Correlation of concepts of formation of the emergence of property rights. The emergence of property rights. Acquisition methods. Acquisition of ownership by transaction
!!! Check out the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated 04/29/2010 "On some issues arising in judicial practice when resolving disputes related to the protection of PS and other property rights" http: //www.consultant .ru / document / cons_doc_LAW_100466 /
5.1. Grounds for the emergence (acquisition) of property rights- legal facts that give rise to rights, in accordance with the law entailing the emergence of ownership rights to certain property in specific persons.
The grounds for the acquisition of ownership are also called title deeds.. Title Ownership- this is the possession of a thing based on any right (legal basis, or title) arising from the corresponding legal fact, for example, the right of ownership based on a contract of sale of a thing or on its transfer by way of inheritance.
Titleless (actual) ownership does not rely on any legal basis, although under the conditions established by law it can also entail certain legal consequences.
5.2. Classification of the grounds for the acquisition of property rights:
1. Depending on the availability of legal succession -
1.1 initial, i.e. not dependent on the rights of the previous owner to the given thing (including cases when such an owner did not previously exist at all);
The initial methods of acquiring property rights include:
· Creation (manufacturing) of a new thing, to which no one’s ownership right was and could not be established earlier;
· Processing and collection or extraction of things generally available for these purposes;
· Under certain conditions - unauthorized construction;
· Acquisition of the right of ownership to ownerless property, including property that the owner refused or for which he lost his right.
1.2 derivatives, in which the ownership of the thing passes to the owner from his predecessor (most often - by agreement with him).
Derivative methods of acquiring property rights the acquisition of this right applies:
· On the basis of an agreement or other transaction on the alienation of a thing;
· By way of inheritance after the death of a citizen;
· In the order of succession in the reorganization of a legal entity.
The practical significance of such a distinction is that in derivative methods of acquiring ownership of a thing, it is necessary to take into account the possibility of the existence of the rights of other persons - non-owners to the same thing (for example, a mortgagee, a lessee, a subject of a limited real right).
Thus, the distinction between the original and derivative methods of acquiring ownership comes down to the absence or presence of legal succession, those. transfer of rights and obligations from one person (the original owner of the thing) to another (successor, new owner).
Tolstoy, Sergeev think, that such a classification is carried out according to 2 criteria- in their opinion, " As for the criterion for distinguishing between the initial and derivative methods of the emergence of property rights, in some cases, preference is given to the criterion will, in others - the criterion succession. This dispute has not only theoretical but also practical significance.... For example, supporters of the criterion of will unconditionally attribute nationalization, i.e. the conversion of property that previously belonged to individual individuals and legal entities into the ownership of the state, to the initial methods of the emergence of property rights, since the state, during nationalization, becomes the owner against the will of the previous owner. On the contrary, those who prefer the criterion of legal succession view nationalization as a derivative way of the emergence of property rights, since during nationalization there is legal succession (at least, succession in rights) ”.
2. Depending on the subject - property titles are subdivided into:
2.1 general;
Special.
General or general civil methods can be used by any subjects of civil law. Such are, for example, legal relations arising on the basis of various transactions.
Special the ways in which this right arises can be used only by strictly defined subjects. For example, requisition, confiscation, nationalization can serve as the basis for the emergence of only state property, and the collection of taxes and duties - also for municipal property. In accordance with paragraph 4 of Art. 218 of the Civil Code of the Russian Federation a citizen as a member of a consumer cooperative who has fully paid a share contribution for the object provided to him by the cooperative (residential apartment, garage, summer cottage, etc.) becomes the owner of such property . A special way of the emergence of private property of citizens and legal entities is also the privatization of state and municipal property (Article 217 of the Civil Code of the Russian Federation).
Tolstoy, Sergeev believe that in many cases the emergence of property rights in one person is accompanied by its termination in another, and vice versa. This circumstance is also taken into account by the legislator.(see, for example, clause 2 of article 218 and clause 1 of article 235 of the Civil Code of the Russian Federation).
