SPOUSES' OWNERSHIP OF LAND: PROBLEMATIC ISSUES

Abstract

The paper is devoted to the theoretical and practical problems of the spouses' ownership of land plot, especially in cases where this land plot is the personal (separate) property of one spouse, but on this land plot is built the real estate object belonging to both spouses as joint ownership. It is stated that there are several approaches to the legal regulation of civil turnover in relation to the land plot and real estate object built on the land. In particular, the concept of a single object of civil rights (usual as to European countries) and the concept of following the land plot after the real estate object built on it (usual as to Ukraine) are studied. The court practice of applying the Civil and Land Codes regarding transfer of ownership of land plot in cases on division between spouses the real estate object that is built on the land plot is analyzed. It is emphasized that in these cases the transfer is non-payable. The author argues that this approach contradicts the provisions of the Constitution of Ukraine and the European Convention for the Protection of Human Rights and Fundamental Freedoms regarding the inviolability of property rights, as it provides for free of charge (i.e. volunteer) confiscation of property from its owner against his will. The concept of a single object of civil rights is proposed to adopt in Ukraine. Regarding the distribution property between spouses, the author proposes to introduce a rule for determining the ownership of land plot as the personal (separate) property of one spouse or as joint property of both spouses that is based on the principle of the higher value of the object (land plot or real estate built on it). Accordingly, if the value of the land plot is higher, then the real estate object acquires the same legal regime as the land. Conversely, if the value of the land plot is lower, then it acquires the legal regime of the real estate object located on it. In any case, the other spouse must receive compensation due to the termination of his ownership of the share in the property.