CIVIL CODE OF THE RUSSIAN FEDERATION
Section II. OWNERSHIP AND OTHER PROPERTY RIGHTS
On some issues that arise in judicial practice when resolving disputes related to the protection of property rights and other property rights, see Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of 04/29/2010.
Chapter 13. GENERAL PROVISIONS
Article 209. Contents of the right of ownership
1. The owner has the rights to own, use and dispose of his property.
2. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, including alienating his property into the ownership of other persons, transferring it to them, while remaining the owner , the right to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in any other way.
3. Possession, use and disposal of land and other natural resources, to the extent that their circulation is permitted by law (Article 129), is carried out by their owner freely, if this does not cause damage to the environment and does not violate the rights and legitimate interests of other persons.
4. The owner can transfer his property into trust management to another person (trustee). The transfer of property into trust management does not entail the transfer of ownership rights to the trustee, who is obliged to manage the property in the interests of the owner or a third party specified by him.
Article 210. Burden of maintaining property
The owner bears the burden of maintaining the property he owns, unless otherwise provided by law or contract.
Article 211. Risk of accidental loss of property
The risk of accidental death or accidental damage to property is borne by its owner, unless otherwise provided by law or contract.
Article 212. Subjects of property rights
1. The Russian Federation recognizes private, state, municipal and other forms of ownership.
2. Property may be owned by citizens and legal entities, as well as the Russian Federation, constituent entities of the Russian Federation, and municipalities.
3. The specifics of the acquisition and termination of ownership of property, possession, use and disposal of it, depending on whether the property is owned by a citizen or legal entity, owned by the Russian Federation, a subject of the Russian Federation or a municipal entity, can only be established by law.
The law defines the types of property that can only be in state or municipal ownership.
4. The rights of all owners are protected equally.
Article 213. Property rights of citizens and legal entities
1. Citizens and legal entities may own any property, with the exception of certain types of property that, in accordance with the law, cannot belong to citizens or legal entities.
2. The quantity and value of property owned by citizens and legal entities are not limited, except for cases when such restrictions are established by law for the purposes provided for in paragraph 2 of Article 1 of this Code.
3. Commercial and non-profit organizations, except for state and municipal enterprises, as well as institutions, are the owners of property transferred to them as contributions (contributions) by their founders (participants, members), as well as property acquired by these legal entities on other grounds.
4. Public and religious organizations (associations), charitable and other foundations are the owners of the property acquired by them and can use it only to achieve the goals provided for by their constituent documents. The founders (participants, members) of these organizations lose the right to property transferred by them into the ownership of the relevant organization. In the event of liquidation of such an organization, its property remaining after satisfying the claims of creditors is used for the purposes specified in its constituent documents.
Article 214. Right of state property
1. State property in the Russian Federation is property owned by the Russian Federation (federal property), and property owned by subjects of the Russian Federation - republics, territories, regions, cities of federal significance, autonomous regions, autonomous districts (property of the subject Russian Federation).
2. Land and other natural resources that are not owned by citizens, legal entities or municipalities are state property.
3. On behalf of the Russian Federation and the constituent entities of the Russian Federation, the rights of the owner are exercised by the bodies and persons specified in Article 125 of this Code.
4. State-owned property is assigned to state enterprises and institutions for possession, use and disposal in accordance with this Code (Articles 294, 296).
Funds from the corresponding budget and other state property not assigned to state enterprises and institutions constitute the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district.
5. The classification of state property as federal property and as the property of constituent entities of the Russian Federation is carried out in the manner prescribed by law.
Article 215. Right of municipal property
1. Property owned by the right of ownership to urban and rural settlements, as well as other municipal entities, is municipal property.
2. On behalf of the municipality, the rights of the owner are exercised by local government bodies and the persons specified in Article 125 of this Code.
3. Property in municipal ownership is assigned to municipal enterprises and institutions for possession, use and disposal in accordance with this Code (Articles 294, 296).
Local budget funds and other municipal property not assigned to municipal enterprises and institutions constitute the municipal treasury of the corresponding urban, rural settlement or other municipal entity.
Article 216. Property rights of persons who are not owners
1. Property rights, along with the right of ownership, in particular, are:
the right of lifelong inheritable ownership of a land plot (Article 265);
the right to permanent (indefinite) use of a land plot (Article 268);
easements (Articles 274, 277);
the right of economic management of property (Article 294) and the right of operational management of property (Article 296).
2. Real rights to property may belong to persons who are not the owners of this property.
3. The transfer of ownership of property to another person is not a basis for the termination of other proprietary rights to this property.
4. The real rights of a person who is not the owner are protected from their violation by any person in the manner prescribed by Article 305 of this Code.
Article 217. Privatization of state and municipal property
Property that is in state or municipal ownership may be transferred by its owner into the ownership of citizens and legal entities in the manner prescribed by laws on the privatization of state and municipal property.
When privatizing state and municipal property, the provisions provided for by this Code regulating the procedure for the acquisition and termination of ownership rights are applied, unless otherwise provided by the laws on privatization.
Chapter 14. ACQUISITION OF OWNERSHIP
Article 218. Grounds for acquiring property rights
1. The right of ownership to a new thing manufactured or created by a person for himself in compliance with the law and other legal acts is acquired by this person.
The right of ownership to fruits, products, income received as a result of the use of property is acquired on the grounds provided for in Article 136 of this Code.
2. The right of ownership to property that has an owner can be acquired by another person on the basis of a contract of sale, exchange, donation or other transaction on the alienation of this property.
In the event of the death of a citizen, the ownership of his property is inherited by other persons in accordance with a will or law.
In case of reorganization of a legal entity, the ownership of the property belonging to it passes to legal entities - legal successors of the reorganized legal entity.
3. In the cases and in the manner provided for by this Code, a person may acquire ownership rights to property that does not have an owner, to property whose owner is unknown, or to property that the owner has abandoned or to which he has lost ownership on other grounds, provided by law.
4. A member of a housing, housing-construction, dacha, garage or other consumer cooperative, other persons entitled to share savings who have fully paid their share contribution for an apartment, dacha, garage, or other premises provided to these persons by the cooperative, acquire the right of ownership to the specified property.
Article 219. Emergence of ownership rights to newly created real estate
The right of ownership to buildings, structures and other newly created real estate, subject to state registration, arises from the moment of such registration.
Article 220. Processing
1. Unless otherwise provided by the contract, the right of ownership to a new movable thing made by a person by processing materials that do not belong to him is acquired by the owner of the materials.
However, if the cost of processing significantly exceeds the cost of materials, ownership of the new item is acquired by the person who, acting in good faith, carried out the processing for himself.
2. Unless otherwise provided by the contract, the owner of the materials, who has acquired the right of ownership to the thing made from them, is obliged to compensate the cost of processing to the person who carried out it, and in the event of acquisition of the right of ownership to a new thing by this person, the latter is obliged to compensate the owner of the materials for their cost.
3. The owner of materials who have lost them as a result of dishonest actions of the person who carried out the processing has the right to demand the transfer of a new thing into his ownership and compensation for losses caused to him.
Article 221. Taking ownership of things publicly available for collection
In cases where, in accordance with the law, a general permit given by the owner, or in accordance with local custom, the picking of berries, the extraction (catch) of fish and other aquatic biological resources, the collection or extraction of other publicly available things and animals is allowed in a certain territory, ownership the relevant items are acquired by the person who collected or extracted them.
(as amended by Federal Laws dated 03.06.2006 N 73-FZ, dated 04.12.2006 N 201-FZ, dated 06.12.2007 N 333-FZ)
On some issues of application of Article 222, see Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 9, 2010 N 143.
Article 222. Unauthorized construction
1. An unauthorized construction is a residential building, other building, structure or other real estate created on a land plot that is not allocated for these purposes in the manner established by law and other legal acts, or created without obtaining the necessary permits for this or with a significant violation of town planning regulations and building codes.
2. A person who has carried out an unauthorized construction does not acquire ownership rights to it. It does not have the right to dispose of the construction - sell, donate, lease, or make other transactions.
An unauthorized building is subject to demolition by the person who carried it out or at his expense, except for the cases provided for in paragraph 3 of this article.
The right of ownership of an unauthorized construction may be recognized by the court, and in cases provided for by law in another manner established by law, for the person who owns, has lifetime inheritable possession, and whose permanent (perpetual) use is the land plot where the construction was carried out. In this case, the person whose ownership of the building has been recognized shall reimburse the person who carried it out for the costs of construction in the amount determined by the court.
The right of ownership of an unauthorized structure cannot be recognized for the specified person if the preservation of the structure violates the rights and interests protected by law of other persons or creates a threat to the life and health of citizens.
(as amended by Federal Law No. 93-FZ of June 30, 2006)
Article 223. The moment of emergence of the ownership right of the acquirer under the contract
1. The right of ownership of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or the contract.
2. In cases where the alienation of property is subject to state registration, the acquirer’s right of ownership arises from the moment of such registration, unless otherwise provided by law.
Real estate is recognized as belonging to a bona fide purchaser (clause 1 of Article 302) on the right of ownership from the moment of such registration, with the exception of the cases provided for in Article 302 of this Code when the owner has the right to claim such property from a bona fide purchaser.
(paragraph introduced by Federal Law of December 30, 2004 N 217-FZ)
Article 224. Transfer of things
1. Delivery is the delivery of a thing to the acquirer, as well as delivery to a carrier for sending to the acquirer or delivery to a communications organization for forwarding to the acquirer of things alienated without the obligation of delivery.
The thing is considered delivered to the acquirer from the moment it actually comes into the possession of the acquirer or the person indicated by him.
2. If at the time of concluding an agreement on the alienation of a thing it is already in the possession of the acquirer, the thing is recognized as transferred to him from that moment.
3. The transfer of a bill of lading or other document of title to it is equivalent to the transfer of a thing.
Article 225. Ownerless things
1. An ownerless thing is a thing that does not have an owner or the owner of which is unknown or, unless otherwise provided by law, the owner of which has renounced the right of ownership.
(Clause 1 as amended by Federal Law dated July 22, 2008 N 141-FZ)
2. If this is not excluded by the rules of this Code on the acquisition of ownership of things that the owner has refused (Article 226), on finds (Articles 227 and 228), on stray animals (Articles 230 and 231) and treasure (Article 233), ownership of ownerless movable things can be acquired by virtue of acquisitive prescription.
3. Ownerless immovable things are accepted for registration by the body carrying out state registration of rights to real estate, upon application from the local government body in whose territory they are located.
After a year has passed from the date of registration of an ownerless immovable property, the body authorized to manage municipal property may apply to the court with a request to recognize the right of municipal ownership of this thing.
An ownerless immovable property, not recognized by a court decision as having come into municipal ownership, may be again taken into possession, use and disposal by the owner who abandoned it, or acquired into ownership by virtue of acquisitive prescription.
4. In the federal cities of Moscow and St. Petersburg, ownerless real estate located in the territories of these cities is accepted for registration by the authorities carrying out state registration of rights to real estate, upon applications from the authorized state bodies of these cities.
After a year has passed from the date of registration of an ownerless immovable property, the authorized state body of the federal city of Moscow or St. Petersburg may apply to the court with a request to recognize the ownership rights of the federal city of Moscow or St. Petersburg to this thing.
An ownerless immovable property, not recognized by a court decision as having become the property of a federal city of Moscow or St. Petersburg, may be again taken into possession, use and disposal by the owner who abandoned it, or acquired into ownership by virtue of acquisitive prescription.
(Clause 4 introduced by Federal Law dated 02/09/2009 N 7-FZ)
Article 226. Movable things abandoned by the owner
1. Movable things abandoned by the owner or otherwise abandoned by him for the purpose of renouncing the right of ownership of them (abandoned things) may be turned into their property by other persons in the manner provided for in paragraph 2 of this article.
2. A person who owns, possesses or uses a plot of land, a body of water or another object where there is an abandoned thing, the cost of which is clearly lower than the amount corresponding to five times the minimum wage, or abandoned scrap metals, defective products, driftwood from an alloy , dumps and drains formed during the extraction of minerals, industrial waste and other waste, has the right to convert these things into his property by starting to use them or by performing other actions indicating the conversion of the thing into ownership.
(as amended by Federal Law dated June 3, 2006 N 73-FZ)
Other abandoned things become the property of the person who took possession of them if, at the request of this person, they are recognized by the court as ownerless.
Article 227. Finding
1. The person who finds a lost thing is obliged to immediately notify the person who lost it, or the owner of the thing or any other person known to him who has the right to receive it, and return the found thing to this person.
If an item is found on premises or in a vehicle, it must be handed over to the person representing the owner of this premises or vehicle. In this case, the person to whom the find is handed over acquires the rights and bears the responsibilities of the person who found the thing.
2. If the person who has the right to demand the return of the found thing or his whereabouts are unknown, the finder of the thing is obliged to report the find to the police or local government body.
3. The person who finds the thing has the right to keep it or deposit it with the police, local government body or a person indicated by them.
(as amended by Federal Law No. 4-FZ dated 02/07/2011)
A perishable item or an item, the storage costs of which are disproportionately large compared to its value, may be sold by the finder of the item upon receipt of written evidence certifying the amount of proceeds. Money received from the sale of a found item must be returned to the person authorized to receive it.
4. The finder of a thing is liable for its loss or damage only in the case of intent or gross negligence and within the limits of the value of the thing.
Article 228. Acquisition of ownership of a find
1. If, within six months from the date of reporting the find to the police or to a local government body (clause 2 of Article 227), the person authorized to receive the found thing is not identified or does not himself declare his right to the thing to the person who found it or to the police or to the local government body, which finds the thing and acquires ownership of it.
(as amended by Federal Law No. 4-FZ dated 02/07/2011)
2. If the finder of the thing refuses to acquire ownership of the found thing, it becomes municipal property.
Article 229. Reimbursement of expenses associated with the discovery and reward to the finder of the thing
1. The person who found and returned the thing to the person authorized to receive it has the right to receive from this person, and in cases of transfer of the thing into municipal ownership - from the relevant local government body, compensation for the necessary expenses associated with the storage, delivery or sale of the thing, as well as the costs of detection of the person authorized to receive the thing.
2. The finder of a thing has the right to demand from the person authorized to receive the thing a reward for the find in the amount of up to twenty percent of the value of the thing. If the found item is of value only to the person authorized to receive it, the amount of the reward is determined by agreement with this person.
The right to a reward does not arise if the finder of the thing did not report the find or tried to conceal it.
Article 230. Stray animals
1. A person who has detained stray or stray livestock or other stray domestic animals is obliged to return them to the owner, and if the owner of the animals or his place of residence is unknown, no later than three days from the moment of detention, report the discovered animals to the police or local government body, which are taking measures to find the owner.
(as amended by Federal Law No. 4-FZ dated 02/07/2011)
2. During the search for the owner of the animals, they may be left by the person who detained them for their maintenance and use, or handed over for maintenance and use to another person who has the necessary conditions for this. At the request of the person who detained stray animals, the police or a local government body will find a person who has the necessary conditions for their maintenance and transfer the animals to him.
(as amended by Federal Law No. 4-FZ dated 02/07/2011)
3. The person who detained stray animals and the person to whom they were transferred for maintenance and use are obliged to properly maintain them and, if guilty, are responsible for the death and damage of the animals within the limits of their value.
Article 231. Acquisition of ownership rights to stray animals
1. If, within six months from the date of application for detention of stray domestic animals, their owner is not found or does not declare his right to them, the person who kept and used the animals acquires the right of ownership to them.
If this person refuses to acquire ownership of the animals kept by him, they become municipal property and are used in the manner determined by the local government body.
2. In the event of the appearance of the previous owner of the animals after their transfer to the ownership of another person, the former owner has the right, in the presence of circumstances indicating the preservation of affection for him on the part of these animals or cruelty or other improper treatment of them by the new owner, to demand their return on the terms, determined by agreement with the new owner, and if no agreement is reached, by the court.
Article 232. Reimbursement of expenses for the maintenance of stray animals and remuneration for them
In the event of the return of stray domestic animals to the owner, the person who detained the animals and the person who kept them and used them have the right to compensation by their owner for the necessary expenses associated with the maintenance of the animals, including the benefits derived from their use.
A person who has detained stray domestic animals has the right to a reward in accordance with paragraph 2 of Article 229 of this Code.
Article 233. Treasure
1. Treasure, that is, money or valuable objects buried in the ground or otherwise hidden, the owner of which cannot be identified or has lost the right to them by force of law, becomes the property of the person who owns the property (land plot, building, etc. .), where the treasure was hidden, and the person who discovered the treasure, in equal shares, unless otherwise established by agreement between them.
If a treasure is discovered by a person who carried out excavations or a search for valuables without the consent of the owner of the land plot or other property where the treasure was hidden, the treasure must be transferred to the owner of the land plot or other property where the treasure was discovered.
2. If a treasure containing things related to historical or cultural monuments is discovered, they are subject to transfer to state ownership. In this case, the owner of the land plot or other property where the treasure was hidden, and the person who discovered the treasure, have the right to receive together a reward in the amount of fifty percent of the value of the treasure. The remuneration is distributed among these persons in equal shares, unless otherwise established by agreement between them.
If such a treasure is discovered by a person who carried out excavations or searches for valuables without the consent of the owner of the property where the treasure was hidden, remuneration to this person is not paid and goes entirely to the owner.
3. The rules of this article do not apply to persons whose work or official duties included carrying out excavations and searches aimed at discovering treasure.
Article 234. Acquisitive prescription
1. A person - a citizen or a legal entity - who is not the owner of property, but who in good faith, openly and continuously owns either his own real estate for fifteen years or other property for five years, acquires the right of ownership of this property (acquisitive prescription).
The right of ownership to real estate and other property subject to state registration arises in the person who acquired this property by virtue of acquisitive prescription from the moment of such registration.
2. Before the acquisition of property rights by virtue of acquisitive prescription, a person who owns the property as his own has the right to protect his possession against third parties who are not the owners of the property, and who do not have the right to own it by virtue of anything else provided by law or contract grounds.
3. A person referring to the prescription of possession may add to the time of his possession the entire time during which this property was owned by the one whose legal successor this person is.
4. The period of acquisitive limitation in relation to things held by a person from whose possession they could be claimed in accordance with Articles 301 and 305 of this Code begins no earlier than the expiration of the limitation period for the relevant claims.
Chapter 15. TERMINATION OF OWNERSHIP
Article 235. Grounds for termination of ownership rights
1. The right of ownership shall terminate when the owner alienates his property to other persons, the owner renounces the right of ownership, the destruction or destruction of property, and when the right of ownership to property is lost in other cases provided for by law.
2. Forced seizure of property from the owner is not permitted, except in cases where, on the grounds provided for by law, the following is carried out:
1) foreclosure on property for obligations (Article 237);
2) alienation of property that, by virtue of law, cannot belong to a given person (Article 238);
3) alienation of real estate in connection with the seizure of a plot (Article 239);
4) redemption of mismanaged cultural property and domestic animals (Articles 240 and 241);
5) requisition (Article 242);
6) confiscation (Article 243);
7) alienation of property in cases provided for in paragraph 4 of Article 252, paragraph 2 of Article 272, Articles 282, 285, 293, paragraphs 4 and 5 of Article 1252 of this Code.
By decision of the owner, in the manner prescribed by privatization laws, property in state or municipal ownership is alienated into the ownership of citizens and legal entities.
The conversion into state ownership of property owned by citizens and legal entities (nationalization) is carried out on the basis of law with compensation for the cost of this property and other losses in the manner established by Article 306 of this Code.
Article 236. Renunciation of ownership rights
A citizen or legal entity may renounce the right of ownership of property owned by him by declaring this or taking other actions that definitely indicate his removal from the possession, use and disposal of property without the intention of retaining any rights to this property.
Relinquishment of the right of ownership does not entail the termination of the rights and obligations of the owner in relation to the relevant property until the acquisition of ownership of it by another person.
Article 237. Levy of execution on property for the obligations of the owner
1. Seizure of property by foreclosure on it for the obligations of the owner is carried out on the basis of a court decision, unless a different procedure for foreclosure is provided for by law or agreement.
2. The right of ownership to the property that is being foreclosed shall cease with the owner from the moment the right of ownership to the seized property arises from the person to whom this property is transferred.
Article 238. Termination of a person’s right of ownership to property that cannot belong to him
1. If, on the grounds permitted by law, a person owns property that by force of law cannot belong to him, this property must be alienated by the owner within a year from the moment the right of ownership to the property arises, unless a different period is established by law.
2. In cases where the property is not alienated by the owner within the time period specified in paragraph 1 of this article, such property, taking into account its nature and purpose, by a court decision made at the request of a state body or local government body, is subject to forced sale with transfer to the former to the owner of the proceeds or transfer to state or municipal ownership with compensation to the former owner for the value of the property determined by the court. In this case, the costs of alienation of property are deducted.
3. If in the ownership of a citizen or legal entity, on grounds permitted by law, there appears to be a thing for the acquisition of which a special permit is required, and its issuance to the owner is refused, this thing is subject to alienation in the manner established for property that cannot belong to this owner.
Article 239. Alienation of real estate in connection with the seizure of the plot on which it is located
1. In cases where the seizure of a land plot for state or municipal needs or due to improper use of the land is impossible without termination of ownership of buildings, structures or other real estate located on this site, this property may be seized from the owner through redemption by the state or sale from public auctions in the manner provided, respectively, by Articles 279 - 282 and 284 - 286 of this Code.
The demand for seizure of real estate is not subject to satisfaction unless the state body or local government body that filed this demand with the court proves that the use of the land plot for the purposes for which it is seized is impossible without termination of the right of ownership to this real estate.
2. The rules of this article are applied accordingly when the right of ownership to real estate is terminated in connection with the seizure of mining allotments, water bodies and other isolated natural objects on which the property is located.
(as amended by Federal Law No. 118-FZ of July 14, 2008)
Article 240. Redemption of mismanaged cultural property
In cases where the owner of cultural property, classified in accordance with the law as especially valuable and protected by the state, mismanages these values, which threatens them with the loss of their significance, such values, by a court decision, can be confiscated from the owner through redemption by the state or sale at public auction .
When purchasing cultural property, the owner is reimbursed for its value in the amount established by agreement of the parties, and in case of a dispute, by the court. When selling at public auction, the owner receives the proceeds from the sale minus the costs of conducting the auction.
Article 241. Redemption of domestic animals in case of improper treatment of them
In cases where the owner of domestic animals treats them in clear contradiction with the rules established by law and the norms of humane treatment of animals accepted in society, these animals can be seized from the owner by ransoming them by a person who has submitted a corresponding demand to the court. The ransom price is determined by agreement of the parties, and in case of a dispute, by the court.
Article 242. Requisition
1. In cases of natural disasters, accidents, epidemics, epizootics and other circumstances of an emergency nature, property in the interests of society, by decision of state bodies, may be confiscated from the owner in the manner and under the conditions established by law, with payment to him of the value of the property (requisition ).
2. The assessment, according to which the owner is reimbursed for the value of the requisitioned property, may be challenged by him in court.
3. A person whose property has been requisitioned has the right, upon termination of the circumstances in connection with which the requisition was made, to demand in court the return of the remaining property to him.
Article 243. Confiscation
1. In cases provided for by law, property may be confiscated from the owner free of charge by a court decision in the form of a sanction for committing a crime or other offense (confiscation).
2. In cases provided for by law, confiscation may be carried out administratively. A decision on confiscation made administratively may be challenged in court.
(as amended by Federal Law No. 231-FZ of December 18, 2006)
On some issues of the practice of courts considering disputes arising between participants in common ownership of a residential building, see Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 10, 1980 No. 4.
Chapter 16. COMMON PROPERTY
Article 244. Concept and grounds for the emergence of common property
1. Property owned by two or more persons belongs to them under the right of common ownership.
2. Property may be in common ownership with the determination of the share of each owner in the right of ownership (shared ownership) or without determination of such shares (joint ownership).
3. Common ownership of property is shared, except for cases where the law provides for the formation of joint ownership of this property.
4. Common property arises when two or more persons acquire property that cannot be divided without changing its purpose (indivisible things) or is not subject to division by force of law.
Common ownership of divisible property arises in cases provided for by law or contract.
5. By agreement of the participants in joint ownership, and if no agreement is reached, by a court decision, shared ownership of these persons may be established on the common property.
Article 245. Determination of shares in the right of shared ownership
1. If the shares of participants in shared ownership cannot be determined on the basis of law and are not established by agreement of all its participants, the shares are considered equal.
2. By agreement of all participants in shared ownership, a procedure for determining and changing their shares may be established depending on the contribution of each of them to the formation and growth of common property.
3. A participant in shared ownership who has carried out inseparable improvements to this property at his own expense in compliance with the established procedure for the use of common property has the right to a corresponding increase in his share in the right to common property.
Separable improvements to common property, unless otherwise provided by agreement of the participants in shared ownership, become the property of the participant who made them.
Article 246. Disposal of property in shared ownership
1. Disposal of property in shared ownership is carried out by agreement of all its participants.
2. A participant in shared ownership has the right, at his own discretion, to sell, donate, bequeath, pledge his share or otherwise dispose of it in compliance with the rules provided for in Article 250 of this Code during its alienation for compensation.
Article 247. Possession and use of property in shared ownership
1. Possession and use of property in shared ownership is carried out by agreement of all its participants, and if agreement is not reached, in the manner established by the court.
2. A participant in shared ownership has the right to be given for his possession and use a part of the common property commensurate with his share, and if this is not possible, he has the right to demand appropriate compensation from other participants who own and use the property falling on his share.
Article 248. Fruits, products and income from the use of property in shared ownership
Fruits, products and income from the use of property in shared ownership enter into the common property and are distributed among the participants in shared ownership in proportion to their shares, unless otherwise provided by an agreement between them.
Article 249. Expenses for the maintenance of property in shared ownership
Each participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on the common property, as well as in the costs of its maintenance and preservation.
Article 250. Pre-emptive right to purchase
1. When selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have the preemptive right to purchase the share being sold at the price for which it is sold and on other equal conditions, except in the case of sale at public auction.
Public auctions for the sale of a share in the right of common ownership in the absence of consent of all participants in shared ownership may be held in the cases provided for by part two of Article 255 of this Code, and in other cases provided for by law.
2. The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it. If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person.
3. When selling a share in violation of the pre-emptive right, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him.
4. Assignment of the pre-emptive right to purchase a share is not permitted.
5. The rules of this article also apply when alienating a share under an exchange agreement.
Article 251. Moment of transfer of a share in the right of common ownership to the acquirer under an agreement
The share in the right of common ownership passes to the acquirer under the agreement from the moment the agreement is concluded, unless otherwise provided by agreement of the parties.
The moment of transfer of a share in the right of common ownership under an agreement subject to state registration is determined in accordance with paragraph 2 of Article 223 of this Code.
Article 252. Division of property in shared ownership and allocation of a share from it
1. Property in shared ownership may be divided between its participants by agreement between them.
2. A participant in shared ownership has the right to demand the allocation of his share from the common property.
3. If the participants in shared ownership fail to reach an agreement on the method and conditions for the division of common property or the allocation of the share of one of them, the participant in shared ownership has the right to legally demand the allocation in kind of his share from the common property.
If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the allocated owner has the right to have the value of his share paid to him by other participants in shared ownership.
4. The disproportion between the property allocated in kind to a participant in shared ownership on the basis of this article and his share in the right of ownership shall be eliminated by payment of an appropriate sum of money or other compensation.
Payment of compensation to a participant in shared ownership by the remaining owners instead of allocating his share in kind is permitted with his consent. In cases where the owner’s share is insignificant, cannot be realistically allocated and he does not have a significant interest in the use of the common property, the court may, even in the absence of the consent of this owner, oblige the remaining participants in the shared ownership to pay him compensation.
5. Upon receipt of compensation in accordance with this article, the owner loses the right to a share in the common property.
Article 253. Possession, use and disposal of jointly owned property
1. Participants in joint ownership, unless otherwise provided by agreement between them, jointly own and use common property.
2. The disposal of jointly owned property is carried out by the consent of all participants, which is assumed regardless of which of the participants makes the transaction to dispose of the property.
3. Each of the participants in joint ownership has the right to enter into transactions for the disposal of common property, unless otherwise follows from the agreement of all participants. A transaction related to the disposal of common property made by one of the participants in joint ownership may be declared invalid at the request of the remaining participants on the grounds that the participant who made the transaction did not have the necessary powers only if it is proven that the other party to the transaction knew or obviously should have know about it.
4. The rules of this article apply to the extent that this Code or other laws do not establish otherwise for certain types of joint ownership.
Article 254. Division of jointly owned property and allocation of a share from it
1. The division of common property between the participants in joint ownership, as well as the allocation of the share of one of them, can be carried out after the preliminary determination of the share of each of the participants in the right to the common property.
2. When dividing common property and separating a share from it, unless otherwise provided by law or agreement of the participants, their shares are recognized as equal.
3. The grounds and procedure for the division of common property and the allocation of a share from it are determined according to the rules of Article 252 of this Code insofar as otherwise for certain types of joint property is not established by this Code, other laws and does not follow from the essence of the relations of the participants in joint property.
Article 255. Foreclosure of a share in common property
The creditor of a participant in shared or joint ownership, if the owner of other property is insufficient, has the right to make a demand for the allocation of the debtor's share in the common property for foreclosure on it.
If in such cases the allocation of a share in kind is impossible or the remaining participants in shared or joint ownership object to this, the creditor has the right to demand that the debtor sell his share to the remaining participants in the common property at a price commensurate with the market value of this share, with the proceeds from the sale being used to repay the debt.
If the remaining participants in the common property refuse to acquire the debtor's share, the creditor has the right to demand in court the foreclosure of the debtor's share in the common property right by selling this share at public auction.
