Determination of lost profits when withdrawing a land plot. Assessment of damage from property seizure. Latest changes in legislation

V.I. Petrov

Assessment for the purpose of compensation for losses upon seizure land plots for state and municipal needs among owners or with the termination of the demand for real estate among tenants is becoming increasingly widespread in connection with the implementation of numerous large-scale infrastructure and development projects.

Examples include the seizure of land plots in Sochi in order to accommodate Olympic facilities federal significance; termination of rights to land plots and improvements on them along the routes of the fourth transport ring in Moscow; construction of the central ring road in the Moscow region; routes Moscow - St. Petersburg; as well as the implementation of various development projects on municipal land.

When conducting similar assessments The appraiser is given a task in addition to determining market value also determine the losses of owners and tenants of land plots and real estate objects for the purpose of determining the redemption price in accordance with Art. 281 of the Civil Code of the Russian Federation. At the same time, the Law on Valuation Activities and the Federal Valuation Standards do not highlight the calculation of the redemption price and losses upon repossession as an independent object of valuation.

Legislative regulation of the procedure for seizure of land plots

Under certain circumstances, the state has a need to seize land plot, previously provided to citizens and organizations for private ownership, possession, use or lease. For such cases, land and civil legislation establishes methods, conditions and procedure for land acquisition.

Currently, several methods of land acquisition have been established. They include confiscation, requisition and seizure of land for state and municipal needs.

Land acquisition is ok confiscation is carried out in cases of land crimes and is applied only to land owners as a sanction. During confiscation, land is confiscated by a court decision, which is expressed in the forced (without the owner’s consent) termination of title to the land plot without compensation for its value or losses incurred by the state. The confiscated land plot becomes the property of the state.

Requisition means temporary withdrawal from the owner of a land plot in the event of epidemics, epizootics (simultaneous spread of a disease among a large number of animals over a large territory) and others emergency situations and is carried out in the manner of an administrative decision by a state executive body without the owner’s right to appeal.

By way of requisition, i.e. in accordance with Art. 51 of the Land Code of the Russian Federation, land plots that are in lifelong inheritable possession or permanent use may also be confiscated. Requisition is preceded by the introduction, in accordance with the established procedure, of emergency living conditions in a particular territory in connection with the above circumstances. Owner, owner, the user is compensated for losses caused by the requisition and a requisition document is issued. When emergency circumstances cease, the land plot is returned to the owner, owner, user, and if it is impossible to return the owner, its market value is compensated or an equivalent land plot is provided.

Requisition is similar to the seizure of land for state and municipal needs from the owner of the land plot, since it is carried out in the interests of society and the state with compensation for the value of the property, on the basis of an administrative act and is of a compulsory nature. What distinguishes these procedures is that the requisition of a land plot is carried out only due to special circumstances and is temporary in nature, while the seizure of land for state or municipal needs is carried out as planned and is final. If, when confiscating a land plot for state or municipal needs, the specific confiscated plot must be determined no less than a year before its actual confiscation, then during requisition, the confiscation of the plot is carried out immediately after the occurrence of emergency circumstances, which, therefore, expands the rights of state bodies.

Current legislation recognizes the seizure of land plots for state or municipal needs as one of the grounds for terminating rights to land plots. Thus, the priority of public (state and municipal) needs in the use of land plots over private interests is actually established. In accordance with paragraph 1 of Art. 49 of the Land Code of the Russian Federation, seizure, including through redemption, of land plots for state or municipal needs is carried out in exceptional cases. The Land Code of the Russian Federation reveals which cases can be considered as exceptional:

1) the need to fulfill international obligations Russian Federation.

The seizure of a land plot for state or municipal needs in connection with the fulfillment of international obligations does not necessarily imply direct use for the purposes defined in an international legal act ( international treaty), it is sufficient if the site is functionally connected to a given goal. Thus, a land plot can be withdrawn if it falls within a protection zone established around an object defined by an international treaty;

2) the need to locate the following objects of state or municipal importance:

federal energy systems and energy systems of regional significance;
nuclear energy;
defense and security;
federal transport, communications, computer science and communications, as well as transport, communications, computer science and communications of regional significance;
providing space activities;
ensuring the status and protection of the State Border of the Russian Federation;
linear - federal and regional significance, ensuring the activities of subjects of natural monopolies;
electricity, gas, heat and water supply of municipal importance;
public roads within the boundaries settlements and between populated areas, bridges and other transport engineering structures of local importance within the boundaries of populated areas and outside the boundaries of populated areas.

A prerequisite for the seizure of land plots is the absence of other options for the possible placement of these objects;

3) other circumstances in cases established by Federal laws. For example, the seizure of land plots in Sochi for the construction of Olympic facilities.

Analysis of the wording of Art. 49 of the Land Code of the Russian Federation allows us to say that this norm establishes the general principles for the seizure of land plots for state or municipal needs for persons who own a land plot on various legal grounds: property, lease, permanent (perpetual) use, lifelong inheritable possession, etc. . Hence the use of two terms “redemption” and “withdrawal”, where the first is applicable exclusively to owners, since the seizure of a plot for state and municipal needs is allowed only through redemption; in all other cases we are talking about the seizure of a land plot.

The Land Code of the Russian Federation also establishes restrictions on land acquisition. Firstly, according to paragraph 4 of Art. 79 of the Land Code of the Russian Federation, particularly valuable productive agricultural land may be included in the list of lands, the use of which for other purposes is not permitted. Consequently, the seizure of these lands for use for other purposes also cannot be carried out.

Secondly, within the meaning of paragraph 3 of Art. 83 of the Land Code of the Russian Federation, land plots included in the lands of settlements (both urban and rural) can be withdrawn for state and municipal needs, however, such withdrawal is possible only for development purposes in accordance with master plans of settlements, land use and development rules. In other words, the possibilities of withdrawal are limited to cases where the construction of relevant facilities, requiring the withdrawal of land plots, is provided for in the master plan of an urban or rural settlement or is permitted by the land use and development rules in force in the settlement.

Thirdly, according to paragraph 6 of Art. 94 of the Land Code of the Russian Federation, the Code itself, as well as other federal laws may limit and even prohibit the use for other purposes of lands of specially protected natural areas and lands occupied by objects cultural heritage Russian Federation. In furtherance of this provision, the Code, in particular, introduced a ban on the seizure and use for other purposes of lands of historical and cultural significance.

Fourthly, clause 3 art. 101 of the RF Land Code also provides for certain restrictions on the seizure of forest lands.

Depending on whose needs the land is being seized, the purchase is carried out by the Russian Federation, the corresponding subject of the Russian Federation or a municipal entity. The decision to seize a land plot for state or municipal needs is made federal authorities executive branch, executive authorities of a constituent entity of the Russian Federation or authorities local government.

The procedure for the seizure of land plots for state or municipal needs provided for by current legislation consists of the following stages.

Stage 1. Preparation and adoption of a decision on the seizure of a land plot.

The procedure for preparing and making a decision on the seizure of a land plot is almost not regulated by current legislation. A number of relevant norms are contained only in Art. 31 and 32 of the Land Code of the Russian Federation, devoted to the procedure for providing land for construction. In particular, paragraph A of Art. 31 of the Code obliges local government bodies to inform persons from whom land plots may be seized in connection with their planned provision for construction about the possible seizure; a i. 3 tbsp. 32 of the Code establishes that when a land plot is provided as a result of its withdrawal for state or municipal needs, simultaneously with the decision to provide this plot, a decision is made on the form of its withdrawal. At the same time, the seizure of land for state or municipal needs can also be carried out for purposes not related to construction, for example, for the location of a military training ground, for allocation to federal bodies border service strip of land running directly along the State Border, therefore the above provisions of Art. 31 and 32 of the RF Land Code may not be applied in all cases.

