scholarly journals To the Question of Easement Objects

2019 ◽  
pp. 81-92
Keyword(s):  
Civil Rights ◽  
Real Estate ◽  
Natural Resources ◽  
Civil Law ◽  
Water Bodies ◽  
Real Property ◽  
State Registration ◽  
The Right ◽  
Hunting And Fishing ◽  
Property Complex

An easement under civil law is the right to use the property of others to meet the needs of others who cannot be otherwise satisfied. The legislator very briefly lists the objects of the easement and allocates positions for them in different norms. The necessity to study easement objects, among which land, their parts, other natural resources, and other real estate is justified. Issues of «other natural resources» in accordance with the current legislation of Ukraine, which include water bodies, forests, flora and fauna, subsoil, are investigated. Water bodies can be transferred not only for use, but also for the property of participants of civil legal relations, and, accordingly, the owners can transfer them on the right of easement to other persons. Attention is drawn to the fact that land easements may well include an easement for the purpose of hunting and fishing. The practical necessity of using the subsoil that arises in the participants of civil legal relations, requires the regulation of this kind of easement relations at the legislative level. Ownership of an unfinished construction object is, by law, subject to state registration in the order inserted for state registration of real property rights and is immovable property, and therefore may be an object of easement. Property complexes occupy a special place in the system of civil rights objects. Although the company includes not only immovable, but also movable ones, as well as the right to trademarks and other designations, this property complex is recognized as real estate and may also be object to easement. Attention is drawn to the need of systematization of the rules regarding the objects of the easement and to amend the existing legislation accordingly.

scholarly journals Registration Procedures In The Mechanism Of Water Bodies Transfer For Use Under Lease

2020 ◽  
pp. 89-100
Author(s):  
L.R. Miskevych
Keyword(s):  
Civil Rights ◽  
Natural Resources ◽  
Water Body ◽  
Civil Law ◽  
Scientific Article ◽  
Land Plot ◽  
The Status ◽  
The Law ◽  
State Registration ◽  
The Right

The scientific article is devoted to the study of problematic issues of acquiring the right to use water facilities under lease. It is noted that in the field of land, water, environmental relations, the water body and the land under it are separate objects, but in the field of property relations, which are governed by civil law, such objects are one whole both in the spectrum of regulation of property rights and contractual relations. However, the different sectoral affiliation of the water body and the corresponding land plot of the water fund inevitably affect the content of civil legal relations, supplementing the civil rights and obligations of the subjects of these legal relations with statutory requirements for the use of these natural resources. The significance of registration actions for the water body and the land plot of the water fund, which is transferred for use in the complex with the water body, is analyzed. The commission of such actions is aimed at establishing their identifying criteria and state recognition of these natural resources as objects of water and land relations, respectively. However, in the property turnover the public value is not the land plot of the water fund or the water object taken separately, but their tandem, which is perceived as an object of civil legal relations and, accordingly, the subject of the lease agreement. Given that the interests of the tenant are satisfied by the use of water space, the law states that the use of the contract provides a water body in a complex with a plot of land. However, such a legislative approach made it difficult to decide when the tenant acquired the right to use, as the law does not define a water body as property in respect of which the state registration of rights is carried out. Based on the analysis of the normatively established identifying criteria of a water body, it is concluded that the water body can be considered in the status of real estate in view of its legislative definition. Thus, when determining the moment of acquisition of the right to use water facilities under lease, it will be justified to apply the provisions of civil law. The novelty of the legislation is the priority of the land plot in the complex with which the water body is transferred and the automatic extension of the right to lease the land plot under the water body to such water body.

scholarly journals Problems of the definition and characteristics of the contractual basis for the limitation and encumbrance of ownership of real estate in Ukraine

2021 ◽  
pp. 341-348
Author(s):  
Inna Sevryukova
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Civil Law ◽  
Legal Regulation ◽  
Real Property ◽  
Legal Literature ◽  
Legal Nature ◽  
Characteristic Features ◽  
State Registration ◽  
The Right

