On the Issue of Improving Land Legislation

          Introduction.

In the science of land law, the question of what exactly is meant by land legal relations remains debatable to this day. A detailed analysis of this problem is given in the collective monograph under the general editorship of A.P. Anisimov 1 ^[1].The authors note that land legal relations differ from other legal relations in their subject composition and method of legal regulation.

  In their opinion, the subject of most land legal relations is a public authority, bound in its activities by imperative norms. At the same time, land legal relations arise primarily from administrative acts of authorities, and not from transactions. And the final feature of land legal relations, according to the authors, is the "certain specificity" of measures to protect subjective rights.We believe that it is hardly advisable to distinguish the emergence from administrative acts and the predominance of the imperative method of legal regulation into different features, since in essence they duplicate each other and follow from the subject composition, i.e. the presence of a public entity in them.

As for the "certain specifics" of measures to protect subjective rights, this statement is true for any branches of law.However, land legal relations may also arise from transactions.

A striking example of the emergence of land legal relations from transactions can be the relations of neighbors in relation to the use of neighboring land plots. One of the paragraphs of the fifth chapter of the monograph by I.A. Emelkina and Yu.D. Syubaeva is devoted to the issues of contract law in neighborhood relations ^[2].One of the shortcomings of the current land legislation is called non-unification.

Thus, N.G. Narysheva notes that in the current legislation it is not always possible to accurately divide public relations in which the objects are a land plot and land ^[3]. As an example, she points out articles 40 and 56 of the RF CC, the first of which establishes a list of the rights of the owner of the land plot, and the second lists the types of restrictions on land rights.N.G. Narysheva speaks about the need to unify the terminology of land legislation, but does not indicate which term from her point of view is preferable and why.

We believe that in relation to these terms, unification is impossible, since they relate as a general (land) with a private (land plot).The need to improve land legislation is also indicated by S.A. Bedrina ^[4].

The team of Primorsky authors (M. M. Surzhik, N.V. Mukhina, B.S. Valiev) focused their attention on the causes of offenses in the land sphere ^[5]. According to researchers, the main reason for the occurrence of land offenses among citizens is a lack of understanding of the materiality of land legal relations. We believe that this thesis is not indisputable. In particular, it is not clear what exactly the authors mean by the designated problem? Poor knowledge by citizens  The Russian Federation (as well as other subjects) of land legislation? Or the fundamental disregard of its provisions in the presence of a proper level of awareness of its content? Inability to apply the rules of law in specific legal relations, i.e. lack of practical skills in drafting legally significant documents? An unambiguous answer to these questions is hardly possible. The named team of authors classified the types of violations of land legislation into five main groups.

Somewhat earlier, a similar study of violations of land legislation was undertaken in the Novosibirsk region ^[6].Novosibirsk researchers were able to identify seven main groups of violations of land legislation, while leaving the list of violations open. Both copyright collectives attributed the following to the most typical violations: illegal removal of a fertile soil layer; failure to fulfill obligations for land reclamation; storage of MSW on agricultural lands; non-use of land for its intended purpose.

We believe that these compositions can be considered the most typical for the regions of the Far East and Siberia.A.P. Poghosyan cites interesting statistics in his research ^[7].

He notes that as of 2021, the share of agricultural land plots in state and municipal ownership is about 2/3, while occupying 1/5 of the entire land fund of the state, of which: 58% of the lands have no borders, 34% are ownerless, 20% are not on cadastral registration, 18% - are not used in accordance with the intended purpose, 5% are occupied arbitrarily. I believe that these data are relevant at the end of 2022, the change in percentages for such a short period of time is possible only within the statistical error.

A.P. Poghosyan's proposal on a continuous inventory of Russia's land resources through financing from the relevant budget is noteworthy. He believes that the state authorities should form a list of particularly valuable and productive agricultural plots, establishing special control, while legislating the rule of non-use of such lands for other purposes. However, this norm is already present in the legislation — sub-clause 6 of clause 1 of Article 1 of the RF CC. And this rule is, in our opinion, quite effective, since it is applied in a systemic relationship with other laws, allows you to effectively protect public interests. In our opinion, a number of rulings of the Constitutional Court of the Russian Federation, in particular No. 1402-O of 23.06.2016 ^[8], No. 1917-O of 28.09.2017 ^[9], No. 2372-O of 15.10.2020 ^[10], testify to the effectiveness of the application of sub-clause 6 of Clause 1 of Article 1 of the RF CC.In addition, the price of the question is not clear, namely, at least the approximate size of the corresponding expenditure obligations of budgets of all levels.

