The Forensic expert kollegium conducts all types of construction and technical expertise (expertise of construction facilities and functionally related territories) both within court proceedings and on a pre-trial basis.
At present, cases involving property held in common shared ownership are quite common in the Republic of Belarus, for example, jointly acquired or inherited property, as well as property resulting from the purchase of a share in a residential house.
At the same time, it is quite understandable that co-owners may wish to separate (isolate) their portion of the property, especially in cases where conflicts exist between them.
In the absence of mutual understanding between co-owners, it is possible to apply to the court to resolve the situation.
Within the framework of court proceedings concerning the division of property held in common shared ownership, special knowledge and the appointment of forensic construction and technical expertise are often required to resolve the issues arising in the case.
To address the issues raised, the court issues a ruling appointing a forensic construction and technical expertise and subsequently forwards it to an expert organization licensed to conduct such expertise.
The most frequently requested expertise in property division cases are forensic construction and technical examinations relating to the division of residential houses and the division of land plots or determination of the procedure for their use.
This article discusses the specific features of conducting construction and technical expertise concerning the division of land plots and the determination of the procedure for their use.
The following questions may generally be submitted for examination:
- Is it possible to divide a land plot with an area of XXX hectares and cadastral number XXX located at: XXX, in accordance with the parties’ ownership shares (lifetime inheritable possession rights), where the co-owners’ shares are XX and YY?
- Is it possible to determine the procedure for the use of a land plot with an area of XXX hectares and cadastral number XXX located at: XXX, in accordance with the parties’ ownership shares (lifetime inheritable possession rights), where the co-owners’ shares are XX and YY?
- Develop options for the division of / determination of the procedure for the use of a land plot with an area of XXX hectares and cadastral number XXX located at: XXX, in accordance with the parties’ ownership shares (lifetime inheritable possession rights), where the co-owners’ shares are XX and YY, in compliance with applicable standards and requirements.
The parties to the case may also propose their own options for the division of or determination of the procedure for the use of land plots (i.e., express their preferences in schematic form).
According to the Law of the Republic of Belarus “On forensic expert activity” dated December 18, 2019, No. 281-Z, forensic expertise are conducted in accordance with methodological materials approved and recommended by the Interdepartmental Scientific and Methodological Council in the Field of Forensic Expert Activity under the State Forensic Examination Committee and included in the Register of Methodological Materials in the Field of Forensic Expert Activity.
To conduct this type of expertise, the following primary documents (or copies thereof) must be provided:
- certificates of state registration of the land plot and the structures located on it (residential house/apartments with their constituent parts and appurtenances);
- technical passports for apartments (residential house) located on the land plot;
- catalogue of coordinates of the boundary turning points of the land plot;
- diagram showing the connection (reference) of the land plot boundary turning points to fixed points (contours, objects) on the terrain;
- excerpt from the topographic survey indicating the location of underground utilities on the land plot.
It may also be necessary to provide materials containing additional information, including land management files relating to the land plot, information regarding the procedure for using the residential house and outbuildings (where the residential house has not been divided), and information regarding perennial plants located on the land plot.
For this type of expertise, an inspection of the property is mandatory in order to establish whether its actual condition corresponds to the submitted documentation and to obtain additional information necessary for the examination (determination of the actual dimensions of buildings and their location on the land plot, presence of visible sections of utilities, location of gates and wickets), including the taking of necessary measurements, recording of results on site, and detailed photographic documentation.
Based on the factual data obtained during the inspection and the documents submitted for expertise, the expert performs a desk study addressing the questions raised.
When conducting an examination concerning the division of land plots or determination of the procedure for their use, the expert is guided by the need to allocate a land area corresponding to the co-owner’s share while complying with applicable requirements, including those relating to access roads, driveways, pathways, service zones for buildings, and engineering utilities. The presence of perennial plants on the land plot is taken into account only if specified by the court in its ruling appointing the expertise.
Where it is necessary to create areas for joint use (for example, due to the presence of shared utilities), the land plot is not divided. In such cases, it is possible to determine the procedure for the use of the land plot.
As a rule, after payment has been made, the required materials have been submitted, and the property inspection has been completed, the expertise is conducted within one month.
The result of the expertise is an expert report containing a description of the property, the course of the examination, and the conclusions reached. The appendices also include graphical representations of the proposed options for the division of or determination of the procedure for the use of the land plot, indicating all necessary dimensions (usually no fewer than two options).
An example of the graphical presentation of options for the division of or determination of the procedure for the use of a land plot is provided below.
Obstacles to conducting the expertise may include the absence of required documents or their unsuitability for examination, failure to provide access to the property, or the presence of unauthorized structures on the land plot.
After the expert report has been prepared, it is submitted to the court in a single copy, where the parties to the case may subsequently review it.
Expertise concerning the division of land plots and the determination of the procedure for their use may also be conducted on a contractual basis in pre-trial proceedings.
You can consult on a expertise on the land plots division at the Forensic expert kollegium at: Minsk, Zhukovskogo st., 11 A, 4th floor
or by phone +375 (17) 317 04 71; +375 (17) 317 04 72; +375 (17) 317 04 73; +375 (17) 317 04 74; +375 (17) 317 04 76; +375 (29) 109 60 11; +375 (44) 588 60 11