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The scientific approaches to the realizing of immovable property are considered in the article. The provisions of foreign legislations, which contain the concept of immovable property, are analyzed. The comparisonstudyof these provisions is held.
Keywords: immovable things, immovable property, immovable property, immovable property regime.
The issue of definingthe concept of immovable property in the legislation of foreign countries has always occupied an important place in public circulation. The evidence of thisis the large amount of scientific works, not only in jurisprudence, but also in economics, architecture and other fields of science that deal with this issue.As far as theimmovable property requires a long time for building, it has a quite high price.such legal institutionsas the place of residence, registration, notarization of immovable property transactions and their state registration, state registration of rights to immovable property and so on are closely related with immovable property.Besides, immovable property is under the special protection of the law, as evidenced by the prohibition of unlawful entry into a dwelling or other property rights, the rights of property owners to defend themselves against unlawful entry, including the use of weapons,etc.Today, however,the legal systems of foreign countries have different definitions of the term " immovable property", what makes the study of the issue and the need to summarize the various approaches to its definition in order to formulate proposals for further improvement of the national civil law more significant.
The issue of definingthe concept of immovable property covered in the writings of such domestic and foreign scholars as: M.I Braginsky, V.I Borisov, V.V Vitryansky, AV Dzera, I.V Zhilinkova, N.S Kuznetsova, V.V. Lutz, K.P. Pobedonostsev, I.V. Spasibo-Fateeva Thanks.
The purpose ofthis article is to define the meaning of immovable property in the civil law, as well as to analyze the provisions of the civil legislation of foreign countries in terms of its definition.
The immovable property– is the only part of the country's wealth, which will never leave its borders, and will always be the basis for the formation of all other types of property in the state. According to the dogmas of Roman law the category of property (res immobiles, res soli) has included not only the land (solum) and any restricted part of the land (fundus, praedium), but the buildings (aedes and vilae), as well as all the things that were created with the help of law of nature or human labor on the owner’s land. The concept of immovable property wasorganically and inextricably related tosuchland things (res soli) as buildings, structures, trees, plants, fruits, unharvested grain, minerals and fossils.Components of theland or buildings in the case of separation from them (sand, chalk, wood, coal) lost quality fixed things and did not pass to the buyer of the land plot.At thesame time, neither agricultural implements (instrumentum fundi), nor tools for the use of construction (instrumentum aedium) were not recognized as a part of the land or farm land[1, p. 110–111]. The moderninterpretation of the concept of immovable property has quite a long way of formation. Mostcountries of the world adopted the provisions of Roman law, but the approaches to the understanding of the immovable property experienced had some changes.Nowadayseach legal system, despite its own legal traditions and level of development of social relations, determines things (property) that are fixed or covered by the regime of real property.This approachto the definition of real property in different legal systems is reflected in the legal acts regulating the private-law relations, and therefore, the same thing can have different status: in some countries can be fixed, and in the other - mobile.
In jurisprudence, there arethree classic definitions of immovable property. Representatives of the firsttheory (K. Pobedonostzev, E. Vas'kovsky, Y. Qambarov) offer fixed recognize those things that have a strong connection to the land. Representatives of the second theory (G. Shershenevich, K. Malyshev, I. Frantsesson) offered to determine the sign of the immovable property guided by the criterion of "a legal link with the rights of the owner of the structure of the land on which it is built," believing that we should not recognize the immovable property structures built on foreign land, and temporary. The first group of scientists at the heart of determining the nature of things seen physical criterion - the nature of the relation of the thing to the ground. A second group understood the nature of things through the legal criterion - the legal relationship between the law of the land and the right to a thing that is on it. There is a compromise position. Its representatives (A. Worms, W. El'yashevich, A. Dumashevsky) believed that the structures built in a foreign land, by virtue of the law of obligations must be regarded as things moving, and the structure created by proprietary right to this land - fixed things [2, p. 19-20].