Absence from federal legislation special norms(except for the above) on the procedure for preparing and making decisions on the seizure of land plots actually means that such decisions must be prepared and made in accordance with the general procedure established by acts on specific government bodies that determine the procedure for their activities and decision-making. The exception is cases when specific requirements for the content of decisions on the seizure of plots are established by the legislation of the constituent entities of the Russian Federation or regulatory legal acts of local government bodies. At the same time, it is recommended to include the following data in decisions on the seizure of land plots for state or municipal needs:

1) allowing you to clearly determine the characteristics of the seized land plot (location, area, cadastral number, etc.), with a cadastral plan of the land plot attached;
2) specifying the purpose of the upcoming seizure; the period during which the seizure is to be carried out;
3) indicating the person from whom the plot is being seized, and legal basis, on which he owns a plot of land;
4) instructions to the relevant authorities (services) to notify the specified person about the decision taken, on ensuring state registration of the decision in the prescribed manner and notifying the specified person about the registration;
5) an indication of the person’s rights in connection with the upcoming seizure;
6) instructions to prepare a draft agreement with the person from whom the land plot is being seized;
7) if necessary, other data may be included in the decision on seizure.

Stage 2. Informing the owner of the land plot, landowner, land user, tenant of the land plot about the upcoming seizure of the land plot.

Current legislation provides for the three-fold provision of information related to the seizure of a land plot to the owner, landowner, land user, or tenant of a land plot:

before making a decision on preliminary approval of the location of the facility, approving the act on the selection of a land plot for construction, the specified persons must be provided with information about the possible seizure of land;

after a decision is made to confiscate a land plot, the person from whom the land plot is confiscated must be notified by the authority of the upcoming confiscation no later than one year before (Article 63 of the Land Code of the Russian Federation, clause 3 of Article 279 of the Civil Code of the Russian Federation). This rule applies in all cases - without providing this information, seizure is not allowed;

the owner of the land plot subject to seizure, as well as the person using the land plot on the right of lifelong inheritable possession or permanent (perpetual) use, must be notified of the state registration of the decision to seize the land plot, indicating the date of registration (clause 4 of article 279 , Art. 283 of the Civil Code of the Russian Federation); this type informing is also mandatory, but it relates to the next stage of the procedure for seizure of a land plot.

Stage 3. State registration of the decision to seize the land plot.

The mandatory state registration of a decision to seize a land plot is provided for by the Civil Code of the Russian Federation.

Through state registration of a decision on seizure, a restriction (encumbrance) on a land plot is actually registered. This limitation lies in the fact that from the moment of registration, the person from whom the land plot is confiscated bears the risk of attributing to it expenses associated with new construction, expansion and reconstruction of buildings and structures on this site, and carrying out other activities on it that significantly increase the value of the land .

Stage 4. Conclusion of an agreement with the owner or holder of another right to the land plot subject to seizure.

This stage occurs when the copyright holder agrees with the upcoming seizure of the land plot from him and in the absence of a dispute about the conditions of the seizure. The main purpose of the agreement is to determine the redemption price of the seized land plot (or the amount of losses - when plots are seized from landowners, land users, tenants, i.e. persons who are not the owners of the land), the timing of payment of the redemption price or compensation for losses, and other conditions of seizure. For example, the agreement may include an obligation of the party making the seizure to provide another plot of land to replace the one being seized, including its value in the redemption price. The agreement is concluded in a free form, in compliance with the provisions of civil law on the rules of transactions. When seizing a land plot from the owner as mandatory condition the agreement must include the obligation of the Russian Federation, a subject of the Russian Federation or a municipal entity (depending on who is making the seizure) to pay the redemption price of the land plot (Clause 1 of Article 281 of the Civil Code of the Russian Federation). The agreement can be concluded at any time, including before the expiration of one year from the date of notification of the right holder about the decision to seize the land plot.

Stage 5. Filing a claim in court for the seizure of a land plot.

This stage takes place when there is a need for forced seizure of a land plot, i.e. in cases where the holder of the rights to the plot does not agree with its seizure or with the conditions of seizure (with the size of the redemption price, etc.).

If, along with the seizure of a land plot, forced termination of ownership of the real estate located on it is also required, then by virtue of clause 1 of Art. 239 of the Civil Code of the Russian Federation, the relevant body is obliged to prove that the use of the land plot for the purposes for which it is seized is impossible without termination of the right of ownership to this real estate. Otherwise, the court refuses to satisfy the claim. When a court considers a claim for the purchase of a land plot from the owner or for the forced termination of another right to a land plot, the burden of proving the circumstances that served as the basis for the decision to confiscate the land plot rests with the body that made the decision to confiscate it. This follows, in particular, from the rule established by civil procedural and arbitration procedural legislation that each party must prove the circumstances to which it refers as the basis for its claims and objections (clause 1 of article 56 of the Code of Civil Procedure of the Russian Federation. p. 1 Article 65 of the Arbitration Procedure Code of the Russian Federation).

Stage 6. State registration of transfer of ownership, termination of rights of permanent (perpetual) use, lifelong inheritable possession, lease.

An agreement with the owner or other holder of rights to a land plot on the terms of its purchase (seizure), as well as a court decision that has entered into legal force, which satisfied the claim for the forced purchase of a land plot or termination of rights to it, are the basis for state registration of the transfer of ownership to a land plot (upon seizure from the owner), or termination of the right of permanent (perpetual) use, lifelong inheritable ownership of a land plot, lease of a land plot in accordance with the legislation on state registration of rights to real estate and transactions with it.

The significance of state registration of the transfer or termination of the right to a land plot is due to the fact that it is a legal act of recognition and confirmation by the state of the occurrence, limitation (encumbrance), transfer or termination of rights to real estate, and a number of legal consequences are associated with its implementation.

Determination of the amount of losses arising from the seizure of land plots

The procedure for the seizure of a land plot for state and municipal needs cannot be completed without full compensation to the owner of the land plot, land user, land owner, tenant of all losses caused by the seizure of the land plot.

Into the concept of losses, according to Art. 15 of the Civil Code of the Russian Federation, includes real damage, which is understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property, as well as lost profits - lost income that this person would have received if normal conditions of civil circulation, if his right had not been violated.

In accordance with the provisions of land and civil legislation, when purchasing a land plot for state or municipal needs, the redemption price includes all losses caused to the owner by the withdrawal of the plot in full, including lost profits (in particular, this may be due to the need for early termination of obligations to third parties).

In accordance with Art. 283 of the Civil Code of the Russian Federation, termination of the right of permanent (perpetual) use or the right of lifelong inheritable ownership of a land plot when it is withdrawn for state or municipal needs is carried out according to the rules provided for in Art. 279-282 of the Code, i.e. according to the same rules as seizure from the owner.

However, it should be noted that these articles may not be fully applied to relations on the termination of rights to land plots other than ownership. In particular, due to the lack of land users, landowners and tenants of ownership rights to land plots, the latter are not purchased from them, i.e. they are not reimbursed for the cost of the confiscated plots. These persons have the right to demand free provision land plots of equal value to them. In addition, they must be compensated for the cost of the building, structures and structures located on the land plot owned by the right of ownership, as well as losses caused by the seizure, including lost profits, in full.

The procedure for compensation for losses caused by the seizure of land plots for state and municipal needs is also regulated by the “Rules for compensation to owners of land plots, land users, landowners and tenants of land plots for losses caused by the seizure or temporary occupation of land plots, restriction of the rights of land owners, land users, landowners and tenants of land plots or deterioration in the quality of land as a result of the activities of other persons,” approved by Decree of the Government of the Russian Federation of May 7, 2003 No. 262.

These Rules, in particular, provide that the basis for compensation of losses to land users, landowners and tenants of land plots when they are withdrawn for state and municipal needs may be:

act of a state executive body or local government body on the seizure of a land plot; this basis is sufficient if an agreement is reached on the conditions of withdrawal with the copyright holder;
court decision; the need for this basis arises when a dispute arises related to the upcoming seizure.

Regarding the source of compensation for losses caused by the seizure of land plots, the Rules establish that this source is either the relevant budgets or the funds of the persons in whose favor the plots are withdrawn.

Thus, this issue is actually made dependent on the specific purposes of the seizure and the entities receiving the right to a land plot as a result of its seizure.
The calculation of the amount of losses is carried out by an independent appraiser on the basis of a contract for the provision of services for calculating the amount of losses.