Article 256. Common property of spouses
1. Property acquired by spouses during marriage is their joint property, unless an agreement between them establishes a different regime for this property.
2. Property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift or by inheritance, is his property.
Items for personal use (clothing, shoes, etc.), with the exception of jewelry and other luxury items, although acquired during marriage at the expense of the spouses’ common funds, are recognized as the property of the spouse who used them.
The property of each spouse may be recognized as their joint property if it is established that during the marriage, investments were made from the common property of the spouses or the personal property of the other spouse that significantly increased the value of this property (major repairs, reconstruction, re-equipment, etc. ). This rule does not apply if the agreement between the spouses provides otherwise.
The exclusive right to the result of intellectual activity belonging to the author of such result (Article 1228) is not included in the common property of the spouses. However, income received from the use of such a result is the joint property of the spouses, unless otherwise provided by an agreement between them.
(paragraph introduced by Federal Law of December 18, 2006 N 231-FZ)
3. For the obligations of one of the spouses, recovery may be made only on the property owned by him, as well as on his share in the common property of the spouses, which would be due to him upon division of this property.
4. The rules for determining the shares of spouses in common property during its division and the procedure for such division are established by family law.
(as amended by Federal Law No. 49-FZ dated April 24, 2008)
Article 257. Property of a peasant (farm) enterprise
1. The property of a peasant (farm) enterprise belongs to its members on the right of joint ownership, unless otherwise established by law or an agreement between them.
2. The joint ownership of members of a peasant (farm) enterprise includes the land plot granted to this farm or acquired, outbuildings and other buildings, reclamation and other structures, productive and working livestock, poultry, agricultural and other machinery and equipment, vehicles, inventory and other property acquired for the farm using the common funds of its members.
(as amended by Federal Law dated December 4, 2006 N 201-FZ)
3. Fruits, products and income received as a result of the activities of a peasant (farm) enterprise are the common property of the members of the peasant (farm) enterprise and are used by agreement between them.
Article 258. Division of property of a peasant (farm) enterprise
1. When a peasant (farm) enterprise is terminated due to the withdrawal of all its members or for other reasons, the common property is subject to division according to the rules provided for in Articles 252 and 254 of this Code.
In such cases, the land plot is divided according to the rules established by this Code and land legislation.
2. A plot of land and means of production belonging to a peasant (farm) enterprise are not subject to division when one of its members leaves the enterprise. Those who leave the farm have the right to receive monetary compensation commensurate with their share in the common ownership of this property.
3. In the cases provided for by this article, the shares of members of a peasant (farm) enterprise in the right of joint ownership of the property of the enterprise are recognized as equal, unless otherwise established by agreement between them.
Article 259. Property of a business partnership or cooperative formed on the basis of the property of a peasant (farm) enterprise
1. Members of a peasant (farm) enterprise may create a business partnership or production cooperative on the basis of the property of the farm. Such a business partnership or cooperative, as a legal entity, has the right of ownership to property transferred to it in the form of contributions and other contributions by members of the farm, as well as to property received as a result of its activities and acquired on other grounds permitted by law.
2. The amount of contributions of participants in a partnership or members of a cooperative created on the basis of the property of a peasant (farm) farm is established based on their shares in the right of common ownership of the property of the farm, determined in accordance with paragraph 3 of Article 258 of this Code.
Chapter 17. RIGHT OF OWNERSHIP AND OTHER PROPERTIES
LAND RIGHTS
(as amended by Federal Law dated April 16, 2001 N 45-FZ)
Article 260. General provisions on land ownership
1. Persons who own a plot of land have the right to sell it, donate it, pledge it or lease it and otherwise dispose of it (Article 209) insofar as the relevant lands are not excluded from circulation or limited in circulation on the basis of law.
2. On the basis of the law and in the manner established by it, lands for agricultural and other special purposes are determined, the use of which for other purposes is not allowed or is limited. The use of a land plot classified as such land can be carried out within the limits determined by its intended purpose.
Footnote removed. - Federal Law of April 16, 2001 N 45-FZ.
Article 261. Land plot as an object of ownership rights
1. Lost power. - Federal Law of December 4, 2006 N 201-FZ.
2. Unless otherwise established by law, the right of ownership of a land plot extends to the surface (soil) layer and water bodies located within the boundaries of this plot, and the plants located on it.
(as amended by Federal Laws dated 03.06.2006 N 73-FZ, dated 04.12.2006 N 201-FZ)
3. The owner of a land plot has the right to use, at his own discretion, everything that is above and below the surface of this plot, unless otherwise provided by laws on subsoil, on the use of air space, other laws and does not violate the rights of other persons.
Article 262. Land plots for public use. Access to the land plot
1. Citizens have the right to freely, without any permission, be on land plots that are not closed to public access and are in state or municipal ownership, and to use the natural objects available on these plots to the extent permitted by law and other legal acts, as well as by the owner the corresponding land plot.
2. If the land plot is not fenced or its owner has not otherwise clearly indicated that entry to the plot without his permission is not permitted, any person may pass through the plot, provided that this does not cause damage or disturbance to the owner.
Article 263. Development of a land plot
1. The owner of a land plot may erect buildings and structures on it, carry out their reconstruction or demolition, and permit construction on his plot by other persons. These rights are exercised subject to compliance with town planning and construction norms and rules, as well as requirements regarding the intended purpose of the land plot (clause 2 of Article 260).
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
2. Unless otherwise provided by law or agreement, the owner of a land plot acquires the right of ownership to a building, structure and other real estate erected or created by him for himself on the plot belonging to him.
The consequences of unauthorized construction carried out by the owner on a plot of land belonging to him are determined by Article 222 of this Code.
Article 264. Rights to land of persons who are not owners of land plots
1. Land plots may be provided by their owners to other persons on the terms and in the manner provided for by civil and land legislation.
(Clause 1 as amended by Federal Law dated June 26, 2007 N 118-FZ)
2. A person who is not the owner of a land plot exercises his rights of ownership and use of the plot on the terms and within the limits established by law or an agreement with the owner.
3. The owner of a land plot who is not the owner does not have the right to dispose of this plot, unless otherwise provided by law.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
Article 265. Grounds for acquiring the right of lifelong inheritable ownership of a land plot
The right to lifelong inheritable ownership of a land plot in state or municipal ownership is acquired by citizens on the grounds and in the manner provided for by land legislation.
Article 266. Possession and use of a land plot on the right of lifelong inheritable possession
1. A citizen who has the right of lifelong inheritable ownership (the owner of a land plot) has the rights of ownership and use of a land plot, transmitted by inheritance.
2. Unless otherwise follows from the conditions for use of a land plot established by law, the owner of the land plot has the right to erect buildings, structures and other real estate on it, acquiring ownership rights to it.
Article 267. Disposal of a land plot located in lifelong inheritable possession
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
Disposal of a land plot that is in lifelong inheritable possession is not permitted, except in the case of transfer of the right to a land plot by inheritance.
Article 268. Grounds for acquiring the right to permanent (indefinite) use of a land plot
1. The right to permanent (unlimited) use of a land plot in state or municipal ownership is granted to a state or municipal institution, state-owned enterprise, state authority, local government body on the basis of a decision of the state or municipal body authorized to provide land plots for such use.
(as amended by Federal Laws dated December 4, 2006 N 201-FZ, dated June 26, 2007 N 118-FZ)
2. Lost power. - Federal Law of June 26, 2007 N 118-FZ.
3. In the event of reorganization of a legal entity, the right of permanent (indefinite) use of a land plot belonging to it shall be transferred through the procedure of legal succession.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
Article 269. Possession and use of land on the right of permanent (indefinite) use
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
1. A person to whom a land plot is granted for permanent (indefinite) use shall own and use this plot within the limits established by law, other legal acts and the act on granting the plot for use.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
2. A person to whom a land plot is granted for permanent (indefinite) use has the right, unless otherwise provided by law, to independently use the plot for the purposes for which it is provided, including the construction of buildings, structures and other real estate on the plot for these purposes. Buildings, structures, and other real estate created by this person for himself are his property.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
Article 270. Repealed. - Federal Law of December 4, 2006 N 201-FZ.
Article 271. Right to use a land plot by the owner of real estate
1. The owner of a building, structure or other real estate located on a land plot owned by another person has the right to use the land plot provided by such person for this real estate.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
The paragraph is no longer valid. - Federal Law of June 26, 2007 N 118-FZ.
2. When the ownership of real estate located on someone else’s land plot is transferred to another person, he acquires the right to use the corresponding land plot on the same conditions and to the same extent as the previous owner of the property.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
The transfer of ownership of a land plot is not the basis for termination or change of the right to use this plot belonging to the owner of the real estate.
3. The owner of real estate located on someone else’s land plot has the right to own, use and dispose of this real estate at his own discretion, including demolishing the relevant buildings and structures, insofar as this does not contradict the conditions for use of this plot established by law or agreement.
Article 272. Consequences of the loss by the owner of real estate of the right to use the land plot
1. Upon termination of the right to use a land plot granted to the owner of the real estate located on this plot (Article 271), the rights to the real estate left by its owner on the land plot are determined in accordance with an agreement between the owner of the plot and the owner of the corresponding real estate.
2. In the absence or failure to reach an agreement specified in paragraph 1 of this article, the consequences of termination of the right to use the land plot are determined by the court at the request of the owner of the land plot or the owner of the real estate.
The owner of a land plot has the right to demand in court that the owner of the property, after termination of the right to use the plot, release him from the property and restore the plot to its original condition.
In cases where the demolition of a building or structure located on a land plot is prohibited in accordance with the law and other legal acts (residential buildings, historical and cultural monuments, etc.) or cannot be carried out due to the obvious excess cost of the building or structure compared with the value of the land allocated for it, the court, taking into account the grounds for termination of the right to use the land plot and upon presentation of relevant demands by the parties, may:
recognize the right of the owner of real estate to acquire ownership of the land plot on which this real estate is located, or the right of the owner of the land plot to acquire the remaining real estate on it, or
establish the conditions for the use of the land plot by the property owner for a new period.
3. The rules of this article do not apply when a land plot is withdrawn for state or municipal needs (Article 283), as well as when rights to a land plot are terminated due to its improper use (Article 286).
Article 273. Transfer of the right to a land plot upon alienation of buildings or structures located on it
When the ownership of a building or structure that belonged to the owner of the land plot on which it is located is transferred, the ownership of the land plot occupied by the building or structure and necessary for its use is transferred to the acquirer of the building or structure, unless otherwise provided by law.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
Part two is no longer valid. - Federal Law of June 26, 2007 N 118-FZ.
Article 274. The right to limited use of someone else’s land plot (easement)
1. The owner of real estate (land plot, other real estate) has the right to demand from the owner of a neighboring land plot, and, if necessary, from the owner of another land plot (adjacent plot), to grant the right to limited use of the neighboring plot (easement).
An easement can be established to ensure passage and passage through a neighboring land plot, the laying and operation of power lines, communications and pipelines, water supply and land reclamation, as well as other needs of the owner of real estate that cannot be provided without the establishment of an easement.
2. Encumbering a land plot with an easement does not deprive the owner of the plot of the rights of ownership, use and disposal of this plot.
3. An easement is established by agreement between the person requiring the establishment of an easement and the owner of the neighboring plot and is subject to registration in the manner established for the registration of rights to real estate. If no agreement is reached on the establishment or conditions of the easement, the dispute is resolved by the court at the request of the person demanding the establishment of the easement.
4. Under the conditions and in the manner provided for in paragraphs 1 and 3 of this article, an easement may also be established in the interests and at the request of the person to whom the plot is allocated on the right of lifelong inheritable possession or the right of permanent (perpetual) use, and other persons in cases provided for by federal laws.
(as amended by Federal Laws dated June 26, 2007 N 118-FZ, dated December 30, 2008 N 311-FZ)
5. The owner of a plot encumbered with an easement has the right, unless otherwise provided by law, to demand from the persons in whose interests the easement is established a proportionate payment for the use of the plot.
Article 275. Preservation of easement upon transfer of rights to a land plot
1. The easement is preserved in the event of the transfer of rights to the land plot, which is encumbered by this easement, to another person.
2. An easement cannot be an independent subject of sale or purchase, or a pledge, and cannot be transferred in any way to persons who are not the owners of the real estate to ensure the use of which the easement was established.
Article 276. Termination of easement
1. At the request of the owner of a land plot encumbered with an easement, the easement may be terminated due to the disappearance of the grounds on which it was established.
2. In cases where a land plot owned by a citizen or legal entity, as a result of being encumbered with an easement, cannot be used in accordance with the intended purpose of the plot, the owner has the right to demand in court the termination of the easement.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
Article 277. Encumbrance of buildings and structures with servitude
In relation to the rules provided for in Articles 274 - 276 of this Code, an easement may be encumbered by buildings, structures and other real estate, the limited use of which is necessary regardless of the use of the land plot.
Article 278. Levy of execution on a land plot
Foreclosure of a land plot for the obligations of its owner is permitted only on the basis of a court decision.
Article 279. Purchase of land for state and municipal needs
1. A land plot may be seized from the owner for state or municipal needs through redemption.
Depending on whose needs the land is being seized, the purchase is carried out by the Russian Federation, the corresponding constituent entity of the Russian Federation or a municipal entity.
2. The decision to withdraw a land plot for state or municipal needs is made by federal executive authorities, executive authorities of a constituent entity of the Russian Federation or local government bodies.
Federal executive authorities, executive authorities of constituent entities of the Russian Federation, local self-government bodies authorized to make decisions on the seizure of land plots for state or municipal needs, the procedure for preparing and adopting these decisions are determined by federal land legislation.
(as amended by Federal Law dated December 18, 2006 N 232-FZ)
3. The owner of a land plot must be notified in writing by the body that made the decision on the seizure no later than a year before the upcoming seizure of the land plot. The purchase of a land plot before the expiration of a year from the date the owner receives such notice is permitted only with the consent of the owner.
4. The decision of a federal executive body, an executive body of a constituent entity of the Russian Federation or a local government body to seize a land plot for state or municipal needs is subject to state registration with the body that registers rights to the land plot. The owner of the land plot must be notified of the registration, indicating its date.
(as amended by Federal Law dated December 18, 2006 N 232-FZ)
5. Lost power. - Federal Law of June 26, 2007 N 118-FZ.
Article 280. Rights of the owner of a land plot subject to seizure for state or municipal needs
The owner of a land plot subject to seizure for state or municipal needs, from the moment of state registration of the decision to seize the site until an agreement is reached or a court decision is made to purchase the site, may own, use and dispose of it at his own discretion and make the necessary expenses to ensure the use of the site in accordance with with its intended purpose. However, the owner bears the risk of attributing to him, when determining the redemption price of the land plot (Article 281), costs and losses associated with new construction, expansion and reconstruction of buildings and structures on the land plot during the specified period.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
Article 281. Redemption price of a land plot withdrawn for state or municipal needs
1. Payment for a land plot withdrawn for state or municipal needs (redemption price), terms and other conditions of redemption are determined by agreement with the owner of the plot. The agreement includes the obligation of the Russian Federation, a constituent entity of the Russian Federation or a municipal entity to pay the redemption price for the seized plot.
2. When determining the redemption price, it includes the market value of the land plot and the real estate located on it, as well as all losses caused to the owner by the seizure of the land plot, including losses that he incurs in connection with the early termination of his obligations to third parties, including including lost profits.
3. By agreement with the owner, he may be provided with another plot of land in exchange for the plot seized for state or municipal needs, with its value included in the redemption price.
Article 282. Redemption of a land plot for state or municipal needs by court decision
If the owner does not agree with the decision to confiscate a land plot from him for state or municipal needs or an agreement has not been reached with him on the redemption price or other terms of redemption, the federal executive body, the executive body of the constituent entity of the Russian Federation or the local government body that made such a decision , may file a claim for the redemption of the land plot in court. A claim for the purchase of a land plot for state or municipal needs may be brought within three years from the date of sending the notice specified in paragraph 3 of Article 279 of this Code to the owner of the plot.
(as amended by Federal Laws dated December 18, 2006 N 232-FZ, dated June 26, 2007 N 118-FZ)
Article 283. Termination of rights to own and use a land plot when it is withdrawn for state or municipal needs
In cases where a land plot withdrawn for state or municipal needs is owned and used on the basis of the right of lifelong inheritable possession or permanent (perpetual) use, the termination of these rights is carried out in relation to the rules provided for in Articles 279 - 282 of this Code.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
Article 284. Confiscation of a land plot that is not used in accordance with its intended purpose
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
A land plot may be seized from the owner in cases where the plot is intended for agricultural production or housing or other construction and is not used for the corresponding purpose for three years, unless a longer period is established by law. This period does not include the time required to develop the site, as well as the time during which the site could not be used for its intended purpose due to natural disasters or other circumstances precluding such use.
(as amended by Federal Law No. 118-FZ dated June 26, 2007)
Article 285. Confiscation of a land plot used in violation of the law
A land plot can be seized from the owner if the use of the plot is carried out in gross violation of the rules for the rational use of land established by land legislation, in particular if the plot is not used in accordance with its intended purpose or its use leads to a significant decrease in the fertility of agricultural land or a significant deterioration of the environmental situation.
Article 286. Procedure for seizure of a land plot due to its improper use
1. The body of state power or local self-government authorized to make decisions on the seizure of land plots on the grounds provided for in Articles 284 and 285 of this Code, as well as the procedure for mandatory advance warning of plot owners about violations, are determined by land legislation.
2. If the owner of a land plot notifies in writing the body that made the decision to seize the land plot of his consent to implement this decision, the plot is subject to sale at public auction.
3. If the owner of a land plot does not agree with the decision to confiscate the plot from him, the body that made the decision to confiscate the plot may submit a demand for the sale of the plot to the court.
Article 287. Termination of rights to a land plot belonging to persons who are not its owners
Termination of rights to a land plot belonging to tenants and other persons who are not its owners due to improper use of the plot by these persons is carried out on the grounds and in the manner established by land legislation.
Chapter 18. OWNERSHIP AND OTHER PROPERTY RIGHTS
FOR RESIDENTIAL PREMISES
Article 288. Ownership of residential premises
1. The owner exercises the rights of ownership, use and disposal of residential premises belonging to him in accordance with its purpose.
2. Residential premises are intended for the residence of citizens.
A citizen who owns a residential premises can use it for personal residence and for the residence of his family members.
Residential premises can be rented out by their owners for living on the basis of an agreement.
3. Placement of industrial production in residential buildings is not allowed.
The placement by the owner of enterprises, institutions, and organizations in residential premises belonging to him is allowed only after the transfer of such premises to non-residential premises. The transfer of premises from residential to non-residential is carried out in the manner determined by housing legislation.
On the application of Article 289, see Determination of the Constitutional Court of the Russian Federation dated 02/06/2004 N 135-O.
Article 289. Apartment as an object of ownership
The owner of an apartment in an apartment building, along with the premises occupied by him as an apartment, also owns a share in the ownership of the common property of the house (Article 290).
On some issues of the practice of considering disputes about the rights of premises owners to the common property of a building, see Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N 64.
Article 290. Common property of apartment owners in an apartment building
1. The owners of apartments in an apartment building own, by right of common shared ownership, the common premises of the house, the supporting structures of the house, mechanical, electrical, sanitary and other equipment outside or inside the apartment that serves more than one apartment.
2. The owner of an apartment does not have the right to alienate his share in the right of ownership of the common property of a residential building, as well as to perform other actions entailing the transfer of this share separately from the right of ownership of the apartment.
Article 291. Homeowners’ Association
1. Apartment owners, to ensure the operation of an apartment building, the use of apartments and their common property, form associations of apartment (housing) owners.
2. A homeowners’ association is a non-profit organization created and operating in accordance with the law on homeowners’ associations.
Article 292. Rights of family members of owners of residential premises
1. Members of the owner’s family living in residential premises belonging to him have the right to use this premises under the conditions provided for by housing legislation.
Members of the owner's family who are legally capable and have been limited in their legal capacity by the court and who live in the residential premises belonging to him are jointly and severally liable with the owner for the obligations arising from the use of the residential premises.
(paragraph introduced by Federal Law dated May 15, 2001 N 54-FZ, as amended by Federal Law dated April 24, 2008 N 49-FZ)
2. The transfer of ownership of a residential building or apartment to another person is the basis for termination of the right to use residential premises by family members of the previous owner, unless otherwise provided by law.
(as amended by Federal Laws dated May 15, 2001 N 54-FZ, dated December 30, 2004 N 213-FZ)
3. Family members of the owner of residential premises may demand elimination of violations of their rights to residential premises from any persons, including the owner of the premises.
Clause 4 of Article 292 of the Civil Code of the Russian Federation by Resolution of the Constitutional Court of the Russian Federation dated 06/08/2010 N 13-P was recognized as inconsistent with the Constitution of the Russian Federation, in the part that determines the procedure for the alienation of residential premises in which minor family members of the owner of this residential premises live, if this affects them rights or interests protected by law, to the extent that the regulation contained therein - in the meaning given to it by established law enforcement practice - does not allow, when resolving specific cases related to the alienation of residential premises in which minors live, to ensure effective state, in including judicial protection of the rights of those of them who are not formally classified as those under guardianship or trusteeship or those left (according to the guardianship and trusteeship authority at the time of the transaction) without parental care, but are either actually deprived of it at the time of the alienation transaction residential premises, or is considered to be in the care of the parents, despite the fact that such a transaction - contrary to the statutory responsibilities of the parents - violates the rights and legally protected interests of the minor.
4. Alienation of residential premises in which members of the family of the owner of this residential premises who are under guardianship or trusteeship live or minor members of the owner’s family left without parental care (which is known to the guardianship and trusteeship authority), if this affects the rights or interests protected by law of these persons , is permitted with the consent of the guardianship and trusteeship authority.
(Clause 4 as amended by Federal Law dated December 30, 2004 N 213-FZ)
Article 293. Termination of ownership rights to unmanaged residential premises
If the owner of a residential premises uses it for other purposes, systematically violates the rights and interests of neighbors, or mismanages the housing, allowing it to be destroyed, the local government body may warn the owner about the need to eliminate the violations, and if they lead to the destruction of the premises, also assign the owner a proportionate period for renovation of the premises.
If the owner, after a warning, continues to violate the rights and interests of neighbors or uses the residential premises for other purposes, or fails to carry out the necessary repairs without good reason, the court, at the request of a local government body, may decide to sell such residential premises at public auction with payment to the owner of the proceeds from the sale. minus the costs of executing the court decision.
Chapter 19. BUSINESS RIGHT, LAW
OPERATIONAL MANAGEMENT
Article 294. Right of economic management
A state or municipal unitary enterprise, to which property belongs under the right of economic management, owns, uses and disposes of this property within the limits determined in accordance with this Code.
Article 295. Rights of the owner in relation to property under economic management
1. The owner of property under economic management, in accordance with the law, decides on the creation of an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints a director (manager) of the enterprise, and exercises control over the use for its intended purpose and the safety of property belonging to the enterprise.
The owner has the right to receive part of the profit from the use of property under the economic control of the enterprise.
2. An enterprise does not have the right to sell real estate owned by it under the right of economic management, lease it, pledge it, make a contribution to the authorized (share) capital of business companies and partnerships, or otherwise dispose of this property without the consent of the owner.
The rest of the property owned by the enterprise is disposed of by it independently, except for cases established by law or other legal acts.
Article 296. Right of operational management
(as amended by Federal Law dated November 3, 2006 N 175-FZ)
1. An institution and a state-owned enterprise, to which property is assigned by right of operational management, own and use this property within the limits established by law, in accordance with the goals of its activities, the purpose of this property and, unless otherwise established by law, dispose of this property with the consent of the owner of this property.
(Clause 1 as amended by Federal Law dated 05/08/2010 N 83-FZ)
2. The owner of property has the right to withdraw excess, unused or misused property assigned to an institution or a state-owned enterprise or acquired by an institution or a state-owned enterprise at the expense of funds allocated to it by the owner for the acquisition of this property. The owner of this property has the right to dispose of property seized from an institution or state-owned enterprise at his own discretion.
Article 297. Disposal of property of a state-owned enterprise
1. A state-owned enterprise has the right to alienate or otherwise dispose of the property assigned to it only with the consent of the owner of this property.
A state-owned enterprise independently sells the products it produces, unless otherwise established by law or other legal acts.
2. The procedure for distributing income of a state-owned enterprise is determined by the owner of its property.
Article 298. Disposal of the property of an institution
(as amended by Federal Law dated 05/08/2010 N 83-FZ)
1. A private institution does not have the right to alienate or otherwise dispose of property assigned to it by the owner or acquired by this institution at the expense of funds allocated to it by the owner for the acquisition of such property.
A private institution has the right to carry out income-generating activities only if such a right is provided for in its constituent document, while the income received from such activities and the property acquired from these incomes are at the independent disposal of the private institution.
2. An autonomous institution, without the consent of the owner, has no right to dispose of real estate and especially valuable movable property assigned to it by the owner or acquired by the autonomous institution at the expense of funds allocated to it by the owner for the acquisition of such property. The autonomous institution has the right to dispose of the remaining property that it has under the right of operational management independently, unless otherwise provided by law.
An autonomous institution has the right to carry out income-generating activities only insofar as it serves the purposes for which it was created and is consistent with these purposes, provided that such activities are specified in its constituent documents. Income received from such activities and property acquired from these incomes shall be at the independent disposal of the autonomous institution.
3. A budgetary institution, without the consent of the owner, has no right to dispose of especially valuable movable property assigned to it by the owner or acquired by the budgetary institution at the expense of funds allocated to it by the owner for the acquisition of such property, as well as real estate. The budgetary institution has the right to dispose of the remaining property that it has under the right of operational management independently, unless otherwise provided by law.
A budgetary institution has the right to carry out income-generating activities only insofar as it serves to achieve the goals for which it was created and corresponds to these goals, provided that such activities are specified in its constituent documents. Income received from such activities and property acquired from these incomes are at the independent disposal of the budgetary institution.
4. A government institution does not have the right to alienate or otherwise dispose of property without the consent of the property owner.
On the application of paragraph two of paragraph 4 of Article 298, see Federal Law No. 83-FZ of May 8, 2010.
A government institution may carry out income-generating activities in accordance with its constituent documents. Income received from these activities goes to the corresponding budget of the budget system of the Russian Federation.
Article 299. Acquisition and termination of the right of economic management and the right of operational management
1. The right of economic management or the right of operational management of property, in respect of which the owner has made a decision to assign it to a unitary enterprise or institution, arises for this enterprise or institution from the moment of transfer of property, unless otherwise established by law and other legal acts or a decision of the owner.
2. Fruits, products and income from the use of property that is under the economic control or operational management of a unitary enterprise or institution, as well as property acquired by a unitary enterprise or institution under an agreement or other grounds, shall come into the economic control or operational management of the enterprise or institution in the manner established by this Code, other laws and other legal acts for the acquisition of property rights.
(clause 2 as amended by Federal Law dated 05/08/2010 N 83-FZ)
3. The right of economic management and the right of operational management of property are terminated on the grounds and in the manner provided for by this Code, other laws and other legal acts for the termination of ownership rights, as well as in cases of lawful seizure of property from an enterprise or institution by decision of the owner.
Article 300. Preservation of rights to property during the transfer of an enterprise or institution to another owner
1. When the ownership of a state or municipal enterprise as a property complex is transferred to another owner of state or municipal property, such an enterprise retains the right of economic management or the right of operational management of the property belonging to it.
(as amended by Federal Law No. 161-FZ of November 14, 2002)
2. When the ownership of an institution is transferred to another person, this institution retains the right of operational management of the property belonging to it.
Chapter 20. PROTECTION OF PROPERTY RIGHTS AND OTHERS
IN REAL RIGHTS
On some issues in the practice of resolving disputes related to the recovery of property from someone else’s illegal possession, see Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 13, 2008 N 126.
Article 301. Reclaiming property from someone else’s illegal possession
The owner has the right to reclaim his property from someone else's illegal possession.
On the issue of protecting the rights of the owner of property by satisfying a claim against a bona fide purchaser using the legal mechanism established by paragraphs 1 and 2 of Article 167, see Resolution of the Constitutional Court of the Russian Federation dated April 21, 2003 N 6-P.
Article 302. Claiming property from a bona fide purchaser
1. If property was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not know (a bona fide acquirer), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred into possession by the owner, or stolen from one or the other, or left their possession in some other way against their will.
2. If property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to reclaim the property in all cases.
3. Money, as well as bearer securities, cannot be demanded from a bona fide purchaser.
Article 303. Calculations when returning property from illegal possession
When reclaiming property from someone else’s illegal possession, the owner also has the right to demand from a person who knew or should have known that his possession was illegal (unfair owner), the return or compensation of all income that this person received or should have received during the entire period of ownership; from the bona fide owner the return or reimbursement of all income which he has received or should have received since the time when he knew or should have known about the adverse possession or received a summons in the owner's claim for the return of the property.
The owner, both in good faith and in bad faith, in turn has the right to demand from the owner compensation for the necessary expenses incurred on the property from the time from which the owner is due income from the property.
A bona fide owner has the right to retain the improvements he has made if they can be separated without damaging the property. If such separation of improvements is impossible, the bona fide owner has the right to demand compensation for the costs incurred for improvement, but not in excess of the increase in the value of the property.
Article 304. Protection of the owner’s rights from violations not related to deprivation of possession
The owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.
Article 305. Protection of the rights of an owner who is not an owner
The rights provided for in Articles 301 - 304 of this Code also belong to a person who, although not the owner, owns the property on the right of lifelong inheritable ownership, economic management, operational management or on another basis provided by law or contract. This person has the right to defend his possession also against the owner.