We believe that the proposal for a continuous inventory of land is unlikely to be implemented in the coming years.Another problem that needs to be solved at the legislative level is the need for clear regulation of the turnover of shares in the right of common ownership of land plots from agricultural land, which was reasonably pointed out by I.P. Kozhokar ^[11].

One of the most common violations of land legislation is the non-use of a land plot from agricultural land, the turnover of which is regulated by Federal Law No. 101-FZ of 24.07.2002 "On the turnover of agricultural land", for the intended purpose.

Thus, in the framework of case No. A04-8023/2019, the requirements for termination of the lease agreement and the return of part of the land plot were considered. Initially, the disputed land plot was received by the Federal State Unitary Enterprise "Amur", in respect of which a bankruptcy case was initiated in 2016. The debtor's bankruptcy trustee concluded a sublease agreement for a land plot, which was later invalidated (case no. A04-178/2019). The court also invalidated the decision of the debtor's creditors' committee on approving the procedure for the sale of his real estate and land lease rights (case no. A04-4307/2016). Since the Federal State Unitary Enterprise "Amur" did not comply with the requirements for the proper use of the land plot, the court terminated the lease of the land, terminating the contract. The decision of the court by higher instances was left unchanged.

In case no. A51-12531/2018, the plaintiff demanded to terminate the lease of the land plot, and return the land plot itself to the owner. The tenant, the head of the peasant (farmer) economy Karnatovsky A.G. (hereinafter - the head of the farm Karnatovsky A.G.), developed a quarry on an agricultural plot. The competent authorities sent an order to him to eliminate violations by recultivating the site, restoring the fertile soil layer, which he did not fulfill.  The head of the farm Karnatovsky A.G. was repeatedly brought to administrative responsibility. The damage caused to the environment was also recovered from him in court. The lessor was asked to terminate the lease agreement in connection with a significant violation, with which the head of the farm Karnatovsky A.G. did not agree. The court satisfied the claims in full. Higher courts have confirmed the legality of the decision.  

A fairly large number of complaints from both theorists and practitioners is caused by Federal Law No. 172-FZ of 21.12.2004 "On the Transfer of land or land plots from one category to another" (hereinafter - Federal Law No. 172-FZ). Experts note the undeniable conflict of interests of interested parties. The transfer of agricultural land from agricultural land to another category provides an opportunity to realize the interests of both private and public interests. At the same time, the specifics of a hard-to-renew natural resource, the social significance of agricultural land, global trends to reduce the area of such lands determine the public interest in their conservation [1 2].  Among the disadvantages 

According to Federal Law No. 172-FZ, researchers attribute excessive discretion, which the law enforcement officer is endowed with; the presence of gaps on private issues; shortcomings of legal technique.

Part 1 of Article 7 of Federal Law No. 172-FZ provides for exceptional cases when it is permissible to transfer agricultural land from agricultural land to another category. We believe that the indication of "exceptional cases" from the point of view of legal technology can be considered as a corruption factor.

For example, in the framework of case No. A73-11004/2015, the validity of the refusal by the Government of the Khabarovsk Territory to transfer agricultural land plots to industrial land was considered. The state authority considered that the documents submitted by the applicant did not comply with the requirements of land legislation (according to the submitted petition, the transfer of disputed plots is connected with the construction of a power line, and according to the information of the local government - for the purpose of operating a linear object). The claim was satisfied by the courts of all instances, since the reasons for the refusal were of a formal nature and could not be grounds for refusing to consider the company's petition on the merits.

This case, in our opinion, serves as a vivid illustration of the thesis about the unsatisfactory regulation of some land issues. Public authorities in their activities are focused primarily on compliance with formal requirements of legislation, which is primarily due to such a property of law as formal certainty, and secondly - the permissive type of legal regulation in relation to the specifics of public law. It is necessary for a public authority to consider a particular situation "fairly" (= "at its discretion") - the reaction of control and supervisory authorities will not take long, and this may be followed by bringing to various types of legal responsibility.

