Anna Taitslin

‘Split’ ownership in the Russian

law and the civilist tradition

Dominium and iure in re aliena in Roman law

Roman law divided things on corporeal and incorporeal ones (Gai I2.12).

Corporeal things (res corporales) were capable of possession andownership (dominium).

Incorporeal things included usufruct and praedial servitudes: Incorporales sunt, quae tangi non possunt, qualia sunt ea, quae in

iure consistunt, sicut hereditas, ususfructus, obligationes …eodem numero sunt iura praediorum urbanorum et rusticorum ...(Gai I2.14).

Servitudes as iure in re aliena [as claims on things of others] were contrasted with ownership. While holders of servitudes had ‘natural’ possession (naturaliter a fructuario teneatur: D. 41.2.49 pr), only owners were able to possess in civil law (civiliter possidere).

Genesis of ‘split’ ownership: emphyteusis &

superficies

Post-classical Roman law developed anomalous ius in re aliena: emphyteusis, perpetual inherited lease of land, which also gave its holder (civil law) possession (similar ius in re aliena was superficies,perpetual lease of buildings).

The 14th century civilist Bartolus defined emphyteucarius as dominus utile developing concept of feudal ‘split’ ownership [in a sharp contrast to the Roman law maxim: ‘duo non possunt habere dominium eiusdem rei solidum’ (D 41.2.2.lpr)].

Bartolus also defined ownership as a right to disposal corporeal things in the most absolute manner, unless prohibited by law (ius in re corporali perfecte disponendi, nisi lege prohibeatur), thus equating dominium with ius, at odds with the Roman law contrast of dominium and iure as, respectively, res corporales and res incorporales.

Revival of unitary / full ownership

The medieval notion of split ownership was rejected by the humanists as a corruption of the Roman law.

Anomalous perpetual rights like empheuteusis were inconsistent with the unitary ownership emerging with the dissolution of the medieval feudalism.

Unsurprisingly, the ‘natural law’ Code Civil des Français of 1804 did not contain any ‘split’ ownership.

The Code Civil, though, defined ownership, similar to Bartolus, as a right to use and dispose in the most absolute manner unless it is prohibited by law or regulations (art 544): a propriété est le droit de jouir et disposer des choses de la manière la plus absolue, pourvu qu'on n'en fasse pas un usage prohibé par les lois ou par les règlements.

Remnants of split ownership

In contrast, the Prussian Code of 1794 contained the concepts offull and ‘split’ ownership.

The Code defined the full ownership as a right of possession, use and disposal ( Allgemeines Landrecht fuer die Preussischen Staaten (ALR) Book 1, Title 8, §. 9: Zum vollen Eigenthume gehört das Recht, die Sache zu besitzen, zu gebrauchen, und sich derselben zu begeben).

The Code defined ‘split’ ownership as a separation of the rights of ownership between different persons. The proprietor with the right of use has dominium utile. (ALR I, 8, §. 16, 19-20 §. 16. Das Eigenthum einer Sache ist getheilt, wenn die darunter begriffnenverschiednen Rechte, verschiednen Personen zukommen. §. 19. Wer nur die Proprietät der Sache, ohne das Nutzungsrecht hat, wird Eigner genannt. §. 20. Wer Miteigner der Proprietät ist, und zugleich das Nutzungsrecht hat, dem wird ein nutzbares Eigenthum der Sache beygelegt.)

Emergence of the Russian notion of ownership

The expression ‘pravo sobstvennosti’ [right of ownership] was first used in the Ekaterina II’s Manifest of 1782 by which the gentry’s estates became the private property of the gentry. The grant wasre-conformed in the Gentry’s Bill of Rights (1785).

Prior to the Petr III Manifest of 1762, which emancipated the gentry from the compulsory service, the gentry held the estates on thecondition of the performance of the state service. The both social orders, the peasantry and the gentry, were, in a sense, in the ‘servitude’ to the state.

The by-product of the Manifest of 1782 and the Gentry Bill of Rights of 1785 was a formal negation of serfs’ legal rights in their customary land.

