What is the main underlying property. What property is considered immovable. Commercial real estate. Types, meaning

Real estate is not always capital buildings. And buildings in general are also not necessarily real estate. And movable property can be not only a car. What are the types of real estate? To fully understand the terminology of legal and regulatory acts, you need to know the real meanings of the concepts of both real estate and movable property. Features of the property are identified by many characteristics.

More about movable and immovable

The legislation of the Russian Federation does not provide a clear definition of the terms movable and immovable property. And this is not a mistake in the legal system, the reason is different: these concepts can move from one to another. Sometimes, in order to figure out what applies to a particular type of property, you need the help of lawyers. Movable property under Art. 130 of the Civil Code of the Russian Federation - everything that is not real estate. That is, first of all, it is:

any banknotes;
most vehicles;
rare and museum items;
collectibles;
weapon;
temporary outlets;
some large equipment.

In some cases, a bathhouse and a garage may have the status of movable things. From the point of view of insurance companies, such a building is real estate. The list also includes promissory notes and shares in business. But basically the designation of movable things comes down to the fact that:

their movement does not change the structure of these things;
things are completely or partially interchangeable, as they are not unique;
often there is no need to obtain state registration for a thing;
Many movables are exempt from property tax.

In controversial issues, especially when dividing property, due to the special characteristics of the thing, any item listed can be rethought.

What is a property

Regarding what real estate is, the existing formulations are much more precise. They are also vague, but less often than the definitions of movable property. The object of immovable property according to the Civil Code:

residential and non-residential buildings;
Earth;
bowels of the earth;
reservoirs;
ships - air, space, sea.

That is, first of all, everything that is inseparable from the earth and cannot be transferred without damage to the thing itself, so that it will no longer be possible to use it. Dachas, apartments, sheds, houses or outbuildings, land and even water bodies classified as real estate, albeit with a stretch, do not need to be clarified. But the bowels of the earth, minerals and underground keys, are legally assigned to the state and are classified as real estate; mining companies are referred to as subsoil lessees.

An ordinary citizen has nothing to do with any courts, but such an object can be obtained through various civil obligations and rights - inheritance or winning the lottery. Vessels, according to the Civil Code of the Russian Federation, fall under the types of real estate as having premises in their design suitable for permanent and temporary residence - cabins, compartments, etc. and must have state registration.

It is one of the most important features of civil society. Ownership of houses, apartments, office premises and plots is registered with the relevant authorities, thus forming cadastral registration. Real estate is usually associated with residential properties, but the range of this category of property is much wider. In addition to the main varieties, there are separate groups of property, the positioning of which often causes difficulties in assessing the market value. Nevertheless, legal practice has developed a set of parameters by which real estate can be relatively accurately classified. The concept and types of this kind of property will help to identify the features of financial and residential facilities, as well as determine their investment attractiveness, which is important. But first you need to figure out which objects, in principle, can fit the definition of real estate.

Features of real estate objects

Experts identify three basic features by which a property can be distinguished - stationarity, material value and durability. Perhaps the main feature is stationarity, from which the name of this type of property as such comes from. This characteristic means that the object has an inseparable physical connection with the earth's surface. That is, the property is constantly in one place and does not involve moving without destructive processes. Although the most common types of real estate in the Russian Federation do correspond to this feature, this property is gradually softening and exceptions are appearing. At the very least, some kind of boundary categories are emerging, having some of the properties inherent in real estate in its traditional sense.

The next sign is materiality. To begin with, it is worth noting that any object of such property can be assessed in terms of physical characteristics. This can be data on area, location, quality of structures and materials. Taken together, this information gives an idea of the possible benefits of the object - accordingly, its material value arises. As for durability, initially this characteristic is conditional, so the law clarifies it. So, in accordance with the regulations, all types of real estate can also be divided into 6 groups depending on the technical condition and operational resource. The minimum life of real estate objects is 15 years, and the maximum is 150 years.

Property classifications

There are many approaches to the division of real estate on various grounds. For example, realtors who work with apartments put such parameters as the prestige of the area, the number of rooms, the number of floors and other characteristics in the first place. A slightly different approach is applied if it is planned to classify types of real estate intended for commercial use. In this case, the division takes place primarily in terms of liquidity and profitability. However, the physical properties of such objects and their remoteness from the city center to a large extent determine their investment attractiveness in the market.

If we approach the division of property in a broader manner, then the main factor in the classification will be the origin. In particular, the types of real estate objects that were created by nature, as well as with the participation of man, are distinguished. There is a third category - this is real estate, which was created by the efforts of people, but in the process of operation implies an inextricable connection with nature. For example, minerals and land plots act as resources from which real estate objects of natural origin are formed. As a rule, they are initially state-owned, but can also be transferred to private ownership.

