The system of civil law remedies for the protection of property rights and other rights in rem

► Protection of property rights is a set of means provided for by civil law applied in connection with violations committed against these rights and aimed at restoring or protecting the property interests of their owners.

These funds are heterogeneous in their legal nature and are divided into several relatively independent groups.

The first group is proprietary legal means . The peculiarity of such means is that they protect the property right as an absolute right belonging to the right holder from encroachments on it by all third parties. The purpose of applying these means is to restore or eliminate obstacles or doubts in the exercise by the owner of a property right of his powers.

The proprietary remedies include:

vindication claim (claim for the recovery of property from illegal possession);

non-commissioned action (claim for the elimination of violations not related to deprivation of possession);

a claim for recognition of the right of ownership (a claim for a statement by the court before third parties of the fact that the plaintiff owns the right of ownership to the disputed property).

The second group is obligations-legal means. The peculiarity of such funds is that their constituent requirements are based not on the right of ownership, but on other subjective rights and are aimed at protecting not so much the right of ownership as, in general, the property interests of the owner.

These may include:

– a claim for compensation for damage caused to the owner (Article 1064-1101 of the Civil Code of the Russian Federation);

– a claim for the return of unjustifiably acquired or saved property (Articles 1102-1109 of the Civil Code of the Russian Federation);

– a claim for the return of things provided for use under a contract, etc. requirements.

The third group – other means that are not related to either property-law or obligations-legal means arising from specific institutions of law, namely from the institution;

– unknown absence (Article 43 of the Civil Code of the Russian Federation) or declaration of death (Article 46 of the Civil Code of the Russian Federation) – protection of the rights of the owner in case of his appearance;

– invalidity of transactions (Articles 167-180 of the Civil Code of the Russian Federation) – protection of the interests of the parties to an invalid transaction;

– pledge (Article 344 of the Civil Code of the Russian Federation) – the responsibility of the pledgee for the loss of the pledged property;

– from the institution of inheritance law – the responsibility of the custodian or manager for damage or loss of inheritance property, etc. facilities.

The fourth group is means protecting the interests of the owner in case of termination of ownership on legal grounds: nationalization (Article 235 of the Civil Code of the Russian Federation), requisition (Article 242 of the Civil Code of the Russian Federation), seizure of land plots for state needs (Article 283 of the Civil Code of the Russian Federation), forced purchase or sale at auction of the mismanaged contents of property (Articles 240, 286,293 of the Civil Code of the Russian Federation), etc.

Vindication claim

An owner who has been deprived of his property without the necessary legal grounds may reclaim his property from someone else’s illegal possession. Such a requirement of the owner received the name of vindication in civil law (Articles 301-303 of the Civil Code of the Russian Federation).

► A vindication claim is an extra-contractual claim of a non-owning owner to the actual owner of the property for its return in kind.

Conditions for filing a vindication claim:

1) the owner has lost possession of his property, which is in the actual possession of another person;

2) the property has been preserved in kind, i.e. property rights

it did not stop;

3) the property is individually defined, and the ancestral property is individualized, i.e. separated from others

homogeneous things;

4) the parties to the dispute are not bound by an obligation regarding the disputed thing.

Parties to the dispute:

the plaintiff is the title owner of the property, who owns it by virtue of law or contract; owner, owner of another real right (tenant, keeper, commission agent, etc.), as well as a prescription owner (non-titular);

the defendant is the actual owner of the property, the illegality of possession of which must be proved.

Subject of the claim: a claim for the return of property in kind from illegal possession.

The general legal basis for all vindication claims is the right of possession, which is part of various

subjective rights.

The claim is satisfied if the property is owned by:

– an unscrupulous owner (his kidnapper, concealer of the find, etc.) – the claim is subject to satisfaction;

– a conscientious owner who received it from an unscrupulous owner (who did not know that the alienator had no right to alienate it), then:

in case of gratuitous acquisition, the claim is subject to satisfaction;

in case of paid acquisition, the claim is satisfied only in cases when the property has left the possession against the will of the title owner (theft, loss, etc.).

In any case, vindication from a bona fide purchaser of money and bearer securities is not allowed.

Calculations for income from use and expenses for the maintenance of vindicated property (Article 303 of the Civil Code of the Russian Federation):

– an unscrupulous owner is obliged to transfer to the owner all the income received by him from the use of property, and a bona fide owner – the income received by him from the moment he learned or should have learned about the illegality of his possession or received a subpoena on the owner’s claim for the return of property;

– both of them have the right to demand compensation from the plaintiff for the expenses necessary to maintain the property in good condition from the time from which the income from the use of the property is due to the owner.

negator claim

A negatory claim is an extra-contractual claim of the owner who owns the thing to a third party to remove obstacles in exercising either the right to use or the right to dispose of property (Article 304 of the Civil Code of the Russian Federation).

Violations in this area are varied; most often they arise when using adjacent land plots and objects of common property, primarily households. Examples are the erection of now fashionable high fences that obscure the neighboring plot, the impossibility of normal passage and passage due to prolonged repair work, and the creation of inconvenience when using equipment common to co-owners of a residential building.

Claim condition:

the thing has been preserved in kind;

– the owner owns the thing, it is in the sphere of his economic domination;

– some third party, by its illegal actions, prevents the owner from exercising either the right to use or the right to dispose;

– this third party is not connected with the owner of this thing in any legal relationship.

Parties to the dispute:

– the plaintiff is the title owner who owns the thing, but is deprived of the opportunity to use or dispose of it;

the defendant is a person who, by his unlawful behavior, creates obstacles to the normal exercise of the right of ownership (the right of title ownership).

The subject of the claim is the requirement to the offender to eliminate violations (obstacles) that are not connected with deprivation of possession, by the forces and means of the defendant. The subject of a negatory action may also be demands to stop excessive noise that disrupts the normal course of life and adversely affects the ability of the owner to rent out housing.

Grounds for claim:

– circumstances justifying the plaintiff’s right to use and dispose of property;

– circumstances confirming the creation by the defendant of obstacles in the exercise of these powers, their presence at the time of the presentation and consideration of the claim.

Conditions for satisfaction of a negatory claim. According to the meaning of the law, the satisfaction of a negatory claim is not made dependent on the guilt of a third person who, by his behavior, creates obstacles in exercising the right of ownership. However, if these actions caused damage to the owner, the latter can be recovered from a third party only on the basis of Art. 1064 of the Civil Code of the Russian Federation, i.e. in the presence of the fault of a third party.

If a third party proves the legitimacy of his behavior, the negatory claim is not subject to satisfaction.

An important feature of the negatory protection granted to the owner is that such claims are not subject to the limitation period, which is expressly indicated in Art. 208 of the Civil Code of the Russian Federation.

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