Civil law contains an extensive list of ways for a person to acquire the right to things. These methods by their nature represent various legal facts, the presence of which, along with an indication of such a possibility in the law, is associated with the emergence of a person's subjective right of ownership to a specific thing.
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Methods for Terminating Obligations.
Execution of obligations.
Concept and types of obligations.
Forms of ownership.
Grounds for the emergence and termination of ownership.
The concept of property rights. Content of ownership.
Ownership and other property rights. Basics of Law of Obligations
LECTURE number 8
Ownership is one of the types of property rights.
Objectively real right is a set of legal norms that secure the ownership of things (property) to the subjects of real rights, regulating the powers of these subjects over things and establishing responsibility for their violations. The concept of "real right" has a long-standing origin and is associated with the word "thing", which was previously understood as an object of nature or a product of labor with physical, chemical, biological, mechanical and similar properties, i.e. natural form. In a subjective sense a real right is the right of a specific person, securing the belonging to this person of specific real powers and formulating the protection of these specific rights.
The types of property rights are enshrined in Art. 217 of the Civil Code of the Republic of Belarus. These include:
· ownership;
· The right of economic management and the right of operational management;
· The right to life-long inheritable ownership of a land plot;
· The right to permanent use of a land plot and the right to temporary use of a land plot;
· Easements.
As for the property right, it appears later than property as an economic category, i.e. property precedes property rights and is associated with the need to protect property.
The right of ownership, regulating social relations, fixes in its norms the possession of material goods (objects, property), their belonging to specific owners, and also provides for the conditions and procedure for acquiring property into ownership, the ability to own, use and dispose of it in relation to one or another social economic formation. For these purposes, a special apparatus is being created, aimed at protection, observance of property rights.
Unlike economic property relations, ownership characterized as a certain system of legal norms established by the state in order to regulate economic relations of property, i.e. the belonging (appropriation) of material goods is fixed not economically, but with the help of the rules of law ... In this understanding, property rights are indefinite.
The owner has the rights to own, use and dispose of his property.
Possession- this is a legally secured possibility of economic domination over a thing, the ability to have this property, to keep it in your own economy (to be counted on the balance sheet). As a rule, the owner is the entity in whose economy the thing is located. However, the right of ownership may also belong to the non-owner, in particular on the basis of a contract.
Use- based on the law, the possibility of exploitation, economic or other use of property by extracting useful properties from it, its consumption for production and personal needs. It is closely related to the right of ownership, since the owner can use his property only if he simultaneously owns it. The use is based on the law and is protected by it.
Order means the possibility of determining the legal fate of property by changing its ownership, state or purpose (in the form of alienation by agreement, inheritance, destruction, etc.) This is the most essential right of the owner, since it is not the owners who can own and use the property. The owner exercises the powers of possession, use and disposal of his own free will, in accordance with the legislation, while other persons can exercise them depending on the will of the owner.
The owner, at his discretion, has the right to perform any actions in relation to the property belonging to him that do not contradict the law, public benefit and safety, do not harm the environment, historical and cultural values and do not infringe on the rights and interests of others protected by law, including alienate his property in the ownership of other persons, transfer to them, while remaining the owner, the rights of possession, use and disposal of property, pledge property and burden it in other ways, as well as dispose of it in a different way (clause 2, article 210 of the Civil Code of the Republic of Belarus).
The owner can transfer his property into trust to another person (trustee). The transfer of property into 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.
The owner has certain responsibilities. He bears the burden of maintaining his property, the risk of accidental death, accidental damage or accidental damage to property. The owner cannot go beyond the exercise of civil rights established by Article 9 of the Civil Code of the Republic of Belarus.
Depending on the nature of the grounds, there are initial and derivative methods of acquiring property rights. The initial methods of acquisition take place in cases where ownership of property arises for the first time or independently of the will of the previous owner. At derivatives In this way, the new owner obtains his right to the thing through the expression of the will of the previous owner of the given thing.
Initial ways acquisition of property rights:
1) making or creating a new thing for yourself in compliance with the law.
