Barvikha. Who is the defendant in the claim for invalidation of the results of land surveying?
Hello, dear friends! If you are reading this publication, you may have a land dispute brewing. I am sometimes asked why they are brought to court by the defendants in challenging the results of surveying.
Probably, this question will be interesting for you. Today in the publication we will simulate a possible situation. To do this, select several land plots located in the village. Barvikha Odintsovo district of Moscow region (Country residence of the head of Gazprom Miller or Khan).
In accordance with the Land code of the Russian Federation, a land plot is an immovable thing. This thing has characteristics that allow you to clearly define it as an individual thing, for example, location, area, etc.
In accordance with part 2, 4 of article 8 of the Federal law № 218-FZ the basic information about the property include the characteristics of the property, allowing to determine such a property as an individual-specific thing, as well as characteristics that are determined and changed as a result of the formation of land plots, clarification of the location of the boundaries of land plots, construction and reconstruction of buildings, buildings, premises and Parking spaces, redevelopment. In the real estate cadastre are made, in particular, such basic information about the property as a description of the location of the property.
Thus, the land dispute on recognition invalid, on change or exception of data of usrn on location of borders of the land plot – the land dispute on the rights to part of the land plot or to all site in the specific borders defined by coordinates of turning points.
In the decision of the Supreme Court of the Russian Federation dated October 7, 2015 in case No. 305-KG15-7535 it is explained that » … the requirement aimed at challenging the legality of establishing the border or in the whole cadastral registration of the adjacent (crossed) site should be considered in the suit. …The court of first instance in resolving the dispute rightly pointed out that when the crossing (imposition) of land, information on the boundaries of one of which is made in the state real estate cadastre, and the other is subject to clarification, the applicant’s requirements in this case shall be considered by the rules of the proceedings as a requirement to establish the boundaries of the land».
In paragraph 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation № 10, the Plenum of the Supreme Arbitration Court № 22 dated April 29, 2010 (amended on June 23, 2015) «on some issues arising in judicial practice in the resolution of disputes related to the protection of property rights and other real rights» stated that the claim for establishing the boundaries of the land plot refers to claims for real property rights.
The statement of claim on establishing the boundaries of the law of dispute is the right to part of the memory (individual surface of the memory). The defendant must be the owner of the adjacent land.
In this regard, in the decision of the Supreme Court of the Russian Federation dated October 20, 2015 № 303-ES15-12564 in the case of establishing the adjacent border of the land plot it is explained that » claims for rights to real estate under paragraph 2 of the Resolution N 10/22 include claims for establishing the boundaries of the land plot. The adjacent land user in such claims is the defendant.»
If you need help from a lawyer on land disputes on this topic, call me at tel.: +7 (926) 687-08-19.