Superficies – from Roman to Ukrainian Law

• Main Author: О. А. Сурженко
• Format: Article
• Language: English
• Published: Yaroslav Mudryi National Law University 2016-03-01
• Series: Теорія і практика правознавства
• Subjects: special property; superficies; development right; ownership right; real estate
• Online Access: http://tlaw.nlu.edu.ua/article/view/63178

A notion of superficies under a Roman Law as a material right, which has initially emerged in public relations, and further has formed as a private special property, is explained. The nature of this right was also changing – leasing relationships, being binding, yielded to proprietary relations. Personal right (based on an agreement and bound to a person directly) was replaced by legal regulation of material right (bound directly to an item of property – a lot) as well. This gave substantial advantages in exercising of and protecting such a right by its subject. The process of transformation of the nature of development right came amid (or even was conditioned by) a special remedy, provided by a praetor. This right remained like this on the territories, belonging to Ukraine, until mid 1920s and was regulated in the Civil Code of Ukrainian SSR of 1922 as development right. At the same time its regulating was incomplete, and as the experience has shown, it didn't meet legal schemes of that time, and proceeded forming peculiarities and it received the name “Soviet Law” in following years. The reason for that was empery of a doctrine of state property and practical elimination of private property, all the more so the land title. That is why grounds for existing of such a material right as superficies vanished. A way of superficies regulating in Ukrainian law as prototype of superficies of Soviet times and superficies recovery in the Civil Code of Ukraine of 2003 is traced. In Sowiet Period development was regulated on the territory of Ukraine, but on a lot, belonging to the state. A situation is in a way similar to developer right to use non 2 owned lot for building was formed. But the vital difference was the fact, that natural persons became owners of buildings, constructed on a non-owned lot. It was this fact, which was a problem during superifices regulation recovery in the Civil Code of Ukraine of 2003. Succession of modern Ukrainian superficies civil regulating from its regulating by Soviet Ukrainian Law provides that owners of buildings couldn't be deprived of their right with adoption of the Civil Code of 2003. This implies vital differences between superficies regulating under Roman Law and the law of modern Ukraine. The main one therefrom is the fact, that superficies in fact does not involve ownership right to a building, constructed on non-owned lot. That is why a rather unique situation has formed, when superficies, being a private special property, didn't involve legal regime of construction. Main characteristics of supreficies by means of determining its object, subjects, their rights and obligations, grounds for emerging and protection are given.