2) the emergence of ownership of derivative things (things that appeared as a result of the use of other things - fruits, products, income). They can belong to both the owner and another person using this property legally.
3) the emergence of the right of ownership of a building, structure and other newly created immovable property. The right of ownership to such property arises from the moment of completion of the creation of this property, and if real estate is subject to state registration - from the moment of registration.
If a thing is created by a person from his materials, then such a person becomes the owner of this thing. If the thing is made from materials belonging to another person, the ownership of the created thing may belong either to the manufacturer or to the owner of the materials.
4) the right of ownership to a movable thing made by a person by processing materials that does not belong to him is acquired by the owner of the materials. However, if the cost of processing significantly exceeds the cost of materials, the ownership of the new thing is acquired by the person who, acting in good faith, carried out the processing for himself. If the owner of the materials has the right of ownership of the manufactured thing, he is obliged to reimburse the cost of processing to the person who performed it, and in the case of the acquisition of the right of ownership to the new thing by the person who made it, he is obliged to reimburse the owner of the materials for their value.
5) the basis for the acquisition of ownership is the collection of berries, fishing, collection and extraction of other publicly available things and animals, in cases where, in accordance with legislation, a general permit given by the owner or in accordance with local custom, this is allowed in forests, water bodies or on other territory. The right of ownership to the relevant things shall be acquired by the person who collected or extracted them.
6) a kind of manufacture (creation) of a thing is the implementation of the construction of immovable property. Ownership of such property arises from the street who carried out the construction for himself, or from the customer who commissioned the construction to be carried out by another person. Ownership of the constructed object arises only if the legislation applicable to construction work is observed. Violation of such requirements should exclude the possibility of the emergence of ownership of the result of construction. The person who carried out the unauthorized construction does not acquire the right of ownership to it and the person undertakes to demolish the unauthorized construction or bring it to its previous state (Article 223 of the Civil Code of the Republic of Belarus).
7) in the order of the initial method, the right of ownership is acquired for things that for one reason or another have left the possession of the previous owner and do not have confirmation of their belonging to this or that person. The procedure for acquiring ownership of ownerless things is established by law, depending on specific situations - abandoned things, a find, neglected animals, treasure.
Finding is a found thing that has been removed from the possession of the owner, another legal owner (tenant, custodian), lost, forgotten, or mistakenly left with another person. The find does not become the property of the person who discovered it and must be returned to the rightful owner. The finder of the 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 these persons. If the place of stay of the person who has the right to claim the found thing is unknown, the finder of the thing is obliged to report the find to the police or to the local government or self-government body. If within 6 months from the moment of filing a find with the police or a local government or self-government body, the person entitled to receive the lost thing will not be identified and will not declare his right to the lost thing, the finder of the thing acquires the right of ownership to it. If the finder of the thing refuses to acquire it into ownership, the found thing goes into communal ownership.
The same relationship arises when a stray or wild cattle or other neglected domestic animals are found.
Treasure money or valuable objects buried in the ground or hidden in any other way are recognized, the owner of which cannot be established or, by virtue of an act of legislation, has lost the right to them. The treasure comes into the ownership of the person who owns the land plot, building, etc., where the treasure was hidden and the person who discovered the treasure in equal shares, unless otherwise established by an agreement between them. If the treasure was discovered by a person who carried out excavations or searches without the consent of the owner of the land plot or other property where the treasure was hidden, the treasure must be transferred to the owner of the land plot or other property in which the treasure was found. A person who has discovered a treasure containing things related to monuments of history and culture is obliged to transfer them into state ownership. In this case, the owner of the land plot where the treasure was hidden, and the person who discovered the treasure, is paid 50% of the value of the treasure. This rule does not apply to persons whose work or official duties included carrying out excavations and searches aimed at finding the treasure.
BULLETIN OF UDMURT UNIVERSITY
LAW 2007. No. 6
UDC 347 P.M. Khodyrev
CONCEPT AND TYPES OF BASES FOR THE ESTABLISHMENT OF OWNERSHIP RIGHTS
The concepts of the origin and acquisition of property rights, the relationship between the grounds and methods of origin of property rights are considered. Analyzed are the criteria and legal significance of differentiating the grounds for the emergence of ownership of the original and derivative.
