Issue 11 (2019)

DISCUSSION OF THE SEVERAL PROBLEMATIC ISSUES DURING THE BUILDING LEASEHOLD TERMINATION

Authors:

Abstract: Superficies allows a person to erect a structure on the plot of land according to his will without obtaining the property right of the plot of land, on account of which the importance of this institute in a market economy is increasing every day. The provisions regulating the right of superficies are found in the Civil Code of Georgia and allow different and multiple interpretations that give rise to certain problems in practice. The situation is complicated by the fact that neither the competent registration authority, nor the court has rich case-law dealing with the issues of termination of the right of superficies that makes it even more difficult to make comprehensive analysis and to understand the institute of superficies. By the close cooperation with the National Agency of Public Registry, we have studied the procedures that the registration authority follows regarding the origin and termination of superficies. The present article discusses kinds of legal issues arising after termination of superficies such as – transformation of the mortgage by which the superficies is mortgaged, origin of the right to claim an appropriate compensation for the structure erected on the plot of land in case of non-gratuitous superficies, its replacing order and the place of the right of superficies in the Public Register, as well as the legal positions (order of precedence) of the compensation claims of pledgees. The author also discusses conditions for the registration and order of precedence of compensation claims relating to structures erected under superficies, the transformation of mortgage into pledge and its consequences, and the possibility to mortgage structures erected under superficies. This is the list of the issues on which there is no uniform opinion in legal literature, with some of them even being disregarded by certain scholars.

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