УДК 631.111

РОЛЬ ЗЕМЛЕУСТРОЙСТВА И КАДАСТРА В РЕАЛИЗАЦИИ ГОСУДАРСТВЕННОЙ ЗЕМЕЛЬНОЙ ПОЛИТИКИ: СПЕЦИФИКА РОССИИ

Липски Станислав Анджеевич
Государственный университет по землеустройству
доктор экономических наук, доцент, заведующий кафедрой земельного права

Аннотация
В России развитие землеустройства и земельного кадастра значительно отличаются от большинства европейских государств. В развитии российского землеустройства имеется четыре основных этапа. В его нынешнем понимании землеустройство появились в России в начале ХХ века, во время Столыпинской аграрной реформы. Стадия его наивысшего подъема была в Советский период, а наиболее сильной составляющей тогда - внутрихозяйственная организация территории. Но роль землеустройства как инструмента для управления земельными ресурсами, была уменьшена в результате земельной реформы 90-х годов. После принятия в 2001 году Федерального закона "О землеустройстве", землеустроительные работы были направлены на обследование земельных участков и подготовку материалов для выдачи документов, удостоверяющих права на землю. Но в 2007 году, произошел радикальный пересмотр основных подходов к кадастру, который охватывает теперь практически все типы недвижимости. В результате нормы о межевании земель были исключены из закона о землеустройстве, а земельные участки перестали быть его объектом. В развитии российского кадастра выделено шесть основных этапов. Целью нынешнего этапа является слияние системы кадастра недвижимости и системы государственной регистрации прав нее. Несмотря на трудности и противоречия в развитии землеустройства и кадастра, в постсоветский период, они остаются важными инструментами государственной земельной политики.

THE ROLE OF LAND USE PLANNING AND CADASTER IN THE IMPLEMENTATION OF THE STATE LAND POLICY: THE SPECIFICITY OF RUSSIA

Lipski Stanislav Andzheevich
State University of land use planning
doctor of economic sciences, docent, head of the chair of the land law

Abstract
In Russia the development of land use planning and land cadaster significantly differ from the majority of European States. The development of Russian land use planning has four main stages. The land use planning in its current understanding appeared in Russia in the early twentieth century, during the Stolypin's agrarian reform. The stage highest elevation of land use planning was to the Soviet period and the strongest component was the intracompany organization of the territory. But the role of land use planning as a tool for land management was decreased in the result of land reform 90-s. After adoption in 2001 the Federal law about land use planning, the works on land use planning were focusing on the surveying of land plots and the preparation of materials for the issuance documents of title to land. But in 2007, the radical revision of the basic approaches to land cadaster occurred. Now the cadaster is covering almost all types of the real estate. In result the rules on the surveying of land were eliminated from the law about land use planning and also the land plots ceased to be the object of land use planning. The development of Russian cadaster has six main stages. The purpose of the current phase is a merger of the cadaster system of real estate and the system of state registration of rights by thereto. The land use planning and cadaster, despite the difficulties and inconsistencies in their development in the post-Soviet period, remain the important tools of the state land policy.

Keywords: cadaster of real estate, land cadaster, land plots, land use planning, law, reform, state registration of rights


Рубрика: Общая рубрика

Библиографическая ссылка на статью:
Липски С.А. The role of land use planning and cadaster in the implementation of the state land policy: the specificity of Russia // Сельское, лесное и водное хозяйство. 2014. № 4 [Электронный ресурс]. URL: http://agro.snauka.ru/2014/04/1372 (дата обращения: 29.04.2017).

INTRODUCTION

In Russia, the land use planning and land cadaster always been key tools of the implementation of the state land policy.

So, “Piscovye land surveying” or “Piscovye descriptions” (scribes – Piscy were doing such works) were tools for fixing lands together with serfs for landlords. The Stolypin’s reform destroyed the peasant community. This reform had included measures by land use planning. In Soviet period the nationalization of land and the collectivization of peasantry were also linked with the land use planning and the activity on land accounting.

