Ownership - nature and types of ownership. The right of state ownership. The right of municipal ownership. Private property rights.
Ownership is a complex phenomenon. Based on the core rights related to the general concept of a subjective property right, the right of ownership may be defined as the following: this is the right, recognized and guaranteed by law, of a person to possess, use and dispose of, factually and legally, and have full and immediate authority of certain property and ask all others to refrain from acting on it, as far as their rights do not allow it. The right of ownership is a fundamental right, all other property rights stem from it. The right of ownership is of primary, direct nature. Only this right can be divided into public and private property. This division does not apply to other property rights. It is important to note that the right of ownership is not lost when not exercised.
2. Nature of the right of ownership
The right of ownership is a complex subjective right. The number and type of rights may be different depending on the adoption of a more specific or a more general approach. According to the dominant opinion, the rights of the owner are three - possession, use and disposal.
2.1. Possession is the power of the owner to exercise direct power over the property as a possessor. Possession by the owner is the exercise of his power. The importance of this power is expressed in allowing the owner to prevent influence from third parties. If the owner has completely been deprived of their possession,they are protected by a restitution claim under Art. 108 PA, and for all other related violations of this right - by a negatory claim (Art. 109 PA).
2.2. Use - it is the ability of the owner to extract the benefits of the property. The exercise of the right to use is carried out both through factual (when the owner personally uses the property and extracts its benefits) and legal actions (e.g. renting out the property). If their right to use is breached, the owner may bring an action to terminate the infringement if the offender prevented them from using the property, they could also claim the benefits (reified or debenture claim for their equivalent), as well as a claim for benefits of which they have been deprived and an action for damages.
2.3. Disposition is the ability of the owner to carry out legal and factual actions, through which one can lose one’s right or encumber it with property rights. Disposition refers to actions, by means of which the owner transfers, modifies, terminates or limits the right of ownership. Factual disposition is carried out through material acts leading to the destruction of the substance, the degradation of the property or its reprocessing. Legal disposition requires the conclusion of a legal transaction - a contract to transfer ownership of the property (apport in a company). Protection of the right of disposition is linked to the principle that nobody can transfer more rights than they have, i.e. the deal is valid, will give rise to a contractual action, but there will be no translatory effect (transfer of property).
Nature and general characteristics of the right to state property
As already noted above, the Bulgarian legislation contains no legal definition of the right of ownership. Art. 2 PA only states that ownership may belong to the state, municipalities, cooperatives and other juristic persons and citizens. According to Art. 2 of the State Property Act (SPA), state property is public and private. Therefore, we can conclude that the state property is a type of right of ownership. Its features are subject, object and interest. The SPA explicitly recognizes its right to property and thus recognizes civil personality. Proof of this is the provision of Art. 31 of the Civil Procedure Code, which governs civil litigation of the state. As a holder of civil rights, it has the hallmarks of a legal person and participates in civil (including proprietary) relationships as equal. Typically, state property often includes public law norms. The state, acting through its state bodies, is an entity holder of the right to state property. From a legal point of view, both in its relations with individuals and international relations, the state is the unitary and single subject of the right to state property. All other legal subjects should refrain from acting on objects of state property (SP).
Objects of the right of ownership may be different types of property. The SPA refers synonymously to "objects", "real estate", "property", most oftenly “real estate and property". Any property may be subject to SP - movable, immovable, consumable, non-consumable. There are properties that are subject of exclusive state property, namely those listed in Art. 18 (1) of the Constitution. Real estate and property of companies and foundations, even if the state had been the sole owner of the property transferred thereto, are not subject to SP.
Another feature of state property is that it is exercised in the public interest. Public state properties are used in order to permanently satisfy public needs of national importance. Private state properties can be provided free of charge to legal entities and organisations, supported by the state budget.
As a subjective right, the right to SP possesses the generic features of a property right of ownership - i.e. it is a proprietary, possessory, absolutely unlimited right. Its content is limited to the powers possession, use, disposal.
Types of state property - public and private
The criteria for the division of state property to public and private is the holder of the right of ownership. The right to public property can only be held by entities that exercise public authority, namely the state and municipalities. In a narrow sense, it is not the property that is private/public, but it is rather its subjects that hold public or private ownership.
