Article 8.1. State registration of rights to property - as amended, verified 09.09.2020 - Civil Code of the Russian Federation, Part 1

What is the law?

Federal Law No. 122-FZ “On state registration of rights to real estate and transactions with it” was adopted by the State Duma in the third reading on June 17, 1997 and approved by the Federation Council on July 3, 1997. On July 21, 1997, the law was signed by the president and came into force.

Federal Law No. 361-FZ of 07/03/2016 invalidated Chapters 1-4, Article 31 and Chapter 6 of the legislation on state registration of rights to real estate, thus all provisions of the law, except Art. 31 are invalid. The law will be completely repealed on January 1, 2020. Currently, state registration of real estate occurs in accordance with Law No. 218-FZ “On State Registration of Real Estate” dated July 13, 2015, Chapters 3 and 11.

Federal Law No. 122 provided for the state registration of real estate to be mandatory, because only it is legal proof of the rights to own property and allows transactions with it.

Unified State Register + State Property Committee = Unified State Register

The Unified State Register of Rights and the State Real Estate Cadastre are combined to form the Unified State Register of Real Estate .

The Unified State Register of Real Estate is a set of reliable, systematized information about real estate registered in accordance with this Federal Law, registered rights to such real estate, the grounds for their occurrence, rights holders, as well as other information established in accordance with this Federal Law.

The Unified State Register will consist of: Unified State Register, State Property Committee, register of borders (territorial zones), register files, cadastral maps, document books.

Latest amendments

Article 13 provided for the procedure for state registration of rights.

Part 1 established the following procedure for the state registration procedure:

reception and registration of the required package of documents;
checking documents for the legality of the transaction and the absence of inconsistencies between the parties, as well as reasons for refusing registration or declaring it invalid;
entering information into the Unified State Register of Rights to Real Estate;
signing documents and issuing a certificate of state registration of real estate.

Part 2 indicated that state registration of restrictions on property rights by third parties could be carried out by decision of the owner of the rights or persons who were just acquiring them. If encumbrances were carried out by state or local authorities in the public interest, then it was mandatory to notify the copyright holder about this within 5 working days. State registration of the transfer of rights to real estate or their restriction was carried out only if there were previously registered privileges for this object in the State Register.

Part 3 established that state registration should be carried out within five working days from the date of submission of documents, unless other conditions are specified. State registration of mortgages on land plots, buildings and non-residential premises was carried out within fifteen working days from the date of receipt of documents. If registration was carried out on the basis of a notarized agreement, then the period was reduced to three working days.

Part 4 provided for the impossibility of refusing to accept documents for registration.

Part 5 prescribed that in the event of refusal of state registration, the entire package of submitted documents, including the application, should have been sent to the applicant, with appropriate notification of the refusal and the stated reasons for making such a decision. It also provided for the return of a receipt for payment of the state duty, which could be presented the next time the documents are submitted.

Article 17 set out the grounds for state registration of rights to real estate.

The reasons for registering the presence, termination, transfer, encumbrance of rights may be the following circumstances:

documents and acts that were issued by state or local government bodies that complied with the current local legislation at the time of their issuance;
documents on the privatization of housing, drawn up in accordance with current local legislation at the time of the transaction;
documents confirming the right to inheritance;
entry into force of judicial acts;
arbitration decisions;
certificates of title to property issued by authorities in accordance with the law that was in force at that time in the place where these documents were issued;
other documents on the transfer of property that comply with the legislation relevant at the time of the transaction;
other documents of the Russian Federation that, in accordance with the law, confirm the existence, emergence, termination, transfer or limitation of rights to real estate;

Verification of the legality of documents submitted for state registration, as well as verification of the legality of the transaction, in addition to the notarized agreement, was carried out by the department responsible for state registration. Federal Law No. 122 prohibited the request for documents other than those listed in Article 18 of the current legislation.

