The Legal Treatment of Immovables Under
the Civil Code of the Russian Federation
Oksana M. Kozyr”
This article offers a general survey of the regula-
tion of immovables in Russian law since the introduc-
tion of the new Civil Code of the Russian Federation
(“C.C.R.F”) in 1994. In light of the prohibition of pri-
vate property during the Soviet era, the author begins
by highlighting the C.C.R.F.’s conceptual understand-
ing of immovables as objects of civil rights. The place
of immovable property in other civilian jurisdictions as
well as under the pre-revolutionary Code of Laws of the
Russian Empire is canvassed in order to distinguish the
approach adopted by the drafters of the C.C.R.F. The
expansion of the category of immovables and the
growth of different rights in immovables in the current
law is explored, while the overall concept of immov-
ables in the C.C.R.F. is explained as deriving from the
notion of “things” rather than “property”.
The discussion proceeds with an overview of the
different types of rights in immovables that are pro-
vided for in the C.C.R.F The right of ownership is de-
scribed in some detail, with particular notice being
taken of the various limitations upon the right which
currently exists in both Russian public and private law.
The author then sets out, often in a critical light, the
other new rights in immovables prescribed by the
C.C.R.F., namely the rights relating to usufructs, per-
manent use, servitudes, economic management, and
operative administration.
The article concludes with an examination of how
the C.C.R.F. regulates various transactions involving
immovables and lays out the various legal requirements
for the validity and opposability of such transactions. In
this regard, the case of land transactions is given par-
ticular attention.
les biens
Cet article passe en revue la riglementation russe
sur les immeubles depuis l’introduction du nouveau
Code civil en 1994. A ]a lumire de la prohibition de
propri&6 privde pendant l’6re sovirtique, l’auteur d6-
bute en soulignant la comprehension conceptuelle des
immeubles dans le Code comme objets de droits civils.
La place qu’occupent
immeubles dans
d’autres juridictions civilistes de meme que sous le
Code des lois de l’empire russe pr -rvolutionnaire est
examinre de fagon a mettre en relief l’approche adop-
tre par les rddacteurs du Code. L’61argissement dans la
prdsente loi de la catrgorie des immeubles et des diff&
rents droits sur les immeubles est 6tudi6, alors que le
concept d’immeuble dans le Code est drcrit comme
provenant de la notion de
<
L’article se penche ensuite sur les diffdrents types
de droits sur les immeubles dans le Code. Le droit de
propri&6 y est drfini en ddtail et une attention particu-
li~re est porte aux diverses restrictions qui en limitent
l’exercice et qui existent tant dans le droit public que
dans le droit priv6 russe. L’auteur d6finit par la suite,
d’une faqon souvent fort critique, les autres nouveaux
droits sur les immeubles 6dict6s dans le Code, notam-
ment les droits d’usufruit, d’usage permanent, de ser-
vitude, de gestion 6conomique et d’administration en
vigueur.
L’auteur conclut avec un examen de la rdgle-
mentation de diffdrentes transactions concemant les
immeubles et expose les diverses exigences nrcessaires
a la validit6 et A l’opposabilit6 de telles transactions. A
cet 6gard, les transactions de terrains sont 6tudires.
.Candidate of Legal Sciences, Deputy Department Director, Research Center for Private Law,
Moscow.
McGill Law Journal 1999
Revue de droit de McGill 1999
To be cited as: (1999) 44 McGill L.J. 327
Mode de rrf&ence: (1999) 44 R.D. McGill 327
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
Introduction
I. The Concept of Immovable Property as an Object of Civil Rights
II. Types of Rights to Immovable Property
A. The Right of Ownership
B. Limited Rights in Things
1. The Right of Lifetime Inheritable Possession
2. The Right of Permanent Use (Without Limit of Time)
3. The Right of Development
4. Servitude
5. The Right of Economic Management and the Right of Operative
Administration
C. Personal Rights
II1. Key Transactions
A. Transactions Involving Immovables
B. Transactions Involving Land Parcels
References
1999]
O.M. KOZYR – THE LEGAL TREATMENT OF IMMOVABLES
Introduction
The subject-matter of this article is immovable property which, as of the early
1990s, has rediscovered its place in civil commerce as a full-fledged object of civil
rights. Immovables are principally regulated by the rules set out in the 1994 Civil
Code of the Russian Federation’ which are currently being developed further in other
regulatory acts. These acts have been adopted in the areas of both private and public
law.
One should not underestimate the importance of public law rules in the regulation
of immovables. The nature of the immovable informs the nature of the “interference”
of public law with regard to the regulation of issues related to immovables, as com-
pared to the regulation of other objects of civil rights It is desirable that a sound, op-
timum balance between private and public law rules be struck in the regulation of
immovables.
The C.C.R.F. has developed the basis for such a balance, signalling a marked de-
parture from Soviet law under which immovables almost ceased to be full-fledged
objects of civil rights. While creating a basis for the private law treatment of immov-
ables, the C.C.R.F directly provides for the adoption of public law rules where neces-
sary,’ or defers to the rules established in the framework of other laws which define
the scope of application of civil rules.”
This article will consider the concept of immovables as objects of civil rights, the
types of real rights recognized by Russian law, the main aspects of transactions in-
volving immovables, and the conditions imposed upon them by the C.C.R.F. Issues
regarding the creation and termination of ownership, real estate succession, and a
number of other matters will not be considered. Given that the influence of public law
rules on real estate regulation is an independent issue requiring special research for its
comprehensive treatment, this article will discuss it only to the extent it bears on the
principal questions addressed herein.
‘Part I was enacted in 1994: Sobranie zakonodatelstva R.E (1994) No. 32, item 3301; and Part 2
was enacted in 1995: Sobranie zakonodatelstva R.E (1996) No. 5, item 410 [hereinafter C.C.R.F].
For the English-language translation, see PB. Maggs & A.N. Zhiltsov, eds., The Civil Code of the
Russian Federation, trans. P.B. Maggs & A.N. Zhiltsov (Armonk, N.Y.: M.E. Sharpe, 1997).
2 A substantial element of the public regulation of immovables is state registration of rights in im-
movables and transactions thereupon, provided for in art. 131 C.C.R.F. as a unified system. Upon the
adoption of the Federal law On State Registration of Rights to Immovables and Transactions There-
with, Sobranie zakonodatelstva R.E (1997) No. 30, item 3594, a unified registration system was im-
plemented throughout the Russian Federation territory.
‘ See e.g. art. 131 C.C.R.F on the procedure for the registration of rights in immovables and trans-
actions thereupon.
‘ See e.g. art. 129(3) C.C.R.F where the determination of the limits of alienation of land plots and
other natural resources is referred to the legislation on land and other natural resources.
330
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I. The Concept of Immovable Property as an Object of Civil
Rights
The concept of immovable property existed in Russian law from the beginning of
the eighteenth century In volume 10 of the Code of Laws of the Russian Empire, this
category was also introduced despite the absence of any general definition of “im-
movables”. Rather, immovable property was defined by a rough listing of immovable
objects, i.e., land, various agricultural areas of economic significance, and houses. In
the civil law of the Soviet era, the category of immovables was absent as such. The
Civil Code of the Russian Soviet Federated Socialist Republic of 1922’ contained a
special note to article 21 according to which “abolition of private ownership in land
resulted in the termination of property division into movables and immovables.” The
land itself was proclaimed public domain and excluded from “private commerce”.
Division of property as an object of civil rights into movables and immovables
was reinstated in the 1991 Fundamentals of Civil Legislation of the U.S.S.R. and Un-
ion Republics.7 Article 4(2) of the Fundamentals defined as immovable the land and
things firmly connected thereon (immovables by nature). The list of things firmly
connected with land plots, though non-exhaustive, included buildings, installations,
enterprises, other property complexes, and perennial plantings. Thus, the division of
property into movables and immovables was based on a traditional Russian law clas-
sification of an object’s physical and natural properties, i.e., its ability or inability to
be moved without disproportionate damage to its purpose. This is the main criterion
of the Fundamentals, but not the sole one. The Fundamentals contained a rule ac-
cording to which immovable property may be so designated on the basis of a formal
legal criterion, but this may be done only by means of issuing legislative acts (im-
movables by virtue of law).
Upon the introduction of the general concept of immovable property, special leg-
islative acts began to define the concept of immovables with respect to particular
characteristics. Such concepts as “immovables in housing sphere'” and “immovables
The term “immovable property” was used for the first time in the Decree of Peter I the Great on
Primogeniture issued in 1714. It was substituted for different terms used in previous legislation which
included a number of estates into a single legal category and mitigated “the distinctions among
votchiny [patrimonies] and pomestia [estates]” (G.E Shershenevitch, Manual of Russian Civil Law
(Moscow: Spark, 1907) at 98).
