Abstract
Encumbrances on real estate and on the right to use real estate are different legal institutions. Encumbrances that are created on the basis of law have a different legal substance. As a rule, encumbrances by law are significant and bring benefits to an unlimited number of rightholders. This type of encumbrances includes various protection zones, roads, nature reserves, etc. It is assumed that these encumbrances are for the common good; therefore, the rights of an owner may be restricted. Encumbrances on the right to use real estate are of an individual nature, referring to specific rightholders. Such encumbrances include, inter alia, easements and mortgages. In these cases, the owner may not freely dispose of his property right (property), without considering the rights of third parties. The article is devoted to the problems pertaining to the establishment of encumbrances on real estate. Encumbrances may be established by an agreement between the parties, and legislation allows establishing encumbrances without any authorisation from the real estate owner. The objective of the thesis is to analyse the legitimacy of encumbrances based on law in the context of the impairment of owner's property rights.
Highlights
Real estate has always been an essential element of economic growth
An encumbrance should be understood as de facto and legal limitations imposed on real estate owned by private owners in the form of restrictions on the use of property and the special procedure for transactions, as may be necessary for public needs
In the case of encumbrances established within the frame of private relationships, i.e., based on an agreement between the parties, an owner’s rights granted by property are not impaired substantially because such encumbrances are based on the will of the parties
Summary
Real estate has always been an essential element of economic growth. Important is the role of real estate in meeting social needs and ensuring public welfare. Real estate allows for the exercise of individual’s constitutional rights. Real estate provides housing, healthy and safe environment and a possibility of obtaining material benefits from the property. The Universal Declaration of Human Rights serves as the initial legal base of these principles [1], and, according to this Declaration, everyone has the right to own property and no one shall be arbitrarily deprived of his property, everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.
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