Vindication of Real Estate: The Stage of Building a General Vindication Model for the Protection of Violated Absolute Rights

The article considers the legal structure of vindication of real estate developed in Russian science and practice. Protection of the rights of the owner of real estate who has lost possession and is not registered in the Unified State Register of Real Estate (EGRN) is carried out by filing two lawsuits in court: for recognition of the right of ownership and vindication. Due to the peculiarities of the statute of limitations, in Russian practice, the priority of actual ownership of real estate over the records of ownership in the Unified State Register of Legal Entities is established. The need to combine the two claims is caused by their possible competition in connection with the application to each claim of its own rules on the validity of the statute of limitations. The refusal to extend the limitation period to the vindication claim for the return of ownership should lead to the establishment of only one claim within the framework of the method of protecting the violated rights of the owner to real estate – vindication. An independent claim for recognition of the right in this situation seems redundant. Its necessity is caused by an attempt to apply the German model of protection of the violated rights of the owner of real estate, where the impossibility of vindication is due to the high level of public reliability of entries in the register. In modern Russia, the position of complete denial of vindication of real estate is not supported by the consistent implementation of the principle of irrevocability of rights registered in state registers. At the same time, the construction of a claim for the protection of the rights of the owner of real estate allows us to take the first step towards the development of a vindication model for the protection of any absolute right, the elements of which are the requirement to recognize the right and the requirement to restore the legitimation of the right holder.

1. Tyutryumov I. M. (ed.). Civil code. Draft of the Most Highly established Editorial Commission for the Drafting of the Civil Code. In 2 vols. St. Petersburg, 1910, vol. 1, 1228 p. (in Russ.)

2. Suhanov E. A. Property Law: a scientific and educational essay. Moscow, Statut, 2017, 560 p. (in Russ.)

3. Bogatyrev F. O. How to further regulate the turnover of real estate? Economy and law, 2003, no. 11, pp. 121–125. (in Russ.)

4. Vitryansky V. V. Actual problems of judicial protection of property rights to real estate. In: Kozyr O. M., Makovsky A. L. (eds.). Civil Law of modern Russia. Moscow, Statut, 2008, pp. 18–34. (in Russ.)

5. Starovoitova A. S. Recognition of Right as a Way to Protect Right in Things. Actual problems of Russian law, 2018, no. 3, pp. 120–127. (in Russ.) DOI 10.17803/1994-1471.2018.88.3

6. Latypov D. N. Features of the recognition of the right as a way to protect civil rights. Journal of Russian Law, 2013, no. 9, pp. 60–71. (in Russ.)

7. Sinaisky V. I. Russian Civil Law. Moscow, Statut, 2002, 638 p. (in Russ.)

8. Babaev A. B. The system of property rights. Moscow, Volters Kluver, 2006. 390 p. (in Russ.)

9. Petrov E. Yu. On the application of subparagraph 2 of paragraph 2 of Article 223 of the Civil Code of the Russian Federation. Federal Arbitration Court of the Ural District: Practice. Comments. Reviews, 2006, no. 4, pp, 61–65. (in Russ.)

10. Venediktov A. V. State socialist property. In: Venediktov A. V. Selected works on Civil Law. In 2 vols. Moscow, Statut, 2004, vol. 2, pp. 7–412. (in Russ.)