Main types of real estate

To date, all real estate is divided into three main groups - land, commercial facilities and housing. Each category, in turn, has its own classifications and unique features. For example, it may have a different purpose in terms of operation. We can say that this is the most controversial type of property, which is explained by a wide range of ways to use it. On the other hand, residential and commercial properties of this kind have their own unique features. For example, such objects may have different degrees of readiness for operation. The property is irrelevant. It can be concluded that the characteristics, types and features of real estate are closely interrelated and help in defining each other. But, if you become more familiar with the differences between each of the main types of real estate, then their specific features will become more pronounced. It is also worth noting that one type of property can be transferred to another. For example, an agricultural plot can be reclassified as land for individual construction, and over time, a country house will appear in its place.

Residential Properties

To begin with, it is necessary to determine what objects can be called housing. As a rule, this concept means a building with amenities that ensure human habitation. Usually they differ in technical and operational characteristics. Taken together, the properties of the premises of apartments and houses make it possible to distinguish them in the category of elite, typical, business real estate, etc. Accordingly, the cost varies depending on whether the property belongs to one of the indicated groups. It also provides for the division of housing into urban and suburban. In the first case, we are usually talking about apartments in separate houses and complexes, and in the second - about cottages. There are also border facilities. For example, townhouses are being built in cities designed to accommodate several families. Although such objects retain the features of city apartments, the owners can have an individual entrance and their own plot near the house.

Separately, it is worth considering a condominium - this is a type of housing that can be included in different categories. To understand the features of this property, it is worth dividing the types of real estate into individual and general. A condominium is distinguished by the possibility of containing several houses or part of one building, the premises in which will be used by different owners. Also, this type of real estate may include the presence of land plots. That is, in this case, one object may contain real estate units of different classes, which are combined into a common infrastructure.

Types of commercial real estate

In the real estate market, four main categories of commercial properties are usually distinguished, which differ in the nature of their operation. These are retail, warehouse, office and industrial premises or complexes of areas. Often, one object includes several units of real estate from different categories at once. For example, the retail area is connected to the premises intended for the storage of goods. The common characteristic that unites these categories of objects is the focus on extracting material benefits. We can say that these are types of financial real estate that in one way or another contribute to the accumulation of funds. For example, production complexes are designed for the manufacture of products, warehouses are used to store products ready for sale or further logistics circulation, and retail facilities directly sell goods. Separately, it is worth highlighting office premises that can perform various tasks from the provision of certain services to the performance of managerial functions - for example, at the same industrial and commercial facilities. Residential real estate can also be considered commercial in some cases. For example, if the owner rents out the area, thus deriving financial profit.

Land as a type of real estate

As noted above, land is a property of natural origin and can be considered as underlying property. Depending on what legal status a particular site has, its intended purpose is determined. The most widespread types of real estate intended for agricultural use. In particular, land is allocated for pastures, arable lands, hayfields, planting of perennial plantations, etc. Plots designed for farming cannot be used, for example, for planting cultivated plants, but barns, bathhouses, hayfields can be built on them and other household infrastructure facilities. The category of summer cottages is also quite popular. They differ in that the owner has the right to build small houses on their area. But such buildings do not belong to residential facilities, that is, they are not designed for permanent residence. These buildings are also subject to certain restrictions in terms of communication support.

Separately, there is a category of land plots intended for individual construction. If agricultural types of real estate cannot be built up with residential buildings, then objects for individual housing construction allow the construction of private houses and cottages. It is noteworthy that many modern cottage settlements are organized on the former, which today have acquired the status of individual housing construction. A specific and rare group includes sites for scientific stations. Research complexes and bases are organized on such lands.

Mobile real estate

This is exactly the case when one can speak of an exception to the rules in the management of real estate properties as such. Mobile objects that belong to real estate are represented by the so-called mobile homes. As a full-fledged object of real estate, such structures have recently become widespread in the United States. These types of real estate are less popular in Russia, but they are also used to equip villages located on remote construction sites. The advantages of mobile homes include low cost, undemanding in choosing a construction site, as well as versatility in operation. Among the shortcomings, there is a low level of comfort, average durability and unreliability. This is explained by the fact that the majority of such structures are still not calculated for permanent residence.

There are also legal subtleties that do not in every case allow us to consider such structures as full-fledged real estate. The concept and types of such objects may vary depending on the method of the technical device. So, the execution of documents for the right of ownership today is allowed for mobile structures, which are based on the foundation within the boundaries of the site owned by the owner of the object. In some cases, registration in the "home on wheels" is also allowed. Of course, the arrangement of the foundation for such a structure makes one forget about the properties of mobility, although, if desired, the user can move the house to another place with minimal losses. This category also partially includes sea vessels, which also belong to state real estate, although in fact they have the ability to move.

