To live in our apartment or our house, to wish for this and strive to achieve - all this is the norm for us, the natural order of things. Rarely does anyone remember that until recently we were all only employers. And although the apartment was perceived as his own in Soviet times, in reality it was not so.
Concept private property housing was returned to the life of Russian citizens only in 1990 - since the adoption of laws on property in the USSR and the RSFSR. And since 1991, the share of private property in the housing stock began to grow rapidly thanks to the start of privatization. Prior to that, all residential property was owned by the state. The emergence of private ownership of housing required changes in legislation and the establishment of mechanisms for regulating housing relations.
Private property is one of the forms of ownership, meaning the absolute, legally protected right of a certain person to specific property.
Private property in housing is considered to be real estate in the housing sector, which is owned by citizens and legal entities. According to russian legislation, private ownership of real estate is not limited in size, value and quantity, is guaranteed by the right of immunity and is subject to mandatory registration with the Office of the Federal Registration Service.
Private property can be individual (owned by one person) and common. Common ownership arises when two or more people take ownership of one undivided dwelling. Most of the former state and municipal housing is jointly owned by citizens living in it; quite often apartments are inherited by several persons; cases of joint purchase of housing are widespread.
Ways of acquiring private property
Citizens of the Russian Federation have the right to purchase housing for private ownership by:
- privatization in accordance with the established procedure of occupied residential premises in the houses of state and municipal housing stock;
- purchase and sale of housing, including through stock exchanges and auctions;
- housing construction, including construction by associations of individual developers;
- participation in housing and housing construction cooperatives, condominiums;
- acquisition by inheritance, as well as on other legal grounds.
The purchase or sale of housing must be secured by a purchase contract. Under the contract for the sale of real estate, the seller undertakes to transfer it to the ownership of the buyer. The form of concluding a real estate sale agreement is only written. The contract is signed by the parties and is subject to state registration, from the moment of which the contract is considered to have come into force. The contract for the sale of real estate must provide for the price of the object of sale.
In the contract for the sale of real estate, data must be indicated that allow you to definitely establish the real estate to be transferred to the buyer under the contract. In the absence of such data in the contract, the condition of the immovable property to be transferred is considered not agreed by the parties, and the corresponding contract is considered not concluded.
The transfer of real estate by the seller and its acceptance by the buyer are accompanied by a transfer document (usually a deed of transfer), which is signed by the parties. If the property, upon acceptance by the buyer, does not comply with the terms of the purchase and sale agreement, the seller is liable for improper performance of the agreement.
Housing privatization
Privatization is the process of denationalization of property. Privatization of housing means free transfer to citizens of residential premises located in the state and municipal housing stock (Section I of the RF Law "On Privatization ..."). Every citizen has the right to acquire ownership in the order of privatization of residential premises in the state and municipal housing stock for social use once.
The exception is minors who became the owners of the occupied dwelling in the order of its privatization. This category of citizens retains the right to a one-time free privatization of residential premises in the houses of the state and municipal housing stock after they reach the age of majority.
During privatization, residential premises may not be transferred to the ownership of all, but some of the persons living in it in accordance with the agreement reached between them. The owners of a privatized residential building or apartment have the right to own, use and dispose of them at their discretion: sell, bequeath, lease, make other transactions that do not contradict the law.
There are 4 main forms of privatization execution:
- individual property - this form implies that the property belongs to one person. This can be when one person is registered in the apartment, or if everyone living in it has renounced their rights in favor of one person.
- shared ownership - usually used in the privatization of communal apartments. It is characterized by the exact size of the share of each owner. In the case of one family living, this form allows each of its members to be assigned one of the rooms;
- common share ownership - in this case, according to Art. 245 of the Civil Code of the Russian Federation, the shares of all tenants who have privatized an apartment are considered equal (if they have not agreed on the actual division of rooms);
- general joint ownership - in this case, the shares of the owners are not indicated (they are not allocated). Applies only to spouses and their minor children.
In the Russian Federation, free privatization of housing began in 1991 and will end on March 1, 2013.
Joint ownership
Joint ownership is common ownership without defining shares. The existence of joint ownership is explained by the presence of close personal ties between its participants. It should be noted that joint ownership of an apartment arises only in special cases (Article 244 of the Civil Code of the Russian Federation) - during privatization and upon acquisition of housing by spouses. In other cases, common property can only be shared.
In case of common joint ownership, the participants have shares, but their size in the common property is not defined and is recognized as equal. This is considered the housing of the spouses, acquired in marriage with common funds, if there is no other indication in the marriage contract to this effect (Article 256 of the Civil Code of the Russian Federation). In case of division or inheritance of property, shares must be allocated. If one of the owners wants to sell, donate or exchange their part of the joint property, the apartment is transferred to fractional ownership.
The disposal of property (and / or determination of shares) in joint ownership is carried out by agreement of all its participants (Article 253 of the Civil Code of the Russian Federation). When the owners make the appropriate decision (or if no agreement is reached - by court decision), the shared ownership of these persons may be established on the common property.
After the allocation of a share, the owner has the right to dispose of his shares, but at the same time he must take into account the interests of other owners - their right to preemptive purchase (more on this later).
If the allocation of a share in kind from joint ownership is impossible (for example, in a one-room apartment), the emerging owner has the right to receive payment to him of the value of his share (with his consent or by a court decision) by other participants in shared ownership in the form of a sum of money or other compensation (Art . 252 of the Civil Code of the Russian Federation).
Shared ownership
Shared ownership implies that each of the owners has a predetermined share in ownership. According to article 245 of the Civil Code of the Russian Federation, by agreement of all participants in shared ownership, the procedure for determining and changing shares depending on the contribution of each to education and an increase in common property can be established.
The possession and use of the living quarters in shared ownership are carried out by agreement of all co-owners. In the absence of such an agreement, they are established by the court. If the parties reach an agreement, it is possible to use the living quarters separately, regardless of the size of their share in the common property.
Shares are perfect and real. The real share corresponds to a specific object. Its allocation requires the technical ability to divide not only residential, but also non-residential premises, as well as make a separate entrance. Therefore, the allocation of a real share is possible in a private house, but not in an apartment in an apartment building. In practice, the shares are determined in ideal terms. It is not connected with any real room or part of the apartment.
