This essay deals with the legal norms for compensation for right of usage in the context of estate division due to divorce or separation between cohabitants. An estate division can often times be a lengthy process. In connection to this, it frequently happens that one of the parties moves out of the residence before the estate division is completed and that the other party remains in a home that is wholly or partially owned by the moving party. In such a situation, the question arises as to whether the remaining party is obligated to pay compensation to the moving party for the aforementioned use of his or her property. The legal norms in this area are almost exclusively based on case law, which in turn is considered to diverge significantly. In addition, there is disagreement in the doctrine regarding, among other things, what constitutes applicable law in this regard. In short, the legal situation in this area is perceived as very unclear and diffuse. The overall purpose of this essay is to is to highlight and evaluate whether lex lata in the above-mentioned area is satisfactory and well-functioning from an internally critical point of view. Furthermore, the essay aims to, based on technical and/or systematic deficiencies identified in the evaluation, propose improvements to the system in the form of new legal rules for compensation for right of usage. To map and evaluate current law, the legal dogmatic method is applied. In order to propose improvements legal political argumentation is used, however with the application of objective arguments. The mapping of lex lata shows that, for situations where there is a court order for right to stay in the residence until the estate division is completed, the applicable law can reasonably be determined. However, for situations where there is not such a court order, the applicable law is possible to strongly indicate but not to determine to a certain degree. All in all, the evaluation shows that lex lata for compensation for right of usage contains tangible and at some points serious technical and systemic deficiencies in the form of incomplete, unclear and ambiguous legal rules as well as gaps in the system. As a result, the aforementioned regulations cannot be said to live up to the legal system's generally accepted internal standards or basic concepts, and thus it cannot be considered to constitute a satisfactory or well-functioning legal system from an internally critical perspective. In order to solve the issue and remedy the identified deficiencies, proposals are made for new legal rules and new legislation. The proposals are based on the already applicable law to the extent it is possible to determine – which is very far indeed, but still not far enough.
| Identifer | oai:union.ndltd.org:UPSALLA1/oai:DiVA.org:su-216836 |
| Date | January 2023 |
| Creators | Wictorsson, Amir |
| Publisher | Stockholms universitet, Juridiska institutionen |
| Source Sets | DiVA Archive at Upsalla University |
| Language | Swedish |
| Detected Language | English |
| Type | Student thesis, info:eu-repo/semantics/bachelorThesis, text |
| Format | application/pdf |
| Rights | info:eu-repo/semantics/openAccess |
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