Usufruct Rights Research Articles

Mining and indigenous rights in Sweden: what is at stake and the role for legislation

Mining and the permitting process for mineral projects in Sweden has been criticised as inadequately safeguarding the rights of Indigenous reindeer herding Sámi, who hold usufruct rights to more than half the country’s territory. There have been calls for Sweden to ratify the Indigenous and Tribal Peoples Convention (ILO 169) and to change its Mineral Law. This paper evaluates the extent of protection of Sámi rights — and not only those engaged in reindeer herding — in Sweden’s minerals permitting process. It also considers the implications if changes were made to align this process with the Indigenous-rights framework. The paper demonstrates that reindeer herding Sámi are, broadly, treated similar to landowners in the mineral projects permitting process. However, there is discrimination when it comes to being able to have a share in the benefits of a project: impacted reindeer herders have no such option whereas landowners do. Also, the permitting processes do not consider social and cultural impacts, nor are there obligations for the state to be sufficiently involved in consultation processes. Addressing the identified shortcomings would require only small changes to the Mineral Law and/or to its application and would be possible with only limited impacts on mining because the sector is not a significant user of land whilst it creates large economic values. However, extending those changes (to give parity between landowners and Sámi rights holders) in other important economic sectors which use more extensive land areas, would entail a considerable transfer of resources and associated power. Furthermore, changing the Mineral Law specifically would mean little in terms of safeguarding the rights of the majority of Sami who do not engage in reindeer herding. This suggests that calls for changes to mineral-related legislation to resolve indigenous land right issues are mis-directed or at least insufficient, and that other type of legislative change is required, fundamentally including resolving how extensive and strong the Sámi’s rights to land should be.

Groundwater, Graves and Golf: Layers of Heritage Tourism on a Fiji Resort Island

While island resorts in the South Pacific are primarily marketed as sun, sea and sand destinations, cultural dimensions value-add to and diversify the product for mixed audiences. Resort developments require, at minimum, the compliance with legally mandated environmental standards and adherence to national employment legislation. Socio-culturally and environmentally sustainable tourism concepts should exceed mandated environmental standards and be characterised by a close involvement with and respect for the expectations of local host communities who may hold land and/or traditional usufruct rights. But do resort developments comply? Using an example of a resort established on free-hold land during the pioneering days of resort development in Fiji, the aim of this paper is to provide a deliberation of the tension between organic resort development and sustainable tourism on private land. It will show that, where cultural and environmental planning controls were absent, development not only could progress unfettered but also that changes to tourism philosophies are not necessarily reflected in changes to a resort. The island of Malolo Lailai (Viti Levu, Fiji) has a rich and multi-layered history and heritage (Fijian, European and Chinese plantations, resort development) that provides an opportunity to value-add to the tourist experience. In reality, however, the ongoing resort development extinguishes past histories in favour of a post-occupation, twentieth-century colonial settler narrative, where heritage sites are merely allowed to co-exist provided they do not impact on resort development objectives. It demonstrates that, in the absence of external regulatory controls, the resort owner’s philosophy dominates and shapes the tourist experience.

The digital tokenization of property rights. A comparative perspective

Blockchain technology allows virtual disintermediation and automatization of property transactions, which might help to design future platforms, intended to facilitate cross-border transactions within the EU and worldwide. To this end, users of these blockchain-based platforms may create the so-called “digital tokens” or “colored coins” that aim to represent rights over different types of “real world” assets. By transferring a digital token, the parties aim to transfer the ownership or other property rights over the asset represented by the token without the intervention of traditional intermediaries, such as real estate conveyancers, land registrars or notaries specializing in real estate. However, this new technological tool raises several questions in the field of private law, such as the legal nature of the token, how the effective transfer of the property rights operates or how ownership rules may be applied in this decentralized environment (e.g. rights and duties of the token holder). Some of the issues at stake have only been tentatively addressed by both lawmakers and academia. In light of this research gap, this paper addresses these controversial issues from both a private law and a comparative perspective, and proposes a model to tokenize the right of usufruct over chattels and real estate, analyzing its legal viability and limitations across six jurisdictions. The paper concludes that private law rules may be adapted to the tokenization of property rights, which may contribute to the establishment of a digital market for the trading of asset-backed tokens worldwide.

