Legal obligations methods for protecting property rights

Civil protection of property rights

Protection of property rights in a broad sense is the focus of civil law norms on regulating property relations under normal conditions of use by the owner of his property without violating his powers, as well as without infringing on the rights and interests of other persons. Protection of property rights, i.e. protection of property rights in the narrow sense is a set of only those methods and means that are used when property relations (the rights and interests of the owner) are violated.

Methods of protecting property rights are traditionally divided into proprietary rights (absolute protection against everyone; applied in case of direct violation of property rights) and obligatory laws (relative protection against a specific violator; applied in violation of relative rights, when property rights are violated indirectly, for example, a tenant does not return the item after the rental period has expired). The remedies are lawsuits, since the protection of property rights is carried out through a lawsuit in court. The term “claim” in the field of property law has not only a procedural, but primarily a material meaning as a claim of the owner.

The system of civil legal remedies for the protection of property rights consists of: 1) proprietary claims; 2) claims aimed at protecting the interests of the owner upon termination of ownership by force of law; 3) claims under the law of obligations.

Claims in rem are claims directly aimed at protecting property rights, since their goal is to fully restore the rights of the owner in relation to specific property. Only the actually existing (already acquired and not yet lost) property right is protected by proprietary methods, therefore the general prerequisite for the satisfaction of all proprietary claims is that the plaintiff is obliged to prove his ownership (title)1.

Property law methods of protection are applied only in cases where the owner’s right to an individually defined thing is violated. Claims in rem are always non-contractual.

Thus, proprietary claims are non-contractual demands of the owner presented to the court for the protection of his existing right to an individually defined thing, if the right of ownership is directly violated by a specific person.

In Russian law, proprietary claims are used to protect the violated rights of subjects other than property rights, real rights, and even to protect the violated rights of legal owners.

Lecture notes on Law on the topic “Methods of protecting civil rights.”

Law Lesson 18

Ways to protect civil rights

1. Patent law.

2. The right to means of individualization of participants in civil transactions.

3. Protection of property rights.

4. Protection of honor, dignity and business reputation.

5. The concept of civil liability and types of civil liability.

6. Ways to protect civil rights.

1. Patent law.

Patent law is a subbranch of civil law that regulates legal relations related to the creation and use (publication, performance, display, etc.) of works of industrial design (creative activity in industry), that is, the results of people’s creative activity.

“A patent certifies priority, authorship of an invention, utility model or industrial design and the exclusive right to an invention, utility model or industrial design.” The right of authorship refers to the right to be recognized as the author of an invention. An exclusive right means that the use of the corresponding object is possible either by the copyright holder himself or with his direct permission.

The objects of patent law include:

- Invention . This is a technical solution in any field related to a product (device, substance, microorganism strain, plant or animal cell culture) or method (the process of performing actions on a material object using material means). An invention is granted legal protection if it is new, has an inventive step and is industrially applicable.

— Utility model . This is a technical solution related to the device. The conditions for patentability of a utility model will be novelty and industrial applicability. The legislator does not require an inventive step for utility models. A technical solution relating only to a device can be recognized as a utility model, in contrast to inventions, which, in addition to the device, can be a substance, a strain of a microorganism, a culture of plant or animal cells, or a process of performing actions on a material object using material means.

- Industrial model . An artistic and design solution for an industrial or handicraft product that determines its appearance is protected as an industrial design. An industrial design is very different from an invention or utility model, since, in addition to an artistic solution, it also has a design solution. For example: a glass bottle of Coca-Cola.

2. The right to means of individualization of participants

civil turnover.

A means of individualization is a designation that identifies (highlights) the object of individualization and allows it to be distinguished from similar objects.

The subject of individualization is participants in civil turnover and the products they produce (work, services).

The right to a means of individualization is an exclusive right. This is the only right among the intellectual rights that is assigned to a means of individualization (personal non-property and other intellectual rights to a means of individualization do not exist).

Depending on the subject of individualization, the Civil Code distinguishes four means of individualization (the list is closed):

1. trademark – the subject of individualization are goods of a certain group. If the subject of individualization is the work performed or services provided, the means of individualization may be called a service mark. Examples: KAMAZ, Izvestia, Coca-Cola bottle shape, etc.;
2. appellation of place of origin of goods – the subject of individualization are goods produced within the boundaries of a certain geographical area. Examples: “Gzhel”, “Narzan”, “Champagne”, etc.;
3. corporate name – the subject of individualization are legal entities in the form of commercial organizations. Examples: PJSC KAMAZ, LLC Romashka, FSUE Russian Post, etc.;
4. commercial designation – the subject of individualization are enterprises as objects of rights. Examples: “Hairdressing salon “Rucheek””, “Dining room No. 26”, etc.

The prerequisites for legal protection of means of individualization were initially associated with the suppression of unfair competition.

