Facility under Construction and Investment in Property Maintenance and Improvement as part of the Joint Property of Spouses: Issues of Object Identification and Choice of Protection Method

The purpose of the paper is to classify the buildings built in marriage and investments made in one of the spouses’ property from the viewpoint of the current system of civil rights objects, to determine the appropriate ways to protect the interests of the spouses arising in connection with these objects. The analysis of the norms of civil and family legislation made it possible to identify the problem of legal insecurity of a spouse’s interest in common joint property when reimbursing expenses incurred in connection with his investments into the other spouse’s property maintenance or improvement. The same is true for the acquisition of ownership rights to a building erected during the marriage on a plot of land owned by the other spouse in the absence of primary registration of the right to it. It is established that a direct application of civil law object classification in determining the composition of marital property subject to division, leading to interdependent loss of efficiency of norms of civil and family law (repaying the action of each other), and deprivation of the indicated interests of a spouse legal protection. It is proved that the protection of the interest in compensation for expenses incurred to improve or maintain the personal property of one of the spouses can only be provided by adding a special norm to the Family Code of the Russian Federation that fixes the legality of this interest and determines the method of its protection. The spouse’s interest in acquiring ownership of a building erected during marriage on a plot of land owned by the other spouse, if the primary ownership of the building is not registered, can only be protected by adapting the principles of real property classification to the regime of common joint property of the spouses by expanding the scope of the exception to the principle of incorporation or by introducing an exception to the principle of superficies solo cedit.

1. Bevzenko RS. Vozniknovenie prava sobstvennosti na vnov sozdavaemoe nedvizhimoe imushchestvo: kommentariy k st. 219 GK RF [Emergence of ownership rights to newly created real estate: Commentary to article 219 of the Civil Code of the Russian Federation]. Vestnik grazhdanskogo prava. 2019;3:137-153. (In Russ.)

2. Dosmaganova AD. Ponyatie «imushchestvo» i «veshch» v grazhdanskom prave [The concept of "property" and "thing" in civil law]. Vestnik instituta zakonodatelstva Respubliki Kazakhstan. 2009;4(16):78-81. (In Russ.)

3. Lysenko AN. Ponyatie i vidy imushchestva v grazhdanskom prave Rossii: avtoref. dis. ... kand. yurid. nauk. [The concept and types of property in the civil law of Russia. Author’s Abstract of Cand, Sci. (Law) Thesis]. Krasnodar; 2007. (In Russ.)