Due to their special importance and universal benefit, a certain category of properties have been declared exclusive state property. These are mineral resources, coastal beaches, national roads, as well as water, forests, parks of national significance, natural archeological reserves, as defined by statute. According to Art. 2 SPA, public property are real properties appropriated to public authorities the performance of their functions, as well as properties real properties designated to serve permanent public needs of national importance by public use, objects defined by statute or by an act of the Council of Ministers. The importance of the classification of properties as public state property has several dimensions. First of all, it is impossible for this category of objects to be owned by entities other than the state. Second, those properties are removed from the civil turnover, which means that they cannot be alienated, encumbered with property rights, be acquired by prescription, and no enforcement can be imposed thereon. The state can provide the right to use thereon through concessions, to make them available free of charge for management by public authorities. Thirdly, void are any transactions that transfer the ownership thereof. Private state property is all other state property, i.e. those properties which have not been declared in the Constitution or defined by statute as public property. Private state property may be any property - real such as land, forests, pastures, housing, as well as movable property. What is more, properties - public SP, which have ceased to have such quality are declared private SP by the Council of Ministers. Moreover, private SP are also the benefits and income from real estate and properties that are public SP. The legal significance of determining the properties as privately owned is primarily their alienation. They actively participate in the civil turnover, they may be alienated, property rights may be established thereon, they may be rented out, etc.
Nature and exercise of the right to state property (SP). Property management
The right to SP, like any other right of ownership, includes the powers of possession, use and disposal. However, the question is how the state exercises these powers as a single holder. The right to SP may be exercised by the state itself or by others to whom it has assigned this right. According to Art. 15 SPA, the conveyance of real properties constituting public state property to public authorities for operation and management is carried out by the Council of Ministers, whereas for private state property this function is carried out by the regional governor at the location of the property. Those properties which have not been conveyed for management, are managed by the regional governor. Ministers and heads of departments may convey properties - state property for management to state legal entities with the support of the state budget. Conveyance of public SP to departments with a view to performing their functions, as well as to municipalities is performed by a Resolution of the Council of Ministers, based on which the regional governor later signs a contract. The real estate - private SP are provided to departments and municipalities by order of the regional governor and a subsequent contract. Properties - private SP are provided to legal entities free of charge, with the support of the state budget by order of the Head of the department, respectively, the regional governor. The right of management is a complicated and subjective right, incorporating the possibility of the state entity to exercise, for its own account, actual power conferred over the conveyed property, but it does not do so with the intention to hold the property. Furthermore, state legal entities do not hold the properties as their own. They cannot acquire the conveyed properties through prescription. It possesses another’s property in another’s name, namely that of the the state. This possession is at the same time and administrative liability to the state because it includes compliance with the reporting and depository requirements, as well as the exercise of due care. The right to use as an element of the right of management enables state legal entities to extract the benefits from the conveyed real estates. The right of management of properties - SP of departments and legal entities supported by the state budget is an empowering subjective right and may be withdrawn by a decision of the Council of Ministers, respectively, by order of the regional governor.
Disposition of real estate and movable property - private state property
Disposition is such a legal action or such a legal act which directly affects the right of state property by either terminating or restricting it. Such actions are dispositive sale, exchange, establishment of real rights, partition. The sale of real estate - private SP with a tax assessment of up to BGN 500 Million is carried out by the regional governor at the location of the property after holding a tender to determine the buyer and the price. Based on the results of the tender the regional governor issues an order which sets the price and terms of payment. Afterwards, based on the order the regional governor concludes a sales contract. If the tax assessment of the property is over BGN 500 Million, the same procedure is performed by the Ministry of Regional Development and Public Works. Also similar to this procedure is the exchange of real estate - private state property with real estate - property of individuals or legal entities. The right to use over real estate - private state property is established by order of the regional governor for a term not longer than 10 years after the tender. A free right of use can be established only after the consent of the Council of Ministers after a proposal of the Minister of Finance. Based on the order, a contract is signed by the regional governor. The right to build on state land is established by the regional governor for the construction of facilities, according to a detailed development plan of the area. It may be established for consideration after holding a tender based on which a contract is signed establishing the right to build. The right to build can also be established free of charge, by complying with the statutory requirements (Art. 58 (4) SPA). Finally, it should only be added that the new regime of disposition of property - private state property established by the SPA and RASPA requires, based on an order of the competent authority, to also conclude a relevant contract of sale, exchange, establishing a right to build etc. This means that the acquisition of these property rights should be based on a mixed civil/legal set of facts - an administrative act and a contract.
