Use of the subject of land lease without state registration of the right to lease as a basis for protection of the rights of the owner of the land plot

Abstract

The article analyzes approaches to determining the means of protecting the rights of the owner of a land plot from violations by the counterparty under a land lease agreement from the moment of its conclusion (signing by the parties) until the moment of registration of the lease right in the State Register of Real Rights to Real Property and their restrictions.
The problematic issues of determining the start of the lease agreement (validity), the rights and obligations of the parties under the land lease agreement from the time of its conclusion (sign-ing by the parties) and until the time of state registration of the lease right and after such registration are raised. It is established that the actual use of a land plot on the basis of a concluded but unregistered land lease agreement creates a legal vacuum: on the one hand, such use is not covered by the current definition of unauthorized occupation of a land plot, which has remained unchanged since 2008; on the other hand, it deprives the landowner of effective public-law and private-law response mechanisms. This situation contributes to the formation of an asymmetry of le-gal consequences for bona fide and bad-faith lessees, creates preconditions for abuse, and signifi-cantly increases corruption risks in the sphere of disposal of state- and municipally owned land.
Based on an analysis of legislation, judicial practice, and the factual circumstances of specific cases, the article substantiates the expediency of legislative clarification of the concept of unauthorized occupation of a land plot in light of the registration-based model of the emergence of real rights, as well as the introduction of special administrative liability of officials of state authorities and local self-government bodies for failure to take measures to terminate the use of land plots without proper formalization of real rights. It is demonstrated that ensuring a balance between private and public interests in the sphere of leasing agricultural land requires not only a consistent differentiation between the obligational and real elements of lease relations, but also the formation of effective mechanisms of liability and control capable of preventing the use of land outside the legal framework and guaranteeing effective protection of the landowner’s rights.