In Russia the development of land use planning and land cadaster, significantly differ from the majority of European States, like many other land issues. The main features are vast territory, three centuries of serfdom; full nationalization of land in the Soviet period.These features were investigated by various authors (Komov, 1995 [1]; Volkov, 2000 [2]; Lerman, Shagaida, 2007 [3]; Volkov, Shirokorad, 2011 [4]; Hlystun, 2012 [5]; Lipski, 2000, 2013 [6, 7]).

Additionally, this article will be touched the specifics Russian’s terminology in this field. We will use the term “land use planning”. It is traditional term for the State University of land use planning.

1. LAND USE PLANNING

The modern land use planning includes four interrelated aspects.

a. The economic aspect is associated with the land as means of production. A state and society, and also the holder of a particular land plot are interested in the effective use of land.

b. The ecological aspect is manifested in the works on land reclamation, conservation, protection from erosion and other negative impacts. Such works are carried out in the framework of land use planning.

c. The legal aspect of land use planning has several manifestations. For example, the land plot becomes the object of the law, only as a result of its individualization through the establishment of borders. Or a special legal status of any zone also requires the designation on the locality of its borders.

d. The technical aspect includes works on design and exploration, surveying, inspection.

The Russian’s land use planning has a large number of English definitions: land management, land administration, land development, land surveying, land arrangement.

1.1 “Land use planning” and “land management”

The Russian term “land use planning” has a large number of English definitions: land management, land administration, land development, land surveying, land arrangement. However, the Russian features of this activity reflect the two definitions that have developed in the twentieth century. They correspond to the land use planning in narrow understanding and in broad understanding.

Land use planning in the narrow sense is a set of organizational, economic, technical, etc. actions carried out in different lands. First of all, this refers to agricultural lands. Such actions are directed on the adaptation of the land to the agro-technical, economic and other opportunities on its use.

The broad understanding of the land use planning is the state land management (“system of land use planning“; Lojko, 2001 [8]).

The result of the market reforms of the 90-s and the absence up to the XXI century the legislative definition of the land use planning was that in this period the various authors were offered to enable the new functions in the concept of land use planning. Such functions would lead to the significantly expansion content of land use planning.

Some of these functions correspond to land use planning in its narrow sense. It is the works on formation land Fund for market and on inventory lands of various categories.

In addition, the some scientists and specialists had suggested the inclusion in the composition of land use planning such functions as the assessment of lands, the tracking dynamics on land market, the registration of land transactions, the land taxation, the use of economic incentive measures and economic sanctions, and other components of the system of state land Fund management (Volkov, 1996 [9] and other).

As a result the land use planning in the broadest sense includes land cadaster, land monitoring, control, etc. But with the development of reform these instruments of state management in land sphere has become more complicated and important. Such tools must be independent. Therefore the broad understanding of the land use planning is a rarity. In addition, the fundamental new instruments of land policy appeared in market conditions. Such instruments cannot be attributed to land use planning even in the broadest sense. There is the definition of tradable lands or the implementation of public authority of preemptive right to buy the land.

1.2 History of the land use planning in Russia

The concept of “land use planning” in the usual sense became widespread in Russia in the early twentieth century. Previously it implied a whole set of measures concerning land plots for peasants. However, during the Stolypin’s agrarian reform (1906-1911) land use planning came to be understood in a more narrow special sense. It is a system of agricultural activities on the territory organization of individual farms, eliminating dependence on related users, to improve the productivity of agricultural labor (Bruckus, 1925 [10]; Nekrasov, 1925 [11]). It was then laid the foundation of the modern understanding of land use planning, which include not only the works on determination of boundaries of land plots (as it was before), but the organization of infrastructure agricultural production, and definition the specialization of farms, immigration policy and other (Volkov, 2000 [2]).

In the Soviet period, land use planning has acquired a completely new value.

