УДК 631.11

О ПРИВАТИЗАЦИИ СЕЛЬСКОХОЗЯЙСТВЕННЫХ ЗЕМЕЛЬ В ПОСТСОВЕТСКОЙ РОССИИ И ГОСУДАРСТВЕННОМ РЕГУЛИРОВАНИИ ИХ ОБОРОТА

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

Аннотация
В советский период собственником всех земель могло быть только государство. Поэтому приватизация земли была важным процессом в сельскохозяйственном землепользовании в постсоветской России. Частной собственность на землю стала необходимым условием для развития гражданского общества и формирования среднего класса. Также она является основой рыночной экономики. В разных секторах экономики приватизация произошла из-разному. В аграрной сфере она началась раньше, чем в несельскохозяйственной. И на сегодняшний день большая част сельскохозяйственных угодий находится в частной собственности. Оборот этих земель законодательно обеспечен. Однако, ошибки, допущенные 20 лет назад в ходе приватизации земель сельскохозяйственных предприятий, сдерживают рациональный оборот таких земель, даже когда он экономически целесообразен. Основными регуляторами рынка сельскохозяйственных земель стали приоритетное право государства на покупку земли при ее продаже, ограничение концентрации больших земельных площадей в собственности гражданина или юридического лица, запрет для иностранных граждан иметь землю в собственности. Практика последнего десятилетия позволила выявить ряд дискуссионных вопросов, связанных с этими механизмами.

ABOUT THE PRIVATIZATION OF AGRICULTURAL LANDS IN POST-SOVIET RUSSIA AND THE STATE REGULATION OF THEIR TURNOVER

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

Abstract
During the Soviet period, the owner of all land could be only the state. Therefore the privatization of land was the important process in the agricultural land use in post-Soviet Russia. The private land ownership is a necessary condition for further development of civil society, formation of the middle class. Also it is the basis of market economy. The privatization of land in the agrarian sphere started earlier than in the non-agricultural sector of the economy. This privatization occurred of different ways. To date, the private property on productive agricultural land is prevails. The turnover of such lands legally ensured. However, the errors committed 20 years ago during the privatization of lands of agricultural enterprises, is restraining a rational trafficking of such land, although it is economically expedient. The major regulators of the market of agricultural land became the priority right of the state on the purchase of lands at their sale, the limiting concentration of large land area owned by a citizen or legal person, the prohibition for foreign persons to have land in ownership. The practice of past decade has enabled to identify a number of disputable issues associated with these mechanisms.

Keywords: cadaster, land, land share, law, privatization, property, reform, turnover


Рубрика: Сельское хозяйство

Библиографическая ссылка на статью:
Липски С.А. About the privatization of agricultural lands in post-Soviet Russia and the state regulation of their turnover // Сельское, лесное и водное хозяйство. 2015. № 1 [Электронный ресурс]. URL: http://agro.snauka.ru/2015/01/1787 (дата обращения: 19.11.2016).

Introduction

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

The permission of private ownership of land with one hand was aimed at solution of current economic problems. This is a more efficient land use and the redistribution of it by market-oriented way. It is the possibility transfer land by inheritance what should foster more caring attitude to it. This is also the establishment of the equilibrium market price of land; it was to replace the assessment of land resources which was distorted during the period of planned economy. Finally, the private land ownership was to be the most reliable ensure of credit resources attracted in agriculture.

On the other hand, the privatization of land reflects the integration of Russia into the global market economy. The penetration of foreign experience of regulation of the land market and other processes related with private land ownership corresponds by the global economic, legal, social and other trends and patterns.

In terms of land reform the exclusivity of state ownership of land was abolished. Also the new kinds of rights to land appeared. They were not peculiar for the soviets land law: lifetime inheritable possession, lease and also servitude (it is a specific subsidiary of the right to land).

However, the question of land ownership was a main. The private land ownership is a necessary condition for further development of civil society, formation of the middle class. It is the basis of market economy. The transition to a market economy demanded the transition to private ownership of land. In the laws adopted at the beginning of the land reform (1990) were installed a variety of forms of land ownership. But, the formation of private ownership of land in Russia was not easy. The lands privatization was carried out very differently in various sectors of the land use.

So the forest lands are remaining in the state property. The privatization of land in cities began quite late. It is associated with various town-planning conditions and peculiarities of the individual cities. So in Moscow the private ownership of land is very little. In Moscow the main type of land rights for citizens and legal entities is a rent. In 2011, the new territory was annexed to Moscow. The private lands there are in this territory. But the prospects of rights of land to this territory are a very difficult question.

The main part of private land falls on agricultural land. The privatization of this land occurred 20 years ago. The many scientists investigated the process of privatization of these lands and related to it the problems (as in the reform period [1, 2, 3 and other], and is currently [4, 5, 6, 7] ). These questions are analyzing in this article.