TA-SPESC: Toward Asset-Driven Smart Contract Language Supporting Ownership Transaction and Rule-Based Generation on Blockchain

Aiming at insufficient situation to express and operate assets in smart contracts, in this article we attempt to add a new asset model into smart contract language (such as SPESC) through combing method of asset's expressions and transactions in real-world contracts. Moreover, a translation mechanism can be set up to accomplish a conversion from the asset model to an executable contract program. On this basis, we propose a new language design toward asset-driven specific smart contracts, called TA-SPESC. This language complies with the structure of real-world contracts and supports a formal definition composed of four modules: Party, asset, term, and contract attribute. This asset model on it can be used to define various types of rights (including the right of ownership, use, possession, usufruct, and disposition of assets), as well as five asset operations (including asset registration, deposit, withdrawal, transfer, and cancellation) to effectively support asset transaction. More important, a series of generation rules are proposed to translate the TA-SPESC contract to an executable contract program. Moreover, taking house rental contract as an example, we provide a TA-SPESC instance and its specific description of translation process according to the generation rules, which supports a semiautomatic generation to executable programs. Finally, the Solidity codes derived from TA-SPESC contracts are run and tested, and the experiment and comparison results indicate that TA-SPESC contracts have high abstraction and low complexity, as well as versatility and convenience of asset transaction, which lead to more reliable software with less errors and fewer misunderstanding.

Out of Communal Land: Clientelism Through Delegation of Agricultural Tenancy Contracts

Do local institutions influence the nature of political clientelist exchange? We find a positive answer in the context of a village institution prevalent in Java since the Dutch colonial rule, where democratically elected village heads receive usufruct rights over a piece of communal village land (bengkok land) as a compensation for their service in lieu of salary. To formulate how limited-term private ownership of bengkok land promotes clientelism, we model a timely delegation of agricultural tenancy contracts to villagers-cum-voters as an incumbent re-election strategy. Based on a household survey fielded in 2018 across 130 villages in Java, Indonesia, we find that the chances of a bengkok plot being rented out increase by 6 percentage points as the time of the next election becomes closer by one year, and sharecropping is preferred to a fixed-rental contract as the election approaches. The empirical results are statistically significant and remain largely unchanged against a series of robustness checks. We also find suggestive evidence of short-term efficiency loss from clientelist politics over bengkok land.

Burhâneddîn el-Fezârî’nin Risâle fî sıhhati icâreti’l-iktâ‘ İsimli Risâlesinin Tahkikli Neşri

The present study consists of a critical edition of Burhān al-Dīn al-Fāzārī's -one of the Shāfiite Islamic scholars of the 8/14. century- Risālah fī ṣıḥḥat ijāra al- iqṭāʿ. The concept of iqṭāʿ has followed a continuous line of change and development throughout the history of Islam. The type of iqṭāʿ mentioned by the author, who lived in Mamluk Damascus, is the assignment of income-generating real estate that belongs to the public treasury (bayt al-māl) to military officers in exchange for the service they provided. This type of iqṭāʿ was also known as "military iqṭāʿ”. One of the main debates between the jurists related to this type of iqṭāʿ is about the ability of the military officers (muqtaʿ) to lease these lands. This issue was directly related to whether the military officers had the right of usufruct of the property or not. As far as can be determined, the first scholars expressing their opinion are Muhyī al-Dīn al-Nawawī (676/1277) and Taj al-Dīn al-Fāzārī (690/1291), the father of the mentioned author. The first opinion is positive and the second one is negative. Our author, who agrees with his father, wrote this treatise to defend the negative view. In this respect, this is the only known independent study written by scholars who hold the negative opinion. According to the author, the iqṭāʿ alone does not establish for the assignee (muqta‘) rights of property or usufruct on the granted real estate; it only has the meaning of ibāha, that is, it provides a limited right of use. Therefore, it was not appropriate for the muqta‘ to lease the real estate unless he had a special permission from the Imām. This is because one cannot assign an interest that one does not own to someone else. The only copy of the work that is the subject of this study is in Kutubhāne-i Umūmī-i Āyetullāh Marʿashī in Iran.