The economic essence of real estate

Purposeful extraction of material benefits is more characteristic of financial real estate. This is the meaning of the existence of such objects. Commercial types of real estate, its investment properties and characteristics are determined by attractiveness in the market. That is, indicators that determine the liquidity of the object and its possible profitability in the eyes of a potential buyer or tenant. The construction of an apartment building is also an investment project and belongs to the field of commercial real estate.

Specialists in this field are engaged in architectural planning, technical design of the house and carry out its direct construction, focusing on future investment attractiveness. But even after the completion of construction, the commissioning of the building and the transition of apartments to the status of residential real estate, investment characteristics are preserved. For example, even the first client of a company that sells the living space of this house may consider the purchase not as a place for their future residence, but as an instrument of financial investment with subsequent profit from the sale.

Types of real estate ownership

The most common form of real estate ownership is private ownership. A document confirming this right allows a specific person to dispose of a certain real estate object at his own discretion. At the same time, there are different types of property ownership in terms of private ownership. Thus, individual and common property are distinguished. The second variety takes place in those cases when one inseparable object implies the presence of two or more owners. In this context, it is worth moving to a joint form of ownership, which is also considered as common, but without allocating specific shares. If it is supposed to divide the property between the owners, then we can talk about another form of ownership - shared. Common property involves the formation of single shares between the owners, but their specific size is not specified. This may be the apartment of the spouses, which was purchased in marriage for common financial resources.

Conclusion

Still, the basis for dividing real estate objects into different types and categories is the nature of use. Based on the specifics of the future destination, architects and builders form the operational qualities of the object, which are laid at the stage of project development and are already implemented at the work site. There are also special legal properties that different types of real estate have. Civil law establishes separate conditions for maintenance, operation and market transactions for different categories of real estate. For example, taxation may apply differently to residential and commercial real estate. Moreover, even within certain categories, differentiation is often observed in approaches to the formation of regulatory documents regarding the maintenance and service of certain objects. This applies, in particular, to compliance with sanitary standards, public service rules, fire safety issues, etc.

The concept of real estate in Russia is defined in the Civil Code. Article 130 states that real estate includes land plots, subsoil plots and all objects, the movement of which is impossible without disproportionate damage to their purpose: buildings, structures, objects of construction in progress.

The postulate states that the emergence of ownership of real estate, the transfer and termination of such rights are subject to state registration.

What is real estate

To classify a thing as real estate, one should be guided by the presence of its characteristic features:

Strong connection with the earth. It is located on its surface or in the earth's crust.
Built for a long period of operation.
Has individual material characteristics.
Cannot be moved without destroying at least part of the property, significantly affecting its value.

As a rule, real estate has the following typical properties:

Provides long-term benefits to homeowners, or is used to run a business.
If desired, the owner is transferred to a long-term lease or mortgage.
It is firmly established, built on the ground, with the exception of natural disasters and wars, it is not subject to rapid destruction or relocation to another place.

For the convenience of state registration, accounting and legal actions with expensive material values, according to Russian legislation, air, sea, river vessels and space objects are also classified as immovable things.

Groups and types of real estate

According to the totality of inherent features, the following groups of assets are divided:

Land and subsoil (surface areas in the earth's crust, ponds, reservoirs and perennial plantations).
Housing (individual and multi-apartment houses, cottages).
Non-residential premises (buildings intended for the social needs of people and commercial use).
Other buildings and structures (engineering networks - gas pipelines, water pipelines, power lines and other fundamental durable objects).

Real estate includes inventory units put into operation, under reconstruction or major repairs, and objects of construction in progress.

For inventory and legal purposes, separate simple(separate objects of immovable things) and complex(integral property complexes - workshop, plant, mine).

According to the form of ownership, real estate is divided into private and public law.

According to the nature of use and legal classification, real estate is divided, intended:

For housing needs.
For public purposes.
For entrepreneurship.
For use in agriculture.

A separate group of immovable things is not subject to sale, lease, donation and other legal actions: cultural and historical values and other state-appointed objects.

Differences between movable and immovable things

Movable things do not contain all the necessary features of real estate and, as a result, transactions with them are not subject to state registration.

Example 1: there is a trade pavilion in the area of public transport stop. It received a temporary trade permit from local authorities for a period of 3 years. The pavilion was built from panels without the construction of a capital foundation. Under separate contracts, communications were temporarily carried out: electricity, water.

Question: Does this building belong to the property?

Answer: does not apply, since it does not have a number of essential features of real estate:

Not inextricably linked to the earth.
Not installed for long-term use and can be moved to another location without significant economic loss.

Example 2: on the territory of the mine site, a locksmith's workshop and household premises were built from chipboard and sip panels, they were supplied with electricity and water. In fact, these facilities have been in use for five years.

Question: are they real estate?

