ACQUISITION OF OWNERSHIP RIGHTS BY ACQUISITIVE PRESCRIPTION AND ITS DIFFERENCE FROM THE ACQUISITION OF PROPERTY WHEN BUYING PROPERTY FROM AN UNAUTHORIZED ALIENATOR
Journal Title: «Приватне та публічне право» - Year 2017, Vol 3, Issue
Abstract
In this work, the essence and content of the material right to own another’s property within the period of acquisitive prescription has been investigated. The grounds and the procedure for acquiring property on another’s property as a result of its long, open and continuous use as a bona fide purchaser, as well as by a person who did not return property after the end of the contractual use period, have been analyzed. A comparative analysis of Ukrainian and foreign legislation in this area of legal regulation is carried out. In the current version of Ukrainian civil law, this institution is somewhat different in content from legal constructions that ensured the achievement of the same result in other states. In this respect, using the experience of individual countries, it was proposed at the legislative level to consider in detail the issue of introducing a mechanism for acquiring property into ownership after the possession of possession for unfair purchasers, by establishing for them an elongated period of acquisitive prescription. The question of the possibility to become owner of ownerless property in case of its long retention is investigated. For this, a comparative analysis of Ukrainian and foreign legislation was carried out. Appropriate recommendations have been made to achieve the effectiveness and effectiveness of legal norms in this field. The structure of the legal mechanism and the content of the factors determining the productivity of this institution are studied. In particular, much attention is paid to the legal essence of such a factor as good faith - bona fides, which is one of the important conditions for the long-time possession of another's property. Criticized scientific concept, according to which the non-titular occupant during the whole period should be in a state of ignorance of the rights of another person, who owns the property, violated by his ownership. With such an approach, if a person who has property for a certain period of time, from some moment knows, to whom it belongs and the ownership of this property has not ceased, then he becomes unfair and can not acquire the right by prescription of possession. and, according to this logic, from this moment the flow of acquisitive prescription ceases. In fact, the situation where the owner during the entire purchasing period did not know about the existence of the owner of the property is unlikely and not viable. The owner, say, of someone else's immovable property can not remain in good faith throughout the entire purchasing period. After all, the right of ownership by acquisitive prescription for immovable property is acquired by a court decision at the owner’s request. Therefore, the decisive importance is attached not to bona fide possession, but to the bona fide occupation of things. Proposals have been made to correct doctrinal and legislative approaches in the commented field.
Authors and Affiliations
П. Д. Гуйван
Keywords
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