3. Protection of property rights.

Among the various means of protecting property rights, proprietary claims

, which are aimed directly at protecting the right of ownership as an absolute subjective right, the powers included in its content in the absence of contractual or other obligatory relations between the owner and the violator. These are absolute claims and are brought against any third parties who infringe the property right.

Vindication claim

(from Latin Vim. Dicere - to announce the use of force) - the owner’s demand to the one who owns his property that it be returned.

To bring a vindication claim, it is necessary to establish whether the purchaser of the thing is in good faith or not.

A bona fide acquirer of a thing is one who, when acquiring a thing, did not know or should not have known that the alienator of the thing does not have the right to alienate it, since it does not belong to him.

Negative claim

(from Latin Actio negotoria - denying a claim) - the owner’s demands that obstacles in the exercise of the powers of ownership, use and disposal of property be eliminated.

Claim for recognition of ownership rights

– the requirement of the property owner to state to third parties that he is the owner of the property.

Claims under the law of obligations

– these are claims that are aimed at fulfilling the debtor’s obligation to the owner and protect the right of ownership in an indirect way. These claims are relative in nature and are brought against the debtor who is in an obligatory relationship with the owner. Claims under the law of obligations include:

a) a claim for the return of property transferred under the contract;

b) a claim for compensation for damage caused to a thing;

c) claims for the return of property acquired or saved unjustifiably.

4. Protection of honor, dignity and business reputation.

The right to protection of honor, dignity and business reputation is enshrined in Art. 152 of the Civil Code of the Russian Federation. According to paragraph 1 of this article, a citizen has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation, unless the person who disseminated such information proves that it is true.

From the content of this norm it follows that the right to refutation can only exist in relation to the dissemination of defamatory information. It is also important that such a right arises regardless of the method of dissemination of such information, and not only as a result of publications in the media, as was previously the case. The same paragraph states that, at the request of interested parties, protection of the honor and dignity of a citizen is allowed even after his death. Indeed, defamatory information regarding such a person should not detract from the reputation, good name of his family and other subjects of legal relations. At the same time, the legislator gives an indefinitely wide range of possible plaintiffs, using the phrase “at the request of interested parties.”

Information disseminated in the media that does not correspond to reality must also be refuted in the media, and if the specified information is contained in a document emanating from the organization, such document is subject to replacement or revocation. As for the procedure for refuting other situations, it is established by the courts (clause 2 of article 152 of the Civil Code of the Russian Federation).

5. Concept and types of civil liability.

Civil liability

- one of the forms of state coercion, consisting in the collection by the court from the offender in favor of the victim of property sanctions, entailing unfavorable property consequences for the offender of his behavior and aimed at restoring the violated property sphere of the victim.

Types of civil liability.

1. Based on:

• Negotiable

  (the basis for the occurrence
  is
  a violation of the contract, i.e., the agreement of the parties themselves. Therefore, such liability can also be established for offenses that are not directly provided for by sanctions in the current legislation, and in some cases it can be increased or decreased by agreement of the parties to the contract in comparison with the amount provided for by law );

• Non-contractual

  -
  tort
  (ground - causing harm outside the framework of contractual relations, applied only in cases and amounts directly provided for by law and on the conditions established by it).

 By object of harm:

• liability for causing property damage;
• liability for causing moral damage.

1. By number of obligated persons:

• shared

  (each of the defendants is liable in a precisely defined share established by law or contract.

• solidary

  (the victim has the right to make a claim both against all defendants jointly and against any of them, both in full of the damage caused to him and in any part of it

• subsidiary

  /
  additional
  (occurs in the case when the main defendant refused to satisfy the request of the victim or the latter did not receive a response to his demand from him within a reasonable time (paragraph 2, paragraph 1, article 399 of the Civil Code).

6. Ways to protect civil rights.

According to Article 12 of the Civil Code of the Russian Federation, the protection of civil rights is carried out by:

— recognition of law;

— restoration of the situation that existed before the violation of the right, and suppression of actions that violate the right or create a threat of its violation;

— recognizing a contestable transaction as invalid and applying the consequences of its invalidity, applying the consequences of the invalidity of a void transaction;

— invalidation of the meeting’s decision;

— invalidation of an act of a state body or local government body;

— self-defense rights;

- awards to perform duties in kind;

— compensation for losses;

— collection of penalties;

— compensation for moral damage;

— termination or change of legal relationship;

— non-application by the court of an act of a state body or local government body that contradicts the law;

- in other ways provided by law.

5

Vindication claim

1. Concept, subjects and grounds (conditions for satisfaction) of a vindication claim. In accordance with Art. 301 of the Civil Code “the owner has the right to reclaim his property from someone else’s illegal possession.” The formula “a vindication claim is a claim by a non-possessing owner against a non-possessing owner” has become widespread. Thus, the claim of a non-possessing owner against an illegally possessing non-owner for the seizure of a thing (object of ownership) in kind is recognized as vindication.

