How to define “immovable” and “movable” property?

Property features

• the object is subject to state registration;
• there are permits for construction and commissioning;
• meets the characteristics of a part as part of a single complex: it does not have an independent economic purpose, it serves to service a real estate object;
• cannot be sold separately (follows the fate of the main item);
• separation of a part violates the essential properties of the thing and interferes with the functioning of a single complex (disproportionate damage to the intended purpose).

The definition and criteria of real estate are given in:

• Civil Code (Article 130 of the Civil Code of the Russian Federation);
• Federal Law of December 30, 2009 N 384-FZ “Technical Regulations on the Safety of Buildings and Structures”;
• Town Planning Code (Article 1 of the Civil Code of the Russian Federation, Article 51 of the Civil Code of the Russian Federation, Article 55 of the Civil Code of the Russian Federation);
• All-Russian classifier of fixed assets OK 013-2014 (SNS 2008), approved by order of Rosstandart dated December 12, 2014 N 2018-st.

(Letter of the Federal Tax Service of the Russian Federation dated July 30, 2019 N BS-4-21/14997)

Documents justifying the qualification of the object:

• documents of technical accounting or technical inventory of an object as real estate;
• permission for construction and (or) commissioning;
• design or other documentation for the creation of an object and (or) its characteristics;
• opinion of an independent expert;
• the court's decision.

(Letter of the Federal Tax Service of the Russian Federation dated 08/02/2018 N BS-4-21/ [email protected] )

The concept of capital and non-capital buildings

In addition to the concepts of “movable” and “immovable” property, current legislation provides for such concepts as “capital construction object” and “non-capital buildings, structures” (Article 1 of the Town Planning Code; hereinafter referred to as the Civil Code of the Russian Federation).

Capital construction objects are buildings, structures, structures, objects whose construction is not completed (hereinafter referred to as unfinished construction objects), with the exception of non-capital buildings, structures and inseparable improvements to a land plot (paving, covering, etc.) (clause 10 of Article 1 of the Civil Code RF).

Non-permanent buildings, structures - buildings, structures that do not have a strong connection with the ground, the design characteristics of which allow them to be moved and (or) dismantled, subsequent assembly without disproportionate damage to the purpose and without changing the main characteristics of buildings, structures (including kiosks, canopies and other similar buildings and structures).

More details

Distinctive features of buildings that are not capital construction projects:

• lack of a strong connection with the earth;
• the possibility of dismantling and subsequent assembly without disproportionate damage to the intended purpose and without changing the main characteristics;
• fragility of the building (service life, as a rule, no more than 5 years);
• no need to prepare design, construction, permitting documentation;
• There is no requirement for state cadastral registration and state registration of rights, and payment of taxes.

Non-permanent buildings, in particular, are:

• landscaping objects (paving, fences, flower beds, sidewalks, perennial plantings);
• isolated water bodies;
• roadside service facilities (parking lots, payment terminals, telephone booths);
• entertainment facilities (attractions, children's/playgrounds, tents, hockey rinks, football fields);
• temporary (for example, during the construction period) structures for technical, industrial, municipal purposes (recycling points, change houses, warehouses, sheds in parking lots);
• covered underground or air passages;
• ramps;
• mobile structures of prefabricated/dismountable type (storerooms, warehouses, hangars, pavilions);
• advertising structures;
• awnings;
• kiosks;
• shopping pavilions at bus stops, etc.

The list of non-capital construction projects is open.

Based on the systematic interpretation of the specified norms of law, judicial and law enforcement practice, non-capital objects are not real estate objects.

How to recognize real estate

Paving a road, asphalt pavement, a fence around a building – real estate?

Sometimes paving (asphalting) of a road is recognized:

• movable property (Decision of the Court of Justice of the Nizhny Novgorod Region dated February 22, 2019 in case No. A43-13065/2017);
• real estate - part of the land plot (Resolution of the Federal Antimonopoly Service of the Volga Region dated December 16, 2008 in case No. A12-7360/08).

