Law. Civil law.

PhD in Law D. Lorenc, Law student I. Butakova

South Ural State University, Russia

Building leasehold: experience of Bulgaria,

Poland and Russian reform

In the period of existence of Roman Civil Law there was a superficies (a right of property, a kind of inheritance law and disposed right to use another’s land for building). This legal model is a typical for many modern law orders, for example, an inheritance right for building in Germany (Erbaurecht), in France (droit de superficie), a right for building in Austria (Erbaurecht), Switzerland (Nutzungsrechte) [4, 132]. Legislation of the countries-members of CIS contains legal regulations for building leasehold too (Civil Code of Moldova, Ukraine, Lithuania, Georgia, Turkmenistan and Estonia)

A building leasehold was already known in Imperial Russia (act of 1912 June, 23). This law provided for builders right for building for 36 years and more (but not more than 99 years), and ownership for this buildings [7; 8, 244; 3, 140; 5, 152]. In Soviet period (the Articles 71-84 of the Civil Code, 1922) law provided the building leasehold for 49 years, but developers had right of use only [5,152; 2, 56-57]. In the Draft of the Civil Code of the Russian Federation the building leasehold appearing again (part 20.1). Well, let us compare the results of this reform with rights of building in Bulgaria and Poland.

The right of possession and use of another’s plot of land for building constructions and subsequent operation with it, in Russia will be known as right of building. Builder and owner of this land shall conclude a contract, comprising every essential conditions about this land (specification, location of buildings, period of this right of building, payment).

Property law (the Articles 63-67 «Законът за собствеността») in Bulgaria provides for owner a possibility to transfer this plot of land for another person, and that person can use it for building. Building leasehold on state or communal land granted to citizen and legal person in accordance with the contract, which is based on the orders of the executive committee chairman of the Community Council. In Bulgaria the constructions can be under and on the ground, unlike in Draft Changes of Russian Federation’s Civil Code [6, 216].

Section 232 Poland’s Civil Code (Kodeks cywilny Rzeczypospolitej Polskiej, 1964 г.) shows us, that in Poland states plots of land can provided in eternal using for building to an individual person, diplomatic (consular) institutions and housing cooperatives.

In Russia the building leasehold will be provided in period from 30 to 100 years, or in perpetuity (at will). Plots of state lands in Poland transferred in “eternal” using for 99 years. It is possible to prolong this period for 40-99 years more, but it mustn’t contravene public interest [6, 238]. In Bulgaria this period indicated in contract, or it can be unlimited too. In modern Europe, in contradistinction to Roman Superficies, builder has temporary ownership on the buildings and facilities. In Russia and Bulgaria termination of the right of construction, if it was limited in time, entails free transfer of ownership on buildings to owner of this plot of land. But in Poland, the user receives a refund of the structure.

In Russia the building leasehold will be disposed and transferable as a pledge and other ways, like inheritance or succession of organizations. In the case of the sale of the structure acquirer will have the right building (the same as in Poland). In Bulgaria builder can’t transfer this right of building to another person, besides relatives, until the end of construction. The builder in Bulgaria could transfer his right hereditably, or by buy-sell agreement, or agreement of tenancy. The owner of plot of land may use the right of preemption this building (as Roman Superficies)

In the Draft Changes to Civil Code of Russian Federation specified: loss of buildings doesn’t stop right of building on this plot of land. In Bulgaria and Poland buildings have to be built in 5-year-period after contract signing, otherwise a right of building ends (in Russia isn’t same as in Bulgaria and Poland.) In Russia this contract stops just in case: if builder doesn’t pay in 2-year-period; or using of this plot of land is non target.

So, hopefully, the building leasehold in Russia will have good perspectives for the development of civil circulation of land.

Literature:

1. Proekt № 47538-6 Federalnogo zakona “O vnesenii izmeneniy v chasti 1, 2, 3, 4 GK RF” (dalee Proekt izmeneniy GK RF) // http://consultant.ru/

2. Gryzyhin E.A. Pravovoy rezhim objekta zastroyki po rossiyskomu i franzuzskomu grazhdanskomu pravu // Vestnik Omskogo universiteta. Seria “Pravo”. 2008 №2 (15).

3. Kopylov A.V. Veshnye prava na zemlyu v rimskom, russkom dorevolyutsionnim i sovremennom grazhdanskom prave. M.: Statut. 2000.

4. Kruglova O.A. Pravo zastroyki zemelnogo uchastka v Proekte izmeneniy GK RF kak pravo superficiarnogo tipa // Aktualnye problem rossiyskogo prava. 2012. № 1.

5. Manko E.A. Pravovoe regulirovanie superficiya: istoria i sovremennost // Probely v rossiyskom zakonodatelstve. 2008. № 2.

6. Osnovnye instituty grazhdanskogo prava zarubezhnyh stran / Otv. Red. V.V. Zalesskiy. M., 2009.

7. Pokrovskiy I.A. Osnovnye problemy grazhdanskogo prava. M., 1998.

8. Synaiskiy V.I. Klassika rossiyskoi civilistiki. M.: Statut, 2002.