Property rights as a general rule. Section II

Securing the ownership of things (property) to the subjects of real rights, regulating the powers of these subjects regarding these things and establishing responsibility for their violations.

Property law (in the subjective sense) - the right of a specific subject to own, use and dispose of this property.

Comment

Property law can also be distinguished as a sub-branch of civil law, but in this material property law is not considered in this sense.

Property and obligations law

In civil law, it is traditional to classify legal relations according to the method of satisfying the interests of the authorized person into the following types:

1. real:
   • the interest of the authorized person is satisfied through his own actions: the owner owns, uses and disposes of his property, the obligated persons refrain from violations - do not act;
   • are proprietary, absolute;
2. obligatory:
   • the interest of the authorized person is satisfied through the actions of the obligated person: the buyer’s interest in receiving the goods is satisfied by the actions of the seller in transferring the goods;
   • are property (however, a number of scientists also allow non-property obligations), relative.

Characteristic features (signs) of property rights:

• absolute nature of protection(its bearer corresponds to the obligation of an indefinite number of persons to refrain from violating the property rights of this person);
• formalize the belonging of things to certain subjects(difference from rights of obligation that formalize the transfer of things and other objects from one entity to another);
• their inherent right of succession(in case of transfer of a property right to another person (legal successor), the encumbrances of this right are also transferred);
• the object of real rights is only individually defined thing(accordingly, things defined by generic characteristics, as well as objects of intellectual property, cannot serve as objects of property rights);
• the range of real rights (as opposed to obligations) is exhaustively outlined in the Civil Code (Articles 209, 216, 292, 334 of the Civil Code of the Russian Federation), or other federal law;
• proprietary rights are protected by special methods of protection.

Thus, property law is a subjective civil right that is absolute in nature, has a specific object and methods of protection, and includes, in addition to the rights of ownership, use and disposal of a thing (all together or separately), the right to follow.

Types of real rights

Property rights can be divided into two groups:

1. 1. property rights (includes possession, use, disposal);
   2. limited real rights (rights to other people's things - possession and use).

Ownership in an objective sense - a set of civil law norms that regulate and protect the state of ownership of material goods by specific individuals.

In other words, this is a set of legal norms regulating relations regarding the appropriation and ownership of material goods to a certain person or persons, the exercise by the owner of the powers of ownership, use and disposal of a thing by his own will and in his own interest, regardless of other persons.

Ownership in a subjective sense - a measure of the owner’s possible behavior; This is the legally secured ability of the owner to own, use and dispose of the thing belonging to him.

Limited property right - this is the right of a non-owner, in one way or another, limited by law, to use someone else’s, usually immovable, property in his own interests without the participation of the owner of the property (and sometimes even against his will). Art. 216 of the Civil Code of the Russian Federation includes:

• right of lifelong inheritable ownership of a land plot ();
• the right to permanent (indefinite) use of a land plot ();
• easements (Articles 274);
• right of economic management of property ();
• the right to operational property management ().

Concept, content and types of property rights

Property rights concept

Ownership can be considered in an objective and subjective sense.

Ownership (in the objective sense) : a set of legal norms regulating relations regarding the appropriation and ownership of material goods to a certain person or persons, the exercise by the owner of the powers of ownership, use and disposal of a thing by his own will and in his own interest, regardless of other persons.

Otherwise, as a legal institution, a set of legal norms, a significant part of which, having a civil legal nature, is included in the sub-branch of property law.

Ownership (in the subjective sense) - the possibility of certain behavior permitted by law to an authorized person. From this point of view, 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 things belonging to him, exercising complete economic dominance over them and eliminating or allowing other persons to use them.

Thus, we can say that the right of ownership as a subjective civil right is the ability of a person, enshrined in law, to own, use and dispose of his property at his own discretion, while at the same time taking on the burden and risk of its maintenance.

In Art. 209 of the Civil Code, the powers of the owner are revealed using the “triad” of powers traditional for Russian civil law:

1. possessions;
2. use;
3. orders.

Power of possession - based on the law (i.e. legally enforceable) opportunity actually have this property, maintain it in your household (actually own it, list it on your balance sheet, etc.).

Right of use represents the legal possibility of exploitation, economic or other use of property through extracting beneficial properties from it, its consumption. 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 means a similar possibility determining legal fate property by changing its ownership, condition or purpose (alienation by agreement, transfer by inheritance, destruction, etc.).

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), i.e. decide for yourself what to do with the property you own, guided solely by your own interests, performing any actions in relation to this property that do not, however, contradict the law and other legal acts and do not violate the rights and legitimate interests of other persons. This is the essence of the owner’s legal power over his property.