The fencing is also self-sufficient

is not recognized as a real estate object (Resolution of the Presidium of the Supreme Arbitration Court of September 24, 2013 No. 1160/13 in case No. A76-1598/2012).

Are communications within the building immovable: heating, plumbing, ventilation, fire alarms?

All communications provided for in the technical documentation for the building are part of it and form a single real estate object with it, since they do not have an independent economic purpose, but serve the building (Resolution of the Volga District Autonomous District of May 28, 2019 N F06-47057/2019 in case N A12 -14902/2018).

Can an asphalt plant be considered movable property?

If, during the construction of a plant for the specified installation, a technical passport of a non-capital object is drawn up, and the structure itself is included in the register of non-capital objects, then this is a movable object (Resolution of the AS of the West Siberian District of November 21, 2018 in case No. A67-6746/2017).

See also:

• Property tax [Seminar recording dated 12/27/2019]
• Examples of movable and immovable property in the explanations of the Federal Tax Service
• Complex issues of classifying objects as real estate
• How will 1C determine which property is movable and which is not?

Table

Real estate or movable?

Real estate

– land plots, subsoil plots and everything that is firmly connected to the land (movement without disproportionate damage to the purpose of the object is impossible), including buildings, structures, unfinished construction projects (clause 1 of Article 130 of the Civil Code of the Russian Federation).

Real estate also includes premises and parking spaces (paragraph 3, paragraph 1, article 130 of the Civil Code of the Russian Federation).

Ownership of real estate, as well as actions with it, are subject to state registration (Article 131 of the Civil Code of the Russian Federation).

The fact that the property is immovable

indicates (Letter of the Federal Tax Service dated 03/25/2019 N BS-4-21/ [email protected] , Letter of the Federal Tax Service dated 02/08/2018 N BS-4-21/ [email protected] ):

• registration in the Unified State Register of Real Estate;

Registration with the Unified State Register of Real Estate is not a mandatory condition for real estate.

• the presence of a Federal law indicating that the object is real estate (paragraph 2, paragraph 1, article 130 of the Civil Code of the Russian Federation);
• the presence of technical documentation indicating a strong connection with the earth.

Indivisible thing

- a thing, the division of which in kind is impossible without its destruction, damage or change in its purpose and which acts in circulation as a single object of real rights (Clause 1 of Article 133 of the Civil Code of the Russian Federation).

Complicated thing

– a set of different objects united for general use (Article 134 of the Civil Code of the Russian Federation).

If a complex or indivisible thing is a real estate object, then its composition is determined according to the design documentation and technical passport for this object. Its components must be united by a single functional purpose.

movable thing

characterized by signs (Letter of the Ministry of Finance of the Russian Federation dated August 24, 2017 N 03-05-05-01/54266):

• it is accounted for as a separate inventory item in accordance with PBU 6/01;
• functional purpose regardless of the immovable thing;
• dismantling of equipment does not cause disproportionate damage to the property.

If these conditions are met, the object can be considered movable, even if it is part of a registered real estate property according to the technical passport for the object.

When determining the status of an object ( immovable / movable

) controllers suggest following (Letter of the Federal Tax Service dated March 25, 2019 N BS-4-21/ [email protected] ):

• Art. 130 Civil Code of the Russian Federation, art. 131 Civil Code of the Russian Federation;
• the conclusions of the Supreme Court of the Russian Federation dated April 7, 2016 in case No. 310-ES15-16638, the Judicial Collegium for Economic Disputes of the Supreme Court dated September 30, 2015 No. 303-ES15-5520;
• established judicial practice.