Often it is impossible to distinguish shares in reality due to the discrepancy between real and ideal shares. In this regard, many difficulties arise - how to distribute income from such property, how to allocate shares when receiving an inheritance, etc.
In the case of donating his share to someone, its owner is not obliged to obtain the consent of other participants in the shared property.
If the sale of a share in the property by one of its participants is carried out, the other participants in the shared property have the right to pre-empt it at the price and on the terms of its sale (except for the sale at public auction). The seller of the share is obliged to inform the other participants in the share ownership in writing about the intention and conditions of the sale of his share. Cancellation or purchase of a share must be completed within a month. If the owner sells his share to one of the co-owners, he is not obliged to notify the others.
In case of violation of the pre-emptive right to purchase, any participant in the shared ownership within three months has the right to demand judicial procedure transfer of the rights and obligations of the buyer to it (Article 250 of the Civil Code of the Russian Federation). If the court is considering a dispute on the invalidation of the contract of sale of residential property by one of the participants in the shared ownership, the court must find out whether the right of pre-emption has been observed by both the seller and other owners of this property.
Often, the violators are not the sellers of the share, but the owners of other shares in the property. They try to create various difficulties for the seller, and the sale of a share in the property turns into a problem. In order not to receive a sale notification, other participants do not open the doors, hide, set fire to mailboxes. In this case, you can use the help of a notary. A special situation arises if one of the owners is a child. In this case, the notification is sent to his parents. Sometimes you have to get consent from the guardianship authorities.
Property of spouses
The spouses' property is considered joint if it was acquired during the marriage with common funds. Accordingly, if one of the spouses privatizes housing in which the other spouse is not registered, such property is not recognized as jointly acquired, since it was acquired free of charge.
If one of the spouses acquires property from a third party, the other spouse also acquires ownership of the given dwelling. In this case, the basis for the emergence of ownership of the first spouse is the concluded purchase and sale (exchange) agreement. For the second spouse, such a basis will be the indication of the Law on the joint ownership of spouses on property acquired in marriage (paragraph 1 of article 34 of the Family Code).
When acquiring a cooperative apartment, the spouses receive the right to common joint ownership of it if the share contribution for the dwelling is paid in full at the expense of their common joint property. The right to joint ownership arises for spouses, regardless of who is a member of the ZhK (ZhKK), as well as further dissolution of the marriage between them.
The property of any of the spouses, acquired prior to marriage, is his personal property. The same applies to property received during marriage by inheritance or as a gift. Recovery for the obligations of one of the spouses can be directed only to his own property and to his share in the common property (Art. 256 of the Civil Code of the Russian Federation).
The division of housing acquired into joint ownership can be carried out both during the marriage period and within three years after its dissolution. It can be executed by the court at the request of one of the spouses, as well as at the request of his creditors. The division of property can be performed without divorce. The reasons for this can be very different - inheritance, payment of personal debts, wastefulness, the actual termination of family relations.
Determination of shares in joint ownership and division of property are made by the spouses independently. If they cannot make such a decision, the matter is referred to the court. In this case, the court determines which property is to be transferred to each of the spouses. The spouses' shares are considered equal, unless otherwise specified in the agreement between the spouses. However, the court may depart from the principle of equality of shares. The reasons may be the interests of minor children, as well as cases when one of the spouses spent common property to the detriment of the interests of the family.
Constitutional guarantees of the rights of holders of property rights to residential premises can be implemented only under the condition of competent legislative consolidation, impeccable practical, including judicial implementation of the ideas of private law on property and other property rights of citizens to residential premises.
Currently housing policy The Russian state has undergone significant changes in connection with the transition of residential premises into private ownership and, accordingly, their involvement in the sphere of civil circulation, and demanded a thorough legislative regulation not only of the ownership of residential premises, but also the regulation of other property rights of citizens to these objects, allowing them to satisfy property interests in the use of their own and owned by other persons living quarters. Over the past decade, a large number of regulatory legal acts have been adopted related to the implementation of the right of citizens to housing, however, enshrined by them legal regime residential premises could not be recognized as an adequate legal form of social and economic processes in the Russian Federation.
At the same time, the concept of "apartment" as an object of law is not legally defined either in the Civil Code or in the Housing Code. In the Civil Code of the Russian Federation in Art. 289 refers to the apartment as an object of ownership, without revealing its essence: “The owner of the apartment in apartment building along with the premises he owns, occupied as an apartment, he also owns a share in the ownership of the common property of the house. " At the same time, the RF LC only in Art. 16 lists an apartment as a type of dwelling, without revealing either the very concept of an apartment or the ownership of it. The ownership of an apartment in these codes is considered only as a type of residential premises in general. At the same time, it is extremely important to single out an apartment as a living space and the specifics of the rights to it. The owner of the apartment does not have the right to dispose of his share of the common property of the house separately from the apartment (clause 2 of Article 290 of the Civil Code of the Russian Federation) On the other hand, the question arises about the exercise of his ownership and use rights. We join the opinion of the authors who believe that condominiums should be organized in all residential buildings owned by individual owners and the municipality, since real estate is a specific object that needs to be managed.
An apartment, like a residential building, belongs to residential real estate due to its inseparable connection with the land. It should be noted that at the present time, in the theory of civil law there is no unified approach to the definition of the concept of "apartment in an apartment building". According to P. Sedugin, an apartment is a separate living area intended and used for living, which has a separate exit to the street, to the courtyard, to a staircase or to a common corridor and does not have functional parts (areas, volumes) of other apartments ( common areas) 1. It seems to us that the disadvantage of this definition is that there is no indication of the main feature of the apartment, namely that it is part of another object - an apartment building. Another author, N. Agafonova, additionally distinguishes two features that distinguish an apartment from other types of residential real estate (a residential building and a living room in a communal apartment). Firstly, this is the position that an apartment is a premise that unites the living space and the entire area serving it; secondly, the apartment has an exit (communication) into a building operated by several apartment owners. 2 In our opinion, the indicated formulation of features also does not accurately reflect the properties of the apartment, since it is not clear what the author himself understands by serving areas. The area of \u200b\u200bapartments includes the area of \u200b\u200bliving and auxiliary rooms. The latter have a service in relation to residential value. But the same function is performed by the general premises of the house, the supporting structures of the house, mechanical, electrical, sanitary and technical and other equipment outside or inside the apartment, serving more than one apartment that does not form part of it (clause 1 of article 290 of the Civil Code of the Russian Federation). Therefore, it would be more correct to indicate not the serving, but the auxiliary area. Secondly, an apartment can have access not only to the premises of a residential building, but also to the street.