The creation of private ownership of agricultural land was a result of the following processes:

a. The agricultural lands of state and collective farms were transferred into common ownership (mass privatization of land).

b. The rights on land plots (which granted to previously on other rights) were re-registration (actual privatization of land).

c. The granting of new plots land to citizens and legal persons to ownership was another way (individual privatization of land). 

I. Mass privatization of agricultural lands (land shares)

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

- create (quickly) a private land property;

- stimulate the reorganization of collective and state farms;

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

As a result of the formation of land shares almost 12 million people became the private owners. The privatization covered more than 115 million hectares of agricultural land (61.8 % [8] ).

In the 90-s the rules for the use of land shares was regulated not by laws, but by regulations, not having the necessary legal force. However, in 1993 the Constitution of the Russian Federation has determined that the procedure and conditions for the use of land can only be determined on the basis of the Federal law. In that period the government has sought to simplify committing any transactions with land shares. This should lead to a concentration of shares. However, this has not happened – the most common transactions in the 90-s were renting land shares (more than 40% of land shares was in leasing). The lessees of land shares were usually the collective and state farms, from the lands which the shares were formed [2].

The rent of land shares was banned after the adoption in 2002 of the Federal law «About turnover of agricultural land». The contract of trust management should to replace a rent. The adoption of this law and especially its change in 2005 substantially restricted the rights of owners of land shares for transactions from them [7]. This was one of the causes of the so-called «unclaimed land shares». Basically these is shares, the owners of which took no action on the orders of their land property, inherited by them as a result of mass privatization (according to various estimates their total area is about 25 million hectares [10] ). Different suggestions were offered to solve this problem. It was the ransom such shares to state property or the free of charge transfer them to the federal property (as unnecessary property) and other.

So, in the period 2006-2009 scientists and experts had actively discussed the possibility to apply to the shares the procedure provided to an escheated property. However, this proved to be difficult. So, the decedent’s estate is considered escheat only if there are no heirs, or they have no right to inherit, or they debarred from the inheritance, or they refused from the inheritance or none of the heirs has not received the inheritance.

At first glance, the situation with land shares is exactly the failure of the inheritance. So, relatives, who are the heirs of deceased citizens-owners of land shares, are living in the city, they did not contact with anyone about land shares, etc.

Meanwhile, their passivity is not enough for uniquely classifying the relevant land shares as escheated property. Because, until proven otherwise, legislation considers that the heir has accepted an inheritance. He could take possession the other property of the testator. He could make measures for the conservation it, for the payment of its content or to obtain from third parties cash owed to the testator, etc. All these actions demonstrate about the actual acceptance of the inheritance.

Thus there is a high probability that such acts may be committed only with respect to the other property of the testator, and not of land shares. But, as you know, the estate passes to the heirs in the order of universal legal succession as a whole. Therefore, the adoption of the heir though of least part of the inheritance means the acceptance of the whole inheritance due to him.

Now (after 2010) the legislation is allowing that these shares will recognize as the municipal property (by the decision of the court). To date the number of private owners of land shares already decreased from 12 to 9 million people [8].

Summary about the question of land shares

In general, the education of land shares was the right decision. It allowed create a private property in land and afford to start reforms in agriculture. However, this process had a series of errors:

a. Volatility. In the creation of the shares several times changed the rules;

b. The priority of the social aspects is not allowed to achieve the desired economic effect;

c. The absence of almost 10 years of the necessary legislation is not allowed to start in the 90-s market of the land share. Later the rules have appeared, but they were not optimal. The inertia which formed earlier prevents for turnover and now. Also the difficult financial situation of 90-s held back the turnover of land shares;

d. The rights to shares was difficult to register because in private property was transferred, not the whole land of former agricultural enterprises, but only the productive land, which according to the prevailing order of registration of lands were not separated from other lands. This was done to protect the rights of future owners, but on practical this only is complicating for such owners the registration rights of land (read more – 7].

The priority for the near future is the privatization of the agricultural lands that previously were not privatized. This is the land of specialized farms (tribal, greenhouses and etc.) and unproductive land.

II. Land plots of populations

The private property in the sector land plots of populations appeared as a result of restructuring of former rights on the land use and individual privatization. To date, in sector of personal subsidiary farms the share of private lands is 73.8%, among gardeners – 70.3%, among farmers – 40.7% [8]. With 2011 the state is compensated of farmers their costs of the conducting cadastral works at registration of the property rights plots. This must expand the share of the privatized lands of farmers.

The market of land in this sector and its legal framework ware formed in beginning 90-s. The economic prerequisites for the purchase and sale of personal subsidiary plots, garden and other sections land plots of the population also appeared immediately by the formation of market relations.