Article 20 of the current federal law provided grounds for refusal of state registration of rights. Registration of documents could be refused in the following cases:

real estate is not subject to registration in accordance with the current Federal Law;
an application for registration of rights was submitted by a person who does not have permission to carry out such actions;
the submitted documents do not meet the requirements and standards;
the document granting rights to property was declared invalid;
the document was issued by an unauthorized person;
the person with limited powers did not indicate this fact in the application;
the title deed indicates the absence of the applicant’s rights to the specified property;
the applicant did not provide a document on the previously recorded right to the property;
all necessary documents have not been provided;
the presence of inconsistencies between declared and recorded rights;
incorrect execution of the cadastral document (lack of coordinates of characteristic points, etc.).

Registration of real estate that was not included in the cadastral register of the Russian Federation was not allowed. If at the time of registration a court case was ongoing regarding the boundaries of the land plot, this was not an obstacle to completing the state registration procedure.

Article 23 , which provided for the specifics of state registration of real estate in apartment buildings, consisted of the following two parts:

State registration of rights to real estate in apartment buildings was to be carried out in accordance with this Federal Law, as well as the Housing Code of the Russian Federation.
State registration of the emergence, transfer or limitation of powers over residential or non-residential space in apartment buildings is considered state registration of the associated right of common shared ownership of common property.

Article 24 , which provided for the specifics of state registration of the right of common ownership of real estate, consisted of the following parts:

The first part listed the general provisions for registering rights to joint property:
when selling his share to a third party, the seller must send to all participants in shared ownership an official notice of the sale indicating the terms of the transaction and its price;
the sale of part of the common property is possible only after one month after notification of this to all other participants. However, if the notary is presented with documents confirming the refusal of the remaining participants in shared ownership to purchase the specified part, then the transaction can be concluded earlier than the prescribed period;
If, during the registration of the right to a share in common property, disputes arise between the participants, then they must be resolved in court.
If one of the co-owners applied for the redistribution of shares, then in order to carry out state registration it was necessary to submit the written consent of all other participants in shared ownership, whose rights should be redistributed.
State registration of the emergence, transfer and termination of the right of joint ownership of real estate was carried out on the basis of an application from one of the co-owners, unless otherwise provided by law or agreement of the copyright holders.
Applications for state registration of the right of common shared ownership of persons owning investment shares in real estate, which constitutes a common mutual investment fund, were submitted by the company that manages the mutual fund in accordance with the trust agreement. In addition to the mandatory documents established by this Federal Law, it was necessary to additionally provide the following papers:
management company license;
fund trust management agreement.

Article 25 established the procedure for state registration of the right to own the real estate object being created and consisted of the following parts:

Ownership of the created object was registered on the basis of a document confirming the rights to the land plot where the created real estate object is located, as well as permission to put the building into operation. A document confirming ownership of a land plot was not required if, on its basis, the applicant had previously registered the specified plot in the state register.
Ownership of a property under construction was registered on the basis of a title document for the land plot, as well as a construction permit. A title document for a land plot was not required if the applicant had previously registered his rights to the specified plot on its basis.
If the applicant owns the land plot on which the property is being built, then the right to the construction project is registered on the basis of documents confirming ownership of the land plot and construction permits.
If the plot belongs to the applicant on the basis of other rights, then in order to register the real estate being built on it, a document confirming the ownership of the land property, as well as a construction permit, was required.

Principles of state registration of rights to real estate

The article carried out a comprehensive study of the issue of state registration of rights to real estate; its legal basis, procedure and principles are determined. The definition of a real estate object is given. The current legislation in the field of registration of rights to real estate and scientific works exploring this problem are analyzed. The principles and stages of state registration of rights to real estate in the Russian Federation are determined.

Key words: principle, state registration, real estate, registration of real estate, real estate, reliability of the state register, publicity of the register, principle of entry, protection of bona fide participants in the turnover, verification of the legality of the grounds for registration.

One of the features of the legal regime of real estate, enshrined in the current Russian legislation, is the need (obligation) for state registration of rights to real estate, restrictions on such rights, encumbrances of real estate (Article 8.1, Article 131 of the Civil Code of the Russian Federation).

For the first time, the principles of rights to real estate were set out in the draft patrimonial Charter in the development of the civil code of the Russian Empire in 1892. It was called the “positive principle of entry” - the real right to real estate arises at the moment of making an entry about it in the family register, as well as transparency (publicity) and reliability of the information contained in the family books [6].