Key words: property right, origin (acquisition) of property rights, initial methods of acquiring property rights, derivative methods of acquiring property rights.
At one time, M.M. Agarkov noted that "... in relation to real rights, the question of the basis of its origin is very often irrelevant and is not needed for the individualization of this particular right." This statement is due to the fact that, in contrast to rights of obligation, the content of real rights is determined directly by law. Therefore, the nature of the basis for the emergence of a real right cannot affect its content (and in this sense, individualization). Nevertheless, the need to establish the owner of the property, as well as to find out whether the acquisition of ownership by a specific person, has hardly required special justification. First of all, a clear and unambiguous definition of the owner, as well as the grounds and moment of origin of the property right, ensures clarity of the legal status of the subjects and, consequently, the stability of civil turnover. Moreover, since the title of owner is taken into account in relations regulated by the norms of other branches of law, the question of the emergence of property rights acquires cross-sectoral significance.
Recognition as the owner gives all those benefits that are associated with the possession of the right of ownership: the legally secured opportunity to own, use and dispose of a thing. The owner is charged with the burden of maintaining the property (Article 210 of the Civil Code of the Russian Federation, as well as the risk of accidental damage and accidental loss of property (Article 211 of the Civil Code of the Russian Federation). Accurate determination of the moment of acquiring ownership guarantees proper protection of the interests of creditors, as well as the fiscal interests of the state, so how it allows to determine the object-by-object composition of the property mass of the subject of law.
There are also more private grounds for establishing ownership. For example, as a general rule, it is the owner who has the right to pledge the thing (clause 2 of article 335 of the Civil Code of the Russian Federation). It is the owner who most often acts as the bearer of the insurable interest (clauses 1, 2, article 930 of the Civil Code of the Russian Federation). The ownership right as a property right provides the authorized person with specific means of protecting his interests related to the implementation of the powers of possession, use and disposal of property (Articles 310-304 of the Civil Code of the Russian Federation).
When considering the general issues of acquiring property rights, it is necessary to pay attention to the fact that in relation to property rights, the legislation operates with the terms "occurrence" and "acquisition". Based on the meaning of Art. 8 of the Civil Code of the Russian Federation ("Grounds for the emergence of civil rights and obligations"), property rights, being a subjective civil law, arise. However, Art. 218 of the Civil Code of the Russian Federation is already talking about the acquisition of property rights. What is the reason for this dualism and what is the relationship between the above concepts? They are often referred to as synonymous in the literature. However, opinions have been expressed about the need to distinguish between these concepts. So, V.P. Gribanov saw the reason for using the concept of "acquisition" in relation to property rights in the fact that most of the grounds for the emergence of property rights belong to the group of legal actions. Consequently, he considered the acquisition of law as a kind of the emergence of law, the specificity of which is that the emergence of law is the result of the objectification of the will of the subject in whom the right arises.
A similar conclusion was made by A.V. Lisachenko: “Any beginning of the existence of a new subjective civil law can be called the emergence of law: there was no law - it arose, regardless of the actions of the subject. Acquisition presupposes a process of will in its essence, the result of which is the beginning of the existence of law ”.
It seems that the stated position is based on a misinterpretation of the word “acquisition”, which for some reason is associated with the deliberate, purposeful actions of the acquiring person. The meaning of the word “acquire” is to become the owner, the owner of something, “to become” is to become, to move from one state to another. Therefore, the acquisition of ownership is a transition from a state in which a person was not the owner of a particular thing, to a state in which the same person is the owner of the thing. This transition is considered to have taken place at the moment when the acquirer has the right of ownership to the thing (“to arise” - to begin, form, originate). As you can see, when using the word "acquisition", the emphasis is on the subject of property rights itself, his condition as a non-owner and owner. We use the word "emergence" in relation not to the subject of law, but to the very subjective law that has appeared in the subject. Thus, the terms "acquisition" and "occurrence" describe the same phenomenon, but from different angles: a person acquires the right of ownership, but the right of ownership arises from the acquirer.
