Superficies in foreign countries: history and modernity.

Sekretaryov Roman Viktorovich PhD in Philosophy Associate Professor at the Department of Private Law of Vladivostok State University 690014, Russia, Primorsky Krai, Vladivostok, Gogol str., 41, sq. 5502 rvsvldv@mail.ru Other publications by this author

Introduction.

  In an interview given on 08.05.2020 to the portal zakon.ru Professor K. I. Sklovsky noted the absurdity of providing land for building. The fundamental disadvantage of the existing practice, according to the professor, is that, by its legal nature, the relationship on the provision of land for development does not correspond to the essence of the obligations of the parties. Indeed, after the development of the relevant real estate plot, the landlord will have no other options for extracting income, except to provide it for long-term lease to the owner of the property (and in fact this is nothing more than superficies) or to sell the land, and taking into account the interests of the owner of the real estate available on the plot! It is impossible not to agree with the professor's statement that the existing procedure for leasing land for construction carries significant corruption-causing factors and provokes abuse.

We believe that in order to further improve the applicable legislation, it is necessary to study the world experience of civilistic thought in dynamics, its regional features and the specifics of law enforcement at the present stage.

One of the most authoritative lawyers of Ancient Rome, Guy, in his "Institutes" pointed out: "id quod in solo nostro ab aliquo aedificatum est, quamvis ille suo nomine aedificaverit, iure naturali nostrum fit, quia superficies solo cedit", i.e., what anyone has built on our land, at least he built it for himself, by natural right it becomes ours, since the surface is inferior to the soil ^[1].

Thus, the institute of superficiality appeared in Roman law, which was studied in great detail both in educational and scientific literature. Cesare Sanfilippo reasonably summarized that what was erected on someone else's land belongs to the owner of the land by right of increment ^[2]. But since the era of the Republic, Rome has allowed private individuals to erect buildings on public lands. This right was granted on a reimbursable basis. Such a scheme turned out to be in demand by private individuals, while these relations could be mediated by both a lease agreement (if payments were periodic) and a purchase and sale agreement (in the case of a one-time payment).

  In the case of using the lease model, the superficies represented a real, alienable, inherited right to erect a structure on someone else's plot and the right to use this structure ^[3]. E. A. Leontieva ^[4] and A. I. Bibikov ^[5] described in sufficient detail the genesis of the institute of superficies.

       The construction of the superficium turned out to be very promising, in one way or another it was in demand in every historical period and, along with other institutions of Roman law, remains relevant at the present stage in different countries. Therefore, we consider it expedient to proceed to the analysis of the named legal institution on a territorial basis.

Germany. The study of the scientific literature on the problems of superficies shows that most researchers consider it expedient to include in their research a review of German legislation in the first place, due to its obvious influence on the legislation of the countries of continental Europe. In particular, E. Y. Ivanova ^[6] and O. A. Kruglova ^[7], N. A. Pronina ^[8], M. V. Vronskaya and P. M. Maslyuk ^[9] went this way.

And such scientists as V. E. Khazova ^[10], N. V. Buterus ^[11] and A. S. Zakharov ^[12] focused exclusively on German legislation. Although we cannot claim that the German legislation on the right of development affected only the law of continental Europe. It even influenced the legislation of Japan and China, which is convincingly proved in one of the works of a Chinese researcher ^[13].

In science, the point of view on the reception of the institute of superficies into German legislation from Roman law has been established. The laws of economics required the involvement of the maximum possible amount of land in the economic turnover, while the absence of ownership of the land plot from interested subjects was not an obstacle. The Institute of superficies came to the rescue. 

German legislation's perception of the superficialist design has gone through certain difficulties. So, at the beginning of the XX century, a prominent Russian civilist M. I. Mytilino noted its following shortcomings: the obligation of the developer to erect buildings on the land is not fixed; there is no obligation to properly maintain existing buildings; the term of construction is not regulated; the legal fate of buildings after the expiration of the contract is not determined; the grounds for termination of the contract are not specified; there is no clarity in the form of payment. And the most important thing is that the scope of the rights of the owner of the land to the buildings erected on it has not been determined. (https://viewer.rsl.ru/ru/rsl01004192127?page=1&rotate=0&theme=white, accessed 28.09.2023) ^[14].

However, a few years after M. I. Mytilino's research, the German legislation on the hereditary right of development was codified by adopting a Provision on the hereditary right of Development (see: https://www.gesetze-im-internet.de/erbbauv/BJNR000720919.html#BJNR000720919BJNG000100314 , accessed 28.09.2023).

