Land lease agreements concluded before January 01, 2013, but not registered before the beginning of 2013, raise many questions.

This was reported to The Ukrainian Farmer by Irina Vysotskaya, a lawyer, a partner of the Law Firm "Efimov and Partners" Law Firm.

She recalled that from January 1, 2013, amendments to the law “On state registration of rights to real estate and their encumbrances” dated February 11, 2010 No. 1878-VI came into force, which removed references to state registration of transactions from the Civil Code of Ukraine, and Law No. 161 struck out articles 18 and 20 on the mandatory state registration of land lease agreements.

“Consequently, after January 01, 2013, it was not the actual land lease agreement that was subject to state registration, but the right to lease under such an agreement. After this date, neither party could register a land lease agreement because such a mechanism was cancelled. In turn, the party (usually it was the tenant) had the right to register only the right to lease under such an agreement. Therefore, a completely logical question arose: from what time does the land lease agreement begin to operate - from the date of signing the agreement, the date of state registration of the right to lease on it, or from some other date? ”Irina Vysotskaya noted.

The specialist noted that the Grand Chamber of the Supreme Court, in its decision dated June 23, 2020 in case No. 696/1693/15-c, expressed a legal position according to which, after 2013, the state registration of a land lease on the basis of a land lease agreement cannot replace state registration the agreement itself (state registration of a property right is not a state registration of a land lease agreement). Therefore, the state registration of the right to lease cannot affect the moment of entry into force of the land lease agreement concluded before January 1, 2013.

“So, if none of the parties carried out the state registration of the land lease agreement, the agreement between the plaintiff and the defendant did not enter into force and, accordingly, the person did not acquire the rights of the tenant under the land lease agreement. So in this case, the landlord can at any time demand the return of the land plot to him, and the court, in the event of a disputable situation, will satisfy such a requirement, ”the lawyer explained.

Irina Vysotskaya also stated that the Ministry of Justice, in a letter dated September 11, 2020 No. 238 / 8.4.1 / 32-20, noted that the validity of land lease agreements concluded before January 01, 2013 depends on whether registration was carried out such an agreement with the competent authorities. If the registration of the contract was made, then the period begins from the date of state registration of the contract. If the lease agreement for a land plot concluded before 01/01/2013 has not passed the state registration procedure, then the period begins from the date of conclusion of such an agreement. Thus, the Ministry of Justice does not consider invalid the land lease agreement, which was signed but not registered before the beginning of 2013. However, until the SC SC changes its position, in the event of a dispute, the lower courts are obliged to take into account the decision of the SC SC dated 06/23/2020 in case No. 696/1693/15-ts. And this means that the chances of the tenant to defend the force of the land lease agreement, signed but not registered before the beginning of 2013, are small,” she summed up.