A vindication claim is brought when the plaintiff is simultaneously deprived of the rights to own, use and dispose of a thing, but retains the title of owner. The defendant, on the contrary, does not have any title to the property he owns - he is the untitled actual owner. Untitled possession occurs in relation to a stolen thing, an appropriated find, i.e. most often in relation to property that has been removed from the owner’s possession against his will.

A defendant who must transfer a thing to the plaintiff under any obligation is not recognized as a non-title owner. This applies both to cases where the defendant still remains the owner (for example, in case of failure to fulfill the obligation to transfer the property to the plaintiff), and to cases where the defendant received possession of the thing from the owner (for example, under a lease agreement) and continues to own it after termination of the contract. In these cases, the plaintiff must defend his violated right with obligatory (relative) claims.

Thus, the grounds for a vindication claim are:

• violation of the plaintiff’s rights to own (and therefore use and dispose of) property belonging to him;
• finding the requested item in the actual possession of the defendant;
• lack of title to the thing claimed by the defendant.

In general, the construction of a vindication claim consists of two inextricably linked components: 1) the absolute component - on the recognition of the plaintiff’s property rights; 2) the relative component - about taking away a thing from the defendant and transferring it to the plaintiff (i.e., about claiming property in kind). The inseparability of these two components is manifested in the fact that the vindication claim is not subject to satisfaction both in the case when the plaintiff has not proven his ownership rights, and in the case when the plaintiff’s ownership has been proven, but the claimed thing is in possession by the time the case is considered in court there was no defendant. The reasons why the thing left the defendant’s possession do not play a role - the owner in this case has the right to bring another claim against the defendant, this time under the law of obligations (for example, to recover the value of the thing).

The vindication claim is subject to the general limitation period (Article 196 of the Civil Code). In accordance with paragraph 1 of Art. 200 of the Civil Code, this period begins to run not from the moment when the owner lost the property, but from the moment when the owner learned or should have learned about which specific person the property being sought is in possession.

2. Proof by the plaintiff of ownership. The plaintiff proves his right of ownership by reference to the grounds for acquiring ownership rights provided for by law (Chapter 14 of the Civil Code)4. Failure by the plaintiff to prove his right of ownership or the court's conclusion that the basis for the emergence of the right is flawed entails refusal to satisfy the vindication claim, regardless of whether the fact of illegal possession by the defendant has been established.

The defendant can (and sometimes, due to the circumstances of the case, must) take an active position. Thus, the plaintiff’s arguments about his ownership rights may be paralyzed by the defendant’s evidence that he himself is the owner. Proving by the defendant that he is the owner of the disputed property on the basis of an agreement with the owner also entails refusal to satisfy the vindication claim, but this time due to the incorrectly chosen method of defense - the plaintiff in this case is not deprived of the opportunity to bring a claim under the law of obligations for recovery things.

Thus, the plaintiff’s proof of his ownership while the defendant’s lack of proof of title means that the defendant is the unlawful owner. Only in this case does it become possible to say that the owner really demands the return of his property from truly illegal possession.

3. Types of illegal possession. Illegal (titleless) possession can be in good faith or in bad faith. A bona fide owner is one who did not know and should not have known about the ownership of the disputed property by another person. For example, an heir who received someone else's property as part of an inheritance may be recognized as a bona fide owner. A thief, or a person who misappropriated a find, or a person who unauthorizedly moved into someone else’s apartment cannot be recognized as a bona fide owner (since the real owner is included in the Unified State Register and the offender should have known about it), etc.

Since in most cases ownership is transferred through civil transactions, the legislation distinguishes the figure of a bona fide and dishonest acquirer. Any acquirer who has the disputed property in his possession is also its owner. Illegal possession during the acquisition of property occurs if the property was not acquired from the owner or a person authorized by him. Accordingly, it is possible to acquire a thing into illegal possession only from a person who is not the owner and who is usually called an unauthorized alienator. An unauthorized alienator can be not only a thief, but also a tenant, custodian, etc., since these persons also do not have the right to dispose of the thing that was transferred to them by the owner under an agreement. A bona fide purchaser is one who did not know and could not know that the property he was acquiring did not belong to the alienator by right of ownership. A bona fide purchaser (and, accordingly, owner) can be recognized, for example, as a person who purchases a stolen item in a thrift store.

Thus, property can always be vindicated by the owner from an owner who is both illegal and dishonest. But if the illegal owner is a bona fide purchaser, the vindication claim is not always subject to satisfaction.