When calculating the amount of losses, the following work is carried out:

A) Quantitative and qualitative characteristics of land plots and other real estate objects located on them are established, for which the following is collected and processed:

title documents, information on encumbrances of land plots and other real estate objects located on them, the rights of other persons,
cadastral and technical registration data related to land plots and other things located on them real estate objects,
information on the technical and operational characteristics of land plots and other real estate located on them,
other information related to land plots and other real estate objects located on them, necessary to establish the quantitative and qualitative characteristics of land plots and other real estate objects located on them;

b) the market, which includes land plots and other real estate objects located on them, its history, current conditions and trends, as well as analogues of land plots and other real estate objects located on them, is determined and analyzed, and their choice is justified;

V) are being implemented necessary calculations the amount of losses, taking into account the obtained quantitative and qualitative characteristics of land plots and other real estate objects located on them, the results of an analysis of the market to which the land plots and other real estate objects located on them belong, as well as risks and other information;

G) the final amount of losses is determined.

The final amount of losses is expressed in rubles as a single amount, unless otherwise provided in the contract for the provision of services for calculating the amount of losses.

The calculation of the amount of losses is formalized in a written conclusion on the amount of losses (hereinafter referred to as the conclusion on the amount of losses), containing the final amount of the amount of losses. The conclusion on the amount of losses indicates the calendar date as of which the amount of losses was determined. In this case, the calculation of the amount of losses caused to holders of rights to land plots by their seizure, temporary occupation or restriction of rights to them is carried out as of the calendar date preceding the day of the decision on seizure of the land plot, temporary occupation of the land plot or restriction of rights, respectively.

information about the circumstances that caused the need to compensate for losses (withdrawal of land plots for state or municipal needs, their temporary occupation, restriction of the rights of land owners, land users, land owners and tenants of land plots, or deterioration in the quality of land as a result of the activities of other persons), a description of their characteristics;
information on the grounds for compensation of losses;
information on state registration of rights to a land plot in cases where said registration is mandatory;
information about encumbrances of rights to the land plot and the land plot itself;
the basis for the emergence of the right to a land plot among their owners;
determination of the powers of holders of rights to land plots;
description of the land plot, including the intended purpose and permitted use of the land plot, the rights of other persons to the land plot, division of property rights to the land plot;
description of land improvements;
photographs of the land plot;
characteristics of the state of the land market and other real estate, rights to land plots.

The amount of losses is calculated by adding:

the amount of actual damage;
the amount of lost profits;

1. In accordance with paragraph 2 of Art. 15 of the Civil Code of the Russian Federation, real damage is understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, lost or damaged property.

From an economic point of view, real damage is characterized by a decrease (real or inevitable in the future) in the owner’s available property, in contrast to lost profits, when the injured party’s available property does not increase, although it could have increased if the property had not been seized.

Thus, the amount of actual damage includes:

A) loss and damage to property;
b) expenses actually incurred by the person at the time of seizure or filing a claim in court;
V) future necessary expenses, i.e. expenses that a person will have to make to restore the violated right.

The amount of actual damage caused to the owners of undeveloped land plots by their seizure is determined in the amount of the market value of the land plot, included in its redemption price.

By agreement with the owner of the land plot, he may be given ownership of another (equal) plot of land free of charge. In this case, its value, also determined in accordance with the legislation on valuation activities, is included in the redemption price of the land plot.

In the case of a developed land plot, the market value of the real estate object consisting of buildings, structures, structures located on the land plot is added to the market value of the land plot.

If a land plot and real estate located within it are owned by different persons, the cost of buildings, structures, structures is compensated to the owner of the latter, and the redemption price of the land plot includes the value of the land plot and losses caused to the owner of the plot.

Thus, the seizure of land plots from the owners is carried out through their redemption, while compensation for the corresponding losses of the owners is carried out by paying them the redemption price of the land plot.

The redemption price of a land plot includes:

A) market value of the land plot;
b) market value of the site located on the site and owned by the owner land plot real estate— residential, industrial and other buildings, structures, structures;
V) losses caused to the owner by the seizure of a land plot.

Despite the fact that the redemption price can be determined by agreement with the owner of the land plot (Article 281 of the Civil Code of the Russian Federation), an assessment of the market value of property seized for state or municipal needs is mandatory. This rule is established by Art. 8 Federal Law“On valuation activities” and is caused by the need to eliminate unreasonable spending budget funds when purchasing a land plot.

2. An important type of damage is lost profit. Lost profits of holders of rights to land plots mean lost income that holders of rights to land plots would have received under normal conditions of civil circulation if their rights had not been violated.

According to judicial practice In order to satisfy claims for recovery of lost profits, the plaintiff must determine the reliability of the income that he expected to receive under normal conditions of civil circulation (see, for example, the resolution of the Federal arbitration court North Caucasus District dated 09/03/2003 in case No. F083125/2003; Resolution of the Federal Arbitration Court of the Moscow District dated March 3, 2003 in case No. KG-A40/559-03).

The amount of lost income (lost profit) must be determined taking into account the reasonable costs that the creditor should have incurred if the obligation had been fulfilled (clauses 10-11 of the resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8).

It is especially difficult to prove losses in the form of lost profits. Although general principles to determine such losses and are established in Art. 15 of the Civil Code of the Russian Federation, they are clearly not enough. Therefore, paragraph 4 of Art. 393 of the Civil Code of the Russian Federation specifically provides additional conditions for confirming expenses and compensation for lost profits: “When determining lost profits, the measures taken by the creditor to obtain it and the preparations made for this purpose are taken into account.” Moreover, the presence of such confirmation in the form of evidence is mandatory.

Ignoring or ignorance of this rule of law in practice leads, as a rule, to refusal to satisfy claims for recovery of lost profits. This happens because the creditor cannot justify the losses incurred by providing adequate evidence. For example, when agricultural land is withdrawn, lost profits are expressed in the form of the cost of lost gross harvests of grain and other crops based on official yield data. Also, concluded agreements with procurement and trading organizations on the sale of finished products, and other obligations of peasant farms to citizens can serve as evidence of the volume and extent of lost profits; on-farm consumption plans; actual purchase of the required amount of fuel and seeds; carrying out necessary agrotechnical work, etc.

An important proof of the amount of losses is a written calculation of losses, which, along with other documents, must be submitted to the court in accordance with Art. 125 Arbitration Procedure Code of the Russian Federation. To calculate and prove the amount of expenses incurred, it is necessary to use balance sheet data, expense documents for wages, other documents accounting economic activity. Thus, if the owner of a land plot is not satisfied with the redemption price or the amount of damages to be compensated and goes to court, then the burden of proving the amount of lost profits will fall on an independent appraiser.

Calculation of the amount of lost profits is carried out by discounting future income not received during the period of restoration of disrupted production, which holders of rights to land plots would have received under normal conditions of civil circulation if their rights had not been violated. Income is the difference over a certain period between cash receipts and cash payments (cash flow). Discounting refers to the process of bringing future income to the date of calculation of losses at the appropriate discount rate. When determining the discount rate, you should consider:

disc-free return on capital for a specific period;
the amount of the premium for the risk associated with the implementation on the land plot entrepreneurial activity holder of the right;
return on capital in other sectors of business activity with comparable indicators of business risks.

During the period of restoration of disrupted production, the amount of cash flow not received by the holders of rights to land plots is determined as the difference between the amount of cash flow for a certain period of time that holders of rights to land plots would have received under normal conditions of civil circulation, if their rights had not been violated , and the most probable amount of cash flow for the corresponding period of time that holders of rights to land plots can receive in conditions of violation of their rights. In this case, the period of restoration of disrupted production is understood as the period during which holders of rights to land plots will be able to achieve such land use conditions that would be identical to the land use conditions that existed for holders of rights to land plots before the violation of their rights. The main features by which the identity of land use conditions is determined may be the volume and nature of the powers of the holders of rights to land plots, the form and size of benefits, the size, risk and time of receiving cash flow from the use of land plots and other characteristics of land use conditions. Determining the period for restoration of disrupted production can be carried out taking into account building codes and rules, construction organization projects, stipulating time frames for the construction of buildings, structures, structures, feasibility studies for the restoration of disrupted production, business plans and other sufficient and reliable information about the period of restoration of disrupted production.

