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PUBLISHED DATE: - 30-11-2024
DOI: -
https://doi.org/10.37547/tajpslc/Volume06Issue11-13
PAGE NO.: - 89-94
ESSENCE OF PROPERTY RIGHTS AND
INTERESTS IN RELATION TO UNFINISHED
CONSTRUCTION OBJECTS
Donayev Abduqodir Haydarovich
Independent researcher of the Supreme School of Judges with the Supreme
Judicial Council of the Republic of Uzbekistan, Uzbekistan
INTRODUCTION
It is natural that the question of what rights exist in
relation to unfinished construction objects (UCO) is
a subject of some debate. This is because
conventional legal regimes rely directly on existing
material rights or the norms of right to property
specified for material rights. At this point, there are
different approaches to the application of right to
property or property rights in relation to the UCO.
First of all, it is important to determine what has
been the legal approach to property rights. In
history, the Laws of Hammurabi specify that in
Mesopotamia, “if one man gives the gardener a field
to create a garden, and the gardener creates and
cultivates a garden for four years, in the fifth year
the owner of the garden and the gardener divide
the garden equally; the owner of the garden must
first choose his or her share”. As can be seen from
the above-mentioned rules, relations are regulated
by law from the practical point of view. In this
example, it is clear that not common property, but
land planted with orchards, is regulated as an
object of property relations.
For example, according to S. Ermolaev, common
(joint or shared) ownership is characterized by the
possession of property rights, that is, one property
right (goods, including money and securities, other
property, including property rights, works and
services; results of intellectual activity and
equivalent personalization tools (intellectual
property)) belongs to one or more persons. For
example, shared property of husband and wife
(family legislation), application of the common
property regime to the object of inheritance,
RESEARCH ARTICLE
Open Access
Abstract
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acceptance of inheritance and others.
However, although these property rights occupy a
special place among the objects of civil law and
historically serve to determine the regime of
general property rights in relation to property at
stages of development, they do not indicate the
establishment of a specific property right in
relation to construction objects. Legal norms or
property rights in institutions are determined
depending on the characteristics of each object.
According to L. Netishinskaya and N. Blagodarova,
when analyzing property rights as an object of civil
rights, the most extensive legal regulation for
property rights is established for property rights
(claims) in relation to collateral. The legislator
provides for a number of restrictive provisions on
the pledge of property rights. In particular, if there
is an agreement between the right holder and its
debtor on the prohibition of transferring the right
to another person, the pledge of the property right
(claim) is not allowed. Also, the requirements for
the content of the agreement on the pledge of
property rights are determined, in which the main
conditions of the agreement must be agreed upon.
Although the application of property rights only to
a mortgage acquires a certain meaning and gives
the right holder certain powers, in determining
property rights to the construction object, on the
contrary, it serves to ensure the property rights of
the pledge holder. In particular, there are many
cases in practice where banks actively pledge
construction facilities and attract loan funds.
There are different views on the characteristics of
the the right to claim (demand) in legal literature.
For example, the objects of civil law are the actions
of things and others, and both correspond to the
concept of property. Analysis of French legislation
shows that, according to the general theory of
obligations, the right to demand has become a
value, a price. Because this right can be the subject
of a transaction and, through this, enters civil
circulation and becomes a value priced in money.
Since the purpose of any subjective right is to
satisfy the interests of the authorized person, the
right of claim must be important for the creditor.
The right to claim is the part of the creditor's asset
in the obligation and has a certain property value
for it. The ownership, use, and disposal rights of the
owner, in our opinion, are the rights of the owner
and constitute the content of the property right. At
the same time, the right of operational
management is not a property right, but a material
right.
In some cases, the law directly links the fate of a
legal relationship to an interest. For example,
according to Paragraph 2 of Article 337 of the Civil
Code, if the debtor has lost its significance for the
creditor due to the delay in execution, s/he may
refuse to accept the execution and demand
compensation for damages. While the legislator
speaks of “ahamiyat” (importance) in Uzbek, in
Russian “интерес” corresponds to the word
“interest”. Therefore, if the creditor loses the
interest in accepting performance due to the
debtor's delay, s/he has the right to refuse to accept
performance, which will lead to the termination (or
modification) of the obligation. In this case, the
possibility of terminating the obligation is directly
linked to the loss of interest by law.
According to A.I. Ekimov, interest influences the
legislative process, the content of objective legal
norms, the emergence and realization of subjective
rights, as well as the fulfillment of legal obligations.