Introduction. The legal description of the contractual grounds for restrictions and encumbrances on the right of ownership of real estate can be provided only after a comprehensive study of the common features of the contractual structures, which establish the relevant rights and obligations of the parties. The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. It should also be emphasized that each subjective right has its limits of exercise, including the subjective right of ownership, as well as other real property rights. Of course, the nature of such restrictions must be different and depend on the content and nature of the restricted right, its object and the grounds for the restrictions. That is, restrictions on property rights and other property rights cannot be the same. Restrictions on property rights are established in the interests of society and arise by law, as well as in the interests of individuals (on the basis of law, contract, court decision), and restrictions on other property rights are primarily due to protection of the property from which they originate and the legitimate interests of the owner. In our opinion, the category of real contracts should include those types of contracts relating to real estate, including contracts of encumbrance of property rights on the basis of which the rights subject to state registration arise. Purpose and objectives of the study The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. Therefore, we can argue for the existence of a certain generalizing type of contract, the features of which are inherent in all its subspecies, in particular, contracts for the establishment of easements, superficies, emphyteusis, mortgage agreement. Such an agreement in the legal literature is called by some authors as a real contract. However, issues concerning its legal nature, place in the system of civil law contracts remain debatable. Research methods. The research carried out in the article is based on the assessment of generally accepted approaches to defining the characteristic features of problematic issues of contractual grounds for the emergence of restrictions and encumbrances of property rights to real estate. It should be emphasized that these issues are controversial due to the lack of clear legislative regulation, which leads to imperfect legal regulation and violations of the rights of participants in property turnover. Research conclusions. As a result of the study, the idea is given that in the current legislation of Ukraine due to the lack of a clear concept of the relationship between the category of "encumbrance" and "restriction" of property rights, as well as the uncertainty of property rights, some questions remain about the classification of certain rights accordingly, about the types of material contract, this issue is debatable and needs further study. It is possible to make about polystructurality of the real contract that causes division of this type of the civil law contract into kinds and subspecies. In our opinion, such a division depends on the legal nature and scope of the relevant types of restrictions and encumbrances on the right of ownership of real estate, which are proposed by current civil law.

ON THE LEGAL NATURE OF STATE REGISTRATION OF REAL ESTATE OWNERSHIP

2017 ◽  
Author(s):  
Ihor Binko ◽  
Keyword(s):  
Real Estate ◽  
Social Relations ◽  
Civil Law ◽  
Legal Regulation ◽  
Administrative Law ◽  
The State ◽  
Special Role ◽  
Real Property ◽  
Procedural Law ◽  
State Registration

The article examines different views on the state registration of real property rights, in particular, indicates that such a process is interpreted by scholars in terms of administrative law as: a type of administrative proceedings or as an institution of law and legislation, or as an administrative service, and in some cases as the way the state performs administrative functions. It is noted that the state registration of rights to real estate especially ownership rights, can be an institution of administrative and civil law or be considered an interdisciplinary institution. In the part in which it is an institution of administrative law, the question arises, to the substantive, ie specifically administrative law or procedural, ie administrative procedural law, this institution can be attributed? Public - legal direction, as well as the legal properties that are endowed with state registration of rights allow us to speak about a certain uniqueness of its public law essence. It plays a special role in private legal relations as a legal mechanism for the emergence, transfer and termination of rights. It is noted that while civil law uses the main dispositive method of legal regulation of civil relations, the studied relations are regulated by the method of imperative prescriptions, in particular imperative are the rules of civil law, which establish the need for state registration, as well as administrative law of procedural nature. It is stated that as part of administrative law the institute under study belongs to its special part, which contains normative material and theoretical provisions governing a particular type of homogeneous social relations, including subsectors and legal institutions, service law, municipal law, administrative law, administrative procedural law.

scholarly journals One Real Estate Complex: Concept and Prospects of Law

2020 ◽  
Vol 15 (3) ◽  
pp. 124-140
Author(s):  
ALEXANDR A. VEDENIN
Keyword(s):  
Civil Rights ◽  
Real Estate ◽  
Russian Federation ◽  
Legal Status ◽  
Civil Law ◽  
Civil Code ◽  
Legal Concept ◽  
The Russian Federation ◽  
Legal Concepts ◽  
Property Complex