However, the current legislation, having granted the owner the above powers, also establishes the limits of their implementation (for example, the owner of a residential premises can use it only for its intended purpose, etc.).

On the disposal of property, see also reflections R. Bevzenko

Limits of ownership represent the boundaries established by law for the exercise of property rights.

Types of property rights

1. Depending on the form of ownership:
   • private property right, which includes the property right of citizens and the property right of legal entities (in turn, the property right of legal entities covers the property of various organizations);
   • state property right, which consists of federal property rights; property rights of the subjects of the Federation; property of the republic; property of the Autonomous Okrug;
   • municipal property right, which includes the property rights of the city and the property rights of other municipalities.
2. Depending on the number of copyright holders:
   • property right belonging to one person;
   • property right belonging to two or more persons(including the right of shared and joint ownership).
3. Depending on the type of property:
   • ownership of movable property;
   • ownership of real estate.

3.5

The right of ownership is the most important institution of civil law, which is a set of legal norms that establish the ownership of material goods by specific individuals, the ability to own, use and dispose of them, as well as ensuring the protection of the rights of owners in the event of their violation.

The right of possession represents physical and economic dominion over a thing.

The right to use is the right to extract the useful properties of a thing, to receive fruits, products, and income from it.

The power of disposal is the right to determine the legal fate of a thing.

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 interests protected by law of others, including alienating his property into the ownership of other persons, transferring ownership rights to them while remaining the owner , use and disposal of property, pledge property and encumber it in other ways, dispose of it in any other way. 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.

The Russian Federation recognizes private, state, municipal and other forms of ownership. Property can be owned by citizens and legal entities, as well as by the Russian Federation itself, constituent entities of the Russian Federation, and municipalities. The rights of all owners are protected equally.

As a rule, the owner of the property is one person (citizen, legal entity, state and municipal entity). But there may be cases when the same property belongs by right of ownership to several persons. This ownership is called common property.

There is a distinction between common shared and common joint property.

Common shared property belongs in shares to several persons jointly. This is characterized by equality of votes of all owners, regardless of the size of the share of each of them. Profit is distributed among the owners in proportion to their shares, unless otherwise provided by agreement between them. Taxes, fees and other costs are also distributed among the owners in proportion to the share of each of them.

Participants in common joint property have equal rights to the common property as a whole. None of them has an interest in the right to the relevant property as a whole. Shares can be determined only during the division or allocation of common property.

The emergence of common joint property is allowed only in cases provided for by law. Thus, property acquired by spouses during marriage is recognized as their joint property, unless an agreement between them establishes a different regime for this property. Another example is the property of a peasant (farm) enterprise, which belongs to its members, unless otherwise established by law or agreement between them.

The right of ownership belongs to the category of real rights, since the owner can exercise his rights to property through his direct actions, without resorting to the positive actions of any other individuals or organizations.

The right of ownership is not recognized as the only thing known in civil law. This also includes:

• 1) the right of lifelong inheritable ownership of a land plot (belongs to a citizen when the owner of the land (state or municipal entity) transfers the land plot to the citizen on the grounds and in the manner prescribed by land legislation).
• 2) The right to permanent (indefinite) use of a land plot (granted to citizens and legal entities based on a decision of the competent state or municipal bodies. Transfer by inheritance is not allowed).
• 3) easements (the right to limited use of someone else’s land plot (for example, an easement can be established to ensure passage through a neighboring land plot, ensure water supply, etc.).
• 4) the right of economic management, which is recognized for the state and municipal enterprise to which the owner of the property (state and municipal entity) has assigned this property on the basis of economic management, and the right of operational management, which belongs to state-owned enterprises and institutions in relation to the property assigned to them.

Grounds (methods) for acquiring and terminating ownership rights.

The grounds (methods) for acquiring property rights are understood as legal facts. These methods are divided into primary and derivative. The initial ones include: manufacturing (creating) a new thing, processing, collecting or mining, acquiring ownership of ownerless things.

Derivatives - the acquisition of property rights is based on the property rights of the previous subject: (purchase and sale, exchange, donation, inheritance, etc.).

Methods of termination of property rights can be divided into those that occur at the will of the owner, and those that occur against his will.

The first group includes:

• 1) transactions for the alienation of property or expenditure of funds (purchase and sale, exchange, donation, inheritance, etc.);
• 2) refusal of the owner of the right of ownership (public announcement of refusal, disposal of property, etc.);
• 3) destruction by the owner of things he does not need.