As a result, the concept of ‘split’ ownership in land (between landowners and peasants) had no legal recognition in Russia on the turn of the 19th century.

Co-existence of the Enlightenment notion of unitary ownership, alongside of serfdom, was a major paradox of the Russian law.

Codification attempts in Russia in the 19th century

The early 19th century attempt to codify civil law was in the reign of Alexandr I. The Property law Book of the draft Civil Law (1814), construed by Speranskii on the lines of the Code Civil, contained no concept of split ownership [the notion of split ownership although was mentioned in the preparatory codification plan of 1804 (and perpetual inherited lease was introduced in Livland and Estland in 1804, but it was abolished during the reforms of 1816-9)].

The Svod Zakonov of 1832 was already intended by Speranskii to be not a Natural Law ‘code’ but (in the spirit of the Historical School) merely a catalogue (‘svod’) of the existing laws of the Russian Empire.

The notion of ownership in the Svod Zakonov

The Svod ‘s concept of ownership was one of the unitary and absolute ownership, as emerged in the 1782.

A right of ownership is a power [vlast’], acquired through the lawful settlements, to possess, use and dispose, without interference from others, perpetually and hereditarily (art 420).

In the Svod ‘not full’ right of ownership (art 432) meant either lawful restriction on the right (art 433 – [public and private] ‘right of participation’: land servitudes), or contracting out of certain rights (art 541 – separate disposal; art 514 - separate possession), or compulsory alienation of rights [sequestration] (art 542).

•No ‘split’ ownership – in the Svod.

Unwanted emphyteusis ‘on the ground’: chinsh

possessionIn 1840 the Svod Zakonov came in force in the Western gubernias,

historically, under the Lithuanian Statute of 1588, which recognised

‘chinsh’ possession [perpetual possession with payment of certain

fixed natural or monetary rent to the land owner].

By the 1886 Law the chinsh possession was to be terminated

through an agreement either by means of the owner’s redemption

of the chinch right or the chinch possessor’s acquisition of

ownership in the chinch allotment or the replacement of the chinch

possession by lease.

Peasant communal ownership after 1861

Despite of the Svod refusal to sanction the civil law existence of peasant land-use rights, they were recognised by the 1861 Law which emancipated the peasants with their customary land.

In most of Russia, peasants were emancipated with land given notto individual peasant households but to the commune, which was made responsible for the redemption payment.

However, the allotments (which were regularly re-partioned to equalise the tax burden) were in possession of peasants households.

The communal ownership was a novel reality of the 1861 Law. It created a new type of split ownership. However, the law of 1861 was never formally absorbed in the Russian civil law, as contained in Volume X of the Svod Zakonov.

The Draft of the Civil Code of the Russian Empire of

1905A new Civil Code was to modernise the Russian law on the line ofthe Bürgerliches Gesetzbuch.

The Draft of 1905 contained the definition of the right of ownership as a right of full and exclusive power over the property insofar as it is not limited by law and rights of other persons: §755.

It also stated that the owner has the rights to possess, use anddispose (§§756-8).

However, at odds with the Svod Zakonov the Draft attempted to codify two anomalous real rights which were not explicitly recognised by the Russian civil law: emphyteusis (as obrok possession) and the peasant communal ownership as emerged after of 1861 peasant emancipation.

Emphyteusis in the 1905 Draft of the Civil Code

§ 927: A person in possession of land by virtue of the right of hereditary obrok possession acquires perpetual or long term periodic hereditary possession of the land of another with an obligation to pay annual rent [in money or in kind] to the owner. The period of obrok possession may not be less than 36 years.

§ 930 a person in obrok possession may alienate or bequeath his right of possession in whole or in part; a person in perpetual possession or for a term over 99 years may also mortgage the right and grant servitudes.

Communal right in the 1905 Draft of Civil Code

§§ 1219-1221 - peasant communal right: the peasant meeting decides: repartition of the lands; assignment of tax burdens; allocation of communal land into the ownership of individual peasant families; distribution of homestead and field lands between family members under family partitions; disposal of surrendered [escheated] allotments; conversion of land from communal right to household right; alienation of communal land.