6 Hereinafter 1922 Civil Code.
7 Vedomosti S”ezda Narodnykh Deputatov S.S.S.R. i Verkhovnogo Soveta S.S.S.R. (1991) No. 26,
item 733 [hereinafter Fundamentals]. In the territory of the Russian Federation, the Fundamentals
were applied from August 3, 1992 in accordance with the Regulation of the Supreme Soviet of the
Russian Federation “On the Regulation of Civil Legal Relations During the Period of Economic Re-
form” (14 July 1992) Vedomosti S”ezda Narodnykz Deputatov R.E i Verkhovnogo Soveta R.E (1992)
No. 30, item 1800.
‘ Federal law On Fundamental Principles of Federal Housing Policy, Vedomosti S”ezda Narodnykh
Deputatov R.F i Verkhovnogo Soveta R.E (1993) No. 3, item 99, art. 1.
1999]
O.M. KOzYR – THE LEGAL TREATMENT OF IMMOVABLES
in urban development 9 appeared which included land plots and a non-exhaustive list
of connected property.
Article 130 C.C.R.F-in its specific definition of immovable property-is mainly
based on the concept contained in the Fundamentals, and proceeds, in general, from
the same criteria: (i) connection with land and impossibility to move without dispro-
portionate damage to the purpose of the object (immovables by nature); and (ii) attri-
bution to immovables by statute (immovables by virtue of law).
The laws of the Russian Empire distinguished between immovable and movable
property solely on the basis of natural characteristics, though article 384 of volume 10
of the Code of Laws of the Russian Empire did contain reference to immovables “by
statute”. At the same time, among the appurtenances of immovable property, article
390 of the Code of Laws of the Russian Empire specified praedial acts and abuttal
layouts whose legal sense was reflected not in these instruments as corporeal things,
but in the rights certified by them.”
In the course of elaborating the concept of immovables, the drafters also took into
account the experience of legislative developments in foreign countries. However, the
C.C.R.E did not use the tripartite classification of immovables contained in the Civil
Code of France and followed by the Civil Code of Mexico, the Civil Code of Brazil,
and those of some other countries. Neither did the C.C.R.E adopt the category of im-
movables by designation, convening both objects placed on land for the purpose of its
servicing and operation, and movable things perpetually connected to immovable
property and being, in effect, the natural extension of the immovable property.”
The list of objects classified as immovables in the C.C.R.F is not exhaustive. The
category of immovables has broadened due to the specification of independent objects
other than land, such as subsoil plots and solitary bodies of water. They are consid-
ered immovable by virtue of their natural physical properties and not by virtue of their
constituting an organic whole with the land. Otherwise, it would be impossible to es-
tablish the ownership right to subsoil apart from the ownership in land.
Other natural resources such as forests are deemed immovables by virtue of their
connection with land. Meanwhile, as a result of logging activities, forests may lose
their immovable character. Accordingly, a clear-cut forest ceases to be immovable
property, just as a building may be deconstructed into its component parts, making
9 Federal law On Fundamental Principles of Urban Development in the Russian Federation, Vedo-
mosti S”ezda Narodnykh Deputatov R.E i Verkhovnogo Soveta R.F (1992) No. 32, item 1877, art. 1.
With the adoption on May 7, 1998 of the Urban Development Code of the Russian Federation, So-
branie zakonodatelstva R.E (1998) No. 19, item 2069 [hereinafter Urban Development Code], this
law was deemed repealed.
“0 See Y.S. Gambarov, Course in the Civil Law, vol. I (St.Petersburg, 1911) at 601-02.
” Art. 524 of the Civil Code of France; arts. 750-51 of the Civil Code of Mexico; and art. 43 of the
Civil Code of Brazil.
332
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them movables. Unexploited, mineral resources are considered immovable; however,
they cease to be immovable from the time they are extracted from the subsoil.
Article 130 C.C.R.F. also defines as immovable buildings, installations, and per-
ennial plantings by virtue of their connection with the land. In addition to those ob-
jects specified in the C.C.R.F., underground structures, such as mines and other in-
stallations, are also deemed immovable. At the same time, not every structure (instal-
lation) will be deemed immovable property, but only that which is, in fact, firmly
connected with the land on which it is located. The Code of Laws of the Russian Em-
pire did not recognize as immovable those structures “erected on another’s land by
virtue of any contractual relations.'”‘2 Pursuant to current Russian law, structures duly
registered and legally erected on another’s land will be classified as immovable.
The C.C.R.E recognizes as immovable by virtue of law state-registered property
like aircraft and sea-faring vessels,” vessels of inland waterways and objects in space,
while leaving open the possibility for other property to be classified as immovable by
law.”
Unlike the Fundamentals which uses the concept of immovable property, the di-
vision of property into immovables and movables in the C.C.R.E is based on the con-
cept of a “thing”. Taking into account the definition of immovables contained in the
C.C.R.E, other types of property, including property rights, may not be immovable
either by nature or by virtue of a statute. The sole exception is recognition of immov-
able equivalents, such as property united under an enterprise.”
Limiting immovables to “things” does not follow foreign legislative trends in the
definition of immovables, which generally follows a broader definition. Thus, in the
Civil Code of France, the Civil Code of Germany, and in the codifications which have
been developed under their influence-namely those of Italy, Mexico, and Brazil-
the concept of immovables also includes property rights to immovable things. This is
” Shershenevitch, supra note 5 at 97, 208. The situation did not change even after the enactment in
1912 of the law On the Right of Land Development. The law as such did not resolve the issue of the
nature of rights to such structures. The Governing Senate, however, hold the opinion that such struc-
tures should be considered movable property: see A.V. Kopylov, “Structure on Another’s Land: From
Superficies to the Right of Land Development” in Russian Civil Law in the Period of Transition to the
Market (Moscow: De Jure, 1995) at 109-10.
” Recognition of transportation means as immovable property is not typical of foreign legislation.
For example, art. 756 of the Civil Code of Mexico directly states that “vessels of any type shall be
considered as movables.”
” Such objects are classified as immovables so that the specific regime which is established with re-
spect to immovable property applies also to these objects. However, it would be incorrect to assume
that considering vessels as immovables automatically implies a full scope application of the regime;
even the C.C.R.F provides some exemptions. Thus, while the general rule requires the registration of
contracts of lease of immovable property (art. 609(2) C.C.R.F.), this rule does not apply to the lease of
transportation means (arts. 633, 643 C.C.R.F.).
” Art. 132 C.C.R.F.
1999]
S O.M. KOZYR – THE LEGAL TREATMENT OF IMMOVABLES
333
achieved through exhaustive enumeration of specific rights,” by provision of property
rights to immovable things,” or by providing for rights related to the ownership of
immovable property.”
Therefore, foreign statutes in most instances use the term “immovable property”
to define the legal category under consideration, whereas Russian legislators use the
term “immovable property” as a synonym for the term “immovable things” with the
latter term carrying interpretive authority.
In the C.C.R.F, the concept of enterprise stands apart, to a certain degree, from
other objects of civil rights. For the first time, an enterprise is treated by legislators as
a specific object.” This is illustrated, firstly, in a purely formal way. The enterprise is
not mentioned in the general definition of immovables in article 130 C.C.R.F., but is
introduced in article 132 C.C.R.F. which is included after the section on immovables
and the registration of rights in immovables. Second, taking into account its various
components, an enterprise is so heterogeneous that it can only be deemed part of a
group of objects on the basis of its character as a specific property complex rather
than on the basis of the individual character of its components, i.e., claims, debts, and
exclusive rights cannot be immovables following the logic of the C.C.R.F. An enter-
prise falls within the immovable category not by virtue of its indissoluble connection
with land, but by the decision of the legislator to apply to this object the specifics of
the legal treatment established for immovable property. Third, an enterprise is an ob-
ject which does not correspond to the classification of immovable and movable things,
as it is not a thing, not even a composite one.
Article 132 C.C.R.. defines an enterprise for the purpose of its introduction into
civil commerce as a single object. For this reason, its composition includes as its
property such things as a set of exclusive rights, first of all, the rights in trademarks
and service marks, as well as debts with “negative value” related to the activities of
the enterprise. However, it should be noted that having considered an enterprise as
immovable property, the C.C.R.F does not thereafter subject it to the requirements
established for immovables, but rather applies to it a number of special rules. Indeed,
a special, more formal and rigid regime is established for transactions involving en-
6 Servitudes, land (base) duties, usufructs, and claims for recovery of possession of immovable
property: art. 526 of the Civil Code of France.
“Art. 813 of the Civil Code of Italy of 1942; art. 750 of the Civil Code of Mexico of 1928; art. 44 of
the Civil Code of Brazil of 1916; and art. 904 of the Civil Code of Quebec of 1994.