Answer: no. Despite the long service life, no land plot was allocated for these facilities, no land lease agreement was concluded. In this regard, these buildings should be attributed to temporary non-titular structures erected for the implementation of mine construction and coal mining.

How strong is the connection to the earth

In accordance with the current norms of Russian legislation, three groups of real estate should be distinguished:

Ordinary objects inextricably linked to the earth.
Complex immovables-CEC enterprises.
Special real estate - sea, river and aircraft, space objects.

The requirements for the need to link to a specific land plot, for obvious reasons, do not apply to things of the third group.

An integral property complex is tied to a specific piece of land, but its individual inventory units can be moved.

For the first group, a strong connection with the earth is a prerequisite.

Conducting real estate transactions requires accuracy, understanding and knowledge of certain legal norms. Therefore, business entities, ordinary people and other subjects of law should carefully and deliberately perform actions with immovable things.

Article 130 of the Civil Code of the Russian Federation deals with immovable and movable things. According to the article, there are several types of real estate objects:

Plots of land, subsoil plots, as well as everything that is firmly connected with the earth. The legislator included here buildings, structures, objects of construction in progress. A distinctive feature is that these objects cannot be moved without disproportionate damage to their purpose (paragraph 1, clause 1, article 130 of the Civil Code of the Russian Federation).
Housing, non-residential premises, as well as parking spaces (places for placing vehicles), if the boundaries of such premises, parts of buildings or structures are described in accordance with the requirements of the law on cadastral registration (paragraph 3, clause 1, article 130 of the Civil Code of the Russian Federation).
Aircraft, sea vessels, inland navigation vessels, which are subject to state registration. Such objects were classified in this category by virtue of the law, and not by their nature. The article indicated that other property may also belong to the same category under the law (paragraph 2, clause 1, article 130 of the Civil Code of the Russian Federation).

Thus, in the law, the definition of a real estate object is connected with the concept of an immovable thing. If the property does not belong to the first three categories, it is recognized as movable (clause 2, article 130 of the Civil Code of the Russian Federation).

Parking spaces were added to one of the categories last year. In order for the owner to obtain ownership of a parking space, the boundaries of such a place must be marked:

in floor plan
physically with appropriate markup.

Types of real estate

Our Civil Code highlights the concept of real estate by virtue of law and real estate by virtue of nature. Art. 130 of the Civil Code contains such an indication that, if the legislator wishes, he can, in principle, declare as an immovable thing absolutely any object that can physically be movable, for example, sea, aircraft, inland waterway vessels were declared at one time by our legislator real estate.

Real estate objects by nature are land plots, buildings, structures and other objects that are inextricably linked with a land plot. Real estate objects, by virtue of nature, are very clearly divided into two types: natural real estate, which arose on its own, primarily land plots and man-made real estate: buildings, structures that are installed on the site, or are built under the site, this is artificial real estate.

Registration of real estate objects in USRN

It is necessary to formalize the right of ownership in order to be able to use an object that belongs to real estate, including making certain transactions with it. According to the law, the rights to such property must be registered (Article 131 of the Civil Code of the Russian Federation). Register the emergence of such a right, any changes or restrictions, transfer or termination. The mandatory registration requirement applies to the right to:

ownership of the property;
economic management;
operational management;
lifetime inheritable possession;
permanent use;
of a different nature in the case of a direct requirement of the law.

In addition, they register a mortgage and (Article 131 of the Civil Code of the Russian Federation). Registration is carried out by Rosreestr, information about the object and rights to it is recorded in the USRN (see law No. 218-FZ on registration of real estate).

Before acquiring such an object or renting it, check according to the USRN:

who is the owner, that is, whether the counterparty really has the right to make transactions with this property;
What are the restrictions on the object? For example, whether there is an easement and whether the object is pledged.

To obtain data from the register, request an extract. Also check if the property is in litigation, inspect the property in person and check for other risks.

RF Armed Forces on types of real estate objects

According to the definition, a real estate object is, in particular, elements that are firmly connected to the land. Based on this wording, some plaintiffs demand recognition of their ownership of atypical objects. For example, we can talk about a fence, an asphalt site, etc. Before changes in the law, a forest or other plantations could be required to be recognized as a real estate object, and then the land under them could be purchased on a preferential basis. The Plenum of the Supreme Court of the Russian Federation in paragraph 38 of Resolution No. 25 of 06/23/15 explained how exactly the norm of Article 130 of the Civil Code of the Russian Federation should be applied in relation to atypical objects.

The court pointed out that a thing is classified as immovable either by virtue of its nature or by virtue of the law. At the same time, for the recognition of property as an object of real estate, registration of the right to it is not required. This allows us to recognize as such an object, for example, an unfinished building. But in order to recognize an unfinished object as immovable, the foundation must at least be completed at the construction site. If we are talking about a piece of land on which an asphalt coating was laid, there are no signs for classifying such an object as immovable. It does not correspond to the characteristics of the building. The Supreme Court of the Russian Federation referred to paragraph 1 of Art. 133 of the Civil Code of the Russian Federation on indivisible things.