§ 1227: farmstead plots and household/homestead plots may be alienated only to persons of peasant class. § 1229: neither peasant communes nor individual heads of families may mortgage the land to private persons or private establishments.

1906 Law – towards peasant private property

At whole, the 1905 Draft reflected the 1861 law and peasant practices on the eve of the Ukaz of 9 November 1906 (the Stolypin reforms).

The 1906 Law, in contrast, attempted to dismantle communal ownership by promoting ‘mainstream’ private property in land among peasants.

In the light of the Stolypin reforms, the Draft attempts at the civil law legitimisation of specifically ‘peasant’ form of ownership could be seen as a merely historical ‘aberration’, if not for the post-revolutionary codification of communal land holding, although inthe form of ‘use’ rather than ‘ownership’ (in the Land Code of 1922).

Superficies in Russian pre-revolutionary law

Superficies - perpetual use of buildings on the owner’s land for a certain rent - was another ‘anomalous’ ius in re aliena of the Roman law.

In Russian civil law it was ‘outlawed’ by the 1766 MezhevayaInstruction [at the time of formation of the modern notion of ownership].

The 1912 Law on building rights : superficies established by contract and for valuable consideration (§1) on term from 36 to 99 years (§3).

In a view of the special commission of the State Council: the perpetual superficies, which would create split ownership, effectively, making superficarius the owner, was an institution alien to the Russian civil law.

Summing-up pre-revolutionary law

• The Svod Zakonov did not contain a concept of split ownership.

• Moreover, emphyteusis, historically existing ‘on the ground’, in the form of chinsh possession in Belorussia, had not been absorbed into the Russian civil law.

• Although superficies had been introduced in the Russian law 1912, it was not a perpetual right.

• The peasant communal ownership was not formally recognised in the Russian civil law. The Stolypin reform (1906-10) was aimed at the liquidation of the commune by setting up private propertyin peasant land. In sum, the communal ownership was on the way ‘out’.

Definition of ownership in the 1922 Civil Code

The Civil Code of 1922 (RSFSR): the owner has a right of possession, use and disposal of property, within the limits imposed by law: § 58.

The main conceptualisation of ‘limitation’ on the notion of ownership in the 1922 Civil Code was in restriction on the objects in private ownership (§§ 20-24, 53, 55, 56).

§§ 20 & 53 declared land to be in exclusive state ownership.

Split ownership of land and buildings was recognised in the 1922Land Code (art 25): all buildings, fixtures, seeds and plants and anything connected with the allotment in use, belonged to the land-user.

Building rights in the 1922 Civil Code of RSFSR & ownership

in buildings following the 1948 Decree of the Presidium of

the Supreme Council of the USSR

The 1922 Civil Code: the building rights [superficies] set by contract

of the municipal department with cooperative unions or other legal

persons as well as individual citizens: up to 49 years for stone

buildings and 20 years for all other buildings (§ 71).

In 1949 the building rights were abolished, replaced with the right

of ownership in the buildings (not in the land). The 1948 Decree

allowed (art 1) to every citizen to buy or to build a house, with

number of rooms from one to five, with land granted in perpetual

use (art 2).

The anomalous feature of the Soviet law: separation

of ownership of land and buildingsThe drafters of the Civil Code of 1922 attempted (at least at surface) to be true to the Roman law maxim: оmne quod inaedificatur solo cedit (Just I 2.1. 29). Thus, the Code, declaring the state ownership in land, made the provision for the limited superficies. In theory (or in the long run), then the ownership of the urban land and the buildings supposed to be concentrated in the hands of the same owner - the state.

However, after the war, the dare dwelling situation led to a relaxation of prohibition on the private ownership.

Now, with respect to urban land, emphyteusis was accompanied not by superficies but by separate ownership in buildings, similar to the situation with respect to rural land since the Land Code of 1922.

