With the fall of communism in most of the world, private ownership gained ascendancy as never before. Even in a number of countries that remained politically dominated by the Communist Party, such as China, private ownership of some form of property became permissible and was in some cases encouraged.
The property picture that has emerged in the postcommunist world is fluid and highly complex. Postcommunist countries do not share any single regime of private property ownership. Indeed, within each country different forms of property may be subject to different regimes of ownership, including purely private ownership, various hybrid forms of private ownership, and state ownership. Foreign individuals and entities may or may not be permitted to own property depending on the country and the asset in question. The following discussions of Russia, Romania, and China exemplify some of the changes occurring in countries that have loosened the restrictions on private property ownership.
The problem of land ownership
Although the Russian Federation’s constitution (1993) and Civil Code (1995) clearly recognize the right to private ownership of land, the law on that topic, including the Land Code (2001) and laws on the sale of farmland (2002), took several years to resolve. At the turn of the 21st century, virtually all of Russian land was still publicly owned. Privately owned land was subject to regulation by presidential decrees, which strictly limited a landowner’s rights. In this era, Russian law recognized only three circumstances in which land could be privately owned: (1) the land is used for new construction of individual housing or is located under an existing building that is already privately owned; (2) the land is used for personal subsidiary farming or country-house gardening; and (3) the land is used for agricultural purposes. Non-Russians are barred from owning land, but they are permitted to lease it. Transfers of land and other natural resources may take place only within the guidelines established by the Russian Civil Code. All land transactions must be registered with a federal governmental body, and any failure to register a transaction will nullify the transfer. For transfers of nonlanded property, however, the registration of transactions is not required.
The right of perpetual use of a state-owned plot of land can be granted to persons by a state-authorized agency. The person to whom the use-right has been granted also has the right to lease the plot to another for a fixed term, but any other transfer of the plot is prohibited. If a building or other immovable object on a state-owned plot of land is transferred, the right of perpetual use of the land under the building goes with the building.
In some cases individuals may have another kind of property right in land known as inheritable possession for life. A citizen who possesses land through the right of inheritable possession may gratuitously lease it to another for a fixed term, but he is not permitted to sell or pledge the land or enter into any other transaction that involves the transfer of the land plot. By virtue of these restrictions, perpetual use and inheritable life possession interests do not constitute private ownership. Accordingly, they are not constitutionally protected against government actions that infringe upon them. Moreover, the rights can be terminated by the state without due process procedures.
Mortgages and pledges
The Russian Federation’s Civil Code permits mortgages and pledges to be used as devices for securing the performance of legal obligation, notably loan agreements. Although mortgages and pledges are very common in the West, they are quite rare (and quite complicated) in Russia.
Russian law distinguishes between the general rules that apply to all pledges and the special rules that apply to real-estate mortgages and pledges of movables. With respect to real-estate mortgages, the mortgagee holds the right to satisfy his money claim against the debtor from the debtor’s real estate. This gives the mortgagee priority, with respect to the real estate, over the mortgagor’s other creditors. In simple terms, a mortgage in Russia represents the mortgagee’s right of a priority claim upon the secured land if the mortgagor defaults on the loan. Yet the mortgaged property remains owned by the mortgagor. Russian law expressly prohibits the mortgagee’s acquisition of ownership of the mortgaged property. (In the United States, whether the mortgagee or the mortgagor holds title to the property depends upon the theory of mortgage followed in the relevant state. Under the title theory the mortgagee holds title, while under the lien theory the mortgagor does.)
A mortgage may be established to secure a financial obligation under a credit agreement, loan agreement, lease, contract or other agreement. It may be established only with respect to property owned or leased by the mortgagor.
Two features of Russian mortgage law make mortgaging less attractive than it is in the West. The first is the cost. Mortgage agreements must be notarized—a process that is far more complex in Russia than it is in the United States. Mortgage agreements must also be registered with a state agency, which can be expensive. Registration alone costs 3 percent of the mortgaged property’s value.
The second feature is a highly complex foreclosure procedure. A mortgagee may foreclose on the mortgaged property only pursuant to a court order. Foreclosure may be postponed, for up to one year, in two circumstances: first, where a private person pledges real estate for purposes not connected with commercial activities; and second, where the mortgaged property is used for agricultural purposes. Upon foreclosure the mortgaged property is sold by public sale or auction. Public sales are organized and conducted by special state agencies, while auctions are conducted by a special organization chosen by the mortgagee with the mortgagor’s consent. Together with the cost problem, the inflexibility of these procedures deters widespread use of the mortgage.