Article 306. Consequences of termination of ownership rights by force of law
If the Russian Federation adopts a law terminating the right of ownership, losses caused to the owner as a result of the adoption of this act, including the value of the property, are compensated by the state. Disputes regarding compensation for damages are resolved by the court.
3. REAL ESTATE
6. PROTECTION OF PROPERTY RIGHTS
1. CONCEPT AND SIGNS OF PROPERTY RIGHT
Property rights are a measure of the possible relationship of subjects of civil legal relations to things and other property. The following basic property rights are distinguished:
ownership
right of economic management
right of operational management
right of lifelong inheritable ownership of a land plot
right of permanent (indefinite) use of land
easements - rights of limited use of other people's land plots
rights of family members of the owner of the residential premises.
In the system of relations that arise in various spheres of social life, property relations occupy a special position. They invariably dominate all other social relations.
Own in real life is a multifaceted phenomenon. Accordingly, the concept that reflects it is just as multifaceted. Its most important manifestations are the economic and legal aspects. In the scientific literature, the set of basic signs and features that characterize the institution of property from the economic side is called an economic category. The totality of its features, characterizing the institution of property in the legal aspect, is called a legal category.
Property is a state of belonging, appropriation of a material good, a relationship between people regarding the means of production and the material goods they produce.
When considering property as a legal category in Russia, it is also very important to keep in mind the fact that the legal status of property is determined fundamentally by laws, and not by-laws. In paragraph 3 of Art. 112 of the Civil Code of the Russian Federation in this regard, it is no coincidence that it is emphasized that the specifics of the acquisition and termination of ownership of property, possession, use and disposal of it, depending on whose ownership it is, “can only be established by law.” The law also defines the types of property that can only be in state or municipal ownership.
Establishing the legal status of property with the help of laws undoubtedly contributes to its stabilization, creates the necessary conditions for its further development, and makes it possible to eliminate in advance unjustified differences in the capabilities of different owners - participants in a single turnover.
Ownership(in an objective sense) is a set of legal norms regulating the powers of ownership, use and disposal of property.
The owner has three powers:
Possession is the possibility of limited possession of a thing provided for by the rules of law;
Use is the possibility provided for by the law to extract useful qualities and properties from a thing;
An order is the ability provided for by the rules of law to determine the legal and actual fate of a thing (property).
In accordance with Art. 209 of the Civil Code of the Russian Federation, the owner has the right to own, use and dispose of his property at his own discretion and to perform any actions in relation to the property that do not contradict laws and other legal acts, and do not violate the rights and legally protected interests of other persons. The owner can transfer his property to trust management (to a trustee). This does not entail the transfer of ownership to the trustee.
The fundamental importance of this addition lies in the fact that it not only emphasizes the specifics, legal features of property rights and the exclusive nature of the owner’s powers, but also fills the property rights with real legal content.
The fact is that not only the owner, but also, on his behalf, another person can have the right to own, use and dispose of property. However, only the owner can do this solely at his own discretion, regardless of all other persons.
Only the owner can own, use and dispose of the property belonging to him independently, guided only by his own economic and other interests. It is precisely in this - in the exclusive and comprehensive nature of the powers of the owner, in the independence of his property and legal status from other persons - that the legal specificity of property rights lies.
There are primary and derivative methods of acquiring property rights.
The initial ones include legal facts for which there is no succession:
Acquiring ownership of a newly created thing;
Acquisition of ownership as a result of processing a thing;
Acquisition of ownership rights to fruits, products, income received as a result of the use of property;
Taking ownership of things that are generally available for collection (berries, mushrooms, fish, etc.);
Acquiring ownership of abandoned property;
Acquisition of ownership rights as a result of acquisitive prescription (real estate - 15 years, other - 5 years)
The main derivative methods of acquiring ownership:
acquisition of property rights under a contract (purchase and sale, exchange, gift) or as a result of another transaction on the alienation of property;
inheritance by will or law;
acquisition of ownership rights by a member of a consumer cooperative to a cooperative object after making the entire amount of the share contribution;
privatization of state and municipal property.
Termination of ownership, like its acquisition, is determined by the presence of certain legal facts (grounds).
Often the basis for the emergence and termination of ownership rights is the same legal fact, for example, a purchase and sale agreement.
Ownership is terminated in the following cases:
when the owner alienates his property to other persons;
upon voluntary renunciation of ownership rights by the owner;
in case of death or destruction of property;
in case of forced seizure of property from the owner in cases provided for by law:
a) on a compensated basis in the event of alienation of real estate in connection with the seizure of a land plot, in the case of the redemption of domestic animals in case of improper treatment of them and other cases;
b) gratuitous seizure in the event of confiscation, foreclosure of property under obligations and other cases.
2. OBJECTS OF PROPERTY RIGHTS
Objects of property rights- these are those material and intangible benefits for which subjects have the rights of ownership, use and disposal.
Types of objects:
a) depending on free circulation, they are distinguished:
Objects in free circulation
Objects restricted in circulation (example: gas weapons)
Objects prohibited in circulation (example: military weapons, narcotic drugs).
b) depending on the connection with the land:
Real estate
Movable property.
c) depending on the connection of things with each other, they distinguish:
Complex things are heterogeneous things that form a single whole, implying their use for a general purpose (car)
Simple things are things that are used independently of other things.
3. REAL AND MOVABLE PROPERTY
It is important division of things into movable and immovable(Article 130 of the Civil Code). The law includes land plots, subsoil plots and all things firmly connected with the land as real estate, i.e. inseparable from it without disproportionate damage to their economic purpose (residential buildings and other buildings and structures, perennial plantings and forests, isolated water bodies, etc.). The law may also classify other, essentially similar property as immovable things. For example, housing legislation classifies as real estate apartments and other residential premises in residential buildings and other buildings suitable for permanent and temporary residence.
Since such objects are inseparable from their location, and transactions with them can be made in another place, purchasers and other participants in the turnover need to know exactly the legal status of a particular object (for example, whether this house or land plot is pledged, whether anyone has - the right to use it, etc.), as this affects the price and other terms of transactions. You can find out all this from the results of special state registration of rights to real estate and transactions with it, which is provided for by law (Article 131 of the Civil Code). Such registration is a legal act of recognition and confirmation by the state (public authority) of the emergence, limitation (encumbrance), transfer or termination of rights to real estate and serves as the only evidence of the existence of registered rights. These rights can only be challenged in court.
Property rights are subject to state registration, as well as lease rights and trust management and transactions with land plots, subsoil plots or isolated water bodies, forests and perennial plantings, buildings, structures, residential premises, and enterprises. Registration is carried out by the Federal Registration Service in the Unified State Register and is certified by the issuance of a certificate of state registration of rights to real estate. The information contained in the Unified State Register of Real Estate Rights is open in nature and can be provided to any person regarding any property. Refusal of state registration can be appealed in court.
Thus, as a general rule, immovable property includes things that are firmly connected to the land not only physically, but also legally, since their use for its intended purpose is impossible in the absence of any rights to the corresponding land plot.
State registration of rights to real estate that has civil legal significance should not be confused with cadastral and other technical accounting (inventory) of certain types of real estate that have fiscal or other public legal significance. Such registration or accounting is carried out along with the state registration of rights to real estate (clause 2 of Article 131 of the Civil Code), however, they do not have legal significance and do not affect the validity of completed transactions.
State registration of real estate and transactions with them constitutes the main feature of their legal regime. This feature is caused primarily by legal reasons, and not just by the natural properties of these objects of circulation. In this regard, the law extends the real estate regime to certain objects that are “movable” in the natural-physical sense, for example, to aircraft and sea vessels and space objects (they are subject to state registration in special registers in accordance with special rules).
The current civil law in most cases does not require a notarial form of real estate transactions along with their state registration. At the same time, in many situations it also provides for other features of the legal regime of real estate in comparison with movable things (for example, when foreclosure on mortgaged property, when determining the scope of powers of unitary enterprises over the property of the public owner assigned to them, etc.).
Does not apply to real estate(and, therefore, do not require registration of their legal status) things, although of significant value, are not connected with land and are not recognized as real estate by law. For example, when selling a “house for demolition,” the object of the transaction is not actually the house, but the collection of building materials from which it consists, and which itself has no connection with the land. All these are movable things. As the law indicates, any things that are not classified as real estate are considered movable (clause 2 of Article 130 of the Civil Code).
The law may establish state registration of transactions with certain types of movable things (clause 2 of Article 164 of the Civil Code), for example with some things limited in circulation. In this case, it has legal significance and affects the validity of the relevant transactions (although it does not transform movable things into immovable things, since the latter must be recognized as such by law). It also should not be confused with the technical registration of certain movable things, such as motor vehicles or small arms, with the relevant internal affairs bodies. Such registration can only affect the exercise of civil rights (for example, a ban on the operation of a car by an owner who is not registered in this capacity with the traffic police), but not on their emergence, change or termination (in particular, on the right of ownership of a car).
4. RIGHT OF BUSINESS CONDUCT
The right of ownership is the broadest in content real right. In contrast, any limited property right is a right to someone else’s thing, already appropriated by another person - the owner. The possibilities provided by such a property right are always limited in content and therefore are much narrower than the powers of the owner (in particular, in most cases they exclude the possibility of alienation of property without the consent of the owner).
Right of economic management regulated by art. 294, 295, 299 of the Civil Code of the Russian Federation. The subjects of economic management rights are municipal and state unitary enterprises.
In accordance with Art. 294 of the Civil Code, the right of economic management is the right of a state or municipal unitary enterprise to own, use and dispose of the property of the public owner within the limits established by law or other legal acts.
At the same time, the property of this enterprise, by direct instructions of the law, belongs entirely to its owner-founder (clause 4 of article 214, clause 3 of article 215 of the Civil Code) and is not divided into “shares” or “shares” of its employees or “labor collective”. This circumstance is emphasized by the term “unitary”, i.e. unified (single property complex).
Subjects Only state or municipal unitary enterprises (but not state-owned enterprises, which have only the right of operational management over the federal property assigned to them) can have this right. The object of this right is a property complex (Article 132 of the Civil Code), which is on the balance sheet of the enterprise as an independent legal entity.
Since the property transferred to a unitary enterprise under the right of economic management is removed from the actual possession of the founding owner and is added to the balance sheet of the enterprise, the owner himself can no longer exercise in relation to this property, at least, the powers of ownership and use (and, to a certain extent, the powers orders). It should also be taken into account that with the property owned by enterprises under the right of economic management, they are liable for their own debts and are not liable for the obligations of the owner who created them, since it becomes “distributed” state or municipal property. Therefore, the owner - founder of the enterprise (the body authorized by him) under no circumstances has the right to seize or otherwise dispose of the property (or any part of the property) of the unitary enterprise, which he has under the right of economic management, while this enterprise exists as an independent legal entity.
In relation to the property transferred to the enterprise, the founding owner retains only certain powers directly provided for by law (clause 1 of Article 295 of the Civil Code). He has the right:
First, to create an enterprise (including determining the subject and purposes of its activities, i.e. the scope of legal capacity, approval of the charter and appointment of a director);
Secondly, to reorganize and liquidate it (only in this situation is it possible to seize and redistribute the property transferred by the owner to the enterprise without the consent of the latter, but, of course, with respect for the rights and interests of its creditors);
Thirdly, exercise control over the intended use and safety of property belonging to the enterprise (in particular, conducting periodic inspections of its activities);
Fourthly, receive part of the profit from the use of the property transferred to the enterprise.
The specific procedure for exercising these rights should be provided for by a special law on state and municipal unitary enterprises.
At the same time, it is now impossible, as before, to talk about the complete independence and freedom of a unitary enterprise beyond the listed powers and capabilities of the owner-founder. The exercise of his powers may be further limited by a special law or even other legal acts (i.e., decrees of the President and decrees of the Federal Government). From the authority of the order in accordance with paragraph 2 of Art. 295 of the Civil Code has now directly removed the possibility of independent disposal of real estate, without the prior consent of the owner (represented by the relevant property management body). Sale, lease or pledge, contribution to the authorized or share capital of companies and partnerships and other forms of alienation and disposal of real estate of a unitary enterprise without the consent of the owner are not allowed.
As for movable property, the enterprise disposes of it independently, unless appropriate restrictions are provided for by law or other legal act. The law, however, does not provide for the possibility for the founder-owner to arbitrarily limit the powers to own and use property assigned to a unitary enterprise, in particular, to seize it without the consent of such an enterprise (unless we are talking about its liquidation or reorganization). In any case, such restrictions cannot be established by departmental regulations.
The right of economic management is preserved during the transfer of a state or municipal enterprise from one public owner to another (which also manifests its proprietary nature). When the ownership of the corresponding property complex is transferred to a private owner, we must talk about the privatization of this property, in which the enterprise is usually transformed into a joint-stock company, which, in turn, excludes the preservation of the right of economic management.
5. RIGHT OF OPERATIONAL MANAGEMENT
Right of operational management regulated by Article 296-300 of the Civil Code of the Russian Federation.
The subjects of operational management law are:
1) owner-financed institutions
2) federal, state-owned enterprises.
In accordance with paragraph 1 of Art. 296 of the Civil Code, the right of operational management is the right of an institution or a state-owned enterprise to own, use and dispose of the owner’s property assigned to it within the limits established by law, in accordance with the goals of its activities, the owner’s tasks and the purpose of the property.
The founder-owner creates subjects of operational management law, determining the scope of their legal capacity, approving their constituent documents and appointing their managers. The owner can also reorganize or liquidate the institutions (or state-owned enterprises) created by him without their consent.
Components of the right of operational management powers have a strictly targeted nature, determined by the functions performed by the institution (or government enterprise). The owner sets direct tasks for such legal entities for the intended use of the property allocated to them (in particular, in the cost estimate of the institution approved by him). It also determines the intended purpose of individual parts (types) of property assigned to the subjects of operational management rights, by distributing it (for accounting purposes) to the corresponding special funds. At the same time, property, including money, listed in one fund, as a general rule, cannot be used for purposes for which another fund exists (if the latter is insufficient).
Object The right under consideration is a property complex - all types of property assigned by the owner to the institution or acquired by it in the process of participation in civil legal relations. At the same time, the founding owner has the right to withdraw from the subject of operational management rights without his consent excess, unused or misused property and dispose of it at his own discretion (Clause 2 of Article 296 of the Civil Code). However, such seizure is allowed only in these three cases provided for by law, and not at the free discretion of the owner.
Such a “narrow” nature of the powers of the subject of operational management law is due to the limited nature of its participation in property (civil) turnover. At the same time, this circumstance should not worsen the position of its possible creditors. Taking into account the very limited capabilities of an institution (or a state-owned enterprise) to dispose of the property of the owner assigned to it, the law provides for subsidiary liability of the latter for the debts of the institutions (or state-owned enterprises) created by it, considering it one of the main features of the property-legal status of these legal entities (clause 5 Article 115, paragraph 2 of Article 120 of the Civil Code).
Depending on the subject composition, the right of operational management has its own characteristics (varieties). They are due to differences in the content of the power to dispose of the owner’s property, as well as in the conditions (order) of the onset of his subsidiary liability for the debts of the subject of this right. From this point of view, it is necessary to distinguish between the right of operational management recognized by a state-owned enterprise and an institution financed by the owner.
A federal, state-owned enterprise can dispose, own and use the property assigned to it only with the consent of the owner of this property (or the state), while the owner has the right to seize excess property that is not used or used for other purposes. The institution owns, uses and disposes of the property assigned to it, only within the limits established by law in accordance with the goals of its activities, the tasks of the owner and the purpose of the property.
Institutions do not have the right to alienate or otherwise dispose of the property assigned to it or the property allocated to it according to the estimate.
If, in accordance with the charter, an institution is granted the right to carry out income-generating activities, then the property acquired with it comes to the independent disposal of the institution.
Property acquired by an institution from additional income is accounted for on its own balance sheet.
6. PROTECTION OF PROPERTY RIGHTS
Civil protection of property rights and other property rights is aimed mainly at restoring property rights as a subjective property right. It is customary to resort to it in the event of a civil offense, but sometimes in order to protect against lawful actions.
a) Property law. These are absolute claims that can be brought against anyone who violates a property right or other property right. A claim is brought only regarding an individually defined thing, moreover, one that exists in kind at the time of the dispute in court. Such claims include: a claim for the recovery of property from someone else’s illegal possession (vindication claim); a claim to remove obstacles to the use of property that are not related to the deprivation of possession of a thing (negative claim). In recent years, proprietary claims have increasingly included a claim for recognition of ownership, the right of economic management or the right of operational management of property.
b) Law of obligations. These methods can be applied in the case where the holder of a property right has entered into an obligation relationship based on a transaction (as a lessor, a founder of management, etc.), or has become a participant in a non-contractual obligation. The following methods are most often used here: the requirement for the debtor to transfer an individually defined thing (Article 398 of the Civil Code), compensation for losses caused by non-fulfillment or improper fulfillment of an obligation (Articles 15 and 393 of the Civil Code), recognition of the transaction as invalid with the application of the consequences of its invalidity (Article 166 and 167 of the Civil Code), return of property constituting unjust enrichment in kind (Article 1104 of the Civil Code), and if it is impossible to return the property in kind, reimburse its value (Article 1105 of the Civil Code), etc.
c) Much more often, the obligatory method of protection in the form of recovery of losses from the state or municipality is used in combination with another - invalidation of an act of a state body or local government, and in cases provided for by law, invalidation of a normative act that does not comply with the law or other legal act and violating the rights and legally protected interests of citizens and legal entities (Article 13 of the Civil Code).
At one time, the Supreme Court of the Russian Federation, on the basis of Art. 161, 218 and 13 of the Civil Code invalidated clause 1.9. Rules for registering motor vehicles and their trailers with the State Traffic Inspectorate, approved by order of the Minister of Internal Affairs of the Russian Federation dated December 26, 1994 N 430, which limited the right of citizens to dispose of their property, not recognizing contracts of sale, donation, etc. as grounds for registering motor vehicles. etc., committed in simple written form. In both cases, the owners, if there were losses, could demand compensation from the state.
d) In cases provided for by law, the owner is provided with means of protection from lawful actions of state or municipal bodies aimed at forcibly terminating his rights. In most of them, protection is provided to the owner, and not to the holder of another property right.
If a decision is made to purchase a land plot for state or municipal needs, the purchase is carried out by the Russian Federation, the relevant constituent entity of the Russian Federation or a municipal entity, depending on for whose needs the land is being withdrawn (Articles 279-282 of the Civil Code). Holders of the right to lifelong inheritable possession and permanent (perpetual) use are also entitled to claim compensation (Article 283 of the Civil Code).
The principle of compensation for the value of property seized from the owner as a result of lawful actions of state or municipal bodies remains the same for most such seizures (with the exception of confiscation). But since seizure is often predetermined by unlawful actions on the part of the owner himself (Articles 238, 240, 241, 242, etc.), the amount and procedure for payment differ. In any case, the owner retains the constitutional guarantee of the protection of his rights, which consists in the fact that no one can be deprived of his property except by a court decision (Part 3 of Article 35 of the Constitution of the Russian Federation).
The owner, as well as the holder of other property rights, depending on the situation, may resort to other methods of protecting civil rights provided for in Art. 12 GK. However, the groups listed above are the main ones.
Vindication claim(from the Latin vim dicere - I declare the use of force) - a claim by a non-possessing owner against a non-possessing owner for the recovery of individually defined property (things) from his illegal possession.
In order for the claim to be satisfied, a number of conditions must be met:
1. The plaintiff must prove that he is the owner of the property.
Paying increased attention to the issue of the “purity” of the owner’s title, the Supreme Arbitration Court of the Russian Federation, in Resolution No. 8 of the Plenum of February 25, 1998, indicated that if it is established that the owner’s title was based on a void transaction or an act of a state body or local government body, it is not corresponding legislation, then there are no legal grounds for satisfying the vindication claim.
2. The defendant in a vindication claim is the illegal owner who actually has the property. A claim brought against a person in whose illegal possession the property was located, but at the time of consideration of the case is missing, cannot be satisfied
3. With the help of a vindication claim, only individually defined property (thing) can be protected. If property is destroyed, the owner has no right to demand its return. He can only bring a claim for damages caused by the loss of the thing.
5. According to the Civil Code, any owner can reclaim property from someone else’s illegal possession within three years from the moment he learned or should have learned about a violation of his right (Article 196 of the Civil Code). Therefore, when resolving disputes related to the right of ownership due to acquisitive prescription, the period of acquisitive limitation (Article 234 of the Civil Code) in relation to things that could be claimed in the vindication procedure begins no earlier than the expiration of the specified three-year period.
Reclaiming property from a bona fide purchaser. By bona fide we mean only an acquirer who acquired someone else's property from third parties, and did not receive it directly from the owner himself. A bona fide purchaser must prove:
a) that he did not know and should not have known about the acquisition of property from a person who did not have the right to alienate it.
b) that he acquired the thing in exchange.
If these two circumstances exist, the owner’s claim should be denied. The exception is cases when the owner manages to prove that the disputed property has left his possession or the possession of a person to whom the property was transferred by the owner against their will (lost, stolen, etc.). The presence in the actions of the owner of the will to transfer the property excludes the possibility of reclaiming it. An independent basis for satisfying the vindication claim of the owner against the bona fide purchaser is the case when the latter receives the thing from third parties free of charge. According to paragraph 2 of Art. 302 of the Civil Code, if a thing was acquired free of charge from a person who did not have the right to alienate it, the owner’s claim will be satisfied.
Finally, another case of claiming a thing from a bona fide purchaser is provided for in paragraph 3 of Art. 302 of the Civil Code and concerns money and bearer securities. According to the law, they cannot be claimed by the owner under any circumstances.
These are the rules regarding the limitation of vindication in the interests of a bona fide purchaser.
Calculations when returning property from someone else's illegal possession. The fate of the fruits (income) received or that could be received from the property claimed by the owner is determined by Art. 303 Civil Code. The latter distinguishes between the concepts of “bona fide” and “unfair” owner based on whether the person knew or should have known about the illegality of his possession. Settlements between the acquirer and the owner when returning property to the owner also depend on the subjective factor.
The owner has the right to demand from the dishonest owner the return of the property or compensation for all income that he received or should have received during the entire period of unfair ownership. In this case, income should be understood as money, fruits, products and other property that was obtained as a result of illegal possession (Article 136 of the Civil Code).
A bona fide owner is obliged to return only those incomes that he received or should have received from the moment when he learned or should have learned about the illegality of possession or received a summons from the owner to return the property.
Both bona fide and dishonest owners can raise the issue of compensation for the expenses incurred by them on the property (livestock maintenance, registration expenses, etc.). A bona fide owner also has the right to decide with the owner the fate of the improvements made to the property.
Negative claim- this is a claim to eliminate any violations in the exercise of the owner’s powers, even if not related to the deprivation of his possession (Article 304 of the Civil Code).
Like vindication, it is a classic proprietary claim, originating in Roman law (“actio negatoria” - a claim denying).
In this case, the owner owns and uses the property, but some entity prevents him from doing so.
The plaintiff in the claim is the owner, and the defendant is the person, as a result of whose illegal actions the owner cannot dispose of and use the property belonging to him. The object of protection is individually defined property, and the content of the protection is to eliminate obstacles on the part of the offender in its disposal and use.
An example of a negatory claim is a claim for the release of property from seizure imposed by a bailiff on the basis of a court decision or ruling. Seizure of property is applied only in cases expressly provided for by law, in order to secure a claim or in order to foreclose on the debtor’s property. Often the inventory includes property belonging to another person. Most often, this is the second spouse, who does not have the right to dispose of his personal property or his share in the common property of the spouses. As trade develops, such persons increasingly become legal entities. For example, property belonging to a bankrupt legal entity is seized by a bailiff, although it should be included in the bankruptcy estate of the debtor.
The essence of the requirements for such transactions is to remove obstacles to the disposal of the owner’s property. Therefore, there is every reason to classify the claim for exclusion of property from the inventory (release from seizure) as negative. The defendants are the debtor whose property is seized, and those organizations (most often the relevant financial authority) and persons in whose interests the seizure is imposed.
The subject of a negatory claim may be a requirement to eliminate any actions or their results.
Example: a claim to demolish the wall of a house built on someone else’s land or a demand to prohibit the construction of a house if the construction process itself prevents the owner of surrounding houses from using these houses.
A claim for the release of property from seizure, which is brought by an owner deprived of the right to own his property, must be qualified as vindication. The statute of limitations does not apply to negatory claims (Article 208 of the Civil Code).
Property right - This is a right that ensures the satisfaction of the interests of an authorized person by directly influencing a thing that is in the sphere of his economic dominance.
The difference between compulsory real rights is that in the field of real rights, his own actions are decisive for satisfying the interests of the entitled person. While in the field of compulsory rights, the actions of the obligated person are decisive.
The similarity of mandatory and material law is legal support for the proper behavior of obligated persons.
Signs of property rights:
1. Is of an indefinite nature;
2. The object is a thing;
3. Requirements arising from material rights are subject to priority satisfaction in comparison with requirements arising from obligatory rights;
4. The right of succession is inherent in real rights;
5. Real law enjoys absolute protection of legislation (clauses 3 and 4 of Article 216 of the Civil Code); only two features are fixed: a) the right to follow; b) the absolute nature of the protection.
Types of property rights:
1. Ownership
2. The right to lifelong inheritance of land
3. The right to permanent (indefinite) use of land
4. Right of economic management
5. Right of operational management
6. Easements
Based on the characteristics of real rights, these include:
The rights of independent disposal of property belonging to the institution (clause 2 of Article 298 of the Civil Code), mortgage of real estate (clause 1 of Article 131 and clause 2 of Article 334), the rights of a member of a cooperative to a cooperative apartment before its redemption, the rights of family members of the owner of residential premises to use this premises (Article 292), the right of lifelong residence in residential premises belonging to another person, by agreement or by virtue of a testamentary refusal (4 Chapter 33 of the Civil Code).
By G.F. Shershenevich (Textbook of Russian civil law) signs of real rights:
It is the duty of all fellow citizens to refrain from actions that disagree with him.
The obligation of passive subjects who deny the properties they are awarded is also to abstain from using things that belong to others by right of ownership.
All fellow citizens are passive subjects, but a violation of the right can occur on the part of each person.
A claim to protect a right can be brought against each person who violates the right.
Law is established independently of the will of passive subjects.
In a collision with a property, the right of obligation always gives way to the property.
Among the real rights the following can be distinguished:
Rights attached to certain property;
Rights belonging to a certain person (the right to live in a house for life)
Rights that are established in the public interest (public easements)
Rights that are established in private interests (lifelong inheritable ownership of land)
Rights that provide the right to use someone else's thing in a certain limited respect (easements)
Rights that provide the right to dispose of someone else's property.
Real rights can be classified according to the reasons for their occurrence, unilateral expression of will, court decision, etc.
Upon their termination: destruction of the thing encumbered by the easement; coincidence in one person of the rights to the main and encumbered by the easement.
Property is one of the concepts around which there have been debates for many centuries.
Property means:
a) the relationship between a person and a thing;
b) public attitude;
c) property relation.
Thus, property is the attitude of a person to a thing belonging to him as his own, which is expressed in the possession, use and disposal of it, as well as in the elimination of interference of all third parties in the sphere of economic domination over which the power of the owner extends.
The content of the right of ownership consists of the rights of the owner to own, use and dispose of a thing. The right of ownership is the legally enforceable ability to extract useful properties from things in the process of its personal or productive consumption. The power of disposal is a legally secured ability to determine the fate of a thing by performing legal acts in relation to this thing.
The right of ownership is a system of legal norms regulating the relations of ownership, use and disposal by the owner of a thing belonging to him at the discretion of the owner and in his interests, as well as at the discretion of the intervention of all third parties in the sphere of his economic domination.
According to clause 2 of article 8 of the Constitution of the Russian Federation. private, state, municipal and other forms of property are recognized and protected equally. Private property is divided into the property of citizens and legal entities. State property is divided into: federal property belonging to the Russian Federation and property belonging to the constituent entities of the Russian Federation.
The right of ownership is one of those subjective rights that can arise only in the presence of a certain legal fact. And sometimes a combination of them. These legal facts are called the grounds for the emergence of property rights.
The grounds for the emergence of property rights are usually divided into initial derivatives.
The initial methods of acquiring ownership include:
Acquisition of ownership of a newly manufactured item (clause 1 of Article 218 of the Civil Code);
Processing (Article 22 0);
Transfer of ownership of publicly available things (Article 221 of the Civil Code), acquisition of ownership of ownerless property (clause 3 of Article 218; Articles 225 and 226; clause 1 of Article 235 of Article 236 of the Civil Code), a find (Article 227, 229 of the Civil Code);
Stray animals (Article 230-232 of the Civil Code);
Treasure (Article 233 of the Civil Code);
Acquisition prescription (Article 234 of the Civil Code);
Acquisition of ownership rights to unauthorized construction (Article 222)
Derivative methods of acquiring ownership include:
Nationalization (Part 3, Clause 2, Article 235, 306 of the Civil Code);
Privatization (Article 217; Part 2, Clause 2, Article 235 of the Civil Code);
Acquisition of property rights under a contract;
Acquisition of property rights by inheritance and others.
There are also methods of acquiring ownership rights, which in some cases act as initial, and in others as derivative (for example, acquiring ownership of fruits, products and income (Article 136, paragraph 2, paragraph 1, Article 218 of the Civil Code)
The right of ownership terminates when the owner alienates his property to other persons, the owner renounces the right of ownership, or the property is destroyed or destroyed in the event of loss of ownership of the property in other cases provided for by law.
Forced seizure of property from the owner is not permitted, except in cases provided for by law and only on the basis of a court decision.