Termination of ownership rights against the will of the owner:

• 1) foreclosure on the owner’s property for his debts;
• 2) alienation of real estate in connection with the seizure of a land plot;
• 3) loss of property due to a natural disaster or as a result of or as a result of unlawful behavior of entities destroying other people's property;
• 4) loss of property due to a natural disaster or as a result of unlawful behavior destroying someone else’s property;
• 5) repurchase of mismanaged cultural property or domestic animals in case of proper handling of them;
• 6) requisition - seizure of property due to circumstances of an emergency nature;
• 7) confiscation of property as a sanction for an offense committed;
• 8) nationalization, carried out on the basis of a special federal law and with compensation to the owner for the value of the property and all losses caused;
• 9) alienation of property in cases specifically provided for by the Civil Code of the Russian Federation.

• Legal regulation of economic relations
  • Economic relations as a subject of legal regulation
  • Concept and signs of entrepreneurial activity
  • Economic law and its sources
• Legal status of subjects of entrepreneurial (economic) activity
  • Ownership and other real rights
  • Legal entities
    • Types of legal entities
    • Creation, reorganization and liquidation of legal entities
  • Individual entrepreneurs
  • Insolvency (bankruptcy) of business entities
    • The procedure for considering bankruptcy cases in an arbitration court
    • Observation
    • Financial recovery and external management
    • Bankruptcy proceedings and settlement agreement
• Legal regulation of contractual relations in the field of economic activity
  • General provisions of the contract
  • Certain types of contracts
    • Supply contract
    • Lease contract
    • Work agreement
• Economic disputes
  • Concept and types of economic disputes. Pre-trial procedure for their settlement
  • Consideration of economic disputes in arbitration courts
• Labor law as a branch of law
  • Subject and structure of labor law
  • Sources of labor law
  • Labor relationship
• Legal regulation of employment and employment
  • Legislation of the Russian Federation on employment and employment. State employment authorities
    • Concept and forms of employment
    • Legal status of the unemployed
    • Vocational training for the unemployed
• Employment contract
  • Employment contract: concept, content, types
  • Conclusion of an employment contract. Registration of employment
  • Change of employment contract
  • Termination of an employment contract
• Working time and rest time
  • Work time
  • Time relax
    • Vacations
• Wage
  • Concept and wage systems
  • Legal regulation of wages
  • Tariff system. Allowances and surcharges
  • Procedure for payment of wages
• Labor discipline
  • Concept and methods of ensuring labor discipline
  • Disciplinary responsibility
• Material liability of the parties to the employment contract
  • Concept, conditions and types of financial liability
  • Financial liability of the employee to the employer
• Labor disputes
  • Consideration of individual labor disputes in the CCC
  • Consideration of individual labor disputes in the courts
  • Collective labor disputes
    • Conciliation procedures
    • Exercise of the right to strike
• Administrative offenses and administrative liability
  • The concept of administrative law. Its subject and method
  • Administrative responsibility
  • Administrative offense
  • Administrative penalties
  • Proceedings in cases of administrative offenses

Ownership and other real rights

Subjects of entrepreneurial (economic) activities are persons who carry out entrepreneurial (economic) activities, participants (parties) of economic legal relations. These can be both individual citizens (in the language of law they are called “individuals”, “individual entrepreneurs”) and organizations (the term “legal entities” is used in relation to them).

Hence, there are two large groups of subjects of entrepreneurial (economic) activity, which will be discussed in this chapter: 1) individual entrepreneurs and 2) legal entities. But before we begin to characterize them, we will consider issues such as ownership and other property rights, since these issues are of key importance for characterizing the legal status of any business entity.

It is necessary to distinguish own And ownership. Property is the relationship between various subjects of civil law regarding material objects, property, things. In these relations, one of the subjects treats this property as his own, for the rest it is someone else's. Dividing things into “ours” and “theirs” makes sense only in society, in social relations. Property arises in the process and as a result of social production.

Property covers two types of relationships: 1) a person’s relationship to a thing as his own; 2) the relationship between persons regarding this thing (regarding the appropriation of things and their location in some subjects).

As for the term “property right”, it is used in two meanings:

• property rights in the objective sense are a system of legal norms regulating property relations (the bulk of these norms are contained in the Civil Code of the Russian Federation);
• the right of ownership in the subjective sense, i.e. “the right of the subject” - its content consists of the powers (opportunities secured by law) of the owner in relation to his property.

In this case, we are primarily interested in the right of ownership in its second meaning. Let's take a closer look at it.

The owner has three rights (powers) in relation to his property: possession, use and disposal.