PEMILIKAN RUMAH TINGGAL UNTUK ORANG ASING YANG BERKEDUDUKAN DI INDONESIA

The Basic Agrarian Law prohibits foreigners from having property rights, the law does not close the opportunity for foreign citizens and foreign legal entities to have rights over land in Indonesia. Foreigners can have rights to land in Indonesia, that is, only with usufructuary rights, not other types. Foreigners are only allowed to own property in the form of a residential or residential unit in the form of flats (apartments), regarding the legal certainty of ownership of a residential or residential house by foreigners who are domiciled in Indonesia regulated in Government Regulation of the Republic of Indonesia Number 103 of 2015 concerning Ownership of Houses Living or Occupancy by Foreigners Domiciled in Indonesia, especially Article 2 paragraph (1) which states that foreigners can own a house for residence or residence with usufruct rights. The problems discussed in this thesis are How to Arrange and Procedure for Residential Ownership for Foreigners Domiciled in Indonesia and How the Role of Notaries in Owning Residential Foreigners Domiciled in Indonesia. The results of the study explain the Arrangement and Procedure of Residential Ownership for Foreigners Domiciled in Indonesia. Property ownership in Indonesia is currently regulated in Government Regulation Number 103 of 2015 concerning Ownership of Residential or Residential Homes by Foreigners Domiciled in Indonesia, the regulation emphasizes that foreign nationals can only exercise use rights and lease rights over property in the form of a house / occupancy. in Indonesia. The Role of Notary in Owning Residential Foreigners Domiciled in Indonesia, especially in the Jakarta area, on average do not meet the provisions stipulated by law, Notary and PPAT play a more role as someone who facilitates and makes it easier for foreigners to own land and a house to live in. Indonesia through the practice of a nominee agreement which is a legal smuggling

Przyszłość użytkowania wieczystego w świetle regulacji umożliwiających nabycie własności

Przedmiotem niniejszego artykułu jest analiza polskich regulacji prawnych, które umożliwiają przekształcenie prawa użytkowania wieczystego w prawo własności. W obecnym stanie prawnym istnieją trzy możliwości nabycia przez użytkowników wieczystych prawa własności nieruchomości: poprzez wykorzystanie metody cywilnoprawnej, metody administracyjnoprawnej bądź z mocy prawa (ex lege). Porównanie i analiza obecnie obowiązujących regulacji umożliwiających użytkownikom wieczystym nabycie prawa własności nieruchomości pozwala wskazać, że są to rozwiązania trudne do zastosowania w praktyce oraz nierealizujące w pełni konstytucyjnej zasady równości. Z tego względu obecne regulacje wydają się niewystarczające i wymagają zmiany. Jednym z możliwych rozwiązań jest kompleksowe przekształcenie prawa użytkowania wieczystego z mocy prawa, które uwzględniłoby wszystkich użytkowników wieczystych oraz nieruchomości oddane w użytkowanie wieczyste. Tego rodzaju przekształcenie byłoby odpowiedzią na obecny stopniowy spadek znaczenia użytkowania wieczystego.

Tenurial security and agricultural investment: Evidence from Vietnam

In Vietnam, all lands belong to the state, which assigns usufruct rights to those lands to individuals and households. In 1993, the state gave 20-year usufruct rights to growers of annual crops, and 50-year usufruct rights to growers of perennial crops. In 2013, as the usufruct rights of growers of annual crops were about to expire, the Vietnamese government passed a law—the Land Law of 2013—that extended the usufruct rights of all landowners by 50 years. We exploit this largely unanticipated shock to study the effect of tenurial security on agricultural investment. Using a difference-in-differences design, we find that the Land Law of 2013 is associated with a higher likelihood of investment by growers of annual crops in irrigation technology or soil and water conservation, but not other types of investment. Our results are robust to controlling for endogenous switching from annual to perennial crops, and our data support the parallel trends assumption.

