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Starting from January 1, 2017, a new federal law came into force that completely changed the regulatory framework for real estate registration and transactions with it in the Russian Federation - Federal Law No. 218 “On State Registration of Real Estate” dated July 13, 2015. What is part of the premises and how to register a lease, read the article.
Changes in 2019
The changes affected all areas of registration actions and information on real estate contained in the state register. In particular, the real estate register itself has changed - now it is the Unified State Real Estate Register (USRN). It contains information about the cadastral characteristics of objects, and information about registered rights, restrictions on them.
The concepts and formulations related to the theoretical part are concretized and generalized - the concept of a real estate object, types of real estate objects, the features of registration actions with them are established.
As for the part of the premises (building), Federal Law No. 218 defines it neither as a separate real estate object, but as information on the real estate object registered in the USRN, which was entered into it in connection with the registration of restrictions (encumbrances of the object), and also as an object property rights in limited form. This approach needs to be specifically considered, as well as a legal analysis of new rules covering the cadastral registration of part of the premises (buildings) and registration actions in the USR with them.
Expert opinion.The main innovation is the registration of the lease and cadastral registration of part of the premises or building should take place at the same time. Smart Way cadastral engineers in 2019 prepare technical plans and transmit them to the owners for submission along with the lease.
Real estate concept
Art. 1 Federal Law No. 218, the concept of a real estate object is approved — these are land plots, constructions, buildings, parking lots, construction in progress, premises, unified immovable complexes, and other objects whose common feature is a strong connection with the land (their movement is impossible without damaging them purpose), as well as the presence of characteristics that allow you to define objects as an individually defined thing.
Each object that falls under these characteristics is subject to cadastral registration and registration in the USRN. In turn, the Unified State Register of Rights contains all information about real estate in the Russian Federation, which is divided into sections in it.
The USRN sections are as follows: a register of real estate objects (real estate cadastre), a register of rights and restrictions (encumbrances), a register of information on the boundaries of special zones (a register of borders), registry files, cadastral maps, and books for accounting documents.
What is this information for? Moreover, that part of the premises or part of the building, in the sense in which it is now approved by Federal Law No. 218, is not an object, but rather information about the object registered in the USRN. Another part of the premises (building) is an object of property rights, which, for example, can be leased, but it cannot be sold. Why - consider below.
Art. 8 of the Federal Law No. 218 “On State Registration of Real Estate”, information on the property is indicated - information on the part of the property (paragraph 22). Art. 14 of the Federal Law No. 218, it is established that state cadastral registration and registration of rights is carried out simultaneously, in the event of the formation or termination of the existence of a part of the premises (building) to which the registered restrictions (encumbrances) apply, if such restrictions (encumbrances) are subject to state registration.
T.O. part of the premises or part of the building should not be considered as a separate property. In accordance with applicable law, the formation of parts of the property is possible only due to the fact that they are subject to any restrictions. These restrictions can be, for example, rent, easement. If part of the room is a separate object, then it also becomes a room. The same applies to part of the building - its registered part is the premises, but the rented part is precisely the part of the building in accordance with the wording of the Federal Law No. 218.
Opinion of the cadastral engineer.The redevelopment of the premises does not prevent the registration of the lease. How is this possible? There are hundreds of technical plans with redevelopment in the portfolio of Smart Way, call us, we can help.
Distinctive characteristics of a part of a room (building)
The practice of cadastral registration of premises, buildings and their parts is replete with variety and controversial situations with cadastral registration authorities. All this is caused by several factors: the "dampness" of the regulatory framework, the lack of interaction between lawmakers and cadastral engineers (cadastral practices), errors by cadastral engineers and real estate registrars, and the diverse law enforcement practices of cadastral registration authorities (Cadastral Chambers).
In more detail, the law enforcement practice on refusals in cadastral registration was formulated by the courts in the document: “Review of judicial practice in cases involving the challenge of refusal to carry out cadastral registration (approved by the Presidium of the Supreme Court of the Russian Federation on November 30, 2016).” But this applies to the application of Federal Law No. 221 and Federal Law No. 122, as well as government decrees in force until 01/01/2017. In 2017-2018, the position of the courts regarding the need to prepare a technical plan for the registration of a lease agreement affirmatively complies with Federal Law No. 218 - a technical plan for part of the premises is required when registering a lease. Rosreestr’s refusal to register a lease without providing an appropriate technical plan is a lawful response of a state body to the applicant’s incorrectly executed documents.
It should be clarified that part of the premises (building), so that it can be leased, must be taken into account in the USRN on the basis of the technical plan. From January 01, 2017, part accounting takes place exclusively simultaneously with the registration of the lease (or other encumbrance on the object). Earlier, until 01/01/2017, it was possible to divide the premises or building into parts in advance and assign them temporary cadastral numbers. Now this procedure has been abolished - part of the premises can be registered only simultaneously with the lease for it. If the owner of the building (room) wants to sell part of it, then for such actions it is required to allocate it as a separate real estate object - a room. Such an action also requires the preparation of a technical plan and registration of the right to the selected object.