In later jurisprudence of the Supreme Court of the Russian Federation, a similar legal position. So, in a dispute over the right to land that the buyer acquired as the owner of the forest, the Supreme Court of the Russian Federation recognized the purchase transaction as void. The object did not meet the characteristics of an immovable thing. At the time of the dispute, the forest was no longer recognized as an independent piece of real estate ().

Updated on 29.11.2017 10:20

Movable property accepted for accounting as an object of fixed assets from January 1, 2013 is not recognized as an object of taxation (subclause 8, clause 4, article 274 of the Tax Code of the Russian Federation). In this regard, it is important for the company to correctly determine the type of acquired object.

The concepts of movable and immovable property are contained in Article 130 of the Civil Code of the Russian Federation. However, this norm does not establish a specific list of such objects, but only a general criterion for classifying property as real estate. In particular, real estate includes land plots, subsoil plots and everything that is firmly connected with land. That is, objects that cannot be moved without disproportionate damage to their purpose, including buildings, structures, construction in progress (clause 1, article 130 of the Civil Code of the Russian Federation).

In practice, this wording causes controversy in relation to a wide range of objects - shopping pavilions, hangars, extensions to buildings, warehouses, car washes and parking lots, gas stations, paved areas, etc. In addition, the courts point out that the connection of an object with the land is not the only a sign by which it can be classified as real estate (see sidebar on p. 34). And this issue must be resolved taking into account all documents related to the disputed property (Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of December 28, 06 No. A43-19271 / 2005-12-644).

Let us consider what main criteria in practice courts are guided by when classifying an object of fixed assets as movable or immovable property.

Criterion 1. Ability to move the fixed asset without prejudice to its purpose

A strong connection of an object with the land is the main sign for classifying it as real estate (clause 1, article 130 of the Civil Code of the Russian Federation). Therefore, the courts, first of all, based on the submitted documents, assess whether it is possible to move the disputed object without prejudice to its purpose.

For example, the Federal Antimonopoly Service of the Volga District considered a mini-pavilion as a controversial object. In accordance with the technical description of the structural elements, this pavilion is located on a columnar foundation made of monolithic concrete, has plasterboard walls and is lined with siding on the outside. The interframe space of the pavilion is filled with effective insulation, the roof is made of galvanized iron, the windows are made of metal-plastic bags. At the same time, the pavilion is connected to sewerage, water supply and electric city networks. As a result, the court found that the disputed object is not real estate in terms of its physical characteristics (decree No. A12-20796/2010 dated February 14, 2012).

In another case, an open warehouse of metal molds, equipped with a KK20-32 gantry crane with crane runways, acted as a disputed object. The object was a temporary structure on a crushed stone base with prefabricated reinforced concrete tracks "with mounted rails 94 meters long" for storing metal molds. The Federal Antimonopoly Service of the Volga-Vyatka District indicated that all elements of such an object can be dismantled without significant costs and easily installed elsewhere. As a result, the court came to the conclusion that the property does not belong to immovable property (decree No. A79-4382/2006 of November 28, 2006).

Capital construction objects do not include temporary buildings, kiosks, sheds, etc. (clause 10, article 1 and subclause 2, clause 17, article 51 of the Town Planning Code of the Russian Federation)

The Federal Antimonopoly Service of the West Siberian District also considered the dispute, the decision of which depended on whether the disputed object was real estate. The court pointed out that a 0.16 km high voltage transmission line is not real estate, since it is possible to move the cable line without disproportionate damage to its purpose (decree No. Ф04-4989/2007 of 01.08.07 (36585-А70-24)).

Reference

Acts of municipalities on capital construction will help qualify the disputed object

Local laws will help determine the qualifications of the company's facility. For example, Decree of the Government of Moscow No. 636-PP dated November 13, 2012 approved the procedure for placement and installation of objects that are not capital construction objects on the territory of the city of Moscow. The document lists non-capital facilities that can be placed in the city at the expense of non-budgetary sources. These include, in particular:

Flat parking (platforms for cars without foundations);

Lighting equipment without foundations and underground utilities;

Fountains with the installation of enclosing structures for hydraulic systems with a depth of up to 0.5 m;

Objects of a modular type with a total area of the base up to 25 sq. m, including connection to power supply networks and organization of bases with a depth of up to 0.4 m (without foundations and organization of connection to engineering and technical networks of water supply, sewerage, gas and heat supply);

Open areas for placing containers for collecting construction and demolition waste, open areas for soil, located for the period of work related to the organization of construction, reconstruction, overhaul of capital construction facilities (without special coating and drainage);

Production, storage, auxiliary structures without foundations (including all-transport, container type, collapsible structures), erected for the period of construction, reconstruction, overhaul of capital construction projects

Criterion 2. Collapsible nature of the structure of the facility

In fact, this is a consequence of the previous criterion, because the design features of the object determine whether it can be dismantled without causing damage (see box below).

