Original scientific paper
Evolution of the Institute of Right of Superficies and Comparison with the Right to Build
Petar Simonetti
; Pravni fakultet Sveučilišta u Rijeci
Abstract
A titular of the Roman Law institute superficies was entitled to protection of possession and ownership, nevertheless, he never had a right to build a building on someone else’s land due to the fact that this legal segment of the right of superficies had never been developed in Roman Law (or its antecedents). It was a long way between the Roman superficies and full recognition of legal separation of a building and a land. During the years this institute developed tendencies towards such entitlements smoothing the progress of its unproblematic fitting within the feudal structure of divided property. The described development was stimulated by barbarian laws in Roman time which were giving priority to the principle according to which a building belonged to the one who had built it instead of the proprietary principle of accretion. The same precedence was given by provisions of statuses enacted in Medieval Italian cities. Different institutes which were giving rights to its titular to have a building on other’s land but separated from that land were developed, as it can be seen, in German and Austrian law before the modern right to build. The right to build differs from the right of superficies because it takes a role of a land by itself, and consequently a building is its accrete as it is a land itself. This is a source of numerous advantages, especially for a person who has the right to build. As opposed to the right of superficies that stimulates business undertakings, the right to build, in the first place, protects these who are socially endangered due to the fact that is gives a possibility to build a building without buying a land. Over its titular, the right to build imposes a small remuneration which can be excluded in cases where this right is established by municipalities.
Keywords
right of superficies; right to build; right of ownership
Hrčak ID:
87300
URI
Publication date:
16.4.2012.
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