” Article 96 of the Civil Code of the Netherlands. At the same time, the Civil Code of the Nether-
lands does not include property rights in its concept of immovables, using the term “thing” in Book 3,
art. 3.
9 For more about an enterprise as immovable property, see Comments to the Civil Code of the Rus-
sian Federation, vol. 1 (Moscow: Infra-Moscow, 1997) at 280-82; and O.M. Kozyr, “Immovables in
the New Russian Civil Code” in Russia’s Civil Code: Problems, Theory, Practice (Moscow: Interna-
tional Center for Financial and Economic Development, 1998) [hereinafter Russia’s Civil Code] at
279-82.
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[/o1.44
terprises as compared to transactions performed with respect to other immovable
property.
II. Types of Rights to Immovable Property
In order to introduce immovables into civil commerce, Russian legislators had to
define those rights which may be related to immovable property. Almost any right in
things or of an obligation may form the set of rights whose object is immovable prop-
erty. This fact points to the importance of the scope of powers vested in the holders of
such rights.
A. The Right of Ownership
The right of ownership is a right that gives its holder the broadest powers over
immovables. It carries the same three powers as the right of ownership to any other
property, namely the powers of possession, use, and disposition.’ These powers are
traditionally used in statutes to express the scope of the right of ownership. Even vol-
ume 10 of the Code of Laws of the Russian Empire referred only to this triad in order
to describe the right of ownership. The same triad of powers has since been repro-
duced in all Russian Civil Codes, the current C.C.R.E being no exception.
Yet the scope of a power such as the right of disposition can be substantially nar-
rowed when immovables are restricted in circulation.’ The C.C.R.F does not impose
any other general constraints on the owner’s powers because of the very nature of this
type of property. The provision of article 209(3) C.C.R.F stating that “It]he posses-
sion, use, and disposition of land and other natural resources … may be conducted by
their owner freely, unless this causes harm to the environment or violates the rights
and lawful interests of other persons” is based on article 36 of the Constitution of the
Russian Federation. The civil law significance of this provision consists in the fact
that it concretizes those clauses in the C.C.R.F which define limits to be observed in
the exercise of civil rights and does not constitute a rule specifically restricting the
rights of owners.
Other features specific to the right of ownership of immovables are related to the
designated purposes of immovable assets, primarily housing premises and land par-
cels. The need to preserve the designation of such assets stems from the fact that it
20 Art. 209(l) C.C.R.F The transfer of immovable property for entrusted administration is treated by
the C.C.R.F. as a form of the owner’s exercise of his powers to dispose of such property. The rights
enjoyed by the entrusted administrator are personal rights rather than real rights.
21 If an asset is barred from civil commerce by a statute, this means that it may only exist in state
ownership. As for municipalities, they may own those immovables whose circulation is restricted
only by an express statutory stipulation and may not own those things removed from commerce. This
is true, for example, of subsoil plots which may, by virtue of a statute, be owned only by the State and
not by municipalities, and of other natural assets under special protection which are reserved for fed-
eral ownership and have been excluded from commerce.
1999]
O.M. KozYR – THE LEGAL TREATMENT OF IMMOVABLES
335
determines the nature of their possible uses. For example, in order to use a housing
premises for non-residential purposes, the owner must first transfer the premises to
non-housing stock in accordance with the rather complicated procedure prescribed by
article 288(3) C.C.R.F. Furthermore, all immovables in cities and other urban areas
will, in connection with the entry into force of the Urban Development Code,’ be
zoned according to their specific use. A land parcel which is designated by a statute
for agricultural or other purposes may only be used within those limits. ‘
Violation of zoning requirements for immovable property may have adverse con-
sequences, including the termination of the right of ownership. In the case of housing
premises, judicial sale by public auction would follow such a violation. ‘ Similarly, in
the case of land parcels, seizure resulting from a decision of an agency of state
authority or of a court would be followed by a sale by public auction.’
In some cases, the rule requiring that the designated purpose of immovables be
preserved may also affect the ability to dispose of such property. Land parcels in-
cluded for agricultural use, for example, may only be sold to those parties capable of
ensuring their proper use. It is noteworthy, however, that the latter provision is not
contained directly in the C.C.R.F, but is set out in special regulatory acts.
Overall, the rules regarding the zoning of immovables are designed to protect the
public interest, thereby delimiting the scope of ownership according to individual
categories of immovable property. It is not in every case, however, that the limitation
of the owner’s powers is in the public interest. It may also be effected in the interest of
individual parties, for instance, the neighbours of the owner of immovable property.
The encumbering of land parcels and buildings with a servitude is made possible
pursuant to articles 274 and 276 C.C.R.F. For example, the right of way across a land
parcel-when granted in the interest of even a limited number of persons-may make
it impossible for its owner to develop the land parcel. Although article 274(2)
C.C.R.F. stipulates that “[t]he burdening of a land parcel with a servitude does not de-
prive the owner of the parcel of the right of possession, use, and disposition of this
parcel,’ the powers in question may in practice be materially restricted. To be sure, the
owner in this case may go to court to demand that the servitude be terminated, but he
will have to discharge the difficult burden of proving that should the servitude con-
tinue, the land parcel can no longer be used as designated.
The owner’s powers over immovables acquired on some special grounds face
further limits. This is true in the case of immovable property purchased against the
payment of rent. Where the payee of rent is assured lifetime support, the possibility of
alienating or otherwise burdening immovables transferred to his ownership is condi-
z’ Supra note 9.
Art 260(2) C.C.R.F.
4 Art 293 C.C.R.F.
” Arts. 285-86 C.C.R.F.
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[Vol. 44
tional on the payee’s consent. 6 In addition, such property is lawfully held on pledge
the
by the rent recipient who retains, according to express statutory stipulations,
right throughout the duration of the contract of rent to demand the return of such
property if he transferred the immovable to the payor’s ownership without charge.
Thus, the payor’s right of ownership is terminated in the event that the latter fails to
perform his obligations.
B. Limited Rights in Things
Limited rights in things are for the first time treated by the C.C.R.F. as an inde-
pendent legal notion. Article 216 C.C.R.E contains an incomplete list of rights
deemed to be rights in things, which comprises the right of lifetime inheritable pos-
session of a land parcel, the right of permanent (or indefinite) use of a land parcel,
servitudes, the right of economic management of property, and the right of operative
administration of property. The right of a homeowner’s family members to use the
residential premises in which they live together with the owner is likewise considered
to be an independent right in things.’
Whereas servitudes are known to virtually all legal systems and certain parallels
can be traced between rights in things and rights in land, the right of economic man-
agement of property-which characterizes the participation of business entities owned
by the State or municipalities in civil commerce-is unique to Russian law. All such
rights may be established with respect to immovable property, and most of them with
respect to immovables alone.
Although the list of limited rights in things, as set forth in the C.C.R.E, is not ex-
haustive, one deep-rooted doctrinal opinion is that the range of limited rights in things
may only be extended by statute. Unlike personal rights, the scope of limited rights in
things is determined directly by statute, which is why all their variations should like-
wise be defined by statute.” Regarding pledges (mortgages), article 334 C.C.R.E in-
cludes them among personal rights, although it grants pledgees those remedies to
protect their rights which are based on the law of things” and proclaims the rule
whereby pledges are to follow those things which they charge. 2
26Art. 604 C.C.R.F.
“Art. 587 C.C.R.E
= Arts. 599(2), 605(2) C.C.R.F
9 Art. 292 C.C.R.F.
‘ See E.A. Sukhanov, ed., Civil Law, vol. I (Moscow: B.E.K., 1998) at 590-92; L.V. Shchennikova,
Rights in Things in Russia’s Civil Law (Moscow: B.E.K., 1996) at 18-19; and E.A. Sukhanov, “De-
velopment of the Notion of Rights in Things During Transition to the Market” in Russia’s Civil Lmv
During Transition to the Market (Moscow: De Jure, 1997) at 73-92.
“Art. 347 C.C.R.E
, Disputes about the nature of pledges, which were conducted by legal experts in pre-revolutionary
Russia, have not stopped to this day. See M.I. Braginsky & V.V. Vitryansky, Law of Contracts: Gen-
eral Provisions (Moscow: Statut, 1997) at 395-404.
