УДК 349.41

РАЗВИТИЕ ПРАВ НА ЗЕМЛЮ В ПОСТРЕФОРМЕННОЙ РОССИИ

Липски Станислав Анджеевич
Государственный университет по землеустройству
доктор экономических наук, доцент

Аннотация
В результате земельной реформы возникли новые в сравнении с советским периодом виды прав на землю (частная собственность, аренда, пожизненное наследуемое владение, сервитуты). К настоящему времени предоставление земли на некоторые из них прекращено, а ранее возникшие права подлежат переоформлению. Рассмотрено, как указанные права видоизменялись за минувшие два десятилетия, и каковы перспективы их дальнейшего развития. Поскольку в советский период собственником всех земель в нашей стране могло быть только государство, то отдельно проанализирован процесс приватизации земли. Сделан вывод о том, что современная система прав на землю соответствует уровню развития рыночных отношений, как в АПК, так и в других отраслях экономики, нормальное функционирование которых зависит от оптимальности земельных отношений. Вместе с тем, в указанной системе имеется ряд проблем.

DEVELOPMENT RIGHTS OF LAND IN THE POST-REFORM RUSSIA

Lipski Stanislav Andzheevich
State University of land use planning
doctor of economic Sciences, docent

Abstract
As a result of land reform, there are new in comparison with the Soviet period kinds of rights to land (private property, rentals, lifetime inheritable possession, easements). To date, the provision of land on some of them ceased, and the earlier arisen rights shall be subject to re-registration. In the article is considering as these rights were modified over the past two decades, and what are the prospects for their further development. During the Soviet period, the owner of all land in our country could be only the state. Therefore the process of land’s privatization analyzed separately. It is concluded that the current system of land rights corresponds to the level of development by market-relations, both in agriculture and in other sectors of the economy which depend of the optimal progress of land relations. However, in this system there are several problems.

Keywords: a land share, land, law, privatization, property, reform, rights to land


Рубрика: 12.00.00 ЮРИДИЧЕСКИЕ НАУКИ

Библиографическая ссылка на статью:
Липски С.А. Development rights of land in the post-reform Russia // Современные научные исследования и инновации. 2014. № 4. Ч. 2 [Электронный ресурс]. URL: http://web.snauka.ru/issues/2014/04/32806 (дата обращения: 02.06.2017).

In the Soviet period the owner of all land in our country was the state. In that period citizens and legal entities could only be users of the land. They had right of perpetuity (permanent) use or temporary use (short-term – up to 3 years and the long-term – from 3 to 10 years).

In terms of land reform the exclusivity of state ownership of land was abolished. Citizens and legal entities had received the opportunity to have land on the ownership and on the other rights. These rights of land were a new for the soviet land law: lifetime inheritable possession, lease and also servitude (a specific subsidiary of the right).

During 90-s these types of rights remained a full-fledged land rights. They and now represent a phenomenon of system character: the various rights were interrelated, some are reissued in other (in some cases, the re-registration of one type of rights to another is mandatory). The change of order and conditions for one type right is affecting on the attractiveness for other types of rights.

Now the system of land rights includes: 1) the old land rights, preserved since the Soviet times (permanent (unlimited) use), 2) the new rights arisen in the course of reforms, they are complying with the market land relations (private property, rentals), 3) the transitional form, characteristic of the most active periods of the land reform (lifetime inheritable possession). During 90-s this system was assumed on long-term perspective. So the Civil code (1994 – part one) does not contain any time limitations for all these rights. But the Land code (2001) stopped the granting of land by right of lifelong inherited possession and by the right of permanent (perpetual) use (Wegren 2012; Lipski, Gordienko 2013; Hartvigsen 2014 and other [1, 2, 3, 4] ).

The optimality (or the non-optimality) of system of land rights in contemporary Russia is also linked to the issue of abandoned agricultural lands (Prishchepov, Muller, etc., 2013 [5] ). Of course, the existence of unclaimed land shares not helped by decision of this issue.

Consider, as over the past two decades the system of land rights was developed. Also what are the prospects for its further development? 