One of the most important and discussed topics of Russian civilization is the issue of objects of civil law. The topic under study is not adequately reflected in domestic civil law and judicial arbitration practice. According to legal scholars, the ongoing changes in domestic civil legislation have not eliminated problems that relate to objects of civil law. The constant complication of civil law turnover and the development of domestic science of civil law are forced to carry out targeted work in this direction. The domestic legislator initiates the necessary new norms of civil law. As a result, this entails, among other things, the emergence of new objects of civil law. The expediency of expanding the list of objects of civil law requires a rethinking of existing legal concepts and work on serious theoretical and practical justification of new ones. In legal science and practice, the need to include the legal concept of "single immovable complex" in the current civil legislation of the Russian Federation is proved Legal scholars have formed various opinions that characterize it. Domestic civilizations have identified and analyzed the theoretical and practical shortcomings of a single immovable complex. A comparative legal study of a single real estate complex, an enterprise as a property complex, a complex thing was carried out and it is confirmed that they are not identical. Obviously, a single immovable complex is a necessary and relevant legal concept of domestic scientific thought. In order to create a single real estate complex, some conditions are needed. The rights holder of movable and immovable property by his will decides to create it. The permitting authorities, through State registration, decide to establish. Disadvantages of a single immovable complex, both theoretical and practical, are indicated. Similarities and differences in the design of the enterprise as a property complex, a complex thing, and a single real estate complex made it possible to identify the features of the legal status of the latter and distinguish it as an independent object of civil rights. Despite the fact that in the Civil Code of the Russian Federation there are such legal concepts as "enterprise as a property complex" and "complex thing," the inclusion of a single real estate complex in the current civil legislation is necessary. The legal significance of this concept is unconditional. It justifies its own point of view on the problem and the place of a single immovable complex in the system of objects of civil law. Recognizing the need for the concept of "single immovable complex" in the current civil legislation of the Russian Federation, the domestic legislator should focus on its significant theoretical and practical shortcomings that impede the effective enforcement of the provisions of Art. 1331 of the Civil Code of the Russian Federation. Domestic legislators need to give them an appropriate legal assessment, as well as suggest effective ways to solve them.

scholarly journals THE PROBLEM OF DETERMINING THE LEGAL REGIME OF “DISPUTED” REAL ESTATE: THEORETICAL AND PRACTICAL ASPECTS

2021 ◽  
pp. 19-24
Author(s):  
N.A. Pronina ◽  
T.N. Platunova ◽  
S.O. Kostyakova
Keyword(s):  
Real Estate ◽  
Russian Federation ◽  
Civil Law ◽  
Property Right ◽  
Legal Regime ◽  
Land Plot ◽  
Legal Definition ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right

The article raises the following topical problems currently inherent in the institution of real estate in theRussian Federation: the unsuccessful legal definition of a real estate object, enshrined in Art. 131 of the CivilCode of the Russian Federation; qualification of objects as immovable and, accordingly, delimitation of themfrom movable ones; the emergence of objects with a controversial legal regime; the need to move from themodel of “plurality” to the model of “unity” of real estate objects. Also, the authors of this article analyzea number of approaches aimed at resolving the above problems and the possible consequences (both positiveand negative) of their implementation in practice, put forward their views and offer their own solutionto these problems. A variant of the legalization of “disputable” objects is proposed by introducing the rightof construction into the civil law of the Russian Federation as a limited property right to use a land plot withthe extension of this right to everything that is being built on such a land plot. The examples of legislativeregulation of the right to build in the civil law of pre-revolutionary Russia are considered, the elements of theright to build in the current law of the Russian Federation are revealed.

scholarly journals NON-JURISDICTIONAL FORMS OF PATENT RIGHTS PROTECTION IN THE RUSSIAN FEDERATION

2019 ◽  
Vol 8 (6) ◽  
Author(s):  
Ruslan B. Sitdikov ◽  
Ravil M. Sadykov
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Legal Protection ◽  
Negative Consequences ◽  
Patent Holder ◽  
Self Defense ◽  
Patent Rights ◽  
The Russian Federation ◽  
State Registration ◽  
The Right

This article discusses the features of the implementation of non-jurisdictional forms of protection of civil rights (self-defense, claims, mediation) in relation to patent infringements in the Russian Federation. It is noted that the self-defense of patent rights by classical means in non-contractual legal relations is limited due to the peculiarities of the legal nature of the objects of patent rights, namely because of their intangible nature, the general availability of information about them, the presence of state registration, but it is possible to use special means of self-defense: software and hardware, introduction trade secrets, optimization of patenting and legal protection strategies as know-how. It is concluded that it is necessary to specify the provisions of Articles 1252 of the Civil Code of the Russian Federation and Articles 14.1. - 14.3. Federal Law on the Protection of Competition regarding the assessment of good faith / unfairness of the distribution by the patent holder of warnings about the alleged violation of his rights and apply the approach according to which: the patent holder has the right to protect his exclusive right, and also in case of threat of negative consequences from third parties, to disseminate information about the alleged , in his opinion, a violation of his rights, including against the alleged offender, as well as other persons, including buyers / p purchasers of goods, works, services of the patent holder or the alleged infringer, which in itself is not an act of unfair competition.