Ownership means the possibility of physical possession of a thing, economic influence on the thing. Right of use- the right to extract useful properties of a thing through its exploitation and application. Right of disposal is understood as the right to determine the legal fate of a thing (sell, donate, lease).

Rights of possession and use may belong to both the owner and other persons who have received these powers from the owner. The right of disposal is exercised by the owner, and by other persons only upon his direct instructions.

The owner uses and disposes of the thing at his own discretion. He has the right to perform any actions in relation to his property that do not contradict the law, of course, if these actions do not violate the rights of other persons.

Along with the rights granted to the owner, the law imposes certain responsibilities on him. These include the burden of maintaining the property (paying taxes, repairing certain types of property). In addition, the owner bears the risk of accidental death or accidental damage to his property.

Various categories of owners have the right of ownership: citizens and private legal entities, the Russian Federation, constituent entities of the Russian Federation, municipalities.

Depending on which category of owners the property belongs to, the following forms of ownership are distinguished: private, state, municipal and other forms of ownership.

Private property consists of the property of citizens and private legal entities. Citizens and legal entities can own any property, with the exception of certain categories that, by law, cannot belong to them. At the same time, the quantity and value of property owned by citizens and private legal entities are not limited (with some rare exceptions).

State property in Russia is considered to be property belonging to the Russian Federation or its constituent entities. It can be in their direct possession and use (and then it will form the state treasury of the Russian Federation or the corresponding subject) or be assigned to state enterprises and institutions.

Property owned by the right of ownership to urban and rural settlements, as well as other municipal entities, is municipal property. It is assigned to the possession and use of municipal enterprises and institutions or is in the possession and use of the municipality itself.

Other forms of ownership include, in particular, the property of public and religious organizations. Public and religious organizations have the right of ownership of their property and can use it only to achieve the goals provided for by the constituent documents of these organizations.

State and municipal property can be transferred into the ownership of citizens and non-state legal entities (privatized) in the manner prescribed by the legislation on privatization.

Other real rights

Most subjects of business and other economic activities are the owners of their property with all the ensuing consequences. However, there are subjects of entrepreneurial (economic) activity that own property not on the right of ownership, but on other real rights provided for by law: 1) the right of economic management and 2) the right of operational management.

Right of economic management can be established only by the owner of state or municipal property. It is provided to a state or municipal unitary enterprise and applies to any property of such an enterprise - both transferred to it by the owner and received by the enterprise through transactions or produced by it. The right of economic management assigned to such an enterprise is that the enterprise uses (exploits) this property to make a profit, but under the control of the owner. The owner has the right to receive part of the profit from the use of property under the economic control of the enterprise.

An enterprise owns and uses property that belongs to it under the right of economic management. It can independently dispose of such property if it belongs to the category of movable. As for real estate, an enterprise can dispose of it (sell, lease) as a general rule only with the consent of the owner.

Right of operational management provided by the state and municipalities to so-called state-owned enterprises. This right can also be assigned by any owner (both state and otherwise) to an institution (non-profit organization) financed by the owner.

The content of the right of operational management is narrower than the right of economic management. Property under operational management can be used by its owner only in accordance with the goals of the organization and the owner’s assignments. Moreover, the owner can seize excess and unused property or property that is not used for its intended purpose. A state-owned enterprise independently manages only its own products. Disposal of any other property is carried out with the consent of the owner.

Property is divided into two parts: 1) property acquired from budget funds (allocated to the institution according to estimates) - it can be alienated only with the consent of the owner; 2) income received by the institution from activities in which it has the right to engage, as well as property acquired from such income - they come at the independent disposal of the institution.

Under real right It is customary to understand the right to ensure the satisfaction of the interests of the authorized person by directly influencing a thing that is in the sphere of his economic domination. In other words, a property right is the right of a subject to a specific thing.

Signs property rights:

• – the property right is of an indefinite nature;
• – the object of property rights is a thing;
• – the property right has the right of succession;
• – claims arising from real rights are subject to priority satisfaction in comparison with claims arising from contracts and other obligations;
• – real rights enjoy absolute protection;
• – real rights are protected with the help of proprietary claims (vindication and negatory).

In Art. 216 Civil Code of the Russian Federation to real rights attributed:

• - ownership;
• – the right to lifelong inheritable ownership of land; the right to permanent (indefinite) use of land;
• – right of economic management;
• – right of operational management;
• – easements.

This list is not exhaustive. For example, property rights also include the right of an institution to independently dispose of property, pledge of real estate (mortgage), etc.