S. Sabikenov and N.A. Shaikenov argue that the
mechanism for resolving conflicts of interest is
based on the idea of legal regulation of social
relations. According to them, the interest
supported by law is legal, but it may not be
provided by a certain subjective right of the person.
It is important to determine when property rights
originate (arise) in relation to UCO. First of all, it
requires the implementation of a number of
organizational and legal measures before reaching
this stage. This includes who owns the rights to the
land plot, obtaining the right to build on the basis
of a supervision agreement, pre-foundation
preparation in construction -
starting a “pod
kotlovan” sale (starting sale at pre
-construction
stage), having clients, in some cases, the obligation
to provide housing to needy citizens, and others.
Such kind of cases can also occur in law
enforcement practice.
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Construction company A. starts collecting funds
from citizens by concluding a preliminary sales
contract to begin construction. Naturally, when the
funds received are insufficient, the company also
receives a loan with the pledge of a certain part
(storey or floor). Then, for example, a criminal case
will be opened against that company for non-
payment of taxes and the responsible persons will
be deprived of liberty. In this case, how can citizens
protect their property rights? Of course, such vital
issues cannot be solved instantly, and the issues
arising from this require a separate legal solution.
First and foremost, it is necessary to determine
what constitutes the essence (content) of property
rights.
The current development of family law has already
placed the marriage contract on the agenda. It is
evident that not everyone signs this contract with
bad intentions in advance, so the statistics on this
contract can be said to be very low. However, if one
realizes the importance and essence, there will also
be enough motives to conclude a contract. For
example, property under a marriage contract has a
special legal regime. In this case, the spouse may be
granted various powers of ownership or property
rights. Most importantly, it is determined not by
law, but by the terms of the marriage contract.
Furthermore, the author notes that if any
document expressing property rights has a specific
material basis, certification by duly formalized
documents allows for the determination of the
existence and subject of rights, then the state
registration of property rights in the prescribed
manner is of great importance in determining their
place as an object.
Property rights will inevitably have their own
“traces”. Z. Amonov emphasizes that it should be in
the form of a document, but the possibility of
applying it specifically to UCO is somewhat
complicated by the presence of a list for identifying
the subject. A according to the Decree of the
President of the Republic of Uzbekistan (dated May
27, 2020) No. PD-
4732 “On measures to regulate
the process of construction of multi-apartment
houses on a share basis” the electronic list is
maintained in order to keep track of builders
attracting funds for the construction on a share
(pre-payment of advances) basis and to prevent
violations of the rights and legitimate interests of
shareholders.
Materials on the problematic object are sent to the
relevant law enforcement agencies in the manner
prescribed by the authorized state div
(paragraph 42 of the Regulation). As can be seen
from the aforementioned legislative act, the law
enforcement agency takes specific measures on the
problematic object, but may also bring it to
criminal liability.
However, at what stage do the property rights of
buyer citizens exist? Does it exist in relation to
UCO? This question should not remain unclear. For
example, did UCO have specific clients before
construction began? Does the right to build have
value? The value of the current state of UCO should
always be assessed objectively by expert assessors
in accordance with relevant standards.
According to O. Okulov, the right to claim consists
of the powers to receive more dividends, receive
information, participate in management, and
demand the return of the share. This situation
primarily affects the right to participate in business
entities, alimony, and inheritance. Therefore,
Articles 23-24 of the Family Code define the
content of the right to claim and the specifics of its
implementation. In relation to the newly created
object, the issue of property rights or the right to
claim must be resolved.
According to N. Ashurova, since institutions are
also allowed to carry out entrepreneurial activities,
since the property basis of this activity and the
income from it belong to the institution itself, the
institution itself should be responsible for the
obligation arising from this activity. In our opinion,
although the main emphasis is placed on the
property rights of the institution, which is
considered a subject of limited property rights,
there is a lack of clarity regarding property rights.
After all, the institution also has a number of
property rights, such as receiving dividends and
creating commercial legal entities.
If we look at the experience of the Russian
Federation, on July 29, 2017, a separate law on the
protection of buyer share rights was adopted. This
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law essentially protects buyers and citizens in the
event that the construction company goes
bankrupt. Therefore, according to the law, a
separate compensation fund is created. This fund
completes construction (for example, in cases of
bankruptcy of the construction company), covers
damages, monitors the payments by citizens, etc.