Calculation of losses and lost profits in agricultural production, calculation of losses during the seizure of land, methods for calculating losses, table for calculating losses, calculation of lost profits in agricultural production

Calculation of losses, calculation of lost profits

The withdrawal (redemption) and provision of land plots for construction are associated with payment of the market price of the land plot, compensation for the cost of losses, including lost profits. Sometimes the cost of these payments exceeds the cost of construction of the facility, which is a complete surprise for many investors interested in providing land for construction. At the same time, very often agricultural organizations unreasonably and repeatedly inflate the cost of losses and lost profits, which leads to various disputes. Resolution of these issues and the procedure for calculating losses, including lost profits and the cost of the biological stage of reclamation of disturbed lands are described in detail in a special chapter of the manual:"Provision of land plots for the construction of oil and gas complex facilities, industry, transport, communication and power lines. (A practical guide for the development of land management and cadastral documentation)." - M.: Uni-press, 2015. 5th expanded and corrected edition in 2 volumes (1280 pages in total, A4 format).

The book provides regulatory requirements for compensation of losses, including lost profits:

Current regulatory legal acts of the Russian Federation and resolutions of the Government of the Russian Federation;

Other methods for determining the insurance value of agricultural products and reflecting them in the reporting of agricultural enterprises are also indicated;

A description is given of how calculations are made in practice, what initial data are used, forms for calculation are given, attention is drawn to the essential details and arguments that are taken into account in the calculation;

It is said how to significantly reduce the cost of losses, including lost profits, and reach agreement with the land user in controversial and conflict situations;

- there are answers to the question of how to automate the calculation of losses, including lost profits using the LOSS program.

Calculation of losses and lost profits

According to Decree of the Government of the Russian Federation dated May 7, 2003 No. 262, the basis for compensation of losses to land users, landowners and tenants of land plots is:

a) an act of a state executive body or local government body on the seizure of a land plot for state or municipal needs;

b) an agreement on the temporary occupation of a land plot between the land user, landowner, tenant of the land plot and the person in whose favor the temporary occupation of the land plot is carried out;

c) an act of a state executive body or a local government body on restricting the rights of a land user, land owner, tenant of a land plot, an easement agreement;

d) an act of a state executive body or local government body on the deterioration of the quality of land as a result of the activities of other persons;

d) court decision.

There are actually two ways to organize and calculate losses, including lost profits:

1) independently carry out the calculation by mutual agreement of the land user (recipient of the amount of losses) and the person interested in acquiring the land plot (payer of the amount of losses);

2) involve an independent appraiser for calculations and receive an assessment report, which is then used by local governments and executive bodies state power to compensate for losses, including lost profits (making payment or receiving payment). Some organizations also use independent appraisers. The disadvantage of this method is that the cost of appraisal work is often almost equal to or greater than the cost of the losses themselves.

Calculation of losses and lost profits in agricultural production

The land user is interested in maximizing the cost of compensation for losses in agricultural production. In this regard, he tries to indicate in the territory subject to seizure (redemption) such agricultural crops that give the highest yield and the maximum cost of selling a unit of production. Sometimes it gets to the point of absurdity. On a farm where there are only 8 hectares of vegetables (cabbage), they tried to prove that all of them are located precisely in the right-of-way along the oil pipeline route, 30 meters wide and 3 kilometers long.

Therefore, in order to avoid misunderstandings and disputes, it is necessary to photograph the placement of crops on the ground with the participation of the farm agronomist. This will allow you to correctly and accurately determine the type of crop. To plot the placement of agricultural crops, plan-cartographic material at a scale of 1:10,000 or 1:25,000, or whatever is available (topographic survey or general construction plan), is used. In this case, the boundary is removed taking into account the display of the contours of the situation and measurements with a tape measure, or a theodolite rangefinder, or using a GPS navigator.

The boundaries of crops are marked on cartographic material on a plan scale. An inscription is made on the drawing indicating the crop to be placed.

Calculation of losses

The following information is used as initial data when calculating losses in agricultural production:

Type of crops on arable land or other agricultural land: fallow land, hayfield, pasture, perennial plantings;

Seeding rate;

Cost of seeds;

The cost of mineral and organic fertilizers applied to the crop, the costs of their transportation and application;

The cost of tillage, sowing and caring for crops, plant protection;

Additional unaccounted costs (for example, liming of acidic soils, watering, air treatment, etc.).

Types of processing and care of crops are determined both according to those actually produced and according to technological maps when planning crops. It is very important to obtain reliable data on the cost of technological operations. The costs of tillage and crop care consist of the following:

Costs of fuels and lubricants,

Salaries of machine operators,

Costs for repair and maintenance of machine and tractor units,

Depreciation of tractors, machines and implements,

Taxes and deductions.

Formula for calculating losses

To determine real losses, a field survey is initially carried out, during which the types of land and agricultural crops that are displayed on the planning and cartographic material are determined, and the necessary measurements are taken on the ground.

The projected boundaries of land plots are plotted on a cartographic basis using coordinates.

The total area of land being seized is calculated, including by type of land and agricultural crops.

For each land plot or part thereof, by type of agricultural crop, the costs incurred are calculated:

For seeds;

For organic and mineral fertilizers;

Plowing, sowing, care;

Additional unaccounted costs.

For calculations, the initial data provided by the owner of the right to the land plot is used.

Lost profits are defined as the cost of products in prices at which they could have been sold minus previously established costs (losses) for the production of these products.

Calculation of losses of land owners

Calculation of losses of land owners is carried out when determining the redemption value of a land plot or when determining the cost of renting a land plot for the period of construction of an object or when determining a proportionate payment for an easement.

The duration of use of the land plot is taken into account, as well as the damage caused to the soil cover to determine the costs of reclamation, disruption of transport links, and other restrictions and inconveniences on the use of land plots.

Guided by paragraphs 1 and Article 57 of the Land Code of the Russian Federation, the owner has the right to count on compensation for losses in the event of:

Deterioration of land quality as a result of the activities of other persons;

Temporary occupation of land plots;

Restrictions on rights to land.

When a land plot is withdrawn, losses, including lost profits, are included in the redemption price of the land plot.

The owner of a land plot has the right to independently resolve issues related to the organization of work related to determining the cost of losses, including lost profits, performs this work on his own or with the involvement of experts or independent appraisers, signs (approves) calculations, acts of determining losses, agreements on the provision of a land plot upon subject to compensation for damages caused. If no agreement is reached on the cost of damages, the owner protects his interests in court.

Calculation of losses for land users

Losses, including lost profits, are compensated not only to the owners, but also to land users, landowners and tenants of land plots in the cases provided for in paragraph 1 of Article 57 of the Land Code of the Russian Federation, namely:

1) seizure of land plots for state or municipal needs;

2) deterioration in the quality of land as a result of the activities of other persons;

3) temporary occupation of land plots;

4) restriction of the rights of owners of land plots, land users, landowners and tenants of land plots;

5) changing the intended purpose of the land plot on the basis of a petition from a state authority or local government body to transfer the land plot from one category of land to another without agreement with the owner of the land plot.

Losses, including lost profits, costs of reclamation of disturbed lands (biological stage), as a rule, are paid to the owner of the land plot. And then the owner compensates the tenant, the permanent (indefinite) user, the gratuitous user for the losses caused.

Calculation of losses in agricultural production

The cost of losses also depends on the time of withdrawal (purchase) of land, that is, perhaps, at the time of construction, not all processing and care of agricultural crops according to technological maps were carried out.

If the farm has harvested agricultural crops before the start of construction and installation work, then losses are not calculated or only costs incurred and unused for the next year’s harvest are taken into account.

The rates for applying mineral fertilizers are determined according to the data of the chief agronomist of the farm according to those actually applied at the time of withdrawal (buyout) of land (or which were applied last year, if the calculation is carried out in the autumn-winter period). The norm of mineral fertilizers should be introduced in natural (physical) weight, that is, in which they are sold, purchased and applied.

The construction of large linear facilities has been ongoing for a long time, and the largest volume of earthworks is planned for the summer period. In this case, you should agree with the agricultural enterprise that the calculation and payment of losses in agricultural production will be made based on the actual occupied areas and the damage caused.

Calculation of losses upon seizure of land plots

Losses caused to the owner by the seizure of a land plot for state or municipal needs are included in the payment for the seized land plot (redemption price), the procedure for determining which is regulated by civil legislation.

Losses, including lost profits, should be calculated separately in order to:

Take into account the interests of other holders of the right to land plots (tenants, permanent (perpetual) users, free users);

Carry out coordination with the holders of the right to land plots and compensate for the damage caused.