METHODOLOGY, MATERIALS ANDDISCUSSION

The author collected and analysed the materials on this topic during all period of land reform in modern Russia (he began this in late 80-s). Author used abstract-logical, comparative-legal, formal-legal and historical methods. The materials for this research were normative legal acts, official and other reports and works of other scientists. To a certain extent, the findings and results are based on the experience of the author (more than 20 years he was directly involved in preparing the relevant decisions and their correction).

This article generalizes and systematizes the results published by its author in various scientific editions (Lipski, 2005, 2011, 2013 [6, 7, 8] etc.). The responses on them received from a number scientists and specialists. 

RESULTS

I. Land ownership

The question of land ownership is a main in the system of land’s rights. The Constitution of the Russian Federation protects the diversity of forms land ownership.

In post-Soviet Russia the changes in relations of land ownership went for two directions: 1) the privatization of state land (it was aimed at the radical transformation of the previously existing land relations); 2) the division of state property (between the federal, regions and municipal formations).

Now the public land property is dominant (92.2% of the country territory). But the private land ownership is a necessary condition for further development of civil society, for formation of the middle class. Also it is basis of market economy.

The land’s privatization was carried out very differently in various sectors of the land use. So the privatization of land in cities began quite late. It is associated with various town-planning conditions and peculiarities of the individual cities (so in Moscow the private ownership of land is very little; in 2011, the new territory was annexed to Moscow; but in this territory the private lands there are). The forest lands are remaining in the state property.

The main part of private land is the agricultural land (96.5% of all private ownership by land in the country).

The formation of private land ownership happened as a result of: the re-registration of rights on land plots who was early granted on other rights (privatization actual); the grant new land plots in ownership to citizens and legal entities (individual privatization); the transfer agricultural lands of state and collective farms into common ownership to rural population (mass privatization).

The private property of land plots appeared as a result of restructuring of former rights on the land use and individual privatization. To date, in personal subsidiary farms of private land ownership is 73.8%, among gardeners to 70.3%, among farmers – 40.7% (Rosreestr, 2012 [9] ). With 2011 the state is compensated of farmers their costs of conducting cadastral works at registration of the property rights plots. This must expand the share of the privatized lands of farmers.

The mass privatization of agricultural lands was held in 1992-1993. But the problem, arisen in these period (land shares), was not resolved until now. Such privatization was aimed at solving three tasks:

- create (quickly) a private land property;

- stimulate the reorganization of collective and state farms;

- encourage the concentration of land in the most efficient owners.

This process had a series of errors:

  1. Volatility – the rules several times changed in the process creation of shares.
  2. The necessary legislation was absent almost 10 years after the creation of such shares.
  3. The priority of the social aspects was not allowed to achieve the desired economic effect.
  4. The rights to shares were difficult to register. The legal status of such shares was questionable. In addition, the privatization had spread only on the productive farmland were not distinguished from the rest of the lands, which in that period remained in the state ownership.

As a result of formation of land shares almost 12 million people became the private owners. More than 115 million hectares of agricultural land was privatized (61.8 %).

In the 90-s, the government has sought to simplify committing any transactions with land shares. This should lead to a concentration of shares. However, this has not happened – the most common transaction in the 90-s was rent of land shares. The lessees of land shares were usually the collective and state farms (from their lands such shares were formed) (Lipski, 2005 [6] ).

However, after the adoption in 2002 of the Federal law «About turnover of agricultural land» and its changes in 2005 the rights of owners of land shares were limited (Lipski, 2011 [7] ). This was one of the causes appearing of the so-called «unclaimed land shares». Basically these are shares, the owners of which took no action by the orders of their land property, inherited by them as a result of mass privatization (according to various estimates their total area is about 25 million hectares – Hlystun, Volkov, 2012 [10, 11] ). Different suggestions were offered to solve this problem. It was the ransom such shares to state property or the free of charge transfer them to the federal property (as unnecessary property) and other.

So scientists and experts were discussing the possibility to apply to these shares the procedure provided for an escheated property. The problem such land shares is very similar at the failure of the inheritance. However, the estate passes to the heirs in the order of universal legal succession as a whole. Therefore, the adoption of the heir though of least part of the inheritance means the acceptance of the whole inheritance due to him. And the unclaimed land shares (as decedent’s estate) may considered as escheat only if there are no heirs, or they have no right to inherit, or they debarred from the inheritance, or they refused from the inheritance or none of the heirs has not received the inheritance.

