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Regular version of the site

Article

Modern Models of Private Law Restrictions on the Right of Ownership to Landed Estate

Perm University Herald. Juridical Sciences. 2018. Vol. 39. P. 74-98.

Introduction: the article considers various legal models of private law restrictions on the ownership of land. In the context of the formation of a single civil law institute of neighbor law, it is necessary to form a model of private law restrictions on property rights corresponding to modern social and economic relations. In different legal systems, their own legislative models of neighbor law have been developed. With the introduction of new technologies, modern types of industrial production, development of opportunities for using space over private real estate for various purposes, there appear new concepts of neighbor law. In this regard, the study of a set of theoretical and legal issues concerning neighbor law is of considerable significance. Purpose: to develop an understanding of the legal models of private law restrictions on the right of ownership to real estate in European countries and the United States, based on the analysis of scientific sources, various legal doctrines, laws of individual countries, as well as judicial practice. The leading method to investigate this problem is the comparative legal one, which allows us to comprehensively consider the legal institutions of neighbor law in different countries and to identify the most general patterns of the development. Along with the comparative legal method, we also used the methods of objectivity, from the abstract to the concrete and from the concrete to the abstract, empirical methods of comparison, description, interpretation, theoretical methods of formal and dialectical logic. Results: the principles on which restriction on property rights in foreign legal systems is based are presented, the model of neighbor law proposed for implementation in the 19th century is shown, various theoretical models of neighbor law in domestic and foreign law are analyzed, the author’s model recommended for application to improve legislation on the ownership of real estate is presented. Conclusions: the paper justifies differences in the approaches of American and European law in the formation of restrictions on property rights, and also the absence of grounds for the dominance in the countries of the post-Soviet space of the American model of restrictions on the ownership of private property. The paper substantiates the criteria for the differentiation between public and private law regulation of neighborly relations, the dominance of the norms of civil law in neighbor law, the possibility of changing legal restrictions on property rights in the interests of a neighbor by an agreement establishing the real right of a servitude type, grounds for referring to the right of the necessary road in the German legal order. The materials of the article are of practical value in determining the legal policy for the development of legislation on restrictions on the right of ownership to land in the interests of neighbors in the context of the reform of Russian civil law.