Considering the lengthy process of processing documents for the withdrawal (buyout) and provision of land plots for construction, the calculation of losses in agricultural production is often carried out in the autumn-winter period, when the placement of crops is unknown, that is, before spring sowing. In this case, you should use the crop placement plans that are available in the agricultural organization.

Calculation of damages

The simplest way to determine losses is when interested parties go to the area, take measurements of the land plot, calculate its area and then calculate losses, including lost profits.

In the absence of a spring sowing plan, the placement of crops is determined according to crop rotation. For these purposes, crop rotation schemes are used.

Calculation of the amount of losses caused to land owners

Until March 1, 2015, the requirements of Articles 30-32 of the Land Plot were in force for the preliminary approval of a land plot and the organization of work on the selection of a land plot with the drawing up of a selection act.

Simultaneously with the selection of a land plot, issues related to calculating the amount of losses caused to the owners of land plots and other holders of rights to land plots were resolved.

After March 1, 2015, the person who suffers the losses and the person who causes and pays for the losses in agricultural production make calculations among themselves and reach (or do not reach) agreement on the amount of losses.

Experts or independent appraisers are invited to determine the amount of losses.

Methods for calculating losses

Each party has the right to determine the method of calculating losses and their compensation:

1) by mutual agreement of the parties, including using previously completed calculations, assessment reports or court decisions;

2) with the involvement of experts;

3) with the involvement of independent appraisers;

4) in court.

The most economical (no need to spend money on experts, appraisers and incur legal costs), as well as time-saving, is the calculation of losses in agricultural production by mutual agreement of the parties. However, this method has limitations in application if one of the parties is a local government body or an executive body of state power.

To perform calculations using a unified methodology and current standards, we use our own LOSS program to calculate losses, including lost profits and the cost of costs for the biological stage of reclamation of disturbed lands.

Loss calculation table

In the LOSS program, intended for automated calculation of losses, including lost profits and the cost of costs for the biological stage of reclamation of disturbed lands, the following output form is used.

Calculation of lost profits of agricultural production

To calculate lost profits, the following information is used:

Type of agricultural crops on arable land or natural hayfields, pastures, perennial plantings;

Area of agricultural crop or type of agricultural land;

Average yield of an agricultural crop or type of agricultural land for the five previous years;

Cost of sales per unit of product type;

Cost of losses for the production of these products (previously made calculations);

The coefficient for the period of temporary use, which is determined in accordance with Decree of the Government of the Russian Federation of January 28, 1993 N 77 and is applied by mutual agreement of the parties (we already noted at the beginning of this chapter that we use the text of Decree of the Government of the Russian Federation of January 28, 1993 N 77 in terms of use when calculating losses in agricultural production not as current legal norm, but as a calculation method).

Please note that data on the average yield of agricultural crops and perennial crops from the sown (planting) area should be used according to annual reports for the previous 5 years, and not the planned yield of the current year.

The cost of selling agricultural products is determined not by individual small batches of products, but by the cost of the bulk of the products. In order to stay informed, you need to monitor market prices for crop products. Purchase prices in each subject of the Russian Federation may be different, taking into account local subsidies. In addition, individual constituent entities of the Russian Federation annually adopt standards to determine the cost of losses, including lost profits, when withdrawing agricultural land.

This article highlights some of the problems associated with assessment and cost consulting that arise during the seizure of land plots for state and municipal needs in Moscow. In most cases, the need for such a seizure is associated with the construction of transport highways and the relocation of utility networks. The importance of this work is due to the capital’s transport problems and the deterioration of the existing communal infrastructure.

The main aspects of the procedure for seizure of a land plot are regulated by federal legislation. In particular, the law regulates such issues as:

At the regional level, constituent entities of the Russian Federation and local governments have the right to make additions to existing provisions only within the framework of their powers. In other words, there is a certain ideal “Procrustean bed” into which all subjects of the Federation must squeeze, regardless of the existing practice of formalizing land legal relations in the region.

The procedure for the seizure of land plots at the federal level comes down to a number of sequential elements and stages.

The first step is preparing a decision on seizure. Local government bodies are responsible for informing the owner, land user, and tenant of the land plot about the preparation of a decision on the seizure of the land plot. After this, an act on the selection of land for construction in the absence of a planning project is drawn up. This act is accompanied by diagrams of the location of each land plot on the cadastral plan or cadastral map of the relevant territory, approved by the local government body, in accordance with the possible options for their selection.

In the case of the proposed seizure of a land plot for state or municipal needs, including through redemption, calculations of losses of land owners, land users, landowners, and tenants of land plots are also attached to the act on the selection of the land plot. Accordingly, it is advisable to engage an independent appraiser at this stage.

At the second stage, federal executive authorities, executive authorities of a constituent entity of the Russian Federation or local government bodies make a decision on the seizure of a land plot for state or municipal needs. At this stage, the owner of the land plot, land user and tenant no later than a year before the upcoming seizure must be again notified in writing about this by the body that made the decision on seizure. The purchase of a land plot before the expiration of a year from the date the owner receives such notice is permitted only with the consent of the owner.

At the third stage, the decision to withdraw a land plot for state or municipal needs is subject to state registration with the body that registers rights to the land plot. The owner of the land plot must be notified of the registration, indicating its date.

The last stage is the conclusion of an agreement with the owner or holder of another right to the land plot subject to seizure. This stage occurs when the copyright holder agrees with the upcoming seizure of the land plot from him and in the absence of a dispute about the conditions of the seizure. The main purpose of the agreement is to determine the redemption price of the seized land plot (or the amount of losses when plots are seized from landowners, land users, tenants, i.e. persons who are not the owners of the land), the timing of payment of the redemption price or compensation for losses, and other conditions of seizure. For example, the agreement may include an obligation of the party making the seizure to provide another plot of land to replace the one being seized, including its value in the redemption price. If the owner of the rights to a land plot does not agree with the conditions, the further withdrawal procedure takes place in court.

It would seem that this is a fairly logical scheme and procedure, but the correct implementation of this procedure in Moscow is difficult. The problem of seizure of land plots with buildings located on them is practically not reflected in regulatory documents Moscow government. Among the main documents is the Moscow government decree - PP “On the interaction of executive authorities of the city of Moscow on issues related to the seizure of land plots”, which in one way or another regulates the seizure procedure. But it also does not provide sufficient tools for solving problems that arise within the framework of the seizure of property for state needs in the city of Moscow. It should be noted that the absolute majority of land plots in the city are not registered in ownership; there are only lease agreements for land plots, issued for a certain period or extended for indefinite period. In addition, there are a lot of buildings owned by legal or individuals on the right of ownership, when land legal relations are not formalized at all. In this case, Art. 36 of the Land Code of the Russian Federation states that owners of buildings, structures, structures have exclusive right for the privatization of land plots or the acquisition of the right to lease land plots. Thus, a lease agreement must be concluded with the owner of the building. But what if the site is already located in the red lines of urban planning regulation of the street and road network or the owner does not want to enter into a lease agreement (at the same time, executing a lease agreement without the owner’s consent is a rather difficult procedure)? How to carry out the withdrawal procedure in this case? A similar situation may arise during the demolition of multi-storey buildings, if there are offices or shops on the ground floors.

Steps taken over the past few years in the field of seizure of property for public needs in the city of Moscow have led to decentralization in decision-making, in which many city and private structures are involved. Some are engaged in production administrative documents about seizure, others - by assessment and examination, others carry out conciliation procedures with the owners whose property is subject to seizure, and still others pay compensation. At the same time, the development of project documentation is carried out without a detailed study of the conditions and procedure for compensation for seized objects located on the routes of the designed highways, which ultimately leads to a sharp increase in the time for the withdrawal of enterprises and, as a consequence, an increase in the construction time of the facility. The existing regulatory framework that determines the composition and procedure for the development of project documentation also does not provide for the advanced development of project documentation, which would make it possible to resolve issues of clearing territory for the construction of urban facilities in advance.

It is necessary to create a structure that would accommodate all stages - from exercising control during the development of project documentation to paying monetary compensation. This is also indicated by the experience of other countries with developed market economies. In particular, in Germany, within the municipality, there is a position of commissioner for the seizure and release of territory for municipal needs, who oversees the seizure procedure from beginning to end.