Now (after 2010) the legislation is allowing that these shares will recognize as the municipal property (by the decision of the court). As a result, now the owners of land shares left less than 9 million. In begin 90-s the owners of land shares was almost 12 million people (Rosreestr, 2012 [9] ).

The main problem in the sector of public land ownership – is that still not completed the process of its delimitation between federal, regional and municipal levels. All the 90 years, this process could not begin due to the lack of legislative support. The necessary law was adopted in 2001. According to this law (before 2006) the separation of the public land property was the determination of each individual land plot which had to be attributable to the federal, regional or municipal ownership.

This procedure was very difficult. It required large technical, financial and time costs (such procedure was required to individually identify each land plot for the more than 90% of the territory of the Russian Federation). Therefore, the legislator refused of such a procedure. In 2006, the law (2001) was repealed. The principle of individual definitions of each land plot was not the most successful.

Now the reasons of attribution of land plots into ownership of the Russian Federation, subject of the Russian Federation or municipal formations are that such plots occupied buildings and facilities owned by the appropriate public education or such plots was granted for the authority (state or municipal) or for the enterprises and organizations created by these authorities.

Also reason of land attribution may be the other law if it contains direct reference about the public ownership of any land.

The tempo of differentiation for public lands is characterized by the following figures. The differentiation need for 1576.8 million hectares. By 2013 this process was carried out for 785 million hectares (49.8%), including 770.6 million hectares became Federal property, 9.3 million hectares – regional property and 5.1 million hectares – municipal property (Rosreestr, 2012 [9] ).

Also the process of privatization for public land is continuing. The priority for the near future is the privatization of the agricultural lands that previously were not privatized. This is the land of specialized farms (tribal, greenhouses and etc.) and unproductive land. But it goes slowly.

II. Other land rights

The right of permanent (perpetual) use of land, which arose before the entry into force of the Land code, is subject to re-registration. The current users of such land plots must become owners or tenants. The term for citizens is not installed. The time for legal entities (except the limited circle of such persons) has come 01.07.2012. For the users of the land plots, where are the communication lines, pipelines, roads and similar objects, such date to come 01.01.2015.

If legal entities to shy away from such renewal, they would pay the fine of 20 to 100 thousands rubles. However, it is not clear how effective these (it is possible that them will be easier to pay the penalty).

The right of lifetime inheritable ownership of land was introduced for the citizens in the beginning of 90-s. In this period the possibility of private property on land was questioned. This right was a temporary compromise. After 2001 the new provision of land to citizens by right of lifelong inheritable possession is not allowed. But the citizens may register ownership of lands which they have on this right (without any time constraints).

The most developing form of land use is rent. So, the total area of lands provided to citizens and legal entities on the right of lease in 2012 was 66.9% from total area of lands provided in this year on all rights. The sale of lease rights was 28.7%. The acquisition of land property in 2012 was only 4.3%.

The further development of socio-economic reforms requires updating the system of land rights. The last 3-4 years the updating of the civil legislation including the rights of immovable property very actively was considered (Bogoljubov, 2010 [12]; Zharikov 2011 [13] ). In 2012 State Duma of the Russian Federation had discussed fundamentally new rights of immovable property (right of constant land tenure, right of building development, right of personal use). But the revision of the system of rights of land which expected has not yet happened. However this does not mean that such innovations are excluding in the medium term (Lipski, Gordienko 2013 [2] ).

III. Information support

The necessary condition for the protection of rights of land and their re-registration is information support.

In Soviet period (and in beginning of land reform) the main information system which contained the information about land was state land cadaster. It included the following components: the registration of specific land plots reflected the legal aspects of land use; the accounting of the quantity and quality of land; the soil’s bonitation by natural properties which was reflecting the production aspects of land use; the economic evaluation of land.

In the 90-s the land cadaster was developing towards the multi-purpose information system about land which included: the accounting of land, her registration, ensuring of land’s taxation and land’s management. Then cadastral specialists unsuccessfully tried to integrate in this system also the information about other real estate. But this integration succeeded only after the adoption in 2007 the law about the transition to the state (united) cadaster of real estate (Lipski, 2013 [14] ). In addition, the proposal about combining such cadaster with the system of registration rights of real estate and transactions with it now is preparing in accordance with the decision of the Government of the Russian Federation.