Proprietary rights of state enterprises: rights of

trustee? § 19 of the 1922 Civil Code: a state enterprise had a right of free

disposition of ‘its’ property (the property which was not withdrawn

from the civil law transactions).

In 1928 Venediktov saw the Soviet trest as ‘formal’ owner with full

ownership rights on its listed property, although ‘formal’ ownership

was confined to the civil-law transactions (with the trest

‘impersonating’ the ‘commodity’ form of state ownership). His trust

theory implied the ‘double’ and full ownership.

Unitary state ownership and enterprises’ rights of operative

management - new type of split ownershipFollowing the 1936 ‘Stalin’ Constitution, the doctrine of the unitarystate ownership became the Soviet legal orthodoxy: the state enterprises could not be co-owners of state property owned by ‘the whole people’.

In 1948 Venedictov put forth a view that the state organs with economic-operative function entering in transactions under civil law, through operative management. So the state, realising its right of ownership, endowed its economic organs with rights to possess, use and dispose the assets through operative management.

Venediktov’s construction introduced a new real right, effectively creating ‘split’ ownership in the state property between the state and the state enterprises.

Ownership and the right of operative management

in the 1964 Civil Code of the RSFSRThe owner held rights of possession, use and disposal of the object

of property within the limits defined by law: § 92.

The state was the unitary owner of all state property; the state

property, settled on state organisations, was in operative

management of these organisations, which had rights of possession,

use and disposal, in the limits prescribed by law, and, in accord with

the purpose of their activity, planning tasks and the designation of

the property: § 94 .

Ownership in the Civil Code of the Russian

Federation of 1994§ 209

1. Owner has rights of possession, use and disposal of his property.

2. […] the owner has a right, by his discretion, to perform any acts (which were not contrary to law and do not infringe the interests of other persons protected by law) including transferring ownership, assigning the rights of possession, use and disposal, pledging the property and encumbering or disposing it by other means.

3. Owner can possess, use and disposal land and other natural resources freely within the limits defined by law unless threating the surrounding environment or rights and legitimate interests of other persons.

Vestiges of separation of ownership of land from

ownership of buildings in the 1994 CodeThe post-Soviet civil law attempts to return to the traditional civil

law principle that the owner of land also owns the buildings (solo

cedit).

Under §263 (2): If otherwise is not determined by law or contract,

the owner of the land allotment acquires the right of ownership in

building, fixtures and other immovable.

However, a specific feature of the post-Soviet civil law is a dominant

position of the owner of the building in comparison with the owner

of the land: the owner of the building can freely alienate it.

Perpetual rights in the 1994 Civil Code

The 1994 Civil Code also listed several proprietary rights under

§216 (1).

Proprietary rights, alongside of the right of ownership, are:

• right of life inherited possession of land allotment [§265];

• right of permanent (perpetual) use of land allotment [§268];

• [land] servitudes [§274], [§277];

• right of economic maintenance (vedenie) [§294] and

• right of operative management [§296].

Rights of operative management and economic

maintenance§ 294 (1): State or municipal unitary enterprise, which had its property by the right of economic maintenance, possesses, uses and disposes the property in the limits set by the code. The owner of property in economic maintenance determines (in accord with the law) the formation of the enterprise, its object and purpose of activity [...] 2. The enterprise has no right […] to dispose property in operative management.

§ 296 (1): The ‘state’ enterprise and institution, which had the property by the right of operative management, possesses, uses and disposes this property (in the limits established by law) inaccord with the aims of the enterprise’s activity, the tasks set by the owner of the property and the designation of the property.

Entrenchment of separation of ownership of land

and buildings in the 1994 Civil Code§ 268: The right of permanent (perpetual) use of land allotment in state or municipal ownership is given to municipal institution, public enterprise, state agency, local self-government body […].

§ 269 (2): Person, who had given the land allotment in perpetual use, has a right […] of independent use the land for designated purposes […] including erection of building [...]. The property built by the person for [person’s] own use is in [person’s] ownership.

