Grounds and Methods of Acquiring Immovable Property Ownership in the Context of Recent Changes in Civil Legislation

Abstract

The analysis of subjective civil rights doctrines allows us to conclude that there are several levels in their structure. Some theories initiate the process of acquiring the right, others finalize it. Most concepts (the concept of general and specific prerequisites for the emergence of the right, the concept of a legal fact structure, the concept of juridical composition, the concept of facts-states) are based to some extent on this division. From these positions, the author differentiates between the concepts of «emergence» and «acquisition» of a right, as well as the grounds and methods of acquiring property rights, where the basis is a prerequisite for the emergence of a right, and the method means actions aimed at acquisition. Grounds and methods cannot independently generate rights and obligations.A critical assessment of new grounds and methods of acquiring ownership of real estate from these theoretical standings made it possible to exclude the possibility of recognizing the «right of claim» enshrined in the law as a method of acquiring ownership to a land plot. Attention is drawn to the appearance of a number of categories that the law-maker fails to explain (the relevant real estate, the formation of an immovable thing, etc.), but the content of which has serious legal consequences. An attempt is made to differentiate the concepts of creation and formation of an immovable thing on the basis of the originality and derivation of the acquisition of ownership, where creation is the original method, and formation is a derivative, which entails not only the emergence of ownership of a new object, but also the termination of rights to the existing right. An assumption is made about the possibility of distinguishing the categories of creation and formation depending on its physical and legal element where creation is characterized by the appearance of an object in physical (material) embodiment, and formation means a legal separation (spinning-off0. The author argues that it is not possible to differentiate these categories without adjusting the legislation. The author justifies amendments to the Civil Code of the Russian Federation, as a result of which formation can be considered as a new derivative method of acquiring real estate ownership.