3213 SAYILI MADEN KANUNU UYARINCA MADEN HUKUKUNDA KAMULAŞTIRMA USULÜ

Madenler, fiziki koşullar sebebiyle bulundukları arazide üretilmek zorundadır. İşletme aşamasında, ruhsat alanında gerekli bina ve tesisler inşa edilerek işletme faaliyetlerine başlanacaktır. Ancak ruhsat alanının özel hukuk kişisinin mülkiyetinde olması halinde, ruhsat sahibine söz konusu taşınmaz üzerinde tasarrufta bulunma imkânının sağlanması gerekmektedir. Bu kapsamda Maden Kanunu’nda ruhsat sahibi lehine özel hukuk kişisine ait taşınmaz üzerinde irtifak ve/veya intifa hakkı tesis edilebileceği veya taşınmazın kamulaştırılabileceği ifade edilmiştir. Ruhsat alanının kamulaştırılması, idarenin taşınmaz malı cebren elde etmesi dolayısıyla mülkiyet hakkının özüne dokunan bir uygulamadır. Dolayısıyla, kamulaştırma işleminin maden hukukuna özgü yönlerinin ortaya konulması bir gerekliliktir. Bu makale kapsamında öncelikle kamulaştırma kurumuna ilişkin temel noktalara değinilecektir. Sonrasında ise kamulaştırmaya ilişkin Maden Kanunu’nun 46. maddesinde yer alan ayrıksı düzenlemeler ele alınacaktır.

Access to Land and Tenancy Practices on Tanah Bengkok: Evidence from Java, Indonesia

Tanah bengkok (bengkok land) in Java, Indonesia boasts a unique institution where elected village leaders receive usufruct rights to a parcel of land owned by the village, in lieu of salary. Despite its relevance to the political economy of land distribution in Java, unavailability of systematic data has so far constrained in-depth empirical research on bengkok land. In 2018, we conducted a survey covering 130 villages and more than 1,800 households in Java. We found substantial heterogeneity in the incidence and use patterns of bengkok land across villages. Fixed rental tenancy appeared more prevalent than sharecropping on bengkok land and bengkok landlords seldom got involved in tenants' farming decisions, which made bengkok land management look more 'business-like'. Finally, evidence is consistent with political cycles as the village heads with reelection motives offered sharecropping contracts to non-relatives to garner a larger pool of supporters.

Prawo zabudowy jako alternatywa dla użytkowania wieczystego gruntów zabudowanych na cele mieszkaniowe

This article attempts to indicate an alternative right to perpetual usufruct, which pursuant the Act of 20 July 2018 on the transformation of the right of perpetual usufruct of land developed for building purposes into the right of ownership of such land, will be completely transformed into the right of ownership. Analyzing the draft act amending the Civil Code of 9 September 2009, was presented the possibility of introducing the leasehold law to the Polish legal system, which is partly modeled on the regulations of other European countries. The new limited property right, which is leasehold law, has been discussed in this article in terms of its creation, disposition, time and manner of its duration, confirming that it could be a whole alternative to perpetual usufruct.

ANALYSIS OF THE IMPLEMENTATION OF LAWS ON THE TRANSFORMATION OF THE RIGHT OF PERPETUAL USUFRUCT INTO OWNERSHIP

The right of perpetual usufruct is one of the basic forms of public property management that brings systematic revenue to public entities. Before 1989, perpetual usufruct was practically the only possibility for natural persons to acquire public lands in cities. The changes of the political system triggered discussions on the legitimacy of this law, especially with regard to residential areas. Currently, there are two acts in force that regulate the transformation of the right of perpetual usufruct into full ownership title – The 2005 Act on transformation of the right of perpetual usufruct into ownership of real properties and The 2018 Act on transformation of the right of perpetual usufruct of land developed for housing purposes into ownership of this land.The aim of this research paper is a comparative analysis of the principles of transformation under the current procedure and pursuant to the Act of 2018, as well as the assessment of the scope of the implementation of the transformation process and the financial consequences for local government units and the State Treasury. Detailed research studies have been carried out on the example of a selected city based on the analysis of the proceedings carried out under the previous laws and on specifying the number of real properties and perpetual users covered by the transformation by virtue of law under the amended legislation, as well as the problems associated with the transformation fee.

