Is it necessary to pay for the entire plot or just the parts you use?

A client came to us last month asking for assistance in lowering the amount of unjust enrichment that was gathered for the use of the property's site. 

The land plot contained two objects: scales with a 29 sq. m. area and an outbuilding with a 15 sq. m. area, while the plot itself was 3,970 sq. meters. The question we had to answer was extremely simple: can they pay for the use of a portion of the land plot that is actually used rather than the whole plot? 

According to the claim received by our client, the amount of unjust enrichment is calculated using the total area of the land plot. To reduce the amount of unjust enrichment recovered, we recommended that the client calculate the amount of unjust enrichment based on the area of land required for the actual use of the buildings owned by the client. Before submitting such a document, the defendant must apply for a land management examination, the results of which will allow the area of the actually used plot to be determined. 

According to the legal position established by the Presidium of the Supreme Arbitration Court of the Russian Federation's resolution No. 241/10 from June 29, 2010, the owner of real estate is required to pay a fee for the use of a land plot, based on the area occupied by the property and necessary for its use. This position is unambiguous only in terms of unformed land plots on which real estate objects are situated. 

We began by selecting judicial practice to assess our client's risks. Among the advantages of appointing a land management examination to determine the actual used area in the presence of a formed land plot, we chose positions where: 

• When considering the case, the court stated that the existence of a formed land plot during the disputed period does not support the conclusion that the entire area of this land plot must be used for the operation of the defendant's building.
• The court actually resolved the question of when, to calculate unjust enrichment, the area of a land plot indicated in the Unified State Register of Real Estate can be used, and when it is required for the actual operation of buildings.
• The court stated that a justification for changing the area of a land plot is required, and one such justification could be the formation of a land plot for purposes other than the use of the buildings located there.
• The panel of judges agrees with the mechanism for conducting a land management examination when collecting unjust enrichment, in order to calculate the area required for the operation of buildings located on the land plot. 

As part of the analysis, we looked at examples of negative judicial practice under this mechanism, as well as the courts' reasoning for refusing to change the size of the area. Pay attention to the following court positions: 

• The court stated that if claims are made in relation to a formed land plot, the subject of proof does not include establishing the size of the land plot area that the defendant requires for use as real estate. At the same time, the size of a land plot for real estate operations depends not only on the object's area, but also on its purpose and use. When calculating the amount of unjust enrichment for the use of the land plot on which the property is located, it is necessary to consider not only the area of the land plot occupied by the real estate, but also the area of the land plot required for the operation of such a property, considering its functional purpose, urban planning, and other requirements for operated real estate objects.
• The panel of judges indicated that if a claim is brought for the recovery of unjust enrichment amounting to the amount of the saved payment for the actual use of the land plot, the subject of proof in this claim does not include establishing the size of the area of the land plot, which is required for the defendant to use the real estate owned by right of ownership. The court of first instance correctly denied the request to appoint a land management examination on the issue of determining the area of a land plot to calculate the amount of unjust enrichment. The court also believes that, given the requirements stated in this case and the factually established circumstances, there is no basis for ordering an examination. 

Thus, based on the current positions of higher courts in our client's situation, we concluded that the prospects for the dispute and the possibility of appointing an examination to calculate the actual area used for building operations are relatively favorable. 

The client is currently deciding whether it is economically feasible to initiate such a legal dispute. We will keep you updated on the situation's progress.