Whose pipe: Russia will change its approach to ownerless property
Senator Andrey Kutepov appealed to the deputy head of the presidential administration Maxim Oreshkin with a proposal to adopt a law "On ownerless property" in order to more clearly fix the rules for the transfer to municipal ownership of objects whose owners have not been identified. This problem has been relevant for a long time — since the collapse of the Soviet Union, there are still many roads, communal infrastructure, buildings, cemeteries and cattle burial grounds, the ownership of which has not been established, and often simply because no one wants to maintain them. Now we have added facilities in new regions of the country. Izvestia investigated how the legislation on ownerless property will change and what its disadvantages are.
How are they going to change the legislation
The head of the Federation Council Committee on Economic Policy, Andrei Kutepov, sent an appeal following the results of the round table, which took place on June 19. The text of the letter addressed to Maxim Oreshkin (available to Izvestia) indicates a number of problems related to the current legislation.
Currently, all immovable objects that do not have an owner are subject to Article 225 of the Civil Code of the Russian Federation "Ownerless things". According to it, the right of municipal ownership should arise for an ownerless thing, that is, one that does not have an owner, or he is not known, or abandoned it. Most of them were created before 1992, and many of them are municipal infrastructure facilities. According to the decree of the Supreme Council of the Russian Federation No. 3020, all of them must become municipal property. But Article 225 of the Civil Code of the Russian Federation does not cover cases when the owner does not maintain the object. That is, there is an owner, but for one reason or another he has withdrawn from the content of the object. Formally, the facility is ownerless, but it cannot really be transferred to the municipality.
"(Ownership rights) must be terminated by the seizure of such property," Andrei Kutepov emphasizes, referring, among other things, to the experience of countries where objects are recognized as ownerless upon "removal from ownership."
Russia has already taken this path — for example, unused agricultural land that has an owner can already be seized. But such a mechanism does not work with communal facilities yet, if they were created after 1992. The owner of a particular pipeline does not live in Russia, and he certainly will not maintain the facility, but there is no way to take it into the ownership of the municipality.
Another problem is land plots. It is difficult to find the owner, even if there are documents: only his last name and initials can be indicated there. Moreover, land plots become state property if they no longer belong to anyone else, according to Article 214 of the Civil Code of the Russian Federation. And the issue of the correlation of this article with Article 225 of the Civil Code of the Russian Federation has not been resolved.
"Article 225 of the Civil Code of the Russian Federation, in fact, applies to cases when there is a real estate object on a land plot, but the right to the land plot is registered, but the right to the real estate object is not registered," Kutepov notes.
The letter also contains separate proposals on ownerless heating and water supply facilities, communication lines, and roads.
"As suggestions, the participants of the round table noted the need to adopt a special federal law On Ownerless Property," Kutepov writes. It is also proposed to detail the provisions of Article 225 of the Civil Code of the Russian Federation regarding the uncertainty of the owner, to regulate the ratio of the provisions of Articles 214 and 225 and to develop legal mechanisms for accounting for highways, heat supply facilities, water supply and electricity networks.
The Russian government told Izvestia that they had also received recommendations from the round table on the topic "Problems of ownerless property in the Russian Federation," but did not comment on them in detail.
Is there a lot of ownerless property in the country
Olga Molyarenko, associate Professor at the HSE Faculty of Social Sciences, who, with the support of the Khamovniki Foundation, conducted a large-scale study of the problem of ownerless facilities in Russia, told Izvestia that the bulk of such facilities exist as remnants of Soviet heritage. These are departmental infrastructure, facilities that were built by agricultural and industrial enterprises, etc., but which were discarded after 1991.
— Let's take a conditional city in which an industrial city—forming enterprise was actively developing in Soviet times, - says the interlocutor of Izvestia. — It built departmental houses, electrical substations, paved roads, and so on. After the collapse of the USSR, the housing problem was generally eliminated through privatization, and roads, electric networks, and cemeteries were left without an owner.
The exception in all this volume of ownerless facilities is some new networks for houses being put into operation, when developers rent only the "box", and networks and access roads are not put on balance.
"Nevertheless, where municipalities had a stable economic situation, they slowly took over most of these facilities," says Olga Molyarenko. — The most difficult situation is when municipalities simply do not have the funds either to register such real estate or to bring it into an adequate condition.
Ownerless objects often occur on the borders of property, for example, railroad crossings, the researcher continues. There are many cemeteries without owners, especially those that have remained unclaimed in rural areas, and almost 100% of the old cattle burial grounds. Sometimes there are even runways and water intakes that are not registered as property, but various kinds of hydraulic structures are not registered in almost half of the cases.
Nadezhda Kosareva, President of the Institute of Urban Economics Foundation, emphasizes that the problem of such facilities is relevant, including for large cities. However, not everything that looks ownerless is actually such from the point of view of the Civil Code of the Russian Federation.
Freedom Finance Global analyst Vladimir Chernov points out that there is no exact data on the number of ownerless facilities, but we are talking about hundreds of thousands. According to him, the largest share is made up of municipal infrastructure facilities. But there are also residential buildings and apartments, including extortionate housing, for which no one has inherited.
— In some regions, registers of empty houses are already being formed, but they cannot be sold due to restrictions in the law on privatization, — said the interlocutor of Izvestia.
