A Draft of Federal law №47538-6, by which some essential changes to the Civil code of the
Russian Federation are supposed to be entered (further referred to as “Draft Civil code”), has
been passed in the first reading by State Duma of the Federal Assembly of the Russian
Federation. According to the most recent information, these changes shall become effective in
March of 2013.
Fundamental changes in regulation of ownership right and other proprietary rights, that can
strongly affect interests of owners and possessors of real estate, lessees, developers, investors
and their relationship with state authorities are proposed by the Draft Civil code. A new set of
concepts, terms and institutes is appearing.
A concept of possession is entered, that means “actual supremacy over the object of possession”
(Art.209). Possession can be acquired by establishment of such actual supremacy over a thing,
for instance, as a result of delivery of a thing to its acquirer. Either legal or illegal owner of a
thing can use a right of defense of possession. A claim of a possessor on possession defense shall
be satisfied by court, if it is stated that the thing has been withdrawn from possession as a result
of stealing, arrogation or by other means without his intention.
Liberalization of acquisition of ownership right to an unauthorized construction is taking place.
An unauthorized construction shall be deemed legal also in case if purpose of such unauthorized
construction does not correspond with permitted use of the land plot on which it is built.
In Art.292 of the Draft Civil code it is stated that either the owner of a land plot has a preemptive right to acquire into his ownership buildings or constructions located on it, or the
ownership of a building or a construction has a pre-emptive right to acquire into his ownership
the land plot on which such objects are located. Thus, an impetus for uniting of land and
constructions by one person is proposed. However, the Draft Civil code does not provide any
procedure in case of possible “collision” of such pre-emptive rights.
Art.294 of the Draft Civil code provides a list of neighbor rights and obligations, which can be
changes by consent of the parties. Entering of such norms shall with high probability reduce the
quantity of nugatory claims stated against owners and possessors of neighbor land plots.
A right of permanent land usage – a right of possession and usage of an alien land plot,
established on paid basis, termless or for a stated term (not less than 50 years) for purposes stated
in law, the achievement of which is connected with natural characteristics of the land plot usage
is provided. Such right confers the land plot to its possessor actually forever and gives a
possibility to dispose of the right of permanent land usage.
A right of construction is one of the brightest introductions. It is a right of possession and usage
of an alien land plot, for purposes of construction a building or another real estate object on it
and its further exploitation. Such right can be a ground for construction a building or another real
estate object on a land plot, which, within the term of such right, shall be ownership of the
person having the right of construction.
Acquisition of a right of construction shall in due course become an exclusive method of
obtaining possibility to construct, because it is provided by transitional provisions that since the
date of enactment of the new Civil code conclusion of state or municipal land plots lease
agreements for the purposes of construction, with acquisition of ownership right by the
developer shall be prohibited. However it is possible that this norm shall be reviewed, because it
contradicts to actual land legislation.
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The Draft Civil code establishes an exhaustive list of possible arts of easements. Public
easements shall not be provided. Now it is a contradiction to actual land legislation.
A right of private usage and possession is introduced. By this right and owner of a real estate
object shall submit to an individual or non-commercial organization a right of private possession
and usage of a real estate object (p.1 of Art.302). As the amount of payment for usage and
possession cannot be revised more often than once per seven years (p.2 of Art.302.2), a “social”
alternative to lease is created, which shall be widely used by leasing of resident premises for
individuals and offices for non-commercial organizations.
The Draft Civil code provides a so-called urgent ownership right – a right of acquisition of an
alien real estate object. On the basis of such right a person has an exclusive right to acquire a
thing into his ownership for a stated term by conclusion of an agreement with the real estate
object owner.
A right of proprietary distribution is introduced, on the basis of which the possessor of such right
shall obtain from the owner of a real estate object an advancement in the form of goods, money,
works or services (exclusive of submission of a right to use the real estate object encumbered by
the right of proprietary distribution), and in case of non-submission of such advancement he shall
have a right to dispose of such real estate object by means of charging order. Thus, an alternative
to division of a unified real estate object by its transfer to the ownership of several persons is
proposed: the real estate object is the ownership of one of these persons, and the other obtain
from him proprietary distributions and make no claims for usage of such object or its part.
In Art.297.1 of the Draft Civil code a right of limited possession of a land plot is established. It
is a right of an owner of a building or a construction located on a land plot that belongs to
another person to use such land plot to the extent necessary for provision of his access to this
building or construction. Such right is profitable for the owner of a building or construction
because the necessity of possession and usage of the adjacent land plot appears just always,
moreover, it is important that it does not require state registration and, correspondingly, time for
it.
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