The property relationship receives legal expression both in the system of legal norms that form the institution of property rights, and in the subjective right of property, i.e. to that extent of power. Which the law and other legal acts assign to the owner. The property of citizens is no exception.
All cases when a citizen, as an owner, introduces his property into civil circulation should be divided into two groups: a) cases when the citizen’s acting as an owner does not require registration; b) cases when a citizen’s acting as an owner requires registration.
The objects of property rights of citizens can be any property, with the exception of certain types of property, which, in accordance with the law, cannot belong to them. The quantity and value of property that may be owned by citizens is not limited, except in cases established by law.
Ownership rights of legal entities.
The range of legal entities acting as owners of property they own is unusually wide. These are business societies and partnerships, production and consumer cooperatives, public and religious organizations and unions.
According to paragraph 1 2 of Article 213 of the Civil Code, legal entities can own any property, except for certain types of property, which, in accordance with the law, cannot belong to legal entities.
In accordance with the permissive orientation and discretionary nature of civil law regulation, the legislator sharply limited the number of mandatory regulations concerning the procedure for forming property funds of legal entities, determining the purposes of their expenditure, and ensuring the interests of individuals and legal entities participating in the formation of the property of a given legal entity.
Common property right.
Common property is characterized by a plurality of subjects of property rights, which are called participants in common property or owners.
The law establishes two types of common property: shared and joint (clause 2 of article 244 of the Civil Code). Common property is called shared property when each of its participants owns a certain share. In common joint property, the shares of its participants are not determined in advance; they are oriented
Only when dividing joint property or when separating from it.
The right of common shared ownership has a number of advantages:
Firstly, the right of each owner is not limited to any specific part of the common property;
Secondly, the indication remains that the object of this right as a property right is a thing;
Thirdly, the rights of other owners also apply to all property as a whole; the characterization of common property as multi-subject property is not questioned;
Fourthly, since the ownership right of each owner is expressed in a certain share, the specificity of shared ownership as a special type of common property has been revealed.
Each owner, at his own discretion, can dispose of his share in the common property. To dispose of shares, including for their alienation, he should not seek the agreement of other participants in the common property, however, the owners have the right of first refusal to purchase the share.
Joint ownership, unlike shared ownership, can be formed only in cases provided for by law. The Civil Code establishes two types of common joint property - spouses and members of a peasant (farm) household.
Participants in joint ownership, unless otherwise provided by agreement between them, own and use the common property jointly. The disposal of common property is carried out by mutual consent of all owners.
Limited real rights.
1. The right of lifelong inheritable ownership of a land plot that is in state or municipal ownership is acquired by citizens on the grounds and in the manner provided for by land legislation.
A citizen has rights to own and use such a plot, which are inherited.
A citizen's right to dispose of a land plot that is in lifelong inheritable ownership is limited.
The acquisition of ownership rights to participating real estate does not in itself entail the transformation of the right to lifelong inheritable ownership of a land plot and the right of ownership to it.
1. The right to permanent use of a land plot is granted to both citizens and legal entities, and on the basis of a decision of a state or municipal body.
The person to whom the plot is provided has the right, unless otherwise provided by law, to independently use the plot for the purposes for which it was provided, including the construction of buildings, structures and other real estate on the plot for these purposes. The said property created by this person for himself is his property.
3. An easement should be understood as the right to use someone else’s property within a certain limitation. The owner of a land plot and other real estate has the right to demand that the owner of a neighboring plot grant the right to limited use of the neighboring plot.
An easement can be established either by agreement of the parties, or, if no agreement is reached, by a court decision.
Clause 1 of Article 175 of the Civil Code of the Russian Federation in accordance with clause 3 of Article 216 of the Civil Code of the Russian Federation establishes the right of succession in relation to the easement: the easement is preserved in the event of the transfer of rights to the land plot encumbered by the easement to another person.
The concept of system and the basis for the emergence of obligations.
1. The concept of obligation.
2. Commitment system.
3. Grounds for the occurrence of obligations.
The concept of obligation. The term “obligation” is used in science and practice in various semantic meanings. It denotes, first of all, a certain civil legal relationship, sometimes an obligation (debt) of a debtor, and in some cases a document in which such an obligation is recorded (receipt, receipt). An obligation as a legal relationship is characterized by: that by virtue of it one person (debtor) is obliged to perform a certain action in favor of another person (creditor), such as: transfer property, perform work, pay money, etc. or refrain from a certain action, and the creditor has the right to demand from the debtor the fulfillment of his obligations(Part 1 of Article 307 of the Civil Code of the Russian Federation).
Obligations are mediated by both normal relations of society associated with the sale of goods, performance of work, provision of services, etc., and relations arising as a result of unlawful actions - causing harm or unjust savings or acquisition of property at the expense of another person. However, in both the first and second cases, homogeneous social relations that develop in the spheres of circulation or distribution, expressing the process of moving property and other results of labor of a property nature, are clothed in the form of obligatory legal relations. For example, obligations for purchase and sale, delivery, transportation, etc. mainly mediate the movement of assets from the sphere of production to the sphere of circulation, and through the latter to the sphere of consumption. Obligations for compensation for harm are based on relations associated with the redistribution of material benefits, when, in order to eliminate the harm caused, part of the property of the perpetrator is transferred to the victim, etc.
It is sometimes argued that obligations are mediated by organizational relations built on the principles of coordination and equality. However, organization and orderliness are properties of any social relations, including property relations. Organizational relations are inseparable from property relations; they characterize either the stage of formation of the latter or the degree of their organization. Therefore, organizational relations, not being an independent subject of civil law regulation, cannot as such be mediated by obligations.
The most important feature of obligations is that these are property civil legal relations, since they are always associated with means, products of production or other results of labor that are of a property nature.
Opinions are expressed about the possibility of establishing obligatory relations with non-property content. However, theoretical arguments are not given to substantiate this view and can hardly be given, since by their very essence obligations mediate relations of economic turnover, which are always of a property nature. And by chance, the representatives of this concept operate only with isolated, unconvincing examples. So. it is argued, for example, that a gratuitous contract is an order-obligation with non-property content. But non-compensation does not deprive legal relations of their property nature. Sometimes examples of individual non-proprietary obligations are given (for example, the author’s obligation to keep his work proofread).
However, the presence of individual non-property obligations does not affect the property nature of the obligation as a whole (in this case, the obligation under a contract for the publication of a work). The property nature of obligations predetermines their similarity to the legal relations of property.
But unlike them, obligatory legal relations:
a) are associated with the movement of property - its movement from one entity to another;
b) they establish a connection between the authorized person not with all third parties, but with a specific person and, therefore, are not absolute, but relative. As a general rule, obligations cannot create obligations for persons not participating in them as parties (clause 3 of Article 308 of the Civil Code of the Russian Federation).
All obligations are established in order to achieve certain goals. A distinction is made between general and immediate goals. In terms of their general goals, obligations are no different from other civil legal relations: together with the latter, they serve to achieve the goals put forward by the state and society. Direct ones are those specific goals that the participants in a certain obligatory legal relationship strive to achieve. They can be very diverse: implementation of the national economic plan, satisfaction of the material and cultural needs of citizens, ensuring the protection of socialist and personal property, protection of property rights and interests of citizens, etc.
Elements of obligation. Like any civil legal relationship, an obligation includes a number of elements, subjects, object, content. Subjects of obligation- these are the persons participating in it. Their circle is wide and varied. Obligations are established both between socialist organizations and between them and citizens, as well as between the citizens themselves. The subjects of the obligation are called the creditor and the debtor. A creditor is a party authorized to demand the performance of a certain action and the resulting abstinence from other actions. Debtor is a party obligated to perform a certain action or refrain from performing any action.
The creditor, as the authorized person, is usually called an active participant, and the debtor, as an obligor, is called a passive participant in the obligation. In some obligations, one party acts only as a creditor, and the other only as a debtor. For example, in an obligation from a loan agreement, the lender has the right to receive the money or things given to him on loan, determined by generic characteristics, and the borrower has the obligation to return the same amount of money or an equal number of things of the same kind and quality. But in most obligations, each of their participants is both a debtor and a creditor. For example, in an obligation to buy and sell, the seller has the right to receive a certain amount of money, but at the same time is obliged to transfer the thing to the buyer into ownership (operational management), and the buyer has the right to receive the thing, but is obliged to pay the agreed price.
Object of obligation something about which an obligatory legal relationship is established is recognized. This quality can be represented by things, products of creative activity, results of actions, separable and inseparable from the actions themselves. Thus, in obligations for purchase and sale, delivery, property rental, loan, etc., the object is things. In obligations arising from copyright contracts, the object is the product of creative activity (works of science, literature, art, etc.). Most of the obligatory legal relations for the production of work and the provision of services have as their object the results of actions that are separated from the actions themselves. Thus, in an obligation arising from a work contract, the thing as its object is separated from the actions (the activity of producing the thing). However, in some obligations to provide services, the object becomes the result of actions that are inseparable from the actions themselves (for example, the very performance in a concert of the artist with whom the corresponding contract has been concluded).
Contents of the obligation like any other civil legal relationship, form the powers and obligations of its subjects. In obligations, authority is the right to claim, and obligation is debt. Therefore, the creditor has the right to demand, and the debtor undertakes to perform certain actions and the resulting abstinence from performing any actions. Positive actions that the debtor may be obliged to perform are very diverse: transferring things to the creditor for ownership or temporary use, performing any work or providing services, concluding by the debtor of any transaction for the creditor, etc. Sometimes, however, The debtor’s obligation to perform certain actions is accompanied by the same conditioned abstinence from performing any actions.
Obligatory, like all other, civil legal relations are ensured by measures of state coercion. These measures are called sanctions in obligations.
Sanction- these are the adverse consequences that occur in the event of non-fulfillment or improper fulfillment of an obligation for the party who violated it. The sanctions established for violation of obligations are very diverse. Some of them are of a general nature (for example, recovery of losses), others apply only to certain types of obligatory legal relations (as, for example, the adverse consequences provided for in Article 475 of the Civil Code of the Russian Federation are applied only in sales and purchase relations, which come to the seller when selling them things of inadequate quality). A typical form of enforcing a sanction is a claim defense. A claim brought by a creditor in court, arbitration or arbitration tribunal serves as the main means of ensuring the satisfaction of the interests of the creditor in addition to and against the will of the debtor.
Commitment system. Numerous obligations provided for by civil law, or although not provided for by it, but applied in practice, can be subjected to a certain classification. Such a classification should be based on a criterion that makes it possible to combine all homogeneous obligations in one classification heading. From this position, the most successful criterion seems to be one that combines economic and legal characteristics inherent in obligations.
As a result of its use, the following groups of obligatory legal relations are formed:
1) obligations to transfer property into ownership or operational management (purchase and sale, lifelong maintenance with dependents, supply, contracting, energy supply, barter, donation);
2) obligations to transfer property for use (renting residential premises, free use of property);
3) obligations for the production of work (contract, research, design and design and survey work);
4) transportation obligations (railway, sea, river, air, road transportation);
5) insurance obligations (property, personal insurance);
6) obligations for lending and settlements (loan, bank loan, settlement and current account, settlement legal relations, check, bill);
7) obligations to provide services (order, commission, storage, expedition);
8) obligations for joint activities (relations between citizens, relations between organizations);
9) obligations resulting from unilateral actions (conducting other people’s affairs without instructions, competition);
10) protective obligations (for compensation for damage, for the return of unjustifiably acquired or saved property).
Grounds for the emergence of obligations. Legal facts (or their compositions), with the occurrence of which the law associates the emergence of subjective rights and obligations, are called the grounds for the emergence of obligations.
The most common and important basis for the emergence of obligations is contract
A contract is an agreement between two or more persons aimed at creating, changing or terminating a civil legal relationship. Various types of contracts (purchase and sale, barter, transportation, commissions, orders, loans, storage, insurance, etc.) ultimately have a common purpose: to serve as a form of organizing property turnover.
In cases where a person, by his sole actions, without entering into an agreement with anyone, gives rise to civil obligations for other persons, the obligations arise from unilateral transactions. This is a less common reason for their occurrence. These include, in particular, a will, acceptance of an inheritance, etc.
Bidding has become a more common form of unilateral transaction in the new economic situation in Russia. , conducted in the form of competitions and auctions. Trades are held to identify persons who are ready to enter into certain contracts on terms that are most favorable to the auction organizer (Article 447 of the Civil Code of the Russian Federation). As a result of the auction, the person who wins the auction acquires the right to enter into an agreement.
Obligations may also arise in areas not related to contracts or unilateral transactions. They are usually called non-contractual obligations.
These are considered:
a) obligations arising from causing harm (clause 2 of Article 307 of the Civil Code of the Russian Federation);
b) obligations arising from unjust enrichment (Article 8 of the Civil Code of the Russian Federation).
A person who causes harm to the life or health of a citizen or the property of a legal entity is obliged to compensate for such harm in full. The scope of compensation also includes moral damage, the amount of compensation for which is determined by the court, taking into account the specific circumstances of its infliction.
Causing harm, therefore, is the result of a civil offense (tort), allowing the victim to make a claim to the causer for compensation. In the context of causing harm, the Civil Code of the Russian Federation also considers harm caused to a person as a result of the abuse by the causer of his subjective right (Clause 1, Article 10 of the Civil Code of the Russian Federation). However, there are no direct instructions in the code about compensation for damage caused in this way; In this case, we are talking about a different way of influencing an abuser of rights - the court has the right to refuse to protect his rights (Clause 2 of Article 10 of the Civil Code of the Russian Federation).
Unjust enrichment can manifest itself in various forms. Thus, unlawful withholding of other people's funds, evasion of their return, unjustified receipt or savings at the expense of another person obliges the offender to pay interest on the amount of these funds (Clause 1 of Article 395 of the Civil Code of the Russian Federation), as well as to compensate for losses caused by unlawful use of other people's funds (clause 2 of article 395 of the Civil Code of the Russian Federation).
Obligations may also arise from other grounds provided for by the Civil Code (clause 2 of Article 307 of the Civil Code of the Russian Federation).
Execution, modification and termination of obligations
1. Concept and principles of fulfillment of obligations.
2. Subjects of fulfillment of obligations.
3. Subject of execution.
4. Method, place and deadline for execution.
5. Change of obligations.
6. Concept and grounds for termination of obligations.
7. Certain ways to terminate obligations.
Concept and principles of fulfillment of obligations.
Fulfillment of obligations- this is the implementation of certain active actions. Refraining from action also constitutes the content of obligations, but it is only a complement to the obligation to take active actions.
Obligations must be fulfilled properly ( principle of due process) in accordance with the terms of the obligation and the requirements of the law, and in their absence - in accordance with business customs or other usually imposed requirements (Article 309 of the Civil Code of the Russian Federation).
The second principle of fulfillment of obligations provided for by civil law is principle of real performance. This principle is formulated in Art. 396 of the Civil Code of the Russian Federation. As a general rule, it establishes the obligation of performance in kind - the performance by the debtor of precisely those actions that constitute the content of the obligation.
Counter is the fulfillment of an obligation by one of the parties, which, in accordance with the contract, is conditioned by the fulfillment of its obligations by the other party.
Subjects of fulfillment of obligations.
One or several persons may participate in an obligation as each of its parties - creditor or debtor (Article 308, Clause 1, Civil Code of the Russian Federation). In accordance with the scope of rights and obligations, it is customary to distinguish between equity, joint and subsidiary obligations.
Equity obligations exist when several creditors or several debtors participate in the obligation. Each of the creditors of the shared obligation has the right to demand performance, and each of the debtors is obliged to fulfill the obligation in an equal share with others (Article 321 of the Civil Code of the Russian Federation).
Solidary obligations, as well as joint and several claims, arise in cases specifically provided for by law (in particular, when the subject of the obligation is indivisible) - an agreement or the law itself (Article 322 of the Civil Code of the Russian Federation).
Subsidiary obligations arise both by force of law and by agreement. The peculiarity of subsidiary obligations lies in the nature of the relationship between the main and subsidiary debtor, as well as the priority of execution to the creditor.
The subsidiary debtor fulfills the claim only in that part in which it is not fulfilled by the main debtor. The creditor is obliged to present a demand for performance first of all to the principal debtor. An example of subsidiary liability is the liability of a guarantor, if this is provided by law.
As already noted, the rule applied to the performance of an obligation is that the performance must be carried out by the proper debtor to the proper creditor. This rule has an exception, namely that instead of the debtor and/or creditor, a third party may participate in the execution or its acceptance. The participation of third parties is possible in cases of assignment (reassignment) and redirection of execution.
Reassignment of execution - imposition by the debtor of the fulfillment of obligations on a third party (Article 313 of the Civil Code). In cases of delegation, the third party performs only actual actions (for example, pays) and is not a party to the obligation. In this case, the creditor is obliged to accept the performance offered for the debtor by a third party. A third party who is in danger of losing his right to the debtor’s property (the right to lease, pledge, etc.) as a result of the creditor’s foreclosure on this property may, at his own expense, satisfy the creditor’s claim without the debtor’s consent. In this case, the rights of the creditor under the obligation are transferred to the third party.
If the personal participation of the debtor is necessary to fulfill the obligation, he cannot delegate it to third parties (clause 1 of Article 313 of the Civil Code). Thus, an actor who has entered into a contract to perform a role cannot delegate this to a third party.
Forwarding execution- the right of the debtor, which consists in the opportunity to fulfill the obligation both to the creditor and to the person specified by the creditor.
The debtor is responsible for non-fulfillment or improper fulfillment of the obligation by third parties who were entrusted with the performance, unless the law establishes that the third party who is the direct executor is responsible (Article 403 of the Civil Code).
The participation of third parties in the fulfillment of obligations does not imply replacement of the creditor or debtor. However, such situations are possible, and they are called a change of persons in the obligation. The assignment by a creditor of his right to demand is possible on the basis of the conclusion of an appropriate agreement (in the order of partial succession) or law and is called replacing the creditor.
Subject of execution.
Subject of fulfillment of obligation- this is that thing, service or work that, due to obligations, must be transferred, provided or performed to the creditor. Requirements for an item are determined in accordance with the terms of the contract, the law, and in the absence of such, with the usually imposed requirements (the item must be suitable for use in accordance with its intended purpose). The law provides for a number of special requirements regarding the fulfillment of monetary obligations. They must comply with the legislation of the Russian Federation on currency regulation - expressed in rubles (clause 1 of Article 317 of the Civil Code).
A monetary obligation may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency, or in conventional monetary units (ecus, “special drawing rights”, etc.). In this case, the amount payable in rubles is determined at the official exchange rate of the corresponding currency or conventional monetary units on the day of payment, unless a different rate or another date for its determination is established by law or by agreement of the parties (clause 2 of Article 317 of the Civil Code). The use of foreign currency, as well as payment documents in foreign currency, when making payments on the territory of the Russian Federation for obligations is permitted in cases provided for by the law on currency control and in the manner established by the Central Bank of Russia.
The amount paid under a monetary obligation directly for the maintenance of a citizen: in compensation for harm caused to life or health, under a lifelong maintenance agreement, and in other cases - with an increase in the minimum wage established by law, increases proportionally (Article 318 of the Civil Code).
The amount of the payment made, which is insufficient to fulfill the monetary obligation in full, in the absence of another agreement, first of all pays off the creditor’s costs of obtaining fulfillment, then interest, and the remainder - the principal amount of the debt (Article 319 of the Civil Code).
There are also a number of special rules for alternative obligations.
Alternative obligations are recognized in which there are several items, and the transfer of any of these items is the proper fulfillment of the obligation.
The debtor, who is obliged to transfer one or another property to the creditor or to perform one of two or more actions, has the right to choose, unless otherwise follows from the law, other legal acts or the terms of the obligation.
If one of the items of performance in an alternative obligation perishes, and the choice of the authorized person is focused on this item, the obligation is terminated due to the impossibility of performance.
Optional are obligations that have one subject of execution, which can be replaced by the debtor with another pre-agreed subject. In contrast to an alternative obligation, in a facultative one, the destruction of its subject entails the termination of the obligation.
Method, place and time of execution.
Method of execution - the procedure for the debtor to perform actions to fulfill the obligation. The method of execution is determined by the parties when an obligation arises. If it has not been determined, the creditor has the right not to accept the fulfillment of the obligation in parts (Article 311 of the Civil Code).
Unilateral refusal to fulfill an obligation and unilateral change of its terms are not allowed, except in cases provided for by law. Unilateral refusal to fulfill an obligation related to the implementation of entrepreneurial activities by its parties and unilateral change in the terms of such an obligation are also allowed in cases provided for by the contract, unless otherwise follows from the law or the essence of the obligation (Article 310 of the Civil Code).
According to Art. 327 of the Civil Code, the debtor has the right to deposit the money or securities due from him to the deposit of a notary, and in cases established by law, to the deposit of the court - if the obligation cannot be fulfilled by the debtor due to:
Absence of the creditor or the person authorized by him to accept performance in the place where the obligation must be fulfilled;
Incapacity of the creditor and absence of his representative;
An obvious lack of certainty as to who is the creditor of the obligation, in particular in connection with a dispute on this issue between the creditor and other persons;
Evasion of the creditor from accepting performance or other delay on his part.
Depositing a sum of money or securities into the deposit of a notary or court is considered the fulfillment of an obligation. The notary or the court, in whose deposit the money or securities are deposited, notifies the creditor about this.
Place of performance - this is the place where the execution must take place. As a rule, it is defined in the obligation itself.
If, at the conclusion of the contract, the place of performance was not determined, then the following rules, provided for in Art. 316 Civil Code:
Under the obligation to transfer a plot of land, building, structure or
other real estate - at the location of the property;
Under the obligation to transfer goods or other property that provides for its transportation - at the place of delivery of the property to the first carrier for delivery to the creditor;
For other obligations of the entrepreneur to transfer, goods or other
property - at the place of production or storage of property, if this place was known to the creditor at the time the obligation arose;
For a monetary obligation - at the place of residence of the creditor at the time the obligation arose, and if the creditor is a legal entity - at its location at the time the obligation arose; if by the time the obligation is fulfilled, the creditor has changed his place of residence or location and notified the debtor about this - in the new place of residence or location of the creditor, with expenses associated with the change of place of performance being charged to the creditor’s account;
For all other obligations - at the place of residence of the debtor, if the debtor is a legal entity - at its location.
Due date obligations are determined by law, the basis for the occurrence of the obligation or its essence. A distinction is made between obligations with a certain period of time, which make it possible to establish a period of time during which they must be fulfilled, and obligations that do not provide for a period of fulfillment.
For the last of the above obligations, there are reasonable deadlines for fulfillment. Reasonable time is the period of time usually required to complete the actions required by the obligation.
For obligations that must be fulfilled within a sufficiently long period of time, intermediate deadlines for fulfillment are also important.
The obligation must be fulfilled within the time limits provided for by the agreement and the law. Early execution is the right of the debtor, unless otherwise provided by law, the terms of the obligation, or does not follow from its essence.
Violation of established deadlines for fulfilling obligations - overdue. Delay can be caused by both the debtor and the creditor.
A debtor who is late in performance is liable to the creditor for losses caused by the delay and for the consequences of an accidental impossibility of performance occurring during the delay. If, due to the debtor's delay, the performance has lost interest for the creditor, he may refuse to accept the performance and demand compensation for losses. The debtor is not considered to be in default until the obligation cannot be fulfilled due to the creditor's delay (Article 405 of the Civil Code).
The creditor is considered to be in default if he refused to accept the proper performance proposed by the debtor or did not perform actions provided for by law, other legal acts or agreement, or arising from business customs or from the essence of the obligation, before which the debtor could not fulfill his obligation .
The creditor's delay gives the debtor the right to compensation for losses caused by the delay, unless the creditor proves that the delay occurred due to circumstances for which neither he himself nor those persons who, by virtue of law, other legal acts or the instructions of the creditor, were entrusted with accepting the execution , do not answer (Article 406 of the Civil Code). The creditor is considered to be in arrears if, when accepting the performance, he did not, at the request of the debtor, issue a receipt for receipt of the performance in full or in the relevant part (clause 2 of Article 408 of the Civil Code).
Under a monetary obligation, the debtor is not obliged to pay interest during the creditor's delay
Change of obligations.
The grounds for changing obligations are provided for by the Civil Code of the Russian Federation, other laws and legal acts or an agreement, as well as by agreement of the parties, which takes place in the same form as the obligation itself.
The obligation may be changed and at the request of one of its parties, if this is provided for in the agreement concluded by the parties. The obligation is also changed unilaterally in cases where one of the parties to the obligation has committed a significant violation of its obligations. A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is largely deprived of what it had the right to count on when concluding the contract (Clause 2 of Article 450 of the Civil Code of the Russian Federation). At the request of one of the parties, the agreement can be changed by a court decision.
A change in obligations may also occur when significant change in circumstances. In accordance with paragraph 1 of Art. 451 of the Civil Code of the Russian Federation, a change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen this, the contract would not have been concluded by them at all or would have been concluded on significantly different terms.
The concept and basis for termination of obligations.
Under termination of obligation one should understand the repayment of the rights and obligations of its participants, which constitute the content of the obligation. The meaning of termination of an obligation is that it ends the existence of the obligation.
To terminate an obligation, there must be a certain basis, i.e. a legal fact with the occurrence of which an agreement or law binds the termination of this obligation (Article 407 of the Civil Code of the Russian Federation). These legal facts can be both unilateral and bilateral transactions, and some are not transactions at all (for example, the coincidence of a debtor and a creditor in one person). The grounds on which obligations are terminated are provided for by laws, other legal acts or agreements.
The Civil Code of the Russian Federation provides for the following grounds for termination of obligations:
Termination of obligations by proper execution;
By test;
Termination of obligations by agreement of the parties;
Termination of obligations at the initiative of one party;
Termination of obligations due to impossibility of performance;
Termination of an obligation by the coincidence of the debtor and the creditor in one person;
Termination of an obligation by the death of a citizen or liquidation of a legal entity.
In a society with a state-legal superstructure, economic property relations inevitably receive legal recognition. This is expressed both in the system of legal norms regulating these relations and forming the institution of property rights, and in assigning a certain measure of legal power to a specific person who is the owner of this thing. In the first case, they speak about the right of ownership in the objective sense, in the second - in the subjective sense, or about the subjective right of ownership.
To determine the right of ownership in an objective sense, it is necessary to identify the specific features inherent in the subjective right of ownership.
Identification of these characteristics will make it possible to reflect them in definitions of property rights, both in the objective and subjective sense.
The content of the right of ownership consists of the rights of the owner to own, use and dispose of a thing. These powers, like the subjective right of ownership in general, represent legally enforceable possibilities for the behavior of the owner; they belong to him as long as he remains the owner. In cases where the owner is unable to actually exercise these powers (for example, when his property is seized for debts or when the property is illegally owned by another person), he is not deprived of either the powers themselves or the right of ownership in general. To reveal the content of property rights, it is necessary to define each of the powers belonging to the owner. Let's start with ownership.
The right of ownership is a legally secured possibility of economic domination of the owner over a thing. We are talking about economic domination over a thing, which does not at all require that the owner be in direct contact with it. For example, when leaving on a long business trip, the owner continues to remain the owner of the things in his apartment.
Possession of a thing can be legal or illegal. Legal is ownership that is based on some legal basis, i.e. to the legal title of ownership. Legal ownership is often referred to as title.
Illegal possession is not based on a legal basis, and therefore is untitled. Things, as a general rule, are in the possession of those who have one or another right to own them. This circumstance allows, when considering disputes over a thing, to proceed from the presumption of the legality of actual possession. In other words, the one who has the thing is presumed to have the right to own it until the contrary is proven.
Illegal owners, in turn, are divided into bona fide and unscrupulous. The owner is conscientious if he did not know and should not have known about the illegality of his possession. The owner is dishonest if he knew or should have known about it. In accordance with the general presumption of good faith of participants in civil rights and obligations (clause 3 of Article 10 of the Civil Code), one should proceed from the assumption of good faith of the owner. The division of illegal owners into bona fide and dishonest is important in settlements between the owner and the possessor regarding income and expenses, when the owner claims his property through a vindication claim, as well as when deciding whether the owner can acquire ownership by prescription or not.
The right to use is a legally secured opportunity to extract useful properties from a thing in the process of its personal or productive consumption. Often the same thing can be used for both personal consumption and production purposes. Thus, a sewing machine can be used to sew clothes not only for your family, but also for someone else for a fee. The right of use is usually based on the right of possession. But sometimes you can use a thing without owning it. For example, a musical instrument rental studio rents them out so that the use of the instrument takes place on the premises of the studio, say, on certain days and hours. The same is true when using slot machines.
The power of disposal is a legally secured ability to determine the fate of a thing by performing legal acts in relation to this thing. There is no doubt that in cases where the owner sells his thing, rents it out, pledges it, transfers it as a contribution to a business company or partnership, or as a donation to a charitable foundation, he disposes of the thing. It is much more difficult to legally qualify the actions of the owner in relation to a thing when he destroys a thing that has become unnecessary to him, or throws it away, or when the thing, by its properties, is designed to be used in only one act of production or consumption. If the owner destroys a thing or throws it away, then he disposes of the thing through a unilateral transaction, since the will of the owner is aimed at renouncing the right of ownership. But if the right of ownership is terminated as a result of a single use of a thing, then the will of the owner is not aimed at terminating the right of ownership, but at extracting its useful properties from the thing.
Therefore, in this case, only the right to use the thing is exercised, but not the right to dispose of it.
The current civil legislation, like the one that preceded it, is limited to listing the powers belonging to the owner (sometimes ways of exercising them), without defining any of them.