The prototype of the system of state registration of rights to real estate began to take shape in the pre-revolutionary period. The “positive principle of entry” is enshrined as the main principle of the Russian registration regime (Article 8, 131 of the Civil Code of the Russian Federation) from January 1, 1995 after Part 1 of the Civil Code of the Russian Federation came into force [2].

The Land Code of the Russian Federation came into force on October 30, 2001, it established the principle of the unity of fate of the land plot and the real estate located on it, this was the basis for the future unification of accounting systems for land plots and capital construction projects.

The principles of any branch of law are of great importance for sustainable development, and real estate law is no exception. Lyulin P.B. determines that the principles of state registration of rights to real estate are: legality, publicity and reliability; assessment of property before registration of rights to it; priority of the first registered right; individualization of property for the purpose of its identification; independence of the registrar in carrying out accounting; exclusively state character [11, p. 205–206].

In the Concept for the Development of Civil Legislation of the Russian Federation, the developers [10, p. 32].

In 2013, as part of the civil code reform, significant changes were made to the Civil Code, which laid down the basic principles for the further development of the system of state registration of real estate.

Federal Law of December 30, 2012 No. 302-FZ “On Amendments to Chapters 1, 2, 3 and 4 of Part One of the Civil Code of the Russian Federation” [4] came into force on March 1, 2013 and was introduced into the Civil Code of the Russian Federation [2] Article 8.1. Thus, paragraph 1 of this article enshrines the principles of state registration of rights to property by an authorized body, which are subject to application regardless of what is the object of registration (real estate, shares in the authorized capital of business companies, etc.) based on the principles of verifying the legality of the grounds for registration, publicity and reliability state register.

The need to comply with these principles was noted back in 2001 by the Constitutional Court of the Russian Federation [5], which determined that state registration of rights to property should provide guarantees of proper fulfillment by the parties of all obligations, protect bona fide participants in legal relations and contribute to the consolidation and stability of civil turnover in general.

In accordance with paragraph 1 of Art. 7 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate” [3], which came into force on January 1, 2020, the maintenance of the Unified State Register of Real Estate is carried out on the basis of the principles: unity of technology for its maintenance throughout the Russian Federation Federations; data reliability; data availability. The law legally consolidated the merger of two systems: registration of rights to real estate and cadastral registration of real estate [8].

Among the novelties of the Federal Law “On State Registration of Real Estate” [3] one can note the introduction of the principle of extraterritoriality of registration of rights (at the place of filing the application for registration of the right does not depend on the location of the property).

Thus, the principles of state registration of real estate set out in the Civil Code of the Russian Federation and the principles set out in the Federal Law “On State Registration of Real Estate” do not completely coincide, with the exception of the principle of reliability.

The Constitution of the Russian Federation [1] in relation to the area under study - state registration of real estate, establishes three groups of provisions: rules governing the principles of exercising the right to real estate; provisions establishing the foundations of the state, which delimit the sphere of responsibility of local governments and state authorities; the procedure for implementing federal laws in the field of registration of rights to real estate.

The principles of state registration provided for by Law No. 218-FZ have been repeatedly discussed both in scientific doctrine and in judicial practice.

The principles provided for by Law No. 218-FZ are specified both directly in the provisions of the law itself and in the by-laws. In particular, the principle of accessibility (publicity) of information is implemented in the provisions of Article 7 of the Federal Law “On State Registration of Real Estate”, which establishes the availability of information, except in cases established by law, as well as Article 62 of the Federal Law “On State Registration of Real Estate” [3], which regulates the procedure provision of information contained in the Unified State Register of Real Estate (hereinafter referred to as the USRN). In turn, the principle of reliability of information contained in the Unified State Register is specified in Art. 26 and 35 of Law No. 218-FZ, which define the grounds and terms for suspension of state cadastral registration and state registration of rights, as well as the rules for entering into the Unified State Register of Entries objections to the registered right to real estate.

There are different opinions about the prospects for implementing the principle of public reliability in Russian legislation.

