Transformation of Property Right as a Fundamental Right into Joint Property

Abstract

Property rights are one of individual’s fundamental rights that are considered absolute. In modern civilized world understanding of exhaustion of property rights is reduced to maximum protection of the third parties that is being accomplished by the encumbrances of property rights. One of them is joint property, the content of which constitutes a set of legal and factual conditions, and as a result the absolutism of property rights becomes relative. The state in the name of society promotes additional conditions for real division of joint property, because it considers it as an exhaustion of property rights that affects municipalities in which the item for division is situated, as well as that affects interests of the population. The research is conducted with an aim to determine the legitimacy and proportionality of the restrictive normative acts in relation to property rights as fundamental rights. Descriptive and analytical methods are used in the research. As a result of this research, the author came to a conclusion that additional preconditions set by the state and the municipalities for the exhaustion of property rights in joint property are disproportionate for the property rights as fundamental rights. It is manifested, first, as a restriction for the exhaustion of individual’s property rights in relation to equivalent individuals- in common items for other co-owners (horizontal vector), and second, as a restriction for the exhaustion of property rights in common items for all co-owners in relation to the third parties (vertical vector). The existing normative regulation is not satisfactory, and that is supported by the court proceedings in the Constitutional Court of the Republic of Latvia. Procedural arrangements for the division of joint property and their legal consequences do not affect the rights of other individuals; therefore, such amendments of normative acts are necessary that would separate the real division of joint property as a legal act that would not be bound to and made dependant on those possibilities of the real estate use that are created as a result of division.

DOI: 10.5901/mjss.2013.v4n11p441