Issues related to the acquisition, termination and protection of property rights have been studied for a fairly long time, from the very beginning of the formation of law as a scientific discipline. This is understandable. Property has a special economic, and in many cases political importance for society and its individual members. It predetermines material well-being and in a certain way affects the spiritual basis of human life. Next, we briefly consider the grounds for acquiring and terminating property rights, the specifics of methods for obtaining property in legal possession, and the main issues associated with these actions.
Legislative principles
At the turn of the XX-XXI centuries. In Russia, a serious reform was carried out. A new Constitution was adopted, in which a person is proclaimed the highest value. New concepts have been introduced into the legislation. The grounds for the acquisition and termination of ownership acquired clear boundaries.
Currently, property can be owned by citizens, legal entities, the Russian Federation, regions, municipalities. Individuals are recognized as independent subjects of property rights.
In the Russian Federation, the acquisition and termination of certain rights takes place within the framework of certain legal relations. Citizens may enter into transactions in respect of any property whose value, as a general rule, is not limited (exceptions may be established only by law).
The Constitution of the Russian Federation enshrines and guarantees the right of ownership, the acquisition, occurrence and termination of which is strictly regulated by federal law. Tight regulatory regulation is necessary to ensure the integrity of the interests and freedoms of citizens.
The content, acquisition, termination of property rights were discussed in Soviet legal science. However, at that time the study was carried out exclusively within the framework of state economic entities. Other participants in the turnover, unfortunately, were deprived of the attention of civilians. That is why, during the course of the reforms, the consolidation of the concept of acquisition and termination of property rights, the definition of a specific circle of subjects in federal law, acquired particular importance. Currently, there are no serious gaps in the standards, therefore, there are no significant problems in law enforcement practice.
Briefly about the methods of acquisition and termination of ownership
Options for obtaining property in personal possession, use and disposal can be divided into initial and derivative. Each group has its own characteristics. In some cases, the criterion of will is priority, in others - succession.
Termination of ownership may be voluntary or compulsory. In the latter case, the law establishes an exhaustive list of grounds and methods.
Acquisition / termination of ownership is carried out in accordance with the principles established in the Constitution. In particular, in part 3 of article 35 of the Basic Law, it is forbidden to deprive anyone of his property, except by a court decision.
The grounds and methods for the acquisition / termination of property rights arise as a result of certain right-generating events - legal facts. They are considered as circumstances of real life, which under the law entail certain legal consequences. For example, one of the grounds for the acquisition / termination of ownership is the contract of sale. As a result of such a transaction, property transfers from one entity to another. At the same time, the latter receives a legal opportunity to use, own and dispose of the thing.
The situation is similar with giving. The basis for the acquisition and termination of ownership in this case is also a contract. However, unlike buying and selling, donation is a gratuitous transaction.
Ways to terminate / acquire ownership
Obtaining things in possession, use and disposal occurs in the process of entry of the subject into certain legal relations. Usually these are voluntary actions. In this sense, the methods of acquiring and terminating ownership are different. The fact is that the loss of the ability to use, own and dispose of a thing can occur both voluntarily and forcefully. Moreover, the legislation clearly regulates the rules and features of the termination of ownership of property. The acquisition of things is carried out more freely. Restrictions are established only in respect of objects whose circulation is prohibited or limited. It is, in particular, about weapons, narcotic / psychotropic compounds, etc.
Acquisition and termination of the right of ownership, in short, are actions of a person that do not contradict the law, aimed at obtaining or disposing of any property.
Special rules
For some facilities, a special procedure has been established for the acquisition and termination of ownership. It is, in particular, about real estate. According to the current legislation, contracts concluded with respect to such facilities are subject to state registration. In this case, the methods of acquisition and termination of ownership of real estate do not matter. The main thing is that they comply with current standards.
It should also be said about the specifics of the acquisition and termination of ownership of vehicles. Contracts of sale, exchange, etc., are not subject to state registration, but the vehicle must be registered with the territorial division of the traffic police. There is a special database that contains information about all persons owning transport in the country.
