1. Introduction The reforming process in the matter of the state reg- istration of the rights on the estate property is taking place in Ukraine. Thus, the institute of registration of the rights on the estate property still remains the less researched in modern science. Before the end of the 20th century the registration institute was in the process of the long-term development and was disordered and non systematic. And only beginning from the end of the XIX century the state registration of the rights, objects and legal deed with the estate property were clearly distinguished. The characteristics of the main historic periods of the development of the systems of the state regulation in terms of the estate property are the object of the present article. 2. Historical tools to protect the rights to land lots and to estate property (X–XVI centuries) We should agree with those scholars who believe that the origins of instruments for the protection of real property rights is the situation of the ancient customs and traditions aimed at providing security of land property from illegal encroachments by oth- ers. Indeed, land property appeared much earlier than the property to the estate property objects that Journal of Geography, Politics and Society 2016, 6(1), 10–16 DOI 10.4467/24512249JG.16.002.5251 THe HISTorIcal PerSPecTIVeS of THe deVeloPmenT of SySTemS of STaTe reGulaTIon of eSTaTe ProPerTy In ukraIne Olga Lietnieva Political Sciences and Philosophy Chair of Kharkiv Regional Institute of Public Administration of National Academy of Public Administration attached to the Office of President of Ukraine, Moskovskiy 75, 61001 Kharkiv, Ukraine, e-mail: o.lietnieva@gmail.com citation Lietnieva O., 2016, The historical perspectives of the development of systems of state regulation of estate property in Ukraine, Journal of Geography, Politics and Society, 6(1), 10–16. abstract The article is about the development of the legal regulation in the matter of the registration of law of estate on estate property beginning from the Kyiyv Rus times till nowadays. The registration of rights on estate property is a newish phenomenon for the majority of governance systems and whereas it was unmethodical and unsystematic before the early 20th century, in the beginning of the 20th century the state registration of rights, objects or transactions is complied as a fully functional institu- tion. Besides the main historic periods of development of the systems of legal regulation in the matter of the state registration of the rights on the estate property is reviewed. key words estate property, property, title to estate property, property rights, state registration. The historical perspectives of the development of systems of state regulation of estate property in Ukraine 11 were built using human labor. It should be remem- bered the fact that for long time farming was con- sidered as the only method of farm management and production that resulted in land wars and dis- putes on it. According to some sources the Institute of mandatory registration of estate property (or preconditions for its appearance – from the author) existed in the I century BC in Ancient Egypt. Besides, similar institutions were found in the organization of the society of American Indians, the Aztecs of pre- Columbian era (Романюк, 2010). Without resorting to in-depth analysis of the pre- conditions of the origin of the property on the land and instruments of protection of the relevant rights note that specific circumstances that were the impe- tus for the development of the public-enforcement mechanisms for the protection of property rights to estate property and in the construction of the system of land accounting are fixed rules of law, are obliga- tory normative character. On the territory of Ukraine one of the first uniform acts, which regulated social relations was “Rus’ka Pravda”. The distinction between the concepts of “landed estate” and “tenure” in the X–XIII centuries by incor- porating customary rules in the provisions of the “Russkaya Pravda” can be considered as a starting point in the regulation of relations in the sphere of turnover of the estate property, particularly land. One of the tasks of the “Rus’ka Pravda” was the protection of private property that was clearly from some of its provisions. In particular in article 71 of the Prostorovoy Pravdy, the destruction of prop- erty signs on the trees was fined in the amount of 12 UAH that, in fact, meant the implementation and protection of the principle of the private property (Мартинюк, 2007). In addition, a penalty in the same amount fixed in article 34 of the Korotkaya Pravda for the violation of the land limits. For comparison, the fine for stealing the Knyaz’s horse was set at 3 UAH (Рубаник, 2002). In this regard, we can make two assumptions – either the right to the land prop- erty was under special protection in that time due to its status as an object of circulation, or, according to I. P. Safronova and V. E. Rubanok, such penalties were established for violations in the sphere of the ten- ure of the land, but only for those that were directed against the property rights of the Knyaz (Рубаник, 2002). The specifics of statutory regulation of property relations of land lots in Kievan Russia was the fact that the statements of the “Rus’ka Pravda” laid the foundation for the record of the land lots and the defense of rights of them, besides it also laid down the foundation for the formation of the institute of the state registration of the legal deeds as the rights on the estate property were verified by the princely credentials for a long time. Due to the lack of the developed notions about the measurement of the land in the Kievan Russia and their fixation in relation to