The hereditary right of development meant that a subject who is not the owner of a land plot is granted the right to build on a land plot or under its surface, and this right can be inherited. N. A. Pronina points out that in Germany, the legislator through the fiction "superficies = legal land plot" applies the same to the right of development the very rules that apply directly to the land plot.

Currently, the content of the hereditary right of development can additionally be mediated by agreements between the land owner and the hereditary developer on:

1. the order of construction, maintenance and use of the structure;

2. the need to insure the structure, and in case of its destruction - to restore it;

3. the costs of making mandatory payments related to the maintenance of real estate;

4. fixing the obligation of the hereditary developer to transfer the hereditary right to build to the owner of the land upon the occurrence of certain conditions;

5. obligations of the hereditary developer to pay penalties in case of improper maintenance of the real estate object;

6. granting the hereditary developer the pre-emptive right to conclude a similar contract in the event that the term of the original contract expires;

7. obligations of the owner of the land to sell the land to a person who has the right to build.

Thus, in the German model of the hereditary right of development at the present stage, the following advantages can be distinguished::

1. the purchase price of the land plot will be saved;

2. very long term - from 50 to 99 years;

3. low additional purchase costs;

4. often a low purchase price when buying a property on a plot with the right of hereditary development.

At the same time , this model is not without the following disadvantages:

1. if it is necessary to amend the contract, the consent of the land owner is required;

2. the rate of hereditary development may increase every 3 years;

3. loss of property in case of expiration of the contract or bankruptcy;

4. special conditions for financing construction;

5. as a rule, the low sale price of real estate on a land plot located in a hereditary development;

6. interest payments on hereditary buildings may exceed the total value of the land over the years.

Italy. In Italy, the institution of superficies is currently regulated by articles 952-956 of the Civil Code, according to which the owner of a land plot has the right to grant other persons the right to erect buildings on his site and maintain them. In this case, Article 952 of the Italian Civil Code corresponds to articles 934, 1350, 2643 of the same Code.

In addition, the ownership of the building can be alienated separately from the ownership of the land plot. If the right of development is limited to a specific period, then upon its completion, the ownership of the building passes to the owner of the land plot according to the rules of Article 2816 of the Civil Code of Italy. In case of non-use of the land received for construction within 20 years, according to the general rule (from which there are exceptions that reduce the specified period to 10 years), the superficies are considered terminated by virtue of Articles 2816, 2934 of the Civil Code of Italy. The stated rules also apply if the superficies were submitted to underground structures (for example, an underground garage). Superficies are not applicable if fruits are the subject of the contract. In this case, it is necessary to follow the rules on the establishment of usufruct.

Italian land lawyers note that although, from the point of view of theory, the regulation of superficies is clearly distinguished from the rental model, in practice it is not always easy to understand whether it is a question of establishing property rights (superficies) or, conversely, of binding legal relations, such as leasing or credit. When interpreting a specific contract, it must be borne in mind that the establishment of a superficiality is possible only in writing, while the corresponding encumbrances must be indicated in the real estate register. In case of non-compliance with the above requirements, the contract can be disputed - the actual legal relations are not real, but binding (apply the rules on rent or on the gratuitous use of property, depending on whether payment is provided for under the disputed contract). Similar qualification problems may arise if the subject of the contract is not too large a structure, for example, a kiosk, a shopping pavilion or a gas station.

A special case of the use of superficies in Italy is a contract for the installation of solar panels. Solar panels can be installed on both flat roofs of apartment buildings, various warehouses and commercial premises, and on suitable land plots. The validity period of such contracts is usually 20-25 years, after which the owner of the building or land can buy the installed equipment. Although solar panels may require significant modernization at the end of the contract, it can still be economically attractive for the property owner.

France.  In the legislation of France, the institution of superficies is not directly fixed, however, the dogmatic interpretation of articles L.251-1 - L.251-9 of the Housing and Communal Code (Code de la construction et de l'habitation, hereinafter referred to as the Housing and Communal Services of France), allows us to conclude that the model provided for by these articles of the lease of land with the right of its development is a kind of superficies. The most thorough study of the French superficies in domestic civil law as of 2023 is, in our opinion, the PhD thesis of K. E. Putri "The right of development in the civil law of Russia and France" (2018) [https://search.rsl.ru/ru/record/01008715070 , accessed 28.09.2023]. In the first paragraph of the third chapter of this work, the author examines in detail the legal problems associated with the rights of a person who has the right to build a building or structure erected on the right of development in France.