It is logical that the allocation of a part of a real estate object as a separate object (with a new cadastral number) presupposes a more strict procedure and the coincidence of all necessary characteristics established by law - criteria for isolation and isolation from the main real estate object. This is due to the fact that during its formation the interests of the potential owner should be taken into account: the ability to use the created premises without the need to contact other persons. Also, to select part of the room, the coordinates of the building are needed.
To register with the USRN information about the part of the premises (building), only the desire of the owner of the object for this operation and the compliance of the main property with the statutory requirements are required. A part of a room (building) may even not have walls, the criteria of isolation and isolation are optional (this is a separate article on our website). Part of the premises can be rented for any legal purpose, even for the installation of a trade apparatus. There are no statutory restrictions. Smart Way LLC has extensive experience in the field of cadastral registration, including the registration of parts of premises and buildings for the installation of vending machines, ATMs and other retail outlets (“islands” of trading in a shopping center, expert manicure points). It may seem to some this an insignificant question, but small businesses play an active role in the real estate market, and the conditions of the modern market are pushing small businesses to look for new, more convenient consumer forms of trade.
Floor plan for the technical plan
How to register part of the premises (building) in 2019
Part of the premises or part of the building - how to determine what needs to be done to register a lease for part of the property? This follows from the feature of registered rights to the main property. If the landlord owns the building, the tenant needs to allocate part of the building. If the property is in the premises - part of the premises is allocated.
As mentioned above, Art. 14 of the Federal Law No. 218 “On state registration of real estate” it is established that cadastral registration of a part of a real estate object is carried out together with the registration of rights, in the case when the registration of such rights is mandatory. The need to register a lease is due to the will of the parties and is provided for by the contract itself.
The lease is subject to unconditional registration if it is concluded for a period of more than 1 year. For cadastral registration of part of the premises (building), the preparation of a technical plan that meets the requirements of the new Federal Law No. 218 is required. To implement its requirements, the Government of the Russian Federation adopted a number of resolutions approving the procedure for the production of technical documentation for cadastral registration of all types of real estate. All previously valid regulations have become invalid since 01.01.2017.
When submitting documents for registration of a lease, the lessee or lessor is entitled to apply with a corresponding application. Previously, it was possible to submit documents for cadastral registration of part of the premises (building) having only a draft lease agreement for it. Moreover, a copy of such a project was attached to the documents for cadastral registration. In 2019, we recommend that our customers make a copy of the signed lease agreement in order to “sew” it into the technical plan. In this case, there will be fewer questions from the registrar, and when you take into account part of the room (building), the document on the basis of which this is done will be clearly identified.
In addition to the technical plan, for the cadastral registration of part of the premises in 2019, it will be necessary to provide confirmation of the powers of the signatory (owner of the object), a power of attorney for the representative, a lease agreement in at least 3 copies, a payment for paying the state duty (amount 22,000 for legal entities, 2000 for individuals persons), copies of constituent documents of the legal entity (if the party to the agreement is an organization), title documents for the property, part of which is subject to lease. Depending on the type of property and its features, additional documents may be required. Under the new Federal Law No. 218, it is not necessary to submit a separate application for registration of a lease - it is understood that the interested parties intend to conduct cadastral registration and registration of rights at the same time.
how to draw up a lease
How to apply for cadastral registration of part of the premises and registration of a lease
In order to apply for registration at the Rosreestr (cadastral registration, registration of rights), now you need to visit the Multifunctional Center for Public Services ("My Documents"). Now you can directly contact Rosreestr at just a few addresses, as well as through the Rosreestr website (https://rosreestr.ru/), at least in St. Petersburg and Moscow. You should have a passport, power of attorney or other confirmation of authority and a full set of documents with you.
After the documents are received by the MFC employees, they are sent to Rosreestr. Under the new law No. 218-FZ, sending documents should take no more than 2 business days.
The term of cadastral registration of part of the premises and registration of rent
According to Federal Law No. 218, the term of cadastral registration + registration of rights when submitting documents through the MFC is 12 working days. The term will be reduced if you send documents through the electronic services of Rosreestr and will be 10 working days.
If you are only interested in cadastral registration, then in 2018 the minimum period is 5 working days, if through the MFC - 7 working days.
Expert opinion. The term for the production of the technical plan at Smart Way is 1 business day. We have specially reduced the production time for the convenience of customers and the prompt submission of documents to Rosreestr.
How to draw up a long-term lease
When drawing up a lease, the question often arises, how to take into account the requirements of Rosreestr for registering the contract on the first attempt without making changes?