4. Restrictions on vindication in favor of the bona fide owner and purchaser. A vindication claim cannot be satisfied if three conditions are simultaneously met (Article 302 of the Civil Code):

1. the property claimed by the defendant was acquired in a transaction from an unauthorized alienator for compensation;
2. the property came to the unauthorized alienator at the will of the owner (or, in other words, it initially left the owner’s possession at his will);
3. the acquirer of the property was in good faith at the time of acquisition.

If at least one of the first two conditions is missing, the owner has the right to reclaim the property even from a bona fide purchaser.

Thus, a stolen car, for example, is subject to reclaim from a bona fide buyer (it does not matter that the car was stolen from a guarded parking lot - the property is considered to have left the owner’s possession against his will, even if he initially transferred this property to possession by another person under contract).

For a bona fide purchaser of money or bearer securities, an additional “benefit” is established: it is only required that these types of property be acquired for compensation (i.e., a vindication claim cannot be satisfied even if the money or bearer securities were originally, for example, stolen from the owner). Order and registered securities certifying a monetary claim cannot also be demanded from a bona fide purchaser (clause 3 of Article 147.1 of the Civil Code).

If all the conditions provided for in Art. 302 of the Civil Code, a bona fide purchaser of property is recognized as the owner (i.e., Article 302 of the Civil Code provides for a special legal structure for the acquisition of property rights)1. Thus, the plaintiff is denied property rights under Art. 302 of the Civil Code due to the fact that he ceased to be the owner and has no right to a vindication claim.

5. Settlements between the plaintiff and the defendant when satisfying a vindication claim (Article 303 of the Civil Code). These calculations are a special case of calculations when returning property in connection with unjust enrichment (Chapter 60 of the Civil Code). The owner has the right to demand from the illegal owner the return or compensation of income that the owner has received or should have received during the entire period of ownership. In turn, the illegal owner has the right to demand from the owner compensation for the necessary expenses incurred on the property and compensation for the cost of inseparable improvements to the property. The amount of compensation is determined taking into account whether the illegal owner is bona fide or dishonest (naturally, an unscrupulous owner is put in a worse position than a bona fide one).

We protect property rights

Protection of property rights is a set of legal methods that apply to violators of property relations. From this point of view, we can say that the methods of protecting property rights (as well as other real rights) are varieties of methods of protecting civil rights, which are enshrined in Art. 12 of the Civil Code. On the other hand, the protection of real rights itself is an integral part of the broader concept of protection of real rights, the purposes of which are served by all rules on real rights.

Chapter 20 of the Civil Code enshrines special proprietary methods for protecting property rights and other property rights related to their absolute nature, that is, designed to protect them from direct unlawful influence of any third parties.
They are contrasted with the law of obligations methods of protecting property rights, designed for cases where the owner is connected with the offender by obligatory, most often contractual, relations. For example, in the case when the tenant does not return the property belonging to him to the landlord-owner at the end of the contract and thereby violates the latter’s right of ownership, legal methods of protection are used that take into account the specifics of the specific relationship between the parties. Therefore, our legislation in this regard does not give the owner the opportunity to choose the type of claim and does not allow the so-called “competition of claims”, characteristic of the Anglo-American, and not the continental European legal order. Consequently, if there are contractual or other obligatory relations between the parties to the dispute, property rights claims cannot be made in defense of their rights. This is the practical significance of these differences. Chapter 20 of the Civil Code of the Russian Federation establishes two traditional proprietary claims that serve to protect property rights and other property rights: vindication (Article 301 of the Civil Code of the Russian Federation) and negatory (Article 304 of the Civil Code of the Russian Federation). In both cases, we are talking about methods of protection that are designed to protect the right of ownership of a property that is preserved in kind. In the event of its loss or impossibility of returning to the owner, we can only talk about compensation for losses caused, that is, about obligatory, and not proprietary legal relations.

There are exceptions to this rule. On the one hand, the Civil Code itself includes compensation among the methods of protecting property rights in the event of seizure of property in accordance with federal law, that is, its nationalization (Article 306 of the Civil Code of the Russian Federation). In this situation, the owner is obliged to obey the law and does not have the right to demand the return of his property, but can seek full compensation - recovery of losses (Clause 2 of Article 15 of the Civil Code of the Russian Federation), including both the income he did not receive and the value of the property he lost. This right, however, belongs only to the owner, and not to the subject of other (limited) property rights, for example, the right of economic management or operational management.

On the other hand, a claim against the state, whose authorities have illegally seized a person’s property, for the release of this property from seizure (exclusion of property from the inventory) is not included by law in the number of claims in rem (methods). This claim, in essence, comes down to a claim for recognition of ownership of property illegally included in the inventory and seized, and not to the protection of an existing and undisputed right of ownership.

Vindication claim is the owner’s demand for the return of his property from someone else’s illegal possession. It is a claim by an owner who does not own specific property against a non-owner who is illegally in possession of it. This requirement is established in case the owner loses possession of his property.