The right of ownership is an absolute real right, and the remaining real rights are called limited real rights.

Ownership – one of the fundamental institutions of private law. In an objective sense, property rights mean a set of legal norms governing economic property relations. In a subjective sense, ownership means the measure of legal dominance of a particular owner over a particular thing.

Authority possessions means a legally secured possibility of economic domination over a thing, possession of a given thing. Authority use means a legally secured possibility of extracting useful properties from a thing. Authority orders represents a legally secured opportunity to determine the future fate of a thing through its alienation.

The owner of a thing not only has certain powers, but also bears the burden of maintaining the thing belonging to him, as well as the risk of accidental loss or accidental damage to the thing, unless otherwise provided by law or contract. While exercising his rights, the owner must not violate the rights of third parties, including other legal owners of the thing.

The Russian Federation recognizes private, public, municipal And other forms of ownership (Clause 1 of Article 212 of the Civil Code of the Russian Federation). Private property is divided into individual private property (property of citizens, including individual entrepreneurs) and collective private property (property of legal entities).

In cases where several persons are the owners of one thing at the same time, it is customary to talk about their common property for this item. The indicated owners are called co-owners. Common property arises by force of law, including as a result of inheritance to several persons; by virtue of a contract (several persons jointly acquire one thing); if the thing is indivisible; for other reasons.

Common property happens shared And joint (Article 244 of the Civil Code of the Russian Federation). With shared ownership, the share of each co-owner is determined; with joint ownership, such shares are not determined. Common ownership of property is shared unless the law establishes the formation of joint ownership of this property (clause 3 of Article 244 of the Civil Code of the Russian Federation).

Common shared ownership may arise due to any grounds permitted by law or contract, including as a result of the transfer of common joint property to the regime of common shared ownership. If the shares of participants in common shared ownership are not determined by agreement and cannot be determined based on the law, then they are recognized as equal (Article 245 of the Civil Code of the Russian Federation). The disposal of property in shared ownership is carried out by agreement of all its participants (Article 246 of the Civil Code of the Russian Federation).

In cases provided for by law, the formation of common joint property is possible. The Civil Code of the Russian Federation enshrines two types of common joint property – property of spouses (Article 256 of the Civil Code of the Russian Federation) and property of members of a peasant (farm) enterprise (Article 257 of the Civil Code of the Russian Federation).

Participants in common joint property, unless otherwise provided by agreement between them, own and use common property jointly, i.e. together, by mutual consent. The disposal of property in common joint ownership is also carried out by mutual consent of all co-owners. Transactions regarding the disposal of common property can be carried out by each of the participants in joint ownership, unless otherwise follows from an agreement between them. In this case, the consent of other co-owners to complete the transaction is assumed.

To divide property that is in common joint ownership, it is necessary to determine the shares, i.e. transfer the property to the category of shared property. The shares will be recognized as equal, unless otherwise provided by law or by agreement of the co-owners. After determining the shares, the grounds and procedure for dividing joint property and separating it from it are determined according to the same rules as for shared ownership, i.e. according to the rules of Art. 252 of the Civil Code of the Russian Federation.

Grounds for acquiring ownership rights – these are methods of acquiring ownership of property (thing) (Article 218 of the Civil Code of the Russian Federation). The grounds for acquiring property rights are divided into initial And derivatives.

TO original reasons include those in which the right of ownership arises for the owner for the first time or regardless of the will of other persons. These include: creating a thing; recycling; taking ownership of publicly available things; acquisition of fruits, products, income; acquisition of ownership rights to ownerless property; find; treasure; acquisition of stray animals; acquisitive prescription; acquisition of ownership rights to unauthorized construction; acquisition of an item from an unauthorized alienator.

TO derived bases acquisition of property rights are those in which the property right is transferred by succession or at the will of other persons. These include: transactions (purchase and sale, donation); nationalization; privatization; acquisition of ownership of the property of a legal entity during its reorganization or liquidation; foreclosure on the owner's property for his obligations; requisition; confiscation; redemption of real estate in connection with the seizure of the land plot on which it is located; repurchase of mismanaged property contents; buying back pets if they are mistreated; acquisition of ownership of the property of a person to whom this property cannot belong; acquisition of property rights by inheritance.

Grounds for termination of ownership rights – these are the methods by which the ownership of any thing is terminated (Article 235 of the Civil Code of the Russian Federation). Ownership of a thing may be terminated:

• – at the will of the owner (i.e. voluntarily) – for example, donating a thing, selling a thing, transferring by inheritance by will, etc.;
• – regardless of the will of the owner (destruction of the thing);
• – against the will of the owner (forcibly) – confiscation, nationalization and other grounds established by law.