And this negatively affects not only the disclosure of the content of property rights, but also the practice of applying legislation.
Disclosure of the content of property rights does not yet end with the determination of the powers belonging to the owner. The fact is that the powers of the same name may belong not only to the owner, but also to another person, including the holder of the right of economic management or the right of lifelong inheritable possession. It is therefore necessary to identify a specific feature that is inherent in these powers precisely as the powers of the owner. It consists in the fact that the owner exercises his powers at his own discretion. In relation to the right of ownership, the exercise of the right at one’s own discretion, including its disposal, means that the power (will) of the owner rests directly on the law and exists independently of the power of all other persons in relation to the same thing. The power of all other persons is not only based on the law, but also depends on the power of the owner and is conditioned by it.
True, in the latest civil legislation this feature is to a certain extent blurred, since persons who own civil rights exercise all these rights (and not just the right of ownership) at their own discretion (clause 2 of article 1 and clause 1 of article 9 of the Civil Code ). However, since this attribute in relation to the right of ownership is specifically fixed (clause 2 of Article 209 of the Civil Code), the task is to identify its inherent content in relation to the right of ownership, which was done. The owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, including alienating his property into the ownership of other persons, transferring to them, while remaining the owner, the rights possession, use and disposal of property, pledge property and encumber it in other ways, dispose of it in another way (clause 2 of Article 209 of the Civil Code).
Property rights have the property of resilience or elasticity.
This means that it has the inherent ability to recover to the same extent as soon as the restrictions that bind it disappear.
The right of ownership is one of the exclusive rights. This means that the owner has the right to exclude the influence of all third parties on the sphere of economic dominance assigned to him in relation to his property, including through self-defense measures.
The above, however, does not mean that the owner’s power in relation to the thing belonging to him is unlimited. In accordance with the permissible tension of civil law regulation, the owner can indeed take any actions in relation to his property, but only those that do not contradict laws and other legal acts. The owner is obliged to take measures to prevent damage to the health of citizens and the environment that may be caused during the exercise of his rights. He must refrain from behavior that causes disturbance to his neighbors and others, and even more so from actions performed solely with the intention of causing harm to someone.
In addition, the owner must not go beyond the general limits of exercising civil rights established by Article 10 of the Civil Code. The owner is also obliged, in cases, on conditions and within the limits provided by law and other legal acts, to allow limited use of his property by other persons. These circumstances must be taken into account when formulating a general definition of property rights. Finally, when defining the right of ownership, one should rely on the general definition of subjective civil law, which also applies to the right of ownership.
In relation to property rights, this general definition must be specified taking into account the specific features inherent in property rights.
Based on the previously stated provisions, we will give a definition of the subjective right of ownership.
The right of ownership in the subjective sense means a legally secured opportunity for the person who has appropriated the property to own, use and dispose of this property at his own discretion within the framework established by the legislator (Article 209 of the Civil Code). The powers of possession, use and disposal include the possibility only of such actions that serve the implementation of the goals provided for by the legislator.
Such goals are the preservation and improvement of property, its use for its intended purpose and the opportunity for the owner to dispose of the property in the most complete manner.
Unlike holders of other real rights, the powers of possession, use and disposal arise for the owner simultaneously, on the basis of legal facts provided for by law (privatization, agreement with the previous owner on the alienation of a thing, creation of a new thing, etc.).
The presence of the specified powers listed in clause 1 of Article 209 of the Civil Code is a necessary, but not yet sufficient sign for determining the subjective right of ownership. Therefore, in paragraphs 2 - 4 of Article 209, Articles 210 - 211 of the Civil Code, the legislator supplements the definition with an indication of actions. The significance of the signs of action for characterizing the subjective right of ownership is indicated by the fact that the legislator provides for a number of sanctions for the inaction of a person endowed with the powers of ownership, which entails the termination of the right of ownership. Such sanctions include, for example, termination of ownership of a stray animal 6 months after its loss, if the former owner did not find the animal (Article 231 of the Civil Code); termination of ownership of a discovered treasure, the owner of which cannot be identified (Article 233 of the Civil Code); termination of ownership of property by the previous owner due to the expiration of the acquisition limitation period (Article 234 of the Civil Code); forced confiscation from the owner of mismanaged cultural property (Article 241 of the Civil Code), etc.
In contrast to the right of ownership in the objective sense, the right of ownership in the subjective sense arises in a specific person only as a result of his actions in appropriating individually defined objects.
Legal facts as a result of which the right of ownership arises in the subjective sense are various transactions (for example, purchase and sale, acceptance of an inheritance), the creation of a new thing, the prescription of ownership of property, etc.
The right of ownership in the subjective sense differs from other subjective rights to specific things in that it is based directly on the law and is not limited in advance in time. Other (obligatory) rights to property, for example, arising from contracts of storage, lease, pledge, etc., arising at the will of the owner, are of an urgent nature.
Protection of property rights by the state is absolute. This means that anyone who, without the knowledge of the owner, takes possession of or commits other unlawful actions on his property will be obliged to return the property, stop such actions, and compensate for losses caused to the owner (Articles 15.301 - 304 of the Civil Code).
The consistent development of this position leads to the need to distinguish statics and dynamics in the legal relationship of property. Moreover, by statics we mean such relations that express the state of appropriation of material goods to the owner. The concept of the dynamics of property relations is used to denote the process of movement of goods.
Subjective right of ownership is an element of an absolute legal relationship in which the owner is opposed by all third parties who are obliged to refrain from violating this right.
Subjective right of ownership is an element of the property legal relationship, since the satisfaction of the interests of the owner is ensured by direct influence on the thing (property) belonging to him.
Based on the definition of property rights as a subjective right, we will define this right as a legal institution.
Property rights are a system of legal norms regulating relations regarding the ownership, use and disposal by the owner of a thing belonging to him at the discretion of the owner and in his interests, as well as to eliminate the interference of all third parties in the sphere of his economic domination.
In cases where the owner himself owns and uses a thing, in order to exercise his right, it is usually sufficient for third parties to refrain from encroaching on this thing. But this is not always the case. In order to dispose of a thing (sell it, rent it out, assign it, etc.), the owner, as a rule, must enter into a relationship with a specific person (for example, with someone who wants to buy the thing, rent it or pledge it ). Although the owner exercises his right by establishing relations with a specific person, their regulation goes beyond the scope of property rights, and the owner himself acts in the guise of a seller, lessor, mortgagor, etc. If the right of ownership is violated, then everything depends on whether this right is preserved or not. If it persists, then the restoration of the broken relationship occurs with the help of the norms of the institution of property rights. If the right of ownership is not preserved (say, the thing is destroyed), then in order to restore the violated rights one will have to resort to the norms of other legal institutions (for example, obligations from causing harm or insurance law). Thus, the norms that form the institution of property rights are in constant contact and interaction with the norms of other legal institutions, both civil law and other industry affiliations.
This circumstance must be taken into account when choosing legal norms governing a particular area of property relations, including property relations.
Methods of acquiring and terminating ownership rights .
The right of ownership is one of the subjective rights that can arise only in the presence of a certain legal fact - a basis. In the event of the will of the owner - initial, in the event of succession - derivative. The current period is characterized by a complex interweaving of a variety of ways of acquiring and terminating property rights. The privatization process is proceeding rapidly, as a result of which state and municipal enterprises and social and cultural facilities become the property of legal entities and individuals. On the other hand, the opposite is also observed - property that previously belonged to citizens and public organizations passes into state and municipal ownership.
Methods for acquiring and terminating property rights are highlighted in special chapters in the Civil Code - 14 and 15. Methods for acquiring property rights are systematized regardless of whether they are accompanied by the termination of property rights from another person or not, forcibly or of one’s own free will. The initial methods of acquiring ownership include: acquisition of ownership of a newly manufactured thing (Article 218 of the Civil Code), processing (Article 220 of the Civil Code, conversion into ownership of publicly available things (Article 221 of the Civil Code), acquisition of ownership of ownerless property (Article 221 of the Civil Code). 218, Art. 225-226, Art. 235-236), find (Art. 227-229), treasure (Art. 233), acquisitive prescription (Art. 234), ownership of unauthorized construction (Art. 222).
Derivative methods of acquiring property rights include: nationalization (Part 3, paragraph 2 of Article 235, Article 306), privatization (Article 217, Part 2, paragraph 2 of Article 235), acquisition of ownership of the property of a legal entity during reorganization and liquidation (clause 7 of article 63, clause 2 of article 218), foreclosure on the owner’s property for his obligations (clause 2 of article 235, article 238), conversion of property into state ownership in the interests of society (requisition ) or in the form of a sanction (confiscation) (Articles 242-243), redemption of real estate in connection with the seizure of the plot on which it is located (Article 239), redemption of mismanagement of the contents of property (Article 240, Article 293).
There are methods of acquiring property rights that in some cases act as initial ones, and in others as derivatives, for example, acquiring ownership rights to fruits, products and income (Article 136, paragraph 1 of Article 218).
Derivative methods of acquiring property rights are characterized by the fact that the acquisition is based on succession, i.e. depends on the rights of the predecessor. One cannot help but recall this type of acquisition of property as nationalization, which is also a derivative method of acquiring property. As a result, time has proven that the results of wholesale nationalization are an unbearable burden for the state and do not produce economically effective results. Currently, the forced seizure of private property of legal entities and individuals into state ownership is carried out only on the basis of the law, primarily Article 35 of the Constitution, with compensation for all losses (Articles 235 and 306). The reverse process is privatization, as a result of which the property of the state and municipalities passes into the ownership of legal entities and individuals, both for compensation and free of charge, and a wide variety of types of property are subject to privatization: enterprises, housing facilities, land plots, churches, monasteries, etc. In many cases, they are subject to the right of succession (clause 5 of Article 58). The Federal Law “On the privatization of state property and the fundamentals of the privatization of municipal property in the Russian Federation” plays a decisive role in the privatization process.
Let us dwell on the most important provisions of this law:
Sale of property, including shares of enterprises created during the privatization process;
Sale of property at a commercial competition;
Sale of shares to employees of joint stock companies created during the privatization process;
Redemption of leased property;
Transformation of unitary enterprises with 100%
State-owned open joint stock companies;
Contribution of property as a contribution to the authorized capital of business companies;
Alienation of state or municipal shares of open joint-stock companies to owners of state or municipal securities certifying the right to acquire them.
The law does not know any other ways to carry out privatization.
Other methods of transferring ownership
It is possible to transfer the property of one state into the property of another. An example can be observed in the division of property of the Russian Federation and its constituent republic, with the property remaining in state ownership.
The next method of acquiring property rights is the reorganization or liquidation of a legal entity, the property of which is acquired by legal successors on the basis of a transfer deed or separation balance sheet (Article 218, 58-59), as well as the distribution of the property remaining during the liquidation of the enterprise between participants (Clause 7, Article 63) , and even in the case where the participants owned rights of obligations (there is a transformation of rights of obligations into real rights).
Among the derivative methods of acquiring property rights is the forced foreclosure of the owner’s property for his obligations (Article 237). This method becomes possible only by a court decision and according to certain rules. You can also consider such methods as requisition and confiscation (Articles 242 -243), and these methods arise in the event of special circumstances - natural disasters, epidemics, in war, and the most important condition for the exercise of these rights is their compensated nature for the owner.
The law provides for the gratuitous seizure of the owner’s property by a court decision as a sanction for a crime or offense committed (Article 173) and as an additional punishment for serious and especially serious crimes recorded in the Criminal Code, also only by court decision and with certain restrictions. Civil confiscation can be applied as a sanction for an invalid transaction (Articles 169,179).
As for the forced gratuitous transfer into state ownership of the property of citizens or organizations - confiscation - then in accordance with Article 29 of the RSFSR Code of Administrative Offenses, this is possible only in cases where this property was the instrument or object of the offense.
There is also such a way of acquiring ownership rights as the redemption of real estate in connection with the seizure of the land plot on which it is located (Article 239), and the owner must be notified of the upcoming redemption no later than 1 year in advance, and the redemption price includes the cost of the land , directly the property located on it, the amount of all losses caused and even lost profits.
The redemption of mismanaged property contents is provided for in Articles 240 and 239 of the Civil Code. If the property is not of significant value and its handling does not violate the interests of third parties, the law does not respond to the actions of the owner. In the opposite situation, the state can make a forced purchase of property at the request of the relevant state organization, and the owner (both an individual and a legal entity) is paid its value.
Derivative methods include the emergence of ownership rights from the acquirer of property under an agreement, and in the form required by law. The right of ownership always individualizes a certain thing, i.e. makes it stand out from the crowd of similar ones. The moment of individualization is timed to coincide with the moment of conclusion of the contract or the moment of fulfillment of its conditions, thus the acquirer’s right of ownership arises (Article 223, paragraph 1). If the transfer of ownership is subject to state registration, then the right itself arises from the moment of such registration (Article 223, paragraph 2 of the Civil Code, Article 7 of the “Law of the Russian Federation on the privatization of housing stock”). Clause 2 of Article 224, Article 143 of the Civil Code provides for such a method of transferring ownership as a transfer, which also includes the delivery of administrative documents for goods (bill of lading). In these cases, ownership begins with the delivery of the contract or trade documents to the opposing party.
The owner bears the burden of maintaining his property and the risk of its damage or destruction (Article 210-211 of the Civil Code).
It is worth dwelling on the right of ownership, which in some cases acts as primary, and in others as derivative - this is the acquisition of ownership of fruits, products and income (Article 136, paragraph 1 of Article 218 of the Civil Code). According to Article 606, Part 2 of the Civil Code, the fruits, products and income received by the tenant or tenant as a result of the use of property in accordance with the contract are his property, but only from the moment they are separated from the fruit-bearing thing.
Ownership is a very flexible category. In a market economy, the turnover of things increases sharply, which entails the termination of rights for some owners and the emergence of them for others. But termination of property rights can also occur unilaterally.
The owner can destroy a thing, lose it irretrievably due to certain circumstances, a thing can lose its qualities due to the time of its existence.
These methods of terminating property rights are not regulated by law, unless they violate anyone’s interests.
Protection of property rights and other property rights.
If the right of ownership is violated or may be violated, the owner has the right to resort to protection of his right. Property rights can be violated in two ways; or the owner is deprived of his property, and he cannot own, use and dispose of it; or, although the owner is not deprived of actual possession of his property, he is prevented from using and disposing of it.
In the first case, the owner brings a vindication claim against the violator - for the removal of his property from someone else's possession. In the second case, the owner brings a negative claim against the violator - to eliminate illegal obstacles in the use and disposal of his property.
A vindication claim (Article 301 of the Civil Code of the Russian Federation) states that the owner has the right to reclaim his property from someone else’s illegal possession. Further, Article 302 of the Civil Code of the Russian Federation establishes that when filing a vindication claim, it is first of all established whether the new acquirer (owner) of the property is in good faith or in bad faith. A bona fide purchaser is one who did not know and could not know that the property was acquired from a person who did not have the right to alienate it. On the contrary, if the acquirer knew or should have assumed that the alienator is not the owner of the property and has no other authority to transfer the owner’s property to him, then he is considered to be in bad faith.
The owner has the right to reclaim property from an unscrupulous purchaser always, in all cases.
As for a bona fide purchaser, the owner has the right to demand from him and receive back his property in the following two cases:
1) if the property was acquired by this person free of charge (for example: given to him);
2) if the property was lost by the owner or the person to whom the owner transferred this property into possession, or stolen from one or the other, or left their possession in some other way against their will.
However, this general rule does not apply to such property as money and bearer securities; clause 3 of Article 302 indicates that money and bearer securities cannot be claimed from a bona fide purchaser.
If the owner is damaged by a crime, then this damage is compensated by the state by a court decision (Article 16 of the Civil Code of the Russian Federation). This article provides for compensation for damage caused not only by a crime, but also by state and municipal authorities and governing bodies, since it names the subject of liability: the Russian Federation, a subject of the Russian Federation, a municipal entity.
Protection of property rights is carried out by a people's court, an arbitration court or an arbitration court. Persons who, although not the owner, still own property by right of economic management, operational management, or as a trustee, or on other grounds provided for by law or contract, also have the right to protect their property rights. These persons have the right to defend their property against any person, including the owner.
A negative claim is a claim by the owner in possession of a thing against a third party to remove obstacles that interfere with the normal exercise of ownership rights (Article 304 of the Civil Code of the Russian Federation): “The owner may demand the elimination of any violations of his right, even if these violations were not associated with deprivation of possession.” .
If in case of vindication the plaintiff at the time of filing the claim does not own the thing that is in the illegal possession of the defendant, then in the negatron claim the plaintiff owns the thing, but the defendant, by his illegal behavior, prevents the plaintiff from normally exercising his right of ownership.
The plaintiff’s demand may be aimed not only at prohibiting the defendant from interfering with the normal exercise of property rights through his unlawful behavior, but also at eliminating the consequences of the offense, i.e. may claim damages. This claim is not subject to the statute of limitations.
Ownership and other property rights.
Didactic plan.
General provisions on property rights and other property rights. Property and property rights. Property as an economic category. Legal forms of economic property relations. The concept and content of property rights. Acquisition (emergence) of property rights. Initial methods of acquiring property rights. Derivative methods of acquiring property rights. The concept and meaning of acquisitive prescription. Termination of ownership. Grounds and methods for termination of property rights. Forced seizure of property from a private owner for compensation. Gratuitous forced seizure of property from the owner.
The right to private property. The concept, objects and content of private property rights of citizens. Ownership rights of citizens to land plots. The right of ownership of citizens to residential premises. Property rights of individual entrepreneurs. The concept, objects and content of private property rights of legal entities. Features of property rights of business partnerships and companies. Ownership rights of production and consumer cooperatives. Property rights of non-profit organizations.
Inheritance of property of citizens. Concept, meaning and main categories of inheritance law. Hereditary succession. Subjects of hereditary succession. Grounds of inheritance. Hereditary mass. Opening of inheritance. Inheritance by will. Form of will, testamentary disclaimer. Inheritance by law. Acceptance of inheritance. Refusal of inheritance. Measures for the protection of inherited property.
Public property rights. The concept and content of the right of state and municipal (public) property. Subjects of public property rights. Objects of exclusive state property. The concept and significance of privatization of state and municipal property.
Common property right. The concept of common property rights. Grounds for the emergence of the right of common ownership. Types of common property rights. The concept and content of the right of common shared ownership. Foreclosure of a share in common property. The right of common joint property of citizens.
Limited real rights. The concept and types of limited real rights. Features of limited property rights to land plots and residential premises. Property rights of legal entities to manage the owner’s property. The right of economic management. Right of operational management.
Protection of property rights and other proprietary rights. The concept and civil law methods of protecting property rights and other property rights. A claim for recognition of ownership or other property rights. Claims against public authorities to protect the interests of subjects of property rights (private individuals). Property claims. The use of vindication and negatory claims to protect limited property rights. Property protection of possession.
Concept and types of real rights.
Property rights– one of the legal forms of implementation of property relations. Property rights are usually defined as rights that provide their owner with the opportunity to directly (independently of any other person) influence a thing. In other words, property rights provide its owner with direct power, dominion over a thing.
Property rights are characterized by three main features that distinguish them from obligatory rights: only rights directly provided for by the norms of a given national civil law system are recognized as property rights (a closed circle of property rights); real rights, by the nature of their action, are absolute rights, in which the authority of the holder of the right corresponds to the obligation of all other persons to recognize their actions and refrain from violating them; the object of real rights is always an individually defined thing.
In accordance with Art. 216 of the Civil Code of the Russian Federation, along with the right of ownership, recognizes, in particular, the following rights of persons who are not owners (real rights): the right of lifelong inheritable ownership of a land plot, the right of permanent (indefinite) use of a land plot, the right of economic management of property, the right of operational property management and easements.
This list is not exhaustive.
The term “property” is used in a wide variety of meanings. It is understood as concepts such as things, property, or economic or purely legal categories. Meanwhile, there are significant differences in the economic and legal understanding of property.
The economic content of property relations lies in the fact that a person, firstly, appropriates certain property (material wealth), which is thereby alienated from other persons, and secondly, the person who appropriated specific property has the opportunity, at his own discretion, to decide how use this property, i.e. exercise economic (economic) dominance over it, and, thirdly, the person who appropriated the property receives not only the “benefits” of owning this property, but also bears the burden of maintaining his own things, as well as the risk of accidental loss of property, unless otherwise provided by law or an agreement (Articles 210, 211 of the Civil Code). It is the combination of benefit with the burden of ownership and risk that characterizes a true owner.
The law formalizes all of the named aspects of economic (actual) property relations: both the relationship between people regarding property (determines the possibilities of protecting the owner from unjustified encroachments of third parties), and his attitude towards the appropriated property (determines the boundaries of its permitted use and the obligation to maintain his own things).
Thus, economic property relations represent relations of appropriation by specific persons of certain property (material goods), entailing its alienation from all other persons and providing the possibility of economic domination over the appropriated property, coupled with the need to bear the burden of its maintenance.
Legal forms of economic property relations.
Actual (economic) property relations appear as a consequence of the formation of a market economy based on commodity-money exchange. Relations of appropriation in a commodity (market) economy inevitably require legal recognition and legal protection. Thus, they always act as economic-legal relations, since their economic content is impossible outside the legal framework.
However, such relationships are not always formalized only through property rights. Economic property relations take on various legal (civil) forms. After all, their object is goods, which in developed commodity circulation are not only things. The form of a product is obtained by both tangible and intangible results of work and services, intangible results of creative activity, as well as individual rights (for example, issued in the form of securities) and even means of individualizing goods (trademarks, brand names, etc.). The civil legal regime of these objects is established using not only real rights, but also obligatory and exclusive rights. And even real rights, which have only things as their object, are also not exhausted by the right of ownership.
Thus, a product in the economic sense does not always legally constitute an object of property rights (although in any case it is the object of certain civil rights). Economic property relations as an integral part of the subject of civil law regulation turn out to be much broader than the direct subject of property rights or even property rights in general. The latter represents only part of the economic relations of property, covering relations of ownership (appropriation) of only things, i.e. material goods that have the economic form of a commodity.
The forms of economic relations of appropriation depend on who is their subject: an individual, a group of persons or a collective organized by them, an enterprise or the state as a whole. These economic forms of appropriation are usually called forms of ownership. Consequently, forms of ownership are economic, not legal categories; they cannot be identified with property rights or its varieties.
Property turnover in a market economy requires fundamental equality of rights of commodity owners as owners of property. Therefore, the fundamental principle is the equality of all forms of property, which means the equality of opportunities provided to various subjects of appropriation. This principle is also of an economic rather than legal nature. It is impossible to ensure equality of all forms of ownership in the legal sense. Thus, any property can be in state ownership, including those withdrawn from circulation (subsoil, water, forests); the state can acquire ownership of property in ways that citizens and legal entities are deprived of (taxes, fees, duties, confiscation). Therefore, Part 2 of Art. 8 of the Constitution of the Russian Federation speaks of recognition and equal protection, but not of equality of various forms of property.
The concept and content of property rights.
Ownership can be considered in an objective and subjective sense. In the first case, we are talking about a legal institution - a set of legal norms related to the vesting of persons with property rights, to which special section II of the Civil Code is devoted. However, the institution of property rights includes not only civil law norms. It covers all the rules of law that establish (recognize), regulate and protect the ownership of material wealth by specific individuals. In other words, the right of property in the objective sense is not a civil law, but a complex (multi-branch) institution of law, in which, however, civil law norms occupy a predominant place.
In a subjective sense, the right of ownership, like any subjective right, is the possibility of certain behavior permitted by law to an authorized person. In this sense, it represents the broadest real right in content, which enables its owner - the owner - and only him to determine the nature and directions of use of the property belonging to him, exercising complete economic domination over it.
The range of real rights, in contrast to obligations, is determined by the law itself (Articles 209, 216 of the Civil Code). A person does not have the right to create new types of real rights at his own discretion. In paragraph 1 of Art. 209 of the Civil Code of the Russian Federation reveals the powers of the owner: possession, use and disposal. Taken together, these powers exhaust all the possibilities provided to the owner.
Power of possession– based on the law (i.e., legally secured) the opportunity to own this property, maintain it in your household (actually possess it, list it on your balance sheet, etc.).
Right of use- the possibility, based on the law, of exploitation, economic or other use of property by extracting useful properties from it and consuming it. It is closely related to the right of ownership, because in most cases you can use property only by actually owning it.
Power of disposal– the possibility of determining the legal fate of property by changing its ownership, condition or purpose (alienation by agreement, transfer by inheritance, destruction, etc.).
The owner simultaneously concentrates all three of these powers. But separately, and sometimes all together, they may belong not to the owner, but to another legal owner of the property, for example, a tenant.
The right of ownership, although not unlimited, is the most extensive property right in terms of the scope of powers. Like most real rights, ownership is perpetual. The law or agreement may provide for restrictions (limits) on the exercise of property rights. The “triad” of the owner’s powers does not always characterize the real content of the opportunities provided to the owner. The point is the extent of real legal power over one’s property that is provided and guaranteed to the owner by the current legal order.
From this point of view, the main thing that characterizes the powers of the owner in Russian civil law is the ability to exercise them at his own discretion (clause 2 of Article 209 of the Civil Code of the Russian Federation), i.e. decide for yourself how to dispose of your property.
An important feature of the owner’s powers is that they allow him to eliminate, exclude all other persons from any influence on the property that belongs to him, if this is not his will. Property law, in contrast to obligation, is a type of absolute right, i.e. The owner of a property right is confronted by an unlimited circle of subjects who are obliged not to violate his right to a thing.
As a general rule, it is the owner who bears the burden of maintaining his property (Article 210 of the Civil Code), i.e. he bears all associated financial and other expenses (repairs, security, insurance, taxes, etc.). Also, the owner himself bears the risk of death or damage to property, which may occur due to chance or force majeure, since there are no persons who can be held responsible (Article 211 of the Civil Code). This rule may be changed by law or contract.
Thus, it can be said that ownership as a subjective civil right, it is the ability of a person, enshrined in law, to own, use and dispose of his property at his own discretion, while simultaneously assuming the burden and risk of maintaining it.
Possession- actual possession of a thing, the exercise of economic domination over it.
Use – one of the main rights of the owner, which consists in the ability to extract only useful properties from a thing.
Order– the possibility of determining the fate of a thing by performing the relationship of its legal acts.
Acquisition (emergence) of property rights.
The grounds for the emergence (acquisition) of property rights are various legal facts, i.e. circumstances of real life, in accordance with the law, entailing the emergence of ownership rights to certain property for specific persons. To acquire the right of ownership, the existence of a thing that may be the property of a given person, the expression of his will to acquire ownership of this thing, and other grounds provided by law are necessary. The grounds for acquiring property rights are also called property titles. Property titles are usually divided into two groups:
Initial, i.e. not related to the right of other persons to this thing (including cases when such an owner previously did not exist at all);
Derivatives, in which the right of ownership of a thing arises at the will of the previous owner, i.e. passes from one person to another (most often - under an agreement with him).
The initial methods of acquiring ownership include:
Creation (manufacturing) of a new thing for which no one’s ownership rights previously existed and could not be established;
Processing and collection or extraction of things generally available for these purposes;
Under certain conditions - unauthorized construction;
Acquiring ownership of ownerless property, including property that the owner has abandoned, thrown away, or to which he has lost the right.
Derivative methods of acquiring property rights include the acquisition of this right:
Based on an agreement or other transaction on the alienation of a thing (purchase and sale, barter, donation);
By way of inheritance after the death of a citizen;
By way of succession during the reorganization of a legal entity.
In the initial methods of emergence of the right of ownership, the establishment of ownership of the thing and the scope of the rights and obligations of the owner are determined by law, and in the derivative methods, the will of the previous owner, his rights and obligations in relation to the thing, the agreement of the parties and acts of government bodies are of great importance; the rights and obligations of the new owner are derived from the rights and obligations of the previous owner of the thing. In this case, the thing retains its previous qualities, only the subject of ownership of it changes.
The practical significance of this distinction is that in derivative methods of acquiring ownership of a thing, in addition to the consent (will) of the owner, it is also necessary to take into account the possibility of other persons - not the owners - having rights to the same thing.
The difference between the initial and derivative methods of acquiring property rights, in essence, comes down to the absence or presence of succession.
Many methods for the emergence of property rights can be used by any subjects of civil law - these are general or civil methods of acquiring property rights. However, there are special ways of the emergence of property rights that are inherent, for example, only to the state (requisition, confiscation, nationalization).
Initial methods of acquiring property rights.
The main initial way of emergence of property rights is the economic and labor activity of citizens and organizations in the production of various products. Persons who lawfully created a thing acquire ownership of it at the time of its creation. We are talking about creating such a thing for oneself (clause 1 of Article 218 of the Civil Code), since if it is created under a contract for another person, he becomes the owner due to contractual conditions. The moment from which a thing can be considered created (existing) is important, because it is a law-generating fact.
For movable things, this moment is determined by the fact of the end of the relevant activity, and for immovable things - by the moment of state registration (Articles 219 and 131 of the Civil Code). Consequently, until the moment of such registration, the newly created immovable thing does not legally exist, but represents a special object of law, for example, unfinished construction, which, as a general rule, is not subject to state registration as real estate, with the exception of certain cases expressly provided for in the law (privatization, the need to complete a transaction with such an object). In other cases, it is only a collection of building materials and structures that remain movable property.
A person who has carried out the unauthorized construction of a property, as a general rule, does not acquire ownership of it, and this building itself does not become real estate, because it is not subject to state registration. However, in order to protect the interests of the person who carried out the unauthorized construction, it has been established that the ownership of a house or other object can be recognized by the court for a person who has carried out a construction on a plot of land that does not belong to him, if this plot is then provided to this person in the prescribed manner for placement erected building in accordance with Art. 222 Civil Code.