Equipment and transport

It is sometimes possible to include inventory items that are part of the real estate and are functionally related to the building as movable property. For example, when production equipment (a paper machine) is installed on the foundation of a building. This is an independent facility that is suitable for operation only as part of a single paper production complex. In addition, this equipment is usually installed on a special foundation and cannot be moved without damaging it and underground utilities. But if necessary, it can be disassembled, transported to another place and reassembled. According to the Ministry of Finance, such a machine is not real estate and cannot be considered as part of a building. But you need to pay attention to the foundation. If, according to the technical documentation, it is not part of the house, then the costs of its creation increase the cost of the equipment and are not included in the calculation of property taxes. If the foundation is indicated in the technical documentation for the building, then it refers to the real estate as part of the facility (Letter of the Ministry of Finance dated February 25, 2013 No. 03-05-05-01/5288). If the equipment has a foundation, is firmly connected to the ground, and cannot be moved without causing damage, it is incorrect to classify it as movable property.

Cars are also not real estate. For example, a tractor is a vehicle that is not connected to the ground. According to the Civil Code, it does not apply to real estate. Crawler tractors are included in the third depreciation group (Government Decree No. 1 of 01.01.2002).

The lecturer will also talk about the changes in 2019:

• will pay the tax now Why does it apply not only to owners, but also to tenants ?
• Does the presence of registered rights to an object have a qualifying value?
• How to determine the cadastral value if the organization owns only part of the property? How can I challenge ?

Draft Federal Law 02/04/02-17/00062515

Amendments to Art. are being prepared. 130 Civil Code of the Russian Federation:

• immovable things
  include land plots, subsoil plots, buildings

Definitions (Article 2871 of the Civil Code as amended by Draft No. 62515):

• Building - a structure in which at least two rooms and (or) parking spaces can be formed;
• Structures - a structure in which premises or parking spaces cannot be formed;
• A room is a separate part of a building, the boundaries of which are partitions or ceilings, and has an independent economic purpose.

• Structures are real estate if they: are firmly connected to the ground,
• have independent economic significance,
• can act in civil circulation separately from other things.

The list of types of structures that do not have the characteristics of real estate is approved by the Government of the Russian Federation. Objects of unfinished construction are recognized as real estate if they have characteristics approved by the Government of the Russian Federation.

See also:

• [02/14/2020 entry] Annual reporting for 2022 in 1C. Property tax
• Inseparable improvements to the leased property with the consent of the tenant, but without compensation
• When do tenants not have to pay property taxes on permanent improvements?
• Million dollar consequences of rental relations
• [04/19/2019 entry] Tax reporting for the 1st quarter of 2022 - we look at the most important things in 1C

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Definition of the concept of “movable property”

According to Article 130 of the Civil Code of the Russian Federation, all things are divided into immovable and movable.

The definition of movable property is made according to the principle of exclusion: movable property includes all things that are not immovable, including money and securities (Clause 2 of Article 130 of the Civil Code of the Russian Federation). That is, everything except land and what is connected with it (buildings, structures, land plots, unfinished construction projects, etc., as well as aircraft and sea vessels, inland navigation vessels, space objects subject to state registration).

Thus, there is no legal definition of movable things in the legislation.

Dictionaries give the following definitions of the concepts movable property (movable property) .

Movable property is property that is not directly connected with the land and is not attached to it (as opposed to real estate). These are mobile, moveable things or those that are capable of moving themselves (transport, livestock), money, securities, the movement of which does not lead to a significant change in their properties (Raizberg B.A., Lozovsky L.Sh., Starodubtseva E.B. "Modern economic dictionary. - 6th ed., revised and supplemented. - M." (INFRA-M, 2011)).

Movable property is property, as opposed to real estate, that is not connected with land or attached to it. Movables include things that can move themselves (animals). Movable property also includes money, mandatory rights of claim, securities, debt certificates (mortgages), writs of execution (Big Legal Dictionary. - M.: Infra-M. A. Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukhareva . 2003).

The political and economic reorganization of the Soviet system brought to the fore a natural legal concept related to the institution of property law, such a concept as real estate, which connects an individual (legal) person and a thing, the owner of the property and the object of property, which has now become part of the civil law. and economic turnover and represents an established institution of legal regulation of relations in relation to the legislation of the Russian Federation.