each other, we can assume that a clear accounting of kniazes and of other lands didn’t exist, and in fact could not exist, because in fact, until the XVIII century on the territo- ry of modern Ukraine in the relations of the property acted in the different interpretations of the princi- ple of “squatting” (Мартинюк, 2007; Slobodyanyuk, 2010). When a person, holding a certain social posi- tion had the right to process and use “abandoned” land rights had not been assigned to anyone (squat- tings – the development of vacant land by the slaves and dependent peasants; “okniazinia”, “oboyarenia” is the seizure of the land in the neighborhood local communities (Рубаник, 2002). In this regard, if we as- sume that there was a certain order of registration of the lands in Kievan Russia, it was fairly conventional. In addition, in favor of the fact that such an order still existed is evidenced by the fact that one of the ways of acquiring ownership or other rights over the land in Kievan Russia was to receive the knyaz’s lands for its service and for the duty. Such reception was ac- companied by granting the person immunity – the rights to perform certain, independent of the direct will of the Knyaz of action in this domain (Рубаник, 2002). The above mentioned circumstances show that the Knyaz had to take up their possessions in or- der to be able more or less accurately to divide them and to emit the member of a voluntary public order squador or the boyars for their special achievements before the Knyaz, or to serve, for example, in the border regions. In this regard, the only possible way and the principle by which account is taken of the land was the principle benefits of ownership of the Knyaz over the property of the other entities, i.e. eve- rything that does not belong to anyone in particular belongs to the Knyaz. The conventional way of the measuring land could be settlements, and in the era of feudal decentralization, patrimony, specific knyaz, boyar etc. A significant role in the development of the insti- tute of state registration in turn of the estate prop- erty played statutory source of Lithuanian-Russian state and The Polish-Lithuanian Commonwealth. The specific feature of the legal relations in XV–XVI centuries was the fact that the rights to the land lots in particular the title to estate property were regu- lated by the relevant party – the knyaz, Counsil of Messieurs etc. inspite of the way the land came into property – whether from the lands of the State, the Knyaz or under agreement of the people. The docu- ments confirmed the property rights to the land 12 Olga Lietnieva were the grand-ducal letters, the judicial decisions, written permissions, testaments as well as the letters to the on-duty estate property. For example, the Lithuanian Statute in the edi- tion of 1566 established that if the owner wished to sell he owned estate property, he or by old custom is bound to be the Grand Knyaz of Lithuania, or to the provincial government, to declare the disposition of property and to record this fact to Zemsky books (Мартинюк, 2007). This means that the Lithuanian Statute for the first time expressly established the necessity for mandatory confirmation of the owner- ship of the estate property to move into civil circula- tion (Бойко, 2008; Слободянюк, 2011). In our opinion, this moment should be consid- ered as a clear description of the functions of the public authorities (speaking about a particular sub- ject or body) in the regulation of the relations, the subject of which is estate property. If in the times of Kievan Rus it had an episodic form, with the devel- opment of mechanisms of the legal regulation of the social relations it emerges in a clear required by the state, what happened on the stage when the part of the modern territory of Ukraine was part of the Rech Pospolita. We can say that in this period the quasi- mechanism of the state registration in the estate property turnover was formed, which has not yet been divided into registration of the object, rights or transactions. In addition, it is possible to distinguish two stages of the system development authorization (legaliza- tion) of the emergence and change of the ownership or other rights to land. The first stage, characterized by legitimizing the nature of the relevant actors – representatives of public authorities, and the lack of clear requirements regarding the establishment of boundaries of land ownership. For the second stage is characterized by the existence legtenberg nature of the relevant actors and the introduction of a clear mapping of the land boundaries, rights which arise or pass. In time the first stage existed before the middle XVcentury and the second from the mid-fif- teenth century to mid sixteenth century (the time of liberation war) is continuous, and in principle up to the present time. 3. Historical tools to protect the rights to land lots and to estate property in russian empire in XVII–XX centuries In the times of the Russian Empire when the part of modern Ukraine was under its control the mechanism of estate property accountancy as well as the rights to it were formed almost as they are in nowadays. By the way such significant act for Ukraine as “The rights using to juge the Little Russian (Ukraininan) people” (1743 year) clearly defined the procedure of granting the force of legal deed for passing the es- tate property in the property. The provisions of the Chapter 14 of this regulatory legal act defined the obligation of the parties to real estate transactions, contact the local authorities to make inscriptions in the books, by the alienation of immovable property. In particular, if the owner was willing to alienate its immovable property, he had first write a letter of the assignment