III. Mechanisms of the state regulation turnover of agricultural lands

Now the state uses the following mechanisms in regulating the turnover of land plots in this sector.

a. The important task is the preservation of agricultural land in the sphere of agricultural production. For this in law «About turnover of agricultural land» the need to maintain the targeted use of land plots installed as one of the principles of such turnover. Procedural aspects to the transfer (in exceptional cases) of these lands into other categories are defined by the special Federal law «On transfer of lands or land plots from one category to another».

b. The legislation is protecting these lands from foreign capital. The principle of the law is the special procedure for granting land to foreigners (only a rent). Even if a foreign person became owner of the agricultural land legally (for example, as a result of inheritance), this owner should sell these land during the year.

c. At the turn of XX-XXI centuries, the domestic market of agricultural land was in the formative stage, when the disadvantages of growth and the distortions were inevitable. Therefore the state was needed of the mechanism to prevent the economically unjust transactions. This mechanism is the priority right of the state (or the municipality) to redeem agricultural land if these will be put on sale. This procedure provides that the seller of a land plot shall notify public authorities about intention to sell the land plot with indication of the price and other significant terms of the contract. Only if the authorities will refuse to purchase (or not respond) then possible sell this land to a third party.

The public authority is adopting decision on realization of the priority right of purchase (or refusal from this right) not taking into account the personality of the buyer. This reduces the risks of corruption. But the absence of levers of influence on a potential buyer does not guarantee that buyer of land will the most effective user. Therefore, the state must have the measures affecting on any owner of agricultural land to ensuring their proper use.

But this mechanism is not ideal. It can be bypassed. This mechanism is not valid when land is selling to a co-owner and when land plots alienated of free. Also this mechanism need in the budget’s money for realization of right for primary purchase.

d. A land plot may be forcibly taken away from its owner by a court order in case of misuse. In 2011-2012 the Government adopted indicators of such misuse: the substantial decrease of soil fertility and the failure to use of agricultural land. The law establishes the following procedure. As a first step, the owners of land plots will pay fines if they will improper using of them land. If it will not give effect, then the land will be withdrawn in a judicial procedure (sale on trades). But the proceeds from the trades will pay to the former owner of the land plot.

e. The important regulator of land turnover is to limit the excessive concentration of areas. But the limits are set only for the owners. Such limits do not apply for the tenants of land.

f. The law «About turnover of agricultural land» established that a land plots may not be less than the minimum size permitted by the state. This allows avoid the unnecessary fragmentation of land plots and other inconvenience in land use. Such minimum size is regulated in laws of the subjects of the Russian Federation [read more about mechanisms – 9, 11, 12].

Also the necessary condition for the turnover of agricultural land is information support. In Soviet period and in beginning of land reform the state land cadaster was main information system, which contained the information about all land [13]. In 2007 the land cadaster was integrate with other systems about real estate. In result, the united cadaster and the system of registration of rights to immovable property are adequate to the legal and economic aspects of land market. But real estate cadaster no contains information about farmland in the structure of land plot, about productive specifications and other information. It is not reflecting the specifics of land as a natural resource used as the main means of production in agriculture [14, 15, 16].

In the early 90-s the state began monitoring of lands. In addition, such monitoring became a part of the state environmental monitoring. In 2010 the Government of the Russian Federation approved the concept of the development of state monitoring agricultural lands and of the formation of state information resources about these lands. Such monitoring should provide the participants of land market of the information about the land as a natural resource, which is the main means of production in agriculture.

Conclusion

Now agricultural lands are two fundamentally different sectors:

a. Large agro-industrial sector. This agricultural land is using by agricultural companies (economic partnerships and companies, production cooperatives, unitary enterprises, including research organizations, and peasant farms). Here more than half of the total area of agricultural land has been privatized. Since 2003, the law established the rules of the turnover of such lands and the mechanisms of regulation of such market. But the mistakes committed while create of land shares still are creating problems.

b. Small auxiliary sector. This land plots is using by the population for agricultural production and other purposes (personal subsidiary plots, garden plots). Currently, the level of privatized of these land is large enough and a market turnover of these lands is fully formed.

In both sectors, the private land ownership has great weight and the market relations are developing. The regulatory mechanisms of these relations correspond with the global practice. Therefore, we can note that in the sphere of agricultural land use modern Russia is moving in line with global economic, legal and social processes. Russia is 9% of the world’s arable land. Therefore suited for agricultural production land resources are an important factor of the competitiveness of our country.

The mechanisms of regulation of agricultural lands market are effective enough and in the nearest future they should be retained in full. In the longer term it is possible to refuse the right of primary purchase of land by public authorities.


References
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