Possession vs right of possession of the land plot: is this differentiation necessary?

Abstract

The article is devoted to the issue of protection of property rights on land of the water fund and forestry purpose in the context of their possession.
 The author examines the classification of possession into possession as a fact (which includes not only actual (physical) possession, but also a record based on an illegal title) and possession as a right, which can only be legal, “introduced” by the decision of the Grand Chamber of the Supreme Court. The author analyzes the court’s proposed differentiation of “possession” and “rights of possession” of a land plot in the context of the theoretical and practical consequences of such a division.
 This analysis is carried out in comparison with doctrinal approaches in the science of land law, in which “book” and “actual” possession of a land plot is distinguished, but no distinction is made between “possession “ and “rights of possession”.
 The author draws attention to the inconsistency of such an approach, because such a differentiation only made it more difficult to understand the institutions of vindication and negative action, namely, the Grand Chamber of the Supreme Court, despite the introduction of such a differentiation, did not actually use it in the decision itself.
 The author comes to the conclusion that according to current judicial practice, forestry lands should be claimed through vindication, because they can be taken over by recording, and the legislation allows for the possibility of private ownership rights to them, while water fund lands should be claimed through a negative lawsuit, because illegal entry in the register regarding them will not give possession, since it is impossible to acquire ownership of them as such.
 The author summarizes that in the future, in cases of vindication vs removal of obstacles, the courts need to investigate the key question of whether the acquirer can have the corresponding plots on private ownership rights in principle. For this, the court can apply both an abstract (hypothetical) possibility of having a plot of land in private ownership, or choose a more “contextual” approach, taking into account the specifics of each individual plot.