In the dissertation, the genesis of the co-ownership is outlined. Analysis of the initial stages of the development of mankind (primitive communal system), noted monuments of the Ancient World, philosophical views, developments of Roman lawyers, foreign (Code of Napoleon, German Civil Code) and national legislation allowed to assert that the right of co-ownership from its origination to the current state of regulation has passed the stages of origin, formation, and development.
Co-ownership is more complex legal phenomenon than it seems to be at the first glance. Without exaggeration, it is one of the most controversial institutions of civil law, which marked a low degree of doctrinal clarity and compromise both the scientific community and among lawyers.
The right of co-ownership should be regarded as a classical property right, is characterized by the plurality of persons on the owner’s side and neither considered as a separate property right nor its special kind. A concept is proposed and the grounds for the emergence of the co-ownership are singled out. Common ownership generally arises on the same basis as individual ownership, including the original (creating things, its processing) and derivatives (deeds, inheritance).
The legal nature and basic principles of differentiation of relations of co-owners have been clarified. Nobody of the co-owners have not own separate, individual right of property. Instead, there is only one right of ownership which belongs simultaneously to several persons. Plurality of owners does not provide multiple rights of ownership.
The share in the right of co-ownership is a legal fiction, which is designed to create a legal basis for the existence of the possibility of several persons to own one thing.
Relations of co-ownership are classified into two types: external (relations between owners and third parties) and internal (relations between the co-owners themselves). The latter one may be attributed to corporate relationships. By contrast, relations within the co- ownership are fiduciary.
External relations build on the principle of absolute ownership relationship. For others who do not have the jurisdiction to interfere to the owner`s area, co-owners appear as a consolidated entity, endowed with a united will. Internal relationships characterized by necessity to harmonize several will for proper and effective exercise of common ownership. That is, the relationship between co-owners has a binding nature.
The order is established and the peculiarities of the implementation of the common property right are revealed. Every participant in co-ownership who intends to duly exercise his right of ownership must coordinate his will with other co-owners because any decisions are made by the mutual consent of all the co-owners.
It is determined that the possession and use of the common thing is carried out by the co-owners for such regimes: 1) legal regime (established by law according to the general rule); 2) contractual regime (established by agreement); 3) judicial regime (established by the court in case of failure to reach agreement).
The concept is defined and the system of ways of protection of the co-ownership rights is characterized. The notion of remedies of co-owners – it is civil and legal measures provided for by law and/or contract, the application of which are aimed at achieving the goal of recovering (recognizing) the violated (contested) rights and legitimate interests of co-owners, as well as those of their rights and legitimate interests, which are under the justified threat of violation, non-recognition or contestation.
The main classification of remedies of co-owners can be divided into actio in rem and actio in personam, as well as general (actio vindicatio, actio negatoria, declaration of ownership, claim based on an unjust enrichment, invalidation of a contract, fulfillment of an obligation in kind) and special (transfer of the seller’s rights and obligations, the establishment of possession and use of property, the termination of the share in a right of co-ownership).
Actio vindicatio is a demand of the owner to return property from someone’s illegal possession. It is applicable when the property has left the ownership (control) of the owner and which is kept by another person illegally. Actio negatoria is applicable in cases when the owner has his property in possession, but the actions of other persons prevent him from possessing and using it freely.
A co-owner who violates the absolute rights of another participant in co-ownership may be regarded as an illegitimate possessor, hence he may claim property in the manner prescribed by Art. 387 of the Civil Code of Ukraine.
Finally, conclusions and proposals on improving legal regulation and case-law in the sphere of co-ownership relations are formulated.
