Superficies in the law of modern Ukraine, Austro-Hungary and Ancient Rome: a comparative analysis

The article explores that the legal institution of superficies originated in the law of Ancient Rome, and its reception was carried out in the law of many European countries, including Austria-Hungary at the beginning of the 20th century, which included Western Ukrainian lands from 1772 to 1918, as well as in the law of modern Ukraine. The author found out that Justinian created a new legal institution for the use of someone else’s land for the transfer of urban land for development – superficies, which took the form of a long-term, alienable and inheritable right to use someone else’s land for development. It has been established that in Roman private law, the right of ownership of a constructed building belonged to the owner of the land plot according to the rule superficies solo cedit – the building follows the land. In turn, the superficiary had the right to use and dispose of the building or other structure erected on someone else’s land at his own discretion, namely, he had the right to sell, donate, exchange, lease, etc. The author found that with the development of pandect law, that is Roman private law recepted and adapted to the new conditions, the understanding of the essence and content of superficies changed in relation to its fundamental legal principle – superficies solo cedit. Namely, among German pandectists in the 19th century, the theory of special ownership of a structure was established, based on the recognition of a building constructed on the basis of a granted superficies right as an essential component of the right of development (and not of a land plot) and the extension of the legal regime of immovable property to this right. This approach was laid down as the basis for the legal regulation of superficies in Austria-Hungary. Although the author has investigated that the Austrian General Civil Code of 1811 did not provide for the legal institution of superficies, the article analyzes individual norms of the Code that regulated the construction of a building on someone else’s land (Articles 418- 419, 515). The author found out that the institution of superficies was introduced in Austria-Hungary just in the Law «On the Right to Build» of April 26, 1912, which regulated the right to build on someone else’s land and which is still in force in the Austrian Republic. The author established that in modern Ukraine superficies were first provided in the Civil Code of Ukraine, adopted just in 2003, in Chapter 34 «The Right to Use Another Person’s Land Plot for Development» (Articles 413-417), and in 2007 the Land Code of Ukraine was supplemented with Chapter 16-1 «The Right to Use Another Person’s Land Plot for Agricultural Needs or for Development», which contains only 1 article – Article 102-1. It has been analyzed that these norms establish the grounds for the emergence of the right of superficies, the rights and obligations of the owner of the land plot provided for development and the land user, as well as the grounds and legal consequences of the termination of this right. Therefore, the author, taking into account the experience of legal regulation of superficiary relations in Austria-Hungary, supported the proposal to recognize in modern Ukrainian law buildings (structures) constructed on the basis of the right of superficies as an integral part of such a right.