1999]
O.M. KOZYR – THE LEGAL TREATMENT OF IMMOVABLES
1. The Right of Lifetime Inheritable Possession
The right of lifetime inheritable possession and the right of permanent use of land
parcels may be granted for land parcels in state or municipal ownership.3 Other land-
owners may relinquish possession of their land parcels along with the immovables lo-
cated thereon under a contract of use for a term, including a lease. Such rights in
things, first regulated by the Land Code of the Russian Federation,’ are currently
governed by the C.C.R.F, and then only by its Chapter 17 which has yet to take ef-
fect.”3 The corresponding clauses were dropped from the 1991 Land Code during a
period of active agrarian reform in 19933
The holders of the right of lifetime inheritable possession-a right which extends
only to natural persons-enjoy extensive powers in the possession and use of land
parcels, including the right to own any structure that they build on the land.” There-
fore, the subject of the right of lifetime inheritable possession of a land parcel may at
the same time hold other immovables on the same land parcel on other legal grounds,
namely, ownership.
The right to build structures, however, is limited by statutory conditions for the
use of the land parcel concerned, which effectively enforce zoning regulations with
respect not only to their owners, but also to their titularies. For example, construction
of office compounds is prohibited on lands designated for agricultural use.
The right of a titulary to dispose of land is limited by article 267 C.C.R.F. He may
transfer the parcel on lease or for a term of uncompensated use (while remaining li-
able to the owner for the parcel’s use according to its designation), but may not exe-
cute any transactions entailing its alienation, i.e., he may not sell, mortgage, or other-
wise alienate the parcel. However, the possessor of a land parcel may transfer his right
to it, including by will.
At the same time, while not owning structures on land, the possessor may freely
alienate them, for example, under a contract of sale and purchase. In accordance with
” Considering special requirements for the owner of a land parcel and the general rule (which ex-
tends to all rights in things) that the right of lifetime inheritable possession of a land parcel should
pass to the new owner in the event of a change in ownership, it appears that a parcel made available
with the right of lifetime inheritable possession may only be transferred from one public owner to an-
other or alienated into the ownership of the holder of the right in things, which will then discontinue.
The sale of such a land parcel to another natural person or legal person may only be carried out after
the termination of the right of lifetime inheritable possession.
‘Vedomosti S”ezda Narodnykh Deputatov R.S.ES.R. i Verkhovnogo Soveta R.S.ES.R. (1991) No.
22, item 768 [hereinafter 1991 Land Code].
“The only provision of that chapter already in force is art. 216 C.C.R.F. which determines the law-
of-things nature of such rights.
36 Presidential Decree No. 2287 “On Bringing Land Legislation of the Russian Federation Into Line
with the Constitution of the Russian Federation” (24 December 1993) Sobranie aktov Prezidenta i
Pravitel’stva R.E (1993) No. 52, item 5084.
37Art. 266 C.C.R.F.
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articles 271 and 552 C.C.R.E, the alienation of a structure entails the acquisition by
the purchaser of the right to use that portion of the land parcel which is occupied by
the structure and is required for its use. For this reason, the state or municipal owner
of such a land parcel may, against its will, end up with yet another lawful possessor,
the holder of a different right in things-the right of permanent use of the parcel.
2. The Right of Permanent Use (Without Limit of Time)
The right of permanent use (without limit of time) of land parcels is formulated in
the C.C.R.. with respect to both legal and natural persons. Some provisions 8 make it
possible to speak of the right of permanent use of land as belonging to any owner
rather than simply to a public owner, even though articles 268 to 270 C.C.R.F
treat
this right as applicable only to state and municipally owned land. Land legislation is
likewise silent on the permanent use of a land parcel belonging to a natural person or
a legal person.
The rights of possession, use, and disposition of a land parcel which belong to the
possessor are much narrower than those of an owner by right of lifetime inheritable
possession. The former may possess and use the parcel to the extent prescribed by
legislation and by the deed. 9 That the holder of the right in things must use the land
parcel strictly as designated also suggests the possibility of putting up buildings,
structures, and other facilities for only those purposes for which the parcel has been
made available. It also follows in this case that all newly built structures pass into the
ownership of the subject of the right in things. ‘
Methods of disposition-e.g. transferring the land parcel by lease or for a term of
uncompensated use-are made conditional on the owner’s consent,” and no other dis-
position options are available to the holder of the right of lifetime inheritable posses-
sion. The holder still may dispose of his right, as well as the land parcel itself, by al-
ienating a newly constructed building into the ownership of another party in the same
manner in which this may be done by the subject of the right of full economic man-
agement. The right of permanent use does not pass by inheritance, but in the event
that the corresponding legal person is reorganized, it passes to another legal person by
way of succession.
3. The Right of Development
The right of development has a long history in Russia. Whereas in Roman law the
superficies determined the right of construction on another party’s land, the Russian
Arts. 264, 271(1) C.C.R.F.
3 The mention of such an act providing the parcel for use in art. 269(1) C.C.R.E is further confir-
mation that arts. 268-70 C.C.R.F. construct the right of permanent use of land parcels in relation to
lands in state or municipal ownership.
40 Art. 269 C.C.R.F.
41 Art. 270 C.C.R.F.
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right of development took shape as the developer’s right in things to another’s land
parcel. 2 This right was characterized as being inheritable, alienable (the landowner’s
consent to its assignment to third parties was not required nor did he enjoy the right of
first refusal regarding the assigned right), of a fixed term (which was established by
the parties’ agreement at between thirty-six and ninety-nine years), and was to be en-
joyed on a paid basis. The developer’s possession of the land parcel was to strictly
meet its designated purpose; even the undeveloped surface of the site was to be used
for construction purposes.!3
Upon the expiry of the right of development, the developer left the constructions
to the landowner if the latter requested their preservation. The developer was entitled
to receive remuneration for such structures, which consisted, however, not of the
value of the buildings or other facilities concerned, but of the value of the corre-
sponding construction materials less the amounts needed to pull the structures down.
The statute did not give a definite answer to the question of whether the developer had
the right of ownership to the newly built structures during the period of his right of
development. Scholars have also differed on this question, but only a minority have
found grounds for recognizing the developer to be the owner of such structures.’
The C.C.R.F. does not presently provide for the right of development as an inde-
pendent right to either the respective buildings or to the land. The powers belonging to
the lifetime inheritable possessor or the permanent user of a land parcel to construct
buildings and structures on the land can hardly be seen as such. Let us note only that
this kind of right to build structures on another party’s land parcel differs from the tra-
ditional right of development primarily by being connected with another limited right
in things to the land which is held by the same subject. The right of construction on
the land parcel may not be isolated or transferred to another party separately from the
underlying right in things. Moreover, the C.C.R.F views this power precisely as the
right rather than the obligation to build a structure over a specified time period, as was
the case under the 1912 law On the Right of Land Development and even the 1922
Civil Code.”
The regulation of construction on another party’s land and outside rights in things
are not provided for in the C.C.R.F. in great detail. Only article 263(2) C.C.R.F men-
42 The 1912 law On the Right of Land Development defined the right of development as the right to
hold in things fixed-term, alienable, and inheritable possession of another party’s land as a construc-
tion site for a consideration. See V.I. Sinaisky, “General Part and Law of Things” in Russian Civil
Law (Kiev, 1914) at 267.
43See Kopylov, supra note 12 at 101-08.
” IbicL at 108-12.
4 Arts. 266(2), 269(2) C.C.R.F.
‘ Under the law On the Right of Land Development, the time period was fixed by the contract; un-
der the 1922 Civil Code, by the Civil Code for one year, after which the right of development could
be sold by public auction (art. 80 of the 1922 Civil Code). This right existed in Russia until the corre-
sponding clauses of the 1922 Civil Code were invalidated by a Decree of the Presidium of the Rus-
sian Soviet Federated Socialist Republics Supreme Soviet on February 1, 1949.
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tions the owner’s right to authorize other parties to build on his land parcel, but no
light is shed on either the nature of the developer’s right or on his specific powers and
obligations.
Article 271 C.C.R.F.-devoted to the land-related rights of the owner of a build-
ing, structure, and other immovables located on a land parcel belonging to another
party-provides for the building owner’s use rights to the corresponding portion of
the parcel. It is presumed that such rights are granted on a permanent basis. So what
happens when the building owner’s right to use the land parcel is terminated? Under
article 272 C.C.R.F., rights to immovable property located on such a land parcel are to
be determined by the agreement concluded between the owner of the parcel and the
owner of the respective immovable. In the absence of such agreement, the conse-
quences of termination of the right of use of the land parcel are to be determined by a
court proceeding according to certain rules.”7 The owner of the parcel has the right to
demand the removal of the building from the land, and the court may recognize the
right of either of the owners to acquire the other’s property in only the following two
cases: (i) if the demolition of the building (structure) is forbidden by legislation
(where, for instance, the building is a historical or cultural monument), or (ii) where
the value of the building clearly exceeds the value of the land parcel. In such in-
stances, the court issues a ruling at its own discretion, but not on its own initiative.