Here are some examplesof laws of foreign countries. Thus, according to Art. 43 of the Civil Code of Brazil in 1920 immovables are: 1. Soil with its surface, given the natural amenities trees, the fruit of the vine, ground space and subsoil. 2. Things that a person attaches to the ground for a long time, crops in the land, buildings and structures that can not be moved without damage, alteration, breaking or causing them harm. 3. Everything that relates to the property of owner in connection with the use of industrial production, decoration or comfort [3, p. 15].
The Civil Code ofthe Republic of Cuba, 1987 (Part 2 of Art. 46.1) determines that material things can be immovable property or personal property, meaning by immovable property land and other things attached to it so firmly that it makes it impossible to use them or use them by prior appointment [4, p. 11]. Portuguese Civil Code specifies that certain types of immovable property property will be in the case of close connection with the land [5, p. 34]. This analysis of the definitions shows that they are fundamentally different by criterias for " immovable property thing." Thus, in the Civil Code of Brazil (Part 1 of Art. 43) refers to a natural property, in Part 2 of this article - an artificially created real property, and in Part 3 of " immovable property" is defined as the mode of the immovable.
We consider this approachto be consistent and such that fully classifies immovable property as well as delineates immovable property and thing that is in common property regime. This approach is enshrined in domestic law (Art. 181 CC). Civil Code of the Republic of Cuba provided the following definition of property, based on a single principle - the use of things from the previous assignment. This is one criteria that is changed in some way in every legal system of both countries - a physical link things to the ground.This approach isalso used in the Philippine civil law, defining immovable property as a land and the things that are on it, and the physical property determines the material unity of applications and improvements that are on the ground, under or over it. [
A fundamentallydifferent approach is in the base of U.S.law. Thus, the Law "On licensing and registration of immovable property" (1980) determined that the immovable property is any property right for a land or property on the ground, regardless of whether it is tangible or intangible, conditional or unconditional, it is located in within the Federation or elsewhere, including the leasehold interest, term of law, the same way property rights. The sale of campervan will be the transition of the property from right to real property, if such an operation will be accompanied by the transfer of the license or sale of the land on which the van [7, p. 5].The concept behindthis act for the settlement of private law relations to immovable property, has a complex character, which certainly can be attributed to its benefits. The determining factor is the legal criteria, ie the right to property, not the property as the object of private law relations. It is based on the inherent right to the land. At the same time, it can be confirmed that this approach is most similar to the second theory of Shershenevich G., K. Malyshev, I. Frantsesson, which is based on the presence of the legal rights of the owner of the structure due to the land on which the building is constructed. However, this definition has its drawbacks. After equating the rights to immovable property for immovable property can cause significant difficulties in aspect, for example, of its inventory. How it’s possible to inspect property law? Such equalization can lead to the division of ownership of immovable property, resulting in the concept of immovable property and rights to it formalizes the notion of property and to enter into civil turnover
From the pointof view ofinternational law,real propertyis definedwithout territoryrestrictions. This means that according to the US Legislation the above mentioned rights and objects will be considered to be the immovable property regardless of the palce and country of their location -i.e.regardless of the jurisdiction of other subjects of public international legal relations on the territory of their location.A similar approachto the definition ofreal propertyis usedin the commercialandcivil codeof Thailand.Article139of the Codeprovidesthe following definition: "immovable property is land,as well as thingswhich are securely attachedto it and forming one piece withit.Property alsoincludesproprietaryrights associatedwith the landorthingsthat formwith ita whole ".  However, incontrast with theU.S.approachin Thailandhasthe advantage ofthe conceptof property rightsto land and property, makes ita wholeasthe basis for determiningthingsfixed.
Almost all ofthe above definitions ofreal propertyin some wayfit into oneof the threeconcepts, which were presentedat the beginningof the article.However, insome jurisdictions, theconceptof immovable propertyhas its own characteristics, which are fundamentally differentfrom the other, even if they fall withinthe same approach.