In our opinion, the definition of an apartment, enshrined in the Temporary Methodology for the Assessment of Residential Premises of October 30, 1995, is more acceptable: “This is a structurally isolated complex functional part of a residential building or non-residential building with residential premises, intended and administratively recognized as suitable for permanent residence citizens, which has a separate entrance from the street or from the common area and does not have functional parts (areas, volumes) of other apartments (common areas) within its limits ”.
In addition, an apartment as a residential real estate must, firstly, be intended for permanent or (in cases established by law) temporary residence, secondly, it must be suitable for permanent residence and, thirdly, it must be registered in this capacity with government agencies that register this kind of real estate.
The sign of the suitability of a dwelling for living is associated with ensuring the rights of citizens directly living in this dwelling, then the sign of the intended purpose of a dwelling is necessary to maintain the housing stock and ensure the rights of citizens in general, exercising their rights in the housing sector. At the same time, with regard to the category of intended use, we should talk about the purpose for permanent or temporary residence, and with respect to the category of suitability - exclusively about suitability for permanent residence.
In addition, the apartment has such a feature as independent turnover, which consists in the ability to be in civil circulation and change its owners, inherent in those residential premises, ownership or other property rights, which are registered in the state register.
The objective value of an apartment as a dwelling is expressed in its possession of a quality common to all objects of civil rights to be capable of satisfying the legitimate interests of subjects of private rights.
An apartment in its essence is a complex thing, artificially made up of several interconnected parts, that is, premises directly intended to meet the housing needs of citizens, and utility rooms.
We believe that the concept of "apartment in an apartment building" can be formulated as follows: an apartment is a structurally isolated complex functional part of a residential building or non-residential building with living quarters, intended and administratively recognized as suitable for permanent residence of citizens, having a separate entrance from the street or from common areas, consisting of the main thing (the apartment itself), as well as the common property of the house, which is in common use and intended for its maintenance, subject to cadastral registration.
The legal literature emphasizes that since an apartment is an independent part of an apartment building, it appears in civil circulation as a separate thing, and not as part of a house 1.
The right to an apartment as a dwelling is a subjective civil right to a specific dwelling, namely, in this case, to an apartment, which, by its legal nature, can be proprietary, obligatory, corporate. Note that this concept should not be identified, on the one hand, with an element of the general legal capacity of any natural person (the right to housing, the right to an apartment), on the other hand, with an element of the special civil legal capacity of an individual who is recognized as needing improvement. housing conditions, acquire the right to a dwelling under a social tenancy agreement (the right to a dwelling).
The satisfaction of a citizen's housing needs is ensured not by a complex subjective law, but by a complex of subjective rights that are different in nature and industry. A citizen, exercising his right to housing (as an element of state-legal relations), upon the occurrence of the relevant legal facts, becomes the subject of legal relations covered by the norms of civil and other branches of law.
The system of citizens' property rights to residential premises includes the following elements: (1) ownership; (2) the right of the legatee, andthe right to live for life as a kind of usufruct; and (3) the right to live together (the rights of family members of the owner of the dwelling).
The right to use the living quarters of the legatee and the right to live for life are limited real rights characterized by their identity to the owners of the rights (hence, their inalienability), the right to follow the living quarters, and the definition of their content in the legacy and contract. The material nature of these rights dictates the need to establish compulsory and not voluntary state registration for them.
Property rights to an apartment are covered by the category of property rights and are included in its system, since they generally have the same essential features as property rights in their usual sense (the absolute nature of rights, the direct domination of a person over a living space, the object is only an individually defined thing (residential premises), protection by means of property claims).
Meanwhile, property rights to residential premises have specific features, which is associated with the targeted nature of the use of residential premises. This feature of real rights to residential premises explains the establishment of a number of legislative limits and restrictions on the exercise of real rights to residential premises, which, in turn, makes it possible to determine the "measure of real legal power" 1 over a residential premises, which is provided and guaranteed to the owner and other owner of the real property. rights by the current legal order. At the same time, the establishment of such restrictions does not deprive the owners of their powers, this "is not a restriction of these rights" 2. “The reduction of property rights to an abstract triad of powers of ownership, use and disposal does not always characterize the real content of the powers granted to the owner. The point, therefore, lies not in the number and not in the name of the powers, but to the extent of the real legal power over their property, which is provided and guaranteed to the owner by the current legal order ”3.
The peculiarities of property rights to residential premises also include the fact that domination over a residential premises, the attitude to it as one's own, must necessarily be supported by an act of state registration.
Due to the above-mentioned features, the concept of real rights to an apartment should be defined as an absolute subjective civil law, which provides an authorized person with the possibility of direct domination over an individually defined thing (living quarters), the exclusive purpose of which is the residence of citizens, as well as the possibility of removing everyone from this thing. other persons through the use of the powers established by law, protected by real claims. 4
In the paragraph under consideration, among the property rights, the right of ownership and other property rights to living quarters are distinguished, the essence of which is to use not one's own, but someone else's living quarters. The distinguishing features of other property rights to residential premises include: use of someone else's residential premises; productivity and their dependence on property rights; limited nature of other property rights; predetermination of the nature and content of other property rights directly by law.
Having determined the distinctive features of other real rights to residential premises, taking into account the belonging of limited real rights to the general category of real rights, the author suggests that under limited real rights to residential premises we understand the absolute civil right registered in the manner prescribed by law in a limited, precisely defined by law relation, use someone else's residential premises in their own interests without the mediation of the owner.
Having systematized the existing types of property rights to residential premises, we can single out the system of property rights to residential premises in relation to an apartment, which includes the following elements:
1) ownership
citizens into apartments as living quarters, which provides the authorized person with the maximum permissible domination over the thing;
2)
the right of the legatee and the right of life-long residence, allocated due to the specifics of their content, as varieties of usufruct
;
3) the right to live together
, including the rights of family members of the owner of the apartment. The apartment is used by living in it. This residence, however, can have a different character, namely: independent, based on the person's own property right to the given premises, or derivative, that is, based on someone else's property rights to the living space, as well as the facts of belonging to the family of the owner of an independent property. rights and cohabitation with the latter. Hence the type of property right to a dwelling - the right to live together or housing rights of family members.
