CC BY
4УДК 349.4 Evchenko L.A., Vakhitova G. V.
Evchenko L.A.
Ufa University of Science and Technology (Ufa, Russia)
Vakhitova G.V.
Ufa University of Science and Technology (Ufa, Russia)
FEATURES OF CONSIDERATION OF CASES BY A LAWYER IN THE SPHERE OF REAL ESTATE
Аннотация: sphere of real estate and cadastre is very mobile and is actually continuously subject to legislative changes and new trends in law enforcement practice. For this reason, on the one hand, it is one of the most attractive for practising lawyers, and on the other hand, it is very complex due to its complexity. For example, the analysis of the current land legislation and court practice obviously demonstrates the species diversity of land disputes. This not only characterises land disputes as complex, but also requires the need to address in their resolution to specialised bodies and the use of knowledge, as to understand the intricacies of land use is not always easy even for specialists, which is the reason for the relevance of this study.
Ключевые слова: real estate, state registration, cadastre, land use, urban planning.
There are not so many works devoted to the activities of a lawyer in the sphere of real estate and cadastre in the scientific literature, which demonstrates the obvious lack of elaboration of this topic in the doctrine. At the same time, the sphere of real estate and cadastre in recent years is gaining popularity among practicing lawyers, which proves the large number of similarly named areas of training in master's degrprogrammes in higher educational institutions.
We believe that it is necessary to understand what are the forms of participation of a lawyer in providing qualified legal assistance in the sphere of real estate and cadastre.
First of all, a lawyer can provide legal support for real estate transactions. In this case the lawyer gives advice, assists in the preparation of the relevant contract, checks the «cleanliness» of the transaction, as well as assists in the procedure of state registration.
In addition, the lawyer can participate in the pre-trial settlement of disputes in the field of real estate and cadastre, for example, by preparing the relevant claims.
Finally, in the case of court proceedings, the lawyer provides services of a representative, as well as is engaged in the preparation of the necessary procedural documents in the case.
As part of the support of the lawyer of the resolution of disputes in the field of cadastre and real estate, it is important to understand that each category of disputes is specific due to the peculiarities of legal regulation and trends in law enforcement practice.
One of the most complex categories of disputes are land disputes. Firstly, they are often characterised by lengthy resolution, and secondly, due to the complexity of the branch of land law, they require knowledge not only of land legislation, but also of natural resources legislation in general.
For this reason, in the legal literature, as well as in the professional community, there is an opinion that it is necessary to create specialised courts that consider exclusively land disputes.
When expressing such an opinion, the authors often refer to the procedure for consideration of land disputes in foreign countries. The foreign experience in resolving land disputes is studied in great detail by D. Samoylova, who notes: «In England, several bodies vested with such powers (county courts - territorial courts) are engaged in the resolution of land disputes. In the USA, the bulk of land disputes are considered by courts of general jurisdiction (district, county, appellate, higher). In some states, special judicial bodies have been established to resolve land disputes. In France, the
resolution of disputes in the field of land legal relations is vested in parity tribunals for land lease - land courts. In Germany, Austria, Switzerland and Liechtenstein, since 1877 there has been a land court with several district courts subordinate to it. In Australia (the state of New South Wales) in 1980 the Land Court was founded, which is a special court» [1].
According to the domestic legislation, namely, Article 64 of the Land Code of the Russian Federation, land disputes are resolved in court, but before taking the case to proceedings, a land dispute may be referred by the parties to the arbitration court for resolution in the presence of an arbitration agreement concluded between them. Thus, there are no specialised bodies or courts in Russia to resolve this category of cases.
It should be noted that the opinion that it is necessary to create specialised «land» courts is conditioned not only by the effectiveness of foreign law enforcement, but also by the previous relevant experience in Russia. Thus, during the Stolypin reform «land issues» were considered by specialised bodies - district land commissions. The resolution of land disputes by similar bodies was enshrined in the provisions of the Land Code of 1922 (abolished with the division of competence between the village council, district executive committee, public and people's courts in 1930). [3, P. 66].
However, given that to date we do not sobvious reforms in this direction, it should be stated that the successful resolution of land disputes today requires seeking qualified legal assistance, in particular, to lawyers with knowledge in the field of land law.
Qualified legal assistance implies a focus on the subject providing assistance. In fact, the Federal Law «On Advocacy in the Russian Federation» correlates qualified legal assistance with advocacy provided by persons having the status of an advocate. In our opinion, it cannot be categorically stated that these are identical concepts. However, there are certain areas of the real estate sphere, which, obviously, in case of disputes require the participation of a lawyer. One of such areas is urban planning.
In the field of urban planning, difficulties in dispute resolution are most often due to the fact that urban planning activities are characterised by publicity. From the analysis of Article 1 of the Town Planning Code of the Russian Federation it follows
that the purpose of legal regulation of town-planning activities is to ensure sustainable development of territories in the Russian Federation, and town-planning activities are defined as activities for the development of territories, including territorial planning, town-planning zoning, territory planning, architectural and construction design, construction, operation, demolition of capital construction objects and landscaping.
Under such circumstances, the priority of ensuring public interests in the implementation of urban planning activities with the maximum possible consideration of the rights and interests of private individuals is obvious.
The balance of public and private interests in the urban planning sphere can be achieved in the following ways:
1. Establishment of a special procedure for the preparation and approval of urban planning documents with mandatory socio-economic justification of decisions taken.
2. Conducting public discussions and public hearings in order to take into account the opinion of interested parties.
At the same time, a number of authors, in particular, O.A. Romanova, point out that: «The following is the most important issue. Romanova notes: «Formal compliance by the authorised authority with the established requirements for the procedure of approval of urban planning documents practically excludes the possibility of proving the unreasonableness of the current urban planning document (for example, the general plan or the rules of land use and building of the settlement, the project of planning and land surveying of the territory) and, accordingly, deprives the possibility of protecting the violated right of a particular person by this document. In fact, for the sake of achieving the public good in the process of urban planning, the current Russian legislation allows for the possibility of restricting property and other rights of citizens and legal entities, which, however, must be justified by the goals and objectives of state and social development. It is assumed that the necessary degrof validity of such restrictions is provided by the procedure for the preparation and approval of urban planning documents, which affect the rights and interests of various persons, established by urban planning legislation» [5, P. 169].
Hence, we can formulate the following recommendation: for successful resolution of urban planning disputes the lawyer should correctly determine the type of the right belonging to the applicant and the existence of the fact of its violation by a specific document or act of the authority in the field of urban planning.
Summarising the above, disputes arising in the sphere of real estate and cadastre, definitely, require the participation of a lawyer, as this direction is complex and requires serious knowledge in various branches of law.
СПИСОК ЛИТЕРАТУРЫ:
1. Samoylova D. Land disputes in Russia and abroad // EZh-Jurist. 2016. № 30;
2. Land Code of the Russian Federation from 25 October 2001 № 136-FZ;
3. Sharno O.I., Chikildina A.Yu. Qualified assistance in resolving disputes related to land use // Legal Concept. 2019. № 1. С. 63-70;
4. Town-planning Code of Russian Federation of 29 December 2004, No. 190-FZ;
5. Romanova O.A. Peculiarities of the work of a lawyer in cases related to urban planning legal relations // Bulletin of O.E. Kutafin University. 2020. № 11. С. 166-173
