Wednesday, 8 March 2017

Common property in household communities

Couple of months ago, in November 2016, the Constitutional Court of Russia issued a decision on a controversial topic of legal regime of property which is due to serve to different households (such as roads or water pipelines) in ‘summer cottage’ communities (Russian text is availably here). Unfortunately, the Court skirted the main problem, answering the questions formally and avoiding delving into the essence of the relationships in question. So, what was it all about?

I have already written about the modern history of real estate doctrine in Russia, trying to show that during the last decade of the 20th century (and the first decade of post-Soviet economic reforms) the focus of both the government and the legislators was on the speed of privatizstion and not at all on the clarity of the law. In particular, apartments in blocks of flats and land parcels were transferred to private owners through entirely different schemes which led to completely distinct legal regimes for so called ‘serving property’ in the current legislation.
While apartments are usually individual property, everything which is not within a flat volume and is due to help using the flat as a place of living (for instance, a basement, a roof, all the pipes and cables outside the flat, elevators and so on) is considered as common property of all the flat owners. For this property special regulation is provided, namely it can be sold only with the apartment (while the apartment cannot be sold without a share in the common property), the title on this property is not to be registered separately, any owner of the flat is entitled to bring an action to protect such property…
Meanwhile, although individual households built upon private parcels have arguably the same functions (that is to live in) and their purchase is commonly considered as alternative to buying a flat, they have a distinct regime as far as property rules are concerned. Within the private plot there is understandably no room for common interests and thus co-ownership but even as one makes the first step out he or she enters another’s private property. The current law surprisingly ignores the obvious fact that a road or a pavement is something of common usage. So it is quite common when all the infrastructure of a households community is sold to a single buyer with the only reason to exploit local monopolism.
In this particular dispute an owner of a parcel in one of the most luxurious villages in the whole Russia (namely one of Moscow’s suburbs called Barviha) brought two actions simultaneously namely an action to recover several parcels from a buyer of such common used property and at the same time – an action for restitution of the same arguably void sale contract. He tried to prove that in households communities the same rules should be applied as were outlined above for apartments in blocks of flats, so any contract of sale of such commonly used property into a sole ownership violates constitutional guarantees on property protection despite being made according to the current legislation.
He unsurprisingly lost his case as in Russian law one cannot ask for restitution and vindication. Having discussed some legal technicalities from only the formal perspective of literal construction, the Constitutional Court eschewed looking thoroughly at the problem, leaving it to lay people to pay extra to malicious purchases of commonly used property and to the legislator – to tackle the problem when in thinks fit.

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