What are the grounds for registering property rights over land plots in legal use?

Analysis

 

After the collapse of the USSR, the privatization of lands that were previously in common use began. In the Republic of Azerbaijan, which has just declared its independence, lease agreements were concluded between citizens and cooperatives, garden farms, and other similar institutions under the city (district) executive committees. On the basis of those contracts, citizens acquired the legal right to use land plots. According to Article 9 of the Law on Land Reform adopted on July 9, 1996, the lands given to the legal use of citizens should be transferred to their special (private) ownership free of charge. However, despite the fact that more than 27 years have passed since the adoption of this Law, citizens still face problems related to the recognition and state registration of property rights over land that has been used for long-term use, and they sometimes become just tenants (or users) of the land plots they have spent years on, the houses built on those plots, and the gardens built.

In this article, Tribunat clarifies the issues such as the need to recognize and register property rights over lands that have been in legal use for years and the legal remedies available in this case.

Property rights are protected by the Constitution and local legislation

According to Article 29.3 of the Constitution, the right to property consists of the rights of the owner to possess any movable or immovable property (property), to use the property, and to dispose of the property individually or jointly with others. According to Article 13.2 of the Constitution, the property may be in the form of state, private, and municipal property.

Unlike the right to property, according to Article 700.1 of the Civil Code, the right to lease consists only of using the property according to its purpose and receiving income from that property. As can be seen, a citizen can only use the property owned by him/her with the right of lease and take certain benefits from that property, for example, to settle there, to get fruits and other products by cultivating a garden plot, etc.

However, he/she cannot dispose of that property in any way; in other words, he/she can neither alienate it (sell or donate it) nor give it for free or paid use (lease or rent it).

The right to property, unlike the right to lease, is the full right of a person over movable and immovable property to possess, use, and dispose of the property in any form. Therefore, the recognition of the property right is very important for the citizen's full right to use and dispose of the property, as well as for the protection against the repossession of the land plots by the state, which is the owner of the property, in the future.

According to Article 139 of the Civil Code, property rights and other rights regarding immovable property, limitation, formation, transfer, and termination of these rights must be registered with the state.

The Real Estate Cadastre and Address Registry Service public legal entity (RECARS PLE) under the State Committee on Property Issues under the Ministry of Economy of the Republic of Azerbaijan is the competent body for state registration of rights to real estate in the relevant territorial administrations.

What are the grounds for registering property rights over land plots in legal use? 

Pursuant to Article 9 of the Law on Land Reform, it is determined that the lands under the legal use of individual residential houses, courtyards, private, collective, and cooperative gardens, and gardens under the management of the state horticulture industry shall be transferred to their ownership free of charge in the manner established by legislation.

Pursuant to Article 139.1.7 of the Civil Code and Article 8.0.7 of the Law on the State Registry of Real Estate, lease agreements, orders, and warrants issued by the horticulture departments under the relevant executive authorities regarding garden areas allocated to citizens, the membership book issued according to the list of members of the collective horticulture-community farm or the extract from the minutes of the meeting of the members is considered one of the bases for the formation and registration of property rights over real estate. It should be noted that these horticulture departments were abolished on May 22, 2007, by the Order of the President of the Republic of Azerbaijan.

This means that when a citizen applies to the RECARS PLE with any of the mentioned documents, a plan and size of the land plot should be drawn up, the citizen's property rights should be state-registered, and an extract should be issued to him/her.

However, there is an important point to be noted here. Article 15 of the Law on the State Registry of Real Estate may refuse to register rights over real estate in some cases. The grounds for refusal may be in the following cases: 

• if the right applied for registration is not subject to state registration according to this law;
• if the form and content of documents that are not required to be notarized for state registration of rights do not comply with the requirements established by legislation;
• when a person who is not authorized to submit an application for state registration of rights applies;
• when the act of the executive power or the municipal body on the creation of the right to immovable property is considered invalid in accordance with the legislation;
• when the person who issued a confirmation document on real estate does not have the authority to dispose of the right over that property. 

Pursuant to Article 71.10 of the Constitution, all administrative bodies, including the RECARS PLE, must exercise only the powers prescribed by law. For this reason, if any of the grounds specified in Article 15 do not exist, the territorial offices of the RECARS PLE should register the property right in the name of the citizen.

However, as can be seen from the set of relevant decisions of the Supreme Court of the Republic of Azerbaijan on administrative cases, in practice, the RECARS PLE overstepped the limits of its authority and responded with refusal notices to citizens' appeals with the following pretexts, which are not defined in Article 15 of the Law:

• inconsistency between the in-kind division of the land and the division on the schematic map;
• failure to carry out fencing and demarcation works around the land plot;
• inconsistency in the land plot number according to the address registry;
• failure to submit the original document of the lease agreement, order, and other legal documents of this type and others.

However, the points mentioned above cannot be the basis for limiting a basic human right such as the right to property, and ensuring the elimination of those inconsistencies and deficiencies or helping citizens to eliminate them is on the list of duties of the under the State Committee on Property Issues under the Ministry of Economy of the Republic of Azerbaijan according to the Regulations. For example, if the aforementioned Service detects a discrepancy between the in-kind division of the land plot and the division on the schematic map, it must conduct an inventory of the land plots and ensure that a plan and size are drawn up according to the in-kind division (Paragraph 3.0.23 of the Regulations), if fencing and demarcation works have not been carried out around the land area, must ensure that the bidding works are carried out by private legal entities and individuals (Paragraph 3.0.24 of the Regulations), and if the originals of the legal documents are not submitted, it must make a request to another administrative body, the National Archives Office, and ensure that the originals of the documents are obtained.