Another notable land dispute took place in the framework of case no. A41-84307/2020. IP Kondrashev Yu.E. asked the court to declare illegal the decision to refuse to change the purpose of land plots. The entrepreneur was the owner of two land plots of the category "agricultural land", permitted use "for agricultural production".

On 14.10.2013, the Federal Road Agency issued Order No. 1601-r (hereinafter referred to as Order No. 1601-r), according to which land plots are assigned to the roadside lane of a public highway. There is no information about the appeal of the said administrative act in case no. A41-84307/2020. The courts regarded Order No. 1601-r as an act adopted by the authorized body within the competence.

 The legal status of roadside lanes of highways is defined by Article 26 of Federal Law No. 257-FZ dated 08.11.2007 "On Highways and Road Activities in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation" (hereinafter — Federal Law No. 257-FZ).  Part 5 of Article 26 of Federal Law No. 257-FZ provides for the obligation of an authority of the appropriate level to send a copy of the decision to the relevant local government body. The current legislation does not contain obligations to send a copy of the decision to the owners of land plots on the territory of which roadside lanes of highways are installed. At the same time, by virtue of part 7 of Article 26 of Federal Law No. 257-FZ, the designation of the boundaries of roadside lanes of highways on the ground is carried out by the owners of highways at their expense. The law does not contain any exceptions in terms of agricultural land. With regard to the circumstances of case No. A41-84307/2020, this means that the owner of the highway should have indicated the boundaries of roadside lanes on the plots belonging to IP Kondrashev Yu.E. This scheme seems to be very controversial, since it is obvious that the owner of an agricultural land plot, if a properly designated roadside lane of a highway is installed on his site, is deprived of the right to use his property (part of the land plot) for its intended purpose. We believe that the best solution in such cases could be the establishment of a public easement, taking into account the approaches that are currently formed by the established law enforcement practice. A detailed analysis of disputes related to the establishment of easements is contained in chapter 5 of the monograph by E.V. Reznikov [1 3].  

Although, as follows from the materials of case No. A41-84307/2020, IP Kondrashev Yu.E. saw his interest just in changing the purpose of agricultural land plots belonging to him. Public hearings at which it was decided to exclude these sites from the agricultural production zone and include them in the transport infrastructure zone with the aim of subsequently placing roadside service facilities on them took place only in August 2019. The court took into account the results of the hearings, agreed with the plaintiff's demands, and satisfied the claim. The defendant's attempts to challenge the court's decision in higher instances were unsuccessful, including due to missing procedural deadlines.

Another case is not very simple from the substantive side - No. A51-20593/2017.At the time of consideration of the claim, the plaintiff had a license that allowed him to explore the subsoil and extract coal. In 2014, the authorized body transferred the plaintiff's land plot to the category of industrial and other special purpose land. The Prosecutor's office protested against the said order on the grounds that the requested purpose of the land plot contradicted the previously approved territorial planning documents. According to the prosecutor's office, the transfer of the land plot to industrial lands violated the legitimate interests of an indefinite circle of persons. The authorized body agreed with the protest of the prosecutor's office and canceled the order on the transfer of the land plot to industrial lands. 

At the request of LLC "Dalenergougol", the local self-government body made changes to the territorial planning documents, which allowed the interested person to re-apply for a change in the category of the land plot. However, the authorized body, referring to the absence of the conclusion of the state environmental expertise, refused to satisfy the application. The refusal was appealed in court. The Court of First instance considered that during the disputed period, the order of the Ministry of Natural Resources of the Russian Federation No. 525, Roskomzema No. 67 dated 12/22/1995 "On approval of the Basic Provisions on Land Reclamation, removal, conservation and rational use of the fertile soil layer" (hereinafter referred to as the Basic Provisions on Reclamation No. 525/67) was in effect, by virtue of which the plaintiff's project documentation could be agreed only after receiving a positive conclusion of the state environmental expertise. Since the plaintiff did not have the above conclusion, the court refused the claim.

In substantiation of his legal position, the defendant pointed out the impossibility of using the disputed land plot for purposes unrelated to farming due to its location at a distance of no more than thirty kilometers from the borders of rural settlements. But the court rejected this argument, pointing out the need for a systematic interpretation of the norms of land legislation.

The Court of Appeal concluded that, taking into account the validity of the law in time, the Main Provisions on Reclamation No. 525/67 contradict Federal Law No. 174-FZ of 11/23/1995 "On Environmental Expertise", the decision of the court of first instance was canceled, the claim was satisfied.

