Zbornik, Vol. 32 No. 1, 2011.
Izvorni znanstveni članak
THE RIGHT TO BUILD – ITS DURATION AND CESSATION
Petar Simonetti
; redoviti sveučilišni profesor u mirovini, Rijeka
Sažetak
At the same time, the right to build is a real property right on someone’s land and a real property in legal sense while the building belongs to it as if it is a land. The right to build can be alienated, inherited and burdened. Mortgage encumbering the right to property extends over the building from the beginning of its construction and over each and every element of the future building starting from its foundations. Therefore, the right to build is suitable for procuring a loan secured by mortgage. In case of termination of the loan contract due to repayment failure, the creditor whose claim is secured by mortgage may settle his claims by selling the real property encumbered by mortgage which consists of a right to build and a building under construction for which the loan was procured.
The Croatian right to build, as opposed to the Austrian Baurecht, is not limited in time by law, nevertheless, it can be limited by legal transaction in regard to its duration or condition subsequent. Moreover, the right to build ceases when its object (the land) perishes (legally or factually), or when authorised party waives his claims, as well as in case of protection of trust of others in land register, user’s termination, disburdening and suspension. At the request of the owner of the land burdened by right to build, the right ceases to exist when court delivers a decision on suspension due to holder of a right to build failure to build a building in the period of twenty years or to restore a ruinous or substantially damaged building in the period of sex years. On the basis of a formal document containing the statement on waiver of the right to build as well as of a court decision or a decision of another authorised body regarding the suspension upon the above mentioned grounds and court decision stating that legal presumptions of cessation have been fulfilled – the right to build ceases when its cessation is entered in the land register. Legal consequences following the cessation of the right to build are as follows: establishment of the legal unity of a land and a building and owner’s obligation to reimburse the party who lost the right to build for value of the building in real estate transactions which has augmented the value of his real estate. The rights of others which burdened the right to build in principle cease whit the cessation of that right (when there is no building), unless agreed otherwise. After the cessation of the right to build, the right of pledge which was burdening the right to build burdens compensation which is owed by the owner to the party who lost the right to build. Servitudes, real burdens and rights of pledge in favour of and burdening the right to build with the land remain as servitudes and real burdens in favour of the land, that is, as a burden on the land with the building according to previously established order of precedence.
Ključne riječi
right to build; right of superficies; ownership; mortgage
Hrčak ID:
82228
URI
Datum izdavanja:
1.4.2011.
Posjeta: 31.609 *