Legal problems of protection of land plot possession under real estate object

Abstract

The article is devoted to the issue of protection of state and communal land plot possession under real estate in situations where the private owner of real estate has neither ownership nor the right to use such land, and the authorized owner (state or local community) does not transfer such right or transferred it to a third party. 
 The author examines the phenomenon of land possession under real estate in the context of the principle of unity of the legal fate of the land and real estate located on it. According to the author, in determining the model of protection of land possession under real estate, this principle is the starting point for building such a model.Possession of land plot under real estate in terms of “registration” and “actual” models of ownership is analyzed in the article. According to the author, the disposal of land plot from “registration” possession is impossible only due to the change in the register of landowners, because possession of land plot by the owner of real estate located on it is fixed (and announced) directly by law and record of ownership on the real estate.The author explores an alternative approach to determining the rights of the real estate owner in relation to the land plot under it, namely the property “right of expectation”. According to the author, such an approach is currently controversial in terms of the systematics of real property rights and the specifics of their protection.The article examines the specifics of the subject and grounds of the claim in the event when the owner of the land transferred the right to land not to the owner of the real estate, but to a third party. The author substantiates the approach according to which in such cases a proper way of protection will be a lawsuit to remove obstacles, and the legal grounds of the claim may be fictitious transaction, violation of public order and fraud.The author also pays attention to the modern understanding of the discretion of the powers of the authorities and expresses the opinion that in modern realities in some cases the courts must meet the requirements by which government decisions are recognized as adopted and permits issued.