However the issues of land use planning have not received a corresponding development in the first post-revolutionary decisions of the new Soviet government. So the famous Decree on the land (1917) and the decree about the socialization of the land (1918) did not contain norms related to land use planning. Probably, in this period the leaders of the Soviet state were still under the influence their negative assessment of land use planning, which played a key role in the Stolypin’s reform. As is known, the Bolsheviks not welcomed this reform. So the position of Lenin (1913) was that the land use planning helps strong peasants, but it presses weak peasants – land use planning is the chariot, in which a strong sits and presses affected” [12, P. 6].

But through a couple of years the land use planning has become a key element of the Soviet agricultural policy.

In the conditions of the soviet planned economy and the monopoly of state ownership of land the measures enshrining the rights on land largely lost their relevance and it have become a part of the land cadaster (as registration of land uses). All large-scale the works on determination of boundaries of land plots simultaneously pursued two objectives: 1) the legal strengthening of the borders, 2) the economic organization of territory. So the line between the land surveying and the land use planning worn off. The land use planning has become the tool by fixtures of land plots to the real situation in economy.

The strongest component of land use planning in Soviet period was intracompany organization of the territory. Then foreign colleagues to a certain extent even envied to Soviet surveyors. All lands were owned by the state. Therefore, the regulations on organization territory, set out in the procedure of land use planning were mandatory to agricultural enterprises. There was even the author supervision behind the correctness implementation of project. In addition, the users of agricultural land were state farms (sovkhozes) and collective farms (kolkhozes). Kolkhozes were formally independent but fully controlled by the state. Public authorities were indicating by sovkhozes and kolkhozes the crops, the time of agro technical measures, the fixed prices on products. That absolved the surveyors of Soviet period from the need to convince the state and collective farms to the implementation of project solutions. From 1976 to 1990 such projects had been developed for almost all collective and state farms (Stroev, Volkov, 2001 [13]).

1.3 Land reform of the 90-s and land use planning

During the land reform of the 90-s, the role of land use planning was very important. But some peculiarity was that, the privatization of agricultural lands and other innovations decreased the value and opportunities of the land use planning as a tool for land management. However, in the early years of reform the land use planning was a key tool. It allowed to transfer lands under the jurisdiction of rural Soviets of people’s deputies and to delimit such lands. These works had conducted on the basis of appropriate projects. They covered 26.6 million hectares.

Also the land use planning allowed creating the special land Fund for subsequent allotment of land plots. Its total area in that period amounted 15 million hectares.

The land’s component of the process reorganization of farms was provided by the land use planning (projects land redistribution, which had developed for more than 11 thousand kolkhozes and sovkhozes).

But the works by intracompany land use planning were curtailed due to the difficult financial situation of the domestic agribusiness in that period.

In 2001 State Duma was adopted the Federal law about land use planning. He established the legal framework for land use planning in the condition of market economic. Its goals became: the rational use and conservation of land, the creation of enabling environment, the improving of landscape.

After adoption of this law, the works on land use planning were focused on the surveying of land plots and the preparation of materials for the issuance documents of title to land. It would seem, such works (territorial land use planning) will the main direction in the development of Russian land use planning in the long term. But in 2007, the radical revision of the basic approaches to land cadaster occurred. Now the cadaster is covering almost all types of real estate.

Therefore, the process of formation of materials for cadastral registration joined the cadastral activity, which now is carried out by the cadastral engineers. Accordingly, the rules on the territorial land use planning, and the rules on the surveying of land were eliminated from the law on land use planning. Also land plots ceased to be object of land use planning.

However, the cadastral activities are the contractual relationship. Such activity unlike land use planning, not aimed at supporting the planning and rational use of lands. Cadaster of real estate should just fix the current status and install the border without any publicly-legal aspects.