The subject of the right to vindication is the owner (or other titular, that is, legal owner), who, therefore, must prove his right to the claimed property, that is, its legal title. The subject of the obligation here is the illegal owner, who actually possesses the thing at the time the claim is made. If by this time the defendant does not have the item, a vindication claim cannot be brought, because the item of vindication itself has disappeared. It is possible, however, to bring a claim against such a person for compensation for losses caused by him to the owner (Article 126 of the Fundamentals of Civil Legislation).

The object of vindication in all cases without exception is an individually defined thing that has been preserved in kind. It is impossible to bring a vindication claim in relation to things defined by generic characteristics or not preserved in kind (for example, in the case when the disputed structure was completely rebuilt, and not just repaired by the actual owner and became practically a new immovable thing). After all, the content of such a claim is the return of a specific thing, and not its replacement with another thing or things of the same kind and quality.

Illegal possession of someone else's property can be either in good faith or in bad faith. In the first case, the actual owner of the thing does not know and should not have known about the illegality of his possession (and most often that the alienator who transferred the thing to him was not authorized to alienate it): for example, when purchasing a thing in a consignment store or at an auction trade, when the seller intentionally or unknowingly concealed from the buyer the lack of required authority. In the second case, the actual owner knows or, due to the circumstances of the case, should know that he has no rights to the property (for example, a thief or purchaser of an item “second-hand” at a known low price).

The property may be reclaimed from an unscrupulous purchaser by the owner in all cases without any restrictions. On the contrary, it is impossible to reclaim money and bearer securities from a bona fide purchaser (clause 3 of Article 302 of the Civil Code) due to the practical difficulties of theoretically possible proof of their individual certainty and the possibility of receiving homogeneous (monetary) compensation from the direct cause of property damage.

Property can be claimed from a bona fide purchaser in two cases. Firstly, if the property was received by him free of charge (under a gift agreement, by inheritance, etc.), since such seizure will not cause property losses to him, but will contribute to the restoration of the violated property right. In paragraph 2 of Art. 302 of the Civil Code of the Russian Federation, this possibility is formulated as a general one, covering cases of both bona fide and dishonest gratuitous acquisition of someone else’s property.

Secondly, in the case of a paid acquisition of a thing by a bona fide purchaser, the method of disposal of it from the owner is important (clause 1 of Article 302 of the Civil Code). If the property was initially taken away from the owner by his will (for example, it was leased by him and then illegally sold by the tenant to a third party), he does not have the right to reclaim it from a bona fide purchaser. After all, the latter acted subjectively impeccably, in contrast to the owner himself, who was imprudent in choosing a counterparty. The owner is not deprived of the opportunity to demand compensation for losses caused to him by such an unscrupulous partner. But if the property has left the owner’s possession against his will (lost by the owner or a person to whom the property was transferred into possession by the owner, for example, a tenant, custodian or carrier; stolen from one or the other; left their possession in some other way against their will), it can be demanded even from a bona fide purchaser. After all, here the behavior of both the acquirer and the owner is subjectively impeccable. But the acquirer is, although a bona fide, but still an illegal owner, therefore the interests of the owner are preferred. A bona fide purchaser retains the right to compensation for losses caused to him by the alienator of the thing.

The Code introduced only one fundamental innovation in this regard, extending the possibility of reclaiming a thing from its bona fide paid purchaser to cases where the thing was disposed of not only from the owner, but also from the person to whom the property was transferred by the owner into possession (and, therefore, was originally disposed of from the owner himself according to his will). This protects to a greater extent the interests of not only owners, but also bona fide subjects of economic management and operational management rights, as well as tenants. After all, they are interested in the use of specific property, which the owner, in the absence of this rule, would not be able to claim from a bona fide paid purchaser.

By virtue of the rules of Art. 303 of the Civil Code, the owner has the right to demand from an unscrupulous owner not only specific property, but also all the income that this owner received or should have received from the property for the entire time of his ownership (or compensation for them). Such an obligation falls on a bona fide owner only during the time when he learned or should have learned about the illegality of his possession.

On the other hand, both a bona fide and an unscrupulous owner have the right to demand from the owner compensation for the necessary costs of maintaining the property for the time from which the owner is due income from the property. After all, he receives the item in good condition and with income (or compensation thereof), saving on necessary expenses. It is clear that the absence of such a rule would lead to unjust enrichment of the owner.

The bona fide owner of the claimed property is also recognized the right to retain separable improvements that he has made in someone else's property. He can also demand from the owner compensation for the costs of improvements made by him that are inseparable from the property, because otherwise the owner would again receive unjust enrichment.

A negative claim is a requirement to remove obstacles to the exercise of property rights that are not related to the deprivation of the owner of possession of his property. Such obstacles may, for example, be expressed in the construction of buildings or structures that prevent light from entering the windows of a neighboring house or create other interference with its normal use.