In 2005 Russian mortgage law adopted the mortgage bond (also known as an encumbrance), a security that has been common in most legal systems outside Russia. A mortgage bond certifies the rights of its legal owner to fulfillment of a financial obligation secured by the property listed in the mortgage agreement; no other proof of the obligation’s existence is needed. The primary aim of the mortgage bond is to facilitate the turnover of mortgage rights and refinancing by banks and other lending institutions.
The post-Soviet Russian constitution expressly guarantees the right of inheritance. (By comparison, the U.S. Constitution does not uphold any such guarantee.) Several provisions of the Russian Civil Code define the country’s inheritance system.
Like its Anglo-American and continental European counterparts, Russian inheritance law recognizes two methods of inheritance upon death: by will and by operation of law (known in the Anglo-American world as intestate succession). Testators are free to bequeath their property by will to anyone they wish. However, as a civil law system, Russian law limits the testator’s freedom of testation by recognizing the so-called legitimate portion (the legitim) of the estate. The persons entitled to this share of the estate are the testator’s minor or dependent children (including adopted children), parents, and other persons who were financially dependent on the testator. Regardless of what the will provides or fails to provide, these persons are entitled to receive half of what they would have received had the testator died without a will—i.e., through intestate succession.
If an individual dies without a will, the qualified heirs are identified and ranked according to their relationship to the decedent. The relational groups are categorized in the following way, with priority accorded in succeeding order: (1) the decedent’s spouse, any biological and adopted children, and any biological and adoptive parents; (2) the decedent’s siblings and grandparents as well as any nephews or nieces; (3) the decedent’s uncles and aunts; (4) the decedent’s great-grandparents on either or both sides; (5) children of nieces and nephews of the deceased; (6) grandchildren of nieces and nephews of the deceased; and (7) stepchildren and stepparents. Those having a more remote relationship to the decedent are not entitled to a claim as heirs. This pattern of priority is similar to the pattern prevailing in the United States. Either the heirs or a notary serves as the estate’s executor or administrator. The decedent may nominate an executor in the will.
The Russian Civil Code establishes the concept of trust management, under which an owner may transfer one or more assets in trust to another person, known as a trust manager, who assumes a legal obligation to manage the property in the interests of the owner (or those of a designated third party). Transfer of the asset to the trust manager neither entails nor implies a transfer of legal ownership. Trust management relations are regarded as strictly contractual in nature, and the arrangement lacks the fiduciary aspect that is at the core of the Anglo-American trust institution. Under Anglo-American law, the core of the trust is the transfer of legal title in an asset to a party, A, who acts in a strictly fiduciary capacity for the beneficiary, B. Although A is the legal owner of the asset, he must act for the benefit of B.
Private land-use servitudes
As is the case in civil-law countries, Russia recognizes and accords some rights to private land-use interests that fall short of ownership. Notably, Russian law recognizes land-use servitudes as devices by which private owners may restrict or otherwise control the use of their land. The Civil Code defines the single condition under which a servitude may exist: it permits a landowner to acquire the right affirmatively to use another’s land in some way, such as access across a neighbour’s land or the right to lay pipelines across another’s land. (In American property law such servitudes are called easements.) A landowner may acquire a servitude by mutual agreement or by court order following a demonstration of necessity. Such servitudes are property interests that run with the land, as opposed to mere contractual rights. As such, their benefits and burdens are transferred with the affected land as ownership of the land itself changes hands.
The legal land regime in general
The postcommunist legal land regime in Romania is governed by the 1864 Romanian Civil Code. As is the case in the post-Soviet land system, Romania follows what is basically a civil-law system. Some features, however, are strikingly different from the more typical civil-law land system. Most notably, the 1991 Romanian constitution, together with various pieces of enacting legislation, expressly restricts land ownership to Romanians. No foreign citizen or stateless person may own Romanian land. However, companies incorporated in Romania that are partially or even entirely owned by foreign individuals or legal entities may own Romanian land.
The Romanian constitution and Civil Code recognize two forms of ownership: private and public. Public property belongs to the state, meaning that while the state may lease the property, it is not authorized to sell it. The term private property does not imply that such a property is never owned by the state (it may be so owned). Rather, the term indicates that the property in question may be sold, unlike public property. The Civil Code provides that public property applies to assets that, either according to positive law or by their very nature, “are of public use or interest.” Resources that are public property include minerals, water with energy potential, territorial waters, and beaches. In the years since the end of communism in Romania, there have been reports of the state selling state-owned industries for excessively low prices. The perception by some Romanians is that private entities are unfairly taking property from the state and in this way “stealing” from them.
