The Concept And Content Of Property Rights In Latvian Law

The place of property in the Latvian system of property law, sources and methodological problems.

To understand the concept of property law it is essential to understand its place in the Latvian legal system. Therefore, to point out a membership in the group of rights in rem contributes little to explaining the concept of property. Thus, for example, knowing that things can be tangible or intangible (The Civil Law, hereafter CL, - Article 841) and knowing that property can be held in all that is not definitely removed from general circulation by law (CL, Article 929), we can conclude that property rights can exist in intangible things. However, not everyone regards this assertion as correct. Therefore, such a conclusion is not self-evident from what was said before, even if we know the content of the relevant norms of the CL.

It would be even less possible to draw any conclusions about the concept and content of property if the content of these norms was indeterminate. However, taking into account that the composition of rights in rem in various legal systems can vary, that therefore, it has no special, unchanging internal structure, the assumption that the concept and content of property is dependent on its place in the system of rights in rem and its structure, it should not be given a particular methodological meaning.

Comparing the development of this chapter here in Latvia, we can establish that in 1937, its content had not significantly changed. In the CL, we do not find, as in its predecessor, the Compilation of Local Laws (CLL), inheritable leases. Various forms of acquisition of rights, such as immemorial dominion with regard to acquiring property, adverse possession with regard to servitudes. In contrast to Roman law, neither the CLL nor the CL has any other form of ius in re aliena - the right to build (superficius).

Also, the mutual relationships of the concepts comprising rights in rem do not give particularly clarity. It would be logical to assume that the broader concept within rights in rem, those, such as things, possession, property and entitlement to a thing belonging to another are equally ordered, belonging to one and the same species of "rights in rem". However, this is not so. Some of these pertain to rights (property, rights to things belonging to another); others (things) are nothing more than the objects of such rights. Still others (possession) are characterized both as rights and as facts. Therefore, instead of a logically equally ordered system of concepts, we rather find essentially different concepts which have in common that they happen to be contained in Chapter 3 of the CL.

The development of these norms and the system, historically, can be explained rather demonstratively. The classification of things mainly characterizes the objects of property by characteristics derived from circulation within the civil law. It is not hard to establish that they were created at different times. For example, the division of things into tangible and intangible applies to relatively recent developments in the law, because only in medieval times such concepts developed as the separation of rights, that is, the possession of intangible rights, from a debtor, that is, the possibility to alienate a claim by cession, not by a procedural power of attorney under so-called classical Roman law, which also applied to later periods of development. The division between real property and chattels had no special meaning before a register of property (title or cadastral) system was founded, thereby, at best, in the late Middle Ages. At the same time, the description of real property in the CL does not point to this important differentiating feature - the register, but preserves the characterization provided by early Roman law (things are movable/chattels or real/immovable according to whether they could or could not be moved from one place to another without outward damage -- CL Article 842). Only a remark in CL Article 842 with reference to the railroad indicates some changes over time. For instance, the destruction of fungible goods does not end the obligation, the object of which is the delivery of such goods. The rule that stolen goods (res furviva) may not be gained by adverse possession applies only to unique things. The concept of aggregation of property determines the fate of individual things within the aggregation in cases of unclear terms of contract, etc. This division is found in full in classic Roman law. In other words, the sequence of the classification of things is by no means chronological nor formed by a method of formal logic. Since things are still classified in two opposing groups, then this classification is easily formed as a hierarchical structure. The latter has, undeniably, formed already as a result of pandectic law, which expresses a proclivity toward academic classification.

The mutual relationships of other concepts in the section on property rights have formed completely differently. Property, since the start of time, has been seen as a self-evident concept much as a god in any religious teaching. The most essential is not defined and anyone trying to do so is to be seen as a heretic. Therefore, the definition of property has been left to various critics of a society built on private property, starting with Proudhon's famous "property is theft" 1 and ending with the "triad" (possession, use and disposition rights) under the Soviet legal system, or as ius utendi et abutendi (the right to use and destroy).

Property and possession

Possession originally developed as an ad hoc form of protection of a status in fact in the interests of social order and security2. When the social order changed, this form of protection was "lost". As a result, the fact of the existence of possession as a legal institution loses any explanation and justification. But as it has traditionally preserved its place in "the system", the temptation arises to "utilize" it for other purposes, for example, as a substitute for property, even when it can be clearly seen that this institution, which is outside the chapter on property rights, has nothing in common with property. This is confirmed by the well-known saying of Roman lawyers, that possession and property have nothing in common (nihil commune habet possessio cum proprietatis). The "utilization" of possession is one of the most interesting novelties of Latvian law. One of these novelties is the use of possession in good faith to replace the concept of the beneficiary in good faith that is missing from the CL. So, for example: "Taking into account that ÖG.L. is not a beneficiary in good faith (CL, Article 910) (emphasis by the author - J.R.), her rights may not be defended by reference to an entry in the Land Register. 3" It suffices to examine Article 910 of the CL as cited by the Senate to establish that the phrase "beneficiary in good faith" cannot be found there. It cannot be found it the CL. However, the kind of possession (good faith, bad faith, legal, illegal) does not and cannot have any effect on the property title. Therefore it may not, at least within the system of concepts of the CL, serve as an instrument in discussing the legal force of an entry in the Land Register.

Another novelty, the introduction of the concept of illegal possession, which also does not occur in the CL: "Illegal possession is not protected by law." 4 It is clear that in this case, something else was meant. From where did the Senate adopt the concepts of good faith beneficiary and illegal possession? By examining legislation in force, we find the concept of good faith beneficiary only in the law on Denationalization of Housing Property in the Republic of Latvia and the law On the Return of Buildings to Their Legal Owners. However, in context it can be understood that in these laws, adopted before the renewal of the CL, this concept was incorporated from Article 154 of the LSSR Civil Code5. The concept of illegal possession, also not found in the CL, was adopted from Article 153...