1.4 Land use planning in present

The prospects of the further development of land use planning in Russia identified by the following factors.

a. The domestic land use planning had preserved since the Soviet times its economic substance. In recent years the economic situation in the agricultural sector improves. This is the result of realization of the priority national project Development of agro-industrial complex (since 2006), which was then transformed into the state programs (2008-2012 and 2013-2020) of development the agriculture and the regulation markets of agricultural raw, materials and food.

Also the role of land use planning may be strengthened with regard to the implementation the Doctrine of food security, which includes the more rational use of agricultural lands, the increase of soil fertility and the expansion of sowing of agricultural crops at the expense of unused arable lands (Lipski, 2013 [14]).

b. In past two years the scientists and specialists actively are discussing the question about the abolition of the Institute of land categories. The division of lands on the category was and remains a key principle of the Soviet and modern Russian land law. However, this Institute is not fully corresponds to modern land relations. The zoning is likely to become of the mechanism which will replace the current division of the land fund on a category. In the context of this issue the legislator is considering the proposal about develop the special agricultural rules. Such rules must become the part of land use planning. If this happens, the land use planning will again be a very important tool for governance in land and agrarian sphere.

c. The quality of the work of cadastral engineers which do not have the training in sphere of land use planning is low. So the number of cases when the public authorities not accept the materials on the cadastral registration, exceed of 40 per year for one engineer (Volkov, etc, 2013 [15]). Therefore, the additional legislative requirements should be submitted for the cadastral engineers performing the works on determination of boundaries of land plots if it is the agricultural land.

1.5 Stages of Russian land use planning

Thus in the development of Russian land use planning has four main stages.

The first phase is pre-revolutionary land use planning and land surveying (until 1917).

The second phase is the Soviet period in the development of land use planning (1917-1990). This stage was the highest elevation in terms of impact on land users and the organization of the territory.

The third stage is the land use planning in period of land reform (1991-2008), when a result of the privatization of most part of agricultural land the prescriptive role of land administration has been significantly weakened. Also serious problems have arisen with the financing of the works on land use planning. Many surveyors went into other fields. This stage was the search for a new role of land use planning in condition of new land relations.

The fourth stage began in 2008, when there was created the united cadaster of real estate. As a result, the works on determination of boundaries of land plots which are traditional for the Russian land use planning ceased to be an part of its.

Now the new task can be put before the land use planning. Such task is the developing of agricultural regulations. This could be the beginning of a new stage in the development of land use planning.

2. CADASTER

2.1 History of the land cadaster in Russia

The cadaster (inventory of taxable items) is always important for the state as a necessary element in the system of public finance. But most of the Soviet period, the land cadaster was not because collective and state farms did not pay for the land (it was believed that this was the achievement of the revolution of 1917). In 1968, the term land cadaster appeared in Soviet legislation. However, until the land reform of the 90-s such cadaster did not provide the fulfilling fiscal and registration tasks in respect of lands.

In the initial stage of land reform of 90-s the land taxation and the civil turnover of privatized land plots were introduced. As a result the original functions of the land cadaster (fiscal and legal) were restored. Moreover, the legal function of the land cadaster assumed not just ensuring the registration of rights to land but and the subsequent inclusion of such registration in the cadaster. In addition, the decisions adopted then assumed that such unified system will spread to the rest real estate, but it didn’t happen then (Lipski, 2000, 2002 [16, 17]).

In 1998 the law on state registration of rights to immovable property and transactions with it came into force. According this law such registration is performed outside of the cadaster (which only provides the registration of the necessary information). Also in 2000, the separate law on state land cadaster was adopted. After such legislative solutions the question about the unity of cadaster and registration of rights was not raised a few years.

In 2001 Land code was adopted. It established the principle of the unity of destiny of the land plot and the strongly associated with it objects. Therefore, the tendency to integrate information systems about land, buildings, residential and non-residential premises etc. in the single cadaster of real estate has increased. This approach was implemented in the law on state cadaster of real estate (2007).