While Romanian law recognizes private ownership of land, certain features differ significantly from land transfer. Agricultural land is given special treatment (as is the case in several other postcommunist legal systems) by virtue of the restrictions placed upon its acquisition. Only families may purchase land, and the amount that a family may purchase is limited to 500 acres (about 200 hectares). Moreover, the transfer of agricultural property may be subject to special preemptive rights of neighbours or leaseholders who are able to claim an interest in the same land.
Land transfers in Romania occur most commonly through sale, gift, inheritance, or prescription. All transfers must be registered with a special state agency.
Laws governing landlord-tenant relationships in Romania resemble laws existing in most other countries in that the statutes regulating the relationship between landlord and tenant combine aspects of contract and real property law. The duration of a lease, for example, is established by a contract, and Romanian law recognizes different sorts of leasehold interests, including fixed-term interests and interests terminable at will by either party. Leasehold interests may be assigned or made subject to a security interest.
The landlord’s and tenant’s respective obligations are similar, in broad terms, to those defined in American law. The landlord has an obligation to deliver possession of the leased premises to the tenant and to ensure the tenant’s quiet enjoyment of the premises. The landlord is also under an implied, though waivable, obligation of suitability for the intended use. This means, for example, that in the case of a residential lease, the landlord is implicitly obligated to deliver the premises in good, habitable condition. However, this obligation may be waived by a contrary term on the lease. The tenant is required to avoid waste, meaning that it is the tenant’s responsibility, not the landlord’s, to make necessary repairs. Although the law permits a tenant to assign or sublet the premises, a lease may restrict the tenant’s right to do so.
From approximately 1955 to 1980, Chinese private law was modeled after the private law system of the former Soviet Union (seeSoviet Law). Because Soviet civil law had been greatly influenced by the German Civil Code, this meant that China was, by and large, a “civil law” country. It was not until 1998, however, that China made a serious effort to develop a civil code. The first draft of the legal texts was based on a single legislative act, which combined government regulations with judicial decisions that interpreted legislation and regulations. (Although in theory judicial interpretation is not binding, in practice it is, as lower courts routinely draw upon judicial interpretations to guide their decisions.)
In 2007 the National People’s Congress of the People’s Republic of China promulgated its first property rights law. Following the transition made more than a quarter of a century ago to market-oriented economic policies, the Chinese government sought to provide a more secure legal foundation for the country’s growing urban middle class and for private entrepreneurs. The law does not cover every aspect of what Western lawyers consider to be part of property law. Article 3 of the new property law clearly signaled the purpose of developing a legal property regime designed to fit the country’s hybrid socialist-market economy. It declares, “During the primary stage of socialism, the State shall adhere to the basic economic system, with public ownership playing a dominant role and diverse forms of ownership developing side by side.” Such wording, along with the dynamic nature of China’s economic order, suggests that changes to the property rights law will follow.
One area not covered by the 2007 property rights law was the law regarding gifts. Chinese law classifies gifts as contracts. On the basis of the body of contract law that was adopted in 1999, a gift is defined as a contract under which the donor promises the gratuitous transfer of a gift to the donee and the donee agrees to accept the gifted property. The donor is permitted under certain circumstances to rescind the gift before the rights are transferred, but if the contract has been notarized, or if the gift is designated for the relief of poverty to aid victims of a disaster, it is not revocable. In these cases the donee may enforce the gift if the donor fails to transfer the property. Finally, the donor may impose conditions on the gift, making the contract resemble what Anglo-American law regards as a contract of sale. Conditions are not necessary, however, so the contract of gift is, in the Anglo-American lawyer’s eyes, an unusual type of contract. (It seems odd to the Anglo-American lawyer to characterize a gift as a contract because Anglo-American law normally draws a clear distinction between the two. Contracts normally are legally enforceable only if consideration—a quid pro quo—has been provided, whereas gifts require no consideration to be enforced. They are strictly gratuitous.)
Under the 1999 law, the contract may be written or oral, and it also requires that the donee make some affirmative indication of acceptance. There is no need for an intention to make an immediate transfer of ownership to the donee. If the donor intends the gift to take effect in the future and the donee accepts, the donee thereby holds a legal right to enforce the gift as a matter of contract law. This is a significant departure from the common law of gifts, which generally does not permit gifts to take effect in the future.In another departure from the common law, delivery to the donee is not required for the gift to be enforceable. Although delivery is a central feature of the contract of gift, in that it effects a change in ownership, delivery is not necessary for the validity of the contract of gift.