The specificity of tasks in the field of land acquisition for municipal and federal needs requires special preparation from the appraisal organization. A distinctive feature of valuation work for the purpose of seizure of land for municipal or state needs is a deep legal analysis of title documents and the activities of the owner in general on the seized land plot, which requires the valuation organization to have highly qualified lawyers. An appraiser often has to determine the market value of a property that is not prepared for a transaction, without a properly registered land plot, in the absence technical documentation, if the owner refuses to cooperate with the appraiser to provide information about the object of assessment and conduct an inspection. Often, the road construction zone includes objects that no one would have thought of putting on the market for sale. An appraiser’s mistake in the analysis of rights to the object of assessment, the adoption of unlawful assumptions, and manipulation of value can lead to quite serious consequences, including criminal liability not only for the appraiser himself, but also for persons participating in the transaction on the part of government authorities. A positive examination by the SRO Expert Council does not actually guarantee the reliability of the redemption price due to the fact that, in addition to the market value, the appraiser determines the amount of lost profits, other losses, and obligations to third parties that remain outside the scope of the appraisal report. Decree of the Government of the Russian Federation dated 01.01.2001 No. 000 regarding the definition of items of loss is of a general nature, and the methodological recommendations developed for this resolution have not been approved.

Unfortunately, the exchange of experience in the field of assessment for seizure of land plots is still spontaneous, however, such events (including with the participation of foreign colleagues) are still held and are supported by customers of such services. The work of assessing the seizure of land in other countries, in particular in Germany and the United States, is one of the most highly paid and honorable. It is awarded to respected appraisal organizations that have relevant professional experience and a positive reputation. This is due to the high level of responsibility that the appraiser bears to the owner, the state and society. The appraiser, in essence, acts as an arbiter between the state and the owner, which requires the appraiser to comply with high ethical standards.

In our country, the process of choosing an appraisal organization by consumers of appraisal services is not always based on transparent principles, but a shift in this direction is noticeable. As part of the committee on appraisal activities, the ARB adopted recommendations for the selection of appraisal companies and agreed on them with the FAS, which shows the “marketability” of these criteria. We hope that in the field of assessment for land acquisition, customers will use no less significant criteria for choosing an assessment organization than the price of services, assessing the level of professionalism, experience and positive reputation.

Currently, one of the main factors hindering the start of construction of road and bridge facilities is the problem of seizure of land plots with capital construction projects located on them for state and municipal needs. The resolution of these issues in Moscow often continues for several years.

An important role in the seizure procedure is played by appraisal companies, which are called upon to quickly and as objectively determine the market value of the object subject to seizure, as well as losses, lost profits and obligations to third parties in order to make a decision on the payment of monetary compensation. Appraisal companies “without family, without tribe” are often involved in such work; they do not know the valuation methodology for the needs of seizure, do not have on their staff and are not able to attract specialists of a sufficient level, including lawyers, and in some cases estimators. These companies win competitions by offering the minimum contract price. The lack of experience and unprofessionalism of such companies, and in some cases, possibly even malicious intent, can lead to negative economic consequences for the city or to adverse social consequences if the interests of a large number of citizens are involved (for example, when constructing flat parking lots for several thousand cars when the interests of parking lot members and their families are affected). All this can have a negative impact not only on the image of the appraiser himself, but also on government officials. Moreover, it is not always possible to confirm the objectivity of completed assessment reports even with an examination in self-regulatory organizations (in particular, during an examination of the correctness of calculation of losses). In this case, we can only rely on the professionalism and integrity of the appraiser, which are directly proportional to his reputation.

Thus, essential condition When choosing an appraiser, there should be publicity and the opportunity to attract an experienced specialist who has proven himself in the appraisal market.

The Civil Code of the Russian Federation, in the event of the seizure of a land plot for state and municipal needs, recognizes the owner's right to a redemption price, which includes the market value of the land plot and the real estate located on it, as well as all losses caused to the owner by the seizure of the land plot, including losses that he bears in connection with the early termination of his obligations to third parties, including lost profits. By agreement with the owner, he may be provided with another plot of land in exchange for the plot seized for state or municipal needs, with its value included in the redemption price. At the same time, the Civil Code of the Russian Federation does not indicate that the land provided must be of equal value. In addition, the Civil Code of the Russian Federation does not define the terms of redemption as preconditions that must precede the seizure of a land plot on the basis of an agreement reached or the actual forced seizure based on a court decision.

The Land Code of the Russian Federation, defining guarantees of rights to land during the seizure of land plots for public needs, establishes slightly different rules in Articles 55 and 63. The Code provides for preliminary and equivalent compensation in case of forced alienation of a land plot on the basis of a court decision, using various formulations in Articles 55 and 63 of the Land Code of the Russian Federation, which are essentially contradictory.

Clause 1 of Article 63 of the Land Code of the Russian Federation, supplementing the previous provisions, provides that seizure, including through redemption, is carried out after:

Providing, at the request of persons from whom land plots are confiscated, including purchased, equivalent land plots;

Reimbursement of the cost of residential, industrial and other buildings, structures, structures located in the confiscated areas;

Full compensation for losses, including lost profits.

On the issue of determining the redemption price of a land plot when it is withdrawn for state or municipal needs, as well as termination of ownership and use rights to such a plot, Art. 55 of the RF Land Code refers to civil legislation. Civil legislation regulates these issues in Articles 280 and 281 of the Civil Code of the Russian Federation. From the provisions of these articles it follows that the owner of a land plot subject to seizure for state or municipal needs, from the moment of state registration of the decision to seize the site until an agreement is reached or a court decision is made to purchase the site, can own, use and dispose of it at his own discretion and make the necessary costs to ensure the use of the site in accordance with its intended purpose. Payment for a land plot seized for state or municipal needs (redemption price), terms and other conditions of redemption are determined by agreement with the owner of the plot. The agreement includes the obligation of the Russian Federation, a constituent entity of the Russian Federation or a municipal entity to pay the redemption price for the seized plot.

When determining the redemption price, it includes the market value of the land plot and the real estate located on it, as well as all losses caused to the owner by the seizure of the land plot, including losses that he incurs in connection with the early termination of his obligations to third parties, including lost benefit.

If the owner sells the land plot during this period, this plot will be purchased from the new owner. Landowners and land users cannot dispose of a land plot, but they have the right to own and use it before they are compensated for losses caused by the seizure of the plot.

Compensation for losses caused by the seizure of land plots for state or municipal needs; losses during the seizure of land plots for state or municipal needs (clause 1, clause 1, article 57 of the Land Code of the Russian Federation).

However, it should be taken into account that, within the meaning of paragraph 2 of this article, the effect of this provision extends to relations for compensation of losses when seizing land plots for state or municipal needs from land users, landowners and tenants of land plots. Thus, the above provision of the RF Land Code does not concern the issues of calculating losses of owners during the seizure of land plots. Losses of the owners are included in the redemption price, which is calculated in accordance with the norms of civil legislation.

However, the RF Land Code considers compensation for losses as a guarantee of rights to land when a land plot is withdrawn for state or municipal needs. Within the meaning of paragraph 1 of Art. 63 of the Land Code of the Russian Federation, if persons from whom land plots are confiscated are not provided with equivalent plots, then the confiscation of land plots, including through their purchase, for state or municipal needs is carried out after:

Reimbursement of the cost of residential, industrial and other buildings, structures, structures located on seized land plots;

Full compensation for losses, including lost profits.

In addition, owners of land plots when they are withdrawn for state or municipal needs must be compensated for the market value of the land plot.

The procedure for compensation of losses to owners of land plots and other rights holders to land plots is established by the by-laws regulations. Currently, such an act is approved by the Decree of the Government of the Russian Federation of May 7, 2003 No. 262 “Rules for compensation to owners of land plots, land users, landowners and tenants of land plots for losses caused by the seizure or temporary occupation of land plots, restriction of the rights of land owners, land users, landowners and tenants of land plots or deterioration in the quality of land as a result of the activities of other persons"1 1) Rules for compensation to owners of land plots, land users, landowners and tenants of land plots for losses caused by the seizure or temporary occupation of land plots, restriction of the rights of land owners, land users, landowners and tenants of land plots or deterioration in the quality of land as a result of the activities of other persons: [Resolution of the Government of the Russian Federation dated 05/07/2003 No. 262] // Collection of legislation of the Russian Federation. 2003. No. 19. Art. 1843.).