Recycling the relevant materials from which a new movable thing is created is the second method of acquiring ownership.
As a general rule, ownership of such a thing is acquired by the owner of the materials. If such owner is not at the same time the person who processed the materials, he must compensate the cost of processing to the person who performed it (unless otherwise provided by the contract). An unscrupulous owner who has used materials without the consent of the owner has the right to demand the transfer of this item to him and compensation for losses caused by such actions.
The right of ownership to products, fruits and income as a result of the economic exploitation of property, as a general rule, arises from the person using this property legally (Article 136 of the Civil Code), unless a different procedure is provided by law or agreement.
Gathering berries and mushrooms, fishing, collecting or harvesting other publicly available things or animals is also the initial method of acquiring ownership for any person who has collected or obtained them, provided that they are carried out in accordance with the law, the permission of the owner or local custom (Article 221 GK).
Another initial way to acquire ownership is to acquire this right to ownerless things. Such things include things that the owner refused, as well as finds, treasures, abandoned personal belongings, and stray animals. Nakhodka- this is the discovery of something lost by someone. Treasure– these are money or valuable objects buried in the ground or otherwise hidden, the owner of which cannot be identified or, by virtue of the law, has lost the right to them. If any thing can be a find, then only money and valuable items are a treasure.
In all of the above cases, the owner of the thing is either unknown, or has abandoned them, or has lost the right to them (clause 1 of Article 225 of the Civil Code). The ownership right to them appears to the actual owners due to the circumstances specified in the law, i.e. in the original way.
The procedure for the emergence of ownership rights to movable and immovable ownerless things is different. Ownerless movables become the object of ownership of their actual owners in the presence of conditions directly established by law for specific situations (abandoned things, finds, stray animals, treasure) or by virtue of the rules on acquisitive prescription provided by law. This order depends on the cost of these items.
Ownerless real estate is accepted for registration by the authorities carrying out state registration of real estate, upon application from the local government body on whose territory they are found. After a year, they can be recognized by the court as municipal property. But the owner of the thing has the right, before the court makes this decision, to return the thing to his ownership, and after the court makes such a decision, its former owner loses the right to the thing.
The concept and meaning of acquisitive prescription.
Acquisitive prescription refers to the original methods of acquiring ownership.
In accordance with Art. 234 of the Civil Code, the emergence of ownership rights by acquisitive prescription is possible only under the condition of long-term, open and continuous possession of the thing “as one’s own property.” This eliminates the possibility of acquiring someone else’s property if the owner owns and uses it on the basis of a concluded agreement (storage, lease, etc.), i.e. the presence of any legal title in the possession of the owner excludes the action of acquisitive prescription.
To acquire ownership of a thing by prescription, one of the main conditions is bona fide possession of this thing, i.e. the actual owner must not be a thief or another person who deliberately took possession of someone else's property against the will of the owner. Another condition is open ownership of a thing, the owner’s attitude towards this thing as his own, obvious to all other persons, bearing the burden of ownership associated with maintaining the thing in proper condition.
For the acquisition of ownership rights by acquisitive prescription, the law establishes certain deadlines: for movable property - five years, and for real estate - 15 years. In this case, the right of ownership of real estate arises only from the moment of state registration.
Thus, acquisitive prescription- this is the acquisition of ownership of property by a citizen or legal entity that is not the owner of the property, but who conscientiously and continuously owns either their own real estate for 15 years, or other property for five years.
The law also regulates the issue of the running of the acquisitive limitation period, which cannot begin before the expiration of the limitation period for the relevant requirements (clause 4 of Article 234 of the Civil Code).
During the period of acquisitive limitation, the actual bona fide owner of the thing enjoys the protection of his possession against all other persons (clause 2 of Article 234 of the Civil Code). The institution of acquisitive prescription protects the rights of the present owner against the previous one.
Derivative methods of acquiring property rights.
The difference between derivative methods of acquiring ownership rights from the original ones is that they take into account the will of the previous owner (alienator of the thing), therefore, in these cases, the grounds for acquiring ownership rights from some persons are simultaneously grounds for the termination of the same right from other persons. First of all, these are various contracts (purchase and sale, barter, donations, etc.), as well as inheritance of property of citizens or succession in relation to the property of legal entities. The law specifically regulates all these methods.
Since derivative methods are associated with the transfer of ownership, it is of great importance to establish the moment of this transition, since from the same moment both the burden of ownership and the risk of accidental death or damage to the thing are transferred. The legislation (clause 1 of Article 223 of the Civil Code) defines this moment as the moment of transfer, unless otherwise provided by law or agreement.
The exception is property, the legal regime of which is subject to state registration, and accordingly, ownership usually arises from the moment of such registration (clause 2 of Article 223).
The transfer of a thing in the law (Article 224 of the Civil Code) means, in addition to the actual delivery of the thing to the acquirer or delivery of it to a carrier or to a communication organization for sending to the acquirer, also the actual receipt of property into the possession of the acquirer or the person specified by him (delivery to a warehouse), as well as and transferring to him the document of title to the thing.
Termination of ownership.
The right of ownership is not only the broadest, but also the most stable property right. The law specifically regulates not only the grounds for acquiring property rights, but also the grounds for its termination (terminating facts). These grounds are regulated by Art. 235 of the Civil Code in accordance with the principle of inviolability of property proclaimed in paragraph 1 of Art. 1 GK.
Grounds and methods for termination of property rights.
Termination of property rights most often occurs at the will of the owner, who transfers this right to another person on the basis of various agreements, administrative acts, etc., as well as in the event of the owner renouncing his right.
The regulation of the termination of the property right of the alienator and the emergence of the property right of the acquirer is carried out mainly by the norms of contract law.
Relinquishment of the right of ownership (Article 236 of the Civil Code) is permitted by publicly announcing this or by performing real actions that definitely indicate this intention (for example, throwing away property).
A special case of termination of property rights is the privatization of state and municipal property (Article 217 of the Civil Code). This method cannot be a general basis for termination of property rights, since it applies only to public owners.
The right of ownership of a thing may terminate upon the destruction of the thing, its loss, if it was not returned to the owner in a timely manner and became the property of the person who found it, upon the destruction of the thing, since the object of right is destroyed, as well as in the event of the death of the owner. In the absence of anyone’s fault in the death or destruction of a thing, the risk of loss of property lies with the owner himself (Article 211 of the Civil Code). If the thing is destroyed due to the fault of third parties, then they are liable to the owner for causing harm to him.
Forced seizure of property from a private owner for compensation.
Forced seizure of property from the owner is possible only in cases expressly provided for by law (clause 2 of Article 235 of the Civil Code). The fact that this list is exhaustive and cannot be expanded in any way is one of the main guarantees of the rights of the owner.
Let's consider cases of compensated seizure of property from the owner.
Such withdrawal is permitted in the following cases:
1) alienation of property that cannot belong to a given person due to the prohibition contained in the law (things withdrawn from circulation or limited in circulation) - Art. 238 Civil Code. We are talking about such property as weapons, potent poisons and drugs, currency values, etc. If these things are legally owned by a private owner, but this person himself is legally deprived of the opportunity to possess them by right of ownership, they are subject to compulsory alienation. The owner of such property himself has the right to alienate it in any legal way to an authorized person within a year (unless a shorter period is provided by law). If the owner does not independently resolve the issue of its alienation, the court may decide on its forced sale or transfer to state or municipal ownership, while the former owner has the right to demand compensation for lost property;
2) alienation of real estate (buildings, structures, etc.) in connection with the seizure of the site on which it is located - Art. 239 Civil Code. We are talking about cases when a land plot (or a subsoil plot, water areas and similar objects) is seized from a private owner in public legal interests (for example, for laying a highway, constructing any objects, etc.). For such private owners, the law provides certain guarantees. Firstly, the purchase of property from the owner is possible only by a court decision, and not through an administrative procedure. Secondly, the need for a state body or local government body to prove to the court the impossibility of using the seized site without terminating the rights of the owner of the building located on the site. Thirdly, land or other legislation may provide for the possibility of moving buildings or structures to a new site at the expense of the person in whose interests the seizure is being made, or constructing new similar structures at his expense;
3) repurchase of mismanaged cultural property – Art. 240 GK. This applies only to cultural values specially protected by the state. In court, it is established that there is a real threat that they will lose their significance as a result of the corresponding inaction or actions of their owner. This applies only to private owners. In any case, the owner receives compensation - in the form of money received from their sale, or in the form of other compensation;
4) repurchase of domestic animals in cases of improper treatment of them – Art. 241 Civil Code. The purpose of this legal provision is to protect pets from cruelty and other inappropriate treatment. If the rules for the humane treatment of animals are violated, interested parties may demand through the court the forced purchase of the animal with the transfer of ownership of this animal to them. Any citizens and organizations can make such a demand;
5) requisition of property – Art. 242 Civil Code. Requisition provides for the forced seizure of a private owner's property by decision of government authorities in urgent public interests and with mandatory compensation. Requisition is possible only in emergency circumstances (natural disasters, accidents, epidemics, epizootics, etc.) and can only be carried out in the interests of society. Such seizure is possible by decision of state (but not municipal) bodies and does not require a court decision. As additional guarantees, the law provides for the owner the possibility of judicially challenging the amount of compensation, as well as the possibility of reclaiming the remaining requisitioned property in court if the circumstances that served as the basis for its requisition no longer exist (clauses 2 and 3 of Article 242 of the Civil Code). The purpose of requisition is not to suppress the illegal behavior of the owner, but to ensure the safety of citizens, save property or destroy infected animals;
6) when paying compensation to a participant in shared ownership in exchange for the part of the common property due to him if it is disproportionate to the allocated share;
7) when acquiring ownership of real estate by a court decision in cases where it is impossible to demolish a building or structure located on someone else’s land plot;
8) when purchasing a land plot for state or municipal needs in accordance with a court decision;
9) upon confiscation from the owner of a land plot used by him in gross violation of the requirements of the law;
10) when selling at public auction by a court decision the mismanagement of the contents of a residential premises;
11) when nationalizing the property of owners by virtue of the adoption of a special law (clause 2 of article 235, article 306 of the Civil Code). Nationalization represents the conversion into state ownership of property that is privately owned by citizens and legal entities. Nationalization is possible only with compensation to the owner for the value of the property and other losses in accordance with the law.
Gratuitous forced seizure of property from the owner.
The law provides for several cases of such seizure:
1. Foreclosure of the owner’s property for his debts (Articles 24, 56, 126 of the Civil Code). Such collection is carried out on the basis of a court decision in the manner prescribed by the legislation on enforcement proceedings. Seizure of property based on a court decision that has entered into legal force is carried out on the basis of executive documents issued by the courts. The law establishes a certain order of such penalties. The law may provide for cases of this type of recovery out of court (at the request of the tax authorities). Such recovery is also possible under an agreement (for example, when the pledgee forecloses on the pledged property out of court - under a notarized agreement with the pledgor - paragraph 2, clause 1, article 349 of the Civil Code).
Certain property of public owners may also become the object of recovery by their creditors, including through the execution of court decisions.
2. Confiscation– gratuitous seizure of property from the owner by a court decision in the form of a sanction for committing a crime or other offense. Most often, confiscation is used as a criminal punishment for crimes. Almost the only case of application of confiscation for a civil offense is provided for in Art. 169 of the Civil Code, which establishes the possibility of gratuitous seizure of property for the benefit of the state in the event of a deliberate transaction for a purpose contrary to the foundations of law and order and morality.
Property necessary for the convicted person or his dependents is not subject to confiscation, according to the list provided for by the civil procedural legislation.
As a general rule, confiscation is carried out in court. Administrative confiscation is used when weapons are confiscated from persons who do not have permission to use and store them, and in a number of other cases. The administrative procedure for confiscation may be provided for by law, but in this case such confiscation may be appealed in court.
3.Requisition.
In cases of natural disasters, accidents, epidemics, epizootics and other circumstances of an emergency nature, property in the interests of society, by decision of state bodies, may be confiscated from the owner in the manner and under the conditions established by law, with payment to him of the value of the property.
The concept, objects and content of private property rights of citizens.
Private property– is the property of citizens and legal entities.
Citizens are private owners of the property they own, including various types of real estate (including enterprises such as property complexes, residential buildings and apartments). The right of private property is protected by law (Article 35 of the Constitution of the Russian Federation). The Constitution of the Russian Federation proclaimed the possibility of privately owning land, as well as other natural resources (Part 2, Article 9, Article 36). However, current legislation does not yet provide for the possibility of having subsoil and forest areas in private ownership. Citizens may own various types of movable property, as well as money and securities.
In addition to the general grounds for the emergence of citizens' property rights, the Law provides for some special grounds. For example, a member of a housing cooperative, civil society cooperative and other consumer cooperative acquires ownership of an apartment, garage or other premises that was provided to him by the cooperative after making a full share contribution for the specified property (clause 4 of Article 218 of the Civil Code).
Property that is withdrawn from circulation or limited in circulation cannot be the object of the right of ownership of citizens (clause 2 of Article 129 of the Civil Code).
Ownership rights of citizens to land plots.
Land and other natural resources are a special object of civil circulation. Civil legislation applies to these objects to the extent that issues of their circulation are not regulated by legislation on land and other natural resources (Article 129 of the Civil Code of the Russian Federation). The Civil Code regulates these issues in a special chapter 17 “Ownership rights and other real rights to land.”
The object of ownership is not all land in general, but a specific land plot. This rule is a general rule for civil law.
The territorial boundaries of a land plot are established in the manner established by land legislation on the basis of documents (Article 26 of the Land Code of the Russian Federation) issued to the owner by specially authorized state bodies. Such documents include, for example, a certificate of land ownership, issued in accordance with the Federal Law “On State Registration of Rights to Real Estate and Transactions with It.”
Unless otherwise established by law, the right of ownership of a land plot extends to the surface (soil) layer and closed reservoirs located within the boundaries of this plot, as well as the forest and plants located on it.
The owner of a land plot has the right, at his own discretion, to use everything that is above and below the surface of the land plot, unless otherwise provided by the laws: “On subsoil”, “On the use of air space”, other laws and does not violate the rights of other persons.
In addition to rights, the law establishes obligations for the owner. The main responsibility of the owner is the burden of maintaining the property he owns. In relation to a land plot, this first of all means keeping the site free of clutter, using it for its intended purpose, and preventing deterioration in the quality of the land.
The owner also bears the risk of accidental loss or damage to his property. This risk passes to the acquirer of the land plot from the moment of state registration (Article 223 of the Civil Code of the Russian Federation).
The right of ownership of citizens to residential premises.
Residential premises are intended exclusively for the residence of citizens, i.e. have a strictly intended purpose. This is explained by the special social significance of housing, as well as its continuing shortage.
Residential premises in the Civil Code mean an apartment, a room, and a residential building, adapted for permanent residence, registered in this capacity with government agencies that keep records of this type of real estate, including official and departmental ones, as well as “specialized houses” and employees premises for similar purposes - hostels, shelter hotels, houses of flexible stock, special houses for single elderly citizens, boarding houses for the disabled, veterans, etc. Legal entities who own a residential building or other residential premises can use them by occupying residential premises by people. No other use of residential premises is permitted. Cases of violation of this order may become the basis for a court decision to sell such residential premises at public auction, i.e. on the forced alienation of real estate belonging to the owner. However, it is necessary to first warn the owner about the need to eliminate existing deficiencies (Article 293 of the Civil Code).
The scope of the owner’s rights to the residential premises he owns is the same as that of owners to other property, with exceptions established by law (Article 209 of the Civil Code). Living space is an integral part of the whole - a residential building. Therefore, its legal regime is characterized by the features provided for in Art. Art. 289 and 290 Civil Code.
The law prohibits the owner of an apartment from alienating his share in the right to the common property of a residential building and performing other actions entailing the transfer of this share, separately from the right of ownership of housing (clause 2 of Article 290 of the Civil Code).
Citizens who are tenants of residential premises in state and municipal housing stock have the right to free privatization of the residential premises they occupy. It is formalized by concluding an agreement with local authorities on the free transfer of residential premises into their ownership. Each citizen can privatize residential premises in state or municipal housing stock only once. The legislation provides for certain restrictions on privatization (service and emergency residential premises, as well as residential premises in dormitories, closed military camps).
Owners of residential premises may unite in condominium, which is an association of owners in a single complex of real estate in the housing sector, within the boundaries of which each of them, on the right of private, state, municipal or other form of ownership, owns residential and non-residential premises in residential buildings. The condominium is a non-profit organization created and operating in accordance with the Law “On Homeowners' Associations”.
Ownership rights of individual entrepreneurs.
The ability to use one’s property in business is one of the most important powers of the owner.
Individual entrepreneur– a citizen carrying out entrepreneurial activities without forming a legal entity, registered as an entrepreneur in the prescribed manner. Individual entrepreneurs may own various means of production, including those used with hired workers. If a citizen is engaged in entrepreneurial activity in accordance with the procedure established by law without forming a legal entity, he remains the owner of his property and is liable for his obligations, including those arising from entrepreneurial activity, with all his property (Article 24 of the Civil Code), i.e. with the exception of the property listed in Appendix 1 to the Code of Civil Procedure.
Individual entrepreneurs, as individuals, have the right to own any other property that may constitute the object of citizens' property rights. The peculiarity of legal regulation is that they do not (legally) separate the property they use for business activities from their other property. That is why all the property they own (with the exception indicated above) may be subject to recovery by any of their creditors (including employees).
The concept, objects and content of private property rights of legal entities.
Property of legal entities– any property in any quantity, except for property that by law cannot belong to a legal entity.
A legal entity may own property transferred to it by the founders as contributions (contributions) of participants (members), as well as produced and acquired by the legal entity for other reasons in the course of its activities (clauses 3, 4 of Article 213 of the Civil Code). Legal entities are the sole and sole owners of their property. The quantity and value of property owned by legal entities are not limited, except in cases where such restrictions are established by law (Clause 2 of Article 213 of the Civil Code).
Shared, collective or other ownership of the founders (participants, members) of the property of a legal entity does not arise. An exception is the property of unitary enterprises and institutions, which remains the object of ownership rights of the founders and therefore belongs to these legal entities under a limited property right.
The founders of an enterprise who have transferred property into the ownership of a legal entity, in exchange for the lost property right, acquire rights of claim to such an organization (but not real rights to its property) (Clause 2 of Article 48 of the Civil Code). These rights of claim include: the right to participate in the distribution of profits (dividend) and the right to receive part of the property (or its value) remaining after the liquidation of the organization and settlements with all creditors (liquidation quota).
Separate property of a legal entity is a material base, a guarantee of satisfaction of possible claims of creditors. The absence of such property from a legal entity either deprives it of the meaning of existence as an independent subject of property relations, or turns it into a deliberately fraudulent organization intended only to deceive counterparties.
When determining the status of legal entities as owners, one of the main tasks is to protect the interests of creditors. To do this, legal entities must have property that is actually capable of satisfying the demands of possible creditors.
The objects of ownership of legal entities can be both real and movable property that has not been withdrawn from circulation (buildings, structures, equipment, vehicles, raw materials, materials and household items).
Joint-stock companies and other business partnerships as participants in the process of privatization of state and municipal property (buyers) may be the owners of the land plots on which the privatized objects are located.
For all owners of land plots, the general restrictions established by the Law “For Private Land Owners” remain, primarily the strictly targeted nature of its use and alienation, as well as the need to comply with environmental regulations and prohibitions (clause 3 of article 129, clause 3 of article 209 GK). This applies to residential buildings and other residential premises owned by legal entities, since in this case the strictly intended purpose of these objects and the resulting restrictions on their use are preserved (Article 288 of the Civil Code).
All property of a legal entity is reflected in its valuation on its balance sheet.
Features of property rights of business partnerships and companies
Share capital is allocated as part of the property of partnerships. It represents a conditional value - the total monetary value of the contributions of the participants (founders). A contribution to the property of the partnership can be money, securities, other things or property rights or other rights that have a monetary value (clause 6 of Article 66 of the Civil Code). However, the value of the entire property of the partnership usually significantly exceeds the amount of the share capital, since it covers the value of other property owned by such a commercial organization (its income and property acquired at their expense).
The share capital is divided into shares of participants corresponding to the ratio of their contributions to the property of the legal entity. However, this circumstance does not make this capital the object of shared ownership of the participants. Shares in the share capital of a partnership are rights of claim, and not shares in property rights. They determine the “scope” of the rights of participants, including establishing how much they can receive upon distribution of profits or upon liquidation in comparison with other participants, how much they can demand from the partnership when leaving it, and are also necessary for counting votes when making decisions.
Share capital is a guarantee of satisfying the claims of possible creditors of the partnership, but it is not the only guarantee. The law does not impose special requirements on the size of the share capital of partnerships, since if they lack their own property, all their participants can be held jointly and severally liable for their debts, who in this case are liable to creditors with their personal property.
At the same time, he must still have a certain share capital specified in the constituent documents of the partnership, and by the time the partnership is registered, this capital must be formed by no less than half. If the value of the partnership's net assets decreases to an amount less than the originally registered share capital, the partnership does not have the right to distribute profits among the participants until the value of the net assets exceeds the size of the share capital (clause 2 of Article 74 of the Civil Code).
The distribution of profits and losses between the participants of the partnership is made in proportion to their shares in the share capital (clause 1 of Article 74 of the Civil Code), unless a different procedure is established by their agreement. The property consequences of the withdrawal of a participant from the partnership consist in payment of the value of a part of the partnership’s property corresponding to its share in the share capital, or the issuance of the corresponding property in kind (clause 1 of Article 78 of the Civil Code). In this case, the size of the partnership’s property decreases, and the shares of the remaining participants increase accordingly. By agreement of the participants or in accordance with the constituent agreement, something else is possible, for example, an increase in the share of one of the participants, who in this case makes an additional contribution to the property of the partnership.
A limited partnership (limited partnership) consists of two categories of participants occupying different positions in it. General partners in a limited partnership (limited partnership) constitute a full partnership, and accordingly they are subject to the provisions of a general partnership (clauses 2 and 5 of Article 82 of the Civil Code). The property that is the object of ownership rights of a limited partnership consists of the contributions of general partners and limited partners. Dividends of all participants are distributed in proportion to these contributions. In case of withdrawal from a limited partnership, the general partners have the right to acquire their contributions (shares), as long as at least one investor remains in such a partnership.
At the end of the financial year, the investor has the right to leave the partnership and receive his contribution in accordance with the constituent agreement (clause 3 of article 85 of the Civil Code). When a limited partnership is liquidated, including in the event of bankruptcy, investors have a priority right over general partners to receive their contributions from the remainder of the partnership’s property, and after that they also have the right to participate in the distribution of the remainder of the property along with general partners (clause 2 of Article 86 of the Civil Code ).
The property rights of business companies also have their own characteristics. The financial basis for the activities of business companies is their authorized capital, which is made up of the value of participants' contributions. The authorized capital of companies, in contrast to the share capital of partnerships, is the only guarantee of satisfaction of possible creditors of the company (except for companies with additional liability). In this regard, the law imposes special requirements on the authorized capital of companies regarding its size.
Thus, the minimum amount of the authorized capital of companies cannot be less than an amount equal to either 100 times (for limited and additional liability companies and closed joint stock companies) or 1000 times (for open joint stock companies) the minimum wage per month established by law on the date of submission of the company’s constituent documents for registration. At the same time, by the time of registration of the company, the specified capital must be paid in at least half, and the remaining unpaid part must be paid by its participants during the first year of the company’s activity.
A non-monetary contribution must be assessed by the founders (participants) of the company by mutual agreement, and if it is significant, it is subject to an independent examination.
The size of the authorized capital of the company under no circumstances can be less than the specified minimum. Otherwise, the company is subject to liquidation, because its creditors will not be able to count even on the minimum established by law. In any case, a reduction in the authorized capital of a company is permitted after notification of its creditors. If the participants of the company do not want to liquidate it, they are obliged to increase its authorized capital.
The law establishes a requirement for a certain correspondence between the authorized capital of a company and its net assets. The value of net assets should not be less than the size of the authorized capital.
An increase in the authorized capital of companies is permitted only after it has been fully paid (clause 6, article 90, clause 2, article 100 of the Civil Code).
A joint stock company can acquire its own shares only in two cases: when reducing the authorized capital and when repurchasing shares at the request of shareholders. Such actions are highly undesirable both for the company itself and for its creditors and shareholders, since they entail a decrease in net assets and sometimes in authorized capital. Therefore, the law allows such acquisitions only under certain conditions (Article 73 of the Law “On Joint-Stock Companies”), and shares acquired by the company are either immediately redeemed (with a corresponding reduction in the authorized capital) or sold by the company no later than a year from the date of their acquisition.
Similar rules apply to cases of acquisition by a limited liability company of shares in its own authorized capital (Clause 5, Article 93 of the Civil Code, Articles 23, 24 of the Law “On Limited Liability Companies”).
Part of the property owned by business companies consists of reserve and other special funds. Funds have a strictly intended purpose, which is determined by law or the charter of the company. In joint-stock companies, a reserve fund is created, which serves to cover losses, as well as to repurchase shares and bonds of the company in the absence or insufficiency of other funds. The size and procedure for the formation of the reserve fund are determined by law (Clause 1, Article 35 of the Law “On Joint-Stock Companies”).
Ownership rights of production and consumer cooperatives
The economic basis of the cooperative's activities is its property, which is divided into shares of its members in accordance with the charter of the cooperative. The share of a member of a cooperative, like the share of a participant in a company or partnership, is a right of claim that applies to all the property of the cooperative, and not just to the mutual fund.
The mutual fund is formed from the share contributions of the members of the cooperative during the first year of its activity, and by the time of registration of the production cooperative, each participant is obliged to pay at least 10% of the share contribution determined by the charter of the cooperative (clause 2 of Article 109 of the Civil Code).
Any property, including property rights, can be accepted as a share contribution (unless otherwise established by the charter of the cooperative). The assessment of a share contribution exceeding 250 times the minimum wage requires independent confirmation (Clause 2, Article 10 of the Law “On Production Cooperatives”).
The mutual fund of a production cooperative can be increased by decision of its general meeting either by increasing the size of shares or by making additional shares (contributions) by its members. It must be reduced if, at the end of the second and each subsequent year, the value of the net assets of the production cooperative is less than the value of its mutual fund (Clause 4, Article 10 of the Law “On Production Cooperatives”).
In production cooperatives, it is possible to declare part of their property as indivisible funds (clause 1 of Article 109 of the Civil Code). The division of these funds is possible only upon liquidation of the cooperative after the claims of its creditors have been satisfied.
Just like in business societies, cooperatives usually create a reserve fund and other special funds. The types, sizes, procedure for the formation and use of such funds are determined by the charter of a particular cooperative.
Property rights of non-profit organizations
In accordance with the law, non-profit organizations are allowed into civil circulation with a strictly intended purpose provided for by their charters. Therefore, they have the right to use the property owned by them only to achieve their statutory goals (clause 4 of Article 213 of the Civil Code). Thus, they are more limited in their capabilities than other private owners.
Participants in such organizations do not have not only real, but also any other rights to their property, and in the event of liquidation, they do not participate in the distribution of the remaining property. The relevant remainder of the property must be used for the purposes expressly stated in their articles of incorporation or in the law.
Non-profit organizations can have real estate, land plots, as well as movable property, money and securities in their private ownership. The objects of their property are the property of the institutions they created. Within the framework of their statutory tasks, they have the right to produce goods or provide services that generate profit, to be participants in business entities, and to create other non-profit organizations.
No non-profit organizations have the right to distribute income (profits) received from the business activities permitted for them among their participants (members). The targeted nature of their activities requires strict compliance between the tasks specified in the constituent documents and the nature of participation in property circulation. Profit, accordingly, can only be spent on solving statutory tasks.
For certain types of non-profit organizations, the law may establish special (additional) restrictions on entrepreneurial activities and on the sources of their income. Thus, charitable organizations are allowed to create business societies only as “companies of one person,” because they cannot participate there jointly with other persons (Clause 4 of Article 12 of the Law “On Charitable Activities and Charitable Organizations”). They are also obliged to use at least 80% of the monetary donations given to them and all donations in kind for charitable purposes within one year (Article 16 of the said Law).
Concept, meaning and main categories of inheritance law.
The right of inheritance is closely related to the right of personal property. Inheritance is a specific legal concept. Under inheritance means the transfer of a set of property and some personal non-property rights and obligations of a deceased citizen (testator) to other persons (heirs) in the manner prescribed by law.
There are some exceptions to the inheritance of certain rights and obligations, as well as features to the inheritance of certain types of property. Thus, the inheritance property does not include alimony obligations or the right to compensation for harm caused to health. Personal non-property rights and other intangible benefits are not included in the inheritance.
The right of inheritance differs in the objective and subjective sense. In an objective sense, this is a set of rules governing the process of transferring the rights and obligations of a deceased citizen to other persons; in this capacity, inheritance law is a legal institution that is part of civil law. In a subjective sense, the right of inheritance is usually understood as the right of a person to be called to inherit, as well as his powers after accepting the inheritance.
Inheritance law has always been and will be an integral part of the legal norms regulating the property of citizens. The opportunity to transfer property to your loved ones and receive an inheritance from loved ones in many ways allows a person to feel more confident and stable in the system of modern social relations.
Hereditary succession.
In the event of the death of a person, not any individual rights and obligations, but their totality are transferred to the heirs. That is why inheritance is a general, or universal, succession. It must be distinguished from private, or singular, succession. A singular assignee acquires only one right or group of rights. A separate responsibility may also pass to him.