Limited real rights - these are such rights to things in which there is an owner of the thing (or several), but in addition to him there are also other persons who have certain rights to this thing (limited property rights).

One of the varieties of limited property rights to land is the right of lifelong inheritable ownership of a land plot. Previously, it was provided to citizens, but after the entry into force of the Land Code of the Russian Federation, plots of land on the right of lifelong inheritable ownership are not provided to citizens. Citizens who have the right to lifelong inheritable ownership of a land plot have rights to own and use the land plot, transmitted by inheritance. Citizens also have the right to purchase such plots of land free of charge and one-time.

Another type of limited property right to land is the right to permanent (indefinite) use of a land plot. After the entry into force of the Land Code of the Russian Federation, the right of permanent (indefinite) use of land plots may be granted to state and municipal institutions, federal government enterprises, state authorities and local self-government.

Right of economic management - this is a limited real right of a state or municipal unitary enterprise to the property assigned to it by the owner (founder) (Article 294 of the Civil Code of the Russian Federation).

The owner has the right to receive part of the profit from the use of property under the economic control of the enterprise. An enterprise does not have the right to sell real estate owned by it under the right of economic management, rent it out, 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. It has the right to dispose of the remaining property owned by the enterprise independently, with the exception of cases established by law (Article 295 of the Civil Code of the Russian Federation).

Right of operational management - this is a limited real right of state-owned enterprises and institutions to the property assigned to them by the owner (founder) (Article 296 of the Civil Code of the Russian Federation).

An institution and a state-owned enterprise own and use the property assigned to them within the limits established by law, in accordance with the goals of their 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. 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.

The disposal of state-owned enterprises and institutions with the property assigned to them under the right of operational management is carried out in the manner prescribed by Art. 297 and 298 of the Civil Code of the Russian Federation.

Easement – this is the right to limited use of someone else’s land plot or other real estate (Articles 274, 277 of the Civil Code of the Russian Federation, Article 23 of the Land Code of the Russian Federation). Easements are established to ensure passage and travel 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.

Easements may be private And public, urgent And permanent.

Encumbering a land plot (or other real estate) with an easement does not deprive the owner of the plot of the rights of ownership, use and disposal of this plot. The easement is preserved even when the rights to the land plot, which is burdened with this easement, are transferred to another person. At the request of the owner of real estate or land encumbered by an easement, the easement may be terminated due to the disappearance of the grounds on which it was established.

Property rights are generally understood as rights that ensure the satisfaction of the interests of the authorized person by directly influencing a thing that is within the sphere of his economic domination.

The right of ownership is legally determined by the fact that the owner has the rights to own, use and dispose of his property.

Possession means the economic dominance of the owner over the thing. Possession expresses the static nature of property relations. We are talking about economic domination over a thing, which does not at all require that the owner be in constant contact with it. For example, when going on a long business trip or vacation, the owner continues to remain the owner of the things in his apartment.

Possession of a thing can be legal or illegal. Legal possession is one that is based on some legal basis. Illegal possession has no legal basis. Things, as a general rule, are in the possession of those who have one or another right to own them. 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 relations (clause 3 of Article 10 of the Civil Code of the Russian Federation), one should proceed from the assumption of the good faith of the owner.

Use means extracting useful properties from a thing through its productive and personal consumption.

Order means the performance of acts in relation to a thing that determine its fate, up to and including the destruction of the thing. This can be the alienation of a thing, or its rental, or a pledge of a thing.

Ownership rights are fundamentally different in nature from licensing rights, when certain actions are performed only on the basis of the permission of authorized persons.

In property rights it is necessary to distinguish between:

• - ownership in an objective sense as a system of legal norms (laws, regulations, etc.) on property
• - ownership in a subjective sense as the subjective powers of a person in relation to certain objects.

Property rights have the inherent ability to be restored to their previous extent as soon as the restrictions that bind them 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.

Along with the right of ownership, civil law also recognizes other property rights. These include: the right of lifelong inheritable ownership of a land plot; the right to permanent (indefinite) use of a land plot; easements; the right to manage property; the right to operational property management.

These rights, like the corresponding rights of owners, are subjective rights. In general, at the level of legal norms, they are covered by the concept of property law (in the objective sense), the main and predominant part of which is the right of ownership.

As noted earlier, the will of the owner in relation to the thing belonging to him is expressed in the possession, use and disposal of it. Thanks to them, 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. In particular, he has the right to alienate his property into the ownership of other persons, to give them, while remaining the owner, the rights to own, use and dispose of property, to pledge property, and to dispose of it in any other way. The owner, while remaining such, has the right to transfer his property to trust management.