With regard to the seizure of land plots for state or municipal needs, these Rules determine the procedure for compensating losses to land users, landowners and tenants of land plots. The basis for compensation for losses in this case, the Rules call an act of a state executive body or a local government body on the seizure of a land plot for state or municipal needs, as well as a court decision (paragraphs “a”, “d”, paragraph 3 of the Rules). In relation to the owners of land plots, when they are withdrawn, the basis will be only the corresponding court decision (subparagraph “d”, paragraph 2 of the Rules), since paragraph. 2 clause 1 establishes the provision that losses caused to the owner by the seizure of a land plot for state or municipal needs are included in the payment for the seized land plot (redemption price), the procedure for determining which is regulated by civil legislation.

The amount of losses caused by the seizure of land plots for state or municipal needs to owners, land users, landowners and tenants of land plots is determined by agreement of the parties and calculated in accordance with methodological recommendations, approved by Rosreestr in agreement with the Ministry of Economic Development and Trade of the Russian Federation and the Ministry of Property Relations of the Russian Federation.

The damages subject to compensation when land plots are withdrawn for state or municipal needs include: the cost of residential buildings, cultural and community facilities, industrial and other buildings and structures or the costs of moving them to a new location. In these cases, the assessment is made based on the estimated cost of construction of new buildings, facilities and structures equal to the existing ones in terms of usable area, capacity, capacity and level of mechanization (for standard projects);

Cost of fruit and berry, protective and other perennial plantings, work in progress;

Losses (costs) caused by emerging inconveniences of land ownership and land use, losses (costs) necessary to restore the deteriorated quality of land;

Lost profit.

When land plots are withdrawn, as a result of which there is a need for the construction of irrigation, drainage, anti-erosion and anti-mudflow facilities and structures (systems) in a new location, losses are determined based on the estimated cost of work on the construction of facilities and structures (systems), including the cost of design and survey work works, according to the norms, rates and prices in force at the time of land acquisition.

The assessment of water sources (wells, ponds, boreholes, etc.) is carried out according to the estimated cost of work for the construction of new water sources of equal flow rate and water quality, including the cost of design and survey work.

The assessment of fruit-bearing fruit and berry plantings, as well as protective and other perennial plantings, is made based on the cost of seedlings and the cost of planting and growing them before fruiting or crown closure (in prices at the time of land acquisition). In cases where lands occupied by fruit-bearing fruit and berry plantings are withdrawn, lost profits are compensated for the entire period, including the year of land withdrawal and the year of obtaining a harvest of fruit and berry plantings on new lands, equal to that achieved on the withdrawn lands.

S.A. Bogolyubov believes that all other objects, including unfinished construction and non-fruit-bearing fruit and berry plantings, are valued based on the volume of work actually performed by the land user and costs in prices at the time of land acquisition1 1) Bogolyubov, S.A. Land law: textbook / S.A. Bogolyubov. M.: Prospekt. 2008. P. 268.).

When determining the amount of losses caused to tenants of land plots by the seizure of land plots for state or municipal needs, the losses that tenants of land plots incur in connection with the early termination of their obligations to third parties are taken into account, including lost profits, rent paid under the lease agreement for the period after the seizure of the land plot, as well as the cost of the right to conclude a lease agreement for the land plot if it is concluded at auction.

Lost profits are part of the losses of land users caused by the seizure of land plots. Losses in the form of lost profits are caused by the cessation of receiving annual income by land users from the confiscated lands in anticipation of the upcoming period necessary to restore the disrupted production. Lost profits are calculated for the entire period of time required

to restore agricultural production. The lost profit of the owners of the seized land plots is included in the cost of the plot along with other losses.

Losses are compensated to land owners, landowners, land users and land tenants. It must be borne in mind that in this case we do not mean all tenants of land plots, but only those who rent land owned by a public legal entity. Land tenants

privately owned plots, losses associated with early termination lease agreements in connection with the seizure of a site for state or municipal needs are reimbursed by the owner of such site. And such compensation is, in turn, taken into account when determining the redemption price of the land plot.

The losses incurred in practice can be very diverse.

When compensating for losses caused by the seizure of land plots provided for agricultural activities, actual damage

is determined based on the cost of purchased seeds, mineral fertilizers, planting material (not used, deadlines for application missed), material costs for cultivating land in the form of costs for the maintenance and operation of equipment, wage costs, depreciation deductions, transportation and procurement costs, for the acquisition and consumption of diesel fuel, lubricants, payment rent(for advance payment), costs of paying sanctions, etc.

D.V. Dobrachev believes that if land plots provided for construction are withdrawn, the actual damage is determined based on the cost of costs: for carrying out design, survey and other work, for allocating a land plot, preparing a technical passport for design, preparing design estimates, payment for the examination of the project, payment for construction and installation work carried out on the seized land plot, the cost of fencing, expenses for improvement of the construction site, etc.1 1) Dobrachev, D.V. Some questions legal regulation compensation for losses in the field of land relations / D.V. Dobrachev // Lawyer. 2010. No. 2. P. 4.).

The calculation of losses includes not only the expenses actually incurred by the owner, but also the expenses that he may incur in the future in connection with the termination of ownership of the land plot. A special category is losses incurred in connection with the early termination of the land owner’s obligations to third parties. On the one hand, these losses may consist of lost profits (for example, non-receipt of rent for a land plot), on the other hand, compensation of losses to third parties by the owner of the plot and payment of penalties in connection with early

termination of obligations.

Guided by the requirements of reasonableness and fairness, losses caused to third parties in connection with the early termination of obligations must be compensated by the owner, especially since he, in turn, has the right to demand that these amounts be included in the redemption price of the land plot.

However, the owner of the site, who is not an entrepreneur or commercial organization, is liable to his counterparties for obligations only if there is guilt in non-fulfillment or improper fulfillment of obligations. The owner is an individual entrepreneur or commercial organization bears responsibility regardless of guilt, and is exempt from liability by force majeure circumstances - extraordinary and unavoidable circumstances under the given conditions. The adoption by a government body of a decision on redemption is precisely a circumstance insurmountable for the owner, which should relieve him of liability to his counterparties, including the obligation to compensate for losses caused to him. Based on the content of the current legislation, if the owner does not agree with the seizure and the seizure occurs forcibly by a court decision, the losses caused to the counterparties of the owner of the land plot will remain outstanding. If a repurchase agreement is concluded, in which the owner has the right to stipulate conditions that allow him to repay the losses of his counterparties and pay them penalties, the reference to the seizure of the land plot as a circumstance that does not depend on the will of the owner is unlawful.

So, V.P. Mozolin says that, at the same time, in order to eliminate legal uncertainty, in contracts that can be terminated in connection with the seizure of a land plot from the owner, it is advisable to directly provide for the owner’s obligation to compensate his counterparty for losses caused by the early termination of the obligation1 1) Mozolin, V.P. Scientific and practical commentary to the Civil Code of the Russian Federation, part one (article-by-article) / V.P. Mozolin. M.: Normal. 2009. pp. 271-272.).

Within the meaning of paragraph 4 of Art. 57 of the Land Code of the Russian Federation, when calculating the amount of compensation, losses are determined taking into account the value of the property on the day preceding the decision to seize the land plot. However, such a rule contradicts the principle of full compensation for losses caused, since a certain time passes from the moment the decision to seize the land plot is made until the redemption itself.

Therefore, the calculation of losses and the redemption price of the land plot must be made at the time of concluding the redemption agreement.

However, this rule is special in relation to clause 3 of Art. 393 of the Civil Code of the Russian Federation, which determines the price taken into account when compensating for losses. Clause 4 art. 57 of the RF Land Code is aimed at implementing the provision on preliminary compensation for losses and applies to any property, including the land plot itself. The value of the property, taking into account the provisions of Art. 281 of the Civil Code of the Russian Federation must be market-based. Article 3 of the Federal Law of July 29, 1998 No. 135-FZ “On valuation activities in the Russian Federation”1 1) Russian Federation. Laws. On appraisal activities in the Russian Federation: federal law: [adopted by the State Duma on July 29, 1998: as of June 4, 2014] // Collection of legislation of the Russian Federation. 1998. No. 31. Art. 3813.) determines that the market value of the valuation object is the most probable price at which this valuation object can be alienated on the open market in a competitive environment, when the parties to the transaction act reasonably, having all the necessary information, and the transaction price is not affected by any extraordinary circumstances.

