The city authorities are unable to dispose of local areas of apartment buildings, cutting off their plots for sites on the basis that the land is not measured and is not registered in the cadastre. While residents have the right to own and use sites “in the borders, in which territory was previously defined in accordance with the law”, even despite the lack of registration of the right of equity ownership. This is stated in the decision of Moscow city court, hearing the petition of residents of the Ostankino against the construction of a 22-storey building under the program of renovation. Moscow city Duma Deputy Sergei Mitrokhin, who called such conflicts typical for Moscow, considers the decision of the revolutionary and expressed hope that the outcome of the proceedings will help the citizens to defend the rights of the courtyards of their apartment buildings. The capital property Department is ready to file an appeal against the decision, because there are sure, “handing over land for construction of starting houses on the renovation programme, the city has not violated the rights of residents of an apartment building”.The Moscow city court published the reasoning of the decision under the claim of the residents of the two houses on the streets Zander and Queen to the city authorities. The subject of the proceedings was planned in common for these homes the yard the construction of a multi-building under the program of renovation in height from 14 to 22 floors. In March 2019, the tenants entered into a scuffle with construction workers, protesting against infill construction: the building, estimated by opponents of the project will be built on the site of the Park 10 meters from a neighboring house. August 2019 the dispute shall be resolved in the courts: residents demanded to terminate the lease of the land plot with the area of 8,6 thousand sq. m. for future construction between the Department of property of Moscow and the city’s state-owned enterprise “Management civil engineering” (UGS). In January 2020, the Tverskoy district court of Moscow dismissed the activists of Ostankino the claim, citing the fact that the territory of both buildings are measured and in the inventory does not appear. The court also noted that “no evidence that the disputed land” is generally formed.Moreover, the representatives of the city hall reported that the land around which there is a lawsuit, UGS leased from Moscow in accordance with the targeted investment program, approved by Moscow government resolution No. 1223.Residents of Ostankino challenged the refusal before the Moscow city court, which considered such legal reasoning is wrong and recognized the land lease agreement with UGS invalid in July 2020. In the reasoning of the decision reads that the previous instance have not studied the purposes for which the land was transferred to UGS for free use and not set intersect its boundaries with other territorialforumi. The court also attached to the case presented by the plaintiffs, the conclusion of the cadastral engineer (with reference to the plans Mosgorbti 1973) that from the yards for future construction was cut 1.7 thousand sq.m of land.Incorrect was also identified by the absence of registration of the right of equity ownership of residents on the appearance of the area as “the basis for refusal in satisfaction of the claim”. Thus, the court emphasized that the burden of proof in this case lies with the defendants, that is the authorities, not residents. The court said that the city property Department was not entitled to dispose of the disputed part of the land, even if they are not separated. While the tenants of houses, in turn, has the right to own and use sites “in the borders, in which territory was previously defined in accordance with the law”. Finally, the court found that the land allocated UGS in 2016, as mentioned by the authorities of the Moscow government resolution about the targeted investment programme was published in 2018, and has now expired. Moreover, according to this document on the site was supposed to build a school for 550 places, not multi-residential building.Moscow city Duma Deputy Sergei Mitrokhin called the decision of the Moscow city court revolutionary. “For the first time the court examined this case from all sides of the law and comprehensively approached the issue. Local areas may be not put on the cadastral account, it is difficult and expensive, and in these circumstances residents should be assured that their property will not drift away somewhere just because they just don’t advance,”— said the Deputy. He points to the typical character of such conflicts between residents and authorities. On the street Molodtsova in the North-Eastern district of Moscow, which is home to the Ostankino, he is aware of four similar disputes around the construction in the courts under the program of renovation. Definition of Moscow city court gives Mr. Mitrokhin “and hoped that future decisions on such disputes will be accepted in the interests of owners of apartments”.Partner of law firm Bryan Cave Leighton Paisner (Russia) Vitaly Mozharovsky noted that the cases when the land around the apartment buildings are not the property of tenants and not delimited, can be found everywhere. According to the Housing code, like the lawyer, the apartment owners have a common law ownership of the land under the house and adjacent to it, necessary for its use: “the Authorities have nothing to do with this land because it is private property. However, the question is, what size should be the adjacent to the house territory is and where its boundaries are debatable. It is especially difficult to define the boundaries of the land around older homes, built 20 years ago and more, as it is difficult to find and retrieve the documents, for example, about what size�� land transferred to the developer for the construction of this house.”However, the Department of city property (DMI) “there is no information about the presence of similar claims.” “Handing over land KP “UGS” under construction starting on the house renovation programme, the city has not violated the rights of residents of an apartment building on the street after him because the boundaries of the area of this house has not been formed,— said “Kommersant” the essence of the conflict in the DRI.— The city could not occupy the territory of an apartment house and violate its borders, because they simply no, the site is not formed”. In case the land plot with the apartment building is not established until the enactment of the Housing code of the Russian Federation, the owners of the premises may apply to the Department with a statement of his education, the Ministry stressed, adding that this is a free service, and the land is put on the cadastral registration by the Federal registration service after a series of approvals. However, the decision of Moscow city court stresses that under article 16 of the law “About introduction in action of the Housing code of the Russian Federation” the government can not dispose of “land in that part which is to be formed land plot under an apartment house”.In the capital property Department assured that the decision of the Moscow city court will be prepared to appeal. Deputy Mitrokhin, in turn, intend to address in office of public Prosecutor of Moscow with the request to inspect such conflict construction projects for compliance with the rule of law, and to develop and submit to the Duma a bill “that clearly explained: if the land is not delimited and not put on the inventory, this does not mean that any rights the tenants of no.”Alexander Voronov, Anna Zanina