To the extent permitted by laws, including those on land and natural resources, the circulation of land, natural resources, possession, use and disposal is carried out by the owner freely, if this does not cause damage to the environment and does not violate the rights of the state, rights and legitimate interests of other persons.

The owner bears the burden of maintaining the property he owns, and he also bears the risk of accidental loss or accidental damage to the property, unless otherwise provided by law or contract in either case.

Types (forms) of property rights. The Russian Federation recognizes private, state, municipal and other forms of ownership.

In accordance with the Civil Code of the Russian Federation, the specifics of the acquisition and termination of all types (forms) of property, the powers of the owner (triad), regardless of the subject of the property, can only be established by law. The law defines the types of property that can only be in state or municipal ownership. At the same time, the rights of all owners are protected equally.

Property rights of citizens and legal entities. 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.

At the same time, the quantity and value of property owned is not limited (except for the restrictions under paragraph 2 of Article 1 of the Civil Code of the Russian Federation).

Commercial and non-profit organizations (except for cases provided for by law) are the owners of property transferred to them in the form of deposits, contributions, etc., and acquired by them.

Public and religious organizations, charitable and other foundations are the owners of the property they acquire and can use it only to achieve the goals provided for in their constituent documents. The founders (participants, members) of these organizations lose the right to property transferred by them to the ownership of the organization.

State property rights. The right of state property (federal property, property of the subjects of the Federation) is created and functions to fulfill state tasks. The state owns its property and protects it on the same basis as other owners.

Land and other natural resources that are not owned by citizens, legal entities, or municipalities are state property.

Management of the property of the Russian Federation and its subjects is carried out, in accordance with the Constitution, by the relevant authorities and management.

State property is assigned, in accordance with the Civil Code of the Russian Federation, to individual enterprises and institutions for economic management or operational management.

The treasury of the state (the entire Federation, its subjects) is formed by funds from the corresponding budget and other state property not assigned to state enterprises and institutions.

The right of municipal property. Property owned by the right of ownership to urban and rural settlements, as well as other municipal entities, is municipal property.

Property in municipal ownership is assigned to municipal enterprises and institutions for possession, use and disposal in accordance with Art. 294, 296 of the Civil Code of the Russian Federation.

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.

Their bodies (heads, mayors, etc.) act on behalf of the municipality as the owner. On their special instructions, state bodies, local government bodies, as well as legal entities and citizens can act on their behalf.

Issues of assigning property to individual enterprises, institutions and the municipal treasury are resolved on the same basis as in state property.

Subtypes of property rights. The classification of forms of ownership is not the only possible one. These forms, in turn, can be divided into types. Thus, the property of citizens and legal entities, federal property and the property of constituent entities of the Russian Federation can be considered as types of corresponding forms of ownership. Classification of property into types can be made on a variety of grounds. It may not go beyond one form of ownership, as is the case in the examples just given, but it may not depend on the form of ownership. For example, common property, which is characterized by the fact that it belongs not to one person, but to two or more persons, is divided into two types: shared and joint. In this case, common shared property can belong to several persons, regardless of what form of ownership each of them represents. As for common joint property, it is possible only between citizens (this type will be discussed below).

Finally, types of property rights may be subject to classification into subtypes (property of business societies and partnerships, production and consumer cooperatives, public and religious organizations, etc.).

Acquisition of property rights. The right of ownership is acquired as a result of the initiative of a subject of civil law on the basis and in the manner established by the Civil Code of the Russian Federation, other laws and regulations in accordance with the basic principles of civil legislation. The grounds for acquiring property rights can be divided into two main groups.

The first group is the acquisition of ownership of this property for the first time. This group includes the following grounds:

• - acquiring ownership of a new thing manufactured or created by a person for himself or for sale;
• - acquiring ownership of fruits, products, income received as a result of using property legally.

The right of ownership to newly created real estate - buildings, structures, other objects subject to state registration, arises from the moment of such registration;

• - processing;
• - collection or extraction of publicly available things (berries, fish, etc.);
• - the acquisition of ownership of an unauthorized construction may be allowed by the court as an exception;

The right of ownership of an unauthorized structure may be recognized by the court, and in cases provided for by law, in another manner established by law, for the person in whose ownership, lifelong inheritable possession, permanent (indefinite) use is the land plot on which the structure was created, while simultaneously complying with the conditions defined in paragraph 3 of Art. 222 of the Civil Code of the Russian Federation.