Universal hereditary succession is direct, since rights and obligations are transferred from one person to another without the participation of a third party. The singular successor acquires his rights or a separate right not directly from the testator, but from the heir (the testator can, in particular, oblige the heir to perform a certain action in relation to the singular successor: transfer part of the library bequeathed to the heir; grant one of the heirs the right to free use of the land plot , bequeathed to another heir, etc.).
The entire complex of rights and obligations passes to the heirs at the same time. You cannot accept some rights and refuse others. Therefore, an heir who has accepted a particular right is considered to have automatically accepted all the other rights of the deceased, known and unknown to him.
Subjects of hereditary succession. Grounds of inheritance.
The subjects of hereditary succession are the testator and heirs. Testator - a person after whose death inheritance begins. Heirs can only be citizens (Russian and foreign), as well as stateless persons living in the territory of our country. Legal entities cannot be testators: during their reorganization, property passes to other persons in the manner prescribed by law (Article 58 of the Civil Code), and during liquidation, succession does not arise (Clause 1, Article 61 of the Civil Code).
Heirs are persons specified in the will or law as legal successors of the testator. The heir can be any subject of civil law: a citizen, legal entity, state or municipality. Citizens and the state can be heirs both by law and by will. In case inheritance by law Persons specified in the law are called to inherit, to whom the rights and obligations of the testator are transferred. Inheritance by will– a written, notarized will of the testator to dispose of his property. It should be noted that a citizen’s ability to inherit absolutely does not depend on the scope of his legal capacity. Legal entities can act as heirs only by will.
To protect the interests of participants in inheritance relations, the law includes provisions on depriving unworthy citizens of the right to inherit (Article 1117 of the Civil Code of the Russian Federation).
Legal entities can be heirs only by will; in addition, they can receive property from heirs who have renounced the inheritance in favor of the legal entity.
The state can inherit all or part of the property either by law or by will. Cases when inherited property passes in whole or in part to the state are listed in the law:
If the property is bequeathed to the state;
If the testator has no heirs either by law or by will;
If all heirs are deprived of the right of inheritance by the testator;
If none of the heirs accepted the inheritance.
In all of the above cases, the subject of the right of inheritance is the corresponding subject of the Russian Federation - a state entity (represented by its financial or other authorized government bodies), if the testator did not indicate in the will another public legal entity as an heir or we are talking about property related to to federal property.
Hereditary mass.
The entire set of property rights and obligations of the testator, passing to the heirs in the manner prescribed by law, represents hereditary mass(inheritance). The rights constitute the asset of the inheritance, the obligations - its liability.
Among the property rights that are inherited, one should first of all mention the right of ownership of household items, personal consumption, convenience and subsidiary household items, a residential building, as well as deposits in credit institutions.
A special part of the inheritance consists of items of ordinary household furnishings and household items, which pass to the heirs by law who lived together with the testator before his death for at least one year, regardless of their turn and inheritance share.
Property rights arising from various contracts are also inherited, for example, the right to demand wages, return borrowed money, the right to demand compensation for damage caused to the testator’s property, etc.
The main responsibilities passed on by inheritance form monetary and other debts. But the heir who accepted the inheritance bears limited liability for the debts of the testator - he is liable only to the extent of the actual value of the testator's property transferred to him, but not with his personal property.
Opening of inheritance.
The opening of an inheritance is the emergence of an inheritance legal relationship. The legal facts (grounds) leading to the opening of an inheritance are the death of a citizen and the declaration of a citizen as deceased (Article 1113 of the Civil Code of the Russian Federation).
The opening of an inheritance always occurs at a certain time and in a certain place; the establishment of these two facts has important legal significance. The time of opening of the inheritance The day of death of the testator is recognized, and when he is declared dead, the day the court decision to declare him dead comes into force. If a citizen who has gone missing under circumstances threatening death or giving reason to assume his death from a certain accident is declared dead, the court may recognize the day of death of this citizen as the day of his alleged death.
At the time of opening of the inheritance, the following are determined:
Composition of inherited property;
Terms of acceptance or refusal of inheritance;
Deadlines for filing claims by creditors;
The moment when the heirs acquire the right of ownership of the inherited property;
Deadline for issuing a certificate of inheritance;
Legislation to follow.
The fact of death, as well as the day of death, is confirmed by a death certificate issued by the civil registry office. The fact of death at a certain time may be established by the court in a special proceeding.
In the event of the simultaneous death of persons who are heirs in relation to each other (commorients), inheritance immediately opens after the death of each of them separately.
Place of opening of inheritance is the last permanent place of residence of the testator, and if it is unknown, the location of his property or its main part.
At the place where the inheritance is opened, the issue of applying the legislation of a particular country to specific inheritance relations is decided. The exception is the inheritance of buildings and other real estate, which is carried out according to the laws of the country in whose territory this property is located.
Correct determination of the place of opening of inheritance is also important for resolving a number of procedural issues. It is at the place where the inheritance was opened that you must contact the notary’s office with an application for its acceptance and the issuance of a certificate of the right to inheritance. At the place where the inheritance is opened, measures are taken to protect the inherited property, and claims are also made by creditors.
The place of opening of inheritance after citizens temporarily residing abroad and dying there is considered to be their permanent last place of residence before leaving abroad. If it is unknown, the place of opening of the inheritance is the location of the inherited property or most of it on the territory of our country. The place of opening of inheritance for citizens permanently residing abroad is the country where they lived.
The place of opening of the inheritance is confirmed by a certificate from housing authorities, local administration or a certificate from the place of work indicating the place of residence of the testator. If the place of residence of the testator is unknown, then the above-mentioned authorities can issue a certificate of the location of the property of the deceased or the main part of it. If it is not possible to obtain these certificates, the place of opening of the inheritance can be established in court.
Inheritance by will.
A will is a unilateral transaction that creates rights and obligations after the opening of the inheritance.
Since a will is an expression of the personal will of the testator, it is directly related to his personality. That is why it must be signed by the testator himself. If the testator, due to physical disabilities, illness or other reasons, cannot sign the will with his own hand, at his request it can be signed in the presence of a notary or other official by another citizen (hand-signer) with the obligatory indication of the reasons why the will could not be signed with his own hand (Clause 3, Article 1125 of the Civil Code of the Russian Federation). Drawing up a will through representatives (attorneys, guardians, trustees) is not allowed.
The main content of the will is the appointment of heirs, indicating the property transferred to them by inheritance. The legislation enshrines the principle of freedom of will, according to which the testator can leave his property to both legal heirs and any other persons, as well as deprive the right of inheritance of one, several or all heirs by law. When making a will, a citizen is not bound by either the order of calling heirs or the right of representation; he has the right to bequeath to any person all property or part of it in any distribution of shares (Article 1119 of the Civil Code of the Russian Federation).
However, the legislation provides for cases of restriction of freedom of will: the law establishes a certain circle of heirs (they are usually called necessary or obligatory) who have the right to receive an obligatory share in the inheritance.
In accordance with Art. 1149 of the Civil Code of the Russian Federation, minor or disabled children of the testator, his disabled spouse and parents, as well as disabled dependents of the testator, subject to being called to inherit on the basis of paragraphs. 1, 2 tbsp. 1148 of the Civil Code of the Russian Federation, inherit, regardless of the contents of the will, at least half of the share that would be due to each of them upon inheritance by law (mandatory share).
The right to an obligatory share in the inheritance is satisfied from the remaining untested part of the inheritance property, even if this leads to a reduction in the rights of other heirs under the law to this property, and if the untested part of the property is insufficient to exercise the right to an obligatory share, from that part of the property which is bequeathed.
The obligatory share includes everything that the heir entitled to such a share receives from the inheritance for any reason, including the cost of the testamentary disclaimer established in favor of such heir.
If the exercise of the right to an obligatory share in the inheritance will entail the impossibility of transferring to the heir under the will property that the heir entitled to the obligatory share did not use during the life of the testator, but the heir under the will used for living or used as the main source of livelihood , the court may, taking into account the property status of the heirs entitled to the obligatory share, reduce the size of the obligatory share or refuse to award it.
Form of will, testamentary disclaimer.
The law provides for a mandatory notarial form of a will (Article 1124 of the Civil Code of the Russian Federation). Notarization of wills is carried out by notaries, and in areas where they do not exist - by the local administration and its bodies.
The person certifying the will must establish the legal capacity of the testator. The right to bequeath their property belongs only to fully capable persons, i.e. those who have reached the age of 18, either got married before reaching the age of majority (clause 2 of Article 21 of the Civil Code), or were emancipated (Article 27 of the Civil Code).
The following are equivalent to notarized wills:
1) wills of citizens staying in hospitals, other inpatient medical institutions, sanatoriums or in homes for the elderly and disabled, certified by chief doctors, their deputies for medical care or doctors on duty;
2) wills of citizens who are sailing on sea vessels or inland navigation vessels flying the flag of our country, certified by the captains of these vessels;
3) wills of citizens on geological exploration, Arctic and other similar expeditions, certified by the heads of these expeditions;
4) wills of military personnel and other persons undergoing treatment in hospitals and other military medical institutions, certified by the chiefs, their deputies for medical affairs, senior and duty doctors of these hospitals and other military medical institutions;
5) wills of military personnel, and in places of deployment of military units where there are no notary offices and other bodies carrying out notarial actions - also wills of workers and employees, members of their families and family members of military personnel, certified by the commanders (chiefs) of these units, formations, institutions ;
6) wills of persons in places of deprivation of liberty, certified by the heads of places of deprivation of liberty (Article 1127 of the Civil Code of the Russian Federation).
A will that is not certified in accordance with the procedure established by law must be declared invalid.
In accordance with current legislation, the testator has the right to establish at his disposal property in the event of death testamentary refusal(legate), i.e. impose on the heir the obligation to transfer certain property to third parties (legatees) or to fulfill an obligation of a property nature (Article 1137 of the Civil Code of the Russian Federation).
The essence of a testamentary refusal is that, from the entire set of rights and obligations that make up the inheritance, a certain person or persons are transferred to a certain right. Consequently, the legatee (legatee) becomes a partial (singular) successor of the testator. A testamentary disposition is one of the types of testamentary dispositions and has no force outside the will.
A testamentary refusal may be associated with the payment of a certain sum of money, the forgiveness of a debt, the granting of the right to use any property, the transfer of a specific thing, the imposition of an obligation to buy some thing and transfer it to the legatee in the form of an obligation assigned to the heir. On the basis of a will, an obligatory legal relationship is established between the heir and the legatee, in which the heir is the debtor and the legatee is the creditor. In this case, the legatee has the right of claim not in relation to the entire inherited property and not against all heirs, but only against the one whose share is encumbered by the refusal.
The person making a will is subject to the same requirements as the testator (age, legal capacity). Legatees can be persons both included and not included in the number of heirs by law. Persons who, through illegal actions directed against the last will of the testator, contributed to their appointment as legatees cannot be legatees.
The rights of the heir, who is entrusted by the testator with the execution of a testamentary refusal, are protected by law: he must fulfill it only within the limits of the actual value of the property transferred to him, minus the portion of the testator's debts that falls on him.
The law provides for a special type of testamentary disposition - assignment. Its essence lies in the fact that the testator can entrust to the heir the execution of actions aimed at achieving any generally beneficial purpose (Article 1139 of the Civil Code of the Russian Federation).
An assignment, in contrast to a testamentary refusal, can be expressed in the commission of actions of both a property and non-property nature. Since the assignment is established for a generally beneficial purpose, other heirs, relevant state and public organizations, and prosecutorial authorities have the right to demand its implementation in court. In the event of the death of an heir who, according to the will, was required to perform generally beneficial actions, the obligation to fulfill the assignment passes to the heir who receives the inheritance or its corresponding part.
Inheritance by law.
Inheritance by law takes place under the following conditions:
1) if there is no will or is declared completely invalid;
2) if only part of the property is bequeathed or the will is declared invalid in a certain part;
3) if the heir designated in the will died before the opening of the inheritance or refused to accept the inheritance.
The law determines the circle of persons who can be called to inherit, as well as the order of their calling.
In accordance with Art. 1142 – 1148 Civil Code of the Russian Federation:
The heirs of the 1st stage according to the law are the children, spouse and parents of the testator;
The heirs of the 2nd stage according to the law are the full and half-blood brothers and sisters of the testator, his grandparents;
The heirs of the 3rd stage according to the law are full and half brothers and sisters of the testator's parents (testator's uncles and aunts);
As heirs of the 4th stage - the great-grandfathers and great-grandmothers of the testator;
As heirs of the 5th stage - the children of the testator’s nephews and nieces and the siblings of his grandparents;
As heirs of the 6th stage - the children of the testator's cousins and granddaughters, the children of his cousins and brothers and the children of his great-uncles and grandmothers;
The heirs of the 7th stage are the stepsons of the stepdaughter, the stepfather and stepmother of the testator.
The heirs of each subsequent line are called upon to inherit by law only in the absence of heirs of the previous line or if they do not accept the inheritance, as well as if all the heirs of the previous line are deprived by the testator of the right to inherit.
Acceptance of inheritance.
Acceptance of an inheritance, as well as refusal of an inheritance, are unilateral transactions made by the heir. The heir who accepted the inheritance acquires the right not only to the property that was available at the time of acceptance of the inheritance, but also to all the property that was available at the time the inheritance was opened. Acceptance of an inheritance under conditions and with reservations is not allowed (Article 1152 of the Civil Code of the Russian Federation).
There are two ways to accept an inheritance: actually taking possession of the inherited property and submitting an application for acceptance of the inheritance to the notary body at the place where the inheritance was opened. These actions must be completed within six months from the date of opening of the inheritance.
The actual taking into possession of inherited property means actions to manage, dispose and use the inherited property, maintain it in proper condition, pay taxes and make other payments, that is, the heir must perform actions that give reason to believe that he belongs to the inherited property as to yours. The actual taking possession of part of the property is considered as acceptance of the entire inheritance, whatever it may be and wherever it may be located. Filing an application to accept an inheritance or issue a certificate serves as conclusive evidence of the heir’s intentions to become the owner of the inherited property.
The six-month period established by law for accepting an inheritance begins to run from the date of opening of the inheritance; it is subject to the rules for calculating deadlines (Articles 190 – 194 of the Civil Code). Persons for whom the right of inheritance arises only in the event of acceptance of the inheritance by other heirs may declare their consent to accept the inheritance during the remaining part of the six-month period for accepting the inheritance, and if this part is less than three months, then it is extended to three months.
Missing the deadline for accepting an inheritance, as a general rule, entails loss of the right to inherit. However, the law allows the court to extend this period if there are good reasons (Article 1154 of the Civil Code of the Russian Federation). The validity of the reasons for extending the period is determined by the same criteria as for restoring the limitation period. An inheritance can be accepted after the expiration of the period established by law and without going to court, if all other heirs who have already accepted the inheritance agree to this.
If an heir called to inherit by law or by will died after the opening of the inheritance, without having time to accept it within the prescribed period, the right to accept the share of the inheritance due to him passes to his heirs (Article 1156 of the Civil Code of the Russian Federation). It's called hereditary transmission. The right of a deceased heir may be exercised by his heirs on a general basis during the remainder of the period for accepting the inheritance. If it is less than three months, then the period is extended to three months.
Refusal of inheritance.
The heir by law or by will has the right to refuse it within six months from the date of opening of the inheritance (Article 1157 of the Civil Code of the Russian Federation). Refusal of an inheritance may be actual when, within six months from the date of opening of the inheritance, the heir called to inherit does not perform actions from which one could judge his intention to accept the inheritance. The heir may renounce the inheritance in the form prescribed by law - by submitting an application for renunciation of the inheritance to the notary office at the place where the inheritance was opened. In this case, the heir may refuse in favor of other persons from among the heirs by law or by will, in favor of the state or a separate legal entity. The state's refusal of inheritance is unacceptable under any circumstances.
Refusal of inheritance is possible in favor of any heir, except for the unworthy and deprived of the right to inherit, by indicating this in the text of the will. Such a refusal may be appealed by other heirs in court.
Since refusal of inheritance is allowed in favor of one or several heirs, the refusing heir has the right to indicate the shares due to those in whose favor he decided to refuse. If the heir has not indicated in whose favor he refuses, his share goes equally to those heirs who have already accepted the inheritance (unconditional refusal).
Refusal of inheritance is a transaction that can only be completed by a legally capable citizen. Persons with limited legal capacity may refuse an inheritance with the consent of their trustees; for incompetent citizens, only guardians have the right to refuse an inheritance. If the heir refuses the inheritance, then he has no right to subsequently claim it; the refusal of the inheritance is irrevocable.
Measures for the protection of inherited property.
A certain amount of time passes between the day of the testator’s death and the day the circle of heirs is identified. During this period, it may be necessary to take measures aimed at ensuring the safety of inherited property and eliminating the possibility of its damage, destruction and theft. Such measures are carried out by the notary office at the place where the inheritance was opened, and in areas where there are no notary offices, by the local administration (Article 1171 of the Civil Code of the Russian Federation).
Inherited property is protected until all heirs accept the inheritance, and if it is not accepted, until the expiration of the period established for acceptance of the inheritance. Security measures consist of an inventory of inherited property and transferring it for storage to heirs or other persons.
If the estate includes property that requires management, the notary office appoints a custodian of the property. It is also possible to establish trust management of such property (for example, by an executor). A similar procedure is provided for cases where a claim is brought by the testator’s creditors before the heirs accept the inheritance. If custodians, guardians and other persons to whom the inherited property is transferred for storage are not heirs at the same time, then they have the right to receive remuneration for the performance of these duties.
The concept and content of the right of state and municipal (public) property.
Property rights provide equal opportunities to all its subjects. As a general rule, civil law rules on property rights are designed for private owners, defining the regime of property owned by them, but at the same time contain the necessary exceptions and features for the property of public owners.
Public property, in accordance with Russian legislation, has two types - state and municipal property.
In our legislation, the state (a public legal entity) is traditionally considered a special, independent subject of law along with legal entities and citizens. Important features of the legal status of subjects of public property are: firstly, the presence of special powers (functions) that allow them to adopt regulations that regulate the exercise of their property rights; secondly, the exercise of this right in the public (public) interests.
Subjects of public property.
Right state property characterized by a multiplicity of subjects, whose role is played by the corresponding state entities as a whole - the Russian Federation (in relation to property constituting federal property) and its subjects - republics, territories, regions, etc. (in relation to the property that constitutes their property), but not their authorities and management (clause 3 of Article 214 of the Civil Code). The latter act in property transactions on behalf of the corresponding state entity and, in accordance with their competence, exercise certain powers of the public owner (Article 125 of the Civil Code).
Municipal property is not a type of state property in accordance with Art. 130 of the Constitution of the Russian Federation. This is an independent form (type) of ownership. At the same time, due to its public nature, the structure of this property is in many ways similar to state property. The subjects of municipal property rights are urban and rural settlements and other municipalities in general (clause 1 of Article 215 of the Civil Code). On behalf of the corresponding municipal entity-owner, its powers, in accordance with their competence, can be exercised by one or another of its bodies (Article 125, paragraph 2 of Article 215 of the Civil Code).
Which state or municipal body has the right to act in certain specific property relations on behalf of the corresponding state or municipal entity is determined by the competence of this body established by law.
The range of objects of state property is unlimited, it includes things withdrawn from circulation or limited in circulation (clause 2 of Article 129 of the Civil Code). However, this does not apply to municipal property, the subjects of which can be the owners of property limited in circulation only by special instructions of the law and cannot become the owners of things withdrawn from circulation. This reveals the difference in the legal regime of the two types of public property.
Objects of exclusive state property.
Objects of both state and municipal property can be various types of real estate, including land plots, enterprises and other property complexes, housing stock and non-residential premises, buildings and structures for production and non-production purposes, as well as production and technical equipment, vehicles, household items , consumer nature. Public property also includes securities belonging to public legal entities, deposits in banks and other credit institutions, foreign currency and currency valuables, as well as various historical monuments and
culture.
Some things constitute a special category and are objects of exclusive federal property. Such objects include the resources of the continental shelf, territorial waters and the maritime economic zone of the Russian Federation, some specially protected natural sites (including some nature reserves, healing springs, etc.), especially valuable objects of historical and cultural heritage and some artistic values, most types of weapons and defense facilities, equipment of some of the most important enterprises and institutions. In accordance with the law, these types of property are usually withdrawn from circulation.
The legislation does not provide for the possibility of having subsoil plots, forests and water bodies as private property.
The concept and significance of privatization of state and municipal property.
Privatization is a special way of transferring property from public property to private property. The emergence of this method is primarily due to the fact that the previously existing economy of our state largely consisted of state-owned objects. During the transition to a market economy, it was necessary to create an economic base for this and normal property turnover, i.e. transfer of a significant part of state property to private property.
Privatization pursued the following main goals:
Political – the emergence of a layer of owners (“middle class”);
Economic – creation of competitive commodity producers;
Fiscal – an additional source of budget income (or the removal of part of the maintenance costs, for example, of the housing stock);
Social – respecting the interests of the population (society) during the division of state property.
When carrying out privatization, civil law agreements are concluded for the free transfer of privatized property into private ownership.
The public owner must act as the seller (alienator) of the privatized property. The seller of federal property is a specialized institution that has been granted the authority by the federal government to organize and carry out such a sale and the representatives appointed by it, and the sellers of state or municipal property are legal entities that have been granted authority in the manner determined by the state authorities of the constituent entities of the Russian Federation to organize and carry out such a sale.
Buyers (purchasers) of privatized property in accordance with Art. 5 of the Law “On the Privatization of State and Municipal Property” subjects of civil law can act, with the exception of legal entities in whose authorized capital the share of public property exceeds 25%.
In accordance with the law, the following can be privatized:
Enterprises and other property complexes;
Buildings, structures, non-residential premises, unfinished objects;
Land plots;
Residential premises;
Shares of open joint stock companies.
It follows that the main object of privatization is real estate. All methods of privatization are provided for in the Law “On the Privatization of State or Municipal Property.”
Thus, privatization, in accordance with Article 1 of the Law “On the Privatization of State or Municipal Property,” is understood as the alienation for a fee of property owned by the Russian Federation (federal property) of constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities.
The transfer of state or municipal property from one state (municipal) enterprise to another is not privatization.
The concept of common property rights.
Common property– property owned by two or more persons.
Distinctive features common property rights are: a) common property; b) multiplicity of subjects of ownership of this property. Common property formalizes relations regarding the ownership of property (things) simultaneously to several persons - subjects of property relations (co-owners). Subjects of common property rights exercise the powers of the owner only jointly.
There is no common ownership of property if it consists of several component parts, each of which has its own owner. Common property relations can arise between any subjects of property rights (individuals and legal entities, state and municipal entities), and in any combination. Despite the fact that subjects of common property, like any owner, at their own discretion own, use and dispose of the property belonging to them, they exercise their powers in relation to this property jointly, jointly.
Since common property is characterized by a plurality of subjects, it is called multi-subject.
The right of common property in the objective sense is a set of legal norms regulating the legal status of property that constitutes a single whole and belongs simultaneously to two or more persons. The right of common property in the subjective sense is the right of two or more persons jointly and at their own discretion to own, use, and dispose of their property, which constitutes a single whole.
Grounds for the emergence of the right of common ownership.
The grounds for the emergence of the right of common ownership are various legal facts.
In most cases, common property arises as a result of the creation or acquisition of common property by several persons during purchase and sale, inheritance and in other cases of joint economic activity. The composition of common property also includes fruits, products and income from the use of property in common ownership. Common property contributes to more efficient use of property in the family and in economic relations. Currently, common property relations have expanded significantly. This was largely facilitated by the privatization of housing, when an apartment becomes the object of common ownership of the persons living in it. Such traditional types of common property as joint property of spouses and inheritance of indivisible items also remain.
Types of common property rights.
The relationship between owners varies depending on the type of common ownership and the agreements between them. The Civil Code provides for two types of common property: shared(with definition of shares) and joint(without defining shares) property. Common joint property can only take place in cases stipulated by law. The Civil Code provides for two types of common joint property: common joint property of spouses and common joint property of a peasant (farm) enterprise. The share of a participant in joint ownership in the common property is not determined in advance. It is established when dividing between the participants of joint property, as well as when allocating the share of one of them.
Common property with the participation of citizens can be both shared and joint, and with the participation of state and municipal entities - only shared.
The concept and content of the right of common shared ownership.
In an objective sense, this is a set of legal norms regulating relations regarding the ownership of property constituting a single whole (for example, a residential building) simultaneously to several persons (for example, several heirs of the owner of a residential building) in certain shares, and in a subjective sense, this is the right of two or more persons jointly, at their own discretion, to own, use and dispose of the property belonging to them in certain shares, constituting a single whole.
If the shares of participants in shared ownership cannot be determined on the basis of law and are not established by agreement of all its participants, the shares are considered equal (clause 1 of Article 245 of the Civil Code). However, depending on the contribution of each participant in the common shared property to the formation and increase of the common property, these shares may be unequal. The procedure for determining and changing shares in such cases is established by agreement of all shareholders
property.
The law determines the fate of improvements to common property made by one of the owners. If these improvements are separable without significant damage to the common property, then they are not subject to the rules on common property. They are the property of the person who made them. Inseparable improvements give the participant the right to demand a corresponding increase in his share in the common property (clause 3 of Article 245 of the Civil Code).
The disposal of property in shared ownership is carried out by agreement of all its participants (clause 1 of Article 246 of the Civil Code).
The peculiarity of the disposal of such property presupposes a preliminary unanimous decision of all participants in the common property regarding the common property in order to achieve any common goal. Each participant in common shared ownership has the right to independently dispose of his share in the common property in compliance with the rules on the pre-emptive right of its redemption by co-owners (Article 250 of the Civil Code).
Possession and use of property in shared ownership is carried out by agreement of all its participants, and if agreement is not reached, in the manner established by the court. Each participant in shared ownership has the right to be given for his possession and use a part of the common property commensurate with his share, and if this is not possible, he has the right to demand from other participants who own and use the property falling on his share, appropriate compensation (Article 247 of the Civil Code).
It is assumed that, regardless of the size of the shares, the powers of the owners are equal and are exercised by common consent.
The size of the owners' shares is of primary importance for determining the property relations of the parties when distributing income received from the use of common property (Article 248 of the Civil Code) and when incurring expenses for the maintenance of common property.
Each participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on the common property, as well as in the costs of its maintenance and preservation (Article 249 of the Civil Code).
The law protects the interests of participants in common property by granting them, when selling a share by one of the participants, the preemptive right to purchase it at the price for which it is sold and on other equal conditions, for example, with deferred or installment payment, except for sale at public auction (clause 1 Art. 250 Civil Code).
The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it.
When selling a share in violation of the preemptive right to purchase, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him (clause 3 of Article 250 of the Civil Code).
The right of first refusal is a personal right. The assignment of the pre-emptive right to purchase a share is not allowed (clause 4 of Article 250 of the Civil Code).
The stated rules also apply when alienating a share under an exchange agreement.
Property in shared ownership may be divided between its participants by agreement between them. A participant in shared ownership has the right to demand the allocation of his share from the common property (clause 2 of Article 252 of the Civil Code). The division of property is carried out between all participants in the common property relationship and means its termination. When a share is allocated, common ownership is retained in relation to the remaining participants. If an agreement is not reached between the owners, the issue of allocating a share in kind is resolved in court. If the allocation of a share in kind is not permitted by law or is impossible without disproportionate damage to property in common ownership, the allocated owner has the right to have the value of his share paid to him by other participants in shared ownership (clause 3 of Article 252 of the Civil Code).
Foreclosure of a share in common property.
The creditor of a participant in shared ownership, if the owner of other property is insufficient, has the right to make a demand for the allocation of the debtor's share in the common property for foreclosure on it (Article 255 of the Civil Code).
If in such cases the allocation of a share in kind is impossible or the remaining participants in shared ownership object to this, the creditor has the right to demand that the debtor sell his share to the remaining participants in the common property at a price commensurate with the market value of this share, with the proceeds from the sale being used to repay the debt.
If the remaining participants in the common property refuse to acquire the debtor's share, the creditor has the right to demand in court the foreclosure of the debtor's share in the common property right by selling this share at public auction.
The right of common joint property of citizens.
In an objective sense, this is a set of legal norms regulating relations regarding the simultaneous ownership of several persons constituting a single whole of property, in which their shares are not predetermined, and in a subjective sense, this is the right of several persons, at their own discretion, to own, use and dispose of the components of a single property belonging to them. whole property in which their shares are not determined in advance.
The need for joint ownership is determined, as a rule, by the close personal connections of its participants.
Participants in joint ownership, unless otherwise provided by an agreement between them, jointly own and use the common property.
The disposal of jointly owned property is carried out by the consent of all participants, which is assumed regardless of which of the participants makes the transaction to dispose of the property.
Each of the participants in joint ownership has the right to enter into transactions for the disposal of common property, unless otherwise follows from the agreement of all participants (Article 253 of the Civil Code).
Thus, the disposal of joint property is based on the assumption that all its participants agree in advance to a transaction that is concluded by one of them.
The division of common property between the participants in joint ownership, as well as the allocation of the share of one of them, can be carried out after a preliminary determination of the share of each of the participants in the right to the common property.
When dividing common property and separating shares from it, unless otherwise provided by law or agreement of the participants, their shares are recognized as equal.
The grounds and procedure for the division of common property and the allocation of a share from it are determined according to the rules set out above for the division of property in shared ownership and the allocation of a share from it (Article 254 of the Civil Code).
The procedure for foreclosure on a share in property that is jointly owned is the same as when foreclosure on a share in property that is jointly owned (Article 255 of the Civil Code).