The second and third elements that make up the system of property rights to apartments are united by their common belonging to other property rights of citizens to living quarters.
The economic meaning of this category of rights is the ability to use the apartment, use it directly for living. In the author's opinion, since the exercise of the right to use an apartment occurs through living in it, no additional concepts should be introduced, including the right to reside.
List of used literature
The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) (taking into account the amendments introduced by the Laws of the Russian Federation on amendments to the Constitution of the Russian Federation dated December 30, 2008 No. 6-FKZ and dated December 30, 2008 No. 7-FKZ) // Russian newspaper... - December 25, 1993
The Water Code of the Russian Federation of June 3, 2006 as amended by FZ No. 74-FZdated December 27, 2009 No. 365-FZ // SZ RF. 2006. No. 23. Art. 2381.
Civil Code of the Russian Federation. Part 1 of November 30, 1994 (as amended by Federal Law of June 29, 2009 No. 132-FZ, of July 17, 2009 No. 145-FZ, as amended by Federal Laws of July 24, 2008 No. 161-FZ, of July 18 .2009 No. 181-FZ) // SZ RF. - 1994. - No. 32. - Art. 3301.
Civil Code RF. Part 2 of January 26, 1996 (as amended by the Federal Law dated 09.04.2009 No. 56-FZ, dated 17.07.2009 No. 145-FZ) // SZ RF. - 1996. - No. 5. - Art. 410.
The Housing Code of the Russian Federation of December 29, 2004 No. 188-FZ as amended by Federal Law of June 03, 2009 No. 121-FZ // Rossiyskaya Gazeta. January 05, 2005
Agafonova N.N. The right of private ownership of citizens to an apartment: Author's abstract. dis ... cand. jurid. sciences. M., 1994.
Civil law. In 2 hours. Part 2. Law of Obligations / Ed. V.V. Zalessky. - M .: MTK "Eastern Express", 2010.
Civil law / Otv. ed. E.A. Sukhanov. T. 2.M., 2010.
Mattei U., Sukhanov E.A. Basic provisions of property rights. M., 2009.
Sedugin P.I. Housing Law: Textbook. M .: INFRA-M-NORMA, 2007.
The importance and relevance of this topic lies in the fact that property rights as an exclusive right and economic category play a very important role in the life of a person of the society of the state. The stability of property relations is extremely important for the state of society and each individual person. That is why research into the problems of property rights in the light of the market transformations taking place in Russia in the process of market reforms, which are far from being recognized yet, is of particular importance both from a theoretical and practical point of view ...
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PAGE \\ * MERGEFORMAT 3
Introduction
Today, property relations are governed by the norms of various branches of law. Property, according to the Civil legislation of the Russian Federation, is the relationship between people, groups of people regarding the appropriation of things. Everyone has the right to property in order to dispose of it, namely, to determine its fate (exchange, sell, mortgage and even destroy).
The importance and relevance of this topic lies in the fact that property rights as an exclusive right and an economic category play a very important role in the life of a person, society, and state. It is the most important legal means by which the subjects of civil law satisfy their needs. The stability of property relations is extremely important for the state, society and each individual person. That is why, from both theoretical and practical points of view, studies of the problems of property rights in the light of what is happening in Russia, in the process of market transformations, which are still far from complete, acquire special significance.
The purpose of this work is to study all aspects and issues, as well as the mechanism for the implementation and regulation of citizens' property rights. The subject of the research will be civil law norms that regulate and ensure the implementation of citizens' property rights.
The stated goal defines the research objectives such as:
1. To study the concept of property and property rights of citizens, to study general provisions from the point of view of civil law.
2. Consider the subjects and objects of property rights of citizens.
3. Examine the limits of the exercise of the right of common property.
The solution of these problems predetermined the direction of this work, its structure and the range of issues studied in it.
The work corresponds to the set goals and objectives and consists of an introduction, chapters of the main part, conclusions (conclusions), a list of references.
The first chapter gives general concepts about property rights, defines what property rights are.
The second chapter explains what the subjects and objects of property rights of citizens are, as well as the limits of the exercise of property rights of citizens.
Chapter 1. General provisions on ownership
- Content and concept of ownership
Everyone has the right to own property, own, use and distributeabout dress it up both individually and together with other persons1 .
The owner has the right, at his discretion, to perform any actions in relation to the property belonging to him that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of others, including alienate their property into the ownership of others, transfer to them, while remaining the owner, the rights of ownership, use and disposal of property, pledge property and burden it in other ways, dispose of it in a different way ...
Ownership, use and disposal of land and others natural resources to the extent that their circulation is permitted by law, are carried out by their owner freely, if this does not harm the environment and does not violate the rights and legitimate interests of others.
The owner can transfer his property into trust to another person (trustee). The transfer of property to trust does not entail the transfer of ownership to the trust manager, who is obliged to manage the property in the interests of the owner or a third party indicated by him.
Property law is an integral part of the civil legislation of any developed state. An analysis of these articles allows us to single out a number of distinguishing features of real rights under Russian law:
A) the range of rights in rem, in contrast to those of obligation, is exhaustively named by the law itself (Articles 209, 216 of the Civil Code of the Russian Federation). A person does not have the right to create new types of property rights at his own discretion. On the contrary, a party to an obligation may, according to Art. 8 of the Civil Code to enter into transactions, both provided for and not provided for by law, but not contradicting it2 .