of the property in the presence of and signed by two or three witnesses (respectable citizens). After that, the owner needs to come to the local authority and in the presence of officials to dis- close the contents of the letter. Officials had to check the legality of ownership and when there were no reasons that prevent making appropriate entries in the books, then made their contents the text of the letter. According to the results of the entries of the corresponding book was published extract with the print of authorized persons. Deviation from this procedure caused a conse- quence in the form of the impossibility of further alienation of the estate property by the new owner (Мартинюк, 2007). Legally this meant that the fail- ure to comply with public law the registration pro- cedure caused the consequence in the form of the non-recognition by the state of the fact of the trans- fer of rights, and therefore their occurrence from the new owner in the connection with the relevant transaction was one that was made. This mandatory mechanism indicates the direct interference of the state in the administration processes in the sphere of turnover of the immovable property and rights and legitimate interests of the parties to the transaction. In the aspect of the reporting provisions of the legislation of the epoch of the Russian Empire, it was impossible to assert whether the right or the legal deed was subject to registration. Most probably, it was registration of act and right to be certified. The positive point of such registration is the possibility to keep a record of the estate property that is in the turnover and also the storage of the history of the legal fate of the relevant land lots. The parties who arranged the relevant actions were the public per- sons of self-governing authorities. In general, we cannot say that the institution of the state registration in the estate property circu- lation of the left-bank Ukraine was formed under a powerful influence of laws of the Russian Empire, at least until the early eighteenth century. In support of this conclusion is evidenced by the fact that the public authority in the territory of Ukraine before the signing of the “March articles” (1654) used the state The historical perspectives of the development of systems of state regulation of estate property in Ukraine 13 registration to administer the real estate. In this re- gard, the institution of registration on the territory of Ukraine was developing its own power. Is that because in the organization of the life of the Cossack society has not found distribution legal act as a source of the regulation of the social rela- tions, they were guided by customs, and therefore the question of fixing of the rights on the land are not very acute, especially bearing in mind the prin- ciples of “free conduct” which did not envisage the need for the strict regulation of property relations. In addition, as noted in her dissertation, V. V. Sen- chuk, the tumultuous events of the Liberation war (1648–1654 years from the author) led to the com- plete destruction of the existing system of the land tenure (Сенчук, 2009). At the same time, after the authorities of the Hetmanate, it was established in accordance with the “March articles” how public education has been forced to devote attention to the organization of management of various spheres of the public life in their territories in connection with the accounting of the land was put on the Hetman’s administration (Мартинюк, 2007), which performed the functions of registration of the rights to the land, certification of transactions, checking the legality of the owner- ship of the real estate. In common practice those days, the appropriate entries are reflected in the various books. As for the right-bank Ukraine, on its territory for political reasons these Laws were those of the Aus- trian Empire, which also assumed the existence of the Institute of the state registration. In particular, article 321 of the civil Code of the Austrian Empire of 1811 it was assumed that legitimate possession of the property right over real estate is acquired only through proper registration in the public books. Moreover, according to the article 431 of the Code specified for the transfer of the ownership of the im- movable property, the acquisition must be made in public for his books (Романюк, 2008). The fact is, as noted in their study, V. V. Senchuk (Сенчук, 2009), the so -called “Teresian cadastre” was introduced in Aus- tria-Hungary in 1751, and subsequently appeared the classic “phreatic” (“land”) books. However, per- fect and correct idea underlying the registration of the rights to real property, worked well in Germany, but in Ukraine it was completely discredited by the technical deficiencies in the maintenance of the cur- rent registration. The low level of the reliability and accuracy of the initial registration resulted in the fact that over time, it became impossible to use the phre- atic books with reference to this the Law of Decem- ber 11, 1906 was provided for the introduction of the new books for the actual condition of the property, however, continuous improvement and state regis- tration of peasant land ownership was halted by the First world war (Сенчук, 2009). Returning and concluding the consideration of the question of the state registration of rights to es- tate property during the stay of the Ukrainian lands under the influence of the Russian Empire, it should be noted that with the final dissolution of the au- tonomy of Ukraine the legal impact of the empire got empowerment on its territory. In connection with this the system of the registration of the rights on the estate property adopted the traits of impe- rial analogue. On the territory of