The subject of a negatory claim is the owner or other title holder who retains the thing in his possession, but experiences obstacles in its use. The subject of the obligation is considered to be a violator of the owner's rights who acts illegally. If the interference is caused by legal actions, for example, the laying of a pipeline near a house, which is permitted in accordance with the established procedure, they will either have to be endured or their legality challenged, which is impossible with the help of a negatory claim.

The object of the requirements for a negatory claim is the elimination of a continuing offense (illegal state) that persists at the time the claim is filed. Therefore, relations under a negatory claim are not subject to the statute of limitations; the claim can be presented at any time while the offense continues.

Vindication and negatory claims in defense of their rights and interests can be brought not only by owners, but also by subjects of other rights to property - all legal owners (Article 305 of the Civil Code). These include subjects of both real rights of lifelong inheritable possession, economic management, operational management and others, as well as subjects of obligations rights associated with the ownership of other people's property (for example, tenants, custodians, carriers).

At the same time, title (legal) owners who possess property by virtue of law or agreement, during the period of validity of their rights, can defend their right to ownership of property even against its owner. That is why a unitary enterprise, as a subject of the right of economic management of state or municipal property, can claim it even from the founding owner in the event of its illegal seizure, and the tenant can bring a negative claim against the lessor-owner who is trying to illegally deprive him of the right to own the leased property before the expiration of the contract by turning off electricity and heating or creating other obstacles to its normal use.

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Negative claim (Article 304 of the Civil Code)

The rights of the owner may be violated as a result of creating obstacles in the exercise of his powers to use his property. For example, such violations are preventing the owner from entering the premises he owns by posting security guards by the owner of the building, unauthorized construction on the owner’s land, power outages, etc.

In these cases, to protect the violated right, such a method of proprietary protection as a negatory claim is used. The owner's claim to protect property rights by eliminating violations not related to the deprivation of the owner's possession is considered negative.

Satisfying a negative claim, the court may impose an obligation on the violator to perform certain actions (for example, remove garbage), as well as to refrain from actions (for example, stop placing industrial waste on the land plot).

The limitation period does not apply to negatory claims (Article 208 of the Civil Code), unlike vindication claims. In this regard, the criterion for distinguishing between negatory and vindication requirements is of great practical importance. Such a criterion is to establish the fact of whether the thing is in the illegal possession of the violator (vindication claim) or not (negative claim). Thus, claims for eviction from residential premises are qualified as vindication claims, since the violators, living in the premises and not allowing the owner there, actually own it. On the contrary, the requirement to dismantle a sales counter installed in the hall of a non-residential building is qualified as a negatory claim, since the owner has free access to the hall of the building he owns.

Common shared ownership and features of the exercise of powers by its participants

1

.
A co-owner owns a share in the right
, but
not in the thing
. So, in the given example with the joint purchase of an apartment, each of its purchasers is the owner of a share in the right of common shared ownership of the entire apartment. But this does not prevent the latter from concluding an agreement on determining the procedure for using residential premises, stipulating who will live in which of the three rooms (Article 247 of the Civil Code), on the distribution of income from the use of common property (Article 248 of the Civil Code), for example, through renting it for rent, etc.

2

.
Possession and use
of property constituting the subject of common shared ownership is carried out by agreement of all co-owners, and in the event of a dispute, by the court at the request of any of them. Each of the shared co-owners has the right to claim ownership and use of a part of the common property commensurate with his share. If any of the co-owners owns and (or) uses a part of the common property that does not correspond to the size of his share, this discrepancy must be compensated. The procedure for using common property can also be determined by established custom (clause 2 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 25).

Maintenance costs

Participants in shared ownership also bear common property in proportion to the size of their shares (Article 249 of the Civil Code). Moreover, as a general rule, the obligation to bear the burden of maintaining common property does not depend on whether the co-owner uses it or not.

3

.
Disposal
of common property, as a rule, is carried out by agreement of all participants in shared ownership (clause 1 of Article 246 of the Civil Code); if such an agreement is not reached, the law does not allow determining the procedure for disposing of common property in court, since this would be too gross interference in the sphere of autonomy of will co-owners.

At the same time, the share

in the right of common ownership, each of its participants can dispose at its own discretion, taking into account the right of the remaining co-owners to the
preemptive acquisition
of the alienated share - in case of its
alienation for compensation
(clause 2 of Article 246 of the Civil Code)
outsider
.

Thus, the right of first refusal from co-owners arises when one of them sells his share in the right of common ownership, with the exception of cases of sale of a share at public auction (taking into account the rules of
Article 255
of the Civil Code) and the sale of a share in the right of common ownership of a land plot during a simultaneous sale parts of a building or structure located on such a site or premises therein.