The main point is to help in the event of
bankruptcy. However, such a system existed before
and functioned as the “Fund for the Protection of
the Rights of Citizens Participating in Share
Construction”. In our opinion, it is necessary to
analyze the introduction of such funds in our
country.
Today, the introduction of the escrow system is
being more common. This system has been in use
in many countries around the world for several
years (for example, in the Russian Federation,
Kazakhstan, Ukraine, Belarus, etc.). Its essence lies
in the fact that, like a letter of credit, in this system,
the buyer transfers money to a third party (escrow
account), but the money is not directly transferred
to the seller. The builder will be able to receive
funds from escrow only after the house is fully built
and the right of ownership is registered in the
buyer's name.
According to G. Mamarayimova, based on this
system, the money paid by the customer of the
work, the customer of the service, or the recipient
of the goods, on the other hand, is a legal
mechanism that provides for the freezing of funds
paid by third parties until the proper fulfillment of
their obligations.
Article 860-7 of the Civil Code of the Russian
Federation deals with an escrow account
agreement. Under an escrow account agreement, a
bank (escrow agent), if there are grounds provided
for by law, opens a special escrow account for the
purpose of recording or arresting the funds
received from the account holder (depositor) for
the purpose of transferring them to another person
(beneficiary). The rights to the funds stored in the
escrow account belong to the depositor until the
beneficiary has the right to receive the funds in the
account, and then to the beneficiary.
The active use of this mechanism in the conclusion
and execution of civil contracts in our country
opens the way to prevent violations of property
rights of our citizens, money payment and
subsequent loss of property, and other unfair
actions that may occur. Moreover, this will also
contribute to a decrease in the number of disputes
considered by courts.
The buyer's funds will be frozen until the
construction is completed, while the builders will
have the opportunity to more easily implement the
construction at the expense of their loan funds. We
believe that the new system will protect buyers
from dishonest builders.
In fact, the possibility of using such legal
mechanisms has existed for a long time.
For example, in accordance with Article 354 of the
Civil Code, the parties may conclude a contract that
is not provided for by law. Therefore, a contract can
be concluded that can perform a task such as
escrow. The main thing is to note that a whole
system of ensuring the fulfillment of obligations by
the party to the contract has been created over the
centuries.
For example, the rights and interests of a buyer can
be protected through the conclusion of a pledge,
guarantee,
surety,
insurance,
and
other
agreements.
More emphasis is placed on concluding a contract
based on the psychological state. As a rule, we
consider the easy terms of the contract to be
convenient and conditional for us. The base of the
iceberg is almost impossible to see. Similarly, even
though prepayment is easy (or cheap) to make, the
rest of it actually requires a large amount of money,
interest (in most cases), and most importantly, a
large “risk”.
That is, the buyer cannot foresee the risks in the
contractual relationship. As a result, we become
preoccupied with situations which cannot be
solved instantly, conflicts, misunderstandings, and
even blaming someone.
By this time, individuals whose goals are self-
interested will have already earned their profits.
However, it is implied that the participants in civil
legal relations, to whom we frequently enter our
daily lives or only meet (conclure a contract) once
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or twice, act honestly, reasonably and fairly (Article
9 of the Civil Code).
Just as there are two sides to a coin, the interests of
both the entrepreneur and the buyer must be
ensured in this matter. However, the imposition of
various stricter, large-scale requirements (for
example, through licensing), such as the
implementation of long-term construction, should
not lead to a sharp increase in the cost of
construction. On the other hand, it would be unfair
to leave a citizen without a home
and with a “big
debt” on his shoulders after paying almost all the
payments for the house to be built.
It is necessary to avoid the presence of only one-
sided interests in the contract, to ensure that the
conditions serve the interests of both parties, to
ensure the timely and proper fulfillment of all
obligations.
For example, how long will the housing under the
contract be completed, if the builder fails to fulfill
his obligations on time, what kind of legal measures
will the citizen have? Otherwise, one can fall into a
“trap” of one
-sided interest.
In our opinion, it is necessary to create a theoretical
basis for the system of protection of property
rights, to establish in the legislation that property
rights in relation to the UCO have a special
assessment from an economic point of view.
Otherwise, various sanctions and liability
measures will hinder the enforcement of this right
and the acquisition of the right.
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site-dok.html
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fuqarolarning-uy-zhoyga-pul-tolab-keyin-
kuyib-qolmasligini-taminlaydigan-yangi-
tizim_638899