The relevant claim must be presented by one of the parties. In the same situation, the
court, taking into account the bases for the termination of the right of use of the land
parcel, may establish conditions for the use of the land parcel by the owner of the
immovable for another term, Le., set conditions for the parties’ future obligations.
This situation appears to counter the economic needs of Russian society. It would
be useful for a statute to specifically regulate the traditional right of development.
4. Servitude
Servitudes-despite being governed by Chapter 17 of the C.C.R.F., whose entry
into force has been postponed-have already become widespread both in practice and
in legislation. For example, the Federal law On State Registration of Rights to Immov-
ables and Transactions Therewith”‘ establishes detailed rules for the registration of
servitudes, which make it possible to fulfil all formal requirements with respect to
such rights.
A servitude is a limited right in tfiings to immovables, including both a land par-
cel” and a building or structure,’ which is not connected with the possession of such
property and which consists in a party’s right to use one or more useful properties of
another party’s immovable. To use the language of article 277 C.C.R.F, a servitude is
47 Art. 272(2) C.C.R.F
48 Supra note 2.
Art. 274 C.C.R.F.
Art. 277 C.C.R.F.
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O.M. KOZYR – THE LEGAL TREATMENT OF IMMOVABLES
the right of limited use of another’s land parcel (positive servitude) or the right to bar
other parties, including the owner, from putting the immovable property to certain
uses, i.e., to require that the owner of an adjacent immovable refrain from using it in a
particular manner (negative servitude). Although the C.C.R.E does not prohibit the
establishment of negative servitudes, the provisions of articles 274 to 277 C.C.R.F. are
formulated with respect to positive servitudes. Strictly speaking, this means that
negative servitudes, in order to be legitimate, need to be expressly mentioned in a
statute. Meanwhile, a practical need for such servitudes, most notably those regarding
lighting and external appearance, is already in evidence.
The C.C.R.F does not mention servitudes established on other types of immov-
ables. This gap is filled by other statutes. For example, the Water Code of the Russian
Federation” provides for private water servitudes, and stipulates that those general
provisions on servitudes which are set out in civil legislation only apply to water ser-
vitudes to the extent they are not inconsistent with the Water Code itself 2 This
amounts to an attempt to “edit” civil legislation through the instrumentality of an act
of another branch of law. However, the attempt is not too successful. It appears quite
strange, for instance, that article 43 of the Water Code requires that encumbering a
water asset with a servitude be negotiated with the party to whom the water asset has
been provided for long- or short-term use (i.e., with the user for not more than twenty-
five years, not with the actual owner).
As to the division of servitudes into real servitudes and personal servitudes (es-
tablished in the interest of a specific party), the C.C.R.E has virtually disregarded this
classification. Whereas servitudes in general are designed as rights of the owner of
specific immovables (i.e., as real servitudes), once it is possible for a party other than
the owner to require that a servitude be established, article 274(4) C.C.R.F. is quick to
say that a servitude may be established not only when demanded by, but also “in the
interests of,” the party to whom a land parcel has been granted with the right of life-
time inheritable possession or the right of permanent use. The statute thus adopts the
structure of a personal servitude which is known to be of a provisional rather than a
constant nature. This development in the C.C.R.F does not appear logical, as it would
be more reasonable to grant the holder of rights in things to land the possibility of re-
quiring the establishment of a servitude which should be established precisely in fa-
vour of the land parcel possessed and used by the person in question in order to en-
sure the continuity of the right of limited use of neighboring immovable property.”
“‘ Sobranie zakonodatelstva R.E (1995) No. 47, item 4471 [hereinafter Water Code].
12Ibid., art. 43.
“3 The acuteness of the problem is not mitigated by art. 275(2) C.C.R.F., according to which “[a]
servitude may not be an independent subject of purchase and sale or pledge and may not be trans-
ferred in any manner to persons who are not owners of the immovable property to ensure the use for
which the servitude was established?’ This literally means that upon a land parcel’s passing into the
lifetime inheritable possession or permanent use of another person, the servitude may not be trans-
ferred to its new possessor because the latter is not the owner.
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The water servitude as described in article 43 of the Water Code is likewise designed
as a personal servitude.
It has been noted that Russian law is also familiar with personal servitudes in the
sphere of housing relations. In the opinion of some authors, these include, among oth-
ers, the right to lifetime use of a dwelling house or a portion thereof as established by
a legacy. 4 It appears that this right-as with the right of the owner’s family members
to share the same housing premises as per article 292 C.C.R.F.-is an independent
right in things, since it is connected not only with the use but also with the possession
of such premises, whereas a servitude does not grant possession.
According to article 274 C.C.R.E, it is primarily land parcels that are burdened
with servitudes and this is true not only of those parcels which directly adjoin immov-
ables in whose interest such servitudes are established. In addition to land parcels, the
statute permits servitudes on buildings, structures, and other immovables whose lim-
ited use is required regardless of the use of the corresponding land parcels.
Encumbering immovable property with servitudes does not deprive its owner of
the rights of possession, use, and disposition with respect to such property. Moreover,
the owner of immovables burdened with servitudes is entitled to demand commensu-
rate payment for their use. Unless the parties agree upon the amount of such payment,
the sum will be determined by a court. Cases where servitudes may be established
without charge should be specified by statute.
Despite these conditions, a situation may arise where the owner, as a result of the
establishment of a servitude, will not be able to use his property according to its des-
ignated purpose. In such a case, he is entitled to go to court to demand that the servi-
tude be terminated.” This possibility, however, is made conditional on the land parcel
belonging to a natural person or a legal person. There is no doubt about the applica-
tion of this provision where the natural person or legal person owns the parcel. What
happens, though, if the land parcel is owned by the State or a municipality and has
been transferred to the natural person or legal person for lifetime inheritable posses-
sion or permanent use, while the person possessing and managing the land parcel is
unable to use it according to its designation as a result of the established servitude?
For example, a right of way may be established with respect to a land parcel used for
agricultural production and its possessor will, therefore, be deprived of the possibility
of organizing any hydrotechnical facilities and building hot-houses and other similar
structures on the parcel. It would seem that a court in such a case should interpret arti-
cle 276(2) C.C.R.F as using the term “belonging” to signify possession not only by
right of ownership, but also by some other right, and should accept requests from the
” Art. 538 of the Civil Code of the Russian Soviet Federated Socialist Republic, Vedomosti S”ezda
Narodnykh Deputatov R.E i Verkhovnogo Soveta R.E (1964) No. 24, item 406 [hereinafter 1964 Civil
Code]; and A.P. Sergeyev & YK. Tolstoi, eds., Civil Law, vol. 1 (Moscow: B.E.K., 1997) at 439.
” Art. 276 C.C.R.F.
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O.M. KOZYR – THE LEGAL TREATMENT OF IMMOVABLES
owner of the immovable property for an end to the servitude if the parcel’s good faith
possessor is deprived of the possibility of putting it to normal use.
The term “public servitude” has recently emerged in legislation and doctrine to
describe a variety of servitudes.” One example is article 43 of the Water Code
whereby “everyone may use water assets in public use and other water assets, unless
otherwise provided for in legislation of the Russian Federation’
It seems that this
right of use should not be seen as an independent right in things, but as a limitation of
the right of ownership. It is not accidental that the C.C.R.F. has extended the qualities
of a servitude to the similar right of free access to state or municipal land parcels
which are not closed to the general public (and not just the right of access, but the
right of access to such parcels and of use of natural assets found there). Neither have
these qualities been extended to the right of free passage across a private land parcel,
unless the owner has put up readily visible “no trespassing” notices. Article 262
C.C.R.F. which regulates such issues is found in the statute’s provisions on ownership,
although it is included in the same chapter that deals with servitudes.
A strong argument may be made for denying “public servitudes” the status of a
servitude. First, a right in things should have a specific rightholder. Therefore, it is
wrong to accept everyone who is willing to profit from the benefits of immovables as
holders of this right. It should be remembered that personal servitudes are established
for a term, for example, a lifetime. Real servitudes may be open-ended, but where a
right is granted to all and sundry, it would be impossible to link it to immovables
whose interests will be satisfied because of the servitudes. Second, an interested party
usually initiates the establishment of a servitude, while public servitudes are estab-
lished almost automatically, by virtue of a statute and without any initiative required
on the part of any future beneficiaries. Third, there is the formal, yet important, re-
quirement of state registration which is carried out upon a petition from a specific
party for a servitude to arise. According to article 27 of the Federal law On State
Registration of Rights to Immovables and Transactions Therewith, such petitions may
be filed by the owner of the property being encumbered or the party benefiting from
the servitude if he has an appropriate agreement. As noted above, neither of these
players can be identified in the case of “public servitudes”, which is why the require-
ment to register the servitude in such instances simply cannot be observed.
