of March 26, 2003 No. 2
About application of the legislation by courts in case of the dispute resolution, connected with the property right to premises
Having discussed results of generalization of court practice on the disputes connected with the property right to premises for the purpose of ensuring the correct application of the legislation in case of permission of cases of this category Plenum of the Supreme Court of the Republic of Belarus decides:
1. Owing to provisions of article 44 of the Constitution of the Republic of Belarus, Item 1 of Article 210 of the Civil code of the Republic of Belarus (further - group of companies) to the owner possess rights of possession, uses and orders of the property. The property acquired by legal method is protected by the state. The security of property, the right of its inheritance are protected by the law.
The citizen - the owner of the apartment house, other premises (further - premises) performs rights of possession, uses and orders according to purpose of premises, that is has the right to use it for personal accommodation and accommodation of members of the family, to provide for accommodation based on the agreement. Use of premises is not to destination allowed only in cases, stipulated by the legislation.
2. Resolving the disputes connected with the property right to premises, courts should be guided by regulations of the Constitution of the Republic of Belarus, group of companies, Housing code of the Republic of Belarus (further - ZhK), the Code of the Republic of Belarus about scrap and family (further - KOBS), the Law of the Republic of Belarus of July 22, 2002 No. 133-Z "About state registration of real estate, the rights to it and transactions with it" (further - the Law), other acts of the legislation.
Draw the attention of courts that owing to provisions of parts one and heel of Item 1 of Article 1 of group of companies of legal relationship, connected with origin, implementation, the termination of the property right and other corporeal rights to premises, are regulated by regulations of the civil legislation if the housing legislation does not provide other.
3. By preparation of cases of this category for legal proceedings for the purpose of their timely and correct permission, possibility of execution of the decision courts in each case should discuss questions of need of conducting judicial examinations, taking measures to providing proofs, providing the claim, to make other necessary legal proceedings.
It is also necessary to find out the basis and nature of the declared requirements, in particular, the claim for recognition of the property right or right to use by premises, for the Section of premises or on determination of procedure for use is made. At the same time it must be kept in mind that the court cannot change on own initiative subject and the basis of the claim, to go beyond the declared requirements if it is not provided by the law.
4. It must be kept in mind that the property right to newly created premises arises from the moment of state registration of emergence of such right, and the property right of the acquirer of premises under the agreement - from the moment of state registration of transition of the property right to premises (Item 3 of article 8 of the Law).
Resolving the dispute on the apartment house which arose before completion of construction and state registration if state registration of construction in progress is not stipulated by the legislation, the court owing to Item 3 of Article 220 of group of companies can recognize the property right to materials and other property from which the disputable structure is created.
5. If the transaction with premises is made in due form, but one of the parties evades from state registration of the transaction and transition of the rights on it, court, in view of provisions of Item 3 of Article 166 of group of companies having the right to pass the decision on making of these registration actions upon the demand of other party. At the same time the substantive provisions of the decision shall contain data, necessary for state registration, in particular: the date of transaction and its content this about premises concerning which the transaction is made surname, own name, middle name (if that is available), and also number, month, year of birth and the residence (address) of participants of the transaction, data on restrictions of the rights to premises.
6. Draw the attention of courts that state registration of creation of premises, the rights to them and transactions with them is made by registrars of the organizations for state registration of real estate, the rights to it and transactions with it in the sequence, certain article 10 of the Law. The interested person believing that actions (failure to act) of the registrar violate its rights can make the complaint to actions (failure to act) of the registrar in court or file petition in the relevant territorial or republican organization for state registration (article 43 of the Law). The address with the statement to the relevant organization for state registration does not interfere with the citizen to appeal actions (failure to act) of the registrar judicially.
7. State registration of the property right to premises is, as a rule, made on the citizen on behalf of whom the construction (builder) was performed, or on the acquirer of premises if other is not established by the legislation or the agreement. Participation in construction, acquisition of premises of other family members (except spouses), relatives and other persons can be the basis for recognition behind them of the right to share in the property right to premises in case of validity that between these persons and the builder, the acquirer there was arrangement on creation of common ownership and for this purpose they put the work and means in construction, acquisition of premises (Item 2 of article 135 ZhK).
If on construction (reconstruction), acquisition of premises the subsidy was used, then family members taking into account whom the subsidy was charged, can also require recognition behind them of the right to share in the property right to premises proceeding from the size of the subsidy falling to the share of each of them.
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