Agricultural cemetery – Newspaper Kommersant No. 209 (7410) dated 11/11/2022

The Supreme Court of the Russian Federation (SC) will clarify who is responsible if part of the land purchased by the investor turned out to be impossible to use – in the absence of land surveying, a cemetery was placed on it. The problem with the boundaries of the plots has existed for a long time and has already been resolved in many regions, but in some areas it remains relevant. In particular, experts say, in New Moscow, which is referred to in the lawsuit, the base coordinate grid is shifted by 10–20 m to the north in relation to real objects.

The Supreme Court will consider an unusual dispute about the illegal use of a piece of land that is privately owned. In January 2010, shareholders of the Mikhailovsky-Rentny closed-end mutual investment fund received a plot of 72.6 thousand square meters in shared ownership. m in New Moscow on the territory of ZAO Kuznetsovsky Combine. The Rudnevskoye cemetery was located on the adjacent plot; in 2018, the Moscow Property Department transferred this land to the Ritual State Budgetary Institution. Based on the results of a survey of the boundaries of the land with a cadastral engineer in August 2018, Mikhailovsky Management Company LLC (UK, manages the assets of a closed-end investment fund) found that there is a “cemetery with auxiliary infrastructure elements” on the site, occupying 17.43 thousand square meters. m.

The Criminal Code wrote to the Moscow Property Department, offering to buy out part of the site occupied by the cemetery, or compensate for the losses, but received no answer. In March 2020, the company applied to the Moscow Arbitration Court for the recovery of 28.5 million rubles from the department. damage, explaining that she did not give permission to use the site for burial.

The claim was rejected. The court found the department’s fault in causing damages unproven. He referred to a letter from the head of the one-stop service department, which stated that the property department had not issued a permit for burial at the Rudnevsky cemetery “from the moment it entered the city of Moscow in 2012 and as of March 25, 2020.” In addition, since the cemetery involves the establishment of a sanitary protection zone, damages should be claimed from the department of Rospotrebnadzor in Moscow, the decision says. In addition, the court considered that the Criminal Code should have learned about the violation of its rights no later than February 15, 2010, that is, it had missed the statute of limitations. Moreover, burials at the site (there are 583 in total) began in 1980, that is, “long before the registration of property rights.” The appeal and cassation agreed with this.

The Criminal Code appealed the decision to the Supreme Court. The company said in a statement that, in violation of land law, part of the site with a permitted use “for agricultural production” was “arbitrarily occupied by burials.” The statement about the non-issuance of burial permits since 2012 is refuted by the act of surveying the site dated May 17, 2019, confirming that “buries were buried on this land until 2019 inclusive and even later.”

According to the Criminal Code, the disputed part of the site cannot be used for its intended purpose, which entails the obligation of the city to compensate for the losses, and the property department, which acts as the “main manager of Moscow’s budget funds,” must answer and it is he who is entrusted with selecting and registering sites for creating new burial sites. The statute of limitations, according to the Criminal Code, has not expired, because in 2010 the site was not demarcated, and “it was not possible to visually determine the overlap of burials.” On October 31, the case was transferred to the Economic Collegium of the Armed Forces, the consideration is scheduled for December 8.

It was not possible to get a comment from the UK. In the Moscow Property Department, Kommersant was told that they were not responsible for the use of the site under the Rudnevsky cemetery, since it was transferred to the Ritual State Budgetary Institution, and they considered it premature to give assessments on the pending trial.

Veronika Velichko, head of the practice of real estate and construction at Avelan law firm, believes that there is a violation of the law, the site (part of it) should be withdrawn for state needs with payment of compensation to the owner. The problem arose due to the fact that the law allowed to register the ownership of land “without establishing boundaries on the ground,” explains Vitaly Mozharovsky, partner at Alumni Partners. He sees another reason in the “legal nihilism of the authorities”, who continued to provide land for burial for nine years after registering the ownership of the plot of ZPIF shareholders.

According to Vitaly Mozharovsky, in practice there are cases of official burials on private lands, and “at the beginning of the 2000s, this was an absolutely typical situation.” However, the expert emphasizes, “it is strange and surprising that such primitive mistakes occur in 2019 in the capital, which is full of experienced professionals and lawyers.” According to him, there are problems with the boundaries of land plots in the regions, for example, in Kurgan, Bryansk and Pskov. On the territory of New Moscow, the expert adds, due to the hasty joining of the regional land cadastre to the city for more than ten years, the base coordinate grid has been shifted by 10–20 m to the north in relation to real objects, which is “a huge error for a densely populated region.”

Veronika Velichko agrees that the responsibility lies with the Moscow property department, which chooses sites for new burial sites, that is, the mistake occurred “through his oversight.” It is impossible to freeze the situation, Ilya Bakhilin, the lawyer of Yukov & Partners, emphasizes: according to the law on funeral business, “burial places can be moved only in case of a threat of constant flooding or other natural disasters”, while “a cemetery cannot be in private ownership and therefore more on agricultural land.

The difficulty is, Veronika Velichko clarifies, that the burials began even before the site was registered with the cadastral register and the right of the closed-end investment fund was registered: the Supreme Court will have to decide whether the fund could have detected a violation even during the purchase. The limitation period for a claim for property damages, three years, is counted from the moment when the plaintiff knew or should have known about the violation of his rights, adds Ilya Bakhilin. He believes that whatever the outcome, this case should motivate private land buyers to “thoroughly inspect the acquired land.”

Ekaterina Volkova, Anna Zanina