For example, the Federal Antimonopoly Service of the Volga District classified a trade and information kiosk as movable property based on its design. Namely: the walls of the object and their exterior finish were made of metal profiles sheathed with chipboard and siding, the attic flooring was made of chipboard with insulation, the roof was finished with metal tiles, the interior decoration was siding, the floors were wooden, the stained-glass windows were glazed. The building had no foundation. As a result, the court indicated that the collapsible nature of the kiosk allows dismantling the object and moving it to another site without causing damage to its purpose (decree No. A57-2919/2008 dated February 16, 2009).

On a similar basis, the courts classified the following objects as movable property:

Modular building, which is a mobile collapsible object (Decree of the Federal Antimonopoly Service of the Moscow District dated 21.08.12 No. A40-132980 / 11-116-357);
- trading rows of modular pavilions, which are lightweight collapsible structures, do not have a foundation, their walls and ceilings are built of metal structures, the floors are wooden, the roof is made of metal tiles (Decree of the Federal Antimonopoly Service of the Moscow District dated February 13, 2008 No. KG-A41 / 159 -08);
- household and industrial buildings made of light metal structures, including panels and corrugated board with insulation (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of December 28, 2006 No. A43-19271 / 2005-12-644, upheld by the decision of the Supreme Arbitration Court of the Russian Federation of February 21, 2007 No. 1941/07);
- a metal module designed for storage of bulk materials, which consists of demountable structures and equipment (girders, beams, crossbars, metal panels welded in some places), which is installed on a lightweight concrete foundation and does not have a heating system and other communications (FAS resolution Volga-Vyatka District dated May 17, 06 No. A11-6035 / 2005-K2-27 / 225).

note

A complex object consisting of several structures, the court may recognize as movable property

Despite the fact that some structures are structurally complex objects, courts often recognize them as movable property, provided that each of the elements of such objects can be safely dismantled and moved to another place, or if the structures were not originally created as real estate.

So, in the resolution of 09.06.08 No. A17-5883 / 2007, the FAS of the Volga-Vyatka District indicated that the parking lot, consisting of premises for security, a toilet, a reinforced concrete fence, metal gates and gravel, does not apply to real estate, since all the listed objects are temporary structures, they can be moved to another location.

The Federal Antimonopoly Service of the Far Eastern District recognized an automatic mini-gas station as movable property for the following reasons. The disputed object was a factory product, consisting of a double-walled reservoir located underground, divided into compartments for storing fuel, collecting stormwater and an emergency strait. The tank was located on a slab, which serves as the foundation for the island, fuel dispensers and a canopy. Fastening to the foundation plate was carried out by bolted connections. The operation of the mini-gas station was carried out fully automatically, which eliminated the need to build an operator room, supply communications for water supply, sewerage and heat supply (Decree No. Ф03-4475/2009 dated 10.09.09)

Criterion 3. The presence of the foundation of the object

An object is not real estate if it is a collapsible structure that can be dismantled without disproportionate damage to its purpose and mounted elsewhere

In practice, the presence of a foundation at an object is considered by the courts in conjunction with its other characteristics. Practice shows that even if a fixed asset has a foundation, courts often do not recognize it as real estate.

Thus, the Federal Antimonopoly Service of the East Siberian District considered a temporary construction on a capital foundation as a controversial object. The court noted that the installation of a temporary structure on a permanent foundation does not mean that such a structure is related to real estate. In turn, the erection of a concrete foundation cannot be considered as proof of the construction of a permanent building, since this kind of foundation is often also used for the construction of temporary structures (Decree of 13.03.12 No. A33-737 / 2011).

The Federal Antimonopoly Service of the Far Eastern District noted that the presence of a foundation near the pavilion (“rubble and metal poles”) does not unambiguously indicate a strong connection of such an object with the ground, which makes it impossible to move it without prejudice to its purpose (Decree No. Ф03-5938/2011 dated 06.12.11, upheld by the decision of the Supreme Arbitration Court of the Russian Federation dated April 5, 2012 No. VAC-3987/12).

Note that in some cases the foundation can be moved with a crane to another location. This conclusion was made by the Federal Antimonopoly Service of the Far Eastern District in relation to the foundation, which is a concrete slab with a laying depth of up to 1 m, framed with a concrete screed, laid on a gravel bed. According to the work production technology, the structure of the object itself (warehouse-shop) can be disassembled without violating its integrity and functional purpose (Decree No. F03-A51 / 06-1 / 4367 dated 05.12.06, 28.11.2006).