Kedudukan Legitieme Portie dalam Hal Pemberian Hibah Wasiat Berdasarkan Hukum Waris Burgerlijk Wetboek

Will is one of the ways to inheritance. According to article 875 BW, a testament or last will is a deed, containing a statement of an individual’s wishes and intents to take effect following his death, and which deed can be revolved. Testament or last will can be made while the testator is still alive, but the implementation is only do able when the testator passed away. Testamentary offers an additional option to testator while he/she is still alive the inheritance can be distributed to the beneficiary or heir, according to article 957 BW, testamentary gifting is a special testament, under which the testator bestows onto one or more person his properties of a certain kind, for example, all of his properties, movable or immovable, or the usufruct rights over entire part of his estate. It is special testament because it can pass distributed the inheritance on special occasion such as when the amount of successor is more than one, it can give special and certain kind of properties, such as movable or immovable properties, and usufruct rights. Problem arise when testamentary gifting is given to the successor without obeying the provisions according to legitimate portie. This condition is contrary with article 913 BW which states that The Legitimate portion or the legal share of the inheritance is that portion of the estate which the lawful heirs in a direct line are entitled to and which the testator is not entitled to dispose of as a gift during his life time or by last will.

Italian Supreme Court Decision on Indirect Taxation Applicable to a Surrender of Usufruct Rights over Immovable Property

In this note, the author analyses the Decision of the Italian Supreme Court in Case No. 2252/2019 regarding the application of Italian mortgage and cadastral taxes applicable on the surrender of a usufruct right over immovable property located in Italy. This note describes the arguments reported in the Decision, providing an overview of the primary implications in terms of indirect taxation applicable upon a surrender and transfer of rights in immovable property located in Italy.

Ownership as the prerequisite for the entitlement to claims arising from the Warsaw decree

The article presents the issue connected with the application of the mechanism of real property communalisation in Warsaw, raising a great deal of doubt in literature and diversely assessed in the case-law. The issue concerns the requirement adopted by the communist authorities in the decree of 26 October 1945 on ownership and usufruct of land on the area of Warsaw (so called the Warsaw decree) pursuant to which persons applying for (former) heritable building rights of superficies, and currently the right of perpetual usufruct were possessors of their former real properties. The decree communalised (nationalised) all land plots within Warsaw in order to rebuild the city destroyed by the war. A person fulfilling the condition of possession or their legal representative could have submitted within 6 months from taking possession of the land by the commune a request for establishing the right allowing the use of the real property compulsory taken over. Granting the possibility to submit requests for establishing the right to the land was to enable its former owners to take part in the reconstruction of the capital city. Granting the right involved essential obligations, for example in the form of the construction of a building or other facility as well as their maintenance in an appropriate condition. The main controversy concerns the fact whether the possession order as the condition for granting the right to use the land by the commune relates to former owners or only their legal successors (including mainly their heirs). If the interested party did not own the real property, they could not have claimed the right to establish the right to the land in an efficient way. The requirement concerning the ownership as the possibility to exercise efficiently the actual control over the real property was assessed under the rules of the Napoleonic Code applicable in the central parts of Poland, whereas later under the new Polish property law of 1946. The ownership as the condition for acquiring the right to the land was aimed at establishing the possibility to co-participate in the reconstruction of buildings destroyed as well as allowed the determination whether the persons entitled to the land were alive or had died during the years of war turmoil (in particular in the Holocaust). The article presents arguments for assuming the necessity to analyse the existence of the ownership lying with former owners (and not only with their legal successors). Nowadays, the problem is also essential due to practical reasons as requests submitted in the 1940s are being still currently processed, and failure to prove in that time the title to the land by requesters applying for granting the relevant right results also today in the necessity to reject establishing the right of perpetual usufruct.