Succession at death
Chinese law permits an owner of property to dispose of it at death either by will or by intestate succession. Chinese intestate succession law resembles the basic pattern established in common-law countries. It gives fixed shares of the intestate estate to relatives according to a statutorily designated order of priority. The first priority is given to the decedent’s spouse, children and other descendants, and parents. Any deceased children may be represented by their surviving children or more remote descendants. The next order of priority includes siblings and grandparents.
Chinese and American intestate succession laws differ markedly in a few areas; for example, Chinese courts have discretion to deviate from the statutory pattern if the change is structured to provide more for those persons with whom the decedent lived or otherwise supported. Another major difference is that Chinese law requires that any designated beneficiary under a will, other than a person who is an heir under the intestacy statute, must give notice of the intent to accept the bequeathed property within two months after receiving notice of the bequest. Any beneficiary who fails to give such notice is deemed to waive rights under the will. By contrast, Anglo-American law reverses the presumption: a devisee under a will must disclaim any bequeathed property; otherwise, the law presumes that the devise is accepted.
The formalities required under Chinese law for a valid will closely resemble those prescribed by American law. Generally, wills must be written and witnessed, although an unwitnessed will is valid if it was handwritten by the testator. Oral wills are permitted only in case of an emergency; once the emergency has ceased, the will is no longer valid, making oral wills in China quite similar to what Western law calls a “gift causa mortis.”
Chinese law permits individuals to enter into legacy-support agreements with others. Under such an agreement, one person is obligated to provide for the other’s maintenance, and this duty entitles the maintained party to a legacy (or bequest) under the promisor’s will. To the extent that the will is inconsistent with or does not meet this obligation, it is invalid.
Like other non-common-law legal systems, China’s succession system has no device corresponding to the common-law trust. While one can create a valid contract with a beneficiary of one’s estate, Chinese contract law does not recognize any sort of contract that serves as the equivalent of a trust.
Sales of land and landed assets
In general, land ownership in China cannot be privately transferred, since all land is owned by the public, either the state or the community. Only the right to use land and assets situated on the land are subject to market transactions.
In order for the owner of assets situated on land (landed assets) to be able to sell them, he must have the right to use the land as well as ownership of the asset and certificates of registration for both. Both the use-right and asset ownership must be transferred together; the two cannot be separated. Sale of landed assets is based on and governed by contract and contract law. Contracts are required to be in a writing signed by both parties. A contract signed by one party only is unenforceable, even against the party who signed it.
Full performance of a contract of sale does not itself transfer ownership of a landed asset. Even though the buyer has paid the full purchase price, he does not gain ownership of the asset until and unless the transaction has been registered with the appropriate local governmental agency.
All sales of landed assets are subject to an implied warranty of quality. The seller must provide a certificate of quality when selling the asset. In cases where the landed asset is commercial (as opposed to single-family residential) housing, a government licensing system is in effect. The housing department will inspect the housing project, evaluate it, and determine whether to issue the certificate. The buyer may also inspect the property before or after closing the deal. If the buyer discovers major defects after closing the transaction, he still has the right to void the contract and seek damages.
Question: What is the difference between assignment and subletting?Answer:
Assignment and subletting occur in instances when an existing lessee (tenant) wishes to abandon his lease before the date specified in the lease agreement.
An assignment of a lease is the transfer of the entire property and giving over of proprietary rights under the lease to a new tenant. A sublease only transfers a part of the interest in the property. So when you assign a lease you give up your rights in relation to the property and the lease, when subletting you retain these rights and share them with the sublessee.
A sublease can apply to a physical part of the property, or for a period of time within the existing lease. This might happen when an existing tenant, the ‘head tenant’, wishes to rent out a part of the property such as a room or a basement to another person, the ‘sub-tenant’, without giving up the entire property, OR if they wish to rent out the entire property for a period of time within their fixed-term lease. The sub-tenant treats the head tenant as their landlord, as the head tenant retains his tenancy agreement with the actual landlord and assumes liability on behalf of the sub-tenant for any loss or damage they may cause.
You will need the consent of the landlord in order to assign lease or sublet – before you do so, speak directly with your landlord or consult a leasing lawyer.
Answered by Emma Jervis
Emma is an experienced franchise lawyer and litigator who has successfully helped many clients achieve commercial and workable solutions to their legal problems. With over 10 years legal experience, Emma has run many cases in all tiers of the NSW Court system and Family Court of Australia, as well as having many years experience in advising clients of their legal rights in both the commercial and family law spheres. Emma is also experienced in drafting a range of documents, including franchise documents and complex commercial contracts.