POSSIBLE LEGISLATIVE EXTENSION OF SUPERFICIES IN THE CIVIL CODE OF THE REPUBLIC OF KAZAKHSTAN.

Shaikenova Alina Berikovna Kazakhstan, Astana city.

Superficies described as inherited and alienated the right to use the building, which was built on another area of land and, therefore, belonging to the owner of the site.

Authorized person — superficiary, had the right to use the building as owner, alienate, pledge it, encumber with easements. His charge was that he had to bear all the burden, registered on the building, as well as to pay the owner of the land a certain annuity (solatium, pensio). [1]

The reason for the formation and termination of superficies were the same as the cause of the termination and emphyteusis.

Upon the sale of land emfiteftor should 2 months notify the owner of the land, which had a pre-emptive. If superficiary emfitevt or within 3 years do not pay rent and taxes, as well as failure to comply with the order of sale will result in a denial of rights. [2]

Superficiary / developer (holder of rights) could be obtained as already built up and the empty lot. In the latter case, he is building his own account, bearing in mind the rule: superficies solo cedit — owner of the land acquired ownership of the buildings erected by the developer. But in Rome, this rule does not bother anyone, because superficies was originally formed in relation to the state and municipal lands, withdrawn from civil circulation.

Superficiary possess, use and dispose of the site, and even the building without the consent of the owner of the land (home).

Superficiary could even worsen the condition of building, if it was not a direct prohibition of the owner.

Superficiary could encumber the construction easements, could lay the building, etc.

(All that could the owner).

Legislative superficiary situation described by the following criteria:

  1. The developer had the real right to use the property that set him apart from ordinary tenant; on set of competences that right was close to the property. The right to use superficiary was so free, that if there was no direct prohibition dominus’a he could have substance things even allowing some deterioration of the property. As the owner, the developer removed the fruits of the structure (for example, from the lease of property, etc.);
  2. Superficiary could freely dispose of the structure during his lifetime and in the event of his death, could dispose of his heirs. The only obligation of the transferor was a notice that he intends to transfer to another person superficies. However, failure to do so did not give the owner of the built-up area of law challenging the validity of such a transaction.

References:

  1. See .: Real rights in the Republic of Kazakhstan. Almaty zheti -zhargy-1999, P.34.
  2. MM Smirnov Roman private law (lecture notes), Moscow, 2000
  3. Superficies and emphyteusis — types of servitude. Their concept, see .: The right and property in the Republic of Kazakhstan. Almaty zheti-zhargy. 1998. P.192-200.

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