To ensure the pre-emptive right to purchase, a co-owner who wishes to alienate his share to a third party is obliged to notify

other participants in shared ownership about their
intention to sell the share
, indicating
the price
and
other conditions of sale
.
The notification must be made in writing
and
received
by the addressee
(taking into account clause 1 of Article 165.1 of
the Civil Code).
If the remaining co-owners within a month - when selling real estate or within 10 days - when selling movable property from the moment of their notification, refuse
to purchase or
do not acquire
the share being sold (including by ignoring the message about the sale), then the seller will be able to sell his share
for the specified in communicating the terms and conditions
to a third party. Moreover, these terms are preemptive, which means the termination of the preemptive right upon their expiration.

If the seller violates this obligation, any of the participants in shared ownership has the right to, within a shortened period of limitation,

- three months - in court to demand
the transfer of rights and obligations under the transaction to him
, i.e. the latter is not recognized as invalid, only a change in the subject occurs on the buyer’s side (see clause 14 of the Resolution of the Plenum of the RF Armed Forces, Supreme Arbitration Court of the Russian Federation No. 10/22, clause 1.2 of the Resolution of the Plenum of the RF Armed Forces No. 4).

By virtue of clause 5 of Art. 250 of the Civil Code, the above rules also apply to the exchange

(but if the share is exchanged for some unique thing, for example, a residential building or an original painting by a famous artist, the remaining co-owners are unlikely to be able to exercise their right of advantage; this, however, does not mean that they do not need to be notified of the upcoming exchange).

The exercise of the right of pre-emptive acquisition when making a share in the right of common ownership as a contribution to the authorized (share) capital of a business company or partnership is excluded (see Determination of the Supreme Court of the Russian Federation of March 11, 2014 N 56-KG13-12) in the event of its alienation in within the framework of relations of lifelong maintenance with dependents (clause 1.2 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 4).

4

.
As follows from paragraph 1 of Art. 24 of the Law on Registration of Rights to Real Estate, a transaction for the sale of a share in the right of common ownership of real estate
a third party must be concluded in
notarial form
.
of land shares
require notarization (clause 3 of Article 24.1 of the Law on Registration of Rights to Real Estate).

In contrast to the general rule of paragraph 1 of Art. 223 of the Civil Code, the share in the property right is transferred to its acquirer under the contract from the moment of its conclusion. If the agreement itself or the transfer of the right in which the share is acquired requires state registration, the moment of transfer of the corresponding share is associated with the moment of such registration (Article 251, paragraph 2 of Article 223, Article 8.1, 131 of the Civil Code).

5

.
The division
of property that is the subject of common shared ownership is carried out by agreement of its participants and entails the termination of common ownership.
If only one of the subjects of common property wishes to withdraw from its participants, he has the right to demand the allocation
of his share in the relevant property (after the allocation between the remaining participants in the common property, the relations of shared ownership are preserved). By agreement of the participants in the common shared ownership, the allocated co-owner, instead of allocating a natural share by other co-owners, may be paid compensation for its value.

If no agreement is reached

between co-owners, the division of common property, as well as the allocation of a natural share from it, is carried out
in court
.

It should be noted that the allocation of a share from the common property or its division is not always possible. So, for example, in relation to a residential building, they are permissible only if it is possible to isolate its isolated part with a separate entrance or convert the corresponding part of the house into an isolated one. If, in this case, the shares in the property formed as a result of the division do not correspond to the size of the shares in the right of common shared ownership, the corresponding difference is compensated (see paragraph 11 of the Resolution of the Plenum of the USSR Supreme Court No. 4).

Under certain circumstances, the law, in principle, does not recognize the right of shared co-owners to allocate their share in the common property in kind, allowing only the possibility of appropriate compensation. This right to compensation arises in the following cases:

1) the law does not allow the allocation of a share in kind (paragraph 2, paragraph 3, article 252 of the Civil Code);

2) the allocation of a share in kind is impossible without disproportionate damage to the common property (paragraph 2, paragraph 3, article 252 of the Civil Code), for example, if it entails the impossibility or inconvenience of using the property for its intended purpose, a significant reduction in the material or artistic value of the latter (see paragraph 35 Resolution of the Plenum of the RF Armed Forces, Supreme Arbitration Court of the Russian Federation N 6/8, paragraph 7 of the Resolution of the Plenum of the RF Armed Forces No. 4);

3) by a court decision on the payment of such compensation, regardless of the consent of the co-owner who filed a claim for the allocation of his share in kind

, if the latter
is insignificant, it cannot be actually allocated
, and the interest of the allocated co-owner in the use of common property
is insignificant
(clause 4 of Article 252 of the Civil Code, Determination of the Constitutional Court of the Russian Federation of February 7, 2008 N 242-О-О).