scholarly journals NEGATIVE OBLIGATIONS IN CIVIL LAW: PROBLEM STATEMENT

2019 ◽  
Keyword(s):  
Real Estate ◽  
Detailed Analysis ◽  
Present Article ◽  
Scientific Literature ◽  
Civil Law ◽  
Problem Statement ◽  
Freedom Of Contract ◽  
Legal Nature ◽  
Contractual Relationships ◽  
The Right

The present article touches upon the issue of negative obligation interpretation in civil law. The provisions of foreign civil legislature concerning negative obligations are reviewed in detail. The article gives a detailed analysis of main issues in the scientific literature concerning the legal nature of negative obligations: impossibility of negative obligations delays, impossibility of partial performance, impossibility of negative obligation termination because of failure to perform, impossibility to enforce debt assignment . The opportunity of negative obligation counter-performance is also stressed. It is concluded that negative obligation counter-performance is considered to be possible in case such obligations are interrelated. The author comes to the conclusion that the existence of counter-negative obligations is possible that are also exposed to counter-performance provided they are interrelated. The peculiarities of such negative obligations as distribution agreements and agency contracts are pointed out. The article goes on to say about the possibility of non-concurrence agreements conclusions under civil law of Ukraine. The author states that there are some legal obstacles to it: the correlation with the principle of freedom of contract, the limitations on active civil capacity, termination employment or contractual relationships termination with creditors. Domestic trial practice is given to illustrate the indicated positions. The author draws reader`s attention to the correlation of negative obligation with such definitions as «prohibition», « right restriction» and « waiver of the right». The author justifies that negative obligations can be considered neither as right restriction nor waiver of the right. Taking into account the fact that negative obligations imposes a prohibition on a debtor to commit certain actions but such a prohibition is provided by the agreement and works in favor of creditors it is considered to be a personal prohibition. The author also draws the line between negative obligations and negative servitude that is characterized by the burden of real estate as property rights and not by establishing the commitment in respect of a person.

scholarly journals Technology of three-dimensional laser scanning of real estate objects (3D modeling) in cadastral activities

2021 ◽  
Vol 937 (4) ◽  
pp. 042071
Author(s):  
K V Tikhonova ◽  
Yu S Solovyova ◽  
V S Geydor ◽  
D A Tikhonov
Keyword(s):  
Real Estate ◽  
3D Modeling ◽  
Laser Scanning ◽  
Three Dimensional ◽  
Laser Scanner ◽  
Labor Costs ◽  
Real Property ◽  
State Register ◽  
Three Dimensional Representation ◽  
State Registration

Abstract Laser scanning in cadastral activities is a tool for obtaining information about real estate objects in a 3D format. The purpose of the research is to obtain information that is necessary for state cadastral registration and state registration of rights, land supervision and local government oversight. Deductive, inductive, analytical, comparative-legal and other scientific methods were used for the most complete coverage of the problem. The article considers the procedure of laser scanning, shooting modes when using laser scanning and the process of a real estate object 3D model creation. The methods of scanning were studied, namely: terrestrial, airborne and mobile. The greatest attention is paid to the advantages and features of using laser scanning technologies for real property. The results of the study showed that the laser scanner can be used not only in geodesy for engineering surveys, 3D modeling of quarries, when obtaining data on the volume of rock, during mining, assessing the situation in an emergency, but it can also be used in cadastral and complex cadastral works. The main attribute of laser scanning is a three-dimensional representation of data about the object, which can be immediately used, but the high accuracy and low labor costs are no less important. Therefore, three-dimensional laser scanning technologies can be used both in the creation of models of cities, and the unified cartographic basis of the Unified State Register of Real Estate, as well as in valuation activities during the taxation of buildings and structures.

