Land disputes are among the most numerous disputes resolved in the courts. There is a tendency to increase the number of court disputes over land lease dispute relating to compensation for losses caused by territorial communities using land without clearance land use rights and without making payment for the use of the land, easement disputes, and so on. Also a significant number of disputes appeal the decisions of local governments, state agencies under the order of the land (the transfer of land ownership, rent, including rent). We asked experienced lawyer, partner of allTax law firm Artem Sereda to give comments and practical recommendations for land disputes
Considering the land dispute in court it is essential to pay attention to the dispute findings. In the court hearings you can make a motion for the assigning of the land and technical expertise. Expert should be asked to clarify the following issues:
- What is the land plot area?
- Does actual land plot area correspond to the one in the title documents: the state land plot act, excerpt from the registry of real estate right, etc.?
- Is there any land plots overlap? If so, what area is overlapped?
- Is it possible to specify the land plot boundaries?
- Is this possible to specify the land plot turning points and the plot’s boundaries? This issue should be given special attention to, as there were no turning points indicated in the old form of state acts (1970-2001) thus it is impossible to specify the boundaries of actual land plots).
- In case of land plots overlaps it is necessary to specify the size and configuration of such overlap.
After receiving the examination report, the resolutive part of the expert conclusion and the expert’s wording should be carefully studied. Conclusions can be peremptory or presumable. Grounds for peremptory conclusions, including research part, ought to be paid attention to.
Resolutive part reads “presumable” when expert’s conclusion is not rigorous, so with proper rebuttal by the court not be taken into account as appropriate evidence of certain circumstances.
If necessary, depending on the technical expertise conclusion, additional complex expertise can be assigned.
Under experts consideration the next questions can be asked:
- Did the actual size of land Increase from a specific time other than that specified in the title documents?
- If yes, on what size and on what basis?
How to set the boundaries of land plot in the absence of extreme turning points and actual landmarks?
The court can raise the question and oblige the expert to measure the land plots areas of both claimant and defendant. In case of someone’s land plot increase (and correspondent decrease of the other one) and resulting discrepancy of the actual area to the one indicated in the state act, the court will put the question on the actual area of the land plots increase or decrease. After setting the actual areas the court can specify size of land plots overlap. This will recognize the examination results as proper evidence in case of absence of a land plot extreme turning points and landmarks.
Is it necessary to declare a counter-claim in the case of land disputes? Can it help in reaching a positive decision of the court?
The claims for the abolition of the State act on the ownership (or the right of permanent land use), it is desirable to declare a counter claim for recognition of the right of ownership or right to use, as well as invalidating the acquisition of ownership or use of the person submitting the claim. The court must hear the case objectively and comprehensively, and its decision can undo both the state acts on the ground (as a plaintiff and a defendant). Awareness of the fact that both parties (plaintiff and defendant) may lose their right to the land, creates a direct interest of the parties to enter into a settlement agreement, which can be recognized by the court.
Is it worth to join the proceedings as a third party or defendant?
Often the prosecutor acts as plaintiff in this type of cases. The subject of the action is to cancel the order (decision) Rural (village council) or the district administration for the disputed land. In fact, as a result of the recognition orders (decisions) illegal person may lose their right of ownership or use of the land. The direct owner or user of the land to the case may not be involved. But the court (administrative and economic) can get his own initiative as a third party. In this case, you must submit an application for recognition of the owner or user of the defendant, it is advisable to submit written objections to the statement of claim and counter-claim for recognition of the decision (order) of the Act, and the acquisition of ownership or use to the land - the law. The positive decision of the court in which the lawsuit on the abolition of the order (decision) will be denied, and the satisfaction of a counter-claim for recognition of the legitimacy of the acquisition of ownership or use - Secure your legal right to the land.
Is it worth to sue for the land with the public prosecutor or other government agencies?
Courts are an independent branch of government. Attorney Claims for the return of land to the state or municipal property is not to be feared. The courts must always adhere to the letter of the law and in the absence of grounds for satisfaction of the claims to make decisions not in favor of the prosecutor, but rather in the interests of the landowner or lawful user. Good practice to dismiss the claims of prosecutors in land disputes there. The fact that the claimant is the prosecutor's office or other public agency is absolutely no guarantee that such a claim is satisfied.