§ 271 (2): The acquirer of immovable on the land acquires the useof the land on the same terms as the previous owner.

Since the holder of emphyseusis can freely acquire and pass on the ownership in building on the land, hence, the anomalous Soviet division of ownership of land and buildings can go on practically indefinitely.

Perpetual rights in the 2001 Land Code

§ 20:

1. State and municipal institutions, state (unitary) enterprises, centers of historical legacy of (former) presidents of the Russian Federation as well as state agencies and local self-government’s agency have land in permanent (perpetual) use.

2. Citizens cannot have land in permanent (perpetual) use.

3. The right of permanent (perpetual) use acquired by citizens or legal persons before the current Code is maintained.

4. Citizens or legal persons who possess the land allotments by the right of permanent (perpetual) use cannot dispose the allotments.

§ 21:

1. The citizen who, prior to the present Code, acquired the right of life inherited possession (LIP) of the allotment in state and municipal property, keeps the right. Since the code, no citizen can acquire the allotment by the right of LIP.

2. Disposal of allotment in LIP is not allowed aside from transfer of the right of LIP by inheritance.

Numerus clausus and ‘split’ ownership

Numerus clausus is the principle of limiting the recognised real

rights. It might be traced back to the classical Roman law which

acknowledged only ownership and a handful of iure in re aliena

(personal and praedial servitudes as well as pignus & hypothec).

[The place of emphyteusis and superficies as iure in re aliena in the

classical Roman law might be a matter of controversy].

Savigny in his System des Heutigen Romischen Rechts revived the

interest in numerus clausus as a construction necessary for the

demarcation of the property law from the law of obligations as well

as for the eradication of the feudal notion of ‘split’ ownership

(historically associated with the notion of emphyteusis as a

perpetual right).

Conclusion

• The Soviet civil law, with its two main dogmas of the exclusive state ownership of land and of the ‘unitary’ state ownership, had created a new world of the pervasive ‘split’ ownership.

• After the demise of superficies in the Soviet law, emphyteusis, accompanied by ownership in buildings, became an entrenched civil law reality.

• The contemporary Russian civil law became a hostage to the lingering Soviet civil law legacy of the separation of ownership in land and buildings.

• The post-Soviet civil law retained from the Soviet law several perpetual rights which do not fit well with the modern ‘unitary’concept of ownership.

Conclusion

• The 1994 Code codified the two types of emphyteusis (for legal and natural persons): the right of permanent (perpetual) use andthe right of life inherited possession. While natural persons could only dispose emphyteusis through inheritance, there is no limitation on proliferation of emphyteusis for legal persons, such as state enterprises and other state organs.

• The buildings and fixtures erected by the holder of emphyteusisbecame the property of the holder (in contrast to the maxim solo cedit), and such property could be freely alienated. As a result, the reality of separation of ownership between land and other immovable can continue in perpetuity.

Conclusion

• Under the Soviet law an anomalous proprietary right, such as theright of operative management, had its purpose. The notion of legal person was detached from the intrinsic civil law attribute of ‘person’ – ownership. The right of operative management provided for the proprietary rights of enterprises – legal persons - within the framework of formally unitary state ownership. This perpetual right effectively created ‘split’ ownership in the state property.

• But there are no compelling reasons for the existence of such indeterminate (non-transparent) rights (outside of any known numerus clausus) in the contemporary Russian civil law. Nevertheless, the post-Soviet has codified two (!) varieties of the Soviet right of operative management. These rights as accompanied by emphyteusis are also unnecessary prolonging the abnormal civil law reality of separation of ownership in land and other immovables.

Conclusion: need to re-establish the continuity of

Russian Civil Law tradition• The Russian civil law tradition was not formed in the Soviet

times, but well preceded it.

• The corner-stone of the prerevolutionary Russian civil law

tradition was the concept of unitary ownership and rejection of

split ownership and perpetual real rights.

• It might be hoped that the modern Russian civil law would

earlier rather than later return to the these historical core

principles of the Russian civil law.