In the process of preparing his dissertation, K. E. Putrya prepared and published a number of scientific articles on the subject under consideration ^[15], ^[16],[17]. We consider it necessary to pay attention to an important methodological clarification by K. E. Putri in relation to the definitions used in French legislation. He notes that repeated exceptions were allowed from the general rules by French judicial law enforcers, as a result of which the superficies "began to be understood as the ownership of everything that is on the surface of the land plot" ^[18]. Therefore, in those countries whose legislation has been significantly influenced by the French doctrine, the concept of "right of development" is broader than "superficies".

S. G. Kim also drew attention to the problem of studying the legal nature of superficies in France ^[19], referentially mentioning the theories of "transformation", "limited property law" and "subordinate property" in relation to superficies in French realities. The scientist justifiably notes that French practices tend precisely towards the latter due to the convenience of its application.

The description of the financial model of the relationship between the parties is sometimes reduced to the formula "The tenant-owner of the building usually pays monthly or annual rent to the landlord-owner of the land during the lease period", which, in our opinion, confirms the theory of "subordinate ownership" in relation to the modern legal regulation of superficies by the French legislator.

Turning directly to the description of the provisions of articles L.251-1 — L.251-9 of the Housing and Communal Services of France, we note that the owner of the land plot has the right to grant other persons the right to erect buildings on his site, while the developer undertakes to maintain the erected real estate in proper condition during the validity period of the contract. The term of the building contract varies from 18 to 99 years, and the specified contract is not subject to automatic prolongation. In the event that the contract provides for the possibility of land purchase and this option is actually implemented, the initial legal relationship for the provision of land for development is considered terminated. In the event that, at the conclusion of the contract, the parties have not determined the fate of the real estate objects erected on the land plot, at the end of the term of the contract, these objects become the property of the owner of the land plot. The burden of making mandatory payments falls on the tenant of the land plot, and he must pay the payments related both to construction and directly to the land.

The breadth of the powers granted to the tenant is evidenced by the right assigned to him, as a general rule, to demolish existing buildings and build new ones in their place. But in the contract, the parties may provide the opposite, if the owner of the land plot values the building that exists on his land. In the event of the death of a building as a result of force majeure during the term of the contract, any of its parties has the right to apply to the court for determining the amount of appropriate compensation.

Belgian legislation establishing the institution of superficies has a long history. For a long time in Belgium, the law of 10.01.1824 was in force, according to which a superficie (le droit de superficie) was understood as a proprietary right that allowed interested entities to have buildings, structures or plantings on the territory of a land fund owned by other persons. The owner of the superficie could alienate it, mortgage it, or burden it with easements. The establishment of the easement was reflected in the relevant real estate registers. The initial term of the superficies was limited to fifty years, but the term could be extended. During the period of the easement, the owner of the land had no right to prevent the demolition of buildings, other structures, as well as plantings. At the same time, the value of the destroyed property must be reimbursed to the owner of the land on which it was located, and in a preliminary manner.  If at the time of the conclusion of the superficies agreement there was already real estate on the land plot, then at the end of the superficies it was returned to the owner of the land free of charge. The legal regulation of superficies was initially of a dispositive nature, the parties could agree on terms of the contract that were different from the law, with the exception of the deadline for establishing superficies (50 years).

In February 2020, a law was adopted in Belgium and entered into force on 01.09.2021, which made significant changes to the rules for establishing superficies.  According to the new law, the validity period of the superficies is not limited to 50 years, the corresponding contract can be concluded for 99 years.

The possibility of establishing a superficiality is provided in the following cases: for the construction of public facilities (for example, an underground public parking lot under an apartment building); if necessary, the division of a single building complex into several shares with different purposes (for example, the construction of an underground parking lot under an apartment building or a shopping center).

The purpose of these novels is to ensure the right of co-owners of real estate (in which there are no places of joint use at all, or their share is minimal) were no longer obliged to artificially submit to the system of compulsory joint ownership of real estate, but want to structure their property more clearly, more clearly isolate it for the purposes of economic turnover.

At the same time, Belgian practitioners point to the following hypothetical problems in these legal relations: when combining several shares in real estate through easements, it is necessary to take into account mandatory legal norms governing the impossibility of changing the regime of joint ownership; unless otherwise specified in the contract, the superficies will be set for 99 years; the superficies will be canceled if within 30 years since its provision, a building has not been built on the land plot and the purpose of the superficies, respectively, has not been achieved.

Since the changes to the Belgian legislation were adopted relatively recently, as of September 2023, the number of publications in the European scientific legal literature on this topic is extremely small. However, some studies are already being conducted, as an example, a master's thesis performed at the University of Liege under the supervision of Prof. Pascal Lecoq Marie Frypont [https://matheo.uliege .be/handle/2268.2/14614, accessed 28.09.2023]. This study is also of interest due to the fact that Prof. Pascal Lecoq is one of the co-authors of the previously mentioned 2020 law.

