Problems Associated with the Legal Substance of Real Estate Encumbrances

Abstract

The article is devoted to the problems pertaining to the establishment of encumbrances on real estate. Encumbrances that are created on the basis of law have a different legal substance. As a rule, encumbrances by law are significant and bring benefits to an unlimited number of rightholders. This type of encumbrances includes various protection zones, roads, nature reserves, etc. It is assumed that these encumbrances are for the common good; therefore, the rights of an owner may be restricted. Legislation allows establishing encumbrances without any authorisation from the real estate owner. The objective of the thesis is to analyse the legitimacy of encumbrances based on law in the context of the impairment of owner's property rights. To this end, both descriptive and analytical methods have been employed to analyse the legal grounds for encumbrances and related case-law. The study has relied on both legislation and case-law. The results of the study give strong grounds to conclude that a special procedure could be applied to the establishment of encumbrances in situations when those are intended to meet the needs of the entire society or individual communities of certain regions. Like any other encumbrances, those established by law restrict owner's property rights. A real estate encumbrance should be recognised as a restriction on owner's property rights. Certain remedies should be introduced with a view to balancing the rights and interests of the society and the owner and minimising the adverse effects of encumbrances. Such remedies could comprise an owner's right to claim reasonable compensation, challenge the establishment of encumbrances and initiate their annulment.