From a historical point of view, the term “real and movable property” first appeared in the legislation of the Russian Empire during the reign of Peter the Great in January 1712, replacing the existing various concepts regulating the legal status of land plots and buildings. The term “real and movable property” was constantly developed and improved in pre-revolutionary Russian civil law. At that time, land and all kinds of land, houses, plants, factories, shops, all kinds of buildings, including empty ones, as well as railways were recognized as real estate. It should be noted that questions about the strength of the connection between the structure and the ground were quite complex. The decision to classify a building as real or movable property depended on a number of specific circumstances. Real estate was recognized as buildings rising above the ground, as well as buildings underground, for example, mines, as well as minerals, metal ore, minerals and other minerals located in the ground.

Movable property meant all kinds of seagoing and river vessels, books, manuscripts, paintings, all objects related to the sciences and arts, housewares, carriages, agricultural implements, all kinds of tools and materials, horses, livestock, compressed and milked bread, all kinds of supplies, metals and minerals produced from ore in factories, and everything that is extracted from the earth. Movable property also included cash capital, letters of borrowing, bills of exchange, mortgages and obligations of all kinds, as well as the right of gold miners to gold mines located on the state lands of the Cabinet of His Imperial Majesty.

Despite the fact that in the pre-revolutionary period the Russian Empire was firmly part of the Roman-Germanic legal system of law and had every reason to be in demand during the perestroika period, legislators of the former USSR practically did not borrow legal traditions and many developments in the field of pre-revolutionary Russian civil law regulating property issues.

For example, the USSR Law “On Property in the USSR,” adopted on March 6, 1990, still retained three forms of ownership: citizens, collective and state property. Despite the fact that the Property Law of 1990 allowed for a broader interpretation of property owned by citizens, from a legal point of view it did not divide property into movable and immovable property. The division of property owned by citizens was determined only by the nature of their relations and was divided into instruments of production and consumer goods.

By the way, it should be noted that the division of property into movable and immovable property is the main phenomenon for Romano-Germanic legal systems, as for such a concept as “consumable goods”, they have nothing in common with the concept of “consumable thing” known in Romanian legal systems "

It should be noted that Soviet civil law did not contain a definition of the concept of real estate, despite this, the Civil Code of the RSFSR of 1964 contained some rules that made it possible to allocate the ownership rights of citizens to certain things and to carry out transactions with them in separate legal institutions (the right of personal ownership of residential house, contract of sale and purchase of a residential building or cottage).

The division of things into movable and immovable is currently widely used in the legislation of the Romano-Germanic legal system of law. This served as a kind of example in the preparation of the Fundamentals of Civil Legislation of the USSR and the republics.

With the entry into force of the Fundamentals of Civil Legislation of the USSR and the republics, adopted by the Supreme Soviet of the USSR on May 31, 1991, during the period of political and economic reform not only of Soviet law, but also of the Soviet system and the Soviet state as such, norms were already contained dividing property into movable and real estate.

Thus, in Article 4 of the Fundamentals of Civil Legislation of the USSR and republics, legislators revived the completely classical division of things into movable and immovable things. The main feature of immovable and movable things was the strong connection of things with the earth.

In this case, it is advisable to illustrate the borrowing of legal norms from the Roman-German legal system of law using the example of certain classic articles from the French Civil Code, adopted on March 21, 1804, in the discussion of which Napoleon took part.

Thus, article 516 of the French Civil Code (FCC) establishes differences in property, according to which all property is movable and immovable. Articles 517-525 of the Federal Civil Code define immovable things by their nature, by virtue of their purpose, or by virtue of the object to which they belong. Real estate includes: land plots and buildings, standing crops and fruits, forests and so on, as well as machines, tools, raw materials used in the enterprise, agricultural implements and other things, although movable by their physical nature, but intended for operation and maintenance of real estate in the physical sense of the word. To immovable things due to the subject to which they belong: usufruct on immovable things, easements or land duties, claims aimed at the return of immovable property.