Rosreestr, however, gives a fairly clear answer to the question of the number of recognized ownerless facilities: there are now 267,357 of them.
— The work on identifying the rights holders of previously registered real estate objects is carried out in accordance with Law No. 518-FZ, which entered into force in June 2021. If five years ago there were 48 million objects without rights in the Unified State Register of Legal Entities, now there are 26.3 million of them, the agency told Izvestia.
Rosreestr recalled that, on behalf of the president, they must identify the copyright holders and register the rights to real estate before January 1, 2027.
Is it necessary to adopt a separate law
Experts interviewed by Izvestia are inclined to believe that a separate law on ownerless property is rather unnecessary. For example, Vladimir Popov, Associate Professor of the Department of Private Law at GUU, notes that the conceptual provisions that need to be changed are in the Civil Code of the Russian Federation, which is why it needs to be changed first.
— It is possible to detail the procedural aspects in the Civil Procedure Code of the Russian Federation. The procedure for registering ownerless items and transferring them to local authorities can be specified in bylaws, such as government resolutions and orders from the Federal Register," he said.
Olga Molyarenko also notes that it is important not to adopt one law, but to get rid of existing conflicts.
"On the other hand, a significant part of the problem is not in the legislation at all," she continues. — The main problem lies in the state of this infrastructure and in the fact that mismanagement is particularly acute in poor municipalities. There are simply not enough financial resources to identify and design such an infrastructure in time, much less maintain it in the future.
On the other hand, he is an expert in the direction of the "Popular Front. Analyst Elena Gladkova notes that the adoption of a separate law will allow to unify procedures, create a federal register and clear criteria for "orphan status", and also consolidate the responsibility of government agencies — and not only municipalities.
— However, there is a risk of excessive regulation if the law duplicates existing norms, — said the interlocutor of Izvestia. — Amendments to the Civil Code of the Russian Federation and by-laws can be dispensed with: for example, government resolutions. Either adopt a framework law, but delegate the development of details to the government.
She adds that legislative changes are already being adopted: for example, from one year to three months from the moment of detection, the period after which a municipality can claim ownership of an ownerless object is reduced. But this applies only to infrastructure, hydraulic structures and civil defense facilities. For other categories of ownerless immovable property, on the contrary, the period was increased from three months to a year to prevent hasty decisions and provide additional time to identify the owner.
Are the current regulations working?
Elena Gladkova calls the current process of transferring ownership to municipalities extremely bureaucratic. According to her, the mechanism is ineffective without additional financing and simplification of procedures.
Olga Molyarenko, in turn, notes that the regulations themselves are as follows: the municipality declares the existence of the facility, registers it as ownerless in the Rosreestr authorities. Then time is given for the real owner to declare his right to the object. If after three months or a year he did not show up, then the municipality will take the object to its balance sheet through the court.
— But most ownerless facilities are found out when an accident occurs on them. And imagine: your water supply network is leaking, which turned out to be ownerless, but in order to fix it with budgetary funds, you first need to register ownership, otherwise there will be inappropriate spending," Olga Molyarenko explained.
Some municipalities have found exotic ways to solve the problem, she says. One of them is based on the decree of the Supreme Soviet of the RSFSR on the delimitation of property, which is mentioned in Kutepov's letter. According to it, what was necessary to meet the economic needs of the municipality's population could be taken over by the settlement. Molyarenko has seen this practice in literally several municipalities.
Another extremely rare case occurred in one of the republics of the North Caucasus.
— The region has decided that everything that is on municipal land is municipal, which means that budget funds can be allocated for this. — says the expert. — But I'm not sure if this is consistent with federal law. It is unlikely that this exotic option can work in any other region.
By the way, until the mid-2000s, there were no problems with allocating money for the repair of ownerless facilities, so no one was in a hurry with their registration. When the legislation became tougher, problems appeared. However, even now most of such property is maintained even without legal registration. Municipalities use so-called indirect financing: they hold clean-up days, use self-financing funds from citizens, grants to non-profit organizations, and so on.
Olga Molyarenko notes that another problem was the fact that the legislation previously, in fact, existed under the presumption that all objects had already been distributed among the owners and there was no collective farm left, and registration was required, according to this unspoken paradigm, only for newly created objects.
— That's why Kutepov's letter says that it is often not about ownerless objects, but about objects, the ownership of municipalities to which should have arisen due to the differentiation of state ownership, — says Olga Molyarenko.
What is the situation with ownerless facilities in the new regions?
Elena Gladkova believes that special attention should be paid to the new regions by the federal authorities.
"There are special risks in the massive uncertainty of property rights due to destruction, population migration and lack of registers," she said. — One of the possible solutions is to introduce a simplified procedure for transferring property to state ownership through the Federal Property Management Agency or regional authorities.
Olga Molyarenko, however, believes that the difficulty here is only in the number of objects. At the same time, the legislation itself has already been tested for new regions, it is only necessary to use the existing developments. The main problem that needs to be solved, and not only in the new regions, is the responsibility for the acquired ownership rights to the regulatory authorities.
— Perhaps it makes sense to introduce a moratorium on inspections for several years after the registration of property in the ownership of the municipality, — says the expert. — We need incentives on how to create interest in the registration of objects in ownership, or at least eliminate the negative possible consequences of this action.
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