Sufficientlypeculiar andeven unique, in our opinion, is the approachusedin the Civil Codeof the Republic ofFrance. This Codedivides theimmovable propertyinto propertyin nature,the targetandthe objectto whichthe propertybelongs. It is notedthat the landand buildingsare fixedin nature.The growing cropandfruittreesare fixedinas long astheyare not collected.
Forthe category of immovable propertyCivil Codeof the Republic ofFranceclassifiesanimals thatare hold to engage infarming activities(Article522), and the things despite the fact they can be moved which areaffixedto real propertythatcan not be separatedfrom itwithoutdamage ordestruction.Suchpropertycan be assignedpictures, mirrorsand other thingsto helpequip theproperty [9, p. 89-90]. It is atthis exampleoflegislationwhich can show themaximumsequencewith Roman law, as we mentionedearlier in this article. In a number ofcountries,including Ukraine, it’s difficult to includenatural resourceto the objectof civil transactionsbecauseof itsciviltradableprovidedby isolation andindividualization, and the conduct ofeconomic evaluation.Otherwise,it will bepart ofthe naturalecological system, "natural object" that can not be attributedto the concept ofproperty[10, p. 20].
Almost the same approach to the definition of property was used in the law of post-Soviet Republics of Eastern Europe. Thus, the Civil Code of Ukraine 2003 (Article 181) containing such definition of property: "1. Land and facilities located on the land, the movement of which is impossible without changing it and causing damage to the depreciation of their appointment are belong to the immovables ( immovable property). The mode of immovable things may be extended by the law on air and sea vessels, inland vessels, space objects, as well as other things, the rights to which are subject to state registration ".  The Civil Code of the Republic of Belarus, 1998 (Article 130) states: " Plots of land, subsoil, isolated water bodies and everything is tightly secured to the ground, making it impossible to move without causing damage to their destination, including forests, perennial plantings, buildings and structures. Are belong to the immovables ( immovable property, immovable property) 2. The company as a whole (as a property complex), aircrafts and ships, which are subjected to state registration, inland vessels and river vessels and space objects can also be defined to a immovable property.
Such approach to the concept of immovable property is defined in Article 130 of the Civil Code of the Russian Federation in 1994: "1. The immovables ( immovable property, immovable property) including land, subsoil, and all that is firmly connected to the land, that is, objects that can be moved without disproportionate damage to their purpose, including buildings, structures, facilities under construction. To the immovables are also subjected state registration of aircraft and sea vessels, inland vessels, space objects. Other property can also be attributed to the immovable property by the law". According to these approaches, the legislator may expand the list of real and other objects can be related to the immovable property to equate their legal status in the regime of immovable property. Accordingly, we can use the term "movable property" [14, p. 81].
Analyzing the above definitions, we can note one more difference - the legislation of some countries provides a more extensive list of property that is immovable property, and in other laws and regulations it is not existing at all. But, as shows the practise of law, particularly in Ukraine, for the enforcement of these characteristics which distinguish the real property from the mobile, it is not enough [15, p. 179
To summarize, we can do the following conclusions:
1.the only thing that is indisputably recognized as a property under the law of those countries that have been studied, there is land;
2. provisions of the legislation of some countries do not provide for the possibility of extending the regime of movable property items, such as, for example, ships, aircraft, and space objects;
3. In different countries a "real property" is defined in different ways. The legislation defines some property from the rights to it, other legislation - in terms of physical properties (the ability to move, the use of the intended purpose, etc.).
This study confirms our early conclusion that the real property defines the country's wealth as never leaves its borders. Such a feature of the immovable property can not affect its turnover, in connection with which it can be confirmed that nowadays the turnover of immovable property between the countries of the world does not exist. Each country sets its own rules of the traffic within its legal system that makes it impossible for the global development of the property market. However, its development and globalization can contribute to another property of immovable property - the nature of ownership or possession. Having a proprietary nature, such rights may be in free circulation at the level of a property, in connection with which it can be assumed that the continued impact of globalization on the economic processes of world states can help create a market for property rights.