ОБ ОБЪЕКТЕ И СИСТЕМЕ ВЕЩНЫХ ПРАВ НА ЗЕМЕЛЬНЫЕ УЧАСТКИ В РФ В КОНТЕКСТЕ РЕФОРМЫ ГК РФ

Abstract

Two concepts have developed around the world - single object and multi-object real estate. The choice of the model determines the systematics of rights in rem over real estate. At the present stage of development of the legislation of countries where a land plot is regarded as a single real estate object, this concept does not always effectively regulate the relations of persons having a legal interest in real estate. The concept of a single object has been replaced abroad by the idea of a parcel unit which allows for the recognition of rights in rem to separate spaces: underground, above-ground and aerial. The concept of parcels implies granting a number of privileges to property owners within the boundaries of a land plot. Analogous to the concept of parcels in Russian law may be the concept of composite immovable property. Applying the concept of composite immovable property to multifunctional complexes, cottage settlements, blocks of flats and property of garage co-operatives with vesting property owners with rights of common ownership of common use property (if any) seems more relevant to the interests of such persons compared to the current regulatory model. The system of rights in rem over land plots in accordance with the concept of a single object in a multi-object real estate will not work efficiently. The approach proposed in the Draft Amendments to the section on rights in rem of the Civil Code of the Russian Federation is aimed at duplicating the already existing structures and giving the rights of obligation in rem and the negative easement the status of rights in rem. This confusion destabilises the circulation of real estate that has developed over decades. Gratuitous and perpetual rights to use land plots must be retained as the basis for the functioning of special public legal entities and the support of subjects for socially important purposes. However, the capacity of the holders of such rights can be expanded by granting the right to own a land plot. In order to distinguish between real and compulsory lease regime, it is possible to distinguish between user (compulsory) lease and user-owner (real) lease. It is also necessary to expand the range of security transactions with respect to land plots by providing for the possibility of leasing and sale with the right to buy it back. For easements in the Russian Federation, an open list of types of private easements should be established, while public easements, on the contrary, should be subject to a closed list. For the Russian Federation, the introduction of a reciprocal easement structure could be relevant. In the case of personal easements, the potential of such rights in relation to land plots cannot be appreciated and the need to duplicate existing rights through such a construction. A similar problem is characteristic of usufruct and rights in rem. In this respect, it would be more reasonable to introduce the property rights in real estate in Russian law that are endowed with a succession effect.