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Anatolii MIROSHNYCHENKO

member of the High Council of Justice, Doctor of Law, Professor

IMPLEMENTATION OF SUPERFICIES SOLO CEDIT PRINCIPLE IN CASES OF BUILDING BY MARRIED COUPLE ON LAND PARCEL OWNED BY ONE OF SPOUSES

The land parcel privatized by one of the spouses belongs to this spouse and not to the spouses commonly (except for the situations when the land parcel was privatized during the short period when Art. 61 (5) of the Family Code of Ukraine was in effect).

The property erected on a land parcel which belongs to one of the spouses belongs to the owner of such land parcel. Another spouse who contributed to building is entitled to compensation according to the rules on condiction. The approach taken currently by Ukrainian courts according to which the building in such situation is considered to be a common ownership of both spouses, and the land parcel is transferred ipso iure into common ownership of both spouses as well, is manifestly unfair and is not in line with the provisions of Article 1, Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Key words: superficies solo cedit, developing land parcel, property of the spouses.

References

Unified state register of court decisions. URL: http://www.reyestr.court.gov.ua/Review/56128579.[ukr.]

Shcherbyna M. S.  The principle of unity of the legal fate of the land and real estate, which are located on it, in the doctrine of land law of Ukraine. Право.ua. 2015. No 1. S. 157–164. URL: http://irbis-nbuv.gov.ua/cgi-bin/irbis_nbuv/cgiirbis_64.exe?C21COM=2&I21DBN=UJRN&P21DBN=UJRN&IMAGE_FILE_DOWNLOAD=1&Image_file_name=PDF/pravo_2015_.[ukr.]