics the main object in terms of its improvement and efficiency of use. This indicates the inseparable nature of the operation of these objects as a single complex (solution Arbitration Court Republic of Karelia dated July 26, 2007 in case No. A26-1751/2007).
When analyzing the provisions of Art. 133.1 of the Civil Code of the Russian Federation, some questions also arise, the answers to which are not yet contained in the legislation. For example, it is not entirely clear which document will reflect all the material and technical characteristics of a single real estate complex. Can a technical passport be considered as such? Currently, the legislation provides for the preparation of technical passports for line-cable communication facilities. These documents reflect information about the location of the linear cable structure, its general characteristics (length or area, number of unattended regeneration and amplification points, number of cable crossings through water barriers, length of cable ducts in kilometers, number of cable viewing devices (telephone wells)). These requirements are contained in the Decree of the Government of the Russian Federation of February 11, 2005 No. 68 “On the features of state registration of ownership and other real rights to linear cable communication facilities”, as well as in the order of the Ministry of Information and Communications of Russia of August 2, 2005 No. 90 “On approval of the Instructions for filling out technical passport of a linear-cable communication facility”.
It is also not entirely clear what will be the mechanism for recognizing a group of things as a single immovable complex. In order to simplify the turnover, the legal regime of a single real estate complex should be extremely flexible and allow its owner both to establish and change it on his own initiative. In other words, the owner of the property can not only combine the objects into a single immovable complex, but also subsequently terminate its regime, divide it into components and register the ownership of the individual elements that make up its composition.
So far, there is no clarity on how the unified immovable complex will be named in the certificate of registration of the right. Perhaps such a certificate will contain a list of the objects that make up the complex, in the same way as a certificate of ownership of a room contains a list of the rooms that make up this room on the back.
In any case, the success of the innovations under consideration depends primarily on how quickly and efficiently changes will be made to the current legislation related to the emergence of such a new object of rights as a single immovable complex.
JUDICIAL PRACTICE RECOGNIZES THE COMPLEX ONE IF THE THINGS ARE USED FOR THE SINGLE PURPOSE
The previously effective legislation did not know the property complex as an object of civil rights, and therefore there were certain difficulties in recognizing the totality of things as a single complex thing. At the same time, the presence in the legislation of such an object of property rights as an enterprise, a situation
didn't make it easier. As practice shows, this design is not actually used. In addition, in the definition of the concept of "enterprise", the emphasis is placed not so much on the property component, but on the production one, where the circle of customers and the obligations of the owner of the enterprise associated with its activities are of primary importance.
However, despite this, the jurisprudence proceeded from the fact that, under certain circumstances, several interconnected things can form a single property complex. In judicial acts, there are also attempts to determine the conditions for recognizing the totality of things as a single property complex. These conditions included:
The presence of a single economic purpose (decree of the Federal Antimonopoly Service of the Volga-Vyatka District of 06/08/2012 in case No. A43-5163 / 2011);
The presence of things of a single functional purpose, which allows them to form an infrastructure intended for production (decree of the Federal Antimonopoly Service of the West Siberian District of 03/02/2012 in case No. A46-3472 / 2011);
Connection by a single technological process (decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of 03/01/2011 in case No. A51 1888/2007);
The ability to provide a single technological process (determination of the Supreme Arbitration Court of the Russian Federation of 08/02/2012 in case No. A51-4475 / 2011);
Participation in a single indivisible production process (determination of the Supreme Arbitration Court of the Russian Federation dated February 21, 2013 in case No. A40-17239 / 12-121-174).
In some cases, the courts also indicated that the property complex must have one technical passport, one inventory and cadastral number, one date of construction and commissioning of the facility (decision of the Second Arbitration Court of Appeal dated February 20, 2006 in case No. A82-18908 / 05-1 07-12).
Also in judicial practice there is an opinion about the need for state registration of a property complex as a single, indivisible object of real estate (decree of the Federal Antimonopoly Service of the East Siberian District of August 10, 2010 in case No. AZZ-544/2010).
As you can see, it is the single purpose of things, the possibility of using them to achieve a common goal, that is put at the forefront.