Abstract
Land Code (25.10.2001 ¹ 2768-III) regulates land relations in Ukraine. Section III of this code distinguishes between these types of land rights:
1) The right of land-ownership
2) The right of land-use:
• lease (the right to use property for a certain period subject to payment);
• use of someone else's property ("servitude" - the right to use someone else's property in order to satisfy a need, in the event that such a need cannot be satisfied in any other way);
• use of someone else's land for agricultural purposes ("emphyteusis");
• use of someone else's land for construction ("superficies");
• permanent use of land (this is established only in relation to plots of land which are state or communal property, and then only for state companies and certain not-for-profit organisations).
Superficies is included in the section of rights dealing with material possessions. Although some civil law specialists consider superficies to be a kind of land servitude (easement), I will treat these land relations as an independent institution of civil and land law.
In Roman law, superficies referred to material right to someone else’s property. Let’s note, that in this case “material right” referred to anything that allowed an individual to possess or use goods or property that belonged to someone else, which limited the owner in his rights to these goods or property.
The concept of superficies is similar but not identical to that of lease.
The following table shows the main differences between lease and superficies:
¹
|
Nature of difference
|
Lease
|
Superficies
|
1
|
Type of agreement
|
Lease contract
|
Contract granting the right to use the land for the purpose of construction; a will
|
2
|
Purpose
|
For business and other purposes
|
For construction purposes only; this condition must be stipulated in the contract
|
3
|
Length of term
|
Short-term (up to 5 years) or long-term (up to 50 years)
|
Can be termless (permanent) or have a fixed term
|
4
|
Payment
|
Rent
|
May or may not require payment. When it does, this payment can include a part of the profits from the income of the land user
|
Although the term superficies was introduced into the Land Code of Ukraine, there is no standard procedure for drafting documents dealing with this type of material rights. There are still disputes among specialists about whether this introduction was worthwhile.
The goal of my Master’s dissertation is to examine the introduction of the institution of superficies, which had previously existed only in the Civil Code of Ukraine, into the Land Code. I will try to show that this introduction was worthwhile and even necessary. In order to accomplish this, I will conduct an analysis of the historical development of this term, the reason for its emergence, and analyze experiences of other countries in regard to this question. I consider it essential to create a standardized procedure for the institution of superficies. It would be especially productive for the Ukrainian government to draft a law dealing with superficies, and I will try to provide a tentative model for such a law.
© DonNTU Valery Sherina
|