One type of common joint property is joint property of spouses. All property acquired by spouses during marriage, with some exceptions, is considered their joint property, regardless of which of them and at whose expense the property was acquired, created, or in whose name it was registered. However, an agreement between spouses may establish a different regime for this property (Article 256 of the Civil Code).
Another type of common joint property is the property of a peasant (farm) enterprise (Article 257 of the Civil Code).
The joint ownership of members of a peasant (farm) enterprise includes: a land plot granted to this farm or acquired, plantings, outbuildings and other buildings, reclamation and other structures, productive and working livestock, poultry, agricultural and other machinery and equipment, vehicles, inventory and other property acquired for the farm using the common funds of its members.
The concept and types of limited real rights.
Category real rights includes not only the right of ownership, but also other real rights. The right of ownership is the broadest in content real right. In contrast, a limited property right is the right to someone else’s thing, already appropriated by another person - the owner. The possibilities provided by such a property right are always limited in content and therefore are much narrower than the powers of the owner.
Along with the general properties of all real rights, an important legal feature of limited real rights is their preservation even in the event of a change in the owner of the relevant property, i.e. these rights are preserved even if the ownership of such property changes. Thus, these rights always follow the thing, and not the owner. The right of succession is a characteristic feature of real rights. In this sense, limited real rights are a limitation of the powers of the owner.
Another property of limited real rights is their derivativeness, dependence on the right of ownership as the main real right.
The nature and content of limited real rights are determined directly by law, and not by contract, and their emergence often occurs against the will of the owner. The law establishes an exhaustive list of limited real rights.
Thus, a limited property right is understood as the right, within certain limited limits precisely defined by law, to use someone else’s, usually real estate, in one’s own interests without the intervention of its owner (including against his will).
Russian legislation provides for several groups of limited property rights, which include:
Rights to limited use of land plots and residential premises;
Property rights of some legal entities to manage the owner’s property;
Limited real rights that ensure proper fulfillment of the obligations of the right of pledge (pledgee) and lien, the objects of which may be movable things.
Features of limited property rights to land plots and residential premises.
Limited real rights to use other people's land include:
1) owned by citizens right of lifelong inheritance of land(essentially an indefinite lease) – the right to own and use a land plot, transmitted by inheritance;
2) right of permanent (indefinite) use of land, the subject of which can be both citizens and legal entities. In accordance with this right, a state or municipally owned land plot is provided to citizens or legal entities on the basis of a decision of the state or municipal body authorized to provide land plots for such use;
3) easement- the right to limited use of someone else's real estate. Easements (servitude rights), which can have an object (encumber in one way or another) not only land plots, but also buildings and structures. In the Civil Code, they are considered as rights of limited use of a neighboring plot (land easements), arising on the basis of an agreement between the owners of neighboring plots (with the possibility, however, of the forced establishment of such an easement by a court). Water easements are the rights to abstract water, water livestock, carry out ferry and boat crossings across water bodies by agreement with their owners (Articles 43, 44 of the Water Code of the Russian Federation);
4) the right to develop someone else’s land, belonging to the subjects of the rights of lifelong inheritable possession or permanent use. It consists in the possibility of erecting buildings, structures and other real estate objects on the appropriate site, thereby becoming the property of the developer.
All of the four groups of rights listed are provided for in Chapter 17 of the Civil Code, which did not come into force before the adoption of the new Land Code.
The rights to limited use of residential premises are represented in our legislation, firstly, by the rights of family members of the owner of the residential premises (Article 292 of the Civil Code). The law directly recognizes for these citizens the right to use this premises under the conditions provided for by housing legislation and not depending on the will of the owner of the property.
This right of use is retained by them even during the transfer of ownership of the housing. The law here, in essence, restricts the owner of real estate from the right to dispose of it without the consent of his family members living with him.
Secondly, they include the right to lifelong use of residential premises (a residential building, part of it, an apartment, etc.) or other real estate (land, dacha, etc.), which arises for citizens on the basis of a purchase agreement -sale of real estate under the condition of lifelong maintenance with dependents or testamentary refusal. This right consists of the possibility of living in residential premises owned by another person, i.e. in the limited (targeted) use of someone else's real estate, and excludes for the authorized person any possibility of disposing of this property. This right is also reserved for authorized persons, regardless of a possible subsequent change in the owner of the property and enjoys absolute protection, including in relation to the owner.
Property rights of legal entities to manage the owner’s property.
The right of economic management and the right of operational management are a special type of property rights. These are the real rights of legal entities for the economic and other use of the owner’s property, most often public. The existence of these property rights indicates the transitional nature of our property turnover, which retains certain elements of the previous economic system.
A feature of the right of economic management and the right of operational management is that these rights are derivative, dependent on the rights of the owner and cannot exist in isolation from these fundamental rights. Subjects of economic management and operational management rights can only be legal entities existing in certain organizational and legal forms - enterprises and institutions. The right of economic management is broader than the right of operational management.
The objects of these rights are property complexes fixed on the balance sheet of the relevant legal entities (and remaining objects of property rights of their founders).
The right of economic management and the right of operational management of the owner’s property arises from the moment of the actual transfer of this property to them, unless otherwise established by law, other legal act or decision of the owner himself (clause 1 of Article 299 of the Civil Code).
The right of economic management.
Right of economic management– this is the right of a state or municipal unitary enterprise to own, use and dispose of the property of the public owner within the limits established by law or other legal acts (Article 294 of the Civil Code).
The subjects of this right can only be state or municipal unitary enterprises.
Since the property transferred to a unitary enterprise under the right of economic management is removed from the actual possession of the founding owner and is added to the balance sheet of the enterprise, the owner himself can no longer exercise the powers of ownership and use in relation to this property, and to a certain extent, the power of disposal.
The owner of property under economic management, in accordance with the law, decides on the creation of an enterprise, determining the subject and goals of its activities, its reorganization and liquidation, appoints a director (manager) of the enterprise, and exercises control over the use for its intended purpose and the safety of the property belonging to the enterprise. The owner has the right to receive part of the profit from the use of property under the economic control of the enterprise (clause 1 of Article 295 of the Civil Code).
In accordance with paragraph 2 of Art. 295 of the Civil Code, an enterprise cannot independently dispose of real estate without the prior consent of the owner.
As for movable property, the enterprise disposes of it independently.
The right of economic management is retained when a state or municipal enterprise is transferred from one public owner to another.
Right of operational management.
In accordance with paragraph 1 of Art. 296 Civil Code right of operational management- this is the right of an institution or state-owned enterprise to own, use and dispose of the property of the owner assigned to it within the limits established by law, in accordance with the goals of its activities, the tasks of the owner and the purpose of the property.
The subjects of this right can be unitary (state-owned) enterprises and owner-financed institutions related to non-profit organizations.
The powers that make up the right of operational management are of a strictly targeted nature, determined by the functions performed by the institution. The owner sets direct tasks for such legal entities for the intended use of the property allocated to them; he also determines the intended purpose of individual parts (types) of property by distributing it to special funds.
The founding owner has the right, in cases provided for by law, to withdraw from the subject of operational management rights without his consent excess, unused or misused property and dispose of it at his own discretion (clause 2 of Article 296 of the Civil Code).
The concept and civil law methods of protecting property rights and other property rights.
Civil law provides for certain forms of protection of economic property relations. Some of the civil norms protect these relations by recognizing them, others provide the necessary conditions for the implementation of real rights, others establish unfavorable consequences for violators of real rights, i.e. directly protect them from illegal attacks.
Protection of rights and protection of rights are different concepts. Civil protection of property rights and other property rights is a broad legal concept; it is carried out using the entire set of civil law norms that ensure the normal and unhindered development of the relations in question.
Civil protection of property rights and other property rights is a narrower concept that applies only to cases of their violation. It is a set of civil law methods (measures) that are applied to violators of relations formalized using property rights.
Depending on the nature of the violations, various methods of protection are used. In case of direct violation of property rights or limited property rights (theft or other illegal seizure of property), proprietary methods of protection are used. Property protection is carried out using absolute claims, i.e. claims brought against any third parties who have violated property rights. There are two classic proprietary claims that serve to protect property rights and other proprietary rights:
vindication(a method of protecting property rights by which the owner can reclaim his property from someone else’s illegal possession);
negatory(a method of protection provided to the owner from actions not related to deprivation of possession of property).
Property law methods of protecting the property interests of authorized persons have as their object only individually defined things, but not other property. They cannot be presented in the absence of an individually defined thing as the subject of the dispute (for example, in the event of its destruction).
A claim for recognition of ownership or other property rights.
This claim is an important proprietary method of protecting property rights and other property rights (possession). This method can be used in the event of a dispute between the parties about the ownership of a specific thing, including real estate (part of the premises, etc.).
The plaintiff in this dispute is the owner (or title, owner, those. a person who is not the owner of the property, but who legally owns it), who must prove his right to the disputed property, i.e. his legal title.
The defendant in the claim is a person who also considers himself the owner of the same specific thing, his rights to which he must prove.
During a dispute, the actual owner of the disputed item is, as a rule, the defendant.
Claims against public authorities to protect the interests of subjects of property rights (private individuals).
To protect against unlawful actions of public authorities that violate the proprietary rights of private individuals, two types of claims are used.
Firstly, the law allows for a demand for full compensation for losses caused to private individuals as a result of illegal actions (or inaction) of state bodies, local governments or their officials, including through the issuance of both a normative and non-normative act that does not comply with the law or other legal act (Article 16 of the Civil Code). If such actions or acts violate real rights, this general method of protecting civil rights can also be considered as a way of protecting property rights or limited real rights. Such claims are brought against tax and customs authorities in cases of unjustified foreclosure on the property of the relevant persons.
Secondly, for a similar purpose, a requirement can be used to invalidate a non-normative act of a state or municipal body that does not comply with the law or other legal acts (Article 13 of the Civil Code) and violates property rights or illegally restricts the possibility of its implementation (for example, claims against committees on property management on the invalidation of their acts on the seizure of certain real estate objects held by enterprises under the right of economic management or operational management).
Claims for the protection of property rights of private individuals from unlawful actions of public authorities include claims for the release of property from seizure, but only in cases where they are presented to the state (represented by a financial authority) in connection with the upcoming confiscation of the property of a convicted person (or person under investigation) by court verdict.
Property claims. The use of vindication and negatory claims to protect limited property rights.
A vindication claim is one of the most common methods of protecting property rights. It is applied in the event of disposal (loss) of a thing from the actual possession of the owner and consists in the forced recovery by the owner of his property from someone else’s illegal possession.
A vindication claim is a claim by an owner who does not own a thing against a non-owner who is illegally in possession of it.
The subject of the right to vindication is the owner (or other title, i.e. legal owner), who must prove his right to the claimed property, i.e. his legal title.
The subject of the obligation (the defendant in the claim) is the illegal owner who actually possesses the thing at the time the claim is presented.
The object of vindication in all cases without exception is an individually defined thing that has been preserved in kind, since we are talking about the return of a specific thing, and not about replacing it with another of the same kind and quality.
The law distinguishes between two types of illegal possession of someone else's property, which give rise to different civil consequences. In case of bona fide possession, the actual owner of the thing does not know and should not know about the illegality of his possession. In case of dishonest possession, the actual owner knows, or due to the circumstances of the case should know, that he has no rights to the property.
The property may be reclaimed from an unscrupulous purchaser by the owner in all cases without any restrictions. It is impossible to demand money and bearer securities from a bona fide purchaser (clause 3 of Article 302 of the Civil Code).
Property can be claimed from a bona fide purchaser in two cases:
If such property was received by him free of charge (donation, inheritance, etc.), since such seizure does not incur property losses for him, but will contribute to the restoration of the violated property right (clause 2 of Article 302 of the Civil Code);
In the case of a paid acquisition of a thing by a bona fide purchaser, the method of disposal of the thing from the owner is important (clause 1 of Article 302 of the Civil Code).
If the property was initially disposed of by the owner according to his will, he does not have the right to reclaim it from a bona fide purchaser. In this case, it is customary to talk about the limitation of vindication in relation to a bona fide purchaser of someone else’s property.
But if the property has left the owner’s possession against his will (lost, stolen, etc.), it can be reclaimed even from a bona fide purchaser.
The possibility of reclaiming a thing from its bona fide paid purchaser also applies to cases where the thing has been disposed of not only by the owner, but also by the person to whom the property was transferred into possession by the owner (clause 1 of Article 302 of the Civil Code).
When the owner claims property from someone else's illegal possession, the question may also arise about the fate of income from the use of this property and about reimbursement of the costs of its maintenance, repair or improvement made by the actual owner. In accordance with Art. 303 of the Civil Code, the owner has the right to demand from the unscrupulous owner the return of not only specific property, but also all income that this owner received or should have received from the property for the entire period of his ownership of it. Such an obligation falls on a bona fide owner only during the time when he learned or should have learned about the illegality of his possession.
Both a bona fide and an unscrupulous owner have the right to demand from the owner compensation for the necessary costs of maintaining the property for the time from which the owner is due income from the property (Article 303 of the Civil Code).
A negative claim is a requirement to eliminate obstacles in the exercise of property rights that are not related to the deprivation of the owner of possession of his property (Article 304 of the Civil Code).
The subject of a negatory claim is the owner or other title holder who retains the thing in his possession, but experiences obstacles in its use.
The subject of the obligation (defendant in the claim) is considered to be a violator of the owner’s rights acting illegally.
The object of the requirements for a negatory claim is the elimination of a continuing offense (illegal state) that persists at the time the claim is filed. Therefore, the statute of limitations does not apply to these claims - a claim can be made at any time while the offense continues.
Property protection of possession.
Vindication and negatory claims in defense of their rights and interests can be brought not only by owners, but also by subjects of other proprietary rights to property - all legal (title) owners (Article 305 of the Civil Code). These include subjects of economic management rights, operational management, lifelong inheritable ownership and other limited property rights. They also include subjects of obligatory rights associated with the ownership of other people's property (tenants, custodians, carriers). Thus, subjects of limited property rights, as well as other title owners of property, receive the same (absolute, proprietary) protection of their rights as the owners.
At the same time, title (legal) owners who own someone else's property by virtue of law or agreement can defend their right to own property even against its owner.
Thus, any legal (title) possession is under absolute (proprietary) protection, as is the right of ownership. Property protection of title owners, including subjects of obligations, and not just property rights to someone else’s property, constitutes the concept of possessory protection. Possessory protection in certain cases also protects bona fide illegal possession (Article 302 of the Civil Code). Actual bona fide possession may become the basis for acquiring ownership rights by prescription of possession of someone else's (ownerless) property, including real estate (clause 1 of article 234, clause 3 of article 225 of the Civil Code).
The purpose of possessory protection is to protect the right of ownership as a right that is absolute in its legal nature. Therefore, it always has individually defined things as its object and is absolute in nature. Possessory protection, even concerning ownership rights acquired under a contract, is nevertheless an institution of property law, not liability law, and the claims that constitute it are classified as property rights.
SKILLS TRAINING.
Task No. 1
Joint-stock company "Lenenergo" filed a claim against the state railway transport enterprise for the eviction of the enterprise from the premises of the locomotive depot. In support of the claim, the plaintiff refers to the fact that the construction of the depot was carried out at the expense of funds allocated by the Ministry of Energy and Electrification of the USSR, and upon completion of construction, the depot was placed on the balance sheet of the thermal power plant, a division of the plaintiff. Currently, the depot is included in the authorized capital of the Lenenergo joint-stock company and is its property.
Objecting to the claim, the defendant pointed out that the construction of the locomotive depot and railway tracks was carried out at the expense of centralized capital investments, that the railway tracks with structures (including the depot) were subject to transfer to enterprises subordinate to the Ministry of Railways of the USSR, and the transfer was carried out in stages. The defendant accounts for the disputed property on its balance sheet and bears the costs of its maintenance; the depot is used for repairs of rolling stock that transport goods for thermal power plants and other recipients. The defendant actually uses the property as his own. The fact that the depot was not transferred to the railway transport enterprise in the prescribed manner due to the fault of the transferring party cannot serve as a basis for including the depot in the plaintiff’s privatization plan, since this violates the right of economic management of the enterprise to the property assigned to it, which is federal property.
Resolve this situation.
Problem No. 2
Limited liability company "Lenavtotransservice" filed a claim in the arbitration court against the City Property Management Committee (KUGI), Avtodelo CJSC, the Committee on Land Resources and Land Management and the Property Fund to invalidate the privatization plan for the rental enterprise "Avtodelo", approved by KUGI ; agreement for the purchase of leased property concluded by the Property Fund and CJSC Avtodelo; certificate of state registration of rights to real estate, issued by the Committee on Land Resources and Land Management of JSC Avtodelo.
In support of the claim, the plaintiff refers to the fact that the property privatized by Avtodelo CJSC was neither state nor municipal property; it belonged to the plaintiff’s predecessor, the Lenavtotransservice association. According to the agreement with the association, the property was leased from the rental company Avtodelo, the legal successor of which is Avtodelo CJSC.
KUGI, Avtodelo CJSC and the Property Fund, objecting to the claim, pointed out that the association was not a state organization. The property, classified as state property, was transferred free of charge not to her ownership, but for rental to an organization of tenants, transformed into the rental enterprise "Avtodelo". Therefore, KUGI could include the leased property in the privatization plan for the rental enterprise.
The Committee on Land Resources and Land Management requests that the case be terminated by proceedings regarding the invalidation of the certificate of registration of rights to real estate. At the same time, the Committee refers to the fact that the certificate of registration of rights to real estate certifies the fact that the rights to property belong to a specific person and is not that non-normative act of a government body, which, in accordance with Art. 22 of the Arbitration Procedure Code of the Russian Federation may be declared invalid by the court.
Problem No. 3
Chernyshev bought a Zhiguli car from Kolesov, having this transaction certified by a notary. A few days after this, Kolesov took the car without permission and refused to return it until Chernyshev additionally paid him, Kolesov, 30,000 rubles. Chernyshev filed a lawsuit against Kolesov, demanding the return of the car. The court rejected the claim, citing the fact that Chernyshev did not have time to register the car with the traffic police in his name, and therefore Chernyshev did not have ownership of it. The deal between Chernyshev and Kolesov should be considered invalid.
Resolve this situation.
Problem No. 4
Under a financial lease agreement (leasing agreement), the lessor purchased equipment for the lessee from the seller, which was transferred to the lessee under the acceptance certificate. Due to a fire that occurred at the tenant's enterprise (for unknown reasons), the equipment became unusable and cannot be restored.
Who will bear the property consequences of equipment destruction?
Problem No. 5
The artist Roshchin, while in the House of Creativity, painted a picture depicting a winter landscape. At the same time, to paint the picture, he used the canvas and paints of the artist Nikitin, who was away from the House of Creativity for several days on business. Having learned that his canvas and paints were used for the painting, Nikitin demanded that the painting be handed over to him. At the same time, he explained that he had long dreamed of having a painting by Roshchin, a famous landscape painter, in his collection and did not want to miss a happy opportunity. According to Nikitin, the painting was especially successful for Roshchin, since it was used with paints brought by Nikitin from Italy and made according to the recipes of old masters. Nikitin is ready to pay for Roshchin’s work in painting the painting.
Roshchin did not agree with this and, in turn, expressed his readiness to pay Nikitin the cost of paints and canvas. Roshchin explained the use of canvas and paints that did not belong to him by saying that he arrived at the House of Creativity empty-handed. Seeing, however, the winter landscape that struck him, he experienced a surge of creative strength and could not resist the temptation to paint a picture. Since Roshchin and Nikitin could not agree with each other, the dispute was referred to the conciliation commission of the St. Petersburg branch of the Union of Artists.
The artists sought legal advice.
What explanation should they give?
Problem No. 6
When the criminal group was detained, the Department for Combating Organized Crime seized a Volvo car, in which the criminals drove to the scene of the crime. A power of attorney to drive a car with the right to dispose of it was issued to one of them. During the inspection, it was established that the power of attorney was fraudulent, as it was issued on behalf of a person to whom the car never belonged and for whom the car was not registered with the traffic police. Neither the place of residence nor the place of stay of this person could be established. In addition, the engine and chassis numbers of the car turned out to be altered.
By decision of the investigative authorities, the Volvo car was recognized as ownerless, after which it was transferred for sale to a consignment store, where it was purchased by one of the police department employees.
Is it possible to classify a seized car as ownerless property, and if so, on what grounds and to what type of said property? Is it possible to recognize a car as ownerless by order of the investigative authorities?
Problem No. 7
The sculptor Andreev had long wanted to install a sculptural portrait on the grave of his mother, but could not get suitable marble for this. The cemetery watchman, by agreement with Andreev, got him the required marble for a fee, having removed it from one of the abandoned graves. Documents about who was buried in this grave were lost during the war, and no one visited it for many years. Andreev carved a portrait of his mother from marble and installed it on the grave. Having learned about this, the prosecutor filed a claim against Andreev for the recovery of the cost of the used marble at market prices to the treasury. A claim was brought against the watchman for the collection of sums received from Andreev into the treasury.
Resolve this situation.
Problem No. 8
Livanov built a residential building, violating the approved project. Instead of a two-story building, Livanov erected a three-story house, the living area in the house was 110 square meters. m versus 60 sq. m provided for by the project. On the site, Livanov built a greenhouse and a garage, which were not included in the project, and surrounded with a fence an area more than 2 times larger than the one that was allocated to him. The village administration commission refused to accept the house and demanded that Livanov bring the house into compliance with the project, demolish the greenhouse and garage and move the fence.
Livanov refused to comply with the commission’s demand, citing the fact that since a contract for the construction of a house had been concluded with him, the dispute that arose could only be resolved by a court. Moreover, by the time the dispute arose, restrictions on the size of residential buildings built by citizens had been abolished. For these reasons, Livanov believes that the previously approved project needs to be brought into line with the structures erected on the site.
How and in what order should the dispute be resolved?
Problem No. 9
Reznikov, while sorting out the things he inherited from his father, discovered several platinum ingots among them. He told his friend about this, and he informed the financial authority that a private person had property that should not be his property. Reznikov did not deny the presence of platinum.
The financial authority handed Reznikov an order that he dispose of the platinum in the manner prescribed by law. Since Reznikov did not do this, he was sued for the forced alienation of platinum with compensation for its value at government rates.
Reznikov objected to the claim, citing the fact that the market price of platinum is much higher.
Resolve this situation.
Problem No. 10
When developing the charter of a production cooperative, the majority of the founders decided to form an indivisible fund in the cooperative and determined its size. The charter stipulates that by the time of registration of the cooperative, members of the cooperative are required to make at least 5% of the share contribution, and the rest - within two years from the date of registration of the cooperative. The cooperative is given the right to issue shares. It is also provided that in the event of the death of a member of the cooperative, his heirs are not subject to admission to the cooperative and they are only paid the value of the share.
After reviewing the minutes of the general meeting of the founders of the cooperative and the charter, the registering authority refused registration.
Is the refusal to register justified, and if so, what changes should be made to the charter?
Problem No. 11
When distributing profits at the end of the financial year in an agricultural production cooperative, a dispute arose between members and associate members of the cooperative: how should profits be distributed? The members of the cooperative insisted that their labor should first be paid for their labor from the profits, and only after that the remaining part of the profits could be spent on paying dividends. Associate members, on the contrary, believed that dividends should be paid first.
What is the procedure for distributing profits in an agricultural production cooperative? To whom are dividends paid in a production cooperative? How to resolve a dispute?
Problem No. 12
At the initiative of the district administration, a general meeting of collective farm members was convened, at which the head of the administration invited the collective farmers to transform their farm into one of the forms recommended by the federal executive authorities. At the same time, collective farmers were recommended to create either peasant farms, a joint-stock company, or a production cooperative on the basis of the collective farm. The collective farmers refused, saying that they were satisfied with the existing form of farming. In addition, they do not see any fundamental differences between a collective farm and a production cooperative.
The head of the administration invited the collective farmers to begin determining their property and land shares in the property and land mass of the collective farm. He motivated his proposal by the fact that the issue of transforming collective farms has been resolved in a normative manner, and collective farmers are given only the right to choose one of the forms of such transformation.
Collective farmers did not agree with this and turned to the Presidential Administration for clarification.
What answer should they give?
Problem No. 13
The state-owned enterprise leased the warehouse premises listed on its balance sheet to the department store. The enterprise and the department store are to be converted into joint-stock companies, each of them insisting that the cost of warehouse space be included in its authorized capital.
Who is right in this debate?
Problem No. 14
The joint-stock company "Sport-Grand" rented the building from the repair and maintenance association. In 1990, the association itself was transformed into a rental enterprise. Among the property leased to the association is a building, which at that time was rented by the Sport-Grand joint-stock company. Subsequently, both the joint stock company and the rental company began to apply for the purchase of the building. The city property management committee entered into a lease agreement for the building with a joint-stock company.
Who has the right to buy out the building - a joint stock company or a rental company?
Problem No. 15
A state-owned enterprise entered into an agreement with a commercial company for the sale of excess equipment. Even before the parties began to fulfill their contractual obligations, the state-owned enterprise was transformed into a state-owned enterprise. The Ministry of State Property of the Russian Federation prohibited the enterprise from fulfilling the contract and demanded its termination. A commercial company demands execution of the contract under threat of penalties, citing the fact that the decision to transform the enterprise into a state-owned enterprise cannot affect obligations that arose before the status of the enterprise was changed.
The dispute was submitted to the arbitration court.
How to resolve this situation?
Problem No. 16
The budgetary institution was engaged in commercial activities. Using the income received, imported equipment was purchased to equip one of the laboratories. Due to the fact that the budget allocations were exhausted and income from commercial activities ceased to flow, there were no funds in the institution's bank account for settlements with creditors. When executing the decision of the arbitration court to collect the amount of debt from the institution, one of the creditors demanded that the recovery be applied to imported equipment, since it was not purchased at the expense of estimated allocations. The debtor objected to this, believing that all property of a budget institution was reserved from collection by creditors, regardless of the sources of its acquisition.
Who is right in this debate?
Problem No. 17
The state production association "ZIP" was transformed into a joint-stock company. At the same time, a significant part of the voting shares is distributed among the employees of the association. Since privatization did not give the expected results, and the joint-stock company was on the verge of stopping production, the question arose about turning it into state property, i.e. on transfer to the previous organizational and legal form.
Who can make such a decision and in what order? In this case, what is the procedure for settlements with shareholders who purchased shares?
Problem No. 18
Kirpichnikov inherited a residential building that required major repairs. Kirpichnikov carried out a major overhaul, redesigned the house, added two terraces to it (summer and winter), and installed steam heating in the house.
Soon after the completion of the work, Morozov filed a claim against Kirpichnikov for recognition of ownership of the house and eviction from the house. In support of the claim, Morozov referred to the fact that at one time he was illegally prosecuted and convicted with confiscation of property, including the house . During his absence, the local government body, which took over the house, sold it to Kirpichnikov’s father. Currently, Morozov has been completely rehabilitated and wants to move into the house.
Kirpichnikov did not admit the claim. He explained to the court that he had been living in the house since childhood, had inherited it, had spent all his savings on repairs and improvements to the house, and had no other place to live. As for Morozov, he, as a rehabilitated person, received an apartment from the state, and he does not need a house. Morozov privatized the apartment.
Analyze the parties' arguments and decide the case.
Problem No. 19
The Vasiliev couple purchased a car during their life together. Vasilyeva filed a claim against Vasiliev for divorce and division of common property, including a car. Then the plaintiff asked to secure the claim to seize the car. However, the court’s ruling to secure the claim was not executed, since Vasiliev, taking advantage of the fact that, by agreement with Vasilyeva, the car was in his possession, he managed to sell the car to Andreev.
Then Vasilyeva filed a claim against Vasiliev and Andreev to declare the sale and purchase agreement invalid and to confiscate the car from Andreev. In support of the claim, she referred to the fact that the car belongs to her and the defendant Vasiliev by right of common joint ownership, and therefore the latter could not sell the car without her consent.
Andreev objected to the claim on the following grounds. Firstly, when buying a car, he believed that only Vasiliev was its owner, and, secondly, during the time he owned the car, he incurred expenses for its repair, which, in the event of the car being confiscated, should in any case be reimbursed to him.
The court satisfied Vasilyeva’s claim, obliging Andreev to return the car, and Vasilyev to pay Andreev its cost. However, the costs of repairing the car were not reimbursed to Andreev.
Is the court's decision correct?
Problem No. 20
After the death of their father, two brothers, Konstantin and Boris, inherited a residential house, a barn and other property. During the division of property, Konstantin received the right to 1/8 of a residential building, a barn and other property, and Boris received the right to 7/8 of a residential building. Soon the district department for land resources and land management assigned each of the brothers ownership of the corresponding parts of the land plot. At the same time, the barn belonging to Konstantin partially ended up on the site provided to Boris. Boris erected a fence separating his plot of land from his brother's plot. As a result of this, Konstantin was actually deprived of the opportunity to use that part of the barn that is located on the neighboring plot.
Konstantin filed a lawsuit against Boris in court to remove the obstacles caused to him in using the barn. Boris, in turn, demanded that Konstantin remove the barn from his site.
How to resolve this situation?
Problem No. 21
Terekhov and Gubanova own a house in Tula. Terekhov occupies the first floor of the house, and Gubanova occupies the second. The house has stove heating. The chimney from the stove from Terekhov's premises is led into a common riser installed in Gubanova's premises. Gubanova demanded that Terekhov lead the chimney of his stove along the outer wall. Terekhov refused, after which Gubanova closed the chimney.
Terekhov filed a claim against Gubanova for an obligation to restore the chimney and in the future not to obstruct him, Terekhov, in using the chimney. In support of his claims, the plaintiff presented to the court a report from the fire department, which objected to the chimney being routed to the outside of the building.
What decision should the court make?