As for those rights called “public servitudes” in the Urban Development Code,
and in Presidential Decree No. 1535,” they, in general, do not have grounds for being
recognized as servitudes, since they may only be established as rights in things by a
statute, while article 64 of the Urban Development Code stipulates that public servi-
tudes “shall be established by regulatory legal acts of agencies of local self-
government,” and does not define such servitudes or determine their range. As to the
56 Sergeyev & Tolstoi, ibid. at 441; and Shchennikova, supra note 30 at 5-42.
57 “Basic Provisions of the State Program of Privatization of State and Municipal Enterprises in the
Russian Federation After July 1, 1994” (22 July 1994) Sobranie zakonodatelstva R.E (1994) No. 13,
item 1478.
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extensive list of public servitudes found in Presidential Decree No. 1535, it is suffi-
cient to recall that Presidential Decree No. 1535 itself has been approved not by stat-
ute, but by regulatory act: a presidential decree. Accordingly, it cannot be said that
such servitudes belong to the category of rights in things.
Therefore, “public servitudes” should be viewed as limitations imposed on the
owner’s rights in the public interest described earlier in this article. In order to avoid
confusion, it would be advisable to use a different term, for example, “public encum-
brances”, to denote such limitations.
5. The Right of Economic Management and the Right of Operative
Administration
The right of economic management and the right of operative administration,
which arise out of the right of operative administration granted by the 1961 Funda-
mentals of Civil Legislation of the U.S.S.R. and Union Republics and the 1964 Civil
Code, apply not to individual things, but to the property system belonging to a legal
person-a state or municipally-owned enterprise-in the former case or “attached”
(to quote from the Civil Code) to an institution (whether state, municipal or private),
or to a treasury enterprise (which may only be federally owned) in the latter case. ”
These are rights in things for the economic or other use of the owner’s property by a
legal person that, not being the owner of the property, participates in commerce on its
own behalf.” Only legal persons existing in the special statutory forms of a state (mu-
nicipal) enterprise or institution (or a federal treasury enterprise) can be the subjects
of these rights and the enterprises concerned may only belong to a public owner: the
State or a municipality.
One point of significance regarding the treatment of immovables is that the sub-
ject of the right of economic management may, with the consent of the owner (repre-
sented by the appropriate property management committee or by another duly
authorized agency’), dispose of the immovables, including by way of alienation as
” It should be noted that if a land parcel is attached to an enterprise or institution by the right of
permanent use, such a parcel cannot be subject either to the right of economic management or the
right of operative administration. This part of the property will belong to the enterprise or institution
in question by the independent law of things right of permanent use. However, those buildings and
structures erected on the land parcel may not pass into the ownership of the enterprise or institution
but will become part of the property system belonging to the latter by right of economic management
or operative administration.
” Though the C.C.R.E classifies the right of economic management and the right of operative ad-
ministration among limited rights in things, one fairly popular opinion expressed in legal literature is
that such rights are not by their nature independent rights in things, but represent a method for man-
aging the owner’s property through organizations established by the owner himself: see V.A. Dozort-
sev, “Fundamental Features of the Right of Ownership in the Civil Code” in Russia’s Civil Code, su-
pra note 19 at 242-60.
0For example, an agency authorized to represent federally-owned railroad transport enterprises
would be constituted according to art. 4 of the Federal law On Federal Railroad Transport, Sobranie
1999]
O.M. KOZYR – THE LEGAL TREATMENT OF IMMOVABLES
per article 295(2) C.C.R.E The proceeds of alienation will belong to the enterprise
by the same title: the right of economic management. Since the enterprise’s powers of
possession, use, and disposition of the property make up the substance of the right in
things, their scope is determined only by statute, specifically by articles 294 and 295
C.C.R.F. Therefore, the conclusion of such agreements between the owner and the
enterprise which aim to alter the limits of the enterprise’s powers is illegal and the
corresponding conditions of such agreements are void. Nor may the owner personally
enter into agreements to dispose of property under economic management instead of
consenting to the execution of such agreements by the enterprise. Should a state
agency (agency of local self-government) issue an act to dispose of property at the re-
quest of the enterprise owning the immovables in question, such an act should be in-
validated by a court.’
The right of an enterprise to acquire immovables (under transactions on a paid ba-
sis, as a result of new construction, etc.) is only limited by its established legal capac-
ity which is determined by the owner, as well as by the financial possibilities of the
enterprise, with due regard for the fact that the owner is entitled to a portion of its
profits.” In this case, too, the enterprise will not become the owner of the respective
immovables, but will hold them under the title of economic management.
By contrast, an institution as holder of the right of operative administration may
not, as per article 298(1) C.C.R.E, alienate or in any other manner dispose of property
attached to it, including immovable property.’ The only exception is a special entity,
the treasury enterprise, which likewise possesses its property by right of operative
administration. The scope of operative administration in the latter case is broader, as
zakonodatelstva R.E (1995) No. 35, item 3505, by the federal executive authority for railroad trans-
port
6 The object of the right of economic management is a property system within the meaning of art.
132 C.C.R.E (the enterprise). This is why the rules regarding immovables should apply to the dispo-
sition of both individual immovables making up part of the property system, and all assets of the en-
terprise as a whole. In the latter case, however, the immovables will be disposed of not by the subject
of the right of economic management, but by the owner himself after winding-up the legal person that
holds the right of economic management.
6 This approach is supported by clauses 39 and 40 of Resolution No. 6/8 of the Plenum of the Su-
preme Court of the Russian Federation and the Plenum of the Supreme Court of Arbitration of the
Russian Federation “On Some Issues Related to the Application of Part I of the Civil Code of the
Russian Federation” (1 July 1996) Vestnik Vysshego Arbitrazhnogo Suda R.E (1996) No. 9, item 15.
6 Art. 295(1) C.C.R.F.
‘ This applies to property assigned by the owner to the institution or acquired out of funds allocated
to the institution according to the budget. The C.C.R.F. also stipulates a different situation where the
institution is, in keeping with its constating documents, granted the right to undertake income-
generating activities. However, art. 298(2) C.C.R.F. does not expressly describe the nature of the right
acquired by the enterprise to such income and to the property purchased with such income, and
speaks only of the “independent disposition” of the income concerned. One opinion aptly voiced in
legal literature is that in this case, the property belongs to the institution by the right of economic
management: see E.A. Sukhanov, “Problems of the Legal Regulation of Relations of Public Owner-
ship” in Russia’s Civil Code, supra note 19 at 223-25.
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the statute grants the treasury enterprise the right to alienate or otherwise dispose of
property attached to it, including immovables, subject to the owner’s consent.” There-
fore, the second variety of the right of operative administration with respect to powers
regarding immovables is equated to the right of economic management. Yet this
equation does not extend to the owner’s possibilities in withdrawing immovables. The
owner may at his own discretion withdraw both from a treasury enterprise and from
an institution such property as he may deem redundant, unused, or used other than ac-
cording to its designation. This, of course, applies equally to immovables. In order to
withdraw property belonging to a state or municipally owned enterprise by the right
of economic management, however, the above-listed circumstances and the owner’s
resolve will not suffice. Rather, the owner will first have to wind-up the enterprise as a
legal person.”
C. Personal Rights
Legislators place virtually no limits on the range of personal rights whose subject
matter may be constituted by immovables. The C.C.R.E provides special regulation
for the rights of a lessee, a pledgee of immovables, and a trustee of immovable prop-
erty. It should, however, be kept in mind that the scope of such powers is defined both
in the statute and in the contract, although the statute offers a fairly broad definition.
For example, a trustee may exercise, within the limits set by the statute and the con-
tract, the powers of an owner with respect to immovable property subject only to the
requirement that all cases of disposition must be provided for directly by the trust
deed.” The rights of a lessee, especially those of the lessee of an enterprise, are simi-
larly extensive as well. The lessee may not only grant for temporary use or sublet
elements of the leased property (with the exception of land parcels and other natural
assets), but may also realize them under contracts of sale and purchase, provided that
such actions do not reduce the value of the leased property.’
III. Key Transactions
A. Transactions Involving Immovables
Transactions involving immovables are regulated by the C.C.R.F., which sets the
requirements for their form and state registration. The State almost always takes a
neutral stand with respect to the purposes and conditions of a transaction involving
” Arts. 296(1), 297(1) C.C.R.F
“A different option is also possible: the alienation of the enterprise to another public owner which
will be carried out by a decision of the owner of the enterprise, but will make it possible to preserve
the legal identity of the enterprise and, consequently, the right of economic management to its prop-
erty: art. 300(l) C.C.R.E
61Art. 1020(1) C.C.R.E
“Art. 660 C.C.R.E
1999]
O.M. KOZYR – THE LEGAL TREATMENT OF IMMOVABLES
immovable property. The only exception is the contract of sale for housing premises,
for which the statute provides, as a material condition, a list of persons retaining the
right to use the housing premises being sold along with a description of those rights.’
