- One of the main goals of legislative activity is to ensure the principle of legal certainty in public relations. The principle of legal certainty requires that there are no gray zones that are not regulated by law, both between citizens and between citizens and public government.
According to official information, as a result of monitoring, there are over 500,000 undocumented houses in the city of Baku and surrounding areas. The majority of these houses are over 30 years old. Thus, there are already built-in residential buildings in the city of Baku for even longer known period. These houses are known to the government for a long time and there is administrative practice existing to manage them. The uncertainty of the legal status of houses created as a result of the official recognition of these houses creates problems in legal relations and circulation of the discussed property.
Since 2006, the World Bank has been implementing the Real Estate Registration Project to take technical measures and develop real estate mechanisms for undocumented property. However, despite the fact that various structural reforms have been carried out in the agencies implementing the State Register of Real Estate and different committees have been set up to solve the problem of undocumented construction, the problem still remains unsolved.
The Civil Code, which entered into force on September 1, 2000, has set forth a number of grounds for the failure to recognize ownership status of buildings that have been built and which have not been registered in the state register.
Article 180.3 of the Civil Code specifies that the right of ownership to an independent building may be recognized by the court in case the person owns the land for the construction. However, most of undocumented houses, as a result of monitoring, are houses owned by citizens that have not been given rights of ownership to the land.
In addition, Article 179 of the Civil Code defines terms for the right of ownership of immovable property. Article 179.1 of the Code states: “Physical or legal person who is not an owner of the real estate, but has been using it consciously, openly and continuously for ten years as his property, has the right of ownership to that property (acquisition term).”
On January 28, 2002, the Constitutional Court of the Republic of Azerbaijan determined that the legal force of Article 179 of the Civil Code of Azerbaijan, which defines the term of acquisition of the right of ownership of real estate, applies to the legal relations established after 1 September 2000.On December 23, 2003 the Civil Code was amended and the period specified in Article 179.1 was increased from 10 to 15 years. On June 24, 2005, this norm was generally withdrawn from the Civil Code.
In addition, the grounds for recognizing the right of ownership of real estate from the Civil Code have been determined by Article 178 of the Code.
Thus, Article 178.6 of the Code states that “if a person possessed property not registered in the State Register of Real Estate continuously and without objection for 30 years he/she may require registration of the ownership”.
On the same terms, this right also belongs to the owner of the immovable property where the proprietor is declared unidentified in the state registry of real estate or has died 30 years earlier or was declared missing at the beginning of the period of ownership acquisition. However, the registration must be affirmed by the court decision after being not objected or rejected in registration during the officially announced period.
Therefore, despite the fact that there is considerable real estate fitting the norm, this norm does not actually work. One of the main reasons for this is that the legal position imposed by Article 179.1 of the Constitutional Court applies to this provision. Which means, Article 178.6 of the Civil Code has also been accepted as valid for the relations that emerged after September 1, 2000. Thus, this norm will actually become a functioning norm after 2030.
Nevertheless, according to the Article 149 paragraph VII of the Constitution4 Normative-legal acts improving legal situation of physical persons and legal entities, eliminating or mitigating their legal responsibility can be applied retroactively. Other normative-legal acts have no retroactive application.
Similarly, Article 7 of the Civil Code determines provisions on the validity of civil legislation over time:
7.1. Besides exceptions in Section VII, Article 149 of the Constitution of the Republic of Azerbaijan, the provisions of civil law shall not be retroactive and shall apply to relations that have emerged after their entry into force.
7.2. In the cases provided directly by law, civil law may be retroactive.
7.3. Civil law cannot be retroactive if it causes damage to subject of civil rights or worsens their position.”
Thus, we believe that in order to eliminate the uncertainty about the status of certain households, it is necessary to transform Article 178.6 of the Civil Code into a working norm. For this purpose, the force of this norm shall be retroactive. It should be noted that there is already a practice of adopting a direct norm on the retroactivity of norm in the Civil Code. The norm allowing retroactivity shall be added to the existing norm. Below we offer the first project.
It should be noted that the absence of property registration in the state register, uncertainty between the state and the citizens, and the regulation of these relations should not, as a rule, negatively affect the status of other civil legal entities.
The second way of bringing Article 178.6 of the Civil Code into operation is to reduce the period of ownership of property provided for in the first sentence of the Article from 30 to 20 years. The second project in regards to this offer is being submitted.
The adoption of this norm will give the right of ownership over houses built by the citizens and used for 30 years. Based on these resolutions, citizens may register their real estate in the state register of real estate. There are also existing relevant regulations in other legislative acts.
Article 307.2.6 of the Civil Procedure Code provides procedural grounds for considering cases related to the above-mentioned cases.
Judicial decisions entered into force in accordance with Article 8.0.4 of the Law on State Registration of Real Estate and Articles 139-1.1.4 of the Civil Code determine the basis for creation, transfer, restriction and termination of rights to real estate.
You can read the full text of Draft Law from the attachment: