of December 22, 2011 No. 9
About practice of consideration by courts of land disputes
Having discussed practice of consideration by courts of land disputes, for the purpose of prevention of miscarriages of justice, the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that the disputes arising in the field of land relations are subject to permission taking into account regulations of the Code of the Republic of Belarus on the earth, the Law of the Republic of Belarus of July 22, 2002 No. 133-Z "About state registration of real estate, the rights to it and transactions with it", acts of the President of the Republic of Belarus (in particular, decrees of February 2, 2009 No. 58 "About some measures for protection of property rights in case of seizure of land for the state needs", of September 23, 2011 No. 431 "About some measures for enhancement of the relations in the field of withdrawal, provision and use of the parcels of land"), and also other regulatory legal acts accepted according to them.
The regulations of civil and other legislation regulating land legal relationship are applied to these relations if other is not stipulated by the legislation about protection and use of lands.
2. Courts should mean that according to the paragraph the land disputes connected with the right of private property to the parcels of land, inheritance of the parcels of land, indemnification, and also disputes between the participants of joint household, persons having capital structures (buildings, constructions) in common property are third Art. 108 of the Code of the Republic of Belarus within competence of the courts about the earth.
Jurisdiction of land dispute Minsk city, city (the cities of regional subordination), district to executive committees does not deprive of the citizen of the right to appeal to the court.
3. Explain to courts that according to the procedure of claim production are subject to consideration in courts of the requirement about recognition invalid transactions with the parcels of land, about recognition of invalid state registration of creation, change, the termination of existence of the parcel of land, origin, transition, the termination of the rights to the parcels of land, about the right to the parcel of land in connection with its sale from the biddings, the disputes arising from the lease agreement of the parcel of land on land easement, about collection of costs for implementation of return of self-willedally busy site, about indemnification to land users citizens in case of seizure of land, other disputes on the right arising from land relations.
4. Claims of citizens to actions (failure to act) of state bodies, other organizations and officials within whose competence decision making in the field of protection and use of lands is including the ministerial procedures listed in Chapter 22 of the list of the ministerial procedures performed by state bodies and other organizations for petitions from citizens No. 200 approved by the Presidential decree of the Republic of Belarus of April 26, 2010 "About the ministerial procedures performed by state bodies and other organizations for petitions from citizens" are subject to consideration according to the rules established in §6 Chapter 29 of the Code of civil procedure of the Republic of Belarus (further – GPK).
Decisions of the state bodies exercising state regulation and control in the field of protection and use of lands according to their competence provided by the Code of the Republic of Belarus about the earth and other acts of the legislation and also other actions (failure to act) of these bodies can be appealed in higher state bodies and (or) in court. Decisions of the state bodies exercising the state control of protection and use of lands can be appealed according to the procedure, established by legal acts (item 3 of Art. 86 of the Code of the Republic of Belarus about the earth).
In case of acceptance and consideration of claims courts should find out whether the obligatory preliminary extrajudicial procedure for appeal is observed in necessary cases and whether term on appeal to the court is passed by the applicant.
5. Draw the attention of courts to need of carrying out thorough training of cases on land disputes to legal proceedings. When making the actions provided by the Art. 262 GPK, judges should consider features of cases of this category, in each case to specify subject and the basis of the claim, and on cases on appeal of actions (failure to act) of state bodies, other organizations and officials - essence of the appealed actions (failure to act), to take measures to receipt of proofs, to discuss questions of need of carrying out preliminary judicial session, survey on site, examination productions.
For the correct permission of land dispute the court should check whether there are documents certifying the right to the parcel of land to research the land management case containing data on borders and the area of the parcel of land.
6. Courts should mean that examination on the cases connected with permission of land disputes is appointed in cases when for clarification of the circumstances important for permission of case special knowledge of land management, construction and other areas are required.
Experimental testimony is recognized complete and objective in the presence it valid conclusions on all questions raised on permission of the expert which are within its competence.
The expert's conclusions about options of determination of procedure for use of the parcel of land, the Section of the parcel of land are subject to careful check by court taking into account arguments of the parties and other proofs on case. If in the expert opinion several possible options of determination of procedure for use of the parcel of land are offered, the Section of the parcel of land, the court taking into account arguments and objections of the parties estimates them and the most acceptable chooses option taking into account interests of each land user. Conclusions of court on this matter shall be motivated, the available options based on comprehensive, complete and objective examination of all facts of the case in their set and comparison with all.
In case of insufficient clarity or incompleteness of the expert opinion the court can appoint additional examination, having charged it to the same or other expert. In case of disagreement with the expert opinion the court has the right to appoint repeated examination, having charged it to other expert.
The refusal of the parties of payment for conducting examination is the basis for leaving of the declared requirements without consideration (item 11 p.1 of the Art. 165 GPK).
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