In addition to property rights and rights listed in Art. 216 of the Civil Code of the Russian Federation, property rights also include the right of pledge (Article 334 of the Civil Code of the Russian Federation); the rights of family members of the owner of a dwelling (Article 292 of the Civil Code of the Russian Federation); the right of an institution to dispose of property obtained as a result of permitted economic activity (Article 298 of the Civil Code of the Russian Federation);
Real law, in contrast to obligation law, is a kind of absolute law, i.e. its owner (the right of ownership, the right of economic management, etc.) is opposed by an unlimited number of subjects obliged not to violate his right to a thing. The owner of the right of obligation is opposed by a circle of persons limited by the relationship of obligation, and only they, strictly speaking, are obliged not to violate his right (passenger - carrier, customer - service provider, etc.);
The owner of the property right has the right to follow. It means that the owner of the property right continues to retain it even when the thing is transferred to a new owner. For example, the owner of a thing that has retired from possession against his will continues to be the owner and has the right to claim the thing from someone else's illegal possession (Article 301 of the Civil Code of the Russian Federation, with the exception of cases provided for by Article 302 of the Civil Code of the Russian Federation). The same can be said in the case of the transfer of ownership of the pledged property, when the right of pledge in respect of the property is also preserved (Article 353 of the Civil Code of the Russian Federation). The general rule that the transfer of ownership of property to another person is not a basis for the termination of other property rights to this property is enshrined in paragraph 3 of Art. 216 of the Civil Code of the Russian Federation;
Most of the property rights (property rights, economic management, permanent (indefinite) use of a land plot, etc.) are unlimited. Such their character is explained by the nature of the real right, the ability of the owner of this right to satisfy his needs, first of all, through unlimited disposal of the thing in his personal interests. Only certain property rights, for example, the right of pledge, imply urgency at the time of their occurrence;
A distinctive feature that makes it possible to distinguish a real right from other absolute rights (to a name in copyright, to life, freedom of movement, etc.), as well as from rights of obligation, is its object. The object of real rights is individually defined property. Things determined by generic characteristics, as well as various intangible benefits (see Chapter 8 of the Civil Code of the Russian Federation) are not objects of property rights.
This, in particular, explains the existence of specific methods of protecting property rights. For example, the possibility of recognizing the right (property, economic management) to an individually - definite thing (car, etc.).
In section II of the Civil Code, dedicated to property rights, individually - defined property is understood as material things (machine, furniture, etc.), and in some cases property rights.
Securities that have a documentary form and have individually defined characteristics are also objects of ownership and other property rights. Moreover, according to Art. 28 and 29 of the Law on the Securities Market, the objects of these rights are themselves securities, but not the rights enshrined by them. Uncertified securities are not subject to property rights.
Speaking about property rights, it should be noted that the subject of pledge, with certain exceptions, can be any property, including rights or claims. According to Art. 132 of the Civil Code of the Russian Federation, an enterprise as a property complex and, therefore, an object of property rights can also include not only the things themselves (land plot, buildings, machines, etc.), but also property rights - the rights of claim.
Monetary funds (money), on the contrary, can be recognized as objects of real rights only in exceptional cases when their individual character is beyond doubt (collection of coins, banknotes, etc.). In particular, non-cash funds held in the bank under the bank account agreement are not the property of the owner, but represent the obligation of the latter to claim against the bank. In another case, the Presidium of the Supreme Arbitration Court of the Russian Federation came to the conclusion that, since one of the essential features of a pledge agreement is the possibility of selling its subject matter, and funds do not possess this feature, the latter cannot be pledged.
The division of things into movable and immovable is practically important from the point of view of state registration of real estate. With the moment of such registration, the Civil Code of the Russian Federation connects the transfer of property rights from one owner to another3 .
The ownership right is fundamental (initial) among other property rights. All other rights (the right of economic management, the right to life-long inherited ownership of a land plot, etc.) are derived from it and are limited property rights.
Ownership can be viewed in an objective and subjective sense. In the first case, we are talking about a legal institution - a set of legal norms, a significant part of which, having a civil law nature, is included in the sub-branch of real law.
However, the institution of property law includes not only civil law norms. It covers all the norms of law that secure, regulate and protect the ownership of material goods to specific individuals. These, therefore, include not only the relevant norms of civil law, but also certain prescriptions of a constitutional and administrative-legal nature, and even some criminal legal rules, establishing the ownership of property to certain persons, securing for them the known possibilities of its use and providing for legal methods of protecting the rights and interests of owners. In other words, property right in the objective sense is not a civil law, but a complex (diversified) institution of law, in which, however, civil law rules prevail. These latter are collectively covered by the concept of property rights as a civil legal institutionincluded in the total, unified system civil law.
In the subjective sense, the right to property, like any subjective right, is the possibility of certain behavior permitted by the law for an authorized person. From this point of view, it represents the broadest real right in content, which makes it possible for its owner - the owner, and only him to determine the nature and directions of use of his property, exercising complete economic domination over it.4 .
Chapter 2 General provisions on the ownership of citizens
2.1. The concept of property rights of citizens
The property of citizens as a socio-economic category. In order to live, every person must at least to a minimum extent satisfy his material and spiritual needs - for food, clothing, housing, education, which would give him the opportunity to adapt to the current conditions of production and exchange, medical care, mastering the achievements of culture, etc. etc. The members of society satisfy the main of these needs at the expense of the share of the social product that goes into their property and which they own, use and dispose of at their own discretion and in their own interests, eliminating all other persons from interfering in the economic sphere assigned to them as owners. domination over their property.
In the pre-perestroika period, the principle of distribution according to work was proclaimed as the main principle of society, and the right to work was enshrined among the most important socio-economic rights of citizens. The exploitation of man by man was forbidden, and socialist forms of ownership of the means of production reigned supreme. The main source of citizens' property, which was called personal, was the application of their labor to the socialized means of production. From the aggregate social product to citizens, on the basis of the principle of distribution according to work, a certain share of this product was allocated to personal property, due to which their needs were mainly satisfied. Along with this, one of the most important sources of replenishment of personal property was payments from public consumption funds in the form of benefits, pensions, and scholarships. The satisfaction of the needs of citizens was also ensured through free medical care, low payment for housing, utilities, transport, information and other services, maintaining at a socially affordable level of prices for basic foodstuffs, clothing, medicines, etc.
The current Constitution of the Russian Federation does not enshrine either the right to work or the principle of distribution according to work, which reflects the realities in which our society functions. At the same time, it is proclaimed that everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Freedom of creativity is guaranteed.
Accordingly, both the sources of formation of citizens' property, which is now called private, and the forms of its manifestation have undergone significant changes. The main sources of formation of the property of citizens are now their labor as employees and their own economic activity. From the latter, in turn, stands out entrepreneurial activity, i.e. an independent activity carried out at its own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity. Entrepreneurial activity can be carried out both without the use and with the use of hired labor.