In another case, the court came to the conclusion that the road slabs on which the disputed structure was installed are not the foundation, which means that the objects do not have an essential feature of real estate - a strong connection with the land (Decree of the Federal Antimonopoly Service of the West Siberian District of November 15, 2007 No. Ф04 -6984/2007(38993-A81-9)).

Practice shows that, in general, when deciding whether to classify an object that has a foundation as movable or immovable property, the courts take into account the design features of the object as a whole. In particular, according to the arbitrators, the following objects do not meet the characteristics of real estate:

Car wash made of prefabricated structures with a monolithic reinforced concrete foundation (Decree of the Federal Antimonopoly Service of the Moscow District dated October 15, 2012 No. A40-144062 / 10-64-1276);
- trade kiosks, consisting of a metal frame and installed on a solid foundation (Resolution of the Federal Antimonopoly Service of the North Caucasus District of March 18, 2008 No. Ф08-1203/08);
- the trading pavilion, which is a lightweight welded structure, has a foundation, but can be transported by any type of transport (Decree of the Federal Antimonopoly Service of the West Siberian District dated November 18, 2008 No. Ф04-7013 / 2008 (15948-А46-9)).

According to the courts, the presence of a poured concrete foundation at the disputed object does not allow it to be unambiguously attributed to a real estate object.

Thus, based on a combination of technical criteria (the presence of a foundation, its “binding” to the ground, the connection to the object of stationary communications, the belonging of the building to capital), the court may recognize the disputed object as real estate. For example, such a decision was made by the Federal Antimonopoly Service of the Urals District in Resolution No. Ф09-4441/07-С6 dated January 15, 2008 in relation to the security post building.

Criterion 4. Availability of fixed or temporary communications connected to the property - water supply, heat supply or sewerage

Practice shows that it matters for the court whether the object is connected to the communications according to a temporary scheme, or whether they are stationary. At the same time, in this situation, the courts also take into account other signs of classifying the object as movable or immovable property.

The technical criteria for classifying property as real estate is the presence of stationary communications, as well as the belonging of the building to a capital structure

So, the Federal Antimonopoly Service of the West Siberian District investigated whether the two-story building of the cafe was real estate. The owner of the building tried to prove that the cafe is a temporary structure for the period of the land lease agreement and is a one-story building with built-in mezzanines to accommodate visitors. According to the building qualification, mezzanines built inside the building are not considered a floor.

Nevertheless, the court did not agree with the plaintiff's arguments and qualified the disputed object as a real estate object. The fact is that the installation of the cafe was carried out on a foundation specially erected for it, firmly connected to the ground, stationary engineering networks connected to the existing city power supply networks were connected to the structure. In addition, water supply, heat supply and sewerage were connected (Decree of the Federal Antimonopoly Service of the West Siberian District dated February 25, 2011 No. A27-24716 / 2009, upheld by the decision of the Supreme Arbitration Court of the Russian Federation dated April 19, 2011 No. VAS-5174/11).

Note that in this case, the court of first instance recognized the disputed object as movable property. This indicates the non-obviousness of classifying such objects as real estate.

Another example is the assignment of the security post building to a real estate object. One of the reasons for this decision was the presence of fixed communications connected to it (Decree of the Federal Antimonopoly Service of the Urals District dated January 15, 08 No. F09-4441 / 07-C6 No. A60-865 / 2007).

Criterion 5. Purpose of the land plot on which the property is located

The courts point out that one of the signs by which an object can be classified as real estate is the fact whether it was originally created as real estate in the manner prescribed by law and other legal acts, and also whether its owner received the necessary permits in compliance with urban planning norms (decree of the Ninth Arbitration Court of Appeal of October 21, 2008 No. 09AP-7019/2007-GK). One of the reasons for recognizing an object as movable property is the erection of a building on a site allocated for the construction of temporary structures (see sidebar on p. 38).

Thus, in one of the cases, a complex of structures erected to protect the city from floods, 25.4 km long, consisting of earthen and stone dams, two navigable structures, culverts, as well as a road through protective structures, was considered. Despite the capital and the overall colossal size of the buildings, the Federal Antimonopoly Service of the North-Western District found that the disputed object is a temporary structure and does not apply to real estate. The fact is that the court was not presented with documents confirming the provision of a land plot for the construction of these structures precisely as a real estate object (decree of 19.03.08 No. A56-48327 / 2006).

case from practice

The exhibition copy of the cottage is not a real estate object, as it is located on the site only for the duration of the exhibition

The Federal Antimonopoly Service of the North-Western District, in its resolution of June 25, 2007 No. A56-25536 / 2006, considered the following situation. During the exhibition, the organization purchased an exhibition copy of the cottage. The object was located on a land plot for temporary use, on which it is only possible to place structures for the exhibition.