Right to municipal property
The right to municipal property is associated with the municipality in its capacity as a legal entity. The municipality, however, is a special kind of legal entity. It is both a subject of public powers, which is why the municipal property is a kind of public property. By its nature, municipal property is public, since the municipality, being an administrative territorial unit, carries out public functions and its organs are also holders of the public powers. Municipal property differs from the state property in that it does not constitute a single fund - i.e. the number of municipalities corresponds to the number of holders of the right to municipal property. Within the meaning of Art. 2 (1) MPA, municipal property is: forests and agricultural land as defined by law; real properties and moveable property granted to the municipality by a law, or transferred gratuitously by the state; built-up and vacant real property and moveable property acquired with municipal funds, and properties built with volunteer labor; real property and moveable property donated or bequeathed to the municipality, its authorities and institutions; real property the ownership of which has been restored to the municipality under the terms and procedures of special laws. If there is a property dispute between the state and the municipality, the state prevails - this is confirmed by Art. 79 SPA, where is explicitly stated that where a state property has been unlawfully conveyed as municipal property, the municipal title deed shall be cancelled by the order of the Regional Governor concerned.
Types of municipal property
1. Public and private
According to the purpose and administration of the objects of municipal property, it is divided into public and private. Public properties are those intended to implement local management and local administration; used constantly in the public needs of municipal importance. All other property and possessions are private municipal property. Private municipal property are the benefits and income from land and property - public municipal properties. Land and property that no longer meet these criteria are declared by decision of the Municipal Council as private property. Vice versa - land and property that have acquired the above purpose are declared public municipal properties. The legal significance of this classification is relevant to the different administration of properties. Disposition rights related to public municipal property are limited. Thus, according to Art. 7 PA, public municipal properties cannot be acquired by prescription, cannot be alienated and transferred into the ownership of third parties. With private municipal property the municipality can perform disposition by sale, exchange, partition, renting out individual properties, and establish property rights.
2. Mixed state/municipal public property
The eligibility of mixed state/municipal public property is dictated by practical considerations, namely ensuring the most rational use of a single technological system that can cover areas of more than one municipality and require to have a unified system of management of these areas. By their nature, they cannot be divided in order to determine which of them is state and which is municipal property.
Nature and exercise of the right of municipal property. Property management and municipal property
The exercise of the right of municipal property is exercised by the municipality bodies - the Municipal Council or the Mayor - depending on whether it is a public or private municipal property. If it is public municipal property, i.e. objects that serve the Municipal Council or local administration, they are managed directly by the Mayor or the town hall. The Mayor as a body of the legal personality of the municipality is authorized to exercise certain powers of the owner. Objects of public property intended for the public benefit, as well as those intended to satisfy health, cultural, educational and social needs, are freely provided to organizations and legal entities, supported by the municipal budget. Since these are personified organizations, they become holders of the special right of control similar to that of public legal entities. They exercise the right of municipal property on the property or land they manage.
Disposal actions are admissible with respect to private municipal properties. The sale of real estate - private municipal property is carried out by the Mayor following a tender and upon a decision taken by the Municipal Council (MC). The right to build is also established following a decision of the MC by order of the Mayor to build certain facilities in accordance with a detailed urban plan. It can be established either for consideration or free of charge. Based on the said tender, a contract is concluded with the Mayor. In a similar manner is established the right to superstructure and additional construction of properties - private municipal property. The right to use the property - private state property is established for consideration by the mayor under a procedure determined by the MC. The contract is then signed based on the order (respectively the decision). Rented accommodation in public housing is governed by the Mayor. Disposition of movable private state properties is carried out by the Mayor under a procedure established by the ordinance, adopted by the MC.
Private property rights
Holders of private property rights may only be subjects that do not have public authority, namely the subjects of private law - natural and legal persons. A feature of private property is that it serves to satisfy private, personal interests or to carry out commercial activity. Property which under the Constitution of the Republic of Bulgaria is exclusive state property or by law is public, state or municipal property cannot constitute private property. Moreover, a legal prohibition may be imposed on the possession of property related to state monopoly activities by natural or legal persons. This ownership also includes the rights to possess, use and dispose of the property. These rights are exercised personally by the owner or the person authorised by them.
Subjects of private property rights
Bulgarian citizens may acquire private property rights over any movable and immovable property. In principle, foreigners and foreign persons have the option to acquire ownership of land as per Art. 29 (1) PA - this occurs under an international treaty, ratified under Art. 22 (2) of the Constitution. Foreigners may acquire land also through inheritance by law. Foreigners, Member State nationals or nationals of the countries of the EEA may acquire ownership of buildings and limited property rights on real estate in the country, unless otherwise provided by law. A foreign state or an intergovernmental organization may acquire ownership of land, buildings and limited property rights on real estate in the country based on statute, international treaty or an act of the Council of Ministers. However, a foreign country may not acquire ownership of real estate in the country though inheritance.