modern Russian Federation the system was well-developed. From the end of XV century (the time of the acquisition of property during conquest by Ivan the Terrible), first locally and then in the General system, there started “Pistceva books” – the acts of economic and financial description of the land relating to all counties of the cottages and mills, with an indication of the tracts, wetlands, settlements and other household supplies every possession. Pistceva book also served as a le- gal certificate of the ownership, found the clerk in this or that area, but not postul rights that could exist without the reflections in this book even though in Pistceva book was looking for the information about an estate property object (description of the com- ponent parts of a city or a county) and about who or what right (private or state) has the relevant estate property (Победоносцев, 2004). “Pistceva book” was the prototype of the modern land cadastre, whose main purpose is, first of all, the registration of the land, rights to them. Although, at the same time, modern inventories are combined, and there- fore they may contain information about the estate property objects and rights to them (Дьоміна, 2012). In addition to cadastre there were also watch books and correction books that contained the ad- ditions and corrections that were made with the former description to align the changes that have taken place in a particular locality and their rights to appropriate real property. Buildings and abatis books were made to build cities, jail or bins in the wild steppes. They were described as constructed buildings and structures and land transferred to the serving men. Boundary books describing the boundaries of the land holdings, sometimes with the measurements lands of its borders – in such cas- es, the book is called dimensional (Победоносцев, 2004). Since the XV century the functions of the registration of the land lots and conducting the reg- istration of the changes of the feudal tenure were carried out by the Local izba (История…, 2013). Later, in the reign of Ivan IV the “order system” was formed as the registration of the rights to estate 14 Olga Lietnieva property (Сенчук, 2009) according to which it was the obligation to produce bills of sale in the orders normatively, where it was recorded in the book of order and from that moment the person became the owner of the property. Till the XVII century, any transaction for the sale of real property recorded in the book of order (История…, 2013), which was the name of Pistceva book (Сенчук, 2009). In 1719 Pe- ter I has created in at Justice College “office fortress” (House fortress Affairs), and in 1721 was created by the Central government authority – Patrimonial Board, which together with Fortified office was in charge of the land tenure issues and land bound- ary surveys. Under Catherine II the functions of the registration of liens transferred to provincial au- thorities. Instead of House fortress Affairs functions of making acts of the fortress was entrusted to the civil chamber and the district courts, under which are organized the institutions of the fortress of cases (История…, 2013). With the adoption of the Emperor Alexander I “Regulation on notarial part”, dated 14 April 1866 as a logical continuation of the Sobornoye ulozheniye “Code of Laws of the Russian state” in 1649 (Ахмадгазизов, 2008; Сенчук, 2009), in capitals, provincial cities and, if necessary, in the provincial towns were the posts of notaries, which is entrusted with the registration of transactions. On the level with modern Notari notaries since 1866 checked the encumbrances on the estate property, certified to the transaction and thus provided them legal force. The base of patrimonial rights is not im- plemented. The when was the moment of making appropriate entries in the registry (Сенчук, 2009). 4. Historical tools to protect the rights to land lots and to estate property during Soviet and post-Soviet period (XX–XXI centuries) As for contemporary times, pointed by Y. M. Ro- maniuk (Романюк, 2010), during Soviet period the special regime system of consolidation of rights to estate property was abolished. Private land property and the possibility of its passing from one person to another were forbidden. The reason was the social ideology that denied the private property on pro- duction means among them on land, and also due to social collectivization as a result of introduction this ideology to life. At the same time, the system of the registration of the estate property has intensi- fied significantly in the connection with the begin- ning of the twentieth century the functions of such accounting was endowed with the NKVD, and then they gradually shifted to the people’s Commissariat of agriculture of the RSFSR. On the 21st of May 1927 at the meeting of the Economic RSFSR “On approval of the inventory of the property of local councils” the regulation was adopted. The features inventory and registration of the estate property agencies got Technical Inven- tory, which initially acted within the NKVD, and later – at the People’s Commissariat of National Economy of the RSFSR. According to the decree of the Council of Minis- ters of the USSR from 10th of February 1985 No. 136 “On the procedure of state registration of the hous- ing Fund” the Bureau of technical inventory carried out registration and technical inventory of the hous- ing stock in the country. According to the Council of Ministers on Febru- ary 10, 1985 № 136 “On the procedure for the state registration of housing stock” the Bureau of techni- cal inventory registers and make technical inventory of housing stock in the country. It should be noted that the provisions of the Civil code of the Ukrainian SSR, in