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Property rights protection

1. Concept, and means of civil legal protection of property rights

Protection of property rights is a set of civil legal means provided by law that, the first, guarantee the normal economic use of property (that is, they provide protection of property relations in their undisturbed state), and secondly are used to restore violated property relations, to remove obstacles that prevent their normal functioning, to compensate for damage caused to the owner. (sale of credit apartments).

The purpose of criminal or administrative protection of property rights is, the first of all, to punish the violator for the illegal act committed (no violation defined by law should go unpunished). The main purpose of civil legal protection is to restore the violated right, restore the former property status of the person whose rights were violated (sale of credit apartments by banks).

Judicial protection of property rights is carried out by examining cases on claims:

  • Recognition of ownership of property;
  • About the seizure of property;
  • Reclaiming property from someone else’s illegal possession or reimbursement of its value;
  • On the division of common property or the allocation of a share from it;
  • Determining the order of ownership, use, and disposal of property that is common property;
  • Invalidation of agreements on alienation of property;
  • On recognizing as illegal acts of state bodies, and local self-government bodies on unlawful interference in the exercise by the owner of the rights to own, use, and dispose of property;
  • About the collateral;
  • Confiscation of property;
  • On the sale of collateral;
  • Transfer of the rights, and obligations of the buyer under the purchase, and sale agreement concluded by a participant in a shared equity ownership to its share in violation of the right of another participant in this shared ownership to a priority purchase;
  • Transfer to private ownership of property that is legally subject to alienation;
  • Invalidation of agreements on the alienation of apartments from the public housing stock in violation, for example, of the right of the tenant to acquire this property or transfer to it the rights, and obligations of the buyer under this agreement;
  • Compensation for damage caused to property or damage caused to a person by violation of its owner’s rights (including lost income);
  • Exclusion of property from the inventory, etc.

Depending on the nature of the encroachment on the rights of the owner, and the content of the protection that is provided to the owner, there are real, and mandatory, civil remedies.

Property protection the right of ownership, and other property rights to protect these rights from direct undue influence by third parties. Sale of collateral.

Property claims include:

  • Claims of the non-owning owner against the illegal owner for the recovery of property (vindication claim);
  • The owner’s claims for the elimination of violations of property rights that are not related to ownership (non-compensatory claim);
  • Owner’s claims for recognition of ownership rights.

Liability lawsuits are usually based on contracts but may also be based on non-contractual obligations.

Under an obligation-legal claims include claims for:

  • Compensation for losses incurred as a result of non-performance or improper performance of the contract;
  • Return of items that were transferred into possession (under the agreement of storage, pledge, transportation);
  • Invalidation of transactions;
  • On the return of property that was acquired or saved without justification, and others.

The provision on the protection of property rights applies not only to the owner but also to persons who, although they are not owners, possess property on the right of operational management, full economic management or on other grounds stipulated by law or contract (pledge, lease, storage) of collateral.

2.Vindication claim as a means of protecting property rights

Vindication action is the most important civil legal means of protecting property rights. In the legal literature, a vindication claim is traditionally understood as a claim by a non-owning owner to an illegal owner to claim their property in kind. This claim was known as far back as Roman civil law (vindico-claim, actio rei vindicatio-vindication claim).

Parties in the vindication claim stands the owner, who not only deprived of the possibility to use, and dispose of a thing but it does not own, and unlawful the actual owner of the thing (fair, and unfair). That is, the subject of a vindication claim is the reclamation of exactly the thing that has fallen out of the rightful possession of the owner.

  1. a vindication claim can only be brought to individually defined things. That is, as a rule, such claims cannot be claimed from someone else’s illegal possession of a thing that is determined only by generic characteristics (100 liters of gasoline, 50 tons of wheat, etc.). However, there is no reason to prevent in certain cases the vindication of a thing defined by generic characteristics but on the condition that this disputed thing could be individualized or identified in one way or another. If in a particular case it is possible to distinguish a thing with generic characteristics from the mass of homogeneous things.
  2. this claim may be brought for a thing owned by the plaintiff, and which is in the possession of the defendant. So, if someone purchased a stolen or lost item by the owner, and then gave it as collateral, the defendant in the vindication claim is the pledge as the actual owner of the thing, and the advertiser will be involved in the case as a third party;
  3. the owner can claim the return of his property in this claim only if another person owns his property illegally, for example, a citizen has found someone else’s thing, and refuses to return it. If the owner owns someone else’s property legally, the owner cannot claim his thing from such possession by filing a vindication claim. At the same time, if the basis of ownership changes, it is quite possible.
  4. to protect their right of ownership in the vindication action, the owner has the option only in the case when a property is preserved in nature. In its content, a vindication claim is a claim for the restoration of the owner’s right to own a thing that should belong to him; therefore, it is not allowed to replace this thing with another. That is, if the owner has lost a thing consumed, converted in the process of production, manufacture, construction, etc., then the owner’s claim for protection of property rights will no longer constitute a vindication claim but will be considered as a claim of a binding nature for providing the owner with a different case, and compensation for damages.

The illegal owner can be either conscientious or dishonest. In all cases, the owner has the right to claim his property from an unscrupulous owner, i.e. from an acquirer who has taken possession of someone else’s property without permission, or who, when purchasing a thing, knew about the illegality of its acquisition.

An illegal bona fide owner is a person who did not know, and should not have known that the person from whom the property was purchased did not have the right to alienate it, that is, the owner was sure that he had his own thing, and not someone else’s. For example, a person legally purchased an item from a thrift store.