scholarly journals On the issue of restriction of individual rights in civil law. Correlation between the concepts of restriction and encumbrance of civil rights

2021 ◽  
pp. 146-150
Author(s):  
V.M. Marovdi
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Fundamental Principle ◽  
Individual Rights ◽  
Basic Law ◽  
National Legal System ◽  
Definition Of ◽  
The Right ◽  
The Relationship ◽  
Work First

In this article the author considers the concept of restriction of individual rights in civil law, as well as the re-lationship between the concepts of restriction and encumbrance of civil rights. First of all, the lack of a legislative definition of the concept of restriction of individual rights in civil law, as well as the ambiguity of the position of the legislator on the use of the term restriction and its place among related conceptsIn writing this work, first of all, attention was paid to the Constitution of Ukraine, which is the Basic Law, which serves as a guide that establishes the general boundaries of human and civil rights. The connection of the provisions of the Constitution with the norms of the Civil Code of Ukraine within the framework of the chosen topic was presented. Emphasis is placed on the fundamental principle according to which the national legal system is built, namely: “everything is allowed that is not expressly prohibited by law.”The views of some scholars who adhere to their vision of the concepts under study are given. In addition, in this study, the relationship between the concepts of restriction and encumbrance of individual rights in civil law. In the process of writing this work, the positions of legal scholars who had relatively similar positions were given. They distinguish between the above concepts, and provide the relevant features. However, outside the scope of this study were many works of scientists who do not see a difference in these concepts.None of this was left out of the regulatory framework for the definition of the above concepts at the legislative level. In particular, it was found that in contrast to the concept of restriction of individual rights, including in civil law, the current legislation contains a definition of encumbrance. There are several acts that provide this definition. And in all cases, the definition is different.Based on the analysis of regulations, it was found that the legislator does not consistently approach the definition of encumbrance. In particular, in some cases the latter includes the encumbrancer’s right to the debtor’s movable property or restriction of such right, in others - prohibition or restriction of disposal and / or use of real estate, and in some cases the legislator identifies encumbrances and restrictions.According to the results of the study, the conclusions on the failure to define in national law the concept of re-strictions on the rights of persons in civil law, as well as the lack of a clear distinction between the concept of restric-tion of the right of person and encumbrance, in particular under civil law. There is a position on the need for further research on relevant topics, which will ensure clarity and clarity of the law, and promote its effective application, as well as consensus on this issue among scholars.

scholarly journals LEGAL ASPECTS OF LAND FORMATION UNDER REAL ESTATE OBJECTS

2021 ◽  
Vol 1 (161) ◽  
pp. 129-133
Author(s):  
S. Nesterenko ◽  
Y. Radzinska ◽  
V. Frolov ◽  
P. Firsov
Keyword(s):  
Real Estate ◽  
Mutual Influence ◽  
Residential Building ◽  
Regulatory Requirements ◽  
The Real ◽  
The Real Estate ◽  
Land Plot ◽  
State Registration ◽  
The Right ◽  
Ownership Of Land

Given the provisions of the existing regulatory framework, contributions and achievements in the development of modern land management, it can be noted that the current outline of legal features of land and real estate, the presence of significant gaps and unresolved issues need to clarify these problems and find effective practical measures. The purpose of the article is to study the existing regulatory requirements for the acquisition of ownership of real estate in combination with ownership of land. The article examines the existing regulatory requirements for the acquisition of ownership of real estate in combination with ownership of land. The paper analyzes modern approaches to obtaining the right to land under real estate in Ukraine. The procedure for assigning a cadastral number before the alienation of real estate is determined; schemes of land formation under the real estate object; the procedure for state registration of real estate rights and the grounds for refusal of it and others are determined. The order, principles, requirements and regulatory documents at formation of the ground area under real estate objects are offered. The article considers the peculiarities of assigning a cadastral number to the land plot on which the residential building is located. It is noted that the state registration of land plots is carried out at their location by the relevant state cadastral registrar. It is determined that the acquisition of the right to a person's share in the ownership of a residential building, building or structure under the contract as a result of state registration of rights is a fact of acquisition of real estate. The norms specified in the article establish the general principle of integrity of the real estate object with the land plot on which this object is located. According to these norms, the definition of land rights is directly dependent on the ownership of the building and structure. The provisions developed in the article will increase the efficiency of land use and real estate by defining regulations on their mutual influence.

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