In the literature, there are different points of view regarding the delineation of the grounds and methods of acquiring property rights. It is generally accepted that the grounds for the emergence (acquisition) of property rights are legal facts or legal (factual) structures, in accordance with the law entailing the emergence of ownership rights to certain property from specific persons. Such facts are also called titles (Ііїиіш) of property. As for the methods of acquiring property rights, they are defined as “legal relations arising on the basis of relevant legal facts” (E.A. Sukhanov), “actual actions with which the law connects the emergence of the right to own
vechnosti "(L.V. Sannikova)," lawful actions aimed at acquiring. legal property relations "(V. A. Belov), the ideal models enshrined in the norms of law, describing what legal facts and in what sequence should take place for the appearance of an appropriate basis for the acquisition of property rights (A. V. Lisachenko), the mechanism for acquiring property rights," which is a complex legal structure, in which there is an expressed will of the person to become the owner of a specific thing, a legal fact defined in the law as the basis for the emergence of a right that establishes a legal connection of a person in a specific thing, and in some cases named in the law also the will of the previous owner to alienate the property of the new acquirer ”(AA Yakimov). Many scholars consider the terms "grounds for acquiring ownership" and "methods of acquiring ownership" as synonymous.
It seems that to define the concept of "methods of acquiring property rights" it is necessary to use the common meaning of the word "method", taking into account the focus on the legal result, that is, on the acquisition of property rights. In Russian, a method is understood as an action or a system of actions used in the performance of any work, in the implementation of something. Based on this, the methods of acquiring property rights should be considered legal actions of citizens and organizations aimed at acquiring the property rights of a person, including actions that directly generate property rights. Thus, methods in the legal sense are legal acts, first of all, transactions, while grounds are any legal facts (including events, actions).
Of course, legal doctrine and law can replace the commonly used meaning of words with a special legal meaning, if this is justified from a scientific or practical point of view. In this regard, it seems quite possible that the definitions of the methods of acquiring property rights, which are proposed by E.A. Sukhanov, A.V. Lisachenko, A.A. Yakimov. At the same time, one cannot agree with the understanding of the methods of acquiring property rights as actual actions (L.V. Sannikova, M.M. Popovich). For example, M.M. Popovich writes: “The grounds for the acquisition of ownership do not in themselves transfer ownership. Until a certain moment, this right remains with the alienator of the thing. Consequently, the emergence of the basis for the acquisition of ownership does not mean the transfer of ownership itself. In addition to the legal basis, it is necessary to perform certain actual actions, with which the law connects the onset of consequences. " But if actions entail, in accordance with the law, quite definite legal consequences, then they cease to be actual. Such actions are legal facts and, therefore, the grounds for the emergence of ownership. In this aspect, we believe that OA Krasavchikov's remark that any action, since it is only factual, that is, has no legal significance, never causes legal consequences, is correct.
Attempts to reveal the different semantic meanings of the words "basis" and "acquisition" of property rights, no doubt, are based on the well-known since the 18th century. the theory titulus et modus adquirendi. According to this theory, in addition to the legal basis (titu-lus), for example, a contract, one more legal fact is required for the acquisition of real rights - a method of acquisition (modus), for example, the transfer of a thing (traditio). Probably, taking into account this theory, pre-revolutionary civilists recognized it necessary to distinguish between the basis and the method of acquiring property rights. In this case, the basis for the emergence of the right of ownership was called a legal fact that gives rise to a relative legal relationship, within which the emergence of ownership occurs (for example, the sale and purchase agreement is the basis for the emergence of the buyer's right of ownership to the goods), and the method was the action that directly generates the right of ownership ( e.g. traditio). G.F. Shershenevich, like other Russian civilians, criticized the norms of Russian civil law, by virtue of which the contract was indicated as a way of acquiring property, noting that the contract of sale does not create property in itself, but is only the basis.