Alekseev V.A. considers the content of the principle of public reliability of the register of rights to real estate on the basis of a critical analysis of the norms of Art. 8.1 of the Civil Code of the Russian Federation and makes a proposal to clarify the wording of this principle in the law [6, p.39].

According to E.M. Tuzhilova-Ordanskaya, the importance of the principle of reliability can hardly be overestimated [13, p.39]. In general, it is assumed that all information entered into the Unified State Register is considered reliable and fully reflects the legal regime of real estate, which follows from paragraph 1 of Article 2 of the Federal Law "On State Registration of Real Estate", which established the status of state registration as the only evidence of the existence of a registered property. rights. In conjunction with Art. 2 of the Federal Law “On State Registration of Real Estate” regarding the possibility of challenging a registered right only in court, one can speak of a kind of presumption of authenticity.

A.V. Schwabauer [14, p.30].

Thus, the principle of public reliability must have specific wording in the law and references to other articles of the Civil Code.

The principle of irrevocability has not been identified as an independent principle of state registration, but it is undoubtedly related to the principle of reliability. It is generally accepted that the principle of irrevocability means trust in the records of the Unified State Register, that is, the ability of persons using the information of the Unified State Register to count on the fact that this information corresponds to the legal status of the real estate, therefore, these persons can build their relationships on the basis of such records. The principle of irrevocability in its literal sense implies the impossibility of changing the USRN data, and in this sense it is not typical for the domestic state registration system [13, p. 40].

By establishing irrevocability as a principle of state registration, the legislator would deprive the owner of the opportunity to challenge an incorrectly registered right or transaction and thereby protect his right.

The principle of irrevocability of state registration meets the interests of protecting the rights of a “bona fide purchaser”. This aspect becomes especially relevant with the introduction of clause 2 of Art. 223 of the Civil Code of the Russian Federation regarding the possibility of the emergence of ownership of real estate by a “bona fide purchaser” starting from the moment of state registration of the alienation of property.

It seems that it is necessary to consolidate irrevocability, that is, immutability, as a principle of state registration. At the same time, Article 8.1 of the Civil Code of the Russian Federation, where this principle was not legitimately recognized.

The principle of reliability is associated with the principle of publicity (glasnost) or, as they call it, the principle of openness.

E. V. Trestsova points out that: “The system of state registration of rights to real estate introduced by the Civil Code of the Russian Federation in 1994 was aimed at solving the following tasks: establishing control over the turnover of real estate; ensuring reliability and transparency in real estate transactions; protection and defense of the interests of real estate market participants" [12, p. 151].

According to the principle of reliability, any person in accordance with paragraph 1 of Art. 7 of the Federal Law “On State Registration of Real Estate” can obtain information contained in the Unified State Register of Real Estate about any property. This principle ensures the publicity of information about rights and transactions. Any person has the right to receive information, subject to submitting an appropriate application and presenting an identification document.

It seems appropriate to highlight one more principle - the priority of previously registered rights (principle of seniority), according to which rights and claims registered earlier should be taken into account as a priority (clause 3 of article 9, clause 1 of article 1, clause 7 Article 16 of the Federal Law “On State Registration”).

The Federal Law “On State Registration” (Clause 7, Article 16) quite clearly states that the priorities of rights are established by the date of registration: state registration of rights to real estate is carried out in the sequence determined by the procedure for receiving documents [9, p. 6].

Previously, another principle was discussed in civil law - the principle of double registration. However, the legislator has established the provision that from 03/01/2013 the state registration of real estate transactions listed in Part 2 of the Civil Code of the Russian Federation will abolish the system of double registration (rights and transactions) in relation to real estate . Thus, the law regulates that the rules for state registration of real estate transactions contained in Articles 558, 560, 574, 584 of the Civil Code do not apply to contracts concluded after the adoption of the law.