particular article 227 the preconditions for the development of the Insti- tute of registration of transactions were formed, as in accordance with contracts of sale and purchase of the residential houses subject to registration in the Executive Committee of local Council of people’s deputies (Цивільний кодекс Української РСР, 1963). With the independence of Ukraine and delineat- ing the patterns of development of the country in 2004 it was adopted the Law of Ukraine “On the state registration of in rem rights to the estate property and their restrictions”. The law laid foundations in regulation of relations within the state registration of in rem rights to estate property, specified a new structure of the bodies that have to exercise func- tions, fixed the distinctions of the information part of the implementation of the state registration. However, paragraph 5 of section V “Final and transitional provisions” of the above Law was clearly established that before creation of uniform system of registration and before the formation of the State register of rights to estate property and their limi- tations in the composition of the state land cadas- tre registration of the real estate objects is carried out by utilities Bureau of technical inventory (Про державну реєстрацію речових прав на нерухоме майно та їх обтяжень: Закон України, 2004). In connection with a number of organizational and economic obstacles to implement the act fully failed in this connection to 1st of January 2013 the state registration of the land lots and rights to them were carried out by the territorial bodies of the State Committee of the land resources authorities (since 2010 the State Agency for land resources). The state registration of rights to estate property artificially The historical perspectives of the development of systems of state regulation of estate property in Ukraine 15 created Bureau of technical inventory and state reg- istration of transactions and encumbrance of the rights to estate property – notaries. Registration of artificially created objects of immovable property as a single procedure for the registration or administra- tive procedure was not carried out. The first of January is considered to be the start of the new system of state registration to the estate property and its encumbrance. 5. Summary Summarizing the abovementioned, it is possible to define some features of the historical development of the institute of state registration of in rem rights to estate property in Ukraine. Firstly, the state registration within the turnover of the estate property and the role of the public au- thority in managing of the origin, passing and termi- nation of the rights to estate property is the essential part of the legal status of the estate property units and its turnover. Almost with the origin of property relations and the emergence of the estate property rights, particularly on the land of public education in the form of genera, tribes, communities or public ed- ucation used a different kind of custom or the legal instruments for the protection of the real property rights, what then can be considered the prototype of the modern registration of the real property rights or the legal actions with estate property. Secondly, up to the end of the 19th the registra- tion institute has been developing for a long period of time without any system. Particularly, there was no due division on rights registration, estate prop- erty units or the documents on estate property, but at the same time the legal nature of the registra- tion had high-profile legitimist character, i.e. it was directed to provide legal force to the definite facts of reality. And only in the end of XIX century the state registration of rights, lots and legal deeds were strictly delimited. Thirdly, during all this historical period of devel- opment of institute of state registration in turnover of the estate property on the territory of today’s Ukraine, the registration functions were executed by the self-governing bodies or by the government authorities. At the same time, the trends of the late XIX cen- tury and in the modern conditions, the priority of the registration is provided to the government au- thorities. Today this practice is prevalent in the most countries of the world testifies to its effectiveness and prospects of the development. Fourthly, before the beginning of the XX century the process of the one type record of estate property was duly delinked, because the information about the land lots could appear in several record books simultaneously, i.e. the record was non systematic. Only in the beginning of the XX century when pass- ing to the new economic structure the state mo- nopoly on the production means including on land made the background for the centralized record keeping of estate property, without registration of rights to it or to legal deeds at all. Moreover, one should pay attention that, as noted above, the state registration of rights to estate prop- erty is a relatively new phenomenon for the most legal systems, and if at the beginning of the 20th cen- tury, it had a chaotic and unsystematic nature, since the beginning of the XX century the worldwide state registration of the rights, objects or transactions be- gins to form as a full-fledged Institute. This proves the fact that in the country where the lawyer takes part in almost all of the least important from a legal point of view the processes – England, compulsory registration of real property was stipulated by the Act on registration of land of 1925 (Martin, 2003). references Ахмадгазизов И., 2008, О государственной регистрации вещных прав на недвижимость при их переходе, Хо- зяйство и право, 11, 124–128. 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