Classification of the grounds for the emergence of property rights, traditional for domestic civil law, divides the whole variety of these grounds into initial (originarii - original) and derivative (derivativi - derivative) grounds for acquiring property rights. This classification has not been consolidated in the current legislation. However, as noted by Yu.K. Tolstoy, it can be derived "by his doctrinal interpretation, to which civilistic science is called."
As for the criterion for distinguishing between the initial and derivative methods of the emergence of property rights, some scholars give preference to the criterion of will, others - to the criterion of legal succession. Supporters of the will criterion refer to the initial methods in which the property right arises independently of the will of the previous owner or for the first time, and to derivatives - those in which it arises at the will of the previous owner and with the consent of the new acquirer. Those who base the differentiation on the criterion of succession, refer to the initial methods based on which there is no legal succession (the emergence of ownership is not related to the right of another person to this property), and to derivatives - methods that rely on succession (ownership is acquired one person from another). This dispute has a long history. In most modern sources, preference is given to the criterion of succession, since it is this concept that makes it possible to justify the preservation of encumbrances on a thing when ownership arises on it.
The theoretical and practical significance of this classification is, as is known, in the fact that, depending on the method of acquiring property rights, the legal status of the acquirer is determined differently. If the right of ownership is acquired in a derivative way, then, since no one can transfer more rights to another than he himself has, the right is transferred to the new owner, with the exceptions established by law.
urine to the extent that they belonged to his predecessor, including with the corresponding encumbrances. D.M. Genkin outlined the practical importance of highlighting derivative methods briefly: "... shortcomings in property rights that the previous owner had, are transferred to the new owner." The encumbrances that can persist when the thing is transferred to a new owner are, first of all, those rights (of an obligatory or proprietary nature) of third parties to the thing that have a sign of succession (right of pledge, easement, right of residence, right of rent, etc.). For limited property rights, this feature is enshrined in clause 3 of Art. 216 of the Civil Code of the Russian Federation, for rights of obligation - in special norms of civil law (for example, Article 353 of the Civil Code of the Russian Federation, clause 1 of Article 617 of the Civil Code of the Russian Federation). If the ownership right is acquired in the original way, then since the new owner does not have a predecessor or his right arises regardless of the rights of the previous owner, he acquires powers to the extent that is established by the rules governing the ownership right.
The current legislation does not directly indicate which basis for the emergence of property rights is initial, and which is derivative, allowing scientists and practitioners to draw appropriate conclusions. This situation gives rise to disputes regarding the qualification of specific grounds for the emergence of property rights, in particular, nationalization, requisition and confiscation. In our opinion, the dependence and productivity, which characterize the construction of "transfer of law", are manifested in the fact that in order to acquire the right, it is necessary that the previous owner of the thing has a corresponding right. So, there is no doubt that the assignment of an alienation agreement, inheritance and reorganization of legal entities to derivative grounds for the acquisition of property rights, because the legislator himself indicates this, speaking in these cases about the transfer of ownership (for example, clause 2 of article 218, article 551 of the Civil Code RF). Obviously, the concept of "transfer of ownership" reflects the dependence of the emergence of the right of the subsequent owner on the existence of the right of the previous owner. If a thing as a separate object of a material type appears for the first time, then here it is also possible to speak with confidence about the initial basis for acquiring the right of ownership (for example, the creation of a thing - paragraph 1, clause 1 of article 218 of the Civil Code of the Russian Federation), since previously there was no right of ownership to the thing, on which the right of the owner could be dependent. The acquisition of the right of ownership of the find and the treasure has an initial character, since its basis is in no way connected with the existence of the right of ownership of the previous owner of the thing. For the emergence of ownership of a find, for example, it does not matter who exactly was the previous owner of the thing, when and on what basis he acquired it. The acquisition of property rights as a result of nationalization, requisition and confiscation should be recognized as derivative, because in these cases the emergence of public ownership of property is possible insofar as this property was previously the object of private property rights of specific persons.