The principles of state registration of rights to real estate perform the function of protecting rights to real estate; it is sufficiently accurate and strictly to comply with all the requirements of the law and then there will be no need for the intervention of judicial and other bodies, and the ongoing modernization of civil legislation helps to improve this process [7, pp. 13–14 ]. First of all, it seems necessary:

– change the current regulation of the public reliability of the register in terms of the relationship between the entry in the register and the legal force of the transaction on the basis of which the entry was made, in favor of introducing the principle of irrevocability of the entry;

– introduce the principle of absolute reliability and sufficiency of the registration record on the right;

– introduce the principle of irrevocability of the register entry on the occurrence of rights.

The introduction of these mechanisms into the rights registration system can be assessed as a progressive change in the legal regulation of rights registration, corresponding to the vector of development of legislation in this area, aimed at achieving the factual reliability of the register.

Literature:

The Constitution of the Russian Federation, adopted by popular vote on December 12, 1993 // Collection of legislation of the Russian Federation. 2009. No. 4. Art. 445
Civil Code of the Russian Federation (Part One) dated November 30, 1994 N 51-FZ (as amended on August 3, 2018) (with amendments and additions, entered into force on January 1, 2019) // Collection of Legislation of the Russian Federation. 1994. No. 32. Art. 3301
Federal Law of July 13, 2015 N 218-FZ “On State Registration of Real Estate” (as amended and supplemented, entered into force on January 1, 2019) (as amended on December 25, 2018) // Collection of Legislation of the Russian Federation. 2015. N 29 (part I). Art. 4344
Federal Law of December 30, 2012 N 302-FZ “On Amendments to Chapters 1, 2, 3 and 4 of Part One of the Civil Code of the Russian Federation” (as amended on March 4, 2013) // Collection of Legislation of the Russian Federation. 2012. No. 53 (part 1). Art. 7627.
Resolution of the Constitutional Court of the Russian Federation of June 4, 2020 N 13-P; Determination of the Constitutional Court of the Russian Federation of July 5, 2001 N 132-O // SPS “ConsultantPlus”
Alekseev V. A. Public reliability of the register of rights to real estate: a current principle or a matter of the future? [Electronic resource] https://alekseevadv.ru/upload/iblock/4ce/4ce3a401cf964de9a73bb125f9a4d2f6.pdf (access date 04/15/2019)
Badulina E.V. Development of legal regulation of state registration of real estate in Russia / E.V. Badullina.- Notary. — 2017. — No. 6 p.13–14
Badulina E.V. System of state registration of real estate in Russia: stages of formation and development prospects / E.V. Badullina. — Property relations in the Russian Federation. — 2020. — No. 7. — P. 7–12
Badulina E.V. Federal law on state registration of real estate: prerequisites for adoption and some innovations / E.V. Badullina. — Property relations in the Russian Federation. 2020. N 10. P. 6
Concept for the development of civil legislation of the Russian Federation (approved by the decision of the Council under the President of the Russian Federation for the codification and improvement of civil legislation dated October 7, 2009). M., 2009. P. 32
Lyulin P. B. Features of state registration of rights to real estate / P. B Lyulin. - Bulletin of Civil Engineers. 2018. No. 3 (68). — pp. 205–206
Trestsova E.V., Ogorodnikov M.S. Problems of theory and practice of state registration of rights to real estate and transactions with it / Monograph. - Ivanovsk: ISU, 2008.
Tuzhilova-Ordanskaya E.M. State registration of rights to real estate / E.M Tuzhilova-Ordanskaya. — Lex Russica. 2020. No. 8. P. 39
Shwabauer A.V. State registration of rights, encumbrances of rights and transactions in the civil circulation of real estate / abstract of the dissertation for the scientific degree of candidate of jurisprudence. St. Petersburg, 2011. 30 p.

The temporary nature of the State Tax Committee information is canceled

New properties will no longer be given temporary status. Those objects that have already been assigned the temporary nature of State Tax Code information retain this status, but only until the registration of the right, but no later than March 1, 2022 . After the specified period, all information about real estate objects of a temporary nature will be excluded from the Unified State Register of Real Estate.

The new law also establishes that a property with a temporary status can be deregistered by its owners. If the land plot was formed from state lands. or municipal property, then a representative of the state body can apply for deregistration of such objects. authorities or compulsory medical insurance.

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