Under the terms of the lease agreement, after the expiration of the term of use, the land plot is released from the tenant's property, and the cottage is moved to another place. On this basis, the court concluded that the disputed object is not a real estate object, since it can be moved to another place without disproportionate damage to its purpose.

The Federal Antimonopoly Service of the East Siberian District considered a parking lot as a controversial object. The city administration provided the entrepreneur with a land plot for the construction of an open parking lot for vehicles. In the act of choosing a land plot, there is a description of the object proposed for construction: coating - asphalt concrete, external lighting around the perimeter, light, metal fencing, watchman's house - a non-stationary structure of a collapsible structure with a facade finish of galvanized metal with a polymer coating. The land plot was not allocated for the construction of a capital construction object on it. As a result, the court ruled that the parking lot does not meet the characteristics of an immovable property, as it is of a temporary nature, since it was built on a land plot provided to the entrepreneur for temporary use for the period of the lease (decree No. A78-8890 / 2011 dated 16.10.12).

The court may recognize an object as real estate if it was originally created as a real estate object with the necessary permits and compliance with urban planning norms and rules

There is also extensive judicial practice, according to which objects are not recognized as real estate if they are built on a site allocated by the administration of the city (village) specifically for the placement of a temporary object (resolution of the Federal Antimonopoly Service of the North Caucasus dated 15.10.12 No. A63-9313 / 2011 and the Central dated 23.07.07 No. А62-4894/06 districts).

Criterion 6. Availability of the BTI technical passport for the property

For any building recognized as an object of capital construction, a BTI technical passport is issued. However, in practice, situations often arise when the object for which such a document is issued is subsequently recognized by the court as movable property.

The fact is that, within the meaning of paragraph 1 of Article 130 of the Civil Code of the Russian Federation, real estate is a legal, not a construction category, therefore, technical passports for objects are not recognized as title documents, do not serve as evidence of the creation of such objects as real estate, but contain only a description of their actual state . In particular, the Presidium of the Moscow Regional Court came to this conclusion in its decision of December 3, 2008 No. 626. Other courts also support this position.

For example, the Federal Antimonopoly Service of the Far Eastern District pointed out that the presence of a technical passport does not indicate that the structure, in respect of which technical accounting and inventory has been carried out, is real estate. It was about trading pavilions on the foundation (Decree No. Ф03-5938/2011 dated 06.12.11).

The Federal Antimonopoly Service of the Volga Region came to the conclusion that sites covered with asphalt and paved with concrete paving stones cannot be considered as an independent real estate object. The fact that a technical passport has been drawn up for a concreted site and a cadastral number has been assigned to it is not in itself an unconditional basis for classifying this object as real estate (Decree No. A65-5399/2011 of 10.07.12).

In another dispute, the Federal Antimonopoly Service of the Volga-Vyatka District recognized a canopy installed on the side walls of a shopping center as movable property, despite the presence of a technical passport for such an object (Decree No. A38-2557 / 2010 of December 22, 2011).

There is no consensus in the courts whether asphalt pavement is real estate

The Federal Antimonopoly Service of the Volga-Vyatka District recognized the canopy installed on the side walls of the shopping center as movable property, despite the fact that the object has a technical passport

In practice, a large number of court cases are related to the qualification of paved areas as movable or immovable property. Often, companies take them into account as separate fixed assets when organizing parking spaces or placing production facilities (hangars, warehouses) on them. The opinion of the arbitral tribunals on this issue was divided.

In some decisions, paved areas were recognized as real estate (for example, the decisions of the Federal Antimonopoly Service of the Central District of July 30, 2010 No. A48-3663 / 08-1 and the Volga Region of December 7, 2009 No. A57-19930 / 2007 districts). However, the Presidium of the Moscow Regional Court came to the opposite conclusion. The court pointed out that asphalt concrete paving does not apply to real estate, since it is actually landscaping of the territory (decree of 03.12.08 No. 626).

The Federal Antimonopoly Service of the Urals District, considering a similar dispute, sent the case for a new trial, indicating that the question of whether a particular property is immovable should be decided taking into account the purpose of this property, its technical characteristics, as well as the circumstances associated with its creation and obtaining permission for the construction of these facilities. In addition, the court pointed out that “in the technical opinion, containing the conclusion that asphalt sites are capital construction projects, there is no proper regulatory and technical justification and references to SNiPs. The said conclusion contains only a description of the objects, but does not indicate on what grounds (criteria, characteristics) asphalt concrete sites are classified as capital construction objects ”(Decree No. Ф09-1349 / 07-С6 dated 10.12.07).

Thus, practice shows that the court's decision on whether the paved area is real estate, in each case, will depend on the specific circumstances of the case.

Artelnykh I. V. Expert of the magazine "Russian Tax Courier"

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