The traditionality of the considered classification of the grounds for the emergence of property rights and its doctrinal elaboration do not diminish the need to give the classification a legal status, which should be expressed, first of all, in the normative consolidation of the classification itself, its criterion and legal significance. Civil law should also indicate which grounds for the emergence of property rights should be considered initial, and which - derivative.
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Received 04/02/07
Concept and kinds of the bases of rise of the property right
Concepts of rise and buying of the property, a ratio of the bases and ways of rise of the property right are considered. Criteria and the jural significance of differentiation of the bases of rise of the property right on initial and derivative are analyzed.
Khodyrev Pavel Mikhailovich
GOU VPO "Udmurt State University"
426034, Russia, Izhevsk, st. Universitetskaya, 1 (building 4)
1.3 Grounds for the emergence of the right of common property
Modern legislation does not limit the composition of co-owners: they can be citizens, legal entities of any kind, the Russian Federation, subjects of the Federation and municipalities in any combination. Having received the status of co-owners, these entities acquire the subjective right of common ownership of this property.
The basis for the emergence of the right of common property is various legal facts. The common property right may arise on the following grounds:
Conducting civil transactions, in particular, the acquisition of a thing by two or more persons (for example, during the privatization of housing);
Inheritance or receipt of a gift by two or more persons of property;
Recycling of a common thing or joint creation of a thing;
Acquisition of property by married persons;
Receiving income, fruits, products from the use of property in common ownership;
Construction of an object using common funds, in particular, by legal entities or municipalities, for example, a paid parking lot for cars;
Joint acquisition of ownership rights for neglected animals, treasure, find (Articles 228 - 233 of the Civil Code), as well as movable and immovable property in accordance with Art. 244 GK.
In most cases, this is the performance of civil transactions by several persons: common property arises as a result of the creation or acquisition of common property by several persons in the course of purchase and sale, inheritance and in other cases of joint economic activity. The structure of the common property also includes fruits, products and income from the use of property in common ownership.
At present, the relations of common property have expanded significantly. This was largely facilitated by the privatization of housing, when an apartment becomes an object of common ownership of persons living in it. There are also such traditional types of common property as joint property of spouses, inheritance of indivisible objects.
In addition, the right to common property arises with the participation of persons in contracts of simple partnership and peasant (farm) farms. Common property contributes to a more efficient use of property both in the family and in economic relations.
Common ownership does not arise if the property consists of several constituent parts, each of which has its own owner. Despite the fact that the subjects of common property, like any owner, at their discretion own, use and dispose of the property belonging to them, they exercise their powers in relation to this property jointly, jointly.
Common property in accordance with the rule of paragraph 4 of Art. 244 of the Civil Code of the Russian Federation arises, first of all, when two or more persons take possession of property that cannot be divided without changing its purpose, (indivisible things) or property that is not subject to division by virtue of law.
Common ownership of divisible property arises in cases directly provided for by law or contract. For example, common property in relation to the property of spouses arises by virtue of the law - Art. 33, 34 of the RF IC, and when a simple partnership is created, common property arises on the basis of Art. 1043 of the Civil Code of the Russian Federation.
The basis for the emergence of common shared ownership of the property of the spouses is a marriage contract (Articles 41, 42 of the RF IC), and when creating a partnership - the basis.
Common ownership of property can arise regardless of whether it refers to indivisible property, property not subject to division by virtue of law, or indivisible. If the property belongs to such that cannot be divided without changing its purpose, i.e. to the indivisible, or is not subject to division by virtue of the law, then the common ownership of it arises as a result of the functional qualities inherent in the property or its legal regime. If the property is classified as divisible, then the common ownership of it arises only in cases stipulated by law or contract. For example, they agreed that the furnishings that they inherited from their parents, although they do not constitute a headset, will not be divided, but will remain in their common property. In some cases, such legal relations may be formalized as a result of the entry into force of a court decision or amicable agreement on the establishment of common ownership of certain property.
Sometimes common property arises "by accident". So, in Russian science there is an opinion that the right of common property belongs to the subjects, whose things possessing generic characteristics have been deposited in common containers.
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