Taking into account the foregoing, the private property of citizens now appears in the following forms: property of citizens, the source of which is their labor as hired workers, regardless of the sphere of economy and culture and whose means of production this labor is applied; their work as general partners in a full or limited partnership or as members of a production cooperative; property, the source of which is its own economic activity, not aimed at making a profit; property, which is formed by entrepreneurial activity based on one's own labor; property, which is formed through entrepreneurial activity based on the involvement of hired labor. In turn, the latter type of entrepreneurial activity can proceed both without education, and with the formation of a legal entity.
At the same time, there are no obstacles in the law for the transition from one type of private property to another; moreover, such a transition is encouraged, since labor and capital should rush to where they can bring the greatest economic and other social effect.
Of course, even in the current conditions, both general social and general civil methods of forming the property of citizens cannot be disregarded.5 ... The former include benefits and payments from public consumption funds, humanitarian aid from abroad and at the expense of charitable foundations, etc .; among the second - interest on capital (for example, dividends on shares), inheritance, etc. The role and importance of the former, except perhaps for humanitarian aid, is declining in the context of the transition to the market, while the latter is increasing.
Note also that the property of one person is formed, as a rule, from not one, but several sources. For example, a citizen as a pensioner receives a pension, as an employee - wages, as a shareholder - dividends, as a person running a subsidiary farm on a land plot in a suburban area - income from his own economic activity, not aimed at making a profit.
Citizens' property as a legal category. Property relations receive legal expression both in the system of legal norms that form the institution of property law, as well as in subjective property rights, i.e. to the extent of the power that the law and other legal acts assign to the owner. The property of citizens is no exception. For legal regulation perestroika period is characterized by the emancipation of the property of citizens from the numerous fetters that previously tied it6 .
The principle of the permissible orientation of civil law regulation is fully extended to the property of citizens, which was consolidated in the latest legislation... If earlier, when characterizing the property of citizens, the center of gravity was shifted to its consumer purpose, which corresponded to the legislation in force at that time, now no less attention is paid to the possibilities of this form of ownership as one of the means of increasing social wealth. The range of objects that can be owned by citizens has been drastically expanded, and their use is encouraged not only to meet the material and spiritual needs of the owner himself, but also to make a profit.
Moreover, many of them, by their functional purpose, are designed precisely to bring profit to the owner. The definition of property rights as a legal institution and as a subjective right is fully applicable to the property right of citizens. Let us only emphasize that the principles of inviolability of property, the inadmissibility of arbitrary interference by anyone in private affairs, the unimpeded exercise of civil rights, the equality of protection of all forms of property and the restoration of violated rights, enshrined both at the constitutional level and at the level of sectoral legislation, have for private property citizens of particular importance. Perhaps the most important thing is to protect the property of citizens from arbitrary interference by the authorities state power and local government... It is equally important to give the private property of citizens a civilized look, to direct its development in such a way in which it would fully ensure the satisfaction of the interests of the owner, including in the field of entrepreneurship, and at the same time would not be used to the detriment of the interests of society and other citizens, for example, in order to restrict competition and abuse a dominant market position.
2.2 Subjects and objects of property rights of citizens
At first glance, the answer to the question about the subject of citizens' property rights is extremely simple: the citizen acts as such. The point, however, is that a citizen as a subject of property rights acts in different legal qualities. In some cases, we are faced with an employee, in others - individual entrepreneur, thirdly, an entrepreneur posing as a legal entity, etc. All this cannot but affect the position of a citizen as a subject of property rights. Let's pay attention to the fact that a citizen can engage in entrepreneurial activity only by being registered in the manner prescribed by law. Therefore, all cases when a citizen as an owner introduces his property into civil circulation should be divided into two groups. The first should include those when the citizen's performance as the owner of registration does not require registration, the second should be those when such registration is required7 .
Cases when the act of a citizen as an owner does not require registration. If we proceed from the classification of the types of private property of citizens, which was previously given, then it can be argued that registration is not required if a citizen acts as an employee, as well as a person who is engaged in economic activities that are not systematically aimed at making a profit. In this case, a citizen may own property that is subject to special registration (for example, real estate)8 .
He may also conclude transactions subject to registration (for example, privatize the dwelling he occupies). Moreover, his farm can be registered.
So, in the housekeeping book of a local self-government body, the subsidiary farm of a citizen living in a rural area is registered. However, in all these cases, a different meaning is put into the concept of registration, and it refers either to the property belonging to the citizen, or to the transactions made by him, but not to his activity as an owner, and to the activity as such. In these cases, the owner of the relevant property continues to be the citizen himself and no doubling of the subject of law occurs.
Cases when the act of a citizen as an owner requires registration. Registration is required in cases where a citizen, acting in civil circulation as an owner, is engaged in entrepreneurial activity. Let us recall that these cases, in turn, are reduced to three: when a citizen is engaged in entrepreneurial activity based on his own labor; when a citizen is engaged in entrepreneurial activity involving hired labor, but without forming a legal entity; when a citizen is engaged in entrepreneurial activities involving hired labor on the basis of the formation of a legal entity9 .
In the first two cases, as in those when registration is not required, the doubling of the subject of the right does not occur. Registration is aimed at establishing control over the legality of entrepreneurial activity and ensuring the receipt of taxes in the treasury.
The last case needs an explanation, when a citizen is engaged in entrepreneurship, having created a legal entity independently or with other persons. In this case, the legal entity itself becomes the owner of the property that the citizen has allocated to the legal entity, even if he single-handedly established it, and the citizen has obligations in relation to it. This is where the doubling of the subject of law takes place, and the citizen himself may be interested in this, who, as a general rule, is not responsible for the obligations of a legal entity established by him and in the event of a financial collapse only risks losing the property that he has in this legal entity invested.
In a market economy, fundamental changes have undergone the legislator's approach to determining the range of objects that may be owned by citizens. The property of citizens, in accordance with its consumer purpose, extended mainly to consumer goods, and their number was often limited. As for the means of production, a citizen could only own small means of production, and their use with the involvement of hired labor, as a rule, was not allowed. Now the situation has changed radically. Starting with the laws on property, adopted at the all-Union, and then at the republican level, the rule-making bodies took the path of removing the restrictions that existed in this regard. And this is quite understandable, since nowadays citizens are strongly encouraged to use their property not only for consumption, but also for business purposes, which, in turn, has led to the abandonment of attempts to close the property of citizens almost exclusively to consumer goods.