Protected area co-management and land use conflicts adjacent to Phu Kao – Phu Phan Kham National Park, Thailand

ABSTRACTThis study examined land use conflicts between three villages and Phu Kao – Phu Phan Kham National Park in northeast Thailand that resulted from its access and utilization during 2013–2015. The source of conflict is usufruct rights, a government entitlement program designed to honor villagers who lived on the land before it was established as a national park or forest reserve. Ironically, designation of protected areas is not a safeguard for biodiversity. A complex set of rules and regulations control access to resources, but compliance is subject to government oversight and economic pressure to improve quality of life. Granting usufruct rights may reduce certain land use conflicts, but they fail to address agricultural expansion inside park and forest boundaries. For example, agricultural encroachment in this protected area increased by 13.1% during the study period, mainly through cassava plantings. Cassava requires a small amount of maintenance and has a high market value since it is being promoted as an energy crop by the Thai government. A variety of management strategies are needed for sustainable forestry, such as regular forest patrols, reduction of agricultural-based income, and community-based initiatives.

Czy na pewno martwa instytucja? Staropolskie i austriackie pactum advitalitium w perspektywie współczesnej

An already defunct institution? Old-Polish and Austrian pactum advitalitium in a contemporary perspectivePactum advitalitium was an early Polish legal institution established through a marital agreement. It was a form of annuity by means of which spouses established a right of usufruct of the entirety of an estate, effective upon the passing of one spouse and existing for the lifetime of the beneficiary. The practical purpose thereof was to secure the material well-being of a widowed spouse, usually the wife, given not only that the legal system did not provide for commune marital property, as well as that there was no statutory spousal succession. Later, after the partitions of Commonwealth of Poland and Lithuania, the institution discussed herein was adopted by Austrian law and regulated in the newly enacted Austrian Civil Code ABGB, with slight modifications enabling i.a. to encumber not only the whole estate or a part thereof, but also several assets of a future estate. Thus advitalitium had become available within the vast Austrian Empire, yet it did not gain a wide recognition among the nations of the Monarchy, remaining an infrequently used institution, which led to its repeal in 21st century. The very legal character of pactum advitalitium was and is still controversial, leading the academia to suggest multiple explanations of its nature, often varying significantly dependent on the subject of advitalitium in a specific case the entirety of an estate or a part thereof or several assets. The authors aim to examine the origins and history of advitalitium regulation in early Polish and Austrian law in their historical context, later to recount the doctrinal concepts explaining its character. To pursue both there aims, historical and formal-dogmatic methods are employed. The authors then move on to discuss the possibility of reaching results identical or just similar to ones achieved by means of an advitalitium in modern Polish law, applying the formal-dogmatic method, to show that not only no comparable institution exists in Polish law nowadays but, moreover, that similar results cannot be achieved by applying instruments known to Polish law. Such analysis enables the authors to arrive at conclusions regarding the possible application of advitalitium as an instrument of estate planning in the context of modern family relationships, which could lead to the rediscovery thereof in modern legal systems.

Uprawnienie do nieodpłatnego przekształcenia prawa użytkowania wieczystego w prawo własności nieruchomości

The current regulations allow specific categories of entities to lodge an application to convert the right of perpetual usufruct of these properties into property right. This entitlement is, in principle, payable. The legislator provided an exception to this principle by introducing the possibility of transforming the right of perpetual usufruct into a right of ownership free of charge. The legislator linked this right with a specific group of entities, justifying this by obtaining the perpetual usufruct right in exchange for expropriation or taking over the property for the benefit of the State Treasury. While this premise does not raise any doubts, much of the controversy arises from the notion of successor of authorized entities, used in art. 5 of the Act. The purpose of this article is to present current legal regulations related to the administrative and legal possibility of transforming the right of perpetual usufruct into the property right. The catalog of entities entitled to request a free transformation of the right of perpetual usufruct into the property right was analyzed, with particular reference to legal successors of authorized entities.

The Transformation of the right of perpetual usufruct into ownership

The article presents the most important provisions of the Act of 20 July 2018 on Transformation of the Right of Perpetual Usufruct of Land Developed for Housing Purposes into Ownership of Land. The transformation in question will take place ex lege as of 1 January 2019. This presentation is preceded by information about the possibility of transformation of the right of perpetual usufruct into ownership according to laws in force until 31 December 2018.