2.2 State cadaster of real estate in modern Russia

The mentioned law regulates the two group fundamentally different cadastral relations: 1) the implementation of the state accounting in respect of the real estate; 2) the cadastral activities. They differ by the subject composition and the nature of its operations. Also the different current problems and prospects are inherent for these relations.

Currently the cadastral accounting of the real estate (of its contents, procedure and composition of performers) is slightly modified actions which previously was executing in the structure of the cadastral accounting of land plots (according to the law of 2000). Now there are 5 problems related with the cadastral accounting.

a. Before 2007, the substantial differences were in the approaches to accounting for different types of real estate. Therefore, the law on cadaster has established a transitional period (up to 2013). During this period, the provisions of the law were not applied with respect to buildings, premises, objects of unfinished construction. Now this transition period completed. And the accounting must be the single, but difficulties remain.

b. There is the duplication with the system of registration of rights to real estate. Before the transition to the unified cadaster the separate existence of cadastral and registration systems had a certain meaning: different objects were accounting in the different systems. The system of registration rights was receiving the necessary information from these systems. Now the object is the same. But the accounting and the registration are separated, while these actions are interdependent. For example, the cadastral passport need for the registration of rights. And the information on the registered rights is required for the cadastral accounting.

The ultimate goal here is the merge two systems: 1) the cadastral accounting of real estate, 2) the registration of rights thereto (as it was before 1998). Such an association will be logical because with 2009, the functions of cadastral accounting of real estate objects and the state registration of rights to them shall be performed by the single government authority (the Federal service of state registration, cadaster and cartography and of the institutions which are in its competence).

In 2013, the Government of the Russian Federation approved the Federal target program Development of the unified state system for registration of rights and cadastral accounting of the real estate (2014 – 2019), which is aimed at solution of this problem and the set of intermediate targets. By 2019 the full coverage of real estate objects in the unified state register should be ensured. Suchdatashouldbetranslatedintoelectronicform.

c. The procedure of submission the statements on the cadastral accounting from citizens and legal entities requires simplification. For this legislator must to change the technology of interaction with applicants. Although cadaster is maintained by only the Federal service for state registration, cadaster and cartography, but from 2013 citizens can apply also to other organizations. So the special multifunctional centers (state and municipal) carry out: 1) the reception of applications for cadaster accounting and of requests for information listed in the cadaster and 2) the issuance of relevant documents. They work on the principle of “one window”, providing a variety of services. But the citizens still can appeal to the Federal service too.

d. The transition to full automation of cadaster accounting still not completed. This work is conducted since 1996, but the expected economic effect, it is not given. It inhibits the introduction of the tax of real estate. The introduction of such tax was provided in 2001 when the land code was adopted (according this code the current land tax should be replaced by the real estate tax).

e. The cadaster became system which is covering almost all types of real estate. As a result the information layers about agricultural lands were simplifying (the current cadaster does not contain data on the composition of the land plots, the quality of lands and other). The assignee of the land cadaster in this aspect may become the new specialized state information resource about agricultural lands. The concept of development of state monitoring of lands of agricultural purpose and formation of state information resources on these lands for the period till 2020 provides this approach. Such concept was approved by the Government of the Russian Federation in 2010.

The cadastral activity is the execution of the works in relation to immovable property, in the result of which is preparing the documents, necessary for executing its cadastral accounting. Previously, these activities were performed by surveyors in the framework of territorial land use planning (in respect of the land) and by employees of the bureau of technical inventory (in respect of buildings). Now such activities may exercise any citizen who passed the exam and received the qualification certificate of cadastral engineer. At present the number of such engineers is more than 20 thousand. Legal entities that want to provide the services on cadaster shall have in its staff at least two such engineers.

The main problem here is the lack of skills among a considerable part of the current cadastral engineers in the matters of land-surveying. So, to date, only one third of the cadastral engineers have a high profile education. It negatively affects the quality of their work. Therefore the law on cadaster provided for a transitional period. And up to 2011 the surveyors continued to implement the cadastral activities.

