The protection of property rights and other rights in rem

Ask-answer News

Article 28 of the Constitution of the Donetsk People’s Republic proclaims that everyone has the right to own property, possess, use and dispose of it both individually and jointly with other persons. The right to private property is protected by law.

In accordance with Article 268 of the CC of the DPR, a proprietor has ownership, use and dispose of his property. An owner has the right, at his discretion, to perform any actions with respect to the property belonging to him that do not contradict the law and other normative legal acts and do not violate the rights and interests of other persons protected by law, including alienate his property into the ownership of others, transfer them, while remaining the owner, the right to own, use and dispose of property, to pledge property and burden it in other ways, to dispose of it in a different way.

According to the provisions of Article 360 of the CC of the DPR, as a general rule, an owner has the right to the vindication of property from the unlawful possession. The most common way to the vindication of property from the unlawful possession is to file a suit in a court of general jurisdiction.

A bona fide purchaser is one who acquired property on a reimbursable basis, but could not and had not to know about the lack of rights to alienate the property from a seller. In this case, an owner can return his property only in the cases, which are directly indicated in Article 361 of the CC of the DPR: when the property is lost by the owner or a person to whom the property was transferred by the owner into possession, or stolen from one or the other, or dropped out of their possession in any other way against their will.

It should be noted that money and bearer securities cannot be claimed from a bona fide purchaser.

The owner has the right to claim the property in all cases if the property was acquired free of charge from a person who did not have the right to alienate it (Clause 2 Article 361 of the CC of the DPR).

Article 362 of the CC of the DPR regulates calculations in returning the property from unlawful possession. Thus, when reclaiming property from someone else’s illegal possession, the owner also has the right to demand from a person who knew or had to know that his possession is illegal (unscrupulous owner), return or compensation of all incomes that this person has gained or had to gain during the ownership; from the bona fide owner of the return or reimbursement of all incomes that he has obtained or had to obtain from the time when he learned or had to learn about the wrongfulness of possession or subpoenaed for the owner’s claim for the return of the property. The owner, both bona fide and unscrupulous, in turn, has the right to demand from the owner reimbursement of the necessary expenses for the property made by him from the time from which the incomes from the property is due to the owner. In addition, the bona fide owner has the right to reserve the improvements made by him, if they can be separated without damaging the property. If such separation of improvements is not possible, the bona fide owner has the right to demand compensation for the costs incurred for the improvement, but not in excess of the increase in the value of the property.

The owner can demand the elimination of any violations of his rights, even if these violations were not connected with the deprivation of ownership.

The rights provided for in Articles 360-363 of the CC of the DPR also belong to a person, although not the owner, but who owns the property on the basis of the right of perpetual inheritable possession, commercial activities, operational management, or on another basis stipulated by law or contract. The said person has the right to defend his property also against the owner.

In the case of the law enters into force terminating the right of ownership, the losses caused to the owner as a result of the entry into force of the said law, including the value of the property, shall be reimbursed by the state. The Court shall rule on disputes about damages (Article 365 of the CC of the DPR).

It should be remembered that the general time limit of liability (3 years) applies to claims for the vindication of immovable property from the unlawful possession, calculated from the day when the owner learned or had to learn about the violation of his right and who is the proper defendant in the claim on protecting this right.