It is also necessary to mention the detailed work of Sirio Zola devoted to the comparative legal study of superficies in the legal systems of France, Belgium and Italy (thesis version - https://romatrepress.uniroma3.it/wp-content/uploads/2021/09/03.-ZOLEA-RTLR-1-2021-epub.pdf , full version — https://docassas.u-paris2.fr/nuxeo/site/esupversions/6c0c351e-97c5-4e15-9f96-479e9712c94b?inline , accessed on both versions on 09/28/2023). The materials of this researcher were partially used by the author to verify the information contained in other sources.

Superficies are also relevant for the countries of Eastern and Central Europe, as the relevant studies on the legal regulation of superficies in Romania ^[20] and the Czech Republic ^[21] convince us.

In Romanian legislation, superficies were consolidated in 2009, although earlier Romanian civilists did not ignore it. Romanian scientists have noted that in the case of separation of non-beneficial property rights of the owner (possession, use, disposal) between different subjects, the phenomenon of "dismembered property" arises. The peculiarity of this concept is the deprivation of the owner of certain powers, which, however, does not cancel the right of ownership as such.

The Romanian doctrine distinguishes the main and auxiliary forms of superficies. In the main (full) form of superficies, the developer acquires ownership of a structure erected on someone else's land. When designing a superficies according to an auxiliary model, the developer has the right to build up someone else's land plot without acquiring ownership rights to the erected structure.  

The Czech researcher notes that to date, the legislation of Eastern European states has not completely got rid of the ideological legacy of the XX century. He believes that the situation can be corrected both by spot edits of existing laws, and in a more radical way, i.e. by the adoption of new laws. The Czech Civil Code, adopted in 2012, has received many legal institutions that have been known for a long time, but which have not been relevant for more than a hundred years. One of these institutions is the superficium. In every possible way supporting the further actualization of the use of superficies, the author cites Amsterdam as an example, where, according to his data, not a single municipal land plot was sold for the entire XX century. He points out that the use of superficies allows both to solve the current tasks of economic turnover and to take care of the next generations, while maintaining society's control over the common resource — land.

Concluding the study, we note its practical significance for Russian realities. The scientific literature has repeatedly noted the problem associated with the non-optimal regulation of the turnover of shares in the right of common ownership of land plots in relation to lands intended for the cultivation of agricultural products ^[22], ^[23]. But what if, for a more effective targeted use of agricultural land, it is necessary to build a bathhouse for workers, a stationary canteen or a small administrative structure on part of such a land plot? Two kinds of problems are predicted here. Firstly, the use of a part of an agricultural land plot for related purposes may be difficult on formal grounds, based on logic — since the plot is intended for growing agricultural products, it is prohibited to build anything on it in principle. Secondly, if interested persons still manage to obtain the required permits, they can be challenged in court by the supervisory authorities later, again on formal grounds. We believe that the use of the world experience of using superficies may be relevant in these public relations. In the above situations, the construction of the obligations of the parties according to the superficies model will, in our opinion, allow for more flexible use of land plots, while the legal regime of land plots (intended for the cultivation of agricultural products) can not be changed. Putting forward such a hypothesis, we recognize that the proposed reflections are preliminary and need further detailed elaboration at the theoretical level.

Based on the results of the study, we came to the following conclusions.

1. The institution of superficies has proved to be very viable and suitable for regulating property relations in different countries and at different stages of historical development. Having originated in ancient Rome, superficium continues to be actively used in modern states, which testifies to its universality.

2. There are various models for constructing super-formal relations. In our opinion, there is no reason to speak unequivocally about the pros or cons of a particular model, because if superficies have been embedded in the legal system of a state for tens or even hundreds of years, this indicates its relevance for a particular society in its existing form. In addition, when trying to identify the pros and cons of a particular superficialist model, it is necessary to take into account the complex legal regulation of property relations and its relationship with similar legal institutions, for example, usufruct.

3. When preparing the article, the author found a number of modern (primarily English—language) studies that were not always taken into account by Russian researchers. This concerns the regulation of superficies in countries such as Belgium, Romania, Czech Republic, Japan. The data obtained convince us of the relevance of the research undertaken and may be useful for those Russian scientists who will continue the scientific understanding of the phenomenon of superficies in the future.

4. Based on the received up-to-date data, we believe that further development of the voiced problem in relation to Russian realities is promising. The study of foreign experience forces us to actualize attempts to find an answer to the question "is there a need for superficies in Russia of the XXI century".