Theoretic and Practical Aspects of Protection of the Right of Ownership in the Hereditary Relations

Dzera, Iryna

doi:10.31359/1993-0909-2020-27-3-115

Cited by 1 publication

(2 citation statements)

References 4 publications

Supporting

Mentioning

Contrasting

Unclassified

Order By: Relevance

“…Відсутність реєстрації права власності на квартиру має наслідком обмеження у праві розпорядження нею 2 . Подібний висновок сформульований Верховним Судом і в інших постановах 3 .…”

Section: оригінальна статтяunclassified

See 1 more Smart Citation

The phenomenon of dormant inheritance in inheritance law

Kukhariev

2022

Pravo bezpeka

View full text Add to dashboard Cite

The article is devoted to clarifying the essence of the phenomenon of dormant inheritance in inheritance law. It has been concluded that the right of ownership of the inherited property is acquired by the heir retrospectively from the time the inheritance was opened, regardless of the legal regime of the inherited property. However, until the moment of state registration of the right of ownership, the heir is limited in his/her ability to dispose of the inherited real estate, in particular by alienating it. However, this limitation does not at all indicate that the heir has not acquired the right of ownership of the inherited property. The heir can transfer the inherited property to management, enter into an agreement on changing the size of shares in the inheritance. It is emphasized that a necessary condition for the emergence of the right of ownership of the inheritance is its acceptance by the heir in the manner and terms determined by civil legislation. The theory of splitting the ownership of inherited property is analyzed, according to which the emergence of the right of ownership of hereditary movable property is associated with the time of the opening of the inheritance, and for immovable property – with the date of state registration of rights to it. The contentiousness of the theory of splitting the ownership of inherited property is substantiated due to its inconsistency with the construction of universal legal succession. The phenomenon of dormant inheritance characterizes the actual state of the objects of inheritance from the time of the opening of the inheritance to the moment of its acceptance by the heir. Legally, such an interval of the state of statelessness of property does not exist, taking into account the rule of retroactive acceptance of inheritance established in the law. Thus, according to part 5 of article 1268 of the Civil Code of Ukraine, regardless of the time of acceptance of the inheritance, it belongs to the heir from the time of opening the inheritance, that is, from the moment of the death of the testator or his/her declaration as deceased. It is emphasized that the provision on retroactive acceptance of inheritance is a legal fiction.

show abstract

Section: оригінальна статтяunclassified

“…1 Постанова Судової палати у цивільних справах Верховного Суду України від 23.01.2013 : справа № 6-164цс12 // Єдиний державний реєстр судових рішень. URL: https://reyestr.court 3. …”

unclassified

The phenomenon of dormant inheritance in inheritance law

Kukhariev

2022

Pravo bezpeka

View full text Add to dashboard Cite

show abstract

Theoretic and Practical Aspects of Protection of the Right of Ownership in the Hereditary Relations

Cited by 1 publication

References 4 publications

The phenomenon of dormant inheritance in inheritance law

The phenomenon of dormant inheritance in inheritance law

Contact Info

Product

Resources

About