The courts of two instances ordered the Department of Land and Property Relations of the Ufa Administration, as well as the Ministry of Land and Property Relations of Bashkiria, to pay 46.2 million rubles to the operator of O’Key hypermarkets JSC Dorinda. overpayments for renting land in Ufa. The mayor’s office said they would file a cassation appeal. Experts doubt the prospects for the abolition of judicial acts.
The Eighteenth Arbitration Court of Appeal upheld the decision of the first instance on the recovery of unjust enrichment in the amount of more than 46 million rubles from the Department of Land and Property Relations (UZIO) of the Ufa Administration and the Ministry of Land and Property Relations of Bashkiria.
Since 2015, Dorinda has leased 6.7 hectares of land in Ufa at the intersection of Pugacheva and Borodinskaya streets to complete the construction of a shopping complex and accommodate the O’Key hypermarket. The annual rent amounted to 23.8 million rubles. Also in 2010, Dorinda entered into a lease agreement with the city for 3.5 hectares on Marshal Zhukov Street for the operation of its own hypermarket. The amount of the annual fee for it was set at 2.6 million rubles. In March last year, the company learned that both sites are located on the territory of the second zone of the sanitary protection zone of Ufa water supply sources, and the site on Pugacheva, in addition, is intended for the construction of a transport interchange. Since the plots are limited in circulation, according to Dorinda, the amount of rent cannot exceed the land tax rate of 1.5% of their cadastral value. The company paid at the rate of 5.18%. The cadastral value of the plots is 253 million and 218.8 million rubles.
The plots belong to lands with undelimited state property, therefore, from 2021, lease payments are transferred in favor of the Ministry of Land Property. According to the plaintiff’s calculation, the amount of overpayment under lease agreements in favor of the UZIO from May 2019 to April 2021 amounted to 31.5 million rubles, in favor of the ministry from May 2021 to February 2022 – 12.7 million rubles, about 2 more mln rub. – interest.
In April, the tenant sent letters of claim to the UZIO and the Ministry of Land Property, after which he went to court.
The representative of the department stated in court that the terms of the concluded lease agreement remain in force, and the ministry’s lawyer said that in 2022 the Land Code was amended and plots in the second sanitary protection zone were excluded from the number of restricted in circulation. Also, according to the defendants, the statute of limitations has passed.
It follows from the case file that from May 2019 to February 2022, the disputed plots were limited in circulation, in addition, in March last year, the mayor’s office issued a decree on the withdrawal of part of the plot of 6.7 hectares for municipal needs.
In January of this year, the arbitration court of Bashkiria agreed with Dorinda’s arguments, stating that the lease agreements were concluded without bidding, therefore, the rent for them is regulated. The plaintiff’s calculation was found by the court to be correct.
The defendants disagreed with the decisions and filed appeals.
The Court of Appeal considered that there were no grounds for overturning the decision of the court of first instance, and that the complaints constituted disagreement with the results of the assessment of evidence.
The press service of the administration of Ufa told Kommersant-Ufa that they intended to file a cassation appeal.
“Based on the materials of the case, with a high degree of probability, the judicial acts will be upheld,” says Anna Larina, Executive Director of the Help Management Company. “should have known that the plots were withdrawn from circulation. Moreover, knowing this, they extended the lease agreements and did not consider this to be in any way contrary to their interests.”
Elena Sotnikova, head of the practice of disputes with government bodies at Sotnikovs & Partners, called the court decisions “reasonable and fair.” “The court took into account that the company filed a lawsuit within the limitation period, and applied the methods for calculating the rent for land plots owned by the state and municipal property and limited in circulation, which have already been established in judicial practice,” the expert noted.