Acquisition of rights
You can get the title to the property (to become the rightful owner of the thing) by initial and derivative methods. In the latter case, the ownership right appears at the behest of the previous owner. In the first case, the acquisition of things is carried out for the first time. That is, before the transaction was concluded, the item did not belong to anyone.
It is worth noting another difference in the acquisition and termination of ownership. Legal opportunities may arise in relation to even orphaned things. But they can stop only when the object has a legitimate owner.
Initial and derivative methods of obtaining the right
Legal opportunities appear when:
- The creation of an object in respect of which property rights could not be established earlier. It can, for example, be about manufacturing a product by an enterprise, developing innovative technology, etc.
- Collection / production and processing of publicly available resources. Here we are talking, in particular, about the extraction of minerals from the bowels.
- Unauthorized construction. As a general rule, such actions are considered illegal. However, under certain conditions, unauthorized construction can be considered legitimate.
- The legal appropriation of ownerless property. Here we are talking not only about the things found, but also about the objects that the owner refused or in respect of which the property right was lost.
Derivative is the acquisition of the right:
- in accordance with a contract or other transaction;
- in order of succession;
- during the reorganization of a legal entity.
Nuances
Many options for acquiring and terminating property rights can be used by any participants in a civil turnover. Meanwhile, there are special ways, the implementation of which is carried out by a limited circle of persons.
For example, the acquisition and termination of ownership takes place during confiscation. As well as nationalization, requisition of property. In these cases, things pass from the private owner to the state or constituent entity of the Russian Federation. The acquisition and termination of ownership takes place when transferring taxes, duties, fees. In such cases, property in the form of cash is received not only by the state or a constituent entity of the Russian Federation, but also by the municipality (depending on the type of payment).
Buyout
On the basis of paragraph 4 of paragraph 218 of the Civil Code, an individual who is a member of a consumer cooperative who has paid the entire amount of a share contribution for an object provided by the company acquires the right to own it. This may be a garage, apartment, cottage, etc.
The right of ownership in this case arises regardless of the will of the cooperative and the citizen himself. At the same time, since the object is immovable, the transaction is subject to state registration.
In fact, in this case we are talking about a mandatory buyback. It, among other things, is one of the common options for the acquisition and termination of ownership.
Creating things
In this case, the right of ownership arises if the subject makes something for himself. If the thing is created for another person, then it is it that becomes its legal owner by virtue of an agreement.
Of essential importance is the moment at which the object is recognized as manufactured, that is, existing real. This moment is considered to be a legitimate circumstance. For movable objects, it is determined by the fact of completion of the relevant activity, for movable things - by the date of state registration. Therefore, in the latter case, until the moment of registration, the object is recognized as non-existent.
Unauthorized construction
If the subject created the object bypassing legal requirements, ownership does not arise. Consequently, the construction will not be considered real estate, since it is not subject to state registration.
In the case of unauthorized construction, we can talk about the totality of materials used to create it. The subject who built such an object can pick them up, having carried out the demolition at his own expense.
A building is recognized as unauthorized if it is created:
- In violation of the rules for the provision of land.
- On the site, the purpose of which does not include construction.
- In the absence of the necessary permissions.
- With a significant violation of the rules and regulations of construction.
At the same time, the legislation provides for the possibility of recognizing ownership of a person who has built a building in a judicial proceeding.
Obtaining benefits when using property
According to general rules, the ownership of income, fruits, products, acting as a result of economic activity, arises from the person who carried out it in the course of exploitation of material assets on legal grounds. This situation, in particular, is characteristic of rental relations. For example, the subjects enter into an agreement, according to which the owner provides the other party with the use of land for growing fruit crops. The tenant does not become the rightful owner of the allotment, however, he keeps the harvest.
The collection of mushrooms, berries, fishing, and the extraction of other publicly available resources is recognized as the initial method of acquiring property rights for each person who collects or harvests them. At the same time, these actions should be carried out in accordance with the legislation in force in a particular territory, local custom, or with the permission of the owner.
Ownerless things
They are considered to be objects abandoned by owners, treasures, street animals, finds, etc. In all cases of discovering such things, one can talk about acquiring rights to them if the owner is unknown, abandoned the items or, by virtue of the law, has lost his rights to them.
