What is the right of common shared ownership and share in it as an object of civil rights?
In science, there are four basic concepts that in their own way determine the nature of the share in the relationship of common shared ownership: 1) the concept of "share in the right"; 2) the "ideal share"; 3) share in cost & quot ;; 4) real share .
Supporters of the concept of "share in the right" argue that each participant extends his power over the whole thing. The ownership of a share means only the limited ownership of each co-owner, the need to reckon with other participants in the law of common shared ownership. Here is what LM Minkin writes, for example: "A share in the right of ownership can be defined as a civil-legal construction that designates the ownership of a participant in a shared ownership of a common thing, limited in accordance with the law in its implementation in connection with the presence of similar rights with other co-owners. "
The concept of ideal share It is based on the mental division of a thing without the individualization of each component part. "Several persons are represented by subjects of the same ownership, so that each belongs to the ideal share of the thing, the material part of each co-owner can not be determined ... if each atom owns a certain ideal share in each atom, then this share belongs to the co-owner and in the whole thing ...
Adherents of the share in cost believe that the share - a concept rather cost, economic. Accordingly, the ownership of a share denotes the belonging of a part of the value of a thing. Here is what RP Manankova wrote on this score: "The share is an arithmetic indicator of the ratio of the value of the contribution of each co-owner and the value of all common property, this is the private separation of these values. The fraction itself still remains an abstract quantity and is expressed in fractions: 1/2, 2/3, etc., 0.3, 0.7, etc. or in percentage terms. In application to the legal relationship of common shared ownership of this abstract value is the value expression, formed from the ratio of the value of the contribution of the co-owner and the value of the entire common object. "
Finally, the fourth concept - the "real share" determines the share as a well-defined part of the property granted to the common property participant in the actual possession. At the same time, it assumes that the belonging of a part of the property does not mean the separation and, accordingly, the termination of the right of common ownership. In this case (in the event that a part of the property is taken into possession. <-> Note, Aut.) all the signs of common ownership are preserved: the existence of a plurality of subjects and the existence of a specific relationship between them regarding their property.
Judicial practice of the universal concept of a share does not lead. In some cases, courts stand on formal positions determined by law, seeing a share in the law. In others, when, for example, we are talking about the division of common share ownership, the change in the size of shares, in judicial acts, the concept of "stake in value" is more likely to be seen. Finally, in the disputes related to the protection of the right to share, the concept of "real share" prevails. This is evidenced, inter alia, by the supposed possibility of vindicating a share in the right of common shared property (paragraph 42 of the ruling of the Plenum of the Supreme Court of the USA and the Plenum of the Supreme Arbitration Court of the USA No. 10/22 of April 29, 2010 "On some issues arising in judicial practice at resolution of disputes related to the protection of property rights and other proprietary rights ").
Sometimes in one judicial act a mixture of several concepts is allowed. For example, in one of the cases, the court indicated the following: "The share in the right of common shared property is a property that has a certain value for the owner and third parties. Such a share in the law is negotiable. It can be alienated, received by inheritance, it can be foreclosed for debts.
The same rules apply to transactions with shares in the ownership of immovable property as to transactions with real estate (Article 251, referring to paragraph 2 of Article 223 of the Code). So, item 1 of Art. 131 of the Code, providing for the state registration of ownership of immovables, restrictions of this right, its occurrence, transition, termination, does not contain exceptions to real estate owned by several persons.
Shares in the right to immovable property are registered with the state registration authorities. They have individually-defined legal characteristics predetermined by the thing itself (the definition of the Supreme Arbitration Court of the United States of December 2, 2009 No. VAS-13944/09 in case No. A56-31225/2008).
Is there a specific regulation of the relations of common shared ownership?
The relationship of common equity ownership in general terms is regulated by Ch. 16 of the US Civil Code. However, as L.Minkina correctly noted, in a number of cases the legal regulation of shared ownership has a certain specificity, conditioned by the object of the corresponding legal relationship or the basis for its occurrence.
The author points out the following types of shared ownership with special legislative regulation: 1) shared ownership of persons who have concluded an agreement on joint activity between themselves (a simple partnership agreement); 2) shared ownership of common property in an apartment building; 3) shared ownership of agricultural land. We will add to this list also: 4) shared ownership of monuments and ensembles, as well as land plots within the boundaries of which monuments and ensembles are located; 5) equity ownership of property forming a unit investment fund.
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