For a bona fide owner, the owner does not always have the right to demand the return of their property. So, in cases where the thing has been out of the possession of the owner by his will, as a result of illegal actions of persons who are party to the agreement with the owner under a contract of employment, Commission, storage, and found in possession of a bona fide owner, that the owner was deprived of the right to demand the return of this things illegal conscientious owner, since the owner bears the risk of choice of the person with whom he enters into a contract. In this case, the owner can protect their property interests by collecting losses from an unfair counterparty or replacing the disputed property with another, equivalent one.

If the property was acquired by a bona fide owner free of charge from a person who had no right to alienate it, the owner has the right to claim it in all cases.

Money, and bearer securities cannot be demanded from a bona fide buyer (even if the owner has written down the numbers of banknotes, shares, bonds, etc.).

From a bona fide owner who has purchased a thing, the owner has the right to claim his property only if it has been removed from his possession not by his will (stolen, lost). In the same way, the issue of reclaiming property that has left the possession of the person to whom the owner transferred the thing under the contract is resolved. In other words, if such a thing is removed from the possession of such a person against her will, it is also returned to the owner

3.Negatory claim as a means of protecting property rights

The rights, and interests of the owner may also be violated in cases where the property is not removed from his possession but the actions of a third party create obstacles to the use or disposal of the property. In such cases, the owner can protect their property rights from violations (not related to dispossession) by a claim, which in civil law is called negatoria (actio negatoria).

A non-compensatory claim is characterized by these features. the first, unlike a vindication claim, the owner who seeks protection keeps the property in his possession. Violation of the right of ownership is often that third parties create specific obstacles in the use of its property (house, car, land, etc.), or in certain circumstances the landlord may not dispose of him according to the law of property, having the property in his possession.

Both the owner, and the titular owner can file a non-compensatory claim, and the latter can be brought against third parties as well as against the owner. For example, after the conclusion of a sublease agreement for non-residential premises, the owner does not allow subleaders to use it (turned off the heating, lights, etc.).

Thus, there are numerous cases in judicial practice when, after the transfer of land plots to the ownership or lease of citizens, former land users did not allow the new owners (tenants) to use land plots following their purpose, created artificial obstacles in land use.

Secondly, the essence of the requirements for a non-compensatory claim is the elimination of the violation, which continues, and takes place at the time of filing the claim. Therefore, non-compensatory claims are not subject to the requirements of the Statute of limitations, since a non-compensatory claim can be filed at any time, as long as there is an offense. If the obstacles to the use or disposal of property are eliminated, then there are no grounds for filing a non-compensatory claim.

Third, the owner has the right to demand the elimination of violations of his rights, if the actions of third parties are illegal. For example, the owner may require a neighbor to remove construction materials if they interfere with the use of the car (it is impossible to leave the garage). However, if a neighboring house is built following an approved project, compliance with building codes, and building regulations, then even if this house obscures the land plot, and Windows of the neighbor’s house, the latter, as the owner, cannot refer to the violation of his right to use the land plot or house.

A non-compensatory claim cannot be brought if the defendant’s actions are based on the relevant applicable law or in a contract.

In most cases, citizens apply for the elimination of violations in the use of property. This is because, as a rule, interference caused by third parties falls under the category of administrative or criminal acts (arbitrariness, unauthorized construction, abuse of power or official position).

In most cases, the owner files a non-compensatory claim to remove obstacles to the use of property belonging to him. But a non-compensatory claim can also be a means of protecting the right to dispose of property. A type of non-compensatory claim is a claim for the exclusion of property from the inventory.

Both the direct owner of the property, and the person who owned it based on the law or under a contract can apply for the exclusion of the property from the inventory.

Following Article 29 of the criminal procedure code of Ukraine, if there are sufficient grounds for causing material damage by a crime, the body of inquiry, investigator, Prosecutor or court must take measures to ensure a civil claim. [2, Article 126] the criminal procedure code of Ukraine regulates the procedure for securing a civil claim, and possible confiscation of property) by seizing deposits, valuables, and other property of the accused or suspect or persons who are legally responsible for their actions.

The property to be seized is described, and may be transferred to the custody of representatives of the enterprise, institution or organization, family members of the accused or other persons.

Certain restrictions on property rights may also arise when securing a claim in a civil case. Thus, Article 149 of the CCP provides that in cases related to compensation of damage, recovery of alimony, debt repayment, when the execution of a judgment may become impossible or difficult since the debtor will dispose of their property before trial, the court on own initiative or at the request of a party may take measures to secure the claim.

These methods of securing a claim are:

  • seizure of property or money belonging to the defendant, and held by him or other persons;
  • prohibition to perform certain actions;
  • prohibiting other persons from making payments or transferring property to the defendant;
  • suspension of the sale of the described property if a claim is filed for ownership of the property or its exclusion from the description;
  • suspension of collection based on an Executive inscription of a notary authority, if the debtor disputes this inscription in court.

The property owner may also mistakenly go into the inventory of the hereditary estate of the deceased, drawn up by a notary following clause 99 of the Instructions on notaries acts of Ukraine dated June 18, 1994

The General three-year Statute of limitations provided for in Article 71 of the Civil Code of Ukraine applies to claims for the exclusion of property from seizure. This period starts from the day when the interested person learned or should have learned about entering the inventory of property belonging to him.

Dmytro Kasyanenko

Lawyer, managing partner of the Kasyanenko & Partners Law Firm. Since 2002, he has gained extensive legal experience in key positions in business structures and the public sector in the field of law and finance.

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