It is enough to observe a few simple rules:
- The subject of the lease must be clearly spelled out room numbers and area. An example:
2. How to display part of the premises in the contract?
Legally, there are no restrictions on the display of part of the premises in the contract, the parties can independently determine the number and composition of documents attached to the lease. But in cadastral registration there are certain requirements and cadastral engineers must comply with them, they are described in detail in Order of the Ministry of Economic Development of Russia dated 12/18/2015 N 953 “On approval of the technical plan form and requirements for its preparation, the composition of the information contained therein, as well as the declaration form real estate ... ".
Floor plan for the technical plan
3. To register a lease with a set of documents, a technical plan is also submitted.
The technical plan can be ordered from our organization, here is what it looks like:
The cost of the technical plan is determined individually. You can find this out by phone, it will take no more than 30 seconds.
4. The contract must be flashed, it should not contain marks of marking.
How not to do (one of the contracts submitted for registration through Smart Way):
Sample notes in the lease
State duty details for registration
For Moscow for 2019, the following details apply:
The amount payable for legal entities is 22,000 rubles, for individuals - 2,000 rubles.
Note! The person who submits the registration documents pays the state fee. If in the lease agreement one of the persons is an individual entrepreneur (IP), then it is advisable to submit documents to the Rosreestr through IP, since in this case the payment of state duty will be 2000 rubles.
Leaving the application for registration without consideration - returning the application to the applicant
The applicant can receive such a response from the registering authority when the submitted documents do not correspond to the required format: electronic images of documents are not readable (for example), have corrections. Or, in the USRN contains a record of the impossibility to perform registration actions with the object (seized). Also, the return of documents will be in case of failure to submit a payment order on the payment of the state fee.
The law does not provide an obligation to provide a payment, however, its absence is an additional reason for the registering authority to return documents to the applicant. We recommend that you always enclose your payment document in the registration kit.
Suspension of cadastral registration, refusal of cadastral registration of part of the premises
As we said above, when registering part of the premises for rent, there are no strict requirements under the law, however, the authorities of the Rosreestr often substitute concepts and may unreasonably suspend or completely refuse cadastral registration.
Law No. 218 provides for the grounds for refusal of cadastral registration and all of them relate to cases when, when the registration authority was suspended, the person concerned did not eliminate his comments. There are no other grounds in the law. Those. unlike the previous regulations, from January 1, 2017, the applicant cannot be denied cadastral registration or registration of rights immediately after filing the documents - Rosreestr authorities must first provide a suspension and the opportunity to correct these documents.
A period of no more than 3 months is provided for correction. It can be extended for certain reasons.
In 2019, the suspension of registration by the decision of Rosreestr is one of the tools of the registering authority to slow down the registration procedure and keep the submitted documents regulated for suspension for three months without considering them. Increasingly, our organization receives notifications from Rosreestr that according to the Federal Law No. 218, the deadline for considering documents from the initial submission is 10 working days. Upon receipt of the suspension and attempts to eliminate it, the applicants are not sent any notifications from the registration authority - registrars do not even open the additional documents submitted before the expiration of a three-month period. Indeed, Federal Law 218 contains a gap that Rosreestr employees now use to avoid fulfilling their legal duties. We requested clarifications from the Ministry of Economic Development on this topic - the answer was similar to our conclusion. However, it was said that in 2018 amendments to the Federal Law No. 218 will come into force, which, among other things, will regulate the period for checking additional documents after suspension and response to them.
Принятие нового ФЗ №218 «О государственной регистрации недвижимости» и вступление его в силу многое изменило в сфере кадастрового учета и регистрации прав, в том числе для арендаторов и арендодателей помещений. Some improvements have occurred - a shorter registration period, simultaneous registration actions with real estate ... but the desire of registrars to avoid established obligations leads to a violation of the applicants' rights. The systematization of information about objects was often incorrectly performed - the USRN contains a huge number of errors and violations that the registration body does not correct by “good will” and such issues are resolved in court. Increasingly, we are faced with the fact that in the USRN objects are registered as it was supposed to before the adoption of Federal Law No. 218, but registrars require bringing such objects into line with the new law, which is also illegal. In suspensions, they often write various requirements, such as an incorrectly completed technical plan, lack of building coordinates, lack of a contract scan, etc.
Property owners should carefully approach the registration of transactions and rights. The company “Smart Way” is ready to help in solving the most complex problems in the field of real estate accounting and transactions with them - we are ready to use our many years of experience to achieve the goals of our customers.
Smart Way Company prepares technical plans daily and, especially for organizations that have received a suspension in the registration of a lease, we have reduced the time it takes to prepare a technical plan to one business day. We were able to achieve this thanks to extensive practice and established algorithms for working with Rosreestr. The cost and price of the technical plan can be found on one of the phones. Also, we have developed instructions for applicants in order to reduce possible errors when filling out documents:
Call our specialists, we work seven days a week, and consultation is free!