The C.C.R.F. usually requires two mandatory elements to be included in contracts in-
volving immovables: (i) the subject matter of the contract, and (ii) its price. A broader
range of material conditions is established for the contract of entrusted administra-
tion70 and the mortgage contract.7′
As to form, the statute in most cases requires such contracts to be in writing,
while the execution of a single document signed by the parties to the transaction is re-
quired for contracts of sale and purchase, lease, and entrusted administration. A con-
tract for the sale of an enterprise must at all times be accompanied by an inventory re-
cord, an accounting balance, a report by an independent auditor, and a list of all debts
included in the structure of the enterprise.’ Failure to follow these rules should be
taken as a breach of the formal requirements of the contract.
In some cases, transactions must be notarized. The C.C.R.F. imposes such a re-
quirement for mortgages’ and contracts of rent. ‘ However, before January 30, 1998-
i.e., prior to the coming into force of the Federal law On State Registration of Rights
to Immovables and Transactions Therewith-notarial form was also required for the
sale of immovables and enterprises and for gifts of immovables.” At the same time,
any other transaction involving immovable property may, at the request of any of the
parties, likewise be notarized. Such a request is binding upon the co-contractors, and
disregarding it entails the invalidity of the contract in question.
The consequences of failing to observe the formal requirements of a contract dif-
fer depending on whether the required form is notarial or simply written. In the for-
mer case, the outcome is, of course, the invalidity or, more precisely, voidness of the
transaction. Where ordinary written form is prescribed, failure to observe it does not,
according to the general rule, entail the invalidity of the respective transaction unless
Aft. 558(1) C.C.R.E
7 0 At 1016 C.C.RF.
71 Art. 339 C.C.R.F.
72 Art. 560(1) C.C.R.F.
73Art 339 C.C.R.F.
74 Art. 584 C.C.R.F.
75 Arts. 239, 257 of the 1964 Civil Code provided for the notarial certification of transactions in-
volving immovables in only a very limited number of circumstances. Subsequently, notarization was
prescribed for some transactions involving land parcels such as the sale of a parcel by one individual
to another for individual home building or for use as a personal subsidiary plot, kitchen garden, or or-
chard: Federal law On the Right of Nationals of the Russian Federation to Receive Into Private Own-
ership and for Sale Land Parcels for Personal Subsidiary Fanning, Gardening, Horticulture and Indi-
vidual Home Building, Vedomosti S”ezda Narodnykh Deputatov R.F i Verkhovnogo Soveta R.E
(1993) No. 1, item 26, art. 2. Nevertheless, the notarization of transactions involving immovables has
not become the general rule, a fact reflected in the C.C.R.F
76Art. 163(2) C.C.R.F.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
its invalidity in this case is provided for by statute or the contract. As far as transac-
tions involving immovable property are concerned, the C.C.R.F. calls for the harshest
consequence-invalidity-where parties fail to observe form-related requirements
with respect to contracts for the sale of immovables or enterprises, for the leasing of
buildings, structures or enterprises, and for entrusted administration. In these cases as
well there are grounds for believing that the respective transactions should be deemed
void rather than voidable. ‘ Restitution of prestations in the event of invalidity applies
equally to transactions involving immovables, unless, of course, other consequences
are stipulated by statute. The C.C.R.E itself limits general consequences only in the
case of contracts of sale of enterprises. Such consequences may be invoked only if
they do not violate the rights and statutory interests of both parties’ creditors or of
other third parties, and does not undermine the public interest.78
The registration of most transactions involving immovables is obligatory accord-
ing to the C.C.R.F. Mandatory registration is sometimes stipulated by other statutes,
most notably the Federal law On State Registration of Rights to Immovables and
Transactions Therewith. Whereas state registration was previously integral to the form
of the transaction,” the development of trade in immovables has lent it independent
significance as a method of recording a deal that imports recognition by the State.
The registration of rights to immovables and related transactions is not an end in
itself, but a means of placing trade in immovables within civilized frameworks that
promote public openness and transparency. This is why article 131 C.C.R.F. provides
for the registration of related transactions in a consolidated state register with the pro-
vision of information about registered transactions and rights to any interested third
party.
Transactions involving immovables are subject to registration in cases stipulated
by the C.C.R.F. and the statute on registration.” Therefore, exceptions from the gen-
eral rule requiring registration for such transactions are contained even in the C.C.R.F.
itself (it does not, for example, prescribe registration for those leases of buildings and
structures carrying terms of less than one year) and may be set forth in a special stat-
ute rather than in a lower-level regulatory act.
Article 165 C.C.R.F. provides for the severest of the possible consequences of
failure to register a transaction with immovables. Such a transaction is voided and,
therefore, does not give rise to any legal consequences at all. This consequence, how-
” See Braginsky & Vitryansky, supra note 32 at 281-82.
“Art. 566 C.C.R.F.
‘9 The 1964 Civil Code required contracts of sale and purchase for dwelling houses and dachas
(country homes), as well as contracts of gift for dwelling houses to be registered with the executive
committee of a rural council of people’s deputies (art. 257 of the 1964 Civil Code). The registration
requirements were made in articles titled “Form of Contract for the Sale and Purchase of a Dwelling
House” and “Form of Contract of Gift:” There was, of course, nothing said about any consolidated
register, which was simply unnecessary as the purposes of registration were different.
“‘ Art. 164(I) C.C.R.F
1999]
O.M. KOZYR – THE LEGAL TREATMENT OF IMMOVABLES
349
ever, is only invoked in those cases stipulated by statute. The C.C.R.E itself mostly
adopts a different approach. Where a contract is subject to state registration, it is, by
the general rule, deemed to have been concluded from the moment of such registra-
tion.’ It is exactly this principle that is realized in the case of contracts involving im-
movable property.82
In the event that a party to a transaction chooses to behave in bad faith by avoid-
ing registration, the court is, at the request of the other party, in a position to rule that
the transaction be registered.’ In such cases, the actions taken by the parties prior to
the court ruling will not affect the rights in the immovable property even as between
the parties. The court ruling by itself does not replace registration but is sufficient to
oblige a registering authority to register the transaction.
There are a number of exceptions to the general rule requiring the obligatory reg-
istration of transactions involving immovables. One such exception is established by
the C.C.R.F with respect to the contract for the sale of immovable property. ‘ Should
immovables be sold, it is not the contract as such, but the passing of rights under the
contract that is subject to registration. This is why the issue of voiding the contract it-
self for failure to register the same cannot altogether arise. Furthermore, article 551(2)
C.C.R.F. allows the parties to a contract for the sale of immovables to perform the
contract prior to the state registration of the transfer of rights under the contract. Of
course, such performance does not affect the parties’ relations with third parties.
Therefore, in the event of a dispute between parties to a performed contract, the court
will consider the owner to be the purchaser of the immovables who has not registered
his rights to such property, although this will not affect their relations with third par-
ties in any way. Apart from this, the court is entitled to order the registration of the
transfer of the right of ownership if either party fails to register the passing of the right
of ownership to the corresponding immovables.”8
B. Transactions Involving Land Parcels
Without going into the specifics of transactions involving different types of im-
movables (housing premises, enterprises, etc.), it is useful to consider transactions in-
volving land parcels or other immovables where land parcels (or rights in them) also
become the subject matter of the transaction.
Historically, Soviet land statutes regulated assets like land parcels independently
from the regulation of other immovables, in particular, buildings and structures which
8t Art. 433 C.C.R.F.
82Arts. 558,560, 651,658 C.C.R.F.
“3Art. 165(3) C.C.R.F.
8 What is meant is the sale of buildings, structures, housing premises, land parcels, and other im-
movables (c. 30, 7 of the C.C.R.F.) other than enterprises specifically regulated by c. 30, 8 of the
C.C.R.F.
‘ Art. 551(3) C.C.R.F.
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constituted the subject matter of civil law regulation. ‘ In practice, however, a substan-
tial share of transactions involving immovables like buildings and structures is con-
nected with the transfer of the respective land parcels or various rights in them. In
such cases there arise a number of both theoretical and practical problems.