Claim for the release of property from seizure or its exclusion from the inventory

In order to secure a claim or to ensure foreclosure on the debtor's property, property belonging to the debtor may be seized. Seizure of property always means a prohibition to dispose of this property, and, if necessary, additionally - restriction of the right to use the property or seizure of property. The seizure of property is carried out by a bailiff with the drawing up of an act of seizure (inventory of property). As a rule, seized property is subsequently sold by bailiffs forcibly, i.e. becomes the property of third parties.

Sometimes a seizure is imposed on property that is in the debtor's possession, but does not belong to the debtor by right of ownership. In this case, the property can be either in the possession of the owner (for example, the property of the debtor’s wife when the spouses live together) or in the possession of the debtor (for example, property rented by the debtor). In this case, the owner has the right to apply to the court to release the property from seizure. This method of proprietary protection is regulated by Art. 119 of the Law on Enforcement Proceedings.

A claim to release property from seizure or to exclude it from the inventory is a claim by the owner to lift restrictions on the disposal of property, aimed at preventing the sale of seized property in the future.

Sometimes the seized property is transferred by the bailiff to a third party for protection or storage. In this case, the owner must, in addition to the claim for the release of property from seizure, file a vindication claim against the actual owner. If the seized property has already been sold by bailiffs, then the owner can only bring a vindication claim against the actual owner.

Other proprietary methods of protection

Theory and judicial practice have developed proprietary methods of protection, which are not yet directly specified in the Civil Code.

Basically, these are methods of protecting the right of ownership of real estate, the specificity of which is explained by the fact that the only acceptable evidence of ownership of this property is an entry in the Unified State Register.

The most widespread in practice is the claim for recognition of property rights. The main features of a claim for recognition of property rights are: 1) this claim is not aimed at confiscating property from anyone; 2) the statute of limitations does not apply to claims for recognition of ownership rights. Based on these features, in fact, a claim for recognition of property rights can only be satisfied if it is brought by the plaintiff-owner, who owns his property, against the defendant, who does not recognize the plaintiff’s property rights. In the case where the plaintiff does not own the real estate, the requirement for recognition of ownership rights can be satisfied only within the general limitation period - it is believed that in this case the violated right cannot be protected only by recognition of ownership rights without considering a vindication claim.

There is a claim to declare a right or encumbrance absent.

This method of protecting the right of ownership of real estate is used when an entry in the Unified State Register violates the rights of the owner of the real estate, but there is no basis for using the methods of proprietary protection discussed above. It is required to recognize the registered ownership right of a third party as absent (non-existent) when the ownership right to the same piece of real estate is erroneously registered for both the plaintiff and another entity (it is clear that this creates uncertainty in the ownership of the object) or when the ownership right for movable property the property is registered as real estate (for example, a path passing through the owner’s land). It is required to recognize a registered encumbrance on real estate as absent (non-existent) when the encumbrance has actually ceased, but the entry from the Unified State Register has not been deleted (for example, the mortgage has ceased due to the repayment of the loan, but the bank refuses to submit an application to remove the mortgage)1.

Category two. Law of obligations

These methods differ in that they are not used for direct protection - they are aimed, first of all, at defending the property interests of the owner. Although, as a result of their use, property rights are also protected. Let us also add that claims here can be based both on contracts and on obligations that are considered non-contractual.

Claim for compensation for damage caused by non-fulfillment or dishonest fulfillment of the terms of the contract

Here, a lot depends on the type of contract, its (contract) subject matter, as well as the contractual obligations that were violated. The protection itself is based on general obligatory norms and requirements designed for specific obligations. Article 398 of the Civil Code states that if the obligation to transfer a thing into possession is not fulfilled, then the creditor may demand its seizure from the debtor for the purpose of subsequent transfer to him.

Article 398 of the Civil Code of the Russian Federation

Claim for damages

If a person caused property damage, then according to Article 1064 of the same code, he is obliged to fully compensate for it.

There are two forms of compensation:

• monetary;
• natural (this form is also called real).

Article 1064 of the Civil Code of the Russian Federation.
General grounds for liability for damage If, ​​due to the damage caused, it is impossible to restore the property or its further use, but the thing itself is still in possession, then the owner has the right to demand compensation. You can make a claim through the court, but there must be a causal connection between the actions of the culprit and the damage.

Claim for the return of property transferred for use in accordance with the terms of the agreement

According to the law, the item must be returned in the condition in which it was transferred into possession, taking into account depreciation over its service life, or in the condition specified in the contract (Article 622 of the Civil Code).

Article 622 of the Civil Code of the Russian Federation. Return of leased property to the lessor

The tenant is responsible for the condition of the rented property, its damage or loss. But according to the law, such liability is limited: a person who has not fulfilled the obligation to preserve property should be held liable only if there is fault (regardless of whether everything happened intentionally or unintentionally), unless other grounds for liability are specified in the contract/laws.