Scientific justification of essence of "restrictions in land use" and "encumbrances of land rights" concepts
DOI:
https://doi.org/10.31548/zemleustriy2016.03.040Abstract
Scientific justification of substantial part of the concepts of "restrictions in land use", "encumbrances of land rights" as economic and legal categories is done. The common characteristics of these concepts are singled out based on the analysis of current legislation of Ukraine. These characteristics are following: 1) the restrictions and encumbrances are established for the use of land by its owners and users; 2) they are established in the framework provided by law or agreement; 3) they stay in force within the term established by law or contract; 4) change of legal of the land plot title does not terminate the established restrictions or encumbrances; 5) All restrictions in land use are a subject to state registration (Art. 110 Land Code of Ukraine).
Based on the views systematization of domestic scientists and own views there are obvious need to justify a separation of overall concept of "restrictions in land use" and "encumbrances of land rights" into two separate concepts, taking into account the target criteria as the primary and as well the forms and grounds of their establishment to develop scientifically grounded definitions that reflect the specific attributes of these restrictions and encumbrances.
Consequently, restrictions in land use and the encumbrances of land rights are separate economic and legal categories that do not depend on each other and limits of land rights and other natural resources.
The author's definitions of the studied concepts are suggested.
Restrictions in land use is a definition of the limits and conditions of land use and other natural resources (mode of land use) in socially significant interests (public benefit and safety, environmental, historical and cultural values, creating the necessary conditions for other state needs) in land management documentation on the basis of local authorities decisions or in court order. Restrictions in land use have territorial and individual character on a specified land plot.
Encumbrance of land rights is the restriction of land rights by the law or act of authorized authority, by official or contract in the way of imposing a ban on the use of the land, including through its alienation as servitude or obligation adopted by land user voluntarily or in court order to ensure the legitimate interests of stakeholders, which are expressed in granting them additional rights and in laying the responsibilities on land user. Encumbrances of land rights arise only individually on specifically identified land plot and are in direct connection with this land plot and follow it in case of transfer of ownership of such land plot to another person.
Using these concepts in research and law-making will differentiate the scope of their application in land and other relations.
Keywords: restrictions in land use, encumbrance of land rights, land use regime.
References
Bezsmertna N. (2001) Implementation of the citizens' right to private property: Candidate dissertation of Legal Sciences: 12.00.03 / Bezsmertna N.
Dorosh I. (2007) Ecological and economic basis for the formation of the Institute of restrictions and encumbrances in land use. "TSZRU" Ltd.
Land Code of Ukraine № 2768-III of 25.10.2001. - [Electronic resource]. – Access: http: // zakon4.rada.gov.ua/laws/show/2768-14
Constitution of Ukraine // Supreme Council of Ukraine. 1996, №30.
Nosik V. (2012) The limits of land ownership: Theory and Practice. Scientists note of Taurian National Vernadsky University, Series "Legal science", Volume 25 (64), 141-150.
Ozhegov S., Shvedova N. (2010) Explanatory dictionary of Russian language.
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