Suppression of real property encroachment or differently obstruction (According to last amendments of the legislation of Georgia)

FROM THE REDACTION

Right on property is human main right according to constitution and international law acknowledgment.

21st purview of the Constitution of Georgia says: property and legatee right acknowledged and ensured. Property, its purchasing, alienation and legatee receiving universal right canceling non- assisted. Popery right is protected according to human rights and main freedom convention No: 1 record of proceeding, reporting about all physical and juridical individuals right of the property use. Taking off property is interdicted expect while society interests obligatory and law and international law general principle. Property right content and its protection issues detail regulation is the issue of Civil Code of Georgia, several other law –submitting acts on property protection released.
According to Civil Code, purview No: 170, owner has right of property free use under law or agreement tie. Not assuming the property to be used by other. Handel over it if not humiliation of neighbor or any third person` s rights, or the activity is not abusing. Right of use also includes opportunity of the estate not utilization. From the one side, property is relationship of person with the estate, reflected in property positive content—of domain, use and application right, and form the other –property mentions people relationship concerning the estate. Negative content of property displayed that time1 – owner right of not permitting the property to be used by other.
Property may be own. Property is the right of handling over the estate. And that is the basic. One has or has not that right. The word “proper” means right of handling over the estate. “Proper” outlines right on property, its individual, absolute, united, un- separate sort. So, real property rejecting means property rejecting.2
Starting from Rome law two ways of property protection is known –vindicate and nugatory plaintiff. The first is used while property deprive, when the thing solicited from its illegal owner. And the other –nugatory is used when encroach or other sort of obstruction take place without the thing not taking out or it’s deprive. For this right protection one should appeal to court, but according to Civil Code of Georgia, December 8, 2006 amendment, if real property encroach or other way deprive takes place, owner has a right of deprive suppression demand. In the case of deprive keeping continue, owner has a right of activity suppression from concerning attorney branch without court resolution via law enforced document of property presenting, except owning or/and use confirming enact presented by propose depriver . (purview No: 172, 3rd article). This addition is a step made forward, mentioning despite of curt rules following related to durable procedures (plaintiff making, and accordance customs fee payment, its receive, prepare, and reviewing in correspondence instances, frequently lasted for years), this mean of real property protection without of court sharing, created by IM correspondence branches works more fast and operatively. Several law –submitting normative acts have been provided for this legislative innovation inculcating, to say exactly, May 21, 2007, order NO: 317 of the President of Georgia on “regulation of arrangements against property encroachment or other way obstruction” and order No: 727 of the Internal Minister of Georgia on suppression of property encroachment or other way obstruction.
For appealing to this non –count mean for property encroachment protection one should follow the conditions below:
1. According to the Civil Code, the rule covers things of real property, including “land area, with its minerals, plants, buildings solidly constructed”.
2. Public register ` s point out is necessary. Caused because of property relationship sort concerning real estate, loadings (structure, usufruct, servitude, mortgage, voluntary lessee, fees, lending) faced in public register` s point out, including trusted information on owner and ownership. Point out should not be delayed.
3. Individual named as encroacher should not gain right on estate or property use from plenipotentiary individual on the background of separate juridical relationship. As for instance deed of purchase, granting, renting, lending, structure, usufruct and ect; Correspondently, its confirming document present by propose encroacher except “encroachment or obstruction” suppressing. Such sort of co –called counter –document is public register point out, confirming structure, usufruct, servitude, mortgage (just right on living in apartment), lessee, lending or lending right, non –registrant ranting or lending agreement, enforcing resolution made by court (private arbitrate), or “living area use relationship” determined by law of Georgia –enact agreement on living area deed of purchase (without notary form), doubtable living area registration and communal fees in the case of the issue determining in enact or administrative act according of which person was inhabited, refugee or evaporation document of recumbent given out by the Ministry of Refugees and Evaporation, or document on ownership or/and use right according to Georgia ` s legislation. So, if owner makes application against a person occupying real estate on the background of ranting or other sort of agreement (lessee, structure, usufruct, mortgage (with the right of living in apartment) and ect;) certainly should not be evaporated. The same might be said concerning users and refugees, compactly moved in.
Real estate encroachment or differently obstruction suppression procedures have to pass following stages:
1. Application of owner to police headquarter ` s representative, providing control over the territory where applicant ` s real estate is located. Application should include: applicant ` s and propose encroacher` s identification and address; real estate exact location, its description and encroachment or obstruction causes and owner` s demand. Application should be attached with public register ` s point out. And cadastre map and cadastre plan if it includes exact location of real estate. Encroachment may include land area entire uniting by neighbor to his own one or building entire (partly) occupying, also other sort of activities, like cattle letting into neighbor ` s area for pasture, Application checked by plenipotentiary individual during 10 days period after its registration, if it is correspondence way filled and if point out is attached. In the case of some details missing, applicant is informed via letter. Rejection of application requirements meeting should be informed during 30 calendar days. Rejections causes may be point out not representation or encroacher` s confirming document on legal ownership presenting; applicant ` s fake document and ect; Rejection may be appealed at higher branch or court.
3. Plenipotentiary individual wittingly warrants encroacher voluntary interrupt foreign real estate encroacher or other way obstruction during five days period. The statement also includes, that the encroaches may present any named document, in the other case compelling arrangements will be provided against him (her) because of real property encroachment or differently obstruction. Warrant is delivered to propose encroachment, real estate occupier individual of full age or working place administration, obliged propose encroacher informing about the warrant content. Warrant rejection will be considered as registered. The same is in the case of proposed encroacher hiding.
4. If no confirming documentation on ownership will be presented by propose encroacher what is base of encroachment suppression arrangement cutting and neither has voluntary interrupted encroachment or other way obstruction during fine days period, plenipotentiary individual has right of constraint submission of encroachment or other way obstruction. Plenipotentiary branch is obliged provide constraint suppress arrangements in 10 days after 5 days term finishing. Owner or his (her) representative should be informed about real estate encroachment or other war obstruction suppress date and time. In the case of proposes encroacher not presenting to the correspondence branch, it does no mean suppress arrangement interrupting. But in the case medicine conclusion on encroacher health condition possible getting wrong and bringing serious results suppression will be failure. That happens if encroacher is heavily ill bed –patient, evaporation of which is hart to be realized.
Encroacher ` s thing carrying out is realized according of both sides agreements, in the case of disagreement owner with his(her) own expanses provides the process. In the case of doubt the issue resolved by the court. Following suppression of real property encroachment or differently obstruction agreement providing record of proceeding is created immediately by plenipotentiary person signed up by two attendees. Both sides have leading the information on the record of proceeding content and receive its copy. Record includes place, date and background of arrangement providing, exactly taken measures.
In that way, infringed rights of owners restores according to these laws in 25 days period (10 days for application review, 5 days after warrant of encounter, 10 days for voluntary fulfilling, 10 days for constrain expire).
But is does not excepts circumstances when owner may be considered as propose encroacher and his right breaching. There is justifiability way that time –plaintiff of illegal activities by plenipotentiary person fro one hand and civil code way owner` s rights protection for the other.