Articles 527-529 of the Federal Civil Code define movable property, which is movable by virtue of their nature or by virtue of the definition of law. By their nature, movable property is defined as objects that change their location, such as animals, or when they cannot change their location except by the influence of an outside force, such as inanimate things.

By virtue of the definition of the law, movable property are obligations and claims that have as their subject the payment of sums of money or rights to movable things, shares or shares in financial, commercial or industrial companies, even if the companies owned real estate associated with this enterprise. By force of law, movable property includes perpetual and life annuities, paid by both the state and private individuals.

The above historical and legal excursion related to the revival and introduction into circulation of such a legal concept as “immovable and movable things” will allow us to meaningfully move on to the analysis of the legal mechanism for regulating the real estate market in the Russian Federation.

In the post-perestroika period, the Russian market of real estate and movable things reflects all the problems of the transition economy, which is characterized by uneven development of certain areas of its activity, low investment activity of individuals and legal entities, as well as an imperfect legislative framework. At the same time, the Russian real estate market represents a promising area for capital investment.

In addition, in connection with the development and establishment of market relations in the Russian Federation, as well as in the conditions of growing international interdependence of economic relations, the role and significance of the concept of immovable and movable things in the property status of individuals and legal entities has grown significantly and continues to grow.

An analysis of the legislation of the Russian Federation, adopted during the formation of Russian market relations in 1990-1999, allows us to conclude that immovable things have become goods that are sold and bought in the prescribed manner.

Currently, immovable things represent a special object of ownership.

It should be noted that, in theoretical and practical terms, the right to own, use and dispose of immovable things differs from the rights to own, use and dispose of movable things. This is due to the fact that the use of immovable things, to a greater extent than the use of movable things, affects the interests of other individuals and legal entities. In addition, immovable things, compared to movable things, as a rule, have a higher nominal value.

The division of things into movable and immovable things, introduced into legal use by the Fundamentals of Civil Legislation of the USSR and republics in 1991, is currently reflected in the Civil Code of the Russian Federation.

Thus, Article 130 of the Civil Code of the Russian Federation includes land plots, subsoil plots, isolated water bodies and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible, in including forests, perennial plantings, buildings, structures.

Real estate also includes other property, in particular aircraft and sea vessels, inland navigation vessels, and space objects subject to state registration. The law may classify other property as immovable property.

In accordance with the legislation of the Russian Federation, things not related to real estate, including money and securities, are recognized as movable property. Registration of rights to movable things is not required, except in cases specified in the law.

The Civil Code of the Russian Federation identified real estate as an independent object of civil law and determined the features of its legal regime. These features have found their further independent development in many other legislative acts of the Russian Federation, for example, in such fundamental laws as the Federal Law “On Joint-Stock Companies”, the Federal Law “On Limited Liability Companies”, the Federal Law “On Insolvency (Bankruptcy)” , Federal Law “On Homeowners’ Associations”, Federal Law “On State Registration of Rights to Real Estate and Transactions with It” and a number of other laws.

The norms and provisions of the Civil Code of the Russian Federation are used in the legal regulation of environmental management relations; they unite them into the general category of immovable things along with other objects, which in turn determines the right of private ownership of natural objects, and primarily land plots, and also introduces environmental management objects into civil circulation.

The main feature of the legal regime imposed on real estate is the special procedure for the emergence, change and termination of ownership and other rights to real estate, as well as the presence of special requirements for transactions with real estate.

The list of things equated to immovable things is not exhaustive, since, as follows from paragraph 1 of Article 130 of the Civil Code of the Russian Federation, the legislator may classify other property as immovable things.1

1 Magazine “Real Estate and Investments. Legal regulation" No. 1, 1999.