CONCLUSION

The prospects of land’s rights are predetermined by the fact that the land legislation is changing with the development of the processes occurring in the economy and social spheres, as well as in other sectors of legislation which connected with lands. The rapid stage of development of the land legislation (90-s years) led to the formation very specific domestic system of land rights. Now it includes both the old land rights, preserved since the Soviet times, and new rights arisen in the course of reform and of development marketable land relations. Also this system still provides the right of lifetime inheritable possession for citizens as transitional form, characteristic of the most active periods of the land reform. But the state and municipalities longer are not providing land plots by this right.

The modern system of land rights corresponds to the level of development of market relations both in agriculture and in other sectors of the economy, which depend on the optimal progress of land relations. However, number of problems is in this system. The improvement of the system of land rights will allow more fully realize the potential of the real sector of the economy and will create conditions for its sustainable, effective development. It also will better protect the land rights of citizens and legal entities and will allow reduce the number of disputed issues in land-property sphere.


References
  1. Wegren, S.K. (2012). Institutional impact and agricultural change in Russia. Journal of Eurasian Studies. 3(2). 193-202.
  2. Lipski, S.A., Gordienko, I.I. Pravovoe obespechenie zemleustrojstva i kadastrov: aktual’nye problemy zemel’nogo zakonodatel’stva [The legal support of land use planning and cadaster: current problems of land legislation]. Moscow. 2013. 336 p.
  3. Hartvigsen, M. (2014) Land reform and land fragmentation in Central and Eastern Europe. Land Use Policy. (36). 330-341.
  4. Holzel, N., Haub, C., Ingelfinger, M.P., Otte, A., Pilipenko, V.N. (2002) The return of the steppe large-scale restoration of degraded land in southern Russia during the post-Soviet era. Journal for Nature Conservation. 10 (2). 75-85.
  5. Prishchepov, A.V., Muller, D., Dubinin, M., Baumann, M., Radeloff, V.C. (2013).  Determinants of agricultural land abandonment in post-Soviet European Russia. Land Use Policy, 30(1). 873-884.
  6. Lipski, S.A. Gosudarstvennoe regulirovanie oborota zemel’ sel’skohozjajstvennogo naznachenija v uslovijah razvitija rynochnyh otnoshenij (teorija, metody, praktika: rossijskaja model’ konca XX – nachala XX I veka) [The state regulation of agricultural lands in conditions development of market relations (theory, methods, practice: the Russian model of the end of XX - beginning of XXI century)]. Moscow. 2005. 162 p.
  7. Lipski, S.A. (2011). The legal mechanism of the state regulation of the market of agricultural lands in modern Russia: peculiarities, tendencies and perspectives. The right and economy. (12). 18-24.
  8. Lipski, S.A. (2013). About the development of the federal legislation regulating the turnover of agricultural lands.  The agrarian and land law. (2). 81-86.
  9. Gosudarstvennyj (nacional’nyj) doklad o sostojanii i ispol’zovanii zemel’ v Rossijskoj Federacii v 2011 godu [State (national) report on the status and use of lands in the Russian Federation in 2011]. Moscow. Federal’naja sluzhba gosudarstvennoj registracii, kadastra i kartografii [Federal Service for State Registration, Cadastre and Cartography], Rosreestr. 2012. – 248 p.
  10. Hlystun, V.N. (2012). Land relations in the Russian agricultural sector. Domestic notes.  (6), 78-84.
  11. Volkov, S.N. (2012). Ensuring trafficking and use of agricultural lands. The agri-food policy in Russia. (1). 60-64.
  12. Bogoljubov, S.A. (2010). Land law and the concept of development of civil legislation.  JournalofRussianlaw. (1). 38-47.
  13. Zharikov, Ju.G. (2011) Norms of civil law in the sphere of land relations. Journal of Russian law. (11). 33-39.
  14. Lipski, S.A. (2013). Problems of cadaster and monitoring of agricultural lands in modern Russia. Universitatea Agrară de Stat din Moldova. Lucrări ştiinţifice: Cadastru şi drept. [State Agrarian University of Moldova. Scientific works: Cadaster and law]. Chisinau. (33). 80-84.


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