In the new civil legislation regarding the range of objects, the owners of which can be citizens, the following fundamental provisions are enshrined. Firstly, citizens can own any property, with the exception of certain types of property, which, in accordance with the law, cannot belong to them. Secondly, the number and value of property that can be owned by citizens is not limited, except in cases where such restrictions are established by federal law. Recall that these restrictions can be established by law only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of others, to ensure the country's defense and state security.
It should be emphasized that the classification of certain types of property as such that cannot belong to citizens at all, as well as the establishment of restrictions on the quantity and value of property that can be owned by citizens, can only be provided by law. In other legal acts, including presidential decrees and government decrees, these issues cannot and should not be resolved, which is a guarantee for the owner, to some extent ensuring the stability of his property status and the unhindered exercise of his rights.
Legal regime of objects of property rights of citizens. These objects can fall under both general and special legal regime. If a special legal regime is not established for objects owned by citizens in the laws and by-laws issued by the relevant authorities within their competence, then they are subject to the general regime. This means that in relation to these objects there are no special rules that citizens must observe, and that when exercising their rights to them, they should not only go beyond those general limits that are outlined in paragraph 1 of Art. 10 of the Civil Code of the Russian Federation. It is clear, for example, that the law prohibits the so-called chicane actions, regardless of whether the owner commits them with the help of property falling under the general or special legal regime.
The situation is more complicated with property in respect of which a special legal regime has been established. It covers a wide range of properties. First of all, for real estate - land plots, residential buildings, perennial plantings, etc. Property rights to the said property, as well as transactions with it, are subject to state registration. Certain types of real estate are also subject to special registration (for example, sea vessels). Special rules have been established for the acquisition of rights to objects related to real estate. So, registration of rights to a land plot is preceded by its allotment. For the construction of a residential building, in addition to the allotment of the site and registration of the right to it for the developer, the approval of the project for the construction of the house, obtaining a building permit, compliance with a number of land management, fire prevention, sanitary, environmental, construction and other rules and regulations are required. And after acquiring the rights to real estate in accordance with the law, the owner has a number of duties and encumbrances. Among them is the payment of real estate tax. A special legal regime also applies to non-real estate objects. These are vehiclessubject to special registration, weapons, the acquisition of which requires a special permit, potent poisons that can be used for medicinal, scientific and industrial purposes, and a number of other objects whose turnover is limited. The special treatment of these objects is expressed in special rules for their storage and accounting, in the prohibition to transfer them to anyone else without proper permission, in observing special precautions when handling them. A special legal regime applies to productive and working cattle and other domestic animals (observance of veterinary and sanitary rules for their maintenance, rules for the improvement of settlements, etc.).
Due to the fact that an increasing number of citizens become participants in business partnerships and companies, act on the securities market, they own a lot of shares and other securities that certify their participation in the relevant partnership (company) and give the right to receive profit (dividend ). Their circulation is subject to special rules, and in this sense they also fall under a special legal regime.
In cases where a citizen is denied permission to acquire any property and the certification of rights to it, a restriction is imposed on the property of an encumbrance, and obstacles are posed in the exercise of rights to it, the citizen can apply to the court with a complaint against government agencies, local authorities and their officials.
2.3 The limits of the exercise of property rights of citizens
The actions of a citizen regarding the appropriated property can be aimed both at personal consumption and at using it in entrepreneurial activities with the goal of systematic profit. It should be noted that the scope of actions included by the legislator in the powers to own, use and dispose of property belonging to a citizen is the same as for other subjects of civil law. Difference in legal status of a citizen-owner from other subjects of property rights is that the volume of the property legal capacity of a citizen is different from the volume of property legal capacity of other persons participating in civil turnover. As a result, there are a number of transactions, one of the parties in which can only be the owner. For example, only the owner-citizen is recognized as the recipient of the annuity under a dependent lifelong maintenance agreement.
Under the limits of the exercise of property rights, it is necessary to understand the boundaries that are normatively established by the legislator on the amount of free ownership, use and disposal of the owner's property. There are some regulatory restrictions on the actions of the owner, which are introduced in the interests of observing the rights, protecting the health and legitimate interests of others, protecting environment, protection of morality, constitutional order, ensuring the country's defense and state security10 .
The amount of property that can belong to a citizen by right of ownership is not directly limited in quantity and value by civil law. However, at the stage of assignment state regulation the amount of property that can come into the ownership of a citizen is carried out by means of taxation.
In the list of property included in the object of taxation, the legislator included such items as houses, yachts, jewelry, vehicles, land plots, securities. At the same time, means of production, such as machines, equipment, objects of labor (raw materials, semi-finished products), are not subject to these types of tax. At the same time, a list of things has been established about which the scope of actions of the owner-citizen is limited. These restrictions relate primarily to actions for the acquisition and termination of property rights.
A number of restrictions have been established by the legislator on the actions of the home owner. It is not allowed to change at the free discretion of the owner of the intended purpose of the premises by transferring it from residential to non-residential. The ownership of an apartment in an apartment building is closely related to the ownership of the common premises of a residential building.
Therefore, such an owner is deprived of the right to dispose of his share in the common property of a residential building separately from the ownership of the apartment.
The legislator imposes restrictions on the right to dispose of the owner of a residential premises in the presence of family members living together with the owner. Firstly, the owner does not have the right to alienate a dwelling without the consent of the guardianship and guardianship authorities, if minor family members live with him.
Secondly, the sale or other alienation of a dwelling by the owner does not entail the termination of the right of lifelong use of this room by his family members.
Conclusion
In my work, I examined the main aspects of the property rights of citizens.
Summing up, the following can be noted:
In order to live, each person must at least to a minimum extent satisfy his material and spiritual needs - for food, clothing, housing, education, which would give him the opportunity to adapt to the current conditions of production and exchange, medical care, mastering the achievements of culture, etc. etc.
And that is why the study of property rights is necessary for any citizen, as well as for a lawyer, but not only from a professional point of view. We can all be participants in common and shared ownership as tenants, as spouses or as members of a peasant farm. Knowledge of all the rules, studying the nuances of regulation of property rights can be of great benefit in professional activity and in private life.
Like any legal rights, the rights to use and dispose of property objects, even for the owner, are not unlimited. They exist within the framework of the law and must be implemented in compliance with its requirements. Their implementation should not cause harm to other persons, should not pose a danger to others, violate their legal rights, and also requires compliance with the norms of morality, ethics, and community rules.