However, other solutions are needed to solve this problem. The surveyors must to perform the works on determination of boundaries of land plots, if it is the land of agricultural purposes. The publicly-legal component of these works on the agricultural land prevails.  

In case of non-agricultural land-use the publicly-legal component of cadastral relations expressed not so much. Here the cadastral relations are in its pure form contractual. The works on determination of boundaries of such land plots should be left at cadastral engineers. They will perform such works simultaneously, in respect to land plots and other immovable located on such plots. The argument in favor of this distinction between agricultural and non-agricultural land use is that the works on determination of boundaries of land plots in agriculture (configuration of fields, their location relative to water bodies and transport communications) are affecting on the production process and on the degree of implementation of the state policy in agricultural sector.

However, other solutions also may be. For example, the legislator may install the requirement for cadastral engineers to have a special training for work with agricultural lands.

Another problem is the liability insurance cadastral engineers and their membership in self-regulatory organizations. The law on cadaster does not provide for them the mandatory participation in such organizations. However, at this stage of the formation of the corps of the national cadastral engineers this would be very suitable. Also, legal entities rendering services on cadastral activity should have the possibility of membership in such organizations (now the membership is possible only for the cadastral engineers).

2.3 Stages of Russian cadastral accounting

Thus, the adoption of the law on cadaster has only been a new twist in cadastral reform. In the development of domestic cadaster we can distinguish the following stages.

I. The period up to Stolypin’s agrarian reform (up to 1906-1911) was characterized by the close link between works on registration, valuation and surveying of land.

II. This reform and the subsequent years (1911-1917) have led to the clear division between the land cadaster, the land use planning and the works on determination of boundaries of land plots, with a gradual rapprochement of the two last.

III. The Soviet period (1917-1990) is characterized by the fact that was the accounting of land instead of cadaster. The works on determination of boundaries of land plots ceased to be an independent and entered into the land use planning.

IV. The restoration of traditional land-cadaster functions took place at the initial stage of land reform (1991-1997). In that period the government tried to include in the land cadaster also other types of real estate and also the actions by registration of rights to them.

V. In 1998-2007 the land cadaster and system of registration of rights to real estate and transactions with it were functioning in parallel.

VI. Since 2008 the process of formation united cadaster of real estate is having several stages.

a. Since 2009 the work started on the unification of the cadaster and registration of rights.

b. Since 2012 the reform of the system of registration of rights and transactions is discussed. Including specialists are discussing the division of it on the registration of rights, which will unite with the cadaster of real estate and the registration of transactions (as option is a registration of transactions by notary).

c. A new information resource of agricultural lands should include information which previously was in the land cadaster (but now the cadaster of real estate not contains such information).

Such periodization in the development of the cadaster is important for assess the possibility or impossibility of those or other decisions in the field of cadaster, their optimality or wrong at different stages.

DISCUSSION

The materials and the basic conclusions which contains in this article generalize and systematize the results earlier published by its author in various scientific editions (Lipski, 2000, 2001, 2002, 2013 [6, 14, 18, 19, 17, 20, 21, 22] etc.). The responses on them received from a number scientists and specialists. Also in this article the results, which previously obtained by its author, are developing with taking into account the rapidly changing conditions in land sphere.

CONCLUSION

Land use planning and cadaster remain important tools of the state land policy. The fundamental transformation of land relations in the last two decades required the changes of these tools. This process was not easy and is still not finished. Now the legislator should be provided a new function. It is the development of agricultural regulations as part of the land use planning. This will return the land use planning to its previous high level. The cadaster should get away from duplication with the system of registration of rights to real estate. It must to unite with this system. Also the cadaster should ensure the introduction tax of real estate.


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  20. Lipski S.A. 2013. The legal regulation of cadastral relations in post-Soviet Russia: trends, problems, solutions. The notary. 6, 20-25.
  21. 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.
  22. 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.


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