The Court of cassation reversed the decision of the appellate instance and sent the case for a new hearing to the appellate instance, indicating that the circumstances related to the formation, placement of rocks in the dump and subsequent burial on the disputed land of industrial waste generated as a result of the plaintiff's activities related to the extraction of coal in an open manner at the stage of appeal review of the case have been investigated they weren't. However, these circumstances are essential for the correct resolution of the issue of the need to obtain a state environmental assessment of the land reclamation project.

When re-examining the case on appeal, the court indicated that the letter of the Ministry of Natural Resources of the Russian Federation dated 19.05.2014 No. 05-12-44/10285 (hereinafter referred to as letter No. 05-12-44/10285) is an act of an informational and explanatory nature, which is why the court is not bound by it when considering the dispute. The court of cassation instance did not agree with this statement of the issue, having repeatedly annulled the judicial act of the appellate instance. The cassation instance justified the need to apply Letter No. 05-12-44/10285 in disputed legal relations by paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 50 dated 12/25/2018 "On the practice of consideration by courts of cases on challenging Regulatory Legal Acts and acts containing Clarifications of legislation and having regulatory properties". According to the results of the repeated cassation review, the court upheld the decision of the court of first instance, with which the Supreme Court of the Russian Federation agreed ^[14].

It follows from the materials of case No. A51-20593/2017 that land disputes in courts can be considered for years, and the final result depends on whether or not the court decides to apply information and explanatory letters from executive authorities. A detailed analysis of disputes related to land reclamation was carried out by K. Matveeva ^[15].

From the above practical examples, it can be seen that in the current state, land legislation is very confusing and generates various interpretations on the part of economic entities, state authorities and local self-government bodies, as well as courts. In this regard, the importance of the guiding explanations of the higher courts is increasing. However, the Supreme Court of the Russian Federation, when explaining land legislation, follows the path of highlighting the most significant incidents (including in regular reviews and land disputes), and not a systematic interpretation of fundamental regulatory legal acts (in the form of resolutions).  

As an example , the following Reviews of the judicial practice of the Supreme Court of the Russian Federation can be distinguished: ¹¹ 1-4 (2019) ¹ 1 (2022), ¹ 4 (2018), ¹¹ 1,2,4 (2020), ¹¹ 1,2,4 (2021), in each of which land disputes are considered, among other things.

Reviews of practice in cases of establishing an easement for a land plot and consideration by courts of cases related to changing the type of permitted use of a land plot were approved by the Presidium of the Supreme Court of the Russian Federation on 26.04.2017 and 14.11.2018, respectively.

We believe that the issue of generalizing the norms of land legislation in the form of resolutions is very relevant at the moment, which will reduce the number of contradictory interpretations of land legislation by all interested parties.

  According to the results of the study , the author came to the following conclusions:

1. The hypothesis about the need to unify the terms of land legislation "land" and "land plot" has not been confirmed, since these concepts are correlated as general ("land") and private ("land plot").

2. From the first part of Article 7 of Federal Law No. 172-FZ, we propose to remove the word "exceptional" as not reflecting the actually existing legal relations. The legislator recognizes that the real needs of economic entities may require the need to change the purpose of agricultural land and indicates the conditions under which this is permissible. In addition, it will not be possible to achieve socially important tasks by declaring the prevention of the withdrawal of agricultural land to lands with a different purpose - it is necessary that the titular owner of agricultural land has an economic interest in using these lands specifically for the cultivation of agricultural products.  The minimum necessary condition for this is that the production of agricultural products should be profitable, which is not easy to ensure in the current realities. 

3. We consider cases of alienation of agricultural land for roadside lanes of highways on the basis of administrative acts of executive authorities to be unacceptable. We believe that in these cases, an appropriate easement should be issued or it is necessary to alienate the necessary parts of land plots for state or municipal needs with the payment of reasonable compensation.

4. The casuistic presentation of the norms of land legislation, the difficulty of its application, in our opinion, make it necessary to pay more attention to the explanations of the relevant norms by the higher courts. There is a need to publish systematic interpretations of land legislation in the form of rulings of the Supreme Court of the Russian Federation. The reviews of legislation regularly published at the present time are spot-on, which is clearly not enough.

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