The second group of grounds for ownership differs in that the ownership of this property is secondary, that is, this property has already been the subject of ownership by other persons. This group includes the following:

• - acquisition of ownership rights under a transaction - on the basis of a purchase and sale agreement, exchange or other compensated transaction for the alienation of property;
• - transfer of property to a given person by inheritance in accordance with a will or law;
• - transfer of property to the legal successor during the reorganization of a legal entity;
• - acquisition of property (dacha, apartment, garage, etc.) by a member of a housing, housing construction, dacha, garage or other consumer cooperative who has paid his share contribution in full;
• - acquisition of ownership of ownerless things. An ownerless thing is a thing that does not have an owner or whose owner is unknown, or a thing for which the owner has renounced ownership. Such property, if it is not covered by other categories of civil law (finds, stray animals, treasure), can be acquired into municipal ownership due to acquisitive prescription;
• - acquisition of a movable property that the owner has abandoned. Abandoned things, that is, things left by the owner for the purpose of renouncing ownership of them, can be turned into their own by another person;
• - a find is the discovery of a lost thing. The initial legal norm is that the finder of 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 that person. The finder of a thing acquires ownership of it if, within six months from the date of reporting the find to the police or local government body, the person authorized to receive the found thing is not identified or does not himself declare his right to the thing. If the finder of the thing refuses to acquire ownership of the found thing, it becomes municipal property;
• - treasure - money or other valuable items buried in the ground or otherwise hidden, the owner of which cannot be identified or, by virtue of law, has lost the right to them. The treasure in equal shares becomes the property of the person who owns the land plot, other property (building, reservoir, etc.) where the treasure was discovered, and the person who discovered the treasure. If the treasure was found by persons carrying out excavations without the consent of the owner or possessor (“black archaeologists”), then the entire treasure is transferred to the owner or possessor of the land plot or other property where the treasure was discovered.

If the treasure contains things related to historical and cultural monuments, they, based on the meaning of paragraph 2 of Art. 233 of the Civil Code of the Russian Federation, are initially state property and are subject to transfer to government agencies. In this case, the owner of the land plot, other property and the person who discovered the treasure together have the right to receive a reward in the amount of 50% of the value of the treasure. This right does not arise if the finder of the thing did not declare the discovery of the treasure or tried to hide it. Remuneration is also not paid to persons carrying out excavations due to work or official duties.

Acquisitive prescription - a person (citizen or legal entity) who is not the owner of the 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.

In this case, the period of ownership of the person whose legal successor the property applicant is may also be taken into account. The acquisition of ownership of property subject to state registration occurs from the moment such registration is carried out.

Until the above-mentioned periods of acquisitive limitation, a person who owns property as his own has the right to protect his possession.

Termination of ownership. The right of ownership terminates when the owner alienates his property to other persons, the owner renounces the right of ownership, the destruction or destruction of property and on other grounds provided by law.

The basic principle of this group of civil law norms is that forced seizure of property from the owner is not allowed. An exception to this principle is possible only in cases expressly provided for by law.

The right of ownership terminates: when the owner alienates his property to other persons; when the owner renounces the right of ownership; in case of loss or destruction of property; upon loss of ownership of property; in other cases provided by law.

Forced confiscation of property from the owner is not permitted, except in cases specifically provided for by law (confiscation, requisition, etc.).

By decision of the owner, in the manner prescribed by the laws on privatization, 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 value of this property and other losses in the manner established by Art. 306 of the Civil Code of the Russian Federation.

• Legal ownership is often referred to as title.
• Fruits, products, income received as a result of the use of a thing, regardless of who uses such a thing, belong to the owner of the thing, unless otherwise provided by law, other legal acts, contract or follows from the essence of the relationship.
• An unauthorized construction is a building, structure or other structure erected, created on a land plot that is not provided in the prescribed manner, or on a land plot, the permitted use of which does not allow the construction of this object on it, or erected, created without obtaining the necessary permits for this or in violation urban planning and building regulations. A person who has carried out an unauthorized construction does not acquire legal ownership of it. It does not have the right to dispose of the construction - sell, donate, lease, or make other transactions.
• Therefore, in civil science, the basis for the emergence of property rights has long been divided into primary and derivative.
• 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.
• Privatization is the alienation by decision of the owner of property in state or municipal ownership into the ownership of citizens of legal entities in the manner prescribed by law.
• Nationalization is the conversion, on the basis of law, into state ownership of property owned by citizens and legal entities with compensation for the value of this property and other losses (disputes about losses are resolved by the court).

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