Even though buildings and structures are by definition immovables owing to their
attachment to land, Russian law treats them as though they were the principal thing
with respect to the land parcels-at least those parcels on which they are located and
which are required for their operation-where the owner of buildings and the owner
of the land parcels on which such buildings sit are different persons. This is borne out
by the fact that according to the C.C.R.F, an owner or lessee of a building who does
not own the land parcel under the building acquires the statutory right to use the par-
cel”7 and, in the event that the building or structure is sold by the owner of the respec-
tive land parcel and that the contract does not define the rights in the parcel trans-
ferred to the purchaser, the purchaser acquires the right of ownership to the land under
the building.’ Moreover, article 555(2) C.C.R.E establishes the presumption whereby
the price of the corresponding portion of the land parcel being transferred together
with the building or structure or the right to the said portion is included in the price of
the building or structure, unless otherwise stipulated by a statute or the contract. The
only exception to this approach is constituted by the rules set out in article 272
C.C.R.F. which stipulate that if the rights of the owner of a building to use the land
parcel occupied by the building are terminated, the future of the building should be
decided beforehand. Options include practically all possible scenarios, from the
demolition of the building or its paid transfer into the ownership of the landowner to
the acquisition of the land parcel by the building owner and the establishment of con-
ditions for the use of the parcel by the owner of the immovable property.
As for mortgages, article 340(3) C.C.R.F allows the mortgaging of a building or
structure only with the simultaneous mortgaging of the respective land parcel or that
portion of the parcel which functionally supports the facility being mortgaged, or the
corresponding leaseholding rights. This rule applies where the pledgor is the owner or
lessee of the land parcel. Should the pledgor have other rights to the land, a mortgage
contract may not be deemed valid pursuant to article 340(3) C.C.R.F. Those rights to a
land parcel which belong to the pledgor and, during the levy of execution upon a
building, to the purchaser should be determined with reference to article 37 of the
1991 Land Code, according to which the transfer of the right of ownership to a
building, structure, or other facility also imparts the right to use the respective land
parcel.’ At the same time, the presumption of the C.C.R.E is such that during the
mortgage of a land parcel, the right of pledge does not extend to the pledgor’s build-
‘6The
sale and purchase of land parcels were not merely disallowed by Soviet land legislation, they
were treated as a criminal offence: see the Land Code of the Russian Soviet Federated Socialist Re-
public, Vedomosti Verkhovnogo Soveta R.S.FS.R. (1970) No. 28, item 581.
‘7 Arts. 271,552, 652 C.C.R.F.
Arts. 273, 552 C.C.R.E
‘9 See Resolution No. 6/8, supra note 62, item 16, art. 45.
1999]
O.M. KOZYR – THE LEGAL TREATMENT OF IMMOVABLES
ings or structures located or being built on the parcel, unless the contract provides
otherwise.’
Therefore, the C.C.R.F. reflects the supremacy of the building owner’s interests
over those of the land parcel owner despite the fact that the C.C.R.F. says virtually
nothing about rights like the right to develop another party’s land parcel. This position
of the C.C.R.F. is explained by the fact that buildings have been drawn into civil
commerce quickly and actively, whereas the same process with relation to land has
been proceeding phase by phase and is still far from complete. As a result, building
owners often come to acquire rights to land other than the right of ownership, while
the State or the respective municipality remains the owner of the land parcel con-
cerned. This situation persists even though the period between 1992 and 1997 saw the
enactment of a number of Russian statutes and presidential edicts guaranteeing the
possibility for natural and legal persons to acquire land parcels in ownership.”‘
Moreover, article 4.6 of Presidential Decree No. 153592 enables the owners of privat-
ized enterprises, buildings, and structures either to buy the land parcels under such fa-
cilities into their ownership or to take them on long-term lease. Nevertheless, in many
cases where land remains under state or municipal ownership, only the right to con-
clude leases for the respective land parcels is allowed, and the State or municipality
attempt to govern this limited form of alienation by issuing their own regulatory acts.
This situation has prompted the statutory prioritizing of the interests of the owners
of buildings located on other parties’ lands. Furthermore, the legal practice, especially
recently, has been to protect the statutory rights of the owners of privatized facilities to
90 Art. 340(4) C.C.R.F.
9′ The most notable of these were the Federal law On the Right of Nationals of the Russian Federa-
tion to Receive Into Private Ownership and for Sale Land Parcels for Personal Subsidiary Farming,
Gardening, Horticulture and Individual Home Building, supra note 75; Presidential Decree No. 323
“On Urgent Measures to Implement Land Reform in the R.S.F.S.R’ (27 December 1991) Vedomosti
S”ezda Narodnykh Deputatov R.S.FS.R. i Verkhovnogo Soveta R.S.ES.R. (1992) No. 1, item 53;
Presidential Decree No. 1767 “On the Regulation of Land Relations and the Development of Agrar-
ian Reform in Russia” (27 October 1993) Sobranie aktov Prezidenta i Pravitel’stva R.E (1993) No.
44, item 4191; Presidential Decree No. 198 “On the Right of Ownership of Natural Persons and Legal
Persons to Land Parcels Under Immovables in the Countryside” (14 February 1996) Sobranie zako-
nodatelstva R.E (1996) No. 8, item 740; Presidential Decree No. 337 “On the Realization of Citizens’
Constitutional Rights to Land” (7 March 1996) Sobranie zakonodatelstva R.E (1996) No. 11, item
1026; Presidential Decree No. 485 “On Guarantees for Owners of Immovables in Their Acquisition
of Land Parcels Under Such Immovables Into Ownership” (16 May 1997) Sobranie zakonodatelstva
R.. (1997) No. 20, item 2240; and Presidential Decree No. 1263 “On the Sale to Natural Persons and
Legal Persons of Land Parcels Designated for Development and Located Within Urban and Rural
Communities, or Rights of Lease Thereto” (26 November 1997) Sobranie zakonodatelstva R.E
(1997) No. 48, item 5546.
92 Supra note 57. Presidential Decree No. 1535 remains in effect pending the adoption by the State
Duma of the Federal Assembly of the Russian Federation of another privatization program based on a
new statutory regime.
352
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[Vol. 44
acquire necessary land rights, always in accordance with the procedure prescribed by
federal legislation.”
With the development of commercial transactions involving immovables, once it
becomes possible to determine the correlation of the market values of buildings and
land parcels, it may be necessary to adjust some provisions of the C.C.R.F. on the su-
premacy of the rights of building owners. Unfortunately, it will hardly be possible to
work out an unequivocal solution to all cases. Nor is there such a cure in the legisla-
tion of market economies. In some cases, priority is given to the rights of land parcel
owners. For example, the fixed-term right of development or a long-term agreement
to lease land for construction more often than not results in the transfer to the land-
owner of the particular building upon the expiry of the term. In other instances, stat-
utes prioritize the interests of the owner of immovables located on another party’s
land. The Civil Code of Quebec offers a compromise in the event that the superficies
is terminated. Upon the expiry of superficies, the owner of the subsoil acquires the
right of ownership to the structure but is required to reimburse its value to the superfi-
ciary. If the value of the structure is comparable to or exceeds the value of the land
parcel, the reverse presumption takes effect and the owner of the structure is able, at
his option, either to acquire the right of ownership to the land or to relocate the struc-
ture at his own cost.” The corresponding balance of interests can also be achieved by
agreement. It is important to find a balance of economic interests and a matching legal
solution. It is likewise necessary to take into account the nature and source of the
building owner’s rights to the land. The same solutions will not work in cases such as
land leases, the provision of land with the right of development, and the acquisition of
lawful rights to land during the purchase of a building.
The sale of land parcels in Russia today is subject to the fundamental rules set out
in articles 549 to 558 C.C.R.F on the sale of immovables. These rules principally re-
quire absolute clarity in the definition of the subject matter of the agreement and an
indication of the price directly in the agreement for a transaction to be valid. At the
same time, the practice of concluding agreements for the sale of land parcels through
bidding (by tender or auction) has become widespread. The first mention of the pos-
sibility of holding a tender or auction to sell land parcels was made in Presidential
Decree No. 1767,” while Presidential Decree No. 12636 has made the sale of land
parcels (or leaseholding rights to them) through bidding the general rule, ‘with their
sales through other arrangements only permitted in those cases stipulated by legisla-
tion. As far as land parcel leases are concerned, the C.C.R.F itself, while prescribing
‘ This is also characteristic of Moscow arbitration courts, especially in disputes related to rights ac-
quired by the owners of privatized facilities. This is borne out by the review entitled “On the Practice
of the Federal Arbitration Court of the Moscow Circuit in the Resolution of Cases Connected With
the Conclusion, Alteration, Termination and Performance of Lease Contracts” Vestnik Vysshego Ar-
bitrazlinogo Suda R.E (1998) No. 7 at 74-75.
“Arts. 1116-18 C.C.Q.
” Stqma note 91.
“6 Ib.
1999]
O.M. KOzYR – THE LEGAL TREATMENT OF IMMOVABLES
the application of general rules on leases, allows for the establishment of special rules
by other statutes.’ Otherwise, transactions with land parcels are fully subject to the
C.C.R.F.’s rules on transactions with immovable property.
9’Art. 607(2) C.C.R.F
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
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