The members of society satisfy the main of these needs at the expense of the share of the social product that goes into their property and which they own, use and dispose of at their own discretion and in their own interests, eliminating all other persons from interfering in the economic sphere assigned to them as owners. domination over their property.
The property right of citizens, like many other rights, contains a number of positive and negative qualities.
The set goals and objectives have been completed.
Bibliographic description of sources
Alekseev S.S., Gongalo B.M., Murzin D.V. Civil law: textbook / S. S. Alekseev, B. M. Gongalo, D. V. Murzin. - 3rd ed., Revised and supplemented - M.: Prospect, 2012.- 576 p.
Alekseeva S. S. Civil law: tutorial / C ... S. Alekseeva. - 2nd ed., Rev. and add.- M.: 2013. - 528 p.
Belov V.A. Civil law: textbook / V. A. Belov. - M .: Yurayt, 2014.-512s.
Korshunova N. M., Ivanova V. I. Civil law: textbook /N. M. Korshunova , V.I. Ivanova. - M.: Unity, 2012 .-- 607 p.
Rassolova M.M., Alexia P.V., Kuzbagarov A.N.Civil law: textbook / M. M. Rassolova, P. V. Alexia, A. N. Kuzbagarov. - 4th ed., Revised and added. - M.: Unity, 2012. - 911 p.
Sadikov O.N. Commentary on the Civil Code of the Russian Federation / O. N. Sadikov. - M .: CONTRACT; INFRA-M, 2005 .-- 1013 p.
Chausskaya O.A. Civil law:study. allowance / O. A. Chausskaya. - 3rd ed., Rev. and add. - M.: Eksmo, 2011 .-- 472 p.
Civil law [Electronic resource]. - Access mode:http: // www. bibliotekar. ru / grazhdanskoe - pravo -3/258. htm / (date of access: 26.12.2014).
1 Constitution of the Russian Federation of December 12, 1993 // Russian newspaper. - 2014. - No. 6351.
2 Civil Code of the Russian Federation (Part One): Federal Law of November 30, 1994, No. 51-FZ // SZ RF. - 1994. - No. 32.
3 Sadikov O.N. Commentary on the Civil Code of the Russian Federation. - M .: Contract; Infra-M, 2005.S. 480.
4 Chausskaya O.A. Civil law: textbook. allowance. - Ed. 3rd, rev. and add. - M.: Eksmo, 2011 .-- S. 193.
5 Alekseev S.S. Civil law: textbook / S.S. Alekseev, B.M. Gongalo, D.V. Murzin. - Ed. 3rd, revised and supplemented - M.: Prospect, 2012. - p. 296.
6 Rassolova M.M. Civil law: textbook / M.M. Rassolova, P.V. Alexia, A. N. Kuzbagarov. - Ed. 4th, revised and add. - M.: Unity, 2012. - S. 139.
7 Alekseeva S.S. Civil law: textbook. 2nd ed., Rev. and add. - M.: 2013 .-- S. 183.
8 Korshunova N.M. Civil law part 1: study guide /N.M. Korshunova , IN AND. Ivanova - M.: Unity, 2012 .-- S. 154.
9 http://www.bibliotekar.ru/grazhdanskoe-pravo-3/258.htm
10 Belov V.A. Civil law: textbook. - M .: Yurayt, 2014 .- S. 214.
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In relation to himself ownership, such a document base is primary, therefore it is called title document to the apartment. It was he establishes the right a specific person for a specific property.
Grounds for the emergence of ownership of real estate
Since an apartment can be obtained in own in several ways, then grounds there may be several.
Founding documents the emergence of ownership of an apartment may be:
- Home ownership transfer agreement (in case the apartment was);
- Contract with the Developer, or Agreement on assignment of rights of claim (if the apartment was purchased on);
- Contract of sale, or Barter agreement (if the apartment was bought on);
- Certificate of the paid share (if a);
- Inheritance certificate (if a);
- Gift agreement(if a);
- Property division agreement (if the apartment was received as a result of a voluntary division);
- The court's decision (if the property of spouses, heirs or other applicants was divided by court);
- Sale and purchase agreement and mortgage (if the apartment was purchased with bank borrowed funds);
- Lifetime maintenance contract with dependents (if the apartment was received under).
Everyone is like that a document base shows the Buyer in which area of \u200b\u200blaw to look for answers to questions about the "legal cleanliness" of the apartment.
Citizens' property rights. Concept.
Ownership is a set of rules that regulate relations for the exercise of the right to own, use and dispose of property.
The right to possession is the ability of the owner to actually possess the property, to consider it his own, the legally secured possibility of economic domination over the property.
The right to use is a legally guaranteed possibility of extracting useful properties from the property used.
The right to dispose - the ability of the owner to perform legally significant actions with the property (to give, sell, change, etc.).
Citizens' property rights. Content.
The owner of the property has the right, at his will, to perform any actions with him that do not contradict regulatory enactments and do not violate the rights, legitimate interests of others. The owner may derive any benefits from the property, may not use it, or may even damage or destroy it. Ownership can be expressed in several forms: private, state and municipal.
An independent type of private is the ownership of citizens. A citizen is the private owner of his property. A citizen can use the property assigned to him, both for personal consumption and for entrepreneurial activity, which is aimed at obtaining property benefits. Citizens can own any, with the exception of those withdrawn from circulation and limited in circulation. Moreover, there are usually no restrictions on the quantity. Citizens' property rights apply to both movable (table, sofa, TV, computer, car, etc.) and immovable (cottage, house, apartment, etc.) property. At the same time, for real estate and for some movable property, there must be a document confirming the ownership. On the basis of this document, the subsequent property can be disposed of, receive any insurance payments, or, if necessary, confirm the ownership. Often, a document that confirms ownership of an existing real estate must be
The main document governing the property rights of citizens is the Civil Code. Any disputes arising out of ownership rights will be resolved in accordance with this regulation. If they (disputes) cannot be settled on their own, there is an opportunity to contact civil order to court. In case of theft of your property, you can contact the authority
2) General civil: donation, inheritance, interest on capital, etc.
Property rights individuals - one of the most important institutions in our life, since each of us owns movable, and many also have real estate. The protection of property rights is one of the most important tasks facing the state.