Criticism of the proposed ways to circumvent the moratorium on land sales

18.05.2008 00:00
How to circumvent the moratorium established by paragraph 15 of the Transitional Provisions of the Land Code of Ukraine. Explains how to circumvent the moratorium "walk" on the Internet. Here are three of them, which occur most frequently in the literature. In this case, the authors of these publications, call them almost legal. Moreover, these three methods sounded on workshops on issues related to land use, construction, etc etc.
That is what is proposed.

Unscrupulous debtor

1. Who wants to get the land lends money to its owner

2. The owner of land does not return the debt

3. The lender gives the court to collect the debt

4. Debtor claims that he has no assets other than land

5. The court decides to transfer land to the creditor

Sale of parts

1. The owner of the land plot allocated part of it

2. The resulting plot is registered as an independent

3. The new site is registered as building land

4. Now the land is not subject to the moratorium, and it is sold

5. On the site is constructed property

Emphyteusis *

1. The plot of agricultural land


2. Lease agreement gives broad rights to use land

3. The lessee receives the right to buy land in case of cancellation of the moratorium

4. A landlord is only a formal owner of the land

5. Tenant uses the land as their property

* In Roman law: a special type of hereditary long-term use someone else's land

The above description of the ways to circumvent the moratorium deserve to pay attention to them, but implement them hardly anyone - it will no subsequent problems for themselves. Method one. Simply put quite primitive, and probably never used in practice for the following reasons. Let us imagine the situation. Perfected this transaction, namely the transfer of funds from the lender to the borrower. Legal relations that arose between the two named individuals, in principle, the design must be in writing, by signing the loan agreement. According to the contract of loan, the lender gives the borrower (also known as the land owner) a certain amount of money that the borrower is obliged to return at a certain period of the loan agreement and may do what - else condition. Not complying with the obligation to repay the money, the borrower becomes a debtor. Lender goes to court. And here is necessary to pay attention to the "unknown authors" of the proposed method, the object of the claim will be refund. Given the above scenario, assume the situation that the borrower agrees to the presence of debt, but states that there is no money to pay off, and the presence of his land. In this case, the court adopts the following decision, to recover money to the lender. Dear unknown authors precisely the money as provided by the loan agreement, rather than land or a horse or any other property. During execution of the award may indeed turn out that the money from the land owner and not to repay the debt is impossible. In this case, the court's decision may be enforced by foreclosure of the property of the debtor. I draw your attention that is not the debtor's assets will be transferred to the lender and the money from the sale of most assets. Thus, the lender does not receive the land. One may assume several scenarios that situation. The script first. During the dispute reveal that there is no money and repay the debt would not be possible when there is recognition of the debt by the debtor and the existence of the debtor's property (land) that he can transfer to the lender. In this case, the lender does not get in against such a way to satisfy the debt. In this case, may be signed settlement agreement. The latter comes into force after its approval by the court. But, the problem may arise later when you make a public act of ownership of land on the new owner. This is due to the fact that the contract of alienation of land to be notarized and signed a settlement agreement in writing. Scenario Two. At the stage of execution of court decision on the refund debt is collected through the sale of the debtor's property, namely land. The lender does not itself speak against the buyer of the property and become its purchaser. In this case, set off mutual claims is impossible. He has a need for additional funds. Creditor (the buyer) will need to find a certain amount of money to pay them on account of a specialized organization that produces the sale of land. Only after that the money minus 10% (Executive collection) back to the creditor and the creditor becomes the owner of the land. Pay attention to the second way to bypass the moratorium - sale of parts, namely the first paragraph, "owner of the land allotment allocates part of it." What it means to allocate part of it? It is yet unclear mechanism. Well, singled out the part, and what's next? We are talking about the land plots, which temporarily prohibited the alienation of section 15 of the Transitional Provisions of the Land codec Ukraine. Other sites and without isolation can be alienated. So, after the separation of land from the owner will have two sections with the same end use. And at these two sites will be subject to the same prohibition of alienation, as in the original plot. After the moratorium applies to the change of purpose, not only to dispose of. Therefore, allocating land, the owner must at once declare his destination changed. And giving permission for the allocation, local authorities refuse to grant the owner permission to change the purpose of the site selection. The third way to circumvent the moratorium does not deserve attention. Just want to ask a few questions to the author.

1. What to lease the land the tenant obtains the right to change its designated purpose?

2. And what with the perpetual lease scheme if you can just arrange a lease for 49 years, for example?

Thus, all the proposed options can be considered only at the theoretical level, but the practical application they have not. Yes, these methods can be just - only a subject of controversy among lawyers, but no more.
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