When confiscating land plots, depending on whose needs the land is being confiscated, compensation for losses is made from federal budget, budget of a constituent entity of the Russian Federation or local budget. However, in accordance with paragraph 3 of Art. 57 of the Land Code of the Russian Federation, a state, a subject or a municipal entity may impose compensation for losses on the persons in whose favor the land plots are confiscated.

The fact that the RF Land Code provides for compensation for losses by the person in whose favor the land plot is allocated raises the question: what is the relationship between the owner, landowner, land user or tenant and the person to whom the land plot is allocated?

From Art. 279 of the Civil Code of the Russian Federation it follows that the subjects of legal relations regarding the seizure of a land plot for state or municipal needs

are the copyright holder on the one hand, and on the other hand the federal

executive authorities and executive authorities of the constituent entities of the Russian Federation, as well as local government bodies. The person for whom the land plot is allocated is the subject of a completely different legal relationship, the legal relationship regarding the allocation of the land plot for construction or other needs, and is not directly connected in any way with the person from whom the land plot is confiscated for state or municipal needs.

As a result, if the person to whom the land plot is allocated turns out to be dishonest, then the owner of the land plot cannot sue to this person, since civil legislation establishes the obligation to compensate losses to the budgets of the Russian Federation, its constituent entities or municipalities, depending on whose needs the land plot is seized1 1) Zhidomorov, V.A. On the issue of the procedure for compensation of losses to citizens and legal entities when withdrawing land plots for state or municipal needs / V.A. Zhidomorov. M.: Statute. 2009. P. 73.).

For fair compensation for losses, it is necessary to conduct an assessment of the land plot and real estate that is subject to seizure in connection with the seizure of the site. Valuation of a land plot must be carried out in accordance with the Federal Law “On Valuation Activities in the Russian Federation”. Article 8 of this Federal Law established: the assessment of valuation objects is mandatory in the event of involvement in a transaction of valuation objects belonging in whole or in part to the Russian Federation, constituent entities of the Russian Federation or municipalities, including during the redemption or other seizure of property from the owners provided for by the legislation of the Russian Federation for state or municipal needs.

The conditions under which the withdrawal (purchase) of a land plot for state (municipal) needs occurs are established by agreement

sides The current legislation does not establish the form of this agreement, as well as its other party (besides the owner of the site or other legal holder), imposing only the obligation on the Russian Federation, constituent entities of the Russian Federation or municipal entity to pay the redemption price. Logically, the second party to the agreement should be the body exercising, on behalf of the Russian Federation, its constituent entities and municipalities, the right of ownership of land, because when land plots are withdrawn for state or municipal needs from their owners, they become federal, regional or municipal property, respectively .

The form of such an agreement should be an agreement on the purchase of land for state or municipal needs, the form of which should be approved by a special resolution of the Government of the Russian Federation1 1) Abova, T.E. Comment to Civil Code RF part two (item by article) / ed. THOSE. Abova, A.Yu. Kabalkina. M.: Jurayt. 2004. P.120).

Despite the fact that a buyout agreement should be considered as a separate type of agreement, by its nature it is most similar to a purchase and sale agreement (Chapter 30 of the Civil Code of the Russian Federation). Therefore, at the moment, the rules on purchase and sale should be applied to it, taking into account the features established for the purchase and sale of land plots in Art. 37 of the Land Code of the Russian Federation, as well as in § 7 Ch. 30 Civil Code of the Russian Federation. The form of the land purchase and sale agreement must be subject to the requirements provided for in Art. 550 of the Civil Code of the Russian Federation, according to which such an agreement is concluded in a simple

in writing by drawing up one document signed by the parties. The obligation of state registration of a land purchase and sale agreement is not established by law. State registration only the transfer of ownership of the land is subject to. However, it must be borne in mind that this is not a typical sales contract, since one of the parties to the contract is actually forced to enter into it. In this regard, for an agreement on the purchase of land for state or municipal needs, such registration should be provided, since it is an additional level of verification of the legality of the procedure for the seizure of land plots, a means of ensuring the rights of the persons from whom they are seized.

The rule on preliminary equivalent compensation (i.e. payment of the redemption price of the plot in advance) in this case will be a dispositive rule, which can be changed by agreement of the parties, since mandatory preliminary compensation is made only in the event of a forced seizure of the plot by a court decision. But the legislative subtlety lies in the fact that this rule can be changed only at the request of the person from whom the land plot is confiscated. Without the consent of such a person, the authority cannot deviate from the rule on preliminary equivalent compensation, since it is a guarantee of rights to land when withdrawing a land plot for state (municipal) needs.

Difficulty in applying the provisions of Art. 279 - 282 of the Civil Code of the Russian Federation arises when determining the redemption price of a land plot in the event of termination of the right of lifelong inheritable possession and permanent use. Application of Art. 281 of the Civil Code of the Russian Federation in full is impossible here due to the fact that the owner of the land plot - the state or municipal entity - does not change, therefore there is no need to talk about buying out the plot in the literal sense of the word. Consequently, the market value of the land cannot and should not be included in the redemption price. The redemption price itself is determined based on the value of the real estate located on the site and the losses caused to the owner by its withdrawal, including lost profits.

Taking into account that the right of the landowner (land user) to a land plot is a property right and is itself covered by the category “property” in accordance with Art. 128 of the Civil Code of the Russian Federation, its seizure is subject to all guarantees provided for by current legislation for cases when the owner is forcibly deprived of his property. Therefore, the value of the property right of the landowner (land user) may also be an integral part of the compensated losses, if the determination of such value is possible based on the current valuation standards1 1) “In the case of checking the constitutionality of part two of Article 16 of the Moscow City Law “On the basics of paid land use in the city of Moscow” in connection with the complaint of citizen T.V. Blizinskaya”: [resolution of the Constitutional Court of the Russian Federation of December 13, 2001 No. 16-P] // Consultant Plus: reference legal system / developed. NPO "Vychisl. mathematics and computer science". - M.: Consultant Plus, 1997-2012. - Access mode: http://www.consultant.ru.).

Housing Code of the Russian Federation within the meaning of clause 6 of Art. 322 2) Russian Federation. Laws. Housing Code of the Russian Federation: federal law: [adopted by the State Duma on December 29, 2004: as of July 21. 2014] // Collection of legislation of the Russian Federation. 2005. No. 1 (part 1). Art. 14.) assumes that an agreement with the owner of the seized residential premises in connection with the seizure of a land plot for state (municipal) needs determines the conditions for the redemption of such premises and the obligation of the authority to pay the redemption price for it. The size of the redemption price, as well as other terms of the agreement, is determined by the parties themselves. At the same time, as emphasized in paragraph 7 of Art. 32 of the Housing Code of the Russian Federation, the redemption price is determined based on the market and not the inventory value. When determining it, the losses that the owner incurs in connection with a change in place of residence, temporary use of another residential premises before acquiring ownership of another residential premises must be taken into account (if the agreement does not provide for the preservation of the right to use the seized residential premises until the acquisition of ownership of another residential premises ), moving, searching for another residential premises to acquire ownership of it, registering ownership of another residential premises, early termination of one’s obligations to third parties, including lost profits.

Thus, the legislator proposes to exercise their rights to persons from whom a land plot is confiscated for state or municipal needs not only in the form of compensation in kind - by providing a plot (residential premises) in exchange for the confiscated one, but also in the form of receiving monetary compensation at market value for the lost property, as well as losses incurred. At the same time, the owner (other legal holder) is guaranteed that without prior and equivalent compensation for all losses, the land plot (and the real estate located on it) will not be confiscated. However, there are a number of gaps in the legislation related to the purchase agreement itself: it is not considered as a separate type of purchase and sale agreement, and there is no reference to the application of the rules of the land purchase and sale agreement to it; its form is not defined. It is likely that the legislator has overlooked an important point related to compensation for moral damage for a person who has lived on the confiscated plot for a long time, since the fact of such confiscation (alienation against his will) and forced relocation to a new place of residence causes him serious mental, moral suffering. As a consequence, in this case, the amount of compensation should consist of the market value of the seized land plot, full compensation for losses and compensation for moral damage.