Orphaned objects include things abandoned by the rightful owner. If the cost of movable things is small (less than 5 minimum wages) or they are abandoned scrap metal, defective products, industrial and other waste, then they can become the property of the subject in whose territory they are located. To do this, this person commits acts of conformity, that is, testifying to the conversion of objects into property.
Other orphaned items can be obtained in legal possession only through a court.
Finds
The subject who discovered an orphaned item must notify its owner or the person who lost it (this requirement is contained in article 277 of the Civil Code). He can also transfer the thing to the police, the territorial government, the owner of the transport or premises in which the thing was found.
In this case, the found subject can store the item. In this case, he is responsible for its damage, the possible loss due to gross negligence for intent within the limits of its value.
If, after six months from the moment of transferring the thing to the territorial self-government body or the police department, its title owner does not appear, the property right will be transferred to the finder. In case of his refusal, the municipality will become the title owner. At the same time, the finder can rely on compensation for expenses incurred in connection with the storage of the item. Cost recovery is made either by the legal owner of the thing, or by the territorial authority. In addition, the law allows for the possibility of receiving remuneration from an entity authorized to accept a thing from the person who found it.
Longtime possession
This is another reason for acquiring rights to a thing. Presidency is regulated by the provisions of article 234 of the Civil Code. According to the norm, in order to obtain an object in ownership, the subject must possess it continuously, in good faith and openly. This means that a long-standing owner cannot be a thief or an entity who intentionally appropriated property contrary to the will of the rightful owner.
Open ownership implies evidence to others. In this case, the person should treat the used property as his own. This, in turn, means that the subject also bears the burden of the content of the thing. For example, if it is real estate, it must pay utility bills, taxes, maintain proper condition of the premises, etc.
An important condition for acquiring rights to a thing is the continuity of prescription. The legislation establishes the minimum terms during which an entity must use and maintain property. For movable things, the period is five, and for immovable - 15 years. In the latter case, the ownership right will arise at the person upon the expiration of the term only after state registration.
Termination of Rights
As mentioned above, the grounds for this are expressly provided for in the law. First of all, it should be said about the termination of law at the behest of the legal owner of the thing. It may be associated with the alienation of the subject or the voluntary refusal of the owner of the subject.
In the first case, we are talking about various kinds of transactions made by the title owner. This is the sale, gift, exchange, etc. The rules for termination of rights of one participant in relations and their occurrence in another are governed mainly by the provisions on transactions and contracts.
Voluntary refusal
It is committed by public announcement or by the performance of opportunistic actions that indisputably indicate his intention (for example, a citizen threw out a television).
It must be understood that prior to obtaining ownership of the item, the former title owner retains his duties and legal capabilities. In other words, there is a chance of a thing returning to its original owner. At the same time, it is also possible that the former owner may be held liable for damage resulting from his refusal of rights to the thing. For example, if a citizen threw out some object that causes harm to nature.
Privatization of municipal (state) property
It is a special way of transferring ownership. Privatization is seen as a civil transaction. It is drawn up, as a rule, by a contract of sale. The adoption of a decision on privatization acts as a form of realization by a public owner of the authority to dispose of property belonging to him in the manner prescribed by special legal acts. General rules also apply to such transactions. However, they apply only if some actions of the privatization participants are not regulated by special rules.
In a special order, only the procedure for transferring property rights is determined. The list of privatization objects is not fixed by special norms.It is determined by the public owners themselves in accordance with their interests, guided by the rule of law. Privatization involves the receipt by the owner of a fee for the transfer of property and rights to it. As a rule, the objects are real estate.
Destruction / destruction of a thing
If the condition of the object becomes such that its further use is impossible, the right of ownership is terminated. In such a situation, it is necessary to establish the reasons why this happened.
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According to general rules, the compulsory alienation of things is carried out on a fee. Upon seizure, the owner receives compensation for the property. Similar rules are provided for at the requisition. In this case, the seizure is carried out in emergency